State snapshot

Key considerations

Which issues would you most highlight to someone new to your state?

Washington state is among the most employee-friendly jurisdictions in the United States with regard to employment rules and regulations. This will continue to be the case for the foreseeable future, as both the Washington State Legislature and the Washington Supreme Court are liberal leaning and tend to expand employee protections.

Washington is an at-will employment state, but there are many protected classes, activities and employee rights of which Washington businesses must remain aware with regard to employee relations. In areas with both federal and state regulation, Washington state law sometimes provides greater employee protections or benefits than corresponding federal law. In such circumstances, adhering to federal law alone is not enough, as employees benefit from both federal and state law. This comes up most frequently in the areas of wage and hour law (e.g., overtime and white collar exemptions) and disability accommodations, but also in other areas where Washington state law is more protective of employees than the corresponding federal law.

What do you consider unique to those doing business in your state?

Washington does not allow punitive damages for state law claims. However, state law does not place a cap on non-economic damages for emotional distress and thus juries often use this as a substitute for punitive damages.

Is there any general advice you would give in the labor/employment area?

Employers that comply with federal law should not assume that they comply with Washington state laws. Some cities and counties have laws covering the employment relationship that must be followed by employers with employees working in those jurisdictions. This can cover a variety of areas in the employment relationship—from wages, leave, and discrimination to the scheduling of work hours.

Emerging issues

What are the emerging trends in employment law in your state, including the interplay with other areas of law, such as firearms legislation, legalization of marijuana and privacy?

More employee-friendly paid leave and scheduling laws are emerging trends.

Washington was one of the first states to legalize both medicinal and recreational marijuana. However, employee protections for off-duty marijuana use (medical or recreational) and reasonable accommodation requirements for medicinal marijuana have not yet been enacted, as marijuana is still illegal for all purposes under federal law.

Proposals for reform

Are there any noteworthy proposals for reform in your state?

N/A.

Employment relationship

State-specific laws

What state-specific laws govern the employment relationship?

 A myriad of Washington state laws govern the employment relationship. Those laws are discussed in more detail with respect to specific topics. They include:

  • the Washington Law Against Discrimination;
  • the Washington Minimum Wage Act;
  • the Washington Industrial Insurance Act;
  • the Washington Family Leave Act (soon to be replaced by the Washington Paid Family and Medical Leave Act, which takes full effect in 2020);
  • the Washington Paid Sick Leave law;
  • the Washington Fair Chance Act; and
  • the Washington Industrial Safety and Health Act.

In addition, local laws govern the employment relationship. For example, Seattle employers are subject to the Seattle Paid Sick and Safe Time Ordinance, the Seattle Minimum Wage Ordinance, and the Seattle Secure Scheduling Ordinance. 

Who do these cover, including categories of workers?

Each law covers employees located in Washington (or, as the case may be, employees in particular cities). In general, the laws do not extend to independent contractors. Certain laws expressly exclude specific categories of worker.

Misclassification

Are there state-specific rules regarding employee/contractor misclassification?

 No Washington law directly penalizes employers for misclassification of employees as independent contractors. However, misclassification of employees may involve violations of other statutes, resulting in civil penalties. For example, an employer’s failure to pay workers’ compensation premiums for misclassified employees or failure to pay correct wages to misclassified employees may result in penalties. There is no safe harbor under Washington law for unintentional misclassification of workers as independent contractors.

Contracts

Must an employment contract be in writing?

An employment contract need not be in writing unless it is subject to the statute of frauds. For example, an agreement that by its terms is not to be performed in one year from the making of the agreement must be in writing. 

Are any terms implied into employment contracts?

The covenant of good faith and fair dealing is implied into every employment contract.

Are mandatory arbitration agreements enforceable?

Yes, with the exception of claims involving sexual harassment or sexual assault in the workplace. It is still an open question whether the Federal Arbitration Act pre-empts the Washington State law precluding confidential arbitration of sexual harassment and sexual assault claims.

How can employers make changes to existing employment agreements?

