Definitions Archives — LAW OFFICE OF GREGORY A. WILLIAMS

May 18, 2024October 21, 2024

State-Employee Whistleblowers & Retaliatory Action

Under Washington State laws, what is considered retaliatory action against state-employee whistleblowers? 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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What is considered retaliatory action against state-employee whistleblowers (WA State)?

definition of state-employee whistleblower

Please see our article entitled: “Definition of State Employee Whistleblower.” (NOTE: the link will take the reader to our Williams Law Group Blog — an external website.)

dEFINITION OF RETALIATORY ACTION (or reprisal)

The relevant law concerning retaliation against state-employee whistleblowers is found under RCW 42.40.050*, as follows:

RCW 42.40.050.
Retaliatory action against whistleblower—Remedies.

(1)(a) Any person who is a whistleblower, as defined in RCW 42.40.020*, and who has been subjected to workplace reprisal or retaliatory action is presumed to have established a cause of action for the remedies provided under chapter 49.60* RCW [(i.e., The Washington Law Against Discrimination)].

(b) For the purpose of this section, “reprisal or retaliatory action” means, but is not limited to, any of the following:

(i) Denial of adequate staff to perform duties;

(ii) Frequent staff changes;

(iii) Frequent and undesirable office changes;

(iv) Refusal to assign meaningful work;

(v) Unwarranted and unsubstantiated letters of reprimand or unsatisfactory performance evaluations;

(vi) Demotion;

(vii) Reduction in pay;

(viii) Denial of promotion;

(ix) Suspension;

(x) Dismissal;

(xi) Denial of employment;

(xii) A supervisor or superior behaving in or encouraging coworkers to behave in a hostile manner toward the whistleblower;

(xiii) A change in the physical location of the employee’s workplace or a change in the basic nature of the employee’s job, if either are in opposition to the employee’s expressed wish;

(xiv) Issuance of or attempt to enforce any nondisclosure policy or agreement in a manner inconsistent with prior practice; or

(xv) Any other action that is inconsistent compared to actions taken before the employee engaged in conduct protected by this chapter, or compared to other employees who have not engaged in conduct protected by this chapter.

(2) The agency presumed to have taken retaliatory action under subsection (1) of this section may rebut that presumption by proving by a preponderance of the evidence that there have been a series of documented personnel problems or a single, egregious event, or that the agency action or actions were justified by reasons unrelated to the employee’s status as a whistleblower and that improper motive was not a substantial factor.

(3) Nothing in this section prohibits an agency from making any decision exercising its authority to terminate, suspend, or discipline an employee who engages in workplace reprisal or retaliatory action against a whistleblower. However, the agency also shall implement any order under chapter 49.60* RCW (other than an order of suspension if the agency has terminated the retaliator).

RCW 42.40.050* (emphasis and hyperlinks added).

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* (NOTE: the link will take the reader away from this website to the Official Washington State Legislature Website (Revised Code of Washington) — an external governmental website.)

CONCLUSION

Under Washington State laws, state-employee whistleblowers who experience retaliatory actions have various remedies available to them. As defined under RCW 42.40.050, retaliatory actions encompass a wide range of behaviors, including but not limited to denial of adequate staff, unwarranted demotion, and hostile behavior from supervisors or coworkers. However, agencies have the opportunity to rebut these claims by demonstrating documented personnel issues or justifying actions unrelated to whistleblowing.

READ OUR RELATED ARTICLES

» Definition of State Employee Whistleblower**

» Employment-Discrimination Hotlines & Unlawful Retaliation

» The Prima Facie Case: Unlawful Retaliation

» The Washington State Human Rights Commission**

» Top 3 Reasons Unlawful Retaliation Claims Fail

» Unlawful Retaliation: Adverse Employment Action

» Unlawful Retaliation and the Prospective Employer

» Unlawful Retaliation: Statutorily Protected Activity

» Unlawful Retaliation: The Actual-Knowledge Standard

» Unlawful Retaliation: The Causal Link

» Unlawful Retaliation: The Functionally-Similar Test

» WA State Human Rights Commission Complaints

» WA State Human Rights Commission: Functions, Powers, Duties

» WA State Human Rights Commission: Damages for Humiliation & Suffering**

» WSHRC: From Complaint to Conclusion

** (NOTE: This is an external link that will take the reader to our Williams Law Group Blog.)

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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.

May 16, 2024October 21, 2024

What are the elements of Hostile Work Environment in WA State?

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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FAQ: What are the elements of Hostile Work Environment in WA State?

answer:

Hostile work environment is a form of unlawful employment discrimination in Washington State; it is also known as harassment. Generally, to establish a prima facie case against an employer, the employee must produce competent evidence of each of the following four elements:

(1) that the harassment was offensive and unwelcome;

(2) that it occurred because of the employee’s membership in a protected class;

(3) that it affected the terms and conditions of employment/membership; and

(4) that the harassment can be imputed to the employer.

See, e.g., Glasgow v. Georgia-Pacific Corp.*, 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985).

READ OUR RELATED ARTICLES

» Definition of Prima Facie Case

» Disability-Based Hostile Work Environment

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» Hostile Work Environment: The Unwelcome Element

» McDonnel Douglas Burden-Shifting Framework*

» Protected Classes

» Sexual Harassment in the Workplace (WA State)

» The Prima Facie Case: Hostile Work Environment

» Top 3 Hostile Work Environment Issues

» WLAD: Disparate Treatment via Hostile Work Environment

* (NOTE: This is an external link that will take you to our Williams Law Group Blog.)

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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.

May 9, 2024October 21, 2024

Civil Procedure: The CR 26(i) Conference Requirement (WA State)

Under Washington State Superior Court Civil Rules (hereinafter, “CR”), what is the CR 26(i) conference requirement? Here’s my point of view.

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The CR 26(i) Conference Requirement (WA State)

In civil litigation in Washington State, adherence to procedural rules is paramount for the smooth functioning of the legal system and ensuring fairness for all parties involved. One such rule that holds significant importance concerning the discovery process is CR 26(i)*. In this article, I delve into what this rule entails and why it’s crucial for civil attorneys practicing in Washington State to understand and comply with it.

Understanding CR 26(i)

Requirement for Conference of Counsel

CR 26(i)* mandates that before presenting any motion or objection concerning Rules 26 through 37 (Depositions and Discovery) of the Washington State Rules of Superior Court*, counsel for the parties involved must confer with each other. This conference should be arranged at a mutually convenient time and can take place either in person or via telephone.

Good Faith Conferencing

The rule emphasizes the necessity of conducting the conference in good faith. This implies that the parties involved should engage in meaningful discussions aimed at resolving issues or reaching agreements regarding the motion or objection at hand.

Sanctions for Non-Compliance

Should the court determine that counsel for any party has willfully refused or failed to confer in good faith as required by CR 26(i)*, it holds the authority to apply sanctions as outlined under Rule 37(b)*. These sanctions can encompass a range of punitive measures, highlighting the seriousness with which the court views non-compliance with procedural requirements.

Certification Requirement

Importantly, any motion seeking an order to compel discovery or obtain protection must include certification from counsel affirming that the conference requirements of CR 26(i)* have been met. This certification serves as evidence of compliance and ensures transparency in the litigation process.

Importance of Compliance

Compliance with CR 26(i)* is not merely a procedural formality; it serves several crucial purposes:

1. Facilitating Communication

By necessitating conference among counsel, the rule promotes open communication and collaboration between parties. This can often lead to the resolution of disputes without the need for court intervention, thereby saving time and resources.

2. Efficient Case Management

Ensuring that parties engage in pre-motion conferences helps streamline the litigation process. By addressing potential issues early on, the court can better manage its docket and expedite proceedings.

3. Promoting Fairness

The requirement for good-faith conferencing underscores the principle of fairness in litigation. It encourages parties to engage in constructive dialogue and seek mutually acceptable solutions, ultimately promoting equitable outcomes.

4. Enhancing Accountability

The certification requirement adds an extra layer of accountability for counsel, reinforcing the importance of compliance with procedural rules. It acts as a safeguard against frivolous or improper motions, thereby promoting the integrity of the legal process.

Conclusion

In civil litigation in Washington State, adherence to procedural rules like CR 26(i) is indispensable. By mandating pre-motion conferences and ensuring good faith engagement among counsel, this rule serves to foster communication, streamline proceedings, and uphold the principles of fairness and accountability within the legal system. Attorneys practicing in Washington State must familiarize themselves with CR 26(i) and diligently adhere to its requirements to navigate civil litigation successfully. Failure to do so can not only result in sanctions but may also undermine the integrity of the litigation process itself.

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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 11, 2024October 21, 2024

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*

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March 28, 2024October 21, 2024

Employment Law 101: How to Commence a Civil Legal Action

Under Washington State laws and court rules, how does a plaintiff commence a civil legal action (i.e., civil lawsuit)? Here’s my point of view.

(IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to an external 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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Introduction

In Washington State civil litigation, the commencement of a legal action is a critical step that sets the stage for the entire legal process. Let’s delve into the key aspects of initiating a civil action as outlined in the state’s rules and statutes. NOTE: this article only addresses commencement in Washington State Superior Courts*.

How to Commence a Civil Legal Action

Except as provided in Washington State Superior Court Civil Rules (CR), CR 4.1*, a civil action in Washington State can be commenced in two primary ways:

1. Service of Summons and Complaint:

The action is initiated by serving a copy of a summons along with a copy of the complaint, as outlined in Rule 4* of the state’s legal procedures. This service of documents is a fundamental step in officially notifying the defendant of the legal proceedings against them.

2. Filing a Complaint:

Alternatively, a civil action can also be commenced by directly filing a complaint with the court. This formal submission of the complaint initiates the legal process and sets the case in motion.

See CR 3*.

Timely Response and Filing Fee Requirement

Upon commencing the action, there are specific timelines and requirements that parties must adhere to:

Written Demand for Filing:

If any other party in the case makes a written demand, the plaintiff instituting the action must pay the filing fee and file the summons and complaint within 14 days after service of the demand. Failure to do so renders the service void.

Effect on Statute of Limitations:

It’s important to note that an action is not considered commenced for the purpose of tolling any statute of limitations unless specified otherwise in RCW 4.16.170*. This statute outlines exceptions where the commencement of an action may affect the timeline within which legal actions can be pursued.

Ensuring Legal Compliance and Timely Action

Complying with the rules regarding commencement of civil actions is crucial for all parties involved. It ensures that legal proceedings are initiated in a timely and legally valid manner, preventing potential disputes or challenges regarding the validity of service or commencement.

Conclusion

Initiating a civil action in Washington State involves careful adherence to procedural rules regarding service, filing, and responding to demands. Understanding these rules and timelines is essential for legal practitioners and parties involved in civil litigation, ensuring a smooth and legally compliant commencement of the legal process.

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*NOTE: Links with a single asterisk (*) will take the reader away from our website to an external governmental website.

Read Our Related Articles

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

» Employment Law 101: Statute of Limitations

» Employment Law 101: The Complaint

» Employment Law 101: The Defendant

» Employment Law 101: The Summons

» Tolling and Commencement Are Reconcilable (WA State)**

» WLAD Statute of Limitations

» WLAD Statute of Limitations: Equitable Tolling

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**NOTE: The link will take the reader to our Williams Law Group Blog – an external website.

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–gw

March 21, 2024October 21, 2024

Employment Law 101: Affirmative Defense

Under Washington State laws, what is an “affirmative defense” within the context of civil litigation? Here’s my point of view.

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Definition of Affirmative Defense

In civil litigation under Washington State laws, the concept of affirmative defense plays a crucial role in legal proceedings. An affirmative defense is a legal argument or justification presented by the defendant in response to a plaintiff‘s claim. Unlike a denial or a simple assertion that the plaintiff’s allegations are false, an affirmative defense asserts new facts or legal theories that, if proven, would defeat or mitigate the plaintiff’s claims.

examples

One common example of an affirmative defense is the statute of limitations. This defense asserts that even if the plaintiff’s allegations are true, the claim is barred because it was not brought within the time period specified by law. Other affirmative defenses may include, but are not limited to failure to mitigate damages, assumption of risk, contributory negligence, and duress, among others.

TIMING

In Washington State, it is essential for defendants to raise affirmative defenses promptly during litigation according to court rules. A defendant’s failure to timely do so can lead to the affirmative defense being forfeited and rendered unusable in subsequent stages of the litigation process.

burden of proof

It’s important to note that the burden of proof for an affirmative defense usually falls on the defendant. This means that the defendant must present evidence and convince the court that the affirmative defense applies to the case and should result in a favorable outcome for the defendant.

Conclusion

In summary, an affirmative defense in Washington State civil litigation is a legal argument or justification presented by the defendant to defeat or mitigate the plaintiff’s claims. It introduces new facts or legal theories that, if proven, can provide a legal basis for the defendant’s position in the case. Understanding affirmative defenses is essential for both plaintiffs and defendants in navigating the complexities of civil litigation in Washington State.

READ OUR RELATED ARTICLES

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

» Affirmative and Negative Defenses

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» Employment Law 101: The Plaintiff

LEARN MORE

–gw

March 14, 2024October 21, 2024

The Virtual Law Office (WA State)

Under Washington State laws, rules, and regulations, what is a virtual law office? Here’s my point of view.

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THE VIRTUAL LAW OFFICE (WA STATE)

The Washington State Bar Association (WSBA) recently released an Advisory Opinion concerning the “Ethical Practices of the Virtual or Hybrid Law Office.” Therein, WSBA determined, as follows:

Many lawyers are choosing to do some or all their work remotely, from home or other remote locations. Advances in the reliability and accessibility of on-line resources, cloud computing, video conferencing, and email services have allowed the development of the virtual law office, by which the lawyer does not maintain a physical office. The COVID-19 pandemic accelerated this trend, causing many lawyers to work remotely (virtually), or to split their time between a traditional office and a remote office (a hybrid office)….

Although this modern business model may appear radically different from the traditional brick and mortar law office model, the underlying principles of an ethical law practice remain the same. The core duties of diligence, loyalty, and confidentiality apply whether the office is virtual or physical. For the most part, the Rules of Professional Conduct (RPC) apply no differently in the virtual office context. However, there are areas that raise special considerations in the virtual law office.

WSBA Advisory Opinion 201601 (2022) (internal citation omitted) (emphasis added).

Must in-state attorneys have a physical office address?

In its advisory opinion, the WSBA also addressed whether in-state attorneys are required to have a physical office address by evaluating both its bylaws and Admission to Practice Rules, as follows:

[WSBA BYLAWS]

There is no requirement that WSBA members have a physical office address. Section III(C)(1) of the Bylaws of the Washington State Bar Association (WSBA) requires that each member furnish both a “physical residence address” and a “principal office address.” The physical residential address is used to determine the member’s district for Board of Governors elections. The Bylaws do not require that a principal office address be a physical address….

[WSBA ADMISSION TO PRACTICE RULES]

Similarly, Admission and Practice Rule (APR) 13(b) requires a lawyer to advise the WSBA of a “current mailing address” and to update that address within 10 days of any change. Nothing in that rule indicates the mailing address must be a physical address.

WSBA Advisory Opinion 201601 (emphasis, and hyperlinks added). Thus, the WSBA and its relevant Advisory Opinion do not require attorneys to have a physical office address.

Conclusion

In conclusion, the landscape of legal practice in Washington State has seen a significant evolution with the emergence of virtual law offices, a trend accelerated by the COVID-19 pandemic. The recent Advisory Opinion by the Washington State Bar Association (WSBA) underscores that while the setting may differ from traditional brick-and-mortar establishments, the fundamental ethical principles governing legal practice remain unwavering. Despite the absence of a physical office, attorneys must adhere to core duties of diligence, loyalty, and confidentiality, as outlined in the Rules of Professional Conduct (RPC).

Importantly, the opinion clarifies that in-state attorneys are not mandated to maintain a physical office address, as confirmed by both WSBA Bylaws and Admission to Practice Rules. This recognition signals a progressive shift in the legal profession, accommodating modern realities without compromising ethical standards. As attorneys continue to embrace virtual or hybrid models, this guidance provides clarity and assurance, ensuring a seamless integration of technology and tradition in the pursuit of justice and legal excellence.

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February 22, 2024October 21, 2024

Are Compensatory Damages Available Under the WLAD?

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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Are Compensatory Damages Available Under the WLAD?

answer:

Actual damages are available under the WLAD pursuant to RCW 49.60.030(2) and are synonymous with compensatory damages; thus, compensatory damages are available under the WLAD.

The Washington Law Against Discrimination (WLAD)

The WLAD is a potent statute enacted in 1949, and it covers a broad array of categories, including the following:

Freedom from discrimination—Declaration of civil rights.

(1) The right to be free from discrimination because of race, creed, color, national origin, citizenship or immigration status, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(a) The right to obtain and hold employment without discrimination;

(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;

(c) The right to engage in real estate transactions without discrimination, including discrimination against families with children;

(d) The right to engage in credit transactions without discrimination;

(e) The right to engage in insurance transactions or transactions with health maintenance organizations without discrimination: PROVIDED, That a practice which is not unlawful under RCW 48.30.300, 48.44.220, or 48.46.370 does not constitute an unfair practice for the purposes of this subparagraph;

(f) The right to engage in commerce free from any discriminatory boycotts or blacklists … ; and

(g) The right of a mother to breastfeed her child in any place of public resort, accommodation, assemblage, or amusement.

RCW 49.60.030(1) (emphasis, paragraph formatting, and hyperlinks added). The WLAD offers a wide array of remedies for violations, including but not limited to compensation for actual damages.

WLAD Remedies

“[T]he [Washington] law against discrimination … expressly provides [remedies, as follows]:

Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964….”

Martini v. The Boeing Company, 137 Wn.2d 357, 366-67 (Wash. 1999) (citing RCW 49.60.030(2)) (emphasis added). NOTE: RCW 49.60.030(2) “unambiguously states that when any violation of the statute occurs, the person injured shall have a claim for ‘actual damages.'” Martini, 137 Wn.2d at 367.

Actual Damages

“‘Actual damages’ is a [t]erm used to denote the type of damage award as well as the nature of injury for which recovery is allowed; thus, actual damages flowing from injury in fact are to be distinguished from damages which are nominal, exemplary or punitive**.” Id. (citing Rasor v. Retail Credit Co., 87 Wash.2d 516, 554 P.2d 1041, 1049).

“‘Actual damages’ are synonymous with compensatory damages.” Id. (citing Black’s Law Dictionary 35 (6th ed.1990)) (emphasis added). “As the dictionary definition notes, Washington courts have interpreted the term ‘actual damages’ in this manner.” Id. at 367-68 (internal citations omitted).

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**NOTE: This link will take you to our Williams Law Group Blog, an external website.

Compensatory Damages

“Compensatory damages are “[d]amages sufficient in amount to indemnify the injured person for the loss suffered — Often shortened to compensatories.” Black’s Law Dictionary 416 (Deluxe Eighth Edition 2004) (emphasis added). “Indemnify” means “[to] reimburse (another) for a loss suffered because of a third party’s or one’s own act or default.” Id. at 783-84.

Conclusion

Actual damages are available under the WLAD pursuant to RCW 49.60.030(2) and are synonymous with compensatory damages; thus, compensatory damages are available under the WLAD.

READ OUR RELATED ARTICLES

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

» Employment Law 101: Remedies

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» Significant Differences Between Title VII & WLAD Backpay Provisions**

» WLAD Magic: Front & Back Pay Without Proving Unlawful Discharge**

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**NOTE: This link will take you to our Williams Law Group Blog, an external website.

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February 15, 2024October 21, 2024

The Campbell & Gwinn Framework

Under Washington State canons of statutory construction, what is the Campbell & Gwinn Framework? Here’s my point of view.

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**CANONS OF CONSTRUCTION: THE CAMPBELL & GWINN FRAMEWORK**

A canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added).

NOTE: “A frequent criticism of the canons [of construction], made forcefully by Professor Llewellyn many years ago, is that for every canon one might bring to bear on a point there is an equal and opposite canon. This is an exaggeration; but what is true is that there is a canon to support every possible result.” Id. (citing Richard A. Posner, The Federal Courts: Crisis and Reform 276 (1985)) (internal quotation marks omitted).

