To start off the new year, Washington introduced its “Draft Guidance for Investigating and Remediating PFAS Contamination In Washington State”, which provides guidance principles for companies looking to remediate land of six specific types of PFAS – PFOA, PFOS, PFNA, PFHxS, PFBS, and GenX. The Washington PFAS soil standards follow similar guidance documents by New Jersey (2022) and Pennsylvania (2021). None of the three states have soil standards that would be used for the purposes of identifying potential responsible parties. As other states follow suit, though, it is likely that other states will begin setting PFAS soil standards that include both a remediatory guideline and liability purpose. Companies are well-advised to closely follow developments at the state level with respect to PFAS soil standards.

PFAS Soil Standards In Washington

Washington’s guidance would, if approved, be able to be utilized for both private cleanups (or diligence initiatives) and state-led remediation efforts. The draft guidance document cautions that even if finalized, parties engaged in site cleanup need to be aware that the science and regulations with respect to PFAS are changing, so coordination with the state is key. The state would still need to approve proposed remediation plans, even if in line with the Guidance document, as state approval of remediation proposals is highly fact-specific. In addition, the state will look at proposed plans through the lens of future reopener issues, and will aim to work with parties at the outset to avoid such issues.

Impact On Businesses

As noted above, the PFAS soil standards do not create liability if soil is discovered to contain levels of PFAS above the noted limits. Instead, the regulations provide guidance to site remediators, to provide clarity as to the extent and scope of PFAS remediation necessary from contaminated sites. Nevertheless, companies in Washington are advised to use the limits in the regulations as baselines testing during the diligence phase of any property or corporate acquisition. It is critical to determine whether or not sites owned by the businesses or sites that companies may inadvertently be polluting with PFAS have elevated levels of PFAS such that future liability concerns may arise.

Businesses outside of Washington must be aware of the regulations and closely follow legislation and regulatory action in discussion with respect to PFAS soil standards. While drinking water and wastewater have certainly received the most attention from a PFAS regulatory perspective, efforts are being made in several states to collect data with respect to PFAS soil contamination, with the long-term goal of enacting science based PFAS soil standards.

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Effective January 1, 2023, Washington employers must comply with SB 5761, commonly known as Washington’s Pay Transparency Law, signed by Governor Jay Inslee on March 30, 2022. SB 5761 amends Washington’s Equal Pay and Opportunity Act (RCW 49.58) to require employers with 15 or more employees to include in each job posting the wage scale or salary range of the job and a general description of all of the benefits offered and to identify other compensation offered. The law also requires employers to provide existing employees who are promoted or offered a new position with the wage scale or salary range of the new position.

IN DEPTH

Washington’s Equal Pay and Opportunity Act currently only requires employers to provide applicants with the minimum wage or salary for the position they seek and only upon the applicant’s request after the employer makes the job offer.

WHAT IS THE PAY TRANSPARENCY LAW?

Effective January 1, 2023, employers must disclose in each posting for each job opening the wage scale or salary range and a general description of all benefits and other compensation to offered to the hired applicant.

Job postings mean “any solicitation included to recruit job applicants for a specific available position,” and electronic or hard-copy records that describe the desired qualifications, whether the employer solicits applicants directly or indirectly through a third party.

Washington’s Department of Labor and Industries (DLI) has published a draft administrative policy that provides employers with guidance on compliance.

WHICH EMPLOYERS ARE COVERED?

The law applies to employers with 15 or more employees.

DLI’s guidance clarifies that the law applies to all employers with 15 or more employees, engaging in any business, industry, profession or activity in Washington. The 15-employee threshold for covered employers “includes employers that do not have a physical presence in Washington, if the employer has one or more Washington-based employees.” This law applies to employers even if they do not have a physical presence in Washington but engage in business in Washington or recruit for jobs that could be filled by a Washington-based employee.

WHAT MUST EMPLOYERS INCLUDE IN THE POSTING?

