Inside Washington Retail | Special Edition: 2023 Legislative Wrap-Up
Inside Washington Retail | Special Edition: 2023 Legislative Wrap-Up
April 27, 2023
Washington State’s first entirely in-person 105-day legislative session in nearly three years adjourned on Sunday, April 23.
While it was refreshing to return to the capitol, testifying and meeting with legislators in person, the session proved to be both fast-paced and demanding, requiring exceptional coordination from the WR team. Our experienced Policy and Government Affairs team is dedicated to advocating for the broad interests of the over 3000 storefronts represented in all 49 legislative districts across the state.
In a political environment where Democrats control the Governor’s office, the State Senate, and State House by wide margins, WR is focused on working with both the majority and minority parties to navigate the complexities of bills that impact retailers. Our team is trustworthy, committed to acting in good faith, and responsive even to those who oppose our views.
With effective lobbying strategies, the WR PGA team has successfully secured amendments for several bills in favor of our members while stopping several unfavorable proposals in their tracks. The results of this year’s action-packed session produced several wins for WR members, some unfavorable outcomes that will impact the broader retail industry, and a handful of challenging bills that will carry over into the 2024 session.
In this special edition of the IWR, we highlight these priority bills and shed light on the outcomes achieved through WR’s dedicated efforts.
Favorable outcomes: WR-supported bills that passed
Organized Retail Crime Task Force Funding
WR has collaborated with the Attorney General for more than a year to establish the Washington State Organized Retail Crime Task Force. WR has played an active role in the three task force meetings—each drawing over 100 participants. Renée Sunde, President & CEO of WR, and AG Bob Ferguson have joined forces to address the top priority issue of public safety and retail crime at several Chambers of Commerce throughout Washington.
In addition, WR has been diligently advocating for the allocation of funds to the task force. With full funding, the AG will have the means to create an internal unit to provide the necessary resources to hire investigators, data analysts, and prosecutors to target major ORC crime rings. As a result of these efforts, the task force has been granted $2.265 million in funding as part of the final budget, which will greatly benefit retailers throughout the state.
SB 5286 – Paid Family and Medical Leave (PFML)
WR worked with a strong coalition to navigate and work to pass this bill which adjusts the first program of its kind in the nation. The legislation modifies the premium calculation formula for the PFML program, ensuring employers and employees share the cost of premiums instead of the burden falling solely on employers as had been carefully negotiated.
HB 1656 – Unemployment Insurance (UI) Benefit Appeals
This bill streamlines UI benefit appeals when there is no challenge to eligibility. It eliminates provisions stating that during a UI appeal, all issues related to a claimant's eligibility for waiting period credit or UI benefits are considered, regardless of the reasons in the notice of appeal. It also eliminates the claimant's work availability from being assessed independently from other matters. This will help small business employers, in particular, that are forced to lay off employees that need to receive UI benefits in a timely manner. It will also simplify for the employer the once complicated and time-consuming task of benefit appeals.
Favorable outcomes: Bills failing to pass
HB 1131 and SB 5154 WRAP Act – extended producer responsibility for packaging and beverage container reimbursement program
This bill would have established a state-run entity to charge producers/retailers for packaging, packaging recycling and disposal and establish a state-run bottle deposit program. Almost all WR members would have been impacted by this bill. The bill would also have been a massive, all-encompassing undertaking to implement. Much of the debate focused around who would be considered a “producer” of packaging and therefore required to pay into the system. This bill is already law in California and Oregon and is sure to be introduced again next session.
HB 1152/SB 5171 – Gender Price Discrimination
The proposed bills sought to prevent retailers, distributors, and manufacturers from imposing different prices on substantially similar products based on the gender of the target market. WR agrees with the intent of pricing fairness, but this would not have remedied the issue. As it stands, Retailers have little to no control over how much manufacturers and wholesalers charge for their products. WR suggests any future legislation on bringing fairness to gender pricing be directed at the manufacturers and wholesalers, not the retailers.
SB 5541 – Transparency in Supply Chains
This bill would have required every retail seller and manufacturer doing business in Washington with annual worldwide gross receipts of $100 million or more to disclose its efforts to eradicate human trafficking and forced labor from its direct supply chain for tangible goods offered for sale. Since Congress passed the Uyghurs Forced Labor Prevention Act, supply chain transparency infrastructure has undergone vigorous development at the national and global levels. While WR supports efforts to end human trafficking and slave labor, adding additional requirements at the state level would be unnecessary and nearly impossible to adhere to.
