Employment Law, News

New Harassment, Pay, and Background Check Laws Taking Effect in Washington

Four new laws set to take effect on June 7 in Washington will affect gender pay equity, sexual harassment, and criminal background checks.

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State Equal Pay Act Change

Changes to Washington’s Equal Pay Act from House Bill (HB) 1506 will expand prohibitions against pay inequality based on gender. Among other things, the law prohibits gender-based pay discrepancies between employees of the same employer who are “similarly employed”—that is, they perform jobs requiring similar skill, effort, and responsibility under similar working conditions.

The changes mean employers can’t rely on an employee’s previous wage or salary to justify a pay discrepancy between genders. The law also prohibits employers from limiting or depriving employees of career advancement opportunities on the basis of gender. In addition, the law forbids employers from requiring employees not to disclose their wages and prohibits retaliation against employees for inquiring about or discussing wages under certain circumstances.

Nondisclosures Pertaining to Sexual Harassment

Senate Bill (SB) 5996 prohibits employers from requiring employees, as a condition of employment, to sign nondisclosure agreements that prevent them from disclosing sexual harassment or sexual assault in the workplace, at work-related events coordinated through the employer, between employees, or between an employer and an employee off the employment premises.

However, the law does permit nondisclosure agreements as part of settlements of sexual harassment claims. The law also makes it an unfair practice for an employer to retaliate against an employee for disclosing or discussing work-related sexual harassment or assault.

Public Pursuit of Discrimination Claims

SB 6313 makes provisions in employment agreements that include the following void and unenforceable:

  • A requirement that employees waive their right to publicly pursue a claim under the Washington Law Against Discrimination or federal antidiscrimination laws or their right to file complaints with the appropriate state or federal agencies; or
  • A requirement that employees resolve discrimination claims in a dispute resolution process that is confidential.

The law prohibits employment agreements that require employees to resolve discrimination complaints through private, confidential arbitration. Mandatory arbitration clauses are allowed, however, if there is not an accompanying confidentiality requirement.

Criminal History Inquiries

HB 1298 prohibits employers from inquiring or otherwise obtaining information about an applicant’s arrest or conviction history until after they determine that the applicant is otherwise qualified for the position. Once an employer has determined that an applicant is otherwise qualified, it may obtain the information.

The law also prohibits employers from advertising employment openings in a way that excludes people with criminal records from applying.

For more information on the new Washington laws, see the May issue of Washington Employment Law Letter.

William Miller is an attorney with Perkins Coie LLP in Seattle. He can be reached at wmiller@perkinscoie.com.