Ambiguous Statutes (WA State)

Washington State courts use the Campbell & Gwinn Framework to inquire whether a statute is ambiguous. See Magney v. Pham, 195 Wash.2d 795, 803, 805, 466 P.3d 1077 (Wash. 2020).

**The Campbell & Gwinn Framework**

Courts apply the Campbell & Gwinn Framework as follows:

(1) DETERMINE the legislative intent OF the STATUTE

When a Washington State court construes “a statute, … [its] goal is to determine and effectuate legislative intent.” Magney, 195 Wash.2d at 803, 466 P.3d 1077 (citing Swinomish Indian Tribal Cmty. v. Dep’t of Ecology, 178 Wash.2d 571, 581, 311 P.3d 6 (2013); Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002)) (internal citations omitted) (emphasis added).

(2) EVALUATE the plain and unambiguous language OF the STATUTE

The court will “start with the plain and unambiguous language of a statute.” Id. (citing Campbell & Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4).

(3) if the statute’s meaning is plain on its face, then the court must give effect to that plain meaning

“[I]f the statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.” Id. (citing Campbell & Gwinn, 146 Wash.2d at 9-10, 43 P.3d 4) (alteration in original). “[T]he plain meaning is … derived from what the Legislature has said in its enactments, but that meaning is discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Id (citing Campbell & Gwinn, 146 Wash.2d at 11, 43 P.3d 4) (alteration in original).

(4) if the statute is ambiguous, then it is appropriate for the court to resort to aids to construction

“[I]f, after this inquiry, the statute remains susceptible to more than one reasonable meaning, the statute is ambiguous and it is appropriate to resort to aids to construction, including legislative history.” Id. (citing Campbell & Gwinn, 146 Wash.2d at 12, 43 P.3d 4) (alteration in original).

Conclusion

Washington State courts use Campbell & Gwinn Framework to inquire whether a statute is ambiguous. If the interpretation of the statute is clear at first glance, the court is obligated to uphold that straightforward interpretation as reflective of the legislature’s intent. Alternatively, if the statute is determined to be ambiguous–meaning, “susceptible to more than one reasonable meaning”–then it is appropriate for the court to resort to aids to construction, including legislative history. See id.

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February 8, 2024October 21, 2024

How Courts Construe Legal Privileges (WA State)

Under Washington State laws, how do courts construe legal privileges? Here’s my point of view.

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HOW COURTS CONSTRUE LEGAL PRIVILEGES (WA STATE)

Generally, a “privilege” is “[a] special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty. [ ] A privilege grants someone the legal freedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability.” Black’s Law Dictionary 1234 (8th ed. 2004).

In Washington State, “[t]here are two types of privileges: common law privileges and statutory privileges. See Magney v. Pham, 195 Wash.2d 795, 802, 466 P.3d 1077 (Wash. 2020).

COMMON LAW PRIVILEGES: courts have more latitude to interpret

“Common law privileges, such as the attorney-client privilege, are those privileges whose codifications are ‘merely declaratory of the common law.'” Id., 466 P.3d 1077 (citing State v. Emmanuel, 42 Wash.2d 799, 815, 259 P.2d 845 (1953)) (emphasis added).

“The court has more latitude to interpret common law privileges.” Id., 466 P.3d 1077 (citing Emmanuel, 42 Wash.2d at 815, 259 P.2d 845 (although not specified in the statute codifying the attorney-client privilege, we held that “[t]he same privilege accorded the attorney is extended to the client under the common-law rule (citing State v. Ingels, 4 Wash.2d 676, 104 P.2d 944 (1940))).

STATUTORY PRIVILEGES: courts strictly construe

“In contrast, when a privilege is created by statute and thus is not a privilege found within the common law, it is considered to be in derogation of—that is, an exemption from—the common law, and the statute must be strictly construed.” Id., 466 P.3d 1077 (citing Petersen v. State, 100 Wash.2d 421, 429, 671 P.2d 230 (1983) (psychologist-client privilege is created by statute in derogation of the common law and must be strictly construed); Carson v. Fine, 123 Wash.2d 206, 212-13, 867 P.2d 610 (1994) (physician-patient privilege is created by statute and is strictly construed (citing Dep’t of Soc. & Health Servs. v. Latta, 92 Wash.2d 812, 819, 601 P.2d 520 (1979))) (parenthetical emphasis added).

“Unlike the attorney-client privilege, the marital counseling privilege is [also] created by statute and must be strictly construed by interpreting the specific words in the statute that the legislature has codified.” Id. at 802-03 (citing Petersen, 100 Wash.2d at 429, 671 P.2d 230).

CONCLUSION

In Washington State, there are common-law privileges and statutory privileges. Common-law privileges such as the attorney-client privilege are “declaratory of the common law,” and courts have more freedom to construe them. Whereas statutory privileges such a the psychologist-client privilege, physician-patient privilege, and marital-counseling privilege are considered to be an “exemption from the common law,” and courts must strictly construe them.

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February 1, 2024October 21, 2024

The Implied Cause of Action Rule

Under Washington State laws, what is the Implied Cause of Action Rule? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

(IMPORTANT: This article is for entertainment 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 IMPLIED CAUSE OF ACTION RULE: WA STATE

Washington State courts may apply the Implied Cause of Action Rule to Washington State statutes that create a right on the part of individuals but do not indicate explicitly an intent to create a remedy. See Bennett v. Hardy, 113 Wn.2d 912, 921, 784 P.2d 1258, (1990).

a judicial canon of construction

Accordingly, the Implied Cause of Action Rule is a judicial canon directing that “when a statute … [has] provided a right of recovery, it is incumbent upon the court to devise a remedy. 2A C. Sands, Sutherland’s Statutes and Statutory Construction § 55.03 (4th ed. 1973).” Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (citing State v. Manuel, 94 Wash.2d 695, 699, 619 P.2d 977 (1980); see also Krystad v. Lau, 65 Wash.2d 827, 846, 400 P.2d 72 (1965) (implying a right of action under the state’s labor relations act for an employee who claimed that his employer, in violation of the statute, had interfered with the employee’s labor activities); State ex rel. Phillips v. State Liquor Control Bd., 59 Wash.2d 565, 570, 369 P.2d 844 (1962) (“[c]ourts have consistently held that when a statute gives a new right and no specific remedy, the common law will provide a remedy”)) (alteration in original) (emphasis added) (internal quotation marks omitted).

This judicial canon has its roots in federal law as well as the Restatement of Torts.

NOTE: A judicial canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added). “A frequent criticism of the canons [of construction], made forcefully by Professor Llewellyn many years ago, is that for every canon one might bring to bear on a point there is an equal and opposite canon. This is an exaggeration; but what is true is that there is a canon to support every possible result.” Id. (citing Richard A. Posner, The Federal Courts: Crisis and Reform 276 (1985)) (internal quotation marks omitted).

