United States: Washington Employment Law 2018 Year In Review

Last Updated: December 28 2018
Article by Benjamin J. Stone

It is that time of the year again, when we turn on our out-of-office messages and spend at least a few days doing what we love, whether it's seeing our friends and family, hitting the beach or slopes, or just curling up on the couch and binge-watching the shows we missed during the year. It's also the time to reflect on what has happened over the past 12 months and to plan for the year ahead.

For employers in Washington, there is much to reflect on, and plan for, in 2019. Here are the highlights of the most significant changes to Washington employment law over the past year, and for the year to come. 

Washington Employers Must Begin Collecting Premiums for the State-Run Paid Leave in 2019 

Perhaps the single greatest change in the law for Washington employers was the enactment of not one, but two paid leave laws. 

First, pursuant to an initiative passed by voters, as of January 1, 2018, non-exempt employees now receive one hour of paid sick leave for every 40 hours worked. Leave can be used to attend to employees' health needs or the health needs of their family members, among other things, and can be used beginning on the 90th day of employment. If employees do not use this leave, they won't lose it, and they are able to carry over 40 hours of the leave to the next year. Furthermore, employees receive their normal rate of pay for each hour of sick leave they use. 

Second, pursuant to a law passed by the legislature, starting in 2020, almost all employees who work in Washington will get up to 12 weeks of paid family and medical leave for their own health needs or those of a family member, to bond with a new child, or for certain military-connected events. Unlike the other form of leave, which is paid for by the employer, this leave program is run by the state and in order for an employee to take leave, they must apply for benefits from the State of Washington Employment Security Department (ESD). Unlike leave under the first law, in which the employee receives their normal rate of pay, under this system an employee will only receive partial wage replacement, with the dollar amount being capped at $1,000 per week with a minimum of $100, calculated as a percentage of the employee's gross wages. 

To fund this program, the law requires that employers begin collecting premiums beginning on January 1, 2019. These premiums must be remitted to the ESD quarterly, starting in April 2019, along with a report on the number of hours and wages paid to those employees. Initially, the premium will be 0.4% of the employee's salary but, in 2020, this percentage will be adjusted by the state. Employers with at least 50 workers can withhold up to 63.333% of the premium from the worker's wages and pay the remaining 37.667%. Employers with fewer than 50 employees do not have to pay an employer portion of the premium but can instead take the entire premium from the employee. Sole proprietors are not required to participate in the program, although they can choose to do so. 

Grants are available to small businesses to help cover the costs of hiring temporary workers when an employee takes leave. To be eligible, the business must average 150 or fewer employees. Businesses with fewer than 50 employees who are not contributing to the program are not eligible for the grants. These employers have to pay their share of the premiums to be eligible for grants. 

Washington's Increasing Minimum Wage Continues to, Well, Increase, in 2019

Another Washington statute that continues to unfold is the state's wage law. Although first passed in 2016, the law requires incremental increases in the minimum wage over a number of years. 

It began with an increase to $11.00 in 2017 and $11.50 in 2018. On January 1, 2019, the minimum wage will increase to $12.00. Wages do not include tips, so an employer cannot rely on tips the worker received in claiming that the employee is earning the minimum.

Arbitration Clauses, for At Least Some Businesses, Will Be Unenforceable in 2019

Washington was not immune to the "#MeToo" movement. In 2018, the state passed a law that voids as against public policy any provision in an employment agreement that waives a worker's right to file a discrimination claim in court or with a government agency, or that requires that the claim be resolved in a confidential dispute resolution process. The law, in short, bars contractual arbitration clauses in employment agreements. 

This law is likely only partially enforceable. Whether it is or is not enforceable will depend on whether the arbitration clause is governed by state or federal law. If the arbitration clause is governed by Washington's Arbitration Act, the law will apply, and bar arbitration. It likely does not apply, however, to arbitration agreements governed by the Federal Arbitration Act (FAA).

The Supreme Court has made clear that, under the preemption doctrine, a state cannot attempt to block enforcement of the FAA. AT&T Mobility v. Concepcion, 563 U.S. 333 (2011) (holding that the FAA preempts state laws that prohibit contracts barring class-action arbitration). Because the state law attempts to block the freedom to arbitrate, it will be preempted by the FAA in any case where the agreement is governed by federal, rather than state, law. 

Furthermore, given the breadth of the FAA, which applies to any agreement "affecting interstate commerce," Washington's law voiding such agreements would only impact employers that are truly and solely intrastate in nature. Washington employers who do not affect interstate commerce by buying or selling goods interstate, for example, are likely unable to enforce their arbitration agreements. 

Farmers Can No Longer Just Pay Piece-Rate in 2019

The last major change for Washington employers, and those in the agricultural sector in particular, was handed down by the Washington Supreme Court. In May, that court issued its ruling in Carranza v. Dovex Fruit Co., 190 Wn.2d 612, 416 P.3d 1205 (2018), which upended an established method of compensation used by farmers known as "piece-rate" which is based on production (e.g., the number of bins of apples) rather than time or job duties. 

Under federal wage and hour law (as well as Washington state law until the Carranza decision), a piece-rate pay system complied with the law if the week's pay was more than the minimum wage for the hours by that employee that week. For example, if a worker was paid $1,000 in piece-rate pay and worked 40 hours, the pay complied with the law because the worker was paid more than minimum wage ($25 per hour, to be exact) for each hour worked. This method of pay was known as "work week averaging." 

In Carranza, however, the Washington Supreme Court held that work week averaging does not apply to agricultural workers paid piece-rate. Instead, the piece-rate pay applies only to work that qualifies as piece-rate work and does not apply to time spent by the worker that was not piece-rate work. For that, according to the court, the worker has to be paid separately, by the hour. For example, if an apple picker spends one hour per week traveling between orchards, the apple picker must be paid by the hour for that time spent traveling – assuming, that is, that the travel time does not count toward piece-rate work performed by the worker in picking apples. 

In differentiating between the types of work performed by piece-rate workers in this manner, the Washington Supreme Court fundamentally changed agreements between employers and their workers. Making matters worse for farmers and other agricultural employers, the Washington Supreme Court did not answer the critical question of what work constitutes piece-rate work and what does not. Not surprisingly, following this decision, farmers and other agricultural employers are now dealing with a rash of wage and hour class-action lawsuits by piece-rate workers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions