Contracts Archives — LAW OFFICE OF GREGORY A. WILLIAMS

May 7, 2026May 7, 2026

Severance Agreements and Employment Discrimination (WA State)

In Washington State, how do employer severance/separation agreements typically limit an employee’s right to pursue claims of employment discrimination against the employer? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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Severance Agreements and Employment Discrimination (WA State)

When a job ends suddenly, employers often move quickly to present a severance or separation agreement. These documents can look routine — even generous — especially when you’re under financial pressure. But in Washington State, severance agreements often require you to give up significant legal rights, including the ability to bring discrimination, retaliation, or wrongful‑termination claims under the Washington Law Against Discrimination (WLAD); bring associated WA State common‑law claims; and bring similar federal statutory claims against the employer.

Before you sign anything, it’s important to understand what you may be giving up — and what you might lose if you don’t sign.

What a Severance Agreement Actually Does

A severance agreement is not just a paycheck. It’s a binding contract typically drafted by the employer’s lawyers. In relation to claims of employment discrimination (and related claims), those contracts often contain a plurality of restrictive provisions requiring the employee‘s agreement, such as the following:

• Release the employer from all claims, whether you know about them or not

• Waive rights under, inter alia, Washington Law Against Discrimination (WLAD), Title VII of the Civil Rights Act of 1964, ADA, ADEA, and Washington common law

• Keep the terms confidential

• Avoid criticizing the employer

• Accept limits on future employment or communication

These agreements are designed to protect the company. They are not written with your interests in mind.

Why Signing Too Quickly Can Be Risky

You May Be Waiving Claims Worth Far More Than the Severance

If you were treated unfairly, pushed out after reporting misconduct, denied accommodations, or terminated shortly after taking protected leave (or after engaging in other protected activities), you might have legal claims with substantial value. WLAD and WA State common law allows recovery for, inter alia, lost wages, emotional harm, and attorney’s fees — often far exceeding the severance amount.

You Might Not Realize You Have a Claim

Many employees don’t know that:

• Washington’s disability and pregnancy* protections are broader than federal law

• Retaliation can occur even after a single complaint

• Hostile work environment claims can develop gradually

• Timing matters — terminations following medical leave or accommodation requests are often scrutinized

These are just a sample of potentially unrealized issues–not obvious at first glance–that a lawyer can help you identify.

Once You Sign, You MIGHT NOT BE ABLE TO Go Back

Most releases are final. Even if new facts emerge or you later realize you had a strong case, the agreement might prevent you from pursuing it.

The Other Side of the Decision: What If You Don’t Sign?

It’s important to acknowledge the real trade‑off. If you decline the severance and pursue discrimination or retaliation claims instead, there is always a possibility that:

• Your claims don’t succeed

• The evidence isn’t strong enough

• The case settles for less than the severance — or not at all

If that happens, the severance offer is typically gone for good. Employers rarely re‑extend the same deal once it’s rejected. This is why understanding the strength of your claims — and the fairness of the offer — before the deadline to sign can be essential before making a decision.

Why Promptly Talking to an Attorney First Makes a Difference

You Get a Clear Picture of Your Rights

An employment lawyer can help you evaluate whether the severance amount is reasonable compared to the potential value of your employment-discrimination claims and can flag problematic or overly broad terms.

You May Be Able to Negotiate Better Terms

Employees who seek legal advice/representation might be able to secure:

• Higher severance payments

• More favorable confidentiality or non‑disparagement language

• Neutral references

• Narrower releases

• Extended benefits

Employers often anticipate negotiation — and they might take represented employees more seriously.

You Protect Your Future Employment Options

Some agreements include non‑compete or non‑solicitation clauses that can affect your next job. A lawyer may be able to help you avoid signing something that limits your career.

You May Not Have to Decide on the Spot

Even if your employer sets a short deadline to sign the agreement, you might be able request more time. There may also be other related protections if both (1) the release includes a waiver of U.S. Age Discrimination in Employment Act (ADEA) age-discrimination claims; and (2) the employee is 40 or older. Talk to an attorney first to learn more.

Conclusion

Signing a severance agreement is a decision that deserves careful thought. These contracts often require employees to give up important legal claims, while declining them can mean losing compensation that won’t be offered again. Because both choices carry real consequences, getting advice from an employment attorney before you commit can help you understand your options and choose the path that best protects your related rights.

