2022 Business Law Updates! WA, OR & CA

By: Principal Attorney/Owner Michael Jonas 

Washington

Minimum Wage Increase. The State of Washington has increased minimum wage from $13.69 an hour to $14.49 an hour. You’re probably thinking that this is much more than the current federal minimum wage of $7.25, which hasn’t been updated since 2009! If you’re curious, here’s a Labor Department map of each state and where the minimum wage is currently at: https://www.dol.gov/agencies/whd/minimum-wage/state. Note that cities can and do pass ordinances for higher minimum wages (ie. Seattle’s 2022 minimum wage for most workers is $17.27).

Single Use Plastic Utensils, Etc. Washington food service businesses must affirm with a customer that they want a single use straw or utensil before giving it to them/just placing it in a bag. This is similar to Portland, Oregon’s city policy (Oregon state does have a state-wide policy relating to plastic bags but not utensils). No affirmation or confirmation is needed for drink cup lids for hot drinks or drinks served by delivery/curbside pick up/drive throughs/concert venues. A food service business can set single use items out so the customer can choose what they need. 

Long-Term Care State Fund Law On Hold. A law called the Washington Cares Fund that required all employers to collect and all employees to pay 58 cents of every $100 they earned into the state’s common fund for long term-care benefits has been put on hold for now. You can read more about it here: https://wacaresfund.wa.gov/ 

Oregon

Driver’s License Not Required for Condition of Employment Unless Driving is Essential or A Legitimate Business Purpose to the Position. Employers must accept other valid identification types besides driver’s licenses to verify citizenship (I-9 process). The employee can voluntarily provide a driver’s license for their verification but the employer can’t require it for this or for the job itself. I’m not sure what the “legitimate purpose” would be requiring an employer to require a driver’s license besides driving itself but we shall see as this law plays out what courts deem to be legitimate purpose  requests by employers. 

Significant OR Noncompete Agreement Changes. As many of you know, noncompetes are illegal in California. While they are still legal in Washington and Oregon, they can more and more rules based with the rules needing to be followed or they are thrown out. A law passed last year in Oregon went into play this January 1st with additional Oregon noncompete changes. They are pretty significant! First, employees subject to a noncompete must earn a gross salary and commissions of more than $100,522. This seems to make so so so many employees with noncompetes able to get out of them. Second, the post-employment restricted period of 18 months (a year and a half) is now 12 months (1 year). And For my policy wonks, here’s all the information: https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/SB169

Minimum Wage Increase. This takes place this year but not until July 1, 2022.. In Oregon, the minimum wage rate varies depending upon an employer’s location categorized by (1) standard counties; (2) Portland’s metropolitan area; and (3) nonurban counties. The wage increase for each location will be as follows: (1) standard counties: $13.50 per hour; (2) Portland metro region: $14.75 per hour; and (3) nonurban counties: $12.50 per hour. See this BOLI map to help identify what the minimum wage is for that area:  https://www.oregon.gov/boli/workers/Pages/minimum-wage.aspx

California

Minimum Wage Increase. On January 1st, the state minimum wage increased as follows: $15 per hour for employers with more than 25 employees AND $14 per hour for employers with 25 or fewer employees. Similar to WA and Oregon, cities and counties can make their own rules going past (increasing the state minimum). 

Expansion of California Family Rights Act: This Act requires employers with five or more employees to provide up to 12 weeks of leave in a 12-month period for an employee to attend to his/her/their serious medical condition or to care for someone in their family with a medical condition. The issue is what is “family?” Family now includes “parents-in-law.” I’m hoping in all three states, the definition of “family” codified further progresses to match actual families and what they look like and are. 

Non-Disparagement And Non-Disclosure Provisions in Settlement. This is also known as the “Silenced No More Act.” As you may be aware people who have experienced workplace discrimination, harassment, wage violations, and so on, have been afraid to disclose because of a worry of retaliation (ie. losing their job, not getting promoted, a meritless lawsuit brought by their employer, the conditions becoming worse). Now, any non-disparagement agreement or contractual provision restricting an employee’s ability to disclose information related to conditions in the workplace must include: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.” The changes are not retroactive and only apply to agreements entered into after January 1, 2022. Here’s an interesting article about this: https://www.fastcompany.com/90706957/this-new-law-protects-ca-workers-with-ndas-alleging-discrimination

Personnel Records Retention – Employers in CA must now retain personnel records for four years, not two. (This is four years from the date of records creation, date of termination, or date of non-hire for an applicant.

Food Delivery Platforms And Workers’ Tips. This new California bill makes it unlawful for a food delivery platform (Postmates, Uber Eats, Grubhub, etc) to retain any portion of tips paid by the customer to the delivery worker. Meaning, there can be delivery fees and other fees assessed, but if it says “tips” and a customer makes a decision on that amount and hits submit, 100% must go to the delivery person!  

Employers Who Violate Wage Laws Can Have A Lien On Their Property Without a Court Judgment. The Labor Commissioner of CA can, based on money due for wage and hour violations that are final citations, findings, or administrative decisions, obtain liens on that employer/business owner’s real property. Prior to this, a final court order was needed. Pay your people what they earned and deserve and this shouldn’t happen to you! 

Garment Workers Can Not be Paid Piece by Piece Unless They Also Get A Minimum Wage. It’s surprising this just changed in 2022, but here we are. Garment workers were often paid by piece but not a minimum wage. Now, garment workers can also be paid by piece but only if they also receive at least a minimum wage. This law could hold clothing brands liable for violations that occur in manufacturing facilities by vendors. Meaning, it may be due diligence to confirm with those you work with that they are following this law.  

Federal Intellectual Property Trademark Changes

The Trademark Modernization Act is a federal law that was actually passed by Congress in 2020. However, it has slowly been rolling out both based on design and because of the unpredictable pandemic. 

Most of these rules are things that your attorney can advise you on when you are doing trademark services (ie. they affect you), but you may not have known the existing rules previously for reference. One of the major changes will be in 2023–it will change office action response times by trademark examiners from being due within 6 months to being due within 3 months. 

The United States Patent and Trademark Office (USPTO) actually does a good job at laying out the changes here: https://www.uspto.gov/trademarks/laws/2020-modernization-act

The changes are described as “ new tools to clear away unused registered trademarks from the federal trademark register and the USPTO has the ability to move applications through the registration process more efficiently.” 

Who wants to read 5,593 pages?
Here you are: https://www.congress.gov/116/cprt/HPRT42770/CPRT-116HPRT42770.pdf#page=2606

Note: This is not an exhaustive list. These were curated for this blog as they seemed most relevant to small businesses and nonprofits. These are state and federal laws–counties and cities often also have ordinances that affect businesses and workplaces. It’s always good to consult with a lawyer about these matters. Our firm can help clients in all three states mentioned in this blog: WA, OR, and CA. Please contact us here: www.rationalunicorn.com/contact