Law & Courts

In 2008, four issues will feature prominently in the legislative landscape for labor & employment law: labor “neutrality,” overtime exemptions, paid family leave, and the coverage of discrimination law. AWB’s policy priority continues to be greater consistency with applicable federal laws and regulations, in order to avoid duplication, inconsistency, and uncertainty, and protect employers in compliance with federal norms.

Organized labor in Washington is pushing a two-pronged strategy to gag employers from expressing their views about or against labor organizing. In 2007, unsuccessful House Bills 1828 and 2351 targeted the aerospace industry for “neutrality” on the basis it received perceived public benefits from a 2003 economic development incentive package aimed at retaining assembly of the Boeing 787 in Washington. House Bill 2383 would have applied to all employers, outlawing required attendance staff meetings at which employers express a view about labor unions or the merits of an organizing campaign. These proposals have already been described as top union priorities in the 2008 session.

In reaction to Cerrillo v. Esparza Trucking, a 2007 Washington Supreme Court decision unanimously holding the exemption from overtime provisions of the Minimum Wage Act for agricultural workers is unambiguous and is not limited to employees of the “first producers” of commodities, labor unions, supported by L&I, sought to overturn the Cerrillo case and introduced House Bill 1920 to codify the “first producers” limitation. Labor and L&I indicate they will try to address Cerrillo again in 2008.

In 2007, Senate Bill 5873 would have redefined the “employer” covered by the Washington Law Against Discrimination by removing the exemption for small businesses employing fewer than eight. Employers countered that it would be unfair to remove the exemption without substantial improvements to the administrative complaint process at the Human Rights Commission. Improvements would include a form of administrative remedy that is exclusive or an administrative remedy that must be exhausted before a claimant can sue in court. A work group operating under the Senate Judiciary Committee is studying the issue and may bring forward legislation in 2008.

In 2007, paid family leave advocates scored a major victory with the passage of E2SSB 5659, which established a paid family leave insurance benefit and mandate. As introduced, the bill would have placed under the authority of the Department of Labor & Industries a far-reaching paid leave program mandating job-protected leave for all employees in the state for six weeks to care for one’s own illness or for a sick family member. The mandated leave would be partially paid, up to $250 per week for five of the six weeks, from a state-run insurance program paid for with a payroll tax on workers.

The business community responded very clearly to the Legislature that such a program was unnecessary, and that the proper policy approach would be to offer incentives and flexibility to encourage employers to structure their workforce in such a way that allowed for paid family leave. Many small business owners told the Legislature they cared for their employees and accommodated them on a case by case basis and appreciated that flexibility. Many larger employers pointed out they already offer better benefits to their workers than the bill would require. For these reasons, employers remain opposed to paid family leave.

Nevertheless, the Legislature passed a more modest version of this program. It still mandates six weeks time away from work regardless of the size of one’s employer. But in order for the leave to be job-protected, the employer must employ more than twenty five. The program still offsets five weeks of leave with a benefit up to $250 per week. But the scope of leave was limited to the birth or adoption of a child. Washington became only the second state, after California, with such a program. The Legislature did not, however, specify which agency would administer this program or finance its costs and benefits.

Instead, a task force consisting of legislators and business-labor representatives was appointed to settle the administration and funding questions. That task force began meeting in late 2007 and is charged with bringing draft legislation back for the 2008 legislative session.