IMPORTANT: The potential outcomes discussed herein are not guaranteed and the outcome of any particular case may vary significantly and unexpectedly from the same; consult with an attorney first both to discuss the specific details of your case and to learn more.

LEARN MORE

If you would like to learn more, then consider contacting an experienced employment attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

–gw

December 18, 2025December 18, 2025

Is Washington State an at-will employment state?

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Is Washington State an at-will employment state?

answer:

Washington has been an “at-will” employment state since at least 1928. See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223, (Wash. 2002) (referencing Davidson v. Mackall-Paine Veneer Co., 149 Wash. 685, 688, 271 P. 878 (1928); see also Prescott v. Puget Sound Bridge & Dredging Co., 40 Wash. 354, 357, 82 P. 606 (1905) (Mount, C.J., dissenting) (“where [an employment] contract is general and for an indefinite time, it is terminable at will.”)).

According to the at-will doctrine, “an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability.” See id. (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotation marks omitted). “Conversely, in the absence of a contract stating otherwise, an employee has the absolute right to abandon … [their] employment at-will.” See id.

However, there are three recognized exceptions to the general at-will employment doctrine: (1) Statutory; (2) Judicial and; (3) Contractual.

READ OUR RELATED ARTICLES

We invite you to read more of our articles related to this topic:

» Constructive Discharge in WA State*

» Effective Date For Constructive Discharge (WA State)

» Retaliatory Discharge (WA State)

» The Prima Facie Case: Discriminatory Discharge

» WA State Torts: Wrongful Termination in Violation of Public Policy*

» What is the Statute of Limitations for Wrongful Termination in WA?

» What Qualifies as Wrongful Termination in Washington?

» WLAD: The Discriminatory Discharge Provision*

NEED HELP?

If you need legal assistance, consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

June 5, 2025

Employment Law 101: Settlement Agreements

In Washington State, what are settlement agreements within the context of employment-law litigation? Here’s my point of view.

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Finality Through Compromise: The Role of Settlement Agreements in Employment Law

In employment disputes—often emotionally charged and legally complex—settlement agreements provide a structured and efficient path toward resolution. These agreements, rooted in the well-established principles of contract law, allow employers and employees to avoid the uncertainty and expense of protracted litigation. Courts in Washington, and across the country, consistently support settlements as essential tools for resolving workplace disputes with finality and fairness.

Settlement Agreements: Contracts with Legal Weight

Settlement agreements in the employment context function as legally enforceable contracts and are governed by traditional contract principles—requiring offer, acceptance, consideration, and mutual assent. See Elgiadi v. Wash. State Univ. Spokane, 519 P.3d 939, 941 (Wash. App. 2022) (citing Stottlemyre v. Reed, 35 Wn. App. 169, 171, 665 P.2d 1383 (1983)).

Whether resolving a wrongful termination claim, a wage dispute, or allegations of workplace discrimination, the settlement process formalizes the parties’ agreement to dismiss legal claims in exchange for agreed-upon terms. Once executed, these contracts carry binding legal effect, providing closure and clarity for both employer and employee.

Mutual Concessions: The Nature of Employment Settlements

Employment settlements, like all compromises, involve mutual concessions with parties typically accepting less than what they believe they are entitled to in order to avoid the risks and burdens of litigation. See id. (citing Harding v. Will, 81 Wn.2d 132, 138, 500 P.2d 91 (1972); Strozier v. General Motors Corp., 635 F.2d 424, 425 (5th Cir. 1981); 15B AM. JUR. 2D COMPROMISE AND SETTLEMENT AGREEMENTS § 1 (2021)).

This is particularly true in employment disputes, where the cost of litigation, the unpredictability of jury verdicts, and the reputational stakes for both parties can be substantial. Employees may choose to settle for a guaranteed financial payment rather than risk a less favorable outcome at trial. Employers, in turn, often settle to avoid continued liability, disruption to business operations, and additional legal fees. See id. at 942.