How changes may be made to an existing employment agreement largely depends on the terms of the agreement and whether the agreement contractually limits amendments.

If an employer wants to enter into a new non-compete agreement with an existing employee, the employer must provide additional consideration beyond mere continued employment. 

Hiring

Advertising

What are the requirements relating to advertising open positions?

The Washington Fair Chance Act prohibits employers from advertising open positions in a way that excludes applicants with criminal records from applying. 

Background checks

(a) Criminal records and arrests

 The Washington Fair Chance Act provides that employers may not include any question on an employment application, inquire orally or in writing, or receive information through a criminal history background check regarding a potential employee’s criminal record until the employer has determined that the applicant is otherwise qualified for the position. Further, employers cannot implement a policy or practice that automatically excludes individuals with a criminal record.

In addition, the Washington State Human Rights Commission (WSHRC) has promulgated a regulation that provides that employers should not inquire into applicants’ criminal records unless the crimes inquired about reasonably relate to the job duties and occurred within the past 10 years. The Washington Court of Appeals has held that the regulation is invalid, but the WSHRC nevertheless maintains its position that inquiries beyond that scope are inappropriate.

(b) Medical history

There is no state-specific limit on medical history inquiries beyond the general prohibition set out in the Washington Law Against Discrimination, which states an employer cannot refuse to hire an individual because of a disability unless that disability prevents the worker from performing their duties.

(c) Drug screening

There are no state-specific prohibitions on pre-employment drug screening. 

(d) Credit checks

Credit checks must comply with both the federal Fair Credit Reporting Act and the Washington Fair Credit Reporting Act. While the Washington act largely mirrors the federal one, it imposes greater limitations on the reasons for obtaining a consumer report. Employers may not obtain a consumer report regarding credit unless the information is substantially job related (in which case the employer must provide its reasons for using the information in writing) or required by law. 

(e) Immigration status

There are no state-specific requirements regarding inquiries into immigration status. However, the Washington Law Against Discrimination prohibits employers from refusing to hire an applicant because of their national origin.

(f) Social media

There are no state-specific limitations on checking applicants’ social media accounts as part of a background check. 

(g) Other

N/A.

Wage and hour

Pay

What are the main sources of wage and hour laws in your state?

In addition to federal laws, Washington state has a comprehensive statutory scheme for wage laws, primarily in the Revised Code of Washington (Sections 49.48 and 49.52). There are also corresponding regulations in the Washington Administrative Code and a growing body of judicial law. The Washington State Department of Labor and Industries (L&I) is the state agency charged with interpreting and enforcing Washington’s wage laws. Employees in Washington state can benefit from either federal or Washington state law if one law provides greater employee protections on any particular issue, even if this conflicts with the other law. 

What is the minimum hourly wage?

The 2019 Washington minimum hourly wage is $12.00. In January 2020 the state minimum wage will increase to $13.50. Starting on January 1, 2021, the annual minimum wage increases will be calculated using a formula tied to the rate of inflation. Notably, several municipalities, including Seattle, have higher minimum wage requirements for employees who work within their municipal boundaries.

Washington's minimum wage applies to workers in both agriculture and non-agricultural jobs, although 14 and 15-year-olds may be paid 85% of the minimum wage ($10.20). 

What are the rules applicable to final pay and deductions from wages?

Washington state employers must issue a final paycheck to an employee who has been terminated on or before the next regularly scheduled pay date, regardless of whether the employee has been terminated or resigned.

Deductions from pay are allowed for required federal and state taxes and to comply with court-ordered garnishments. Employees must voluntarily agree to any deductions that would benefit them, including:

  • employee health and dental insurance payments or co-payments;
  • personal loans; or
  • personal purchases of food, equipment, services, or items that the business sells to the public.

Any such deduction may not financially benefit the business (other than reasonable interest included in the agreement). It is important to have all deduction agreements memorialized in writing to avoid disputes over any such agreement or specific terms.