Federal Law

“The federal courts also recognize an implied cause of action under a statute which provides protection to a specified class of persons but creates no remedy.” Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (referencing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); In re WPPSS Sec. Litig., 823 F.2d 1349 (9th Cir.1987)).

THE RESTATEMENT OF TORTS

The Washington State Supreme Court has found that “The Restatement of Torts recognizes the implied right of action [as well]:

When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (citing Restatement (Second) of Torts § 874A (1979)) (emphasis added).

THE ELEMENTS

Washington courts have borrowed “from the test used by federal courts in determining whether to imply a cause of action.” Id. Accordingly, the Washington State Implied Right of Action Rule requires that the following issues be answered in the affirmative:

(1) whether the plaintiff is within the class for whose “especial” benefit the statute was enacted;

(2) whether legislative intent, explicitly or implicitly, supports creating or denying a remedy;

(3) whether implying a remedy is consistent with the underlying purpose of the legislation.

Id. at 920-21 (internal citations omitted) (emphasis added).

the assumptions

Lastly, the court may make two important assumptions under the Implied Right of Action Rule:

(1) “[t]he [Washington State Legislature] is aware of the doctrine of implied statutory causes of action [when it drafts legislation;] and

[(2) the court can] also assume that the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights.”

See id. at 919-20 (paragraph formatting added).

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January 25, 2024October 21, 2024

Employment Law 101: Protected Classes

Under Washington State laws, what are “protected classes” within the context of employment discrimination? Here’s my point of view.

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INTRODUCTION: PROTECTED CLASSES (WA STATE)

Washington State has comprehensive employment-discrimination laws to shield workers from unjust treatment rooted in specific attributes. An integral facet of these legal provisions is the acknowledgment of “protected classes.” This article will enumerate the protected classes within the employment-rights framework of the Washington Law Against Discrimination.

I. The Washington Law Against Discrimination: EMPLOYMENT

The Washington Law Against Discrimination (“WLAD“) is a potent statute enacted in 1949, and it covers a broad array of categories including, but not limited to employment, as follows:

Freedom from discrimination—Declaration of civil rights.

(a) The right to obtain and hold employment without discrimination;

…

RCW 49.60.030(1)(a) (emphasis, paragraph formatting, and hyperlinks added). The WLAD protects, inter alia, employees from the unfair practices of employers.

II. Unfair Practices of Employers: generally

Under the WLAD, certain employers are prohibited from engaging in specific unfair practices in employment. The relevant law states as follows:

It is an unfair practice for any employer:

[Refuse To Hire]

(1) To refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification: PROVIDED, That the prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved: PROVIDED, That this section shall not be construed to require an employer to establish employment goals or quotas based on sexual orientation.

[Discharge or Bar From Employment]

(2) To discharge or bar any person from employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

[Discriminate in Compensation or in Other Terms/Conditions of Employment]

(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on the sex of employees where the commission by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

[Statements, Advertisements, Publications, Applications for Employment, Inquiries in Connection With Prospective Employment]

(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: PROVIDED, Nothing contained herein shall prohibit advertising in a foreign language.

RCW 49.60.180 (emphasis and hyperlinks added).

III. unfair practices of employers: filing or participating in a disrimination complaint (UNLAWFUL RETALIATION)

The WLAD also outlaws certain types of retaliation: “[i]t is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by … [the Washington Law Against Discrimination], or because he or she has filed a charge, testified, or assisted in any proceeding under … [the Washington Law Against Discrimination].” RCW 49.60.210. Moreover, “[i]t is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.” RCW 49.60.210.

NOTE: The foregoing unfair practices are based upon specific protected classes.

IV. Defining Protected Classes

Protected classes encompass groups of individuals shielded from discrimination under governmental statutes. Washington State explicitly delineates these classes under the WLAD, recognizing various categories within, inter alia, the realm of employment, including the following:

→ Age (40+)
→ Citizenship/Immigration Status
→ Creed;
→ Filing or Participating in an Employment Discrimination Complaint
→ HIV or Hepatitis C Status;
→ Honorably Discharged Veteran or Military Status;
→ Marital Status;
→ National Origin;
→ Presence of any sensory, mental, or physical Actual Disability or Perceived Disability;
→ Race / Color;
→ Sex (including pregnancy);
→ Sexual Orientation, including Gender Identity;
→ State-Employee or Health-Care Whistleblower Status;
→ Use of a Trained Dog Guide or Service Animal.

v. WLAD remedies

Victims of discrimination in violation of the WLAD may seek generous remedies. “Any person deeming himself or herself injured by any act in violation of … [the Washington Law Against Discrimination] shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).” RCW 49.60.030(2).

Conclusion

In conclusion, the exploration of protected classes within Washington State’s employment discrimination laws highlights the state’s commitment to fostering a workplace environment rooted in equality and fairness. The Washington Law Against Discrimination (WLAD), a robust statute enacted in 1949, serves as a powerful safeguard against unjust treatment based on specific attributes.

In essence, the WLAD stands as a cornerstone in Washington State’s pursuit of equal opportunities, reinforcing the principles of fairness, justice, and non-discrimination in employment. As we navigate the complexities of the modern workplace, understanding and upholding the rights of protected classes are crucial steps towards creating a truly inclusive and equitable work environment in the Evergreen State.

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–gw

January 18, 2024October 21, 2024

Canon: Expressio Unius Est Exclusio Alterius

Under Washington State canons of statutory construction, what is the canon expressio unius est exclusio alterius? Here’s my point of view.

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CANONS OF CONSTRUCTION

A canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added).

The Canon Expressio Unius Est Exclusio Alterius

According to the canon expressio unius est exclusio alterius:

[W]here a statute specifically designates the things or classes of things upon which it operates, an inference arises in law that all things or classes of things omitted from it were intentionally omitted by the legislature.

Magney v. Pham, 195 Wash.2d 795, 803, 466 P.3d 1077 (Wash. 2020) (citing Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish County, 77 Wash.2d 94, 98, 459 P.2d 633 (1969)).

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January 4, 2024October 21, 2024

Employment Law 101: Requests for Admission

Under Washington State laws, what are “Requests for Admission” within the context of civil litigation? Here’s my point of view.

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INTRODUCTION: REQUESTS FOR ADMISSION (CIVIL LITIGATION)

Within the context of Washington State civil litigation, Requests for Admission (RFAs) play an important role in the pre-trial discovery process. This formal procedure allows parties involved in a lawsuit to narrow down the issues and facts that are genuinely in dispute. In this blog post, I discuss Requests for Admission, exploring their purpose and significance in the litigation process.

I. Definition and Purpose of Requests for Admission

Requests for Admission involve the creation of written statements by one party, which are then served on any other party within the pending action. These statements seek admissions or denials regarding particular facts or the authenticity of specific documents pertinent to the case. In contrast to alternative discovery methods, Requests for Admission specifically aim to refine and narrow down the issues in dispute, fostering increased efficiency in the legal proceedings.

