With a few minor fixes, the policy intent of the measure would be better served
House Bill 1506 is making its way through the legislative process but as crafted now, it contains some big worries for small business, objections NFIB is willing to withdraw if a few minor changes can be made. The facts:
Gender Discrimination is Already a Crime
- Discriminating against workers based on gender is against the law in Washington State, as it should be.
- Paying workers differently, based on gender, when performing the same work is also against the law in our state, as it should be.
- In fact, an employer who pays women less than men for the same work – based solely on gender – can be charged with a misdemeanor, in addition to facing a civil lawsuit.
Our Concerns are About the Mechanics of the Bill, Not the Policy
- NFIB/Washington supports equal pay for equal work, meaningful efforts to help narrow the wage gap, and enforcement action to punish employers who violate the law.
- Our concerns are limited to specific sections of the bill, which would make it more difficult, costly, and time-consuming for workers and employers alike, as well as a provision that seems to eliminate internships, training programs, recruitment efforts, or other activities that are designed to attract women into jobs and professions where they are currently under-represented. That seems completely contrary to the bill’s intent.
Concern: Employers Face Double-Jeopardy Penalties
- The bill would allow workers to file a complaint with the state Department of Labor & Industries (L&I). The proposed process is similar, but not the same, as that used to investigate and resolve violations of the 2006 Wage Payment Act.
- The bill also allows workers to sue employers for the same violation, even if L&I has already fined the employer or otherwise resolved the complaint. That is inconsistent with both the state Law Against Discrimination and the Wage Payment Act.
- NFIB’s SOLUTION: Consistency is key. Employers shouldn’t be subject to some new process different than others that already apply in these situations:
1. If these are wage complaints, they should be treated as such and follow the 2006 Wage Payment Act. This process allows a worker to choose to either file a lawsuit, or file a complaint with L&I. If they choose the administrative process, but are not satisfied with the result, they can still file a lawsuit. However, L&I’s investigation, and penalty (if any), is terminated and inadmissible in court. Also, L&I’s look-back period is three years; the bill has a four-year look-back process.
2. If these are discrimination complaints, they should follow the Washington Law Against Discrimination, and its enforcement process, overseen by the state Human Rights Commission. If the Commission is unable to resolve the complaint through its investigation, conference, and conciliation process, the complaint is referred to an administrative law judge for a hearing. Conciliation negotiations are inadmissible in the hearing. Alternatively, the worker can seek arbitration to resolve the dispute instead of filing a complaint with the Commission.
3. Appeals are permitted under both the Washington Law Against Discrimination and Wage Payment Act, and would remain so under either statute.
4. In neither process is the employer subject to “double jeopardy” – administrative and judicial penalties – under existing state law.
Concern: Confusing Language Appears to end Women-Only Training Programs
- The bill state that, “An employer may not limit or deprive an employee of career advancement opportunities that would otherwise be available to the employee but for the employee’s gender, including by … failing to provide training that is under the employer’s control on the basis of gender.”
1. It appears this section seeks to eliminate training programs that exclude workers based on gender, so no “men only” training programs. That same standard, however, would have to apply to women’s training programs, which are also based on gender.
2. The notion of providing “training” should logically include internships, externships, leadership programs, and recruitment efforts to attract and train women in fields where they are under-represented.
- NFIB’s SOLUTION: Clarify or delete this section of the bill.
While few would object to banning “men only” training or related programs in general, there are various occupations that tend to attract more women than men, or vice versa. If it makes sense for there to be Women in STEM, or Women in Construction, training efforts, it might also make sense to allow employers to recruit and train more Men in Nursing or Men in Middle School Teaching if a specific need can be identified.
Summary
- House bill sponsors admitted in debate that the bill has flaws and is a “work in progress.” We agree. A few minor changes would allow NFIB/Washington and its member small-business owners to withdraw our objections to the bill:
1. Pick a penalty process: The final bill should follow either the state Law Against Discrimination or the Wage Payment Act. Workers should be able to pick whether to go to court (or an arbitrator), or to pursue an administrative remedy first. If they choose the administrative route, a lawsuit should only be permitted if the administrative proceeding and penalty is terminated. No double jeopardy.
2. Rewrite or remove confusing language banning common-sense training programs, including internships, externships, and recruitment efforts, that assist under-represented groups in targeted occupations.
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