A Strong Public Policy Favoring Settlement

Washington courts have repeatedly emphasized the strong public policy favoring settlements “and the finality they afford.” Id. at 941 (citing Haller v. Wallis, 89 Wash.2d 539, 544, 573 P.2d 1302 (1978)). Accordingly, “Washington jurisprudence recognizes a strong public policy encouraging settlements.” Id. at 941-42 (citing Am. Safety Cas. Ins. Co. v. City of Olympia, 162 Wash.2d 762, 772, 174 P.3d 54 (2007); City of Seattle v. Blume, 134 Wash.2d 243, 258, 947 P.2d 223 (1997); Seafirst Ctr. Ltd. P’ship v. Erickson, 127 Wash.2d 355, 366, 898 P.2d 299 (1995)).

In the employment context, this policy promotes quicker resolution of disputes, helping both parties move forward. It also supports a more cooperative legal environment—one that encourages dialogue and resolution rather than extended confrontation. Ultimately, settlements benefit the legal system by conserving judicial resources and providing certainty to the parties involved.

Finality: The Cornerstone of Settlement

A key aspect of any employment settlement agreement is finality. As emphasized in Haller v. Wallis, 89 Wash.2d at 544, 573 P.2d 1302, the legal system disfavors attempts to reopen resolved disputes. Once a settlement is reached and claims are released, the employer should be protected from further liability regarding the same issues.

This principle is especially important for employers, who often settle in order to eliminate the ongoing costs and uncertainties of litigation. Allowing a plaintiff to revisit settled claims would defeat the entire purpose of compromise, exposing employers to renewed legal exposure after paying to resolve the matter.

To ensure finality, settlement agreements in employment cases typically include comprehensive release of claims clauses. These provisions explicitly bar the employee from bringing future claims arising out of the same employment relationship or incident—giving employers the legal certainty they need to close the book on the dispute.

Conclusion

In employment law, where legal claims can carry high financial and reputational stakes, settlement agreements offer a vital path to resolution. Governed by contract principles and bolstered by strong public policy, these agreements serve both employer and employee by delivering certainty, efficiency, and finality. For employers and counsel alike, understanding the enforceability and purpose of settlement agreements is essential in navigating the complex world of workplace disputes.

READ OUR RELATED ARTICLES

We invite you to read more of our articles related to this topic:

» Illegal Contracts in Washington State

» Interpreting Releases in Washington State*

» The Adhesion Contract*

» Unenforceable Employment-Contract Provisions and Discrimination Claims*

» Washington Contract Law and Sham Consideration*

» WA State Contracts & the Context Rule*

» Washington Contract Law and Sham Consideration*

LEARN MORE

–gw

October 17, 2024October 21, 2024

Promissory Estoppel (WA State)

Under Washington State laws, what is the doctrine of promissory estoppel? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE DOCTRINE OF PROMISSORY ESTOPPEL

The doctrine of promissory estoppel is based upon the “principle that a promise made without consideration may nonetheless be enforced to prevent injustice if the promisor should have reasonably expected the promisee to rely on the promise and if the promisee did actually rely on the promise to the promisee’s detriment.” Black’s Law Dictionary 591 (8th ed. 2004). Accordingly, to establish a viable claim of promissory estoppel, the plaintiff must show:

(1) a promise which

(2) the promisor should reasonably expect to cause the promisee to change his position and

(3) which does cause the promisee to change his position

(4) justifiably relying upon the promise, in such a manner that

(5) injustice can be avoided only by enforcement of the promise.

Chen v. State, 86 Wn.App. 183, 194 n.1 (Div. 2 1997), petition denied, 133 Wn.2d 1020, 948 P.2d 387 (1997) (citing Havens v. C & D Plastics, Inc., 124 Wash.2d 158, 172, 876 P.2d 435 (1994), quoting Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wash.2d 255, 259 n. 2, 616 P.2d 644 (1980)) (emphasis added).

THE “PROMISE” REQUIREMENT

“Promissory estoppel requires the existence of a promise.” Id. (citing Havens, 124 Wash.2d at 172, 876 P.2d 435) (hyperlink added). “A promise is defined as ‘a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.'” Id. (citing Havens, 124 Wash.2d at 172, 876 P.2d 435 (quoting Restatement (Second) of Contracts, § 2(1))).