Some deductions may be applied only for an employee’s final pay period and must not reduce the employee’s final paycheck below the applicable minimum wage, even if the business makes such an agreement with the employee. Employers must follow specific rules covering situations involving:

  • cash shortages;
  • breakage, loss, or damage of equipment;
  • bad checks or credit card purchases accepted by employees; and
  • employee theft.

An employer bears the burden of proving that its employees were informed of company policies regarding these deductions. With regard to any agreements for deductions made at the time of termination that are for the employee’s personal benefit, the employer may reduce the employee’s final paycheck below the applicable minimum wage. However, if an agreement is made for the employer’s benefit, the final paycheck must be paid at the applicable minimum wage for all hours worked during the final pay period. It is recommended that all deduction policies and events be memorialized in writing and that employers obtain written acknowledgements that their employees have read and understood any such policies. An acknowledged employee handbook is suitable for this purpose.

Hours and overtime

What are the requirements for meal and rest breaks?

Meals Meal period requirements are triggered by more than five hours of work. Employees working five consecutive hours or fewer do not require a meal period. Employees working more than five hours must be given a 30-minute meal period and this must be provided between the second and fifth working hour. This rule applies to the shift that the employee is regularly scheduled to work. For example, an employee who normally works a 12-hour shift must be allowed to take a 30-minute meal period no later than the end of each five hours worked. Employees working more than three hours longer than their normal workday will be allowed a meal period before or during the overtime portion of their shift. If the employee’s scheduled shift is lengthened, an additional meal period may be required. Meal periods are not considered hours of work and may always be unpaid as long as employees are completely relieved of their duties and receive 30 minutes of uninterrupted mealtime. Employees need not leave the premises if they are otherwise completely free from duties during their meal break. In such a case, meal periods need not be paid; however, employees must be completely relieved of their duties and free to spend their meal period on the premises as they please. If an employee carries a cell phone, pager, or radio, whether they should receive wages must be evaluated on a case-by-case basis.

Meal periods are considered hours of work when an employer requires employees to:

  • remain on duty;
  • stay on the premises or at a prescribed worksite; and
  • act in the employer’s interest.

When employees are required to do so, the employer must make every effort to provide employees with an uninterrupted meal period. Should the meal period be interrupted due to the employee performing a task, on completion of the task, the meal period will be continued until the employee has received a full 30 minutes of mealtime. Time spent performing the task is not considered part of the meal period. The entire meal period must be paid without regard to the number of interruptions. As long as the employer pays the employees during a meal period in this circumstance and otherwise complies with Washington law, payment of an extra 30-minute meal break is not required.

Employees may choose to waive the meal period requirements if the employer also agrees to the waiver. It is recommended to obtain a written request from any employee who chooses to waive their meal period. Notably, an employee can revoke their waiver at any time.

Rest breaks Employees must be allowed a rest period of no less than 10 minutes on the employer’s time in each four hours of working time, scheduled as near as possible to the midpoint of the four hours. The rest break must be allowed no later than the end of the third working hour. Unlike meal periods, an employee cannot waive rest breaks.

The term "rest period" means to stop work duties, exertions, or activities for personal rest and relaxation. Rest periods are considered hours worked and must be paid. Where feasible, “intermittent rest periods”, defined as an interval of short duration in which employees are allowed to rest, relax, and engage in brief personal activities while relieved of all work duties, may comprise the required 10 minutes.

Rest and meal breaks have been the subject of a significant litigation in Washington state, including class actions. Any deviations from the uninterrupted meal period requirements, determining whether employees are on-call or free, or the use of intermittent breaks, should be reviewed by legal counsel to avoid the pitfalls in this area.

What are the maximum hour rules?

Assuming all other laws (e.g., safety and wages) are being met, there are no rules limiting the number of hours that can be worked. However, there are age-specific limitations on the number of work hours that employees under the age of 18 can work.

There are no state-wide regulations regarding when and how workers are scheduled, although some municipalities (e.g., Seattle) have such laws. Businesses are not required to give weekends or holidays off, although some religious accommodations may need to be considered.

How should overtime be calculated?

Assuming all other laws (e.g., safety and wages) are being met, there are no rules limiting the number of hours that can be worked. However, there are age-specific limitations on the number of work hours that employees under the age of 18 can work.

