Wrongful Termination In Washington State

By Gregory Williams, Esq. | In Washington State, can an employee sue their employer for wrongful termination; even though Washington is an “at-will” state? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE AT-WILL DOCTRINE

Washington has been an at-will employment state since at least 1928. See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223, (Wash. 2002) (referencing Davidson v. Mackall-Paine Veneer Co., 149 Wash. 685, 688, 271 P. 878 (1928); see also Prescott v. Puget Sound Bridge & Dredging Co., 40 Wash. 354, 357, 82 P. 606 (1905) (Mount, C.J., dissenting) (“where [an employment] contract is general and for an indefinite time, it is terminable at will.”)). According to this doctrine, an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability. See Id. (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotations omitted). Conversely, an employee has the absolute right to quit his or her employment at-will. See id. However, there are three recognized exceptions to the general at-will employment rule: (1) Statutory; (2) Judicial and; (3) Contractual.

(1)  STATUTORY EXCEPTIONS

Under the Statutory Exception, both Congress and the Washington State Legislature have modified the employment at-will doctrine by limiting employers’ rights to discharge employees. Id. at 153 (referencing National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1994); Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1994); chapter 49.60 RCW (Washington’s law against discrimination); see also chapter 49.12 RCW (prohibiting discharge of employees for testifying in investigations regarding labor conditions, worker earnings, or sex discrimination); RCW 49.44.090 (prohibiting discharge of employee for being age 40 and over)). These are examples of statutory laws that provide an exception to the at-will doctrine that protects the employee’s rights and limits the employer’s ability to discharge an employee at-will.

(2)  JUDICIAL EXCEPTIONS

Under the Judicial Exception, Washington courts have recognized a narrow public policy exception to an employer’s right to discharge an employee; this exception is commonly known as wrongful termination in violation of public policyId. (referencing Smith v. Bates Technical Coll., 139 Wash.2d 793, 991 P.2d 1135 (2000) (public policy exception to “for-cause” employees); Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 913 P.2d 377 (1996) (discharge of armored truck driver who abandoned post to prevent murder violated public policy)). Under this exception, an employer does not have the right to discharge an employee when the termination would frustrate a clear manifestation of public policy. Id. By recognizing this public policy exception, Washington State Supreme Court has expressed its unwillingness to shield an employer’s action which otherwise frustrates a clear manifestation of public policy. See Id. at 154.

(3)  CONTRACTUAL EXCEPTIONS

Under the Contractual Exception, employers and employees can contractually modify the at-will employment relationship, eschewing the common law rule in favor of negotiated rights and liabilities. Id. at 154 (internal citation omitted). An employer can bargain away its right to discharge an employee without cause by contracting not to do so. Id. The law governing this exception is not a species of the employment at-will doctrine; it is the law of contracts. Id. Therefore, the law of contracts governs an injured party’s right to recover damages under this exception. Id. at 155. Unlike a wrongful discharge, a breach of contract is neither immoral nor wrongful; it is simply a broken promise. Id.

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If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

 

Disparate Impact vs. Disparate Treatment Discrimination

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), What is the difference between disparate treatment and disparate impact discrimination? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

Discrimination may occur because of the disparate treatment of persons or because actions result in a disparate impact upon different people. E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 909, 726 P.2d 439 (Wash. 1986).

DISPARATE TREATMENT

To prove “disparate treatment” a plaintiff must show that an employer treated an individual employee or group of employees differently because of sex, race, age, religion or some other improper differentiation. Id. (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); [s]ee also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981)). This is what most people envision when they think of employment discrimination. But discrimination can also occur in the form of disparate impact.

DISPARATE IMPACT

To prove a “disparate impact” from discrimination upon a person or group of persons, a plaintiff must show that an employment practice, which was facially neutral, resulted in discrimination against persons because of their age, sex or other improper distinction. Id. (citing Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). See Fahn v. Cowlitz Cy, 93 Wash.2d 368, 610 P.2d 857 (1980); Stieler v. Spokane Sch. Dist. 81, 88 Wash.2d 68, 558 P.2d 198 (1977)).