CONCLUSION

In conclusion, the doctrine of promissory estoppel serves as a vital legal principle that ensures fairness and prevents unjust outcomes when a promise, lacking formal consideration, leads a promisee to alter their position based on that promise. By establishing specific criteria—including the existence of a promise, reasonable reliance, and the necessity of enforcement to avert injustice—this doctrine safeguards individuals from detrimental reliance on assurances that may otherwise go unfulfilled. As courts continue to interpret and apply this doctrine, it underscores the importance of honoring commitments in both personal and commercial contexts, fostering trust and accountability in our interactions.

need help?

If you need help with your employment issue, then consider a consultation with an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

June 22, 2023October 21, 2024

Noncompetition Covenants (WA State)

Under Washington State laws, when are employee noncompetition covenants void and unenforceable? Here’s my point of view.

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NONCOMPETITION COVENANTS (WA STATE)

Generally, a noncompetition covenant is “[a] promise , usu. in a sale-of-business, partnership, or employment contract, not to engage in the same type of business for a stated time in the same market as the buyer, partner, or employer.” Black’s Law Dictionary 392 (8th ed. 2004) (emphasis added). In Washington State, a “‘[n]oncompetition covenant’ includes every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind.” RCW 49.62.010(4)*.

The Washington State Legislature has found both that “workforce mobility is important to economic growth and development[ ]” and that “agreements limiting competition or hiring may be contracts of adhesion** that may be unreasonable.” RCW 49.62.005* (hyperlink added). Washington’s noncompetition covenants law (hereinafter, “law”), RCW 49.62*, took effect on January 1, 2020 and establishes when such noncompetition covenants are void and unenforceable. See RCW 49.62.900*.

WHEN VOID AND UNENFORCEABLE

In Washington State, a noncompetition covenant is considered void and unenforceable against an employee unless certain conditions are met. The relevant law follows:

RCW 49.62.020*

(1) A noncompetition covenant is void and unenforceable against an employee:

(a)(i) Unless the employer discloses the terms of the covenant in writing to the prospective employee no later than the time of the acceptance of the offer of employment and, if the agreement becomes enforceable only at a later date due to changes in the employee’s compensation, the employer specifically discloses that the agreement may be enforceable against the employee in the future; or

(ii) If the covenant is entered into after the commencement of employment, unless the employer provides independent consideration for the covenant;

(b) Unless the employee’s earnings from the party seeking enforcement, when annualized, exceed one hundred thousand dollars per year. This dollar amount must be adjusted annually in accordance with RCW 49.62.040*;

(c) If the employee is terminated as the result of a layoff, unless enforcement of the noncompetition covenant includes compensation equivalent to the employee’s base salary at the time of termination for the period of enforcement minus compensation earned through subsequent employment during the period of enforcement.

(2) A court or arbitrator must presume that any noncompetition covenant with a duration exceeding eighteen months after termination of employment is unreasonable and unenforceable. A party seeking enforcement may rebut the presumption by proving by clear and convincing evidence that a duration longer than eighteen months is necessary to protect the party’s business or goodwill.

RCW 49.62.020*.

INDEPENDENT CONTRACTORS

The law also protects independent contractors to a certain extent. “A noncompetition covenant is void and unenforceable against an independent contractor unless the independent contractor’s earnings from the party seeking enforcement exceed two hundred fifty thousand dollars per year.” RCW 49.62.030* (emphasis added). “This dollar amount must be adjusted annually in accordance with RCW 49.62.040*.” Id. In addition, “[t]he duration of a noncompetition covenant between a performer and a performance space, or a third party scheduling the performer for a performance space, must not exceed three calendar days.” Id.

UNENFORCEABLE COVENANT PROVISIONS

Lastly, the law determines when noncompetition covenant provisions are unenforceable. “A provision in a noncompetition covenant signed by an employee or independent contractor who is Washington-based is void and unenforceable:

(1) If the covenant requires the employee or independent contractor to adjudicate a noncompetition covenant outside of this state; and

(2) To the extent it deprives the employee or independent contractor of the protections or benefits of this chapter[, RCW 49.62*].”

RCW 49.62.050* (paragraph formatting, emphasis, and hyperlinks added).

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OTHER SECTIONS OF THE LAW

There are additional provisions in the law (e.g., Franchisor Restrictions*, Employees Having an Additional Job*, Remedies*, etc.*) that are beyond the scope of this article. For more information, I encourage the reader to review the entire act* — RCW 49.62*.

