Some new developments for agricultural employers in Washington state to keep in mind during the new year.

Equal Pay Opportunity Act: The legislature amended Washington’s Equal Pay Act (1943) to address the continuing wage gap between men and women performing similar work.

We’ve all heard the statistics. White women earn approximately 79 cents for every dollar earned by their male counterparts. The statistics get bleaker for women of color.

This amendment prohibits employers from paying or promoting similarly situated employees differently on the basis of gender. Compensation is defined to include discretionary and non-discretionary wages and benefits.

Similarly situated means employees working for the same employer performing a job that requires the same or similar skill, effort and responsibilities. Job titles alone do not matter.

Employers may pay or promote similarly situated employees differently if there is a reason that is based on a business necessity, gender neutral and accounts for the full differential.

For example, gender-neutral reasons may include education, training, experience, seniority, production, regional differences, or local minimum wage requirements.

Employers are not permitted to base compensation and promotion decisions on an employee’s prior wage history. The burden of proving that employees are being paid fairly and equally falls to employers.

New Year’s Resolution: Employers should do a self-audit of their pay practices and procedures to determine if they are in compliance and treat all employees fairly in terms of pay and promotions.

Ban the box: As of June 16, 2018, Washington employers may not ask questions or obtain information about an applicant’s criminal history until after that employer has determined the applicant is “otherwise qualified.”

This means that employers cannot advertise positions in a way that excludes people with criminal records from applying. Further, employers cannot include questions either in the application or in the interview related to any potential criminal history. In fact, employers cannot take any steps to determine if a candidate has a potential criminal history until after that employer has decided the candidate meets the job criteria.

There are exceptions to the new rule for limited types of employers (e.g., law enforcement, employees who may have unsupervised access to children or vulnerable adults, or if otherwise expressly permitted by law or regulation), but the vast majority of employers in Washington now need to be very careful about any pre-offer criminal history inquiries.

New Year’s Resolution: Employers should review their employment applications and processes to make sure that they do not conflict with this new rule by asking questions about an applicant’s criminal history.

Sexual harassment: We all know that sexual harassment at the workplace is wrong. Perhaps in response to the #MeToo movement or the litany of public figures in the news and entertainment industries who have been fired for sexual harassment, the legislature passed a series of bills to allow current or former employees to talk about their sexual harassment experiences and to help employees understand what sexual harassment is.

• Non-disclosure agreements: Employers cannot require employees to sign non-disclosure (or confidentiality) agreements that precludes those employees from disclosing sexual harassment or sexual assault at the workplace or at a work-related event. Employers cannot retaliate against an employee for disclosing such conduct. Only HR staff or the supervisors who are investigating and responding to the allegations of sexual harassment can be precluded from talking about the allegations.

• Confidential settlement agreements: If an employer enters into a confidential settlement agreement with either a current or former employee that had the effect of precluding that employee from discussing sexual harassment or sexual assault at the workplace in a civil lawsuit or administrative action, that agreement is no longer enforceable. Employees are free to disclose that conduct in other claims against the same employer filed in either court or with an administrative agency.

• Arbitration agreements: Employers cannot require employees to engage in private arbitration of any state or federal discrimination claim. This extends beyond just sexual harassment to all forms of discrimination. While there may be legal challenges to precluding arbitration of federal discrimination claims, it is clear that all state discrimination claims cannot be subject to mandatory, private arbitration clauses.

• Model sexual harassment policies: Finally, the legislature directed a workgroup to prepare model sexual harassment policies and best practices. These are available at the Human Rights Commission website. The policies, as drafted, are very long and thorough. However, one helpful aspect to the model policies is that they include what is not sexual harassment or retaliation.

New Year’s Resolution: Employers should carefully review any agreements with employees that have non-disclosure and mandatory arbitration provisions. Employers should also carefully review the model policies and revise their own policies on sexual harassment.

Paid family & medical leave: Effective Jan. 1, with very few exceptions, all employers are required to start collecting premiums for this new benefit that the Employment Security Department will administer. Depending on the size of the employer, the premiums may be shared between the employer and employee or will be deducted solely from the employee. As of April 1, 2019, all employers are required to report the wages and hours each employee works. Employees can start applying for benefits with the ESD as of Jan. 1, 2020. The good news is that ESD, not employers, will determine if an employee qualifies for the benefit. There are various exceptions and rules related to smaller employers or those who want to do a voluntary plan. ESD is still working through the logistics of this program, however, they do have a helpful toolkit available for employers with sample language to communicate this new benefit to employees. Go to paidleave.wa.gov for the most recent toolkit and updates.

New Year’s Resolution: Employers should download the latest toolkit and let their employees know of this new deduction from their wages.

Minimum Wage: Effective Jan. 1, the minimum wage increases from $11.50 per hour to $12.00 per hour. In 2020, the minimum wage will go up again to $13.50 per hour.

New Year’s Resolution: Employers should check their compensation structure, particularly any piece rate work, to ensure they are in compliance with this new minimum wage rate.

Stephanie P. Berntsen is an attorney and member of Schwabe Williamson & Wyatt’s Natural Resources Industry Group, which includes agriculture and forest products. Schwabe has offices in Oregon, Washington, California and Alaska. She can be reached at 206-689-1235 or sberntsen@schwabe.com.

Stephanie P. Berntsen is an attorney and member of Schwabe Williamson & Wyatt’s Natural Resources Industry Group, which includes agriculture and forest products. Schwabe has offices in Oregon, Washington, California and Alaska. She can be reached at 206-689-1235 or sberntsen@schwabe.com.

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