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Thursday, March 29, 2018

IIED, Vicarious Liability, & Proscribing Bad Behavior

by Gregory Williams, Esq. | Under Washington State laws, may an employer avoid liability for Intentional Infliction of Emotional Distress (IIED) by demonstrating preexisting rules proscribing their employees' bad behavior? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)

IIED is tort in Washington State. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. To succeed on a claim of IIED, a plaintiff must prove the following three elements:
  1. extreme and outrageous conduct;
  2. intentional or reckless infliction of emotional distress; and
  3. severe emotional distress on the part of the plaintiff.
See Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash. 2002).

VICARIOUS LIABILITY

If a plaintiff brings an IIED claim against an employer on account of the actions of its employee, then once the "underlying tort is established, the employer will be held vicariously liable if the employee was acting within the scope of employment." Id. at 53 (citing Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986) (hyperlink added) (internal quotation marks omitted).

An employer can defeat a vicarious liability claim by demonstrating that its employee's conduct was (1) intentional or criminal and (2) outside the scope of employment. See id. (internal citations and quotation marks omitted). However, intentional or criminal conduct is not "per se outside the scope of employment." See id. (internal citations omitted).

PROSCRIBING BAD BEHAVIOR

An employer cannot shield itself from vicarious liability by simply effectuating "a general policy proscribing bad behavior that would otherwise be actionable." Id. Thus, in Washington State, an employer may not avoid liability for Intentional Infliction of Emotional Distress by simply demonstrating preexisting rules proscribing their employees' bad behavior.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Tuesday, March 27, 2018

The Intersection of WSHRC and EEOC

by Gregory Williams, Esq. | How does the U.S. Equal Employment Opportunity Commission (EEOC) work with the Washington State Human Rights Commission (WSHRC) to enforce employment discrimination laws? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).


I.  THE EEOC


The EEOC is a federal agency effectuated by Title VII of the Civil Rights Act of 1964 and is "responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit." See EEOC Official Website --> About EEOClast visited 3/27/18.

The EEOC formally opened its doors in 1965 and maintains its headquarters in Washington D.C.; it also carries out its work through 53 field offices serving every part of the United States.


II.  THE WSHRC


The WSHRC is an agency established in 1949 by the Washington State Legislature. The Agency is responsible for administering and enforcing the Washington Law Against Discrimination (WLAD).  WLAD "prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, 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; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower complaints." See WSHRC Official Website --> About Us, last visited 3/27/18.

The WSHRC maintains its headquarters in Olympia, Washington and its district offices in E. Wenatchee, Everett, Spokane, Vancouver, and Spokane. Visit our WSHRC Digest blog to learn more about the WSHRC.


III.  FAIR EMPLOYMENT PRACTICES AGENCIES


The EEOC coined the term Fair Employment Practices Agencies -- or “FEPA.” FEPAs are state and local (i.e., counties, cities, and towns) governments within the U.S. that have anti-discrimination laws and associated enforcement agencies. See EEOC Official Website --> Employees & Applicantslast visited 3/27/18Generally, FEPAs enforce laws similar to those enforced by the EEOC, but it is not unusual for some FEPAs to maintain discrimination laws that offer greater protections. Id. Importantly, some FEPAs may have different deadlines for filing a charge of discrimination, different standards to determine standing, and different relief available for discrimination victims. Id.

The EEOC has designated the Washington State Human Rights Commission as a FEPA. See EEOC Official Website --> State and Local Agencies, last visited 3/27/18.