Employers must disclose in each posting for each job opening:

• The opening wage scale or salary range
• A general description of all benefits and other compensation offered.

Per the DLI’s guidance, employers must make these disclosures in postings for remote work that could be performed by a Washington-based employee. Employers cannot avoid these disclosure requirements by stating in the posting that it will not accept Washington applicants.

Wage Scale or Salary Range

The DLI’s guidance identifies examples of information that should be included in a posting.

A wage scale or salary range should provide the applicant with the employer’s most reasonable and genuinely expected range of compensation for the job, extending from the lowest to the highest pay established by the employer prior to publishing the job posting. If the employer does not have an existing wage scale or salary range for a position, the scale or range should be created prior to publishing the job posting. For example, the scale or range’s minimum and maximum should be clear without open-ended phrases such as “$60,000/per year and up” (with no top of the range), or “up to $29.00/hour” (with no bottom of the scale).

Employers should update the posting to reflect any changes to the wage scale or salary range. If the employer offers a different position than what the applicant applied for, the employer may offer the applicant the wage scale or salary range specific to the position offered, rather than the position in the posting.

If an employer intends to implement a “starting range” or “starting rate” for an initial timeframe of employment or probationary period, the starting range or rate may be listed on the posting, but the entire scale or range must also be listed on the posting.

If an employer publishes a job posting for a job opening that can be filled with varying job titles, depending on experience, the employer should specify all potential wage scales or salary ranges that apply. The job posting should clearly define the lowest to highest pay established for each potential job position, as indicated in the example below:

• Accounting Analyst 1: $27.00 – $29.00 per hour
• Accounting Analyst 2: $65,000 – $75,000 per year
• Accounting Analyst 3: $80,000 – $95,000 per year.

If an employer posts a job that is compensated by commission rates, the employer should include the rate or rate range (percentage or otherwise) that it would offer to the hired applicant, as indicated in the example below:

• Commission-based salesperson: 5–8% of net sale price per unit.

General Description of All Benefits 

A general description of all benefits includes, but is not limited to, healthcare benefits, retirement benefits, any benefits permitting paid days off (including more-generous paid sick leave accruals, parental leave, and paid time off or vacation benefits), and any other benefits that must be reported for federal tax purposes, such as fringe benefits.

If the general description of all benefits changes after an employer has published a posting and the posting remains published, the employer should update the posting.

If insurance or retirement plans are included as part of the position’s benefits package, employers should list the types of insurance and retirement plans in the job posting, such as medical insurance, vision insurance, 401k and employer-funded retirement plan. Similarly, if an employer offers paid vacation, paid holidays or paid sick leave benefits, employers should list in detail the amount of days or hours offered for each benefit.

The DLI’s example of a general description of all benefits is as follows:

• “Employees (and their families) are covered by medical, dental, vision, and basic life insurance. Employees are able to enroll in our company’s 401k plan, as well as a deferred compensation plan. Employees will also receive eight hours of vacation leave every month, as well as eight hours of Washington paid sick leave every month. Employees will also enjoy twelve paid holidays throughout the calendar year. Two weeks of paid parental leave will also be available for use after successful completion of one year of employment.”

General Description of Other Compensation 

Other compensation includes, but is not limited to, any discretionary bonuses, stock options or other forms of compensation that would be offered to the hired applicant in addition to their established salary range or wage scale. Some forms of other compensation can include, but are not limited to, commissions, bonuses, profit-sharing, merit pay, stock options, travel allowance, relocation assistance and housing allowance.

Employers need only describe the other compensation and need not include the total monetary value of the other compensation in a job posting. However, employers who choose to include the total monetary value of other compensation in a job posting must also include the required general description of benefits and other compensation in addition to the wage scale or salary range.

The DLI’s example of a general description of other compensation is as follows:

• “Hired applicant will be able to purchase company stock, receive annual bonuses, and can participate in profit-sharing. Hired applicant will also receive an equity grant in the form of either a direct grant of stock that will be specified in the employment contract or an option to purchase stock in the future for a specified price.”