SB 5110 – Adding a Private Right of Action to RCW 49.44
SB 5110 allows for a private right of action of employer activities prohibited under RCW 49.44 that do not include specific enforcement provisions. Those activities include certain discriminatory practices against persons 40 years of age or older, requiring genetic screening as a condition of employment, and obtaining individually identifiable information regarding an employee’s participation in an employee assistance program. Laws with a private right of action (PRA) allow individuals, or others on their behalf, to bring a lawsuit for breaking state laws. PRAs tend to favor trial lawyers and detract from the role of the Attorney General in enforcing state laws.
HB 1136 – Reimbursement of Employee’s Expenses and Losses
This bill would have required employers to reimburse employees for expenditures and losses incurred directly from their duties and allows an individual to file a lawsuit.
While it is widely agreed that businesses should not pass on expenses to employees, in instances where the employee is required to do so should be treated as wage claims and dealt with through the existing structure administered by Labor & Industries (L&I.) Wage claims should not result in lawsuits but, instead, be processed through the existing framework administered by L&I. The bill has significant shortcomings, including a lack of clarity and undefined terms. There are no limits on what can be bought and no requirement for a written agreement.
HB 1320/SB 5061 – Employee Personnel Records
Requires an employer to furnish an employee or former employee with a complete copy of their personnel file at no cost within 15 business days of a request. Allows an employee to sue for violations of certain rights regarding personnel files. WR is concerned for small to medium size businesses in particular which need more time to respond due to limited human resource department staffing.
Bills passed with significant WR amendments
SB 5217 – Regulating Musculoskeletal Injuries/Ergonomics
This bill repeals the voter-approved prohibition on regulating musculoskeletal injuries and authorizes L&I to promulgate rules for only one industry per year. That sector must have at least two times the injury rate compared to other employer sectors.
WR supported amendments (1) delay rule implementation for three years; (2) exclude those industries within a sector that do not exceed the threshold, (3) correct data collection processes, and (4) add technical assistance resources to L&I, which will make it easier and less punitive against employers.
SB 1762 – Warehouse Regulations
The bill requires certain warehouse distribution center employers to provide written descriptions of quotas and work speed data to employees. Regulated quotas must include sufficient time for breaks and other activities and prohibit retaliation against employees.
WR supported amendments (1) Increases the threshold number of employees to 100 in an individual warehouse or 1,000 statewide; (2) eliminates the private right of action; (3) eliminates Attorney General authority to bring a civil action; (4) eliminates Attorney General authority to bring a criminal action, and (5) adds L&I enforcement and penalty authority.
HB 1155 – My Health My Data Privacy Act
WR supports protecting customers’ sensitive healthcare information. This bill will ban the collection of health care and services-related data and the use of geofencing. It will require the deletion of information upon request by the consumer and exposes regulated entities to lawsuits. The legislation's implementation dates are confusing and conflicting, and it will lead to customer dissatisfaction due to decreased degrees of service. WR worked with the Attorney General and other stakeholders on fully implementing the intent of the bill.
HB 1363, SB 5352, HB 1586, HB 1053, and SB 5034 – All dealing with law enforcement pursuit with a vehicle
The only bill passed is SB 5352, which is weakened by the exclusion of property crimes, such as retail theft and even carjacking. The public expects law enforcement to be able to safely chase criminals. WR and law enforcement will be back in 2024 to attempt to expand the pursuit causes.
Capital Gains Tax upheld by Supreme Court – (WR was part of a lawsuit to overturn)
This new tax imposes a 7% charge on all capital gains income over $250,000. The tax level will likely increase, and the threshold will likely decrease in the sessions to come. WR continues to work with opponents to explore further potential legal, legislative, and initiative responses.
Carryover into 2024
SB 5036 – Making drug possession and use illegal and setting up diversion and treatment programs
This bill would have made possession and or use of uncontrolled substances/drugs a gross misdemeanor and set up diversion and treatment options. As a result of the state Supreme Court decision (Blake), legislation was introduced to address this issue. The bill will likely be considered during a special session in the very near future. Otherwise, local governments will begin passing ordinances to deal with the problem. WR recognizes that many retail thieves are frequently dealing with substance abuse issues and deserving of treatment.
HB 1137/SB 5368 – Return to Work with Non-Profits – (a WR-drafted bill)
Allows an employer with 100 or fewer employees to offer off-site light-duty work to a worker with an established non-profit organization under the L&I Stay-at-Work Program and to seek reimbursement for certain wages paid to the worker. This bill will be a win for the worker, a win for L&I, and a win for the employer.