DEFINITIONS

For purposes of this article, the following definitions apply:

RCW 49.62.010*

Definitions. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) “Earnings” means the compensation reflected on box one of the employee’s United States internal revenue service form W-2 that is paid to an employee over the prior year, or portion thereof for which the employee was employed, annualized and calculated as of the earlier of the date enforcement of the noncompetition covenant is sought or the date of separation from employment. “Earnings” also means payments reported on internal revenue service form 1099-MISC for independent contractors.

(2) “Employee” and “employer” have the same meanings as in RCW 49.17.020*.

(3) “Franchisor” and “franchisee” have the same meanings as in RCW 19.100.010*.

(4) “Noncompetition covenant” includes every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind. A “noncompetition covenant” does not include:

(a) A nonsolicitation agreement;

(b) a confidentiality agreement;

(d) a covenant entered into by a person purchasing or selling the goodwill of a business or otherwise acquiring or disposing of an ownership interest; or

(e) a covenant entered into by a franchisee when the franchise sale complies with RCW 19.100.020(1)*.

(5) “Nonsolicitation agreement” means an agreement between an employer and employee that prohibits solicitation by an employee, upon termination of employment:

(a) Of any employee of the employer to leave the employer; or

(b) of any customer of the employer to cease or reduce the extent to which it is doing business with the employer.

(6) “Party seeking enforcement” means the named plaintiff or claimant in a proceeding to enforce a noncompetition covenant or the defendant in an action for declaratory relief.

RCW 49.62.010* (paragraph formatting, emphasis, and hyperlinks added).

(*This link refers the visitor to an external website: Washington State Legislature: Revised Code of Washington (RCW).)

(**This link refers the visitor to our external website: Williams Law Group Blog.)

LEARN MORE

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

April 27, 2023October 21, 2024

Illegal Contracts in Washington State

Under Washington State law, are illegal contracts enforceable when they are in conflict with a statutory law? Here’s my point of view.

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ILLEGAL CONTRACTS IN WASHINGTON STATE

“A contract that is in conflict with statutory requirements is illegal and unenforceable as a matter of law.” Failor’s Pharmacy v. Department of Social and Health Services, 125 Wn.2d 488, 499, 886 P.2d 147 (1994) (Medicaid reimbursement schedules promulgated in violation of statutory requirements were void and unenforceable).

Accordingly, where “a contract is illegal or grows immediately out of and is connected with an illegal contract, Washington courts leave the parties to the contract where they find them.” State v. Pelkey, 58 Wn.App. 610, 615, 794 P.2d 1286 (Div. 1 1990) (internal quotation marks and citations omitted). Thus, “as a general rule, a contract that is contrary to the terms and policy of an express legislative enactment is illegal and unenforceable.” Id. (internal quotation marks and citations omitted).

EXAMPLE: STATE v. PELKEY

For example, in State v. Pelkey, a criminal defendant allegedly attempted to bribe a city police officer by giving him goods and money to be kept appraised of vice surveillance; however, Pelkey’s criminal case was ultimately dismissed, and Pelkey sought return of said goods and money. Id. at 611-12. The City argued that the property did not have to be returned, because no seizure had occurred and Pelkey filed his motion in the wrong court. The court refused to honor the parties’ so-called contractual agreement, leaving them as the court found them, after reasoning that a contract that is contrary to the terms and policy of an express legislative enactment [i.e., bribery] is illegal and unenforceable. See id.

CONCLUSION

In Washington State, a contract that is contrary to the terms and policy of an express legislative enactment is illegal and unenforceable.

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June 23, 2022October 21, 2024

Unpaid Contract Wages (WA State)

Under Washington State labor regulations, what are employee remedies for unpaid contract wages? Here’s my point of view.

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UNPAID CONTRACT WAGES — BLACK LETTER LAW

The applicable law is found under both RCW 49.52.050 and .070 — Rebates of Wages and Civil Liability for Double Damages, respectively. The relevant portions of RCW 49.52.050 state as follows:

[RCW 49.52.050 – Rebates of wages–False records–Penalty.]

Any employer or officer, vice principal or agent of any employer, whether said employer be in private business or an elected public official, who

(1) Shall collect or receive from any employee a rebate of any part of wages theretofore paid by such employer to such employee; or

(2) Willfully and with intent to deprive the employee of any part of his or her wages, shall pay any employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract[ ] …

…

Shall be guilty of a misdemeanor.