The primary purposes of Requests for Admission in Washington State include:

1. Issue Framing:

RFAs help define and clarify the key issues that are genuinely in dispute between the parties. By stipulating certain facts, the parties can streamline the litigation process and avoid unnecessary disputes over uncontested matters.

2. Cost and Time Efficiency:

By admitting facts that are not in dispute, the parties can reduce the scope of the trial, thereby saving time and litigation costs. This promotes a more expeditious resolution of the case.

II. Significance in Litigation Strategy

Requests for Admission can significantly impact the overall litigation strategy. Properly executed RFAs can:

1. Narrow Down Issues:

By compelling the opposing party to admit certain facts, RFAs can help narrow down the issues in dispute, making the trial more focused and efficient.

2. Evidentiary Value:

Admissions made through RFAs can be used as evidence at trial. This can simplify the presentation of evidence and contribute to a more straightforward case presentation.

3. Cost Savings:

Streamlining the issues at an early stage through RFAs can lead to cost savings for both parties by minimizing the time and resources required for trial preparation.

Conclusion

Requests for Admission serve as a powerful tool in the toolkit of litigators in Washington State. When utilized effectively, RFAs can contribute to a more streamlined and cost-effective litigation process, ultimately facilitating the swift resolution of disputes. Understanding the procedural aspects and strategic implications of Requests for Admission is essential for legal professionals navigating the complex landscape of civil litigation in Washington State.

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» Employment Law 101: Depositions

» Employment Law 101: Discovery (WA State)

» Employment Law 101: Interrogatories

» Employment Law 101: Requests for Production

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December 28, 2023October 21, 2024

Employment Law 101: Requests for Production

Under Washington State laws, what are “requests for production” within the context of civil litigation? Here’s my point of view.

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INTRODUCTION: REQUESTS FOR PRODUCTION

In the context of Washington State civil litigation, effective discovery processes play a crucial role in ensuring a fair and transparent legal system. One essential component of the discovery phase is the “request for production.” This legal mechanism serves as a powerful tool for parties involved in civil litigation, allowing them to obtain relevant documents and information from the opposing party. In this blog post, I explain the request for production within the context of Washington State civil-litigation law.

Definition and Purpose

A request for production is a formal legal request made by one party to another, seeking the production of documents, electronically stored information, and things; or entry onto land for inspection and other purposes. Generally, the requested production must be relevant to the pending litigation. This process is governed by the Washington State civil rules (and associated local court rules), which outline the procedures and guidelines for civil cases within the state.

The primary purpose of a request for production is to facilitate the exchange of information between parties, ensuring that each side has access to the necessary evidence to build and present their case. This mechanism promotes transparency, fairness, and the efficient resolution of legal disputes.

Key Components of a Request for Production

Specificity and Relevance:

• Requests must be specific and clearly state the documents or items being sought.

• Generally, the requested items must be relevant to the issues in the case.

Timing and Procedure:

• Requests for production are typically made after the initial pleadings but before trial.

• Parties must adhere to the timelines and procedures outlined in the Washington State civil rules (and associated local court rules).

Format and Delivery:

• Requests must be in writing and served on the opposing party.

• The requesting party must “specify a reasonable time, place, and manner of making the production and performing the related acts[.]” See CR 34(b)(2)(B).

Objections and Responses:

• The party responding to the request is entitled to raise objections. It is imperative that objections be voiced promptly, and the corresponding responses must be furnished within the specified time constraints.

Privilege and Confidentiality:

• Generally, the requesting party cannot demand the production of documents protected by attorney-client privilege or other recognized privileges.

• The responding party may redact or withhold certain information based on privilege or confidentiality.

Consequences of Non-Compliance

Failure to comply with a valid request for production can have serious consequences. The court may impose sanctions, including monetary penalties or adverse inferences against the non-compliant party. Therefore, parties should approach the request for production process with diligence and in full accordance with the established legal framework.

Conclusion

Requests for production are a fundamental element in the Washington State civil-litigation, discovery process. Ensuring compliance with the Washington rules of civil procedure enables parties to establish an equitable exchange of information, fostering an environment of fairness and ultimately supporting the equitable resolution of legal conflicts. Given the intricacies involved in requests for production and other discovery mechanisms, parties are encouraged to seek the counsel of seasoned legal professionals for effective navigation of the legal processes.

READ OUR RELATED ARTICLES

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» Employment Law 101: Depositions

» Employment Law 101: Discovery (WA State)

» Employment Law 101: Interrogatories

» Employment Law 101: Requests for Admission

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–gw

December 21, 2023October 21, 2024

Employment Law 101: Interrogatories

Under Washington State laws, what are “interrogatories” within the context of civil legal proceedings? Here’s my point of view.

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Introduction: Interrogatories (WA State)

Within the context of legal proceedings, the effective utilization of discovery tools is essential for building a strong case. The interrogatory is a discovery tool that plays a substantial role in shaping the pre-trial phase. This article will address the purpose, scope, and essential guidelines of interrogatories.

What Are Interrogatories?

Interrogatories function as a written discovery technique that involves one party creating a set of questions for the opposing side in a legal dispute. The main goal is to elicit specific information essential to the case, assisting both parties in gathering facts, defining issues, and developing a well-grounded legal strategy. Unlike other discovery methods like requests for production of documents or requests for admission, interrogatories specifically focus on obtaining information through written responses.

Purpose and Scope in Washington State Law

In Washington State, interrogatories serve several essential purposes in civil litigation:

Fact Gathering

Interrogatories allow parties to obtain detailed information about the facts surrounding the case. This can include details about the opposing party’s claims, defenses, and the evidence they intend to present.

Issue Clarification

Interrogatories help to define and clarify the legal and factual issues in dispute. By asking targeted questions, parties can narrow down the focus of the case and streamline subsequent legal proceedings.

Preventing Surprises at Trial

Through the exchange of interrogatories, parties can reduce the element of surprise at trial. This promotes fair and transparent proceedings, giving each side an opportunity to understand the other’s position thoroughly.

Witness Identification

Interrogatories often include questions about potential witnesses, helping parties identify and locate individuals with relevant information. This aids in the preparation of witness lists and deposition schedules.

Key Guidelines for Interrogatories in Washington State

To maximize the effectiveness of interrogatories in Washington State, parties must adhere to specific guidelines:

Timeliness

Interrogatories must be served within the stipulated timeframes established by the Washington Civil Rules. Non-compliance may result in objections or the exclusion of sought-after information.

Relevance

Generally, questions posed in interrogatories may include “any matter, not privileged, which is relevant to the subject matter involved in the pending action.” See CR 26. Parties have the right to object to overly broad, unduly burdensome, or privileged information-seeking questions.

Format and Style

Clear, concise, and easily comprehensible questions are essential. Ambiguous or convoluted inquiries may lead to objections, potentially causing delays in the discovery process.