There are no state-wide regulations regarding when and how workers are scheduled, although some municipalities (e.g., Seattle) have such laws. Businesses are not required to give weekends or holidays off, although some religious accommodations may need to be considered.

What exemptions are there from overtime?

The following are examples of employees who are exempt from Washington state overtime laws, although federal law may provide protections depending on the circumstances:

  • workers who are paid on a salary basis and meet specific duties requirements (e.g., executives, administrative workers, professionals, computer professionals, and outside sales);
  • workers employed on farms or ranches, or in any agricultural or horticultural business that packs, packages, grades, stores, or delivers to market such products, or any commercial business in canning, freezing, processing or transporting these products, or in cultivating, raising, harvesting, or processing oysters;
  • seasonal employees at agricultural fairs if they have not worked more than 14 days per year;
  • newspaper vendors or carriers;
  • casual laborers in private residences (e.g., babysitters, local children or adults that mow lawns, rake leaves, or clear snow) even if they are paid for this work;  
  • individuals involved in forest protection and fire prevention activities;
  • individuals whose duties require that they reside or sleep at their place of employment or who otherwise spend a substantial time on call and not engaged in the performance of active duties;
  • seafarers onboard US or foreign vessels and certain crewmembers on Washington state ferries;
  • camp counselors with childcare responsibilities engaged in the development of character, citizenship, or health and physical fitness;
  • inmates, residents, or patients of any state, county, or municipal correctional, detention, treatment, or rehabilitation institution;
  • public elective or appointive officers;
  • volunteers for profit or non-profit educational, charitable, or religious organizations or government agency;
  • motion picture projectionists under collective bargaining agreements or other contracts; and
  • air carrier employees when such hours are voluntarily worked pursuant to a shift-trading practice.

Record keeping

What payroll and payment records must be maintained?

Employers must keep records of employees’ names, addresses, occupations, hours worked on a daily and weekly basis, rate or rates of pay, total wages earned, deductions, and net pay for the pay period. These records must be maintained for three years. On an employee’s request, copies of their records must be made available for inspection within a reasonable period.

Discrimination, harassment and family leave

What is the state law in relation to:

Protected categories

(a) Age?

Employees who are 40 years old and over are a protected category under the Washington Law Against Discrimination.

(b) Race?

Race is a protected category under the Washington Law Against Discrimination.

(c) Disability?

Disability is a protected category under the Washington Law Against Discrimination. What constitutes a “disability” is defined more broadly than is the case under the federal Americans with Disabilities Act. Under Washington law, a disability means the presence of a sensory, mental, or physical impairment that:

  • is medically cognizable or diagnosable;
  • exists as a record or history; or
  • is perceived to exist.

It may be temporary or permanent, common or uncommon or mitigated or unmitigated. Further, it need not limit the ability to work generally or at a particular job. For the purposes of reasonable accommodation of a disability only, the impairment must actually exist and must substantially limit the individual’s ability to perform their job or access to equal benefits, privileges, or terms or conditions of employment.

(d) Gender?

Gender is a protected category under the Washington Law Against Discrimination.

(e) Sexual orientation?

Sexual orientation is a protected category under the Washington Law Against Discrimination. It includes heterosexuality, homosexuality, bisexuality, and gender expression or identity. 

(f) Religion?

Religion is included in the protected category of “creed” under the Washington Law Against Discrimination. An employer may also be found liable under the act for failure to accommodate an employee’s religious practices. 

(g) Medical?

A medical condition or issue may lead to protection under the Washington Law Against Discrimination if the condition involves a disability. In addition, employees may be entitled to take protected leave for medical reasons pursuant to the Washington Paid Sick Leave law, the Washington Family Leave Act, and (as of January 1, 2020) the Washington Paid Family and Medical Leave Act.

(h) Other?

In addition to the above-listed protected categories, employers are prohibited by the Washington Law Against Discrimination from discriminating against employees on the basis of marital status, national origin, honorably discharged veteran or military status, or the use of a trained dog guide or service animal by a person with a disability.

