The following is a brief outline regarding the regulatory authority of the state and federal agencies that have jurisdiction over the majority of discrimination and workplace safety claims. It is by no means a complete list. Other agencies have jurisdiction over labor contracts, background checks, access to buildings, immigration and other areas that affect employers.
The Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, as amended (discrimination based on race, color, religion, sex, national origin and retaliation claims based on any of the foregoing); the Equal Pay Act of 1963, as amended (pay disparity between men and women); The Age Discrimination in Employment Act of 1967, as amended (ADEA) (discrimination based on age over 40); and Title I of the Americans with Disabilities Act of 1990 (disability in employment).
The employer must be of a certain size to trigger the EEOC's jurisdiction. For example, the minimum number of employees for the Equal Pay Act to apply is one; the minimum for the ADEA is 20 employees. The EEOC investigates complaints filed with it and can proceed administratively or bring suit or issue a right-to-sue letter to the complainant. An administrative dismissal by the EEOC does not preclude the complainant from filing suit. More information about the EEOC can be found at www.EEOC.gov.
The Washington State Human Rights Commission (HRC) enforces the Washington Laws Against Discrimination, RCW Ch. 49.60 (WLAD). WLAD applies to (among other things) refusal to hire and discrimination in employment "because of age, sex, 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, 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." RCW 49.60.180. As of June, sexual orientation is also covered by the WLAD.
An employer must have eight or more employees in order for the HRC to exercise its authority. Complaints can be jointly filed with the HRC and the EEOC if they entail issues where both agencies have jurisdiction.
Like the EEOC, the HRC investigates complaints and can pursue claims on behalf of employees or applicants who have been discriminated against. After conducting an investigation, the HRC issues findings reflecting whether there is reasonable cause to believe discrimination occurred. The commissioners may grant reconsideration if the party can show that there was a misapplication of the law or that relevant information provided during the investigation was not considered in the finding.
If there is a finding of reasonable cause, there is a conciliation process where remedies such as back pay, reinstatement or training to eliminate the unfair practice may be applied. If conciliation fails, the complaint may be turned over to the Attorney General's Office for hearing before an administrative law judge.
The regulations governing the HRC can be found at WAC 162-12 et seq. More information about the HRC can be found at www.hum.wa.gov.
The U.S. Department of Labor (DOL) has jurisdiction over the federal wage and hour laws, including the Fair Labor Standards Act (FLSA); the Employment Retirement Income Security Act (ERISA); the Office of Federal Contract Compliance (which sets standards for workforce diversity for federal contractors); the Family Medical Leave Act (FMLA); and workplace safety rules (OSHA), among other things. It provides access to the text of the laws and regulations, press releases and interpretive and enforcement information.
Like many agencies, DOL takes a carrot-and-stick approach, providing resources to assist employers proactively with compliance and also conducting investigations into complaints relating to the laws that it covers. Its Web page, www.dol.gov, provides links to compliance assistance and copies of the rules and regulations it enforces.
The Washington State Depart-ment of Labor and Industries (L&I) enforces, among other things, the state wage and hour laws, worker safety laws and regulations, statutes regarding leave for family care (RCW ยค 49.12.265 et seq., WAC 296-130), and the state Family Leave Act (RCW Ch. 49.78 and WAC 296-130). State law is more favorable for workers than federal law in many respects, such as providing a higher minimum wage, being more protective of the employment of minors, providing break and rest periods and having more detailed worker safety requirements.
Upon receiving a complaint, L&I can investigate and issue a notice of infraction under WAC 296-130-060. An employer can request a hearing regarding an infraction notice within 20 days pursuant to RCW Ch. 34.05.
L&I conducts investigations into complaints relating to workers' compensation claims, workplace safety and wage-and-hour violations, and retaliation relating to those laws, among other things. It also inspects about 7,000 workplaces each year and cites businesses that violate health and safety rules. In my experience, L&I has been helpful in providing guidance in letter form to questions regarding how the wage-and-hour regulations it administers apply to specific fact patterns. Also, L&I will conduct onsite safety and health consultations upon request.
There are copies of regulations and very helpful administrative policies on L&I's Web page, www.lni.wa.gov.
Before taking action in an area where there may be applicable administrative law, check the statutes and regulations for agency authority and review the information about the agency and how it operates. n
The above article is a brief overview only. For more information, feel free to contact the author. Karen Sutherland is the chair of the Ogden Murphy Wallace, P.L.L.C. Employment and Labor Law Practice Group and the King County Bar Bulletin Committee. She can be reached at ksutherland@omwlaw.com.
