Phantom Legislation, Hirst Fix Highlight Week in Olympia

Date: January 19, 2018

In a bid to speed things up, nonpartisan analysis on many bills left at the roadside

State Director Patrick Connor reports from the State Capitol on the legislative week ending January 19

The big news from the Legislature this week is that an agreement on a “Hirst fix” was finally reached. The state Senate and House both passed a revised version of Senate Bill 6091, overturning an adverse state Supreme Court ruling jeopardizing property owners’ rights to use well water for residential, stock watering, and other purposes.

Minority Republicans in both chambers had blocked passage of the bonds needed to fund a capital budget, which takes a 60 percent vote to approve, until a satisfactory Hirst fix was achieved. With a Hirst deal in hand, the House and Senate approved a capital budget as well.

This marked the second time this week one or both chambers held evening floor sessions to debate and pass controversial legislation. Night meetings typically aren’t scheduled until later in the session.

In another sign of majority Democrats’ intention to move legislation quickly, many (if not most) bills slated for committee hearings have been scheduled without nonpartisan staff analysis being posted. In a number of instances, substitute bills have been heard in place of the original with little or no prior notice. In fact, Sen. Karen Keiser, chairwoman of the Senate Labor & Commerce Committee, had to ask a panel to stop referring to a substitute bill during testimony, since not even committee members themselves had seen the phantom legislation.

Given the swift pace and limited availability of substitute bills, proposed amendments, or even objective legislative staff analysis, NFIB/Washington has done its best to provide testimony and offer changes to bills impacting small business. NFIB is now tracking 55 bills, and more are still being introduced.


  • The House passed its equal pay bill this week. While proponents conceded the bill still needs work, they refused to accept any amendments Republicans offered at the request of the business community. As it passed the House, the bill appears to prohibit internships or training programs for women, which seems contrary to the intent of the bill. And, it still includes a double jeopardy penalty process where aggrieved workers could simultaneously file administrative and legal complaints against an employer. NFIB will continue to press for reasonable changes that achieve the goals of the bill, without unintended consequences such as these.
  • Both Senate and House ban-the-box bills stalled this week, though that is only temporary. NFIB believed it had reached agreement last week with the House sponsor, Rep. Lillian Ortiz-Self, on an amendment exempting firms with fewer than 15 employees. Unfortunately, NFIB was informed that proponents rejected that amendment. Consequently, NFIB notified the sponsor it would oppose the bill; she has since offered to have further discussions with proponents.
  • NFIB testified and offered amendments to several bills heard this week in the Senate Labor Committee that would otherwise be harmful to small business owners:

Senate Bill 5249 would impose triple damages for wage theft, up from double damages under current law. NFIB objected to the portion of the bill that would allow workers who willingly engage in these schemes, generally taking cash “under the table” in exchange for reporting fewer hours than actually worked, to profit from their willful misconduct, which is barred under current law.

Senate Bill 5527 would establish two new standards – a three-part test and a 10-part alternative test – for determining independent contractor status or employee misclassification. While NFIB supports simplifying and harmonizing the test for use among state agencies, the bill would make the situation worse. Instead, NFIB suggested empaneling a task force from among the state Dept. of Labor & Industries’ existing Construction Underground Economy Advisory Committee to devise a single standard; allow registration or certification of independent contractors, complete with a safe harbor for those employing registered or certified independent contracts; set an escalating penalty structure for willful violations; and recommend these changes to the legislature for their consideration.

Senate Bill 5528 seeks to increase penalties for retaliation against workers who exercise workplace rights. Interestingly, the bill would allow a court to suspend the licenses, certification, or registration of employers found guilty of retaliation. NFIB raised the question and suggested a change to the bill for situations where public health and safety, environmental quality, or direct harm to individuals might occur as a result of this court action. For instance, if a hospital or medical provider were found guilty of retaliating against certain workers what would happen to patients in those facilities if a court suspended medical or related licenses?

Senate Bill 5667 would prohibit employers from refusing to hire or taking adverse action against workers engaging in off-duty conduct that is legal under state law. Marijuana use, legal under Washington state law, but prohibited under federal law, is the most obvious concern. Employer groups, including NFIB, testified about the importance of maintaining drug-free workplaces, drug testing policies, and safety programs that could be compromised by this legislation. Law enforcement asked for an exemption from the bill to maintain public confidence that officers are of good character. It went unsaid in testimony, but discussed in other venues, that employers ought to be able to protect the reputation of their establishment by terminating, or refusing to hire, individuals whose “off duty” conduct, while legal, would harm the business. Identification of Antifa and white supremacist protesters on the news and social media was an example others put forward, off the record. NFIB offered amendments seeking to protect your ability to maintain a safe workplace and protect the reputation of your business.

Health Care

Aside from testifying in support of the Senate version of bills to limit insurance carriers from changing the cost-sharing requirements of prescription drugs mid-plan-year, NFIB’s efforts on this front were largely confined to signing in opposed to several bills to establish a state-run, single-payer health system of some sort.


NFIB attended a special briefing on carbon tax legislation. Sponsors will accept amendments from the business community until 5 p.m., January 22, to help shape a substitute bill they are crafting with the intention of moving to the governor’s desk during this short session. If successful, they hope to prevent another ballot measure this year or in 2020. While this meeting was convened by House and Senate Democrat lawmakers on key committees, it would not be a surprise to see some Republicans vote for a carbon tax bill if enough utilities, manufacturing firms, and business groups participate in crafting the legislation. NFIB opposed a 2016 ballot measure seeking to establish a carbon tax. We are still reviewing bill language, but are struggling to find ways to protect small-business owners from costs that will undoubtedly be passed along to them, and other end-users, through higher prices on fuel, electricity, natural gas, and manufactured goods to name a few.

Small Business Day, February 1

Reservations are being accepted for this year’s Small Business Day at the Capitol. It will be held February 1 at the DoubleTree Hotel in Olympia. So far, confirmed speakers include:

  • Rep. Kris Lytton, House Finance Committee chairwoman
  • Sen. Curtis King, Senate Transportation Committee ranking member, and Senate Labor & Commerce Committee member
  • Sen. Guy Palumbo, Senate Energy, Environment & Technology Committee vice-chairman 
  • Jason McGill, senior health policy advisor to Gov. Jay Inslee

You can register online here, or call NFIB at 360-786-8675 for more information.

Previous Reports

January 13 Report—Dead Bill Return From the Grave 

[Tile photo of Sen. Karen Keiser courtesy of Senate Democrats]

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