Client Alert: New Employment Law Changes Impacting Employers in Washington

This year has seen several pieces of federal and state legislation impacting employment practices in the state of Washington. This Client Alert is a summary of changes of which you should be aware in running your business.

Changes to the Employment Eligibility Verification Form

The new Form I-9 was released on August 1, 2023. Employers can use the previous version of the Form I-9 through October 31, 2023. After that, all employers must use the revised Form I-9. It has been designed to be fillable on tablets and mobile devices.

The biggest change with the new Form I-9 is the checkbox allowing employers enrolled in E-Verify to indicate they virtually examined identity and employment authorization documents, instead of reviewing documents in person.

To participate in the remote examination of Form I-9 documents:

• employers must be enrolled in E-Verify and be in good standing,
• examine and retain “clear and legible” copies of all documents,
• conduct a live video interaction with the employee during the verification process, and
• create an E-Verify case if the employee is a new hire.

There is an August 30, 2023 deadline for reverification of employees who were hired during COVID-19 (3/20/20 – 7/31/23). Employers who were participating in E-Verify and created cases for employees whose documents were examined virtually between March 20, 2020, and July 31, 2023, may choose to use the new alternative procedure to satisfy the physical document examination requirement by August 30, 2023.

However, employers who were not enrolled in E-Verify during the COVID-19 flexibilities time frame must complete an in-person physical examination by August 30, 2023.

Changes to the Enforceability of Confidentiality, Non-Disclosure, and Non-Disparagement Provisions

Washington’s Silenced No More Act and a decision from the National Labor Relations Board (NLRB) have impacted the enforceability of confidentiality, non-disparagement, and non-disclosure provisions that govern contracts between employers and their employees and contractors.

The result is that you may not include provisions in employment-related agreements that would prevent an employee or contractor from reporting conduct that constitutes discrimination, harassment, retaliation, wage violation, or sexual assault. Also, an employer cannot include confidentiality and non-disparagement provisions in an employee’s severance agreement that are too broad that they can restrict the employee’s ability to exercise their rights under the National Labor Relations Act.

Washington Changes to the Long-Term Care Insurance Mandate

July 1, 2023 marked the start date for employee contributions to Washington’s long-term care mandate. The law requires employers to collect 0.58% of wages through payroll deductions from employees working in the state as contributions to the state-run Long-Term Services and Supports Trust Program. Employer contributions are not required. While some employees may qualify for an exception if they purchased a private Long-Term Care policy in 2021, other exemptions may be available for employees whose primary residence is outside of Washington and spouses of active-duty military.

Pregnant Workers Fairness Act

On June 27, 2023, the Pregnant Workers Fairness Act went into effect. The act requires that employers provide “reasonable accommodations” for their pregnant employees, such as providing closer parking, allowing more flexible hours, supplying appropriately sized uniforms and safety apparel, providing additional break time to use the restroom/eat/rest, and allowing pregnant employees to be excused from strenuous or dangerous activities.

Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act

A new federal law was enacted in December 2022 and became fully enforceable as of April 28, 2023. The PUMP Act requires employers of all sizes to provide reasonable break time for an employee to express human milk for their nursing child for up to one year after the birth of the child. Employees must have access to private, non-bathroom spaces in which to comfortably pump.

This expands workplace lactation accommodation protections to all breastfeeding/chestfeeding employees upon their return to the workplace. These protections apply regardless of the employee’s gender and apply to all workers, including off-site, remote, mobile or traveling workers.

Employers cannot mandate the length of a pumping break, nor the number of breaks a worker takes, and must include time for the employee to get to the space, set up and clean up. An updated poster is needed for employees.

Washington’s Equal Pay and Opportunities Act

Earlier this year, the governor signed Washington’s Equal Pay and Opportunities Act. This law requires Washington employers with 15 or more employees to affirmatively disclose a wage range on any digital or printed ad on the company’s hiring board or listed on a third-party site. Employers must also post all of the benefits and other compensation associated with the position. The law applies to companies that have at least one Washington-based employee, engage in business in the state or are recruiting for jobs that could be filled remotely by someone in the state.

Washington’s Fair Chance Act

On the subject of creating job advertisements, we’d like to remind you of Washington’s Fair Chance Act which prohibits employers from advertising job openings in a way that excludes people with criminal records from applying. Ads which state “no felons,” “no criminal backgrounds,” or otherwise communicate similar messages are prohibited and, with few exceptions, employers may not include any question on a job application that seeks information about an applicant’s criminal record.

For more information, please contact Kristina Maritczak at kmaritczak@cairncross.com or Konrad Kalpen at kkalpen@cairncross.com.