Washington: Ban-the-Box, Sexual Harassment, Equal Pay Law, and Discrimination Updates

The state of Washington recently passed several bills that affect employer practices.  HB 1298 created the Fair Chance Act prohibiting applicant criminal inquiries, SB 5996 prohibits employers from requiring employees to sign nondisclosure agreements regarding harassment or sexual assault, HB 1506 updates and expands the statewide Equal Pay Act, and HB 2661 prohibits discrimination of victims of domestic violence.

HB 1298: Fair Chance Act Bans the Box

Effective June 6, 2018, HB 1298 prohibits criminal conviction history inquiries before an employer has determined that the applicant is “otherwise qualified” for the position, including job postings that exclude people with arrest or conviction records, questions on employment applications or other pre-qualification inquiries regarding criminal history, pre-qualification background checks, automatic disqualifiers before a person is evaluated on being otherwise qualified, or rejecting an applicant for failure to disclose a criminal record prior to determining if the person is otherwise qualified.

There are exceptions to the ban-the-box rule, such has employees who may have access to children, employees subject to mandatory background checks under federal or state laws, law enforcement agencies, employers seeking nonemployee volunteers, and certain entities subject to SEC regulations. The state law does not prohibit local ban-the-box laws, so employers must be careful to comply with all applicable laws.

SB 5996: Prohibition of Sexual Harassment Nondisclosure Agreements

SB 5996 takes aim at practices that suppress employee complaints or discussion about sexual harassment and assault.  Effective June 7, 2018, employers may not require employees to sign, as a condition of employment, any nondisclosure agreement (“NDA”) that prevents employees from disclosing sexual harassment or assault that occurs in the workplace, at work-related events coordinated by an employer, between employees, or between employer and employee, or off the work premises.

The bill retroactively applies to NDAs that predate this law.  NDAs that contain such provisions will be considered void and unenforceable. The exception to this law is for confidentiality provisions contained in valid settlement agreements.

In addition to the prohibition on NDAs, the senate bill adds to the Washington Law Against Discrimination (“WLAD”) and makes it illegal for employers to fire or retaliate against employees who disclose incidents or allegations of sexual harassment.

HB 1506: Updating the Equal Pay Act

Also effective June 7, 2018, HB 1506 expands the statewide Equal Pay Act (“EPA”). Similar to some other states’ equal pay laws, the updated EPA prohibits gender-based compensation discrimination between employees who are “similarly employed.”  Employers must examine job duties to determine what roles are “similarly employed,” including job duties that require similar skill, effort, and responsibility, and are performed under similar working conditions.   Important provisions of the amended EPA are summarized below.

1. Compensation Differentials: Permitted only under a few “bona fide job-related factors.” These factors must be consistent with business necessity, cannot be based upon a gender-based differential, and must account for the entire differential. The factors include:
   1. Education, training, or experience
   2. Seniority system
   3. Merit system
   4. System that measures earnings by quantity or quality of production
   5. Regional difference in compensation levels
2. Career Advancement: Employers may not limit or deprive employees of career advancement opportunities based on gender.
3. Wage Disclosure: Employers cannot prohibit employees from discussing their wages, and may not discharge or retaliate against employees who discuss or inquire about wages or advancement opportunities, or who encourage other employees to exercise their rights under the EPA.

HB 2661: Domestic Violence Protections Added in the Workplace

Effective June 7, 2018, HB 2661 prohibits employers from discriminating or retaliating against applicants or employees who are victims, or perceived victims, of domestic violence, sexual assault, or stalking, or from refusing to make a reasonable safety accommodation requested by a victim, unless the accommodation would pose an undue hardship on the employer. A reasonable safety accommodation is any adjustment to a job structure, workplace facility, or work requirement in response to actual or threatened domestic violence, and can include things like a job transfer, modified work schedule, change in work contact information, or adding locks or safety procedures.

If an employee requests a reasonable accommodation under this law, an employer may require verification for a reasonable safety accommodation, including a police report; court order; documentation from the court or prosecuting attorney that the employee or family member appeared or is scheduled to appear in court;  documentation from an advocate, attorney, member of the clergy, or medical or other professionals; or an employee’s own written statement that the employee or family member is a victim of domestic violence, sexual assault, or stalking.