In electronic job postings, the posting must have the general description of the benefits and other compensation, but employers can use a link to provide a more detailed description of benefits and other compensation. However, “it is the employer’s responsibility to assure continuous compliance with functionality of links, up-to-date information, and information that applies to the specific job posting, regardless of any use of third-party administrators.”

WHAT ARE THE CONSEQUENCES OF NONCOMPLIANCE?

Where an employer is out of compliance with this law, applicants and employees will be able to file a complaint with the DLI or file a civil lawsuit against the employer in court.

If applicants or employees file a complaint with the DLI, the DLI may issue a citation and/or notice of assessment and order the employer to pay to the complainant actual damages, double statutory damages (or $5,000, whichever is greater), interest of 1% per month on compensation owed, payment to the department for the costs of investigation and enforcement, and other appropriate relief. The DLI may also order an employer to pay civil penalties in response to complaints, ranging from $500 for a first violation to $1,000 or 10% of damages (whichever is greater) for a repeat violation.

If applicants or employees file a civil lawsuit, remedies may include actual damages, double statutory damages (or $5,000, whichever is greater), interest of 1% per month on compensation owed, and reimbursement of attorneys’ fees and costs. Recovery of wages and interest will be calculated back four years from the last violation.

Note: This alert was drafted based on Washington State’s Department of Labor & Industries’ Draft Administrative Policy, which may be superseded by a revised final version before January 1, 2023. 

The post Washington State’s Pay Transparency Law Takes Effect January 1, 2023 appeared first on The National Law Forum.

On March 25, 2020, Governor Jay Inslee signed HB 2528 into law which recognizes the contributions of the state’s forests and forest products sector as part of the state’s global climate response.

Relying on recent climate reports recognizing the importance and function of working forests, the law states that sustainable forest management and forest products could be used to increase carbon sequestration by expanding forestland base, or reducing emissions from land conversation to nonforest use. For example, the hundreds of trees on a working forest can store carbon dioxide, which can help mitigate the effects of climate change. However, if the working forest is converted into agricultural, residential, or industrial land—all nonforest uses—then there is no longer the ability to store carbon.

The law recognizes that one way to satisfy Washington State’s greenhouse gas emissions reduction goals articulated in RCW 70.235.020, can occur by supporting the economic vitality of the sustainable forest products sector and other business sectors capable of sequestering and storing carbon. Other sectors included in the law are working forests and the necessary manufacturing sectors that support the transformation of stored carbon into long-lived forest products.

The law then establishes a number of policies regarding the recognition of the forestry and forest products sectors as a climate solution:

• It is the policy of the state to support the contributions of all working forests and the synergistic forest products sector to the state’s climate response. This includes, but is not limited to, landowners, mills, bioenergy, pulp and paper, and other sectors necessary for forestland owners to continue the rotational cycle of carbon capture and sequestration in growing trees.
• It is the policy of the state to support the participation of working forests in current and future carbon markets, strengthening the state’s role as a valuable contributor to the global carbon response
• The legislature intends to recognize and support industry sectors that can act as sequesterers of carbon, such as Washington’s working forests and associated forest products industry.

The enactment of this law provides an opportunity for the forestry and forest products sector to expand its services and contribute to the state’s climate goals. Specifically, it encourages the planting of trees, which supports carbon sequestration; it supports the entire supply chain of the forest products sector, which in turn supports rural communities; and it encourages healthy forest management, which can mitigate the risk of wildfires.

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New legislation recently introduced in the Washington State Legislature seeks to implement a 32-hour workweek for nonexempt Washington-based workers. If the proposal were to become law, employers would be required to pay overtime compensation to nonexempt employees whose workweeks exceed 32 hours.

