Jurisdiction — Independent Contractors

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment Regulations, what are the rules concerning jurisdiction (independent contractors)? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning jurisdiction (independent contractors). See WAC 162-16-230WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

JURISDICTION — INDEPENDENT CONTRACTORS

WAC 162-16-230 is the relevant regulation, and it addresses jurisdiction (independent contractors) as follows:

(1) Purpose of section. RCW 49.60.180 defines unfair practices in employment. A person who works or seeks work as an independent contractor, rather than as an employee, is not entitled to the protection of RCW 49.60.180. This section outlines the standards that we will use to determine whether a person is an employee as distinguished from an independent contractor for the purpose of entitlement to the protection of RCW 49.60.180.

(2) Rights of independent contractor. While an independent contractor does not have the protection of RCW 49.60.180, the contractor is protected by RCW 49.60.030(1). The general civil right defined in RCW 49.60.030(1) is enforceable by private lawsuit in court under RCW 49.60.030(2) but not by actions of the Washington state human rights commission.

(3) General approach. We will consider all the relevant facts, particularly those bearing on the following factors. No one factor is determinative, but the most important is the extent to which the purchaser of work controls the manner and means of performance of the work.

(a) Control of work. An employment relationship probably exists where the purchaser of work has the right to control and direct the work of the worker, not only as to the result to be achieved, but also as to the details by which the result is achieved.

(b) Tools and place of work. Does the purchaser of the work or the worker furnish the equipment used and the place of work? Generally, the purchaser of work furnishes tools and equipment for employees while independent contractors furnish their own. Some employees furnish some of their own tools, however.

(c) Skill level involved. The skill required in the particular occupation. Skilled workers are typically less closely supervised than unskilled workers, but they are employees if indicia of employment other than close supervision are present.

(d) Type of work involved. The kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision. Some persons, such as lawyers or doctors, may be employees even though they are not closely supervised. The test for such specialists is not whether the lawyer or doctor is closely supervised, but whether he or she is treated the way that employed lawyers or doctors are commonly treated. Lawyers and doctors are typically independent contractors, however, with respect to their clients or patients.

(e) Duration of work. The length of time during which the person has worked or the length of time that the job will last. Independent contractors typically are hired for a job of relatively short duration, but there are instances of independent contracts for an indefinite period – for example, contracts for janitorial service.

(f) Method of payment. The method of payment, whether by time or by the job. Independent contractors are usually paid by the job but are sometimes paid by time. Employees are usually paid by time but are sometimes paid by the job.

(g) Ending the work relationship. Whether the work relationship is terminable by one party or both parties, with or without notice and explanation. An employee is usually free to quit and is usually subject to discharge or layoff without breach of the employment contract. An independent contractor usually has more fixed obligations.

(h) Leave. Whether annual leave is afforded. Leave with pay is almost exclusively accorded to employees.

(i) Integration of the work in the purchaser’s operations. Whether the work is an integral part of the business of the purchaser of it. Usually, employees rather than independent contractors do the regular work of a business.

(j) Accrual of benefits. Whether the worker accumulates retirement benefits. Retirement benefits are almost exclusively accorded to employees.

(k) Taxation. Whether with respect to the worker the purchaser of work pays taxes levied on employers, such as the Social Security tax, unemployment compensation tax, and worker’s compensation tax, or withholds federal income tax. The tax laws do not have the same purposes as the law against discrimination, so employee status for tax purposes is helpful but not controlling.

(l) Salary or income. Whether the worker treats income from the work as salary or as business income. See subsection (3)(k) of this section.

(m) Employer records. Whether with respect to the worker the purchaser of work keeps and transmits records and reports required of employers, such as those required under the worker’s compensation act. Worker’s compensation coverage, like tax coverage, is helpful but not conclusive.

(n) The intention of the parties. The fact that a contract says that the worker is an independent contractor will be considered in this respect, but it is not conclusive for the purpose of coverage of RCW 49.60.180.

(4) Burden of persuasion. The party asserting that the complainant is an independent contractor has the burden of proving that status.