VI.  WORKSHARING AGREEMENTS


The EEOC may enter into worksharing agreements with FEPAs. According to the Official EEOC Website:
When an individual initially files with a FEPA that has a worksharing agreement with the EEOC, and the allegation is covered by a law enforced by the EEOC, the FEPA will dual file the charge with EEOC (meaning EEOC will receive a copy of the charge), but will usually retain the charge for processing. If the charge is initially filed with EEOC and the charge is also covered by state or local law, EEOC dual files the charge with the state or local FEPA (meaning the FEPA will receive a copy of the charge), but ordinarily retains the charge for processing
EEOC Official Website --> fepalast visited 3/27/18. Typically, worksharing agreements include, but are not limited, some or all of the following terms: (1) Filing of Charges of Discrimination; (2) Division of Initial Charge-Processing Responsibilities; (3) Exchange of Information; (4) Resolution of Charges; (5) Implementation of the Agreement. Id.

The EEOC has entered into a Worksharing Agreement (Agreement) with the WSHRC.


V.  PRACTICAL APPLICATION


Because the WSHRC is a FEPA with a Worksharing Agreement with the EEOC, there are special rules that apply to (1) filing charges and (2) EEOC review of FEPA decisions.

(1) Filing Charges

In Washington State, the following applies to the filing of charges in either the WSHRC or the EEOC:
You can file your charge with either the EEOC or with a Fair Employment Practices Agency [such as the WSHRC].  When an individual initially files with a FEPA that has a worksharing agreement with the EEOC, and the allegation is covered by a law enforced by the EEOC, the FEPA will dual file the charge with EEOC (meaning EEOC will receive a copy of the charge), but will usually retain the charge for processing.  If the charge is initially filed with EEOC and the charge is also covered by state or local law, EEOC dual files the charge with the state or local FEPA (meaning the FEPA will receive a copy of the charge), but ordinarily retains the charge for processing. 
EEOC Official Website --> fepalast visited 3/27/18. Thus, individuals in Washington State may file a charge of discrimination with either the EEOC, the WSHRC, or any other appropriate FEPA within the state (NOTE: some WA State local governmental entities maintain departments that are also designated by the EEOC as FEPAs).

(2) Reviewing FEPA Decisions

The following typically applies to EEOC review of WSHRC decisions:
[A] Charging Party may request that the EEOC review the determination of the ... [WSHRC]. EEOC does not review decisions by non-contract FEPAs. The EEOC will conduct a review only if the request is submitted in writing within fifteen (15) days of receipt of ... [WSHRCs] determination. If we receive your request for a review after the 15 day time frame, it will be considered untimely and the EEOC may not conduct a review. The request should also include the reason why the Charging Party is requesting the review (e.g. relevant witnesses not contacted, evidence not considered, or presence of new evidence).
See id., last visited 3/27/18. Thus, because the WSHRC is a FEPA with a Worksharing Agreement with the EEOC, the EEOC may review WSHRC decisions if the above procedural requirements are met.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

WLAD: Definition of Real Estate Transaction

by Gregory Williams, Esq. | What is the definition of “Real Estate Transaction” under the Washington Law Against Discrimination (WLAD)? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

WLAD "prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national originfamilies with childrensexmarital statussexual orientationagehonorably 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; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower complaints." See WSHRC Official Website --> About Uslast visited 3/27/18.

DEFINITION OF REAL ESTATE TRANSACTION

Chapter 49.60.040 RCW is the relevant law, and it defines the term “Real Estate Transaction” as follows:
(21) "Real estate transaction" includes the sale, appraisal, brokering, exchange, purchase, rental, or lease of real property, transacting or applying for a real estate loan, or the provision of brokerage services.
RCW 49.60.040(21) (emphasis added).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

WLAD: Definition of Families With Children Status

by Gregory Williams, Esq. | What is the definition of “Families With Children Status” under the Washington Law Against Discrimination (WLAD)? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

WLAD "prohibits discriminatory practices in the areas of employment, places of public resort, accommodation, or amusement, in real estate transactions, and credit and insurance transactions on the basis of race, creed, color, national originfamilies with childrensexmarital statussexual orientationagehonorably 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; and prohibits retaliation against persons who oppose a discriminatory practice, and those who file health care and state employee whistleblower complaints." See WSHRC Official Website --> About Uslast visited 3/27/18.