For example, in Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014), an employer’s meal policy that was based on security concerns barred employees from bringing in their own food for lunch; and it required employees to eat only employer-provided food. However, the policy forced a group of plaintiff-employees to either work without food or eat food that violated their religious beliefs (a protected class). The plaintiffs subsequently filed suit and alleged that the employer maintained a facially neutral meal policy that fell more harshly on those within a protected class; and the court found a viable claim of disparate impact discrimination reversing the trial court’s previous dismissal and remanding the case for further proceeding consistent with the opinion.

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Ultimately, there is a tangible difference between disparate treatment and disparate impact discrimination. If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

 

Correcting & Rebutting Personnel File Errors

By Gregory Williams, Esq. | In Washington state, is it a good idea for employees to regularly inspect their personnel file and identify erroneous/disputed/missing information to their employer? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

PERSONNEL FILES GENERALLY

In my opinion, it might be a good idea for employees to keep their personnel files current and accurate. Employers often use information and documents contained in current/former employees’ personnel files to defend against claims of discrimination by the same employees; but the information contained in personnel files is not always correct, and, occasionally, vital information is missing. Moreover, an employee’s failure to identify and/or correct such information can be argued by the employer as a tacit admission. This can prove to be devastating for those employees that pursue subsequent employment discrimination suits against their employer. Fortunately, Washington State law offers several protections for employees seeking to inspect and/or correct their personnel files.

INSPECTING PERSONNEL FILES

According to the Revised Code of Washington, “Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect any or all of his or her own personnel file(s).” RCW 49.12.240. And the employer must make such file(s) available locally within a reasonable period of time after the employee requests the file(s). RCW 49.12.250(1). But if one finds erroneous/disputed/missing information in their file, then what can be done? Here’s what the law specifically provides:

An employee annually may petition that the employer review all information in the employee’s personnel file(s) that are regularly maintained by the employer as part of his business records or are subject to reference for information given to persons outside of the company. The employer shall determine if there is any irrelevant or erroneous information in the file(s), and shall remove all such information from the file(s). If an employee does not agree with the employer’s determination, the employee may at his or her request have placed in the employee’s personnel file a statement containing the employee’s rebuttal or correction. Nothing in this subsection prevents the employer from removing information more frequently.

RCW 49.12.250(2). Thus, the rebuttal/correction statement is available to employees as a last resort, and it’s a powerful tool.

FORMER EMPLOYEES

Former employees retain this right of rebuttal or correction for a period not to exceed two years. RCW 49.12.250(3).

LIMITATIONS

In any case, there are limitations. The laws–RCW 49.12.240 and 49.12.250–do not apply to the records of an employee relating to the investigation of a possible criminal offense; and the same laws do not apply to information or records compiled in preparation for an impending lawsuit which would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts. RCW 49.12.260.

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

Constructive Discharge & Effective Dates

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination, when does a constructive discharge become effective? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

CONSTRUCTIVE DISCHARGE

To establish a prima facie claim of constructive discharge, the employee must prove the following: (1) that the employer deliberately made working conditions intolerable; (2) that a reasonable person in the employee’s position would be forced to quit; (3) that the employee did quit because of the conditions and not for any other reason; and (4) that the employee suffered damage as a result of being forced to quit. Haubry v. Snow, 106 Wn.App. 666, 677, fn 16, 31 P.3d 1186 (Div. 1 2001) (citing Hill v. GTE Directories Sales Corp., 71 Wash.App. 132, 143, 856 P.2d 746 (1993)) (internal citations omitted). The intolerable element may be shown by aggravated circumstances or continuous pattern of discriminatory treatment. Id. at fn 17 (citing Sneed v. Barna, 80 Wash.App. 843, 849, 912 P.2d 1035 (1996)).