WAC 162-16-230 (emphasis added) (hyperlinks added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw

Preemployment Inquiry Guide — Purpose

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Preemployment Inquiry Guide, what is the purpose of the chapter? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning the purpose of the chapter. See WAC 162-12-100WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

PURPOSE OF CHAPTER

WAC 162-12-100 is the relevant regulation, and it addresses the purpose of the chapter as follows:

(1) These regulations carry out the law against discrimination as stated generally in RCW 49.60.010 and 49.60.030, and interpret RCW 49.60.180 and 49.60.200 which declare certain preemployment inquiries to be unfair practices.

(2) The commission generally follows chapter 49.60 RCW and federal court decisions that interpret comparable statutes and rules. The commission will not follow federal precedents when a different interpretation of state statutes and rules will better carry out the purposes of chapter 49.60 RCW.

(3) This regulation cannot cover every question that might arise in connection with inquiries prior to employment. The commission expects that in most cases these rules, either directly or by analogy, will guide those who are covered by the law.

(4) Definition: In this chapter, the following words are used in the meaning given, unless the context clearly indicates another meaning.

“Protected status” is short for the phrase, “age, sex, sexual orientation, gender expression or gender identity, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person,” and means the full phrase (see RCW 49.60.180).

WAC 162-12-100 (emphasis added) (hyperlinks added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw

Employment–Handicapped Persons–Scope of Chapter

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment–Handicapped Persons Regulations, what are the rules concerning scope of chapter? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning scope of chapter. See WAC 162-22-010WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

SCOPE OF CHAPTER

WAC 162-22-010 is the relevant regulation, and it addresses scope of chapter as follows:

This chapter interprets and implements the disability discrimination coverage of:

(1) RCW 48.60.174 (unfair practices based on actual or perceived HIV infection);

(2) RCW 49.60.180 (unfair practices of employers);

(3) RCW 49.60.190 (unfair practices of labor unions);

(4) RCW 49.60.200 (unfair practices of employment agencies);

(5) RCW 49.60.210 (unfair to discriminate against persons opposing unfair practices); and

(6) RCW 49.60.220 (unfair to aid violation).

WAC 162-22-010 (emphasis added) (hyperlinks added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw

Sexual Orientation & Gender Identity – General Purpose & Scope

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Sexual Orientation & Gender Identity Regulations, what are the rules concerning general purpose and scope? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning general purpose and scope. See WAC 162-32-010WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

GENERAL PURPOSE & SCOPE

WAC 162-32-010 is the relevant regulation, and it addresses general purpose and scope as follows:

This chapter interprets and implements the sexual orientation and gender expression and gender identity discrimination protections of RCW 49.60.030, 49.60.180, and 49.60.215 and provides guidance regarding certain specific forms of sexual orientation and gender expression and gender identity discrimination.

WAC 162-32-010 (emphasis added) (hyperlinks added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw

General Purpose & Scope

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Sex Discrimination Regulations, what are the rules concerning general purpose and scope? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning general purpose and scope. See WAC 162-30-010WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

GENERAL PURPOSE & SCOPE

WAC 162-30-010 is the relevant regulation, and it addresses general purpose and scope as follows:

The general purpose of the law against discrimination in employment because of sex is to equalize employment opportunity for men and women. This chapter interprets and implements the sex discrimination protection of RCW 49.60.180, and provides guidance regarding certain specific forms of sex discrimination.

WAC 162-30-010 (emphasis added) (1st & 2nd hyperlinks added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw

General Purpose & Definitions

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment Regulations, what are the rules concerning both the general purpose and definitions? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

THE STATUTORY AUTHORITY (RCW)

RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning the general purpose and definitionsSee WAC 162-16-200WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[], power[], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).

GENERAL PURPOSE & DEFINITIONS

WAC 162-16-200 is the relevant regulation, and it addresses general purpose and definitions  as follows:

The law against discrimination protects persons from discrimination in employment (RCW 49.60.180, 49.60.190, and 49.60.200). Persons are also protected from discrimination as provided in RCW 49.60.172 (unfair practices with respect to HIV infection), RCW 49.60.174 (actual or perceived HIV infection), and RCW 49.60.210 (unfair to discriminate against person opposing unfair practice).