Senate Bill (SB) 6516 proposes to amend RCW 49.46.130, the Washington law that establishes a 40-hour workweek in the state. Because the proposal would amend but not replace the existing law, the current exemptions would remain applicable—and none have been amended by the proposed bill. Instead, the bill’s proposed changes merely—but monumentally—revise the references in RCW 49.46.130 from a 40-hour workweek to a 32-hour workweek.

The lead cosponsor of SB 6516 is Washington State Senator Joe Nguyen. In several interviews, Senator Nguyen seems to view the proposal as a “conversation” starter and a “concept” to begin discussing. Because it appears to be a preliminary measure, we do not expect the proposal to pass, but, we will continue to follow SB 6516 closely and provide legislative updates as necessary.

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When researchers at University of Washington pulled together a clip of a faked speech by President Obama using video segments of the President’s earlier speeches run through artificial intelligence, we watched with a queasy feeling. The combination wasn’t perfect – we could still see some seams and stitches showing – but it was good enough to paint a vision of the future. Soon we would not be able to trust our own eyes and ears.

Now the researchers at University of Washington (who clearly seem intent on ruining our society) have developed the next level of AI visual wizardry – fake people good enough to fool real people. As reported recently in Wired Magazine, the professors embarked on a Turing beauty contest, generating thousands of virtual faces that look like they are alive today, but aren’t.

Using some of the same tech that makes deepfake videos, the Husky professors ran a game for their research subjects called Which Face is Real? In it, subjects were shown a real face and a faked face and asked to choose which was real. “On average, players could identify the reals nearly 60 percent of the time on their first try. The bad news: Even with practice, their performance peaked at around 75 percent accuracy.” Wired observes that the tech will only get better at fooling people “and so will chatbot software that can put false words into fake mouths.”

We should be concerned. As with all digital technologies (and maybe most tech of all types if you look at it a certain way) the first industrial applications we have seen occur in the sex industry. The sex industry has lax rules (if they exist at all) and the basest instincts of humanity find enough participants to make a new tech financially viable. Reported by the BBC, “96% of these videos are of female celebrities having their likenesses swapped into sexually explicit videos – without their knowledge or consent.”

Of course, given the level of mendacity that populism drags in its fetid wake, we should expect to see examples of deepfakes offered on television news soon as additional support of the “alternate facts” ginned up by politicians, or generated to smear an otherwise blameless accuser of (faked) horrible behavior.  It is hard to believe that certain corners of the press would be able to resist showing the AI created video.

But, as lawyers, we have an equally valid concern about how this phenomenon plays in court. Clearly, we have rules to authenticate evidence.  New Evidence Rule 902(13) allows authentication of records “generated by an electronic process or system that produces an accurate result” if “shown by the certification of a qualified person” in a particular way. But with the testimony of someone who was wrong, fooled or simply lying about the provenance of an AI generated video, the false digital file can be easily introduced as evidence.

Some Courts under the silent witness theory have allowed a video to speak for itself. Either way, courts will need to tighten up authentication rules in the coming days of cheap and easy deepfakes being present everywhere. As every litigator knows, no matter what a judge tells a jury, once a video is seen and heard, its effects can dominate a juror’s mind.

I imagine that a new field of video veracity expertise will arise, as one side tries to prove its opponent’s evidence was a deepfake, and the opponent works to establish its evidence as “straight video.” One of the problems in this space is not just that deepfakes will slip their way into court, damning the innocent and exonerating the guilty, but that the simple existence of deepfakes allows unscrupulous (or zealously protective) lawyers to cast doubt on real, honest, naturally created video. A significant part of that new field of video veracity experts will be employed to cast shade on real evidence – “We know that deepfakes are easy to make and this is clearly one of them.” While real direct video that goes to the heart of a matter is often conclusive in establishing a crime, it can be successfully challenged, even when its message is true.  Ask John DeLorean.