DEFINITION OF FAMILIES WITH CHILDREN STATUS

Chapter 49.60.040 RCW is the relevant law, and it defines the term “Families With Children Status” as follows:
(13) "Families with children status" means one or more individuals who have not attained the age of eighteen years being domiciled with a parent or another person having legal custody of such individual or individuals, or with the designee of such parent or other person having such legal custody, with the written permission of such parent or other person. Families with children status also applies to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen years.
RCW 49.60.040(13) (emphasis added).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Monday, March 19, 2018

IIED & Supervisors

by Gregory Williams, Esq. |  Under Washington State law, may an employee enhance an intentional infliction of emotional distress (IIED) claim against his/her employer, on account of a supervisor's actions, by addressing the positional relationship between the employee and supervisorHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE TORT OF OUTRAGE

Intentional infliction of emotional distress (IIED) is also known as the tort of outrage. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. To prevail on a claim of outrage, a plaintiff must prove the following three elements:
  1. extreme and outrageous conduct
  2. intentional or reckless infliction of emotional distress, and
  3. severe emotional distress on the part of the plaintiff
See Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash. 2002).

RELATIONSHIP BETWEEN THE PARTIES

Employee-plaintiffs occasionally bring outrage claims against their employers as a result of harmful actions by their supervisors. The Washington Supreme Court has recognized that "in an outrage claim the relationship between the parties is a significant factor in determining whether liability should be imposed." Robel v. Roundup Corporation, 148 Wn.2d at 52 (citing Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)) (internal quotation marks omitted). In Contreras, the "court emphasized that added impetus is given to an outrage claim when one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments." Id. (emphasis added) (internal quotation marks omitted). To support this proposition, the Robel court also referenced White v. Monsanto Co., 585 So.2d 1205, 1210 (La.1991) wherein it was determined that "plaintiff's status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if her were a stranger." Robel v. Roundup Corporation, 148 Wn.2d at 52.

EXAMPLE: ROBEL v. ROUNDUP CORPORATION

In Robel v. Roundup Corporation, Robel was a deli worker at a grocery store who sustained a workplace injury and timely filed a workers' compensation claim. Robel148 Wn.2d 35 (Wash. 2002). Her employer placed her on light duty. Id. Thereafter, other employees, including her assistant deli manager, made fun of her, laughed, pointed, and gave her dirty looks; this included name calling. Id. Robel eventually secured a two-week work release from her doctor but never returned to work. Id. She eventually filed suit against the employer based, in part, on a claim of outrage. Id.

The trial court found for Robel, but the Court of Appeals reversed the trial court on all claims. Id. The Washington Supreme Court then reversed the Court of Appeals and reinstated the trial court's judgment for Robel on, inter alia, her outrage claim. Id. The Supreme Court found that Robel "was called in her workplace names so vulgar that they have acquired nicknames, such as 'the C word,' for example"; and it concluded that "reasonable minds could differ on whether the conduct was sufficiently extreme to warrant the imposition of liability on the employer." Id.

CONCLUSION

Under Washington State law, I believe that an employee can enhance an intentional infliction of emotional distress (IIED) claim against his/her employer, on account of a supervisor's actions, by addressing the positional relationship between the employee and supervisor?


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Attorney to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Friday, March 16, 2018

Intentional Infliction of Emotional Distress

by Gregory Williams, Esq. |  Under Washington State law, what is required to prevail on a claim for intentional infliction of emotional distress? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE TORT OF OUTRAGE

Intentional infliction of emotional distress (IIED) is also known as the tort of outrage. A tort is a civil wrong, other than breach of contract, for which remedies may be obtained. To prevail on a claim for outrage, a plaintiff must prove the following three elements:
  1. extreme and outrageous conduct
  2. intentional or reckless infliction of emotional distress, and
  3. severe emotional distress on the part of the plaintiff
See Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash. 2002).