(1) The commission‘s first objective in writing the rules in this chapter and in making future decisions on questions not addressed in this chapter is to eliminate and prevent discrimination. This is the overall purpose of the law against discrimination.

(2) Other objectives in writing these rules are:

(a) To be consistent with interpretations of federal antidiscrimination law and the antidiscrimination laws of other states, where these are comparable to Washington law, and where the commission does not find that a different rule would better serve the state of Washington.

(b) To avoid the uncritical adoption of definitions from areas of law other than antidiscrimination law. It is appropriate to define employment differently in different areas of the law to carry out the separate purpose of each area of law.

(c) To give effect to the purposes of the exemption of employers of less than eight from public enforcement of the law against discrimination, as identified in RCW 49.60.040.

(d) The public and commission staff need standards that are certain and that are easy to understand and apply. Therefore we must sometimes simply draw a line, although reasonable persons could differ as to where the line should be drawn.

(3) The state law against discrimination covers employers with eight or more employees. Persons should also educate themselves on relevant local or federal antidiscrimination laws.

(4) Definition:
In this chapter, the following words are used in the meaning given, unless the context clearly indicates another meaning.
“Protected status” is short for the phrase, “age, sex, sexual orientation, gender expression or gender identity, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person,” and means the full phrase (see RCW 49.60.180).

WAC 162-16-200 (emphasis added) (hyperlinks added).

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw

WSHRC Objectives for Employment Regulations

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what are the objectives of its employment regulations, WAC 162-16? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

EMPLOYMENT DISCRIMINATION PROTECTIONS

The Washington Law Against Discrimination (WLAD) provides protections against employment discrimination (RCW 49.60.18049.60.190, and 49.60.200).  See WAC 162-16-200. Further protections against employment discrimination are enumerated in RCW 49.60.172 (unfair practices with respect to HIV infection), RCW 49.60.174 (actual or perceived HIV infection), and RCW 49.60.210 (unfair to discriminate against person opposing unfair practice). See id.

THE OVERALL OBJECTIVE
The overall objective of the WLAD and the commission’s first objective in both writing the associated employment regulations (WAC 162-16) and making future decisions on questions not addressed in the chapter, is to eliminate and prevent discrimination. See id.
FOUR ADDITIONAL OBJECTIVES

The commission maintains four additional objectives in writing the employment regulations under WAC 162-16, as follows:

(1) To be consistent with interpretations of federal antidiscrimination law and the antidiscrimination laws of other states, where these are comparable to Washington law, and where the commission does not find that a different rule would better serve the state of Washington.

(2) To avoid the uncritical adoption of definitions from areas of law other than antidiscrimination law. It is appropriate to define employment differently in different areas of the law to carry out the separate purpose of each area of law.

(3) To give effect to the purposes of the exemption of employers of less than eight from public enforcement of the law against discrimination, as identified in RCW 49.60.040.

(4) The public and commission staff need standards that are certain and that are easy to understand and apply. Therefore we must sometimes simply draw a line, although reasonable persons could differ as to where the line should be drawn.

See WAC 162-16-200.

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw

WSHRC Definition of Protected Class

by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) regulations, what is the definition of the term “protected class”? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

DEFINITION OF PROTECTED CLASS (GENERALLY)

WAC 162-04-010 is the relevant regulation, and it defines the term “protected class” as follows:

“Protected class” means the persons who are members of (or who are treated as members of) one of the groups against whom discrimination is declared to be an unfair practice by the law against discrimination. Protected classes include persons between the ages of forty and seventy, persons of any race, creed, color, national origin, sex, or marital status, and persons who are handicapped.

WAC 162-04-010 (emphasis added). The term is used with the meaning given, unless the context clearly indicates another meaning. Id.

REGARDING EMPLOYMENT DISCRIMINATION

For purposes of WSHRC employment regulations (WAC 162-16), protected class means as follows (unless the context clearly indicates another meaning):

“Protected status” is short for the phrase, “age, sex, sexual orientation, gender expression or gender identity, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person,” and means the full phrase (see RCW 49.60.180).

WAC 162-16-200.

LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.

–gw