Id. (emphasis and paragraph formatting added). The relevant portions of RCW 49.52.070 state as follows:

[RCW 49.52.070 – Civil liability for double damages.]

Any employer and any officer, vice principal or agent of any employer who shall violate any of the provisions of RCW 49.52.050(1) and (2) shall be liable in a civil action by the aggrieved employee or his or her assignee to judgment for twice the amount of the wages unlawfully rebated or withheld by way of exemplary damages, together with costs of suit and a reasonable sum for attorney’s fees: PROVIDED, HOWEVER, That the benefits of this section shall not be available to any employee who has knowingly submitted to such violations.

RCW 49.52.070 (emphasis and hyperlink added).

UNPAID CONTRACT WAGES — CASE LAW

The court in Clipse v. Commercial Driver Services, Inc., 189 Wn.App. 776, 358 P.3d 464 (Wash.App. Div. 2 2015), found that RCW 49.52.050(2) prohibits an employer from paying an employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract. Clipse, 189 Wn.App. at 776 (internal citation and quotation marks omitted) (emphasis added).

The court further determined that RCW 49.52.070 creates civil liability, including double damages, costs, and attorney fees, for violations of RCW 49.52.050. Id.

CONCLUSION

Under Washington State labor regulations, employee remedies for unpaid contract wages can include double damages, costs, and attorney fees.

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March 24, 2022October 21, 2024

Employee-Handbook Liability

Employment Contracts and At-Will Employment

Under Washington State laws, are employee-handbook promises enforceable, when they address specific treatment in specific situations on which an employee justifiably relies? Here’s my point of view.

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THE AT-WILL EMPLOYMENT DOCTRINE

“Generally, an employment contract indefinite in duration is terminable at will.” Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 540 (Wash. 2017) (citing Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 223, 685 P.2d 1081 (1984)). According to the “at-will” doctrine, an employer can discharge an at-will employee for no cause, good cause or even cause morally wrong without fear of liability. See Ford v. Trendwest Resorts, Inc., 146 Wn.2d 146, 152, 43 P.3d 1223, (Wash. 2002) (citing Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 226, 685 P.2d 1081 (1984)) (internal quotation marks omitted). Conversely, an employee has the absolute right to quit his or her employment at-will. See id. However, there are three recognized exceptions to the general at-will employment rule: (1) Statutory; (2) Judicial and; (3) Contractual.

EXCEPTION TO THE AT-WILL EMPLOYMENT DOCTRINE: EMPLOYEE HANDBOOKS: PROMISES OF SPECIFIC TREATMENT IN SPECIFIC SITUATIONS

“[U]nder certain circumstances, employers may be obligated to act in accordance with policies as announced in handbooks issued to their employees.” Mikkelsen, 189 Wn.2d at 539-40 (internal citations and quotation marks omitted). For example, “if the employer has made promises of specific treatment in specific situations on which the employee justifiably relies, those promises are enforceable and may modify an employee’s at-will status.” Id. at 540 (internal citation omitted).

ELEMENTS OF THE THEORY

“Under this theory, [a plaintiff] … must show [the following:]

[a)] … that a statement (or statements) in an employee manual or handbook or similar document amounts to a promise of specific treatment in specific situations, …

[b)] that the employee justifiably relied on the promise, and …

[c)] that the promise was breached.

Id. (internal citation and quotation marks omitted) (paragraph formatting added).

CONSIDERATIONS

1. The Crucial Question

“[T]he crucial question is whether the employee has a reasonable expectation the employer will follow the discipline procedure, based upon the language used in stating the procedure and the pattern of practice in the workplace.” Id. (internal citation omitted) (alteration in original).

2. Questions of Fact

“[W]hether an employment policy manual issued by an employer contains a promise of specific treatment in specific situations, whether the employee justifiably relied on the promise, and whether the promise was breached are questions of fact.” Id. (alteration in original) (internal quotation marks and citation omitted). “Therefore, summary judgment is proper only if reasonable minds could not differ in resolving these questions.” Id. (internal citation omitted).