EXTREME & OUTRAGEOUS CONDUCT

The three elements are fact questions for the jury, and the first element of the test goes to the jury only after the court determines "if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability." Id.

To establish the first IIED element, the plaintiff must prove "that the conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (citing Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989)) (internal quotation marks omitted).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Attorney to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Wednesday, March 14, 2018

Dismissal Based on Claim Splitting or Res Judicata

by Gregory Williams, Esq. |  Under Washington State law, what are the requirements for dismissal based on claim splitting? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

CLAIM SPLITTING

The theory of dismissal based upon claim splitting is “variously referred to as res judicata or splitting causes of action.” Landry v. Luscher, 95 Wn.App. 779, 783, 976 P.2d 1274 (1999); See also, Sound Build Homes, Inc. v. Windermere Real Estate/ South, Inc., 118 Wn.App. 617, 628, 72 P.3d 788 (Wash.App. Div. 2 2003) (theory on which dismissal is granted is variously referred to as res judicata or splitting causes of action) (hyperlink added). Thus, the rules of res judicata are typically applied to determine if improper claim splitting has occurred. However, the Washington State Supreme Court has been abundantly clear: “res judicata does not bar claims arising out of different causes of action, or intend to deny the litigant his or her day in court.” Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (Wash. 2004) (hyperlink added).

DISMISSAL BASED ON RES JUDICATA

Dismissal on the basis of res judicata is inappropriate unless the subsequent action is identical with a prior action in four respects: (1) persons and parties; (2) cause of action; (3) subject matter; and (4) quality of the persons for or against whom the claim is made. Landry v. Luscher, 95 Wn.App. at 783 (internal citations omitted). This res judicata test is a conjunctive one requiring satisfaction of all four elements. Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d at 866.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Tuesday, March 13, 2018

Title VII Definition of Religion

by Gregory Williams, Esq. | Under Title VII of the Civil Rights Act of 1964, what is the definition of the term “religion”? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF RELIGION

The relevant law is found under 42 U.S.C. § 2000e, and it defines the term “religion” as follows:
...
(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
...
42 U.S.C. § 2000e (emphasis and hyperlinks added).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Friday, March 9, 2018

Remedies for Employment Discrimination in WA State

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), what are the available remedies? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

Washington State has a powerful anti-discrimination law, and the scope of available remedies is equal in magnitude. The WLAD was originally enacted in 1949, and the relevant section, RCW 49.60.030(2), states as follows:
Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).
RCW 49.60.030(2). The WLAD is clearly a broad remedial statute. See Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 237, 59 P.3d 655, (2002) (hyperlink added).

REMEDY EXAMPLES (NONEXCLUSIVE)

Accordingly, Washington courts allow a variety of remedies to enable Plaintiffs to be made whole. Such relief may include, but is not limited to, any one or more of the following:
  • Enjoin Further Violations (e.g., Injunctive Relief, including, but not limited to, Reinstatement)
  • Recover The Actual Damages (e.g., Back Pay, Front Pay, Emotional Distress, Costs, Attorney Fees, etc.)
  • Any Other Appropriate Remedy authorized by WLAD, the US Civil Rights Act of 1964, or the Federal Fair Housing Amendments Act of 1988 (e.g., Mental Anguish, Inconvenience, Loss of Enjoyment of Life, Medical Expenses, Tax Set-Off, Expert Witness Fees, etc.)

PUNITIVE DAMAGES

However, punitive damages are not available under WLADSee Chuong Van Pham v. City of Seattle, Seattle City Light, 159 Wn.2d 527, 151 P.3d 976, (2007) (citing Dailey v. N. Coast Life Ins. Co., 129 Wash.2d 572, 575, 919 P.2d 589 (1996)).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Wednesday, March 7, 2018

Labor Union Discrimination

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), may labor unions or organizations be held liable for discrimination? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).


