NFIB testifies against bill allowing workers and their attorneys to go on fishing expeditions for alleged instances of wrongful termination
State Director Patrick Connor reports from Olympia on the small-business agenda for the legislative and political week ending January 13
The 2023 session of 68th Washington State Legislature convened this week in Olympia.
Most bills affecting small businesses heard during Week 1 were on labor issues, including:
- HB 1068, “Concerning injured workers’ rights during compelled medical exams.”
As a part of the workers’ compensation claims process, an independent medical examination (IME) is occasionally ordered to get an objective assessment of an injured worker’s medical condition. If the IME results are substantially different than those previously provided by the physician of record, a change in the worker’s benefit status may occur. Big Labor is pushing this legislation to allow a worker to bring a friend and record to these medical appointments. This is troubling for several reasons, namely third-party participation in medical exams, especially psychiatric / mental health appointments, have been shown to alter the progress and results of the session according to studies. These amateur cell phone recordings have no chain of custody and could be altered prior to being submitted. Doctors are likely to object to unannounced guests recording them during a medical exam being performed for insurance purposes. NFIB opposes the bill as written and is working with a coalition to negotiate amendments to align the proposal with the requirements for recording medical examinations used in other types of insurance claims.
- HB 1095, “Creating a wage replacement program for certain Washington workers excluded from unemployment insurance.”
This bill would have the Employment Security Department create a wage replacement program for undocumented workers who can’t qualify for unemployment due to federal restrictions. Setting aside the cost and lack of identified revenue source, the bill threatens to put employers in jeopardy for terminating workers discovered to ineligible to work in the United States. Moreover, the program requirements are at best flimsy. An unemployed applicant with a library card who lives in a motor home would be eligible for benefits. NFIB opposes the bill.
- HB 1099, “Requiring certain wages in public works contracts to be at least the prevailing wage in effect when the work is performed.”
NFIB opposes this bill that would require employers to pay the most current prevailing wage even in situations where a different prevailing wage was in effect at the time of bid. This could be particularly problematic for small contractors having multi-year construction projects or maintenance contracts with a public entity.
- HB 1106, “Concerning qualifications for unemployment insurance when an individual voluntarily leaves work.”
This bill would provide unemployment insurance benefits to workers who voluntarily quit a job if the employer refuses to alter the employee’s work schedule to accommodate changes in child care availability, the health of the worker or any member of the worker’s entire family, or the availability of care for a vulnerable adult. The worker would also be eligible for benefits if they relocate to be closer to a noncustodial child. NFIB opposes the bill. The state’s Paid Family & Medical Leave law already provides partial wage replacement during 12 weeks leave each year for the care of an individual’s own or family member’s serious illness or disability.
- SB 5061, “Concerning access to personnel records.”
NFIB testified against this bill during the public hearing in the Senate Labor & Commerce Committee this week [testimony at 0:50:42-57:52]. Sen. Patty Kuderer and the state trial lawyers association are back, again, with this bill that would allow workers and their attorneys to go on fishing expeditions for alleged instances of wrongful termination as well as effectively force an employer to provide sensitive information that would otherwise be disclosed through discovery when a lawsuit has been filed. NFIB does not object to providing current or former employees access to or a copy of their personnel file. However, as we testified, the bill would make a poorly drafted regulation into law – without adding any additional clarity or guidance for employers; precludes redacting sensitive medical or personally identifiable information; and creates a new cause of action allowing workers to sue if they are unsatisfied with the information in or the timing of the release of their personnel records. We offered commonsense alternatives to address our concerns. After the hearing, Sen. Kuderer indicated she will convene a stakeholder meeting to further discuss this bill.
- SB 5123, “Concerning the employment of individuals who lawfully consume cannabis.”
The bill would essentially bar pre-employment drug testing, except for certain industries (like construction) or situations where federal law or regulations require it. Employers would still be able to test after the worker has been employed. Testing positive for drug use would be an allowable reason for termination if the company has a clear policy addressing it. NFIB has serious concerns about the bill. Senate Labor Committee chair Sen. Karen Keiser is willing to have further discussions with NFIB about the bill.
On a more positive note, NFIB met with several lawmakers to discuss Rep. Mia Gregerson’s “right to repair” personal electronic devices. The bill would require manufacturers of cell phones, tablets, laptops, and desktop computers to make available for purchase the tools, parts, instructions, and related documents needed to safely repair these consumer digital devices. Almost all manufacturers already do this. Apple does not, and has long opposed this legislation in Washington and myriad other states. NFIB supports the bill since it would allow small, independent repair shops to service these devices without incurring the substantial cost of modifying facilities, certifying technicians, and paying to enroll as an Apple certified repair agent. Nearly 65% of NFIB members support this proposal based on member ballot results. We expect this bipartisan legislation to be introduced next week.
NFIB Washington State Director Patrick Connor, left, testifies against Senate Bill 5061 before the Senate Labor & Commerce Committee. Photo snip courtesy of TVW.