3. Ambiguous Discipline Policies Create Issue of Fact

“The Court of Appeals has held that ambiguous discipline policies create an issue of fact as to whether the employer made a binding promise to follow certain discipline procedures.” Id. at 543 (internal citations omitted).

4. Summary Judgment May Not Be Appropriate When Discretionary Language Negated by Other Representations

“[T]he presence of discretionary language may not be sufficient for summary judgment when other representations negate that language.” Id. at 544 (referencing, e.g., Swanson v. Liquid Air Corp., 118 Wn.2d 512, 532, 826 P.2d 664 (1992) (“We reject the premise that this disclaimer can, as a matter of law, effectively serve as an eternal escape hatch for an employer who may then make whatever unenforceable promises of working conditions it is to its benefit to make.”)) (internal quotation marks omitted).

CONCLUSION

Under the Washington State law, “if the employer has made promises of specific treatment in specific situations on which the employee justifiably relies, those promises are enforceable and may modify an employee’s at-will status.” Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 540 (Wash. 2017) (internal citations omitted).

RELATED: Read more about this topic by viewing our article entitled: Unenforceable Employment-Contract Provisions and Discrimination Claims (the link will redirect the reader to our Williams Law Group Blog — an external website).

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September 14, 2021October 21, 2024

Independent Contractors and Gender Discrimination

Under Washington State laws, may independent contractors bring gender discrimination actions in the making and performance of contracts for personal services? Here’s my point of view.

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INDEPENDENT CONTRACTORS: GENDER

In Washington State, “an independent contractor may bring an action for discrimination in the making or performance of [a] contract for personal services.” Specialty Asphalt & Construction, LLC v. Lincoln County, 191 Wn.2d 182 (Wash. 2018). at 192 (citing Marquis v. City of Spokane, 130 Wn.2d 97, 100-01, 922 P.2d 43 (1996)) (alterations in original) (internal quotation marks omitted).

Such discrimination claims may be “based on sex [or gender] ….” Marquis, 130 Wn.2d at 100-01.

THE PRIMA FACIE CASE

The relevant law concerning the prima facie case is found under Washington Law Against Discrimination, RCW 49.60. However, because “RCW 49.60.030 does not provide the criteria for a prima facie claim, … [the court] crafted criteria through case law[ ][:]

[T]he plaintiff in a sex discrimination case must show (1) membership in a protected class; (2) the plaintiff was similarly situated to members of the opposite sex, i.e., that he or she was qualified for the position applied for or was performing substantially equal work; (3) because of plaintiff’s sex he or she was treated differently than members of the opposite sex.

Specialty Asphalt, 191 Wn.2d at 204 n.6 (citing Marquis, 130 Wn.2d at 113-14) (alteration in original) (emphasis and hyperlink added).

TREATED DIFFERENTLY FROM SIMILARLY SITUATED MEMBERS OF THE OPPOSITE SEX BECAUSE OF GENDER

Moreover, “[t]he Marquis case provides three examples … [of how a plaintiff–in an action for discrimination in the making and performance of an employment contract–may show that the plaintiff was treated differently from similarly situated members of the opposite sex because of plaintiff’s gender]:

[ (1) ] [T]hat he or she was denied the position,

[ (2) ] was offered a contract only on terms which made the performance of the job more onerous or less lucrative than contracts given to members of the opposite sex, or,

[ (3) ] once offered the contract, was treated in a manner that made the performance of the work more difficult than that of members of the opposite sex who were similarly situated.

Specialty Asphalt, 191 Wn.2d at 193 (internal citation omitted) (second-fifth alterations in original).

SUMMARY JUDGMENT: EVIDENCE

CIRCUMSTANTIAL, INDIRECT, & INFERENTIAL EVIDENCE

“To establish discriminatory action, plaintiffs may rely on circumstantial, indirect, and inferential evidence.” Id. at 192 (citing Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 526, 404 P.3d 464 (2017) (“assessing a claim under RCW 49.60.180“) (internal quotation marks omitted).

SUMMARY JUDGMENT IMPROPER

Summary judgment is improper “[w]hen the record contains reasonable but competing inferences of both discrimination and nondiscrimination[ ][; in that case,] the trier of fact must determine the true motivation.” Id. at 191-92 (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (2014) (citing Rice v. Offshore Sys., Inc., 167 Wn.App. 77, 90, 272 P.3d 865 (2012))).