EFFECTIVE DATE

A constructive discharge becomes effective on either the date the employee gives notice to the employer or the last day of actual employment. Id. at 486-87 (referencing Douchette v. Bethel Sch. Dist. No. 403, 58 Wn.App. 824, 795 P.2d 162 (1990), aff’d, 117 Wn.2d 805, 816 n. 9, 818 P.2d 1362) (quotation marks omitted).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

WLAD: Definition of Honorably Discharged Veteran or Military Status

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what is the definition of the term “Honorably Discharged Veteran or Military Status”? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

DEFINITION OF “HONORABLY DISCHARGED VETERAN OR MILITARY STATUS”

Chapter 49.60.040 RCW is the relevant law, and as of the date of this article it defines the term “Honorably Discharged Veteran or Military Status” as follows:

Honorably discharged veteran or military status” means a person who is:

(a) A veteran, as defined in RCW 41.04.007; or

(b) An active or reserve member in any branch of the armed forces of the United States, including the national guard, coast guard, and armed forces reserves.

RCW 49.60.040 (emphasis added).

DEFINITION OF VETERAN: RCW 41.04.007

As of the date of this article,  veteran, as defined in RCW 41.04.007, is as follows:

Veteran” includes every person, who at the time he or she seeks the benefits of RCW 46.18.212, 46.18.235, 72.36.030, 41.04.010, 73.04.090, or 43.180.250 has received an honorable discharge or received a discharge for medical reasons with an honorable record, where applicable, and who has served in at least one of the following capacities:

(1) As a member in any branch of the armed forces of the United States, including the national guard and armed forces reserves, and has fulfilled his or her initial military service obligation;

(2) As a member of the women’s air forces service pilots;

(3) As a member of the armed forces reserves, national guard, or coast guard, and has been called into federal service by a presidential select reserve call up for at least one hundred eighty cumulative days;

(4) As a civil service crewmember with service aboard a U.S. army transport service or U.S. naval transportation service vessel in oceangoing service from December 7, 1941, through December 31, 1946;

(5) As a member of the Philippine armed forces/scouts during the period of armed conflict from December 7, 1941, through August 15, 1945; or

(6) A United States documented merchant mariner with service aboard an oceangoing vessel operated by the department of defense, or its agents, from both June 25, 1950, through July 27, 1953, in Korean territorial waters and from August 5, 1964, through May 7, 1975, in Vietnam territorial waters, and who received a military commendation.

RCW 41.04.007 (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

WLAD: Definition of Employee

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what is the definition of the term “Employee”? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

DEFINITION OF “EMPLOYEE”

Chapter 49.60.040 RCW is the relevant law, and as of the date of this article it defines the term “Employee” in the negative as follows:

“Employee” does not include any individual employed by his or her parents, spouse, or child, or in the domestic service of any person.

RCW 49.60.040 (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

WLAD: Definition of Employer

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what is the definition of the term “Employer“? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

DEFINITION OF “EMPLOYER”

Chapter 49.60.040 RCW is the relevant law, and as of the date of this article it defines the term “Employer” as follows:

Employer” includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.

RCW 49.60.040 (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

WLAD: Definition of Person

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what is the definition of the term “Person”? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

DEFINITION OF “PERSON”

Chapter 49.60.040 RCW is the relevant law, and as of the date of this article it defines the term “Person” as follows:

Person” includes one or more individuals, partnerships, associations, organizations, corporations, cooperatives, legal representatives, trustees and receivers, or any group of persons; it includes any owner, lessee, proprietor, manager, agent, or employee, whether one or more natural persons; and further includes any political or civil subdivisions of the state and any agency or instrumentality of the state or of any political or civil subdivision thereof.

RCW 49.60.040 (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

WLAD: Definition of Marital Status

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what is the definition of the term “Marital Status”? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

DEFINITION OF “MARITAL STATUS”

Chapter 49.60.040 RCW is the relevant law, and as of the date of this article it defines the term “Marital Status” as follows:

Marital status” means the legal status of being married, single, separated, divorced, or widowed.

RCW 49.60.040 (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

WLAD: Definition of Sexual Orientation

By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what is the definition of the term “Sexual Orientation”? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under WLAD, it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

DEFINITION OF “SEXUAL ORIENTATION”

Chapter 49.60.040 RCW is the relevant law, and as of the date of this article it defines the term “Sexual Orientation” as follows:

Sexual orientation” means heterosexuality, homosexuality, bisexuality, and gender expression or identity. As used in this definition, “gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.

RCW 49.60.040 (emphasis added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw