ncreasingly risky working conditions during the pandemic and the rise of forced arbitration clauses in contracts have created a greater sense of urgency around the need to give employees these whistleblower protections.
Increasingly risky working conditions during the pandemic and the rise of forced arbitration clauses in contracts have created a greater sense of urgency in this building around the need to give employees whistleblower protections. LESTER BLACK

A bill that would empower workers to help enforce state labor laws against wage theft and the like narrowly escaped the House Appropriations committee earlier this week and will head to the floor soon. The 17-16 committee vote saw opposition from Republicans (duh) and two Democrats; Reps. Larry Springer (D-Kirkland) and Steve Tharinger (D-Sequim).

The legislation, sponsored by Rep. Drew Hansen (D-Bainbridge Island), would allow workers to sue bosses on behalf of coworkers and the state when companies violate some labor laws.

The legislation comes after a long line of disastrous Supreme Court decisions led to a dramatic rise in the inclusion of mandatory arbitration clauses in employment contracts, which strip employees of their power to sue bosses who violate the law. (The most recent of these bad decisions was Epic Systems v. Lewis; here's a good podcast on it.)

Some changes to the bill in committee prevent workers from stepping into the state's shoes to file class action suits over technical violations (e.g. record-keeping stuff or posting requirements). The changes also narrowed the areas of labor law the bill covers to wage and hour violations, health and safety violations, and discrimination violations, according to Rep. Hansen. Over the phone, Rep. Hansen said the state sees "the most abuse" in those areas.

The bill might sail off the House floor, but it’s not clear what it’ll look like

If the bill passes off the House floor, it'll head either to Senate's Labor committee or its Law & Justice committee, which Sen. Karen Keiser (D-Des Moines) and Sen. Jamie Pedersen (D-Seattle) run, respectively.

In a statement, Sen. Keiser said, “I am not sure what the final form of the bill will be when it comes over from the House, but in general I support whistleblower laws."

She continued, "I worked for three years to get a whistleblower law passed for health care after we got Obamacare passed. I wanted to discourage Medicaid fraud, and give workers in health care the power to blow the whistle on fraudulent billing. I’m looking forward to receiving the House bill in the Senate."

Over the phone, Sen. Pedersen also said he's not sure what shape the bill will take if it gets to his committee, but he expressed support for the policy. "If that bill came to my committee, I have 100% confidence that we would move the bill out in some form. I support the basic idea that a qui tam relator could be helpful in enforcing some workplace protections."

(A quick note on language: a "qui tam relator" is some half-Latin jargon lawyers use to refer to the aggrieved worker, the whistleblower, or the lawyer either of those two people hire to represent them in court.)

Sen. Pedersen flagged some concern over including discrimination law within the purview of the bill, though. Pedersen argued that employees who face discrimination in the workplace can already sue their bosses in court, and added that Washington maintains an "active plaintiff's bar" for such claims.

A little hypothetical counterproductive problem

Sen. Pedersen also described a hypothetical situation where a class action suit enabled by the bill and a private suit filed by the aggrieved person against a company for the same discrimination claim might be counterproductive for the person getting screwed, since the directly affected person and the lawyer for the class action suit would both be trying to maximize the amount of money the company would pay for discriminating against the victim.

Hansen's bill anticipates that problem by requiring aggrieved workers (or anyone filing a complaint on behalf of those workers) first to notify the appropriate agency before filing the claim to see if that agency wants to pursue the issue itself. Pedersen said the Washington State Human Rights Commission, which would be the most logical agency to consult in an actual discrimination case, "isn’t necessarily a relevant agency" in all discrimination cases. And even if the commission were the relevant agency in a case, they currently have a huge backlog of claims, and so if the bill passed then new claims would ultimately end up in court, where they would trigger that hypothetical counterproductive problem he was concerned about.

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That hypothetical worker, however, likely couldn't sue in court to begin with given that "more than half—53.9 percent—of nonunion private-sector employers have mandatory arbitration procedures," according to the Economic Policy Institute.

But, whatever, sausage-making hypotheticals aside...

The fact is Washington is one step closure to joining California in offering workers the whistleblower protections that so many of them said they wanted during testimony on this bill. And the number of freaky bosses who insist on violating health and safety laws during the pandemic only add urgency to the need for this legislation as states continue to fight against an increasingly deranged Supreme Court captured by corporate interests.

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