TOTALITY OF THE EVIDENCE

“[E]vidence should be taken together when considering whether there are ‘reasonable but competing inferences of both discrimination and nondiscrimination.'” See id. at 192 (internal citation and quotation marks omitted).

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June 26, 2021October 20, 2024

Section 1981 & Non-Employment Contracts (Ninth Circuit)

Under 42 U.S.C. § 1981, Equal Rights Under The Law, are non-employment contracts protected in the Ninth Circuit? Here’s my point of view.

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ISSUE OF FIRST IMPRESSION: LINDSEY v. SLT LOS ANGELES, LLC

The problem is how to adapt the four elements of a prima facie case established in the employment discrimination context to claims of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981; this was a matter of first impression in the Ninth Circuit in Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1145 (9th Cir. 2005).

The Plaintiff-Appellant (“Lindsey” dba “E-Jays Panache Images”) was a business that presented fashion shows; all representatives were African-American, and audience members were primarily African-American as well. The Defendant-Appellee (“SLT Los Angeles” or “the Westin”) owned and operated, inter alia, a Grand Ballroom in their subject Westin Hotel.

Lindsey contracted for use of the Grand Ballroom for an event, but on the day of the event, there was an apparent mix up by the Westin. He essentially alleged that they were denied the Grand Ballroom in favor of a Bar Mitzvah because of their race.

Lindsey sued in U.S. District Court for, inter alia, violations of 42 U.S.C. § 1981, and “the district court concluded that Appellant … [Lindsey] had failed to prove that the Westin’s actions, which had prevented Panache from hosting its annual Mother’s Day Fashion Show in the Grand Ballroom of the Westin Hotel, presented a prima facie case of race discrimination pursuant to 42 U.S.C. § 1981.” Id. at 1141.

Lindsey appealed to the Ninth Circuit, and it reversed the district court and remanded for trial. The Ninth Circuit agreed with the decisions of other circuits that “the first three elements of the McDonnell Douglas test are easily adapted to claims arising under section 1981 outside of an employment context.” Id.

Accordingly, “the first three elements require a plaintiff to show that: (1) it is a member of a protected class, (2) it attempted to contract for certain services, and (3) it was denied the right to contract for those services.” Id. (referencing Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir.2001); Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir.1996)) (emphasis added).

CONFLICTS BETWEEN 6TH & 7TH CIRCUITS

However, the court identified that “the Seventh and Sixth Circuits conflict over adaptation of the fourth McDonnell Douglas requirement, which, as applied by the district court … [in Lindsey], requires that such services remained available to similarly-situated individuals who were not members of the plaintiff’s protected class.” Id. (emphasis added).

The court then pointed out that “the Seventh Circuit adopts this requirement … but the Sixth Circuit concludes that this flat requirement is too rigorous in the context of the denial of services by a commercial establishment, because customers often have no way of establishing what treatment was accorded to other customers.” Id. (internal citations omitted).

The 9th Circuit reasoned that “the Sixth Circuit distinguishes the commercial services context from the employment context, where records are kept and there is a paper trail disclosing what treatment is given to similarly-situated others.” Id. (internal citations omitted). Thus, “the Sixth Circuit alters the elements to require: (a) that plaintiff was deprived of services while similarly situated persons outside the protected class were not; and/or (b) that plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.” Id. (internal citations and quotation marks omitted).

Ultimately, the Ninth Circuit found the Sixth Circuit’s reasoning compelling, but did not decide whether its modification/relaxation of the fourth element of a prima facie case under Section 1981 is required in many or all cases arising in a commercial, non-employment context. The court found that the plaintiff in Lindsey offered clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied to the plaintiff, and, thus, it applied all four elements of the more rigorous rule without deciding whether the fourth element must be relaxed.

CONCLUSION

It appears that in the Ninth Circuit, the following may be required to establish a prima facie case of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981:

1) membership in a protected class;

2) an attempt to contract for certain services;

3) denial of the right to contract for those services; and (possibly);

4) plaintiff was deprived of services while similarly situated persons outside the protected class were not [AND/OR] plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.

See Lindsey, 447 F.3d at 1145. When the plaintiff offers clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied to the plaintiff, the court will likely apply all four elements of the more rigorous rule without deciding whether the fourth element must be relaxed. See id.