So I now place a call to the legal technology community.  As the software to make deepfakes continues to improve, please help us develop parallel technology to be able to identify them. Lawyers and litigants need to be able to clearly authenticate genuine video evidence to clearly strike deepfaked video as such.  I am certain that somewhere in Langley, Fort Meade, Tel Aviv, Moscow and/or Shanghai both of these technologies are already mastered and being used, but we in the non-intelligence world may not know about them for a decade. We need some civilian/commercial help in wrangling the truth out of this increasingly complex and frightening technology.

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The Model Toxics Control Act (MTCA) has been cleaning up contaminated sites in Washington State for 30 years. On December 10, 2019, Beveridge & Diamond and the Environmental Law Institute will be hosting a seminar (MTCA 30) to celebrate the success and examine the future of the state’s cleanup statute with an all-star program featuring some of the state’s leading experts. In advance of the seminar, B&D is publishing a series of articles focused on MTCA.

MTCA’s Many Triumphs

MTCA has been spurring the cleanup of contaminated sites in Washington for 30 years. Since MTCA went into effect, over 7,000 sites have been cleaned up. While the workhorse statute is not going to take a rest anytime soon, with more than 6,000 sites requiring further action before closure and over 200 new sites identified each year, the citizen’s initiative already has amassed an impressive legacy. Below are just a few of the many examples where MTCA has been instrumental in turning contaminated properties into productive community and environmental assets – on both large and small scales and in urban and rural areas of Washington.

• Mount Baker Housing Association – Restoring Brownfields to Provide Affordable Housing in Seattle’s Rainier Valley. In 2016, the Mount Baker Housing Association (MBHA) entered into a prospective purchaser consent decree with the State of Washington to investigate and ultimately clean up chlorinated solvent contamination from a former dry cleaner and petroleum contamination from a former gas station and auto repair facility. The innovative use of MTCA’s prospective purchaser provisions allowed the nonprofit affordable housing developer to take on the risks of investing in properties with known contamination while gaining liability protections and expanding housing options for lower-income earners in an expensive real estate market. Importantly, the settlement also has provided a vehicle for MBHA to receive public funds to cover at least some of the remedial action costs. Just the other week, MBHA released a draft remedial investigation / feasibility study and a draft cleanup action plan for public comment.

• Puget Sound Initiative – Ensuring Healthy Habitats in Padilla and Fidalgo Bays. In 2007, the Department of Ecology (Ecology) identified seven bays around Puget Sound where it would prioritize cleaning up contaminated sites and habitat restoration. In Padilla and Fidalgo Bays in northern Puget Sound, six industrial waterfront sites have been cleaned up while work on five other sites is in progress. The bays are home to valuable marine habitat, including extensive eelgrass beds, which serve as groundfish nurseries. The sites that have been cleaned up in the last 15 years include a former oil tank farm, a former lumber mill and pulp mill, a boatyard, and former milling, shipbuilding, and marina operations, among others.

• Kittitas Valley Fire and Rescue – Building a New Fire Station in Ellensburg. When the Kittitas Valley Fire and Rescue was looking for a new fire station location, it purchased a property that had been used for hay scales, as well as truck repair and fueling, with associated soil and groundwater contamination. During property redevelopment, the contamination was investigated and remediated, with assistance from Ecology. With effective planning and use of the building design as a protective cap, cleanup was completed for under $250,000 and in under three months.

• Kendall Yards – Transforming an Old Railyard in Spokane. In 2005, River Front Properties, LLC entered Ecology’s Voluntary Cleanup Program to address contamination at a 78-acre site to the northwest of Spokane’s downtown area. The site had been used extensively for locomotive repair and servicing and had served as a location for plating and storage operations. Over a single year, 200,000 tons of soil contaminated with petroleum, PAHs, and metals were removed from the site. Now, Kendall Yards has turned into a vibrant community with a growing collection of houses, apartment buildings, offices, and restaurants.

