Washington Lawmakers Pass Two Bills Affecting Employer Obligations: What Employers Need to Know

By Adam Belzberg and Emily Seibold

The Washington State Legislature recently passed two bills affecting Washington employers’ obligations to their job applicants and employees. Read below for more information on these anticipated changes.

Mini-WARN Act

On April 27, the Washington Legislature delivered SB 5525, entitled the “Securing Timely Notification and Benefits for Laid-Off Employees Act,” to Governor Bob Ferguson for signature.  Tracking the federal Worker Adjustment and Retraining Notification (“WARN”) Act, this bill would require employers to provide notice before ordering a business closing or mass layoff, and failure to satisfy those notice requirements could lead to civil penalties and employee-specific remedies, like backpay. SB 5525 expands on the federal WARN Act, however, by imposing additional requirements, as described below. The bill would apply to any employer with 50 or more employees in Washington, excluding part-time employees. This is a departure from the federal WARN Act, which applies to employers with 100 or more employees, excluding part-time employees.

Specifically, SB 5525 would require employers to provide written notice 60 days before ordering a business closing or mass layoff. This notice must go to the Washington Employment Security Department and to employees or their bargaining representative, if they are represented by a union. In addition to the notice requirements in the federal WARN Act, SB 5525 requires employers to provide the following:

• Address information for the affected employment site and contact information for a company official employees can contact for more information;
• A statement on whether the closing or layoff is expected to be permanent or temporary;
• The expected date of the first employment loss and the anticipated schedule for employment losses;
• Job titles of affected positions and names of employees currently holding those positions; and
• A statement regarding whether the closing or layoff is related to employer relocation or contracting out of operations.

There are separate notice requirements governing extensions of short-term mass layoffs and sales of a business.

The bill also provides certain exceptions to the notice requirements. For example, an employer actively seeking capital to avoid or postpone a business closing or mass layoff need not provide notice to employees if they, in good faith, believe that providing notice would jeopardize their ability to obtain the required capital. The notice requirement is also excepted where a business closing or mass layoff is caused by unforeseeable circumstances. If an exception applies for only part of the 60-day window, an employer must provide notice when the exception no longer applies.

SB 5525 also strengthens employee protections surrounding Washington Paid Family and Medical Leave (“PFML”)—employers cannot include employees actively taking PFML in a mass layoff.

Equal Pay and Opportunities Act

Also currently on Governor Ferguson’s desk is SSB 5408, which would amend the Equal Pay and Opportunities Act (“EPOA”) and provide some breathing room for employers. The EPOA requires employers to disclose, for all job postings, the wage scale or salary range and a general description of benefits offered. It applies to all job postings, including postings on third-party sites, like LinkedIn and Glassdoor. Job applicants and employees are entitled to certain statutory remedies in the event a job posting fails to comply with these requirements.

SSB 5408 would amend the EPOA by providing employers an opportunity to correct their job postings to include required wage and benefit information before an applicant or employee could seek relief. After learning of a deficient posting, an employer would have a five-day window to correct the posting. Only if the employer failed to correct the posting within that window could an applicant or employee seek damages or penalties for the violation. This amendment is forward-looking and would apply to jobs posted after passage of the amendment through July 27, 2027.

As it stands, the EPOA currently provides that an aggrieved applicant or employee may recover their actual damages, statutory damages equal to actual damages, or $5,000, whichever is greater. SSB 5408 would amend this provision by introducing a discretionary element: in the event of a violation, an employee or applicant would be entitled to statutory damages of no less than $100 and no more than $5,000. The entity making the damages determination, whether the Washington Department of Labor and Industries or a court, must consider certain factors in landing on the statutory damage amount, including whether the violation was committed willfully and the size of the employer.

The bill would also amend the definition of a “posting” to clarify that employers are not liable for any solicitation that is digitally replicated and published without the employer’s consent.

Although neither bill has been signed into law, employers in Washington should familiarize themselves with these anticipated changes and create plans for providing notice to employees in the event of a business closing or mass layoff and for responding to and correcting deficient job postings.