Comprehensive Responses

Responding parties are obligated to furnish complete and truthful answers. Failure to do so may result in sanctions, including adverse inferences or the exclusion of evidence.

CONCLUSION

Within the context of Washington State civil litigation, interrogatories are an indispensable discovery tool. They enable parties to improve their capacity for collecting crucial information, clarifying legal issues, and constructing a persuasive case. Adhering to the guidelines set forth by Washington State law ensures that the discovery process maintains fairness and transparency within adversarial legal proceedings. Given the intricacies involved in interrogatories and other discovery mechanisms, parties are encouraged to seek the counsel of seasoned legal professionals for effective navigation of the legal processes.

Read Our Related Articles

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» Employment Law 101: Depositions

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» Employment Law 101: Requests for Production

» Employment Law 101: Requests for Admission

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December 7, 2023October 21, 2024

Unlawful Retaliation and the Prospective Employer

Under the Washington Law Against Discrimination’s antiretaliation provision, RCW 49.60.210, is there a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer? Here’s my point of view.

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WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)

Under the Washington Law Against Discrimination (WLAD), it is an unfair practice, with very few exceptions, for an employer to refuse to hire any person, to discharge or bar any person from employment, or to discriminate against any person in compensation or in other terms and conditions of employment because of age (40+); sex (including pregnancy); marital status; sexual orientation (including gender identity); race; color; creed; national origin; citizenship or immigration status; honorably discharged veteran or military status; HIV/AIDS and hepatitis C status; the presence of any sensory, mental, or physical disability; the use of a trained dog guide or service animal by a person with a disability; and state employee or health care whistleblower status*.

It is also an unfair practice for an employer to retaliate against an employee because the employee complained about job discrimination or assisted with a job discrimination investigation or lawsuit.

(*NOTE: The link will take the reader directly to our Williams Law Group Blog.)

WLAD ANTIRETALIATION PROVISION

The relevant WLAD antiretaliation provision is as follows:

Unfair practices—Discrimination against person opposing unfair practice—Retaliation against whistleblower.

(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

RCW 49.60.210(1) (emphasis added). The term “employer” is vague.

WLAD DEFINITION OF EMPLOYER

The WLAD definition of the term “employer” is found under RCW 49.60.040(11) and states as follows:

(11) “Employer” includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.

Id. The issue is whether this definition also applies to prospective employers. In other words, does the WLAD prohibit retaliatory discrimination by prospective employers against job applicants? The Washington State Supreme Court addressed this issue in Certification From the U.S. District Court for the Eastern District of WA in Jin Zhu v. North Central Educational Service District-ESD 171, 404 P.3d 504 (Wash. 2017) .

CERTIFICATION FROM U.S. DISTRICT COURT FOR EASTERN DIST. OF WA in JIN ZHU v. NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT–ESD 171

In Cert. From U.S. District Court for Eastern Dist. of WA in Jin Zhu v. North Central Educational Service District-ESD 171, the plaintiff (Zhu) was a job applicant who claimed that “a prospective employer refused to hire [him] in retaliation for prior opposition to discrimination against a different employer[.]” See id. at 506. Zhu subsequently filed suit against the prospective employer in federal district court alleging, inter alia, that it violated WLAD’s antiretaliation statute, RCW 49.60.210(1).

Plaintiff Zhu ultimately “prevailed on his WLAD antiretaliation claim and was awarded damages.” Id. at 507. The defendant (ESD 171) then filed a motion asking, inter alia, “that the district court certify to . . . [the Washington State Supreme Court] the question of RCW 49.60.210(1)’s scope.” Id. (hyperlink added). Accordingly, “the district court granted the motion in part and certified the following question regarding the scope of RCW 49.60.210(1) to . . . [the Washington State Supreme Court]:”

Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?

Zhu, 404 P.3d at 507 (internal quotation marks omitted) (hyperlink added).

(*NOTE: The link will take the reader directly to our Washington Employment Law Digest Blog.)

DEFINITION OF EMPLOYER NOT LIMITED TO CURRENT EMPLOYER

The Washington State Supreme Court answered the certified question in Zhu affirmatively and addressed the plain language and scope of WLAD’s antiretaliation provision, WLAD’s definition of employer, and the policy of WLAD.

The Court ultimately held that “[i]n accordance with the plain language of the Washington Law Against Discrimination, Chapter 49.60 RCW, retaliatory discrimination against job applicants by prospective employers is prohibited by RCW 49.60.210(1)”; therefore, Zhu stated a valid cause of action based on his claim of unlawful retaliation. See Zhu, 404 P.3d at 506 (hyperlinks added).

During its analysis, the Court also expounded on WLAD’s definition of the term “employer” as follows:

[The WLAD definition of employer (RCW 49.60.040(11))] clearly includes prospective employers, and nothing about the statutory context indicates that ‘any employer’ means something different for purposes of the antiretaliation statute than it does for the purposes of the rest of WLAD.

Zhu, 404 P.3d at 509 (emphasis and hyperlink added).

CONCLUSION

Under the Washington Law Against Discrimination’s antiretaliation provision, RCW 49.60.210, there is a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer.

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

Adverse Employment Actions: A Closer Look

Definition of Prima Facie Case*

The McDonnell Douglas Burden Shifting Framework*

The Prima Facie Case: Unlawful Retaliation

Top 3 Reasons Unlawful Retaliation Claims Fail

Top 3 Causation Standards: Unlawful Retaliation

Unlawful Retaliation: Adverse Employment Action

Unlawful Retaliation: The Actual-Knowledge Standard

Unlawful Retaliation: The Causal Link

Unlawful Retaliation: The Functionally-Similar Test

Unlawful Retaliation: Statutorily Protected Activity

*NOTE: The link will take the reader to our Williams Law Group Blog – an external website.

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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.

December 7, 2023October 21, 2024

Employment Law 101: Mediation

Under Washington State laws, what is “mediation” within the context of civil legal proceedings? Here’s my point of view.

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Introduction: Mediation

In the context of civil legal proceedings, resolving disputes can be a complex and time-consuming endeavor. Traditional litigation often involves adversarial processes that may strain relationships and escalate conflicts. Mediation, however, offers an alternative approach that focuses on collaboration and resolution rather than confrontation. In this article, we will explore what mediation is within the context of legal proceedings, its principles, and how it can be a valuable tool for achieving mutually acceptable outcomes.

What is Mediation?

Mediation serves as a type of alternative dispute resolution (ADR), employing a neutral third party, referred to as the mediator, to facilitate communication and negotiation among conflicting parties. In contrast to the role of a judge or arbitrator, who makes binding decisions, a mediator aids disputing parties in achieving a voluntary agreement. The mediator typically refrains from advocating for a specific outcome but instead guides the process, emphasizing fairness and equity in the pursuit of resolution.

Key Principles of Mediation

1. Voluntary Participation:

Mediation is a voluntary process, and all parties must agree to participate. This voluntary aspect empowers participants and fosters a sense of ownership over the resolution.