• Gas Stations, Dry Cleaners, and Underground Storage Tanks Around the State. Contaminated sites are not caused only by heavy industrial operations. Many of the most common sources of contamination are gas stations, dry cleaners, and other businesses with underground storage tanks. Ecology has identified over 7,000 leaking tanks in the state. But significant progress is being made. Contamination from over 4,000 tanks has been remediated, and cleanup has started for over 2,000 more tanks. For gas stations, Ecology has entered into multi-site agreements to facilitate and coordinate cleanups for parties with larger portfolios of sites. Collectively, efforts to address contamination at service stations and dry cleaners have resulted in about a thousand NFA determinations under MTCA.

• Substantial Public Funding for Cleanups and Related Projects. The 1988 citizens’ initiative resulted in a tax on the “first possession” of hazardous substances in Washington, in addition to MTCA’s cleanup framework. Although the tax revenue has fluctuated due to volatility in oil prices, it generated around $2.2 billion between 1988 and 2017 to support Ecology programs and to fund cleanups and related environmental projects around the state. This funding is critical to remediating sites where sufficient private dollars are not available. For instance, between 2015 and 2017, Ecology provided $1.2 million to remediate American Legion Park in Everett. The park was impacted by the nearby former Asarco smelter. The area-wide cleanup has exceeded the dollars collected in a 2009 bankruptcy settlement with Asarco. This year, the state legislature converted the tax on petroleum products from a price-based tax to a volumetric tax with the goal of making funding more predictable. The Department of Revenue also has estimated that revenues under the new tax will be higher.

The post Washington’s Model Toxics Control Act: Transforming Contaminated Sites into Community and Environmental Assets appeared first on The National Law Forum.

The 9th Circuit court of appeals has enforced the City of Everett, Washington’s Dress Code Ordinance and amendments to the Lewd Conduct Ordinances. These ordinances require employees of “Quick-Service” facilities to cover “minimum body areas” (the dress code ordinance specifically stated that it was targeting an apparent influx of “bikini barista stands”). The owner of “Hillbilly Hotties,” a coffee stand where employees wear only bikinis, and several of the bikini baristas themselves challenged the ordinances as unconstitutionally vague. Plaintiffs also alleged that the Ordinances violated their First Amendment right to free expression.

The Court of Appeals reversed a lower court ruling that prohibited enforcement of the Ordinances on the ground that they are unconstitutionally vague. The appeals court explained that a person of ordinary intelligence would be able to understand the terms in the Ordinance and would be adequately informed of which body areas cannot be exposed or displayed.

The Ninth Circuit also concluded that Plaintiffs’ first amendment claim faltered based upon their failure to show a great likelihood that their intended message would be understood by those who received it. The court found that the baristas’ acts of wearing pasties and g-strings in close proximity to customers did not necessarily convey the baristas’ purported message of female body confidence and empowerment.

Read the full decision here.

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On May 8, 2019, Washington Governor Jay Inslee signed into law a bill that prohibits employers from entering into noncompetition covenants with employees whose W-2 earnings are less than $100,000, and with independent contractors paid less than $250,000 per year.

In addition to the above, employers should be aware of the following five provisions in the new law:

• The law creates a presumption that any covenant longer than 18 months is unreasonable and unenforceable as a matter of law.  A party to the covenant may rebut the presumption by showing through clear and convincing evidence that a duration longer than 18 months is necessary to protect the party’s business or goodwill.
• A covenant will be unenforceable unless the employer discloses its terms to a prospective employee in writing.
• If a covenant is entered into after employment begins, the employer must provide consideration in addition to employment to support the covenant.
• If an employee subject to a noncompetition covenant is terminated in a layoff, the covenant is void unless the employer pays the terminated employee base salary for the remainder of the covenant’s terms, less compensation earned through subsequent employment.
• If a court determines a noncompetition covenant violates the new law, the party seeking enforcement must pay the aggrieved person the greater of the actual damages or $5,000, plus reasonable attorneys’ fees and costs.

The new law will take effect January 1, 2020.

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