Harassment

What is the state law in relation to harassment?

The Washington Law Against Discrimination prohibits discrimination against individuals in the above-described categories. This has been interpreted to include a prohibition against harassment because an employee falls within one of the protected categories. 

Family and medical leave

What is the state law in relation to family and medical leave?

The Washington Family Leave Act largely mirrors the federal Family and Medical Leave Act. As such, protected, unpaid Washington Family Leave Act leave typically runs concurrently with federal leave. An exception is that pregnancy disability leave must be provided in addition to and separately from Washington leave. Further, Washing law does not provide for military exigency leave. As such, an employee who takes military exigency leave under federal law will still have all of their Washington leave available to use for other qualifying purposes.

The Washington law is effective only through December 31, 2019. As of January 1, 2020 the new Washington Paid Family and Medical Leave Act will take full effect. This act involves state-administered paid family and medical benefits comparable to Washington’s workers’ compensation system. Employers must collect premiums as payroll taxes from employees and pay a portion of premiums themselves to the Washington Employment Security Department (ESD). The premium requirements have already taken effect as of January 1, 2019. Beginning in 2020, eligible employees will be entitled to receive compensation from the ESD when taking leave for qualifying family and medical reasons comparable to the reasons for leave under the Washington Law Against Discrimination.

Privacy in the workplace

Privacy and monitoring

What are employees’ rights with regard to privacy and monitoring?

No Washington state laws prohibit private employers from electronically monitoring its employees with cameras in work areas or public areas. However, employers must not intercept, record, or transmit any private conversations that might occur while doing so. Washington’s Privacy Act states that it is unlawful to record:

any private communication transmitted by telephone… radio or other device between two or more individuals using any device… designed to record and/or transmit said communication… without first obtaining the consent of all the participants in the communication.

The statute is considered one of the strictest in the country. Violations create a private right of action for damages and attorneys’ fees. Evidence obtained in violation of the statute is inadmissible.

Private employers in Washington can conduct searches of company property and personal items brought to work. If such searches are contemplated, it is nonetheless best practice to have this employer right memorialized in a written policy so that employees do not have a false expectation of privacy.

Are there state rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?

Washington law provides protections for employees’ personal social networking accounts. Employers are prohibited from:

  • requesting, requiring, or otherwise coercing employees or applicants to disclose log-in information for their personal social networking accounts;
  • requesting, requiring, or otherwise coercing employees or applicants to access their personal social networking accounts in the employer’s presence in a way that allows the employer to observe an account’s contents;
  • compelling or coercing employees or applicants to add an individual (including the employer) to the list of contacts associated with their personal social networking accounts;
  • requesting, requiring, or causing employees or applicants to change the settings on their accounts that affect a third party’s ability to view the account’s contents; or
  • taking adverse action against employees or applicants (by discharging, disciplining, penalizing, or threatening to do so, or by failing or refusing to hire applicants) because they refuse to disclose their log-in details.

Bring your own device

What is the latest position in relation to bring your own device?

There is no current state regulation on bring your own device (BYOD). If an employer operates in a highly regulated industry (e.g., banking or healthcare), BYOD may be prohibited or otherwise inappropriate

Off-duty

To what extent can employers regulate off-duty conduct?

 Washington does not have an off-duty conduct statute protecting private sector employee’s off-duty conduct. 

Gun rights

Are there state rules protecting gun rights in the employment context?

N/A.

Trade secrets and restrictive covenants

Intellectual Property

Who owns IP rights created by employees during the course of their employment?

 As a rule, employers own the intellectual property created by their employees in the course of their employment. However, intellectual property that is created by an employee outside of working time and without the use of the employer’s equipment is generally owned by the employee, not the employer. Inventions agreements are useful to help avoid disputes concerning who owns a creation or invention. Such agreements require employees to assign their rights to inventions made while working for their employer and are governed by Revised Code of Washington (RCW) 49.44.140.