2. Confidentiality:

Confidentiality is a cornerstone of mediation. Parties can openly discuss their concerns, share information, and explore potential solutions without fear that their statements will be used against them in future legal proceedings.

3. Impartiality:

The mediator remains neutral and impartial throughout the process. They do not take sides or express personal opinions, ensuring that the focus remains on the needs and interests of the parties involved.

4. Informality:

Mediation is typically less formal than courtroom proceedings. This informality encourages open communication and allows for creative problem-solving, unencumbered by rigid legal procedures.

5. Mutual Agreement:

The goal of mediation is to reach a mutually acceptable agreement. This emphasis on collaboration distinguishes mediation from adversarial processes, promoting a sense of fairness and cooperation.

How Mediation Works

1. Opening Statements:

The mediator begins by explaining the process and setting ground rules. Typically, each party then has an opportunity to make an opening statement, outlining their perspective on the dispute. NOTE: Prior to the mediation date, the mediator might prompt the parties to each provide a written position statement–that conforms to the mediator’s requirements–for use at mediation.

2. Joint and Private Sessions:

The mediator may conduct joint sessions where both parties are present, as well as private sessions with each party individually. This allows for open communication and confidential discussions.

3. Identifying Issues and Interests:

Through guided discussions, the mediator helps the parties identify the underlying issues and interests driving the conflict. Understanding these factors is crucial for finding common ground.

4. Generating Options:

The parties, with the mediator’s assistance, explore various options for resolution. This phase encourages creativity and flexibility in finding solutions that meet the needs of all involved.

5. Reaching Agreement:

Once the parties agree on a resolution, the terms are formalized into a written agreement. This agreement is not legally binding until both parties voluntarily sign it.

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Benefits of Mediation

1. Time and Cost Efficiency:

Mediation often concludes more swiftly and at a lower cost than traditional litigation, making it an attractive option for resolving disputes efficiently.

2. Preservation of Relationships:

Unlike adversarial processes that can strain relationships, mediation fosters communication and collaboration, preserving or even improving relationships between parties.

3. Empowerment and Control:

Participants have greater control over the outcome in mediation, as they actively participate in crafting the resolution, leading to a more satisfying and sustainable agreement.

4. Confidentiality and Privacy:

The confidential nature of mediation provides a safe space for parties to openly discuss their concerns without fear of public disclosure.

Conclusion

Mediation is a valuable alternative within civil legal proceedings, offering a collaborative and flexible approach to dispute resolution. By embracing principles of voluntariness, confidentiality, and impartiality, mediation empowers parties to actively engage in finding solutions tailored to their unique needs. At a time where efficiency, cost-effectiveness, and relationship preservation are paramount, mediation can be a compelling option for those seeking to resolve legal conflicts with fairness and dignity.

Read Our Related Articles

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

» Employment Law 101: Alternative Dispute Resolution

» Employment Law 101: Definition of Pleading

» Employment Law 101: Depositions

» Employment Law 101: Discovery (WA State)

» Employment Law 101: Legal Theory

» Employment Law 101: Motions

» Employment Law 101: Remedies

» Employment Law 101: Statute of Limitations

» Employment Law 101: Summary Judgment (WA State)

» Employment Law 101: The Complaint

» Employment Law 101: The Defendant

» Employment Law 101: The Plaintiff

» Employment Law 101: The Summons

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–gw

December 7, 2023October 21, 2024

Canon: Noscitur A Sociis

Under Washington State canons of statutory construction, what is the canon noscitur a sociis? Here’s my point of view.

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THE CANON NOSCITUR A SOCIIS

According to the canon noscitur a sociis:

[T]he meaning of an unclear word or phrase should be determined by the words immediately surrounding it.

Black’s Law Dictionary 1087 (Deluxe 8th ed. 2004); Hous. Auth. v. Parker, No. 39089-6-III, slip op. at 7 (Div. 3 Sept. 21, 2023) (“Under the canon[ ] of noscitur a sociis … the use of the word “other” to modify a general term can signify legislative intent that the general term shares some sort of attribute with preceding, more specific terms.” (emphasis in original)).

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-gw

November 30, 2023October 21, 2024

Employment Law 101: Statute of Limitations

Under Washington State laws, what is the meaning of “statute of limitations” within the context of civil litigation? Here’s my point of view.

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Introduction: Statute of Limitations

Within the context of Washington State civil litigation, the concept of the statute of limitations serves as an essential thread that weaves together justice, fairness, and practicality. Rooted in the belief that legal actions should be pursued within a reasonable timeframe, the statute of limitations imposes a temporal boundary on the initiation of lawsuits. This legal doctrine aims to strike a delicate balance between the need for timely resolution and the preservation of fundamental fairness. In this article, I will define the term, address its key principles, and discuss exceptions and tolling.

Defining Statute of Limitations

The statute of limitations is a legal principle that dictates the maximum time allowed for a plaintiff to bring a lawsuit or legal action against a defendant. Its primary purpose is to ensure that legal disputes are resolved promptly, avoiding the complications that arise from the passage of time, such as fading memories, lost evidence, and changes in circumstances.

Statutes of limitations can vary depending on the legal theory; to learn about the statute of limitations for employment discrimination claims under the Washington Law Against Discrimination (WLAD), we invite you to read our article entitled: WLAD Statute of Limitations.

Key Principles

1. Preserving Evidence and Witness Testimony:

The statute of limitations acts as a safeguard against the deterioration of evidence and witness testimony over time. It recognizes the inherent challenges of litigating a case where memories may fade, documents may be lost, and witnesses may become unavailable.

2. Promoting Judicial Efficiency:

Efficiency is a cornerstone of the American legal system, and the statute of limitations plays a vital role in achieving this goal. By encouraging prompt legal action, it helps prevent the clogging of court dockets with stale claims, allowing the legal system to focus on resolving current and pressing issues.

3. Balancing Fairness and Finality:

The statute of limitations embodies the principle of fairness by providing a degree of legal certainty for potential defendants. Once the prescribed time limit has passed, individuals and entities can reasonably expect to be free from the threat of litigation related to a particular incident, promoting finality in legal matters.

Exceptions and Tolling

While the statute of limitations is generally rigid, exceptions and tolling provisions exist. These may include circumstances such as the discovery of fraud or the minority of the plaintiff at the time of the incident, which can extend the time frame within which legal action can be initiated. To learn more about tolling the statute of limitations for employment discrimination claims under the WLAD, we invite you to read our article entitled: WLAD Statute of Limitations: Equitable Tolling.

Conclusion

The statute of limitations serves as a guardian of justice, ensuring that legal disputes are resolved in a timely manner while balancing the interests of both plaintiffs and defendants. Understanding the nuances of these temporal boundaries is vital for anyone handling lawsuits or legal actions, highlighting the intricate interplay between fairness, efficiency, and the pursuit of justice within the bounds of time.