DEFINITION OF LABOR ORGANIZATION

For purposes of WLAD, the term “labor organization” includes any organization which exists for the purpose, in whole or in part, of dealing with employers concerning grievances or terms or conditions of employment, or for other mutual aid or protection in connection with employment. RCW 49.60.040(16)


UNFAIR PRACTICES UNDER WLAD

In Washington State, it’s an unfair practice for any labor union or labor organization:
(1) To deny membership and full membership rights and privileges to any person because of age, sex, marital status, sexual orientation, race, color, creed, 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
(2) To expel from membership any person because of agesexmarital statussexual orientation, race, color, creednational originhonorably 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.
(3) To discriminate against any member, employer, employee, or other person to whom a duty of representation is owed because of agesexmarital statussexual orientation, race, color, creed, 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.
RCW 49.60.190.


REMEDIES FOR UNFAIR PRACTICES

Any person deeming himself or herself injured by any act amounting to this unfair practice shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.). See RCW 49.60.030(2).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Sunday, March 4, 2018

Correcting and Rebutting Personnel File Errors

by Gregory Williams, Esq. | Under Washington State law, may employees correct erroneous information in their personnel file? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding). 

In my practice, I represent solely employees against their employers. These employers often use information contained in employee personnel files to defend against claims of discrimination; but the information is not always correct, and, occasionally, vital information is missing. Often, employers will argue that an employee’s failure to identify and/or correct such disputed information is the employee's tacit admission of its truthfulness. This can be damaging to the employee's case. Fortunately, Washington State law offers protections for employees seeking to inspect and/or correct errors in their personnel files.

THE RIGHT OF INSPECTION

According to Washington State law, “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 (external hyperlink added). 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)

THE RIGHT OF REBUTTAL

If an employee disagrees with the employer's decision regarding irrelevant or erroneous information in the employee's personnel file(s), there is recourse. The law specifically provides as follows:
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) (external hyperlink added). Thus, the rebuttal/correction statement is available to employees as a last resort, and it’s a powerful tool to guard against claims of tacit admissions. 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 relevant laws, RCW 49.12.240-250, "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 Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Friday, March 2, 2018

Constructive Discharge In WA State

by Gregory Williams, Esq. |  Under Washington State law, what is a constructive discharge? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).

ELEMENTS OF CONSTRUCTIVE DISCHARGE

A constructive discharge arises "where an employer deliberately makes an employee's working conditions intolerable, thereby forcing the employee to resign." Sneed v. Barna, 80 Wash.App. 843, 849-50, 912 P.2d 1035, review denied, 129 Wash.2d 1023, 919 P.2d 600 (1996) (internal citations and quotation marks omitted) (emphasis added). The term "deliberately" entails a deliberate act, or a pattern of conduct, "of the employer creating the intolerable condition, without regard to the employer's mental state as to the resulting consequence." Id.Barnett v. Sequim Valley Ranch, LLC, 174 Wn.App. 475, 485, 302 P.3d 500 (Div. 2 2013) (internal citation omitted).

The question to be answered is "whether working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Sneed v. Barna, 80 Wash.App. at  849 (internal citations and quotation marks omitted). "This is an objective standard and an employee's subjective belief that he had no choice but to resign is irrelevant." Barnett v. Sequim Valley Ranch, LLC, 174 Wn.App. at 485 (citing Travis v. Tacoma Pub. Sch. Dist., 120 Wash.App. 542, 551, 85 P.3d 959 (2004)) (internal quotation marks omitted).

INTOLERABLE WORKING CONDITIONS

Typically, the question of "whether working conditions have risen to an 'intolerable' level is a factual question for the jury." Sneed v. Barna, 80 Wash.App. at  849 (internal citations omitted). Often, the courts will "look for evidence of either 'aggravating circumstances' or a 'continuous pattern of discriminatory treatment' to support a constructive discharge claim." Id. at 850 (internal citations omitted).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.