With regard to trade secrets, RCW 19.108.010 defines a “trade secret” as "information, including a formula, pattern, compilation, program, device, method, technique, or process" that:

(1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. 

Restrictive covenants

What types of restrictive covenants are recognized and enforceable?

Non-competition and non-solicitation covenants are enforceable only if they are supported by consideration (e.g., initial employment or some other form of valuable consideration) and are reasonable in scope. The Washington courts apply a three-part test to determine whether a non-competition or non-solicitation agreement is reasonable. It will be deemed reasonable only if:

  • the restraint is necessary for the protection of the business or goodwill of the employer;
  • the restraint (both in length and geographic scope) is no greater than is reasonably necessary to secure the employer’s business or goodwill; and
  • the degree of injury to the public in the loss of the service and skill of the employee is so small as to warrant enforcement of the agreement.

In addition, several limitations on employers using non-compete agreements went into effect pursuant to a 2019 statute.

A non-competition covenant is void and unenforceable unless the employer discloses the terms in writing to a prospective employee. If the covenant becomes enforceable only at a later date due to changes in the employee’s compensation (see below for compensation thresholds), then the employer must specifically disclose that the covenant may be enforceable in the future.

Non-competition clauses will be unenforceable against employees earning less than $100,000 in total annualized compensation (not just base salary) or independent contractors earning less than $250,000/year. This arbitrary threshold (which will increase on an annual basis at the rate of inflation), will create enforceability challenges in circumstances involving sales and other employees whose compensation is often tied to incentive compensation and where overall annual compensation fluctuates around the threshold.

WIth regard to "moonlighting," employees earning less than two-times the state minimum wage cannot be restricted from working an additional job (i.e., for a competitor) so long as the additional job does not raise issues of safety or interfere with the employer’s normal scheduling expectations.

If an employee is terminated as the result of a layoff, the non-competition covenant is void unless enforcement includes compensation equivalent to the employee’s base salary (not overall compensation) at the time of termination for the period of enforcement less compensation earned through subsequent employment.

Non-competition covenants longer than 18 months are presumptively unreasonable and unenforceable.

If a court or arbitrator reforms, rewrites, modifies, or partially enforces a non-compete clause, then it must require the employer to reimburse the employee for reasonable attorneys’ fees, costs and other expenses, plus damages or a statutory penalty of $5,000. This is a mandatory penalty provision.

For all actions or proceedings commenced after January 1, 2020, regardless of when the non-competition covenant between the parties was entered, the requirements of the new law apply. A cause of action may not be brought regarding a non-competition covenant signed prior to January 1, 2020 if the non-competition covenant is not being enforced.

The new law purports to limit the use of out-of-state venue and choice of law provisions to escape the Washington state statute.

The new law only applies to non-compete agreements, and does not limit the use of employee or customer nonsolicitation agreements.

Non-compete

Are there any special rules on non-competes for particular classes of employee?

The 2019 statute applies to employees and independent contractors. 

Labor relations

Right to work

Is the state a “right to work” state?

No.  

Unions and layoffs

Is the state (or a particular area) known to be heavily unionized?

 Washington state is one of the more unionized states in the United States. Given the political officeholders and climate in Washington, this is unlikely to change. Heavily unionized industries include hospitals, groceries, and certain manufacturing sectors. Organized labor has made efforts, with minimal success, to organize workers in Washington’s technology sector.

What rules apply to layoffs? Are there particular rules for plant closures/mass layoffs?

 There are no state-specific laws. 

Discipline and termination

State procedures

Are there state-specific laws on the procedures employers must follow with regard to discipline and grievance procedures?

 There are no state-specific laws on how to terminate private-sector employees. 

At-will or notice

At-will status and/or notice period?

Washington is an at-will employment state. No notice is required. 

What restrictions apply to the above?

There are numerous exceptions to at-will employment, most notably discriminatory or retaliatory acts based on protected class status or activities or an express or implied contract theory. 

Final paychecks

Are there state-specific rules on when final paychecks are due after termination?

Final wages are due to employees on the next regularly scheduled payday regardless of whether they quit or were terminated.