Legislative Wrap-up of the 2021 Legislative Session
The Legislature adjourned the 2021 Regular Legislative Session on Sunday, April 25, 2021, just hours before the deadline set by the State Constitution. Prior to adjournment, the Legislature approved a $59 billion operating budget for the next two years and a new transportation budget. The House and Senate also approved some controversial and sharply-divided measures on the last day of the 2021 Legislative Session, including a new Capital Gains Tax, a Cap and Trade program intended to address greenhouse gas emissions, and a bill establishing low carbon fuel standards.
For the WDTL, the 2021 Legislative session was filled with high profile defensive priorities—measures that were of great concern to the members of the WDTL and allied business, health care, local government and other defense-oriented stakeholders. I am pleased to report that virtually all of these measures were either negotiated to an acceptable resolution, or they were defeated or left behind, without being brought to a vote.
For most bills, the Governor has twenty days, excluding Sundays, to act on bills that have been approved by the Legislature. Thus, May 18, 2021 is the last day for Governor Inslee to take action on bills that have been passed during the 2021 Regular Session. Because there is no “pocket veto” in Washington State, if the Governor fails to take action on a measure, it becomes effective without the Governor’s signature. Unless otherwise specified, measures passed by the Legislature become effective 90 days after the close of the session—July 25, 2021.
Key Issues for the WDTL During the 2021 Legislative Session
Controversial Qui Tam Proposal Defeated
Perhaps chief among the most threatening of the proposals of concern to the WDTL was HB 1076—a measure that has been compared to California’s PAGA legislation (Private Attorneys General Act). The bill would have specifically authorized Qui Tam authority for violations of minimum wage requirements, prevailing wage, health care facility overtime standards, WISHA and workplace safety laws, family and medical leave requirements, gender equal pay, agricultural industry labor requirements, and meal and rest break requirements set by the Department of Labor and Industries. Qui Tam authority would also extend to the Washington Law Against Discrimination and whistleblower anti-retaliation standards enforced by the Human Rights Commission.
The Qui Tam authority would have authorized a private action to be maintained on behalf of a private “Relator” who seeks remedies for violations of the various employment laws referenced in the bill. If the public entity with jurisdiction for enforcing compliance with the requirements intervenes in the action, the relator would receive 20% of any penalty determined, with the remainder going to the agency or public entity. If the public entity does not intervene, the relator would receive 40% of any penalty determined, with the remainder going to the agency. The relator would be entitled to recover all fees and costs.
At hearings for the bill, small business advocates, Alaska Airlines, the Washington State Hospital Association, and others testified in opposition to the bill. They pointed to controversial lawsuits against businesses in California, stemming from the state’s new “Private Attorney General Act”, as a reason to be cautious about 2SHB 1076. Importantly, WDTL members Derek Bishop and Bill Symmes provided key testimony in opposition to the bill at hearings in both the House and Senate, emphasizing the threat that the measure poses to small employers throughout Washington state. Organized labor and plaintiff lawyer stakeholder groups testified in support of the measure. After passing the House on a final vote of 53-44, the bill was killed in the Senate Ways and Means Committee when it was not brought to a vote of the Committee. The bill has been returned to the House Rules Committee, where it will be available for consideration once again in the 2022 Legislative Session.
Data Privacy Bill Dies in Dispute--Disagreements Over Private Right of Action and Right to Cure
2SSB 5062 was Senator Carlyle’s most recent effort to enact privacy standards for consumer data that are similar to protections that have been approved in California and Europe. This was the third data privacy bill in three legislative sessions that have been introduced by Senator Carlyle, and all have failed to be enacted due to unresolved disagreements. This year, the disagreements were concentrated within the House. Large portions of the technology industry and the general business community have consistently expressed support for the substance of Senator Carlyle’s proposals dealing the data privacy, but they have made it clear that they cannot support a proposal that includes a private right of action. In prior years, the measure failed due to disagreements between the House and Senate over whether a private right of action should be included in the bill. Although it appears that the private right of action remained a tough, and unresolved issue between the House and Senate, broader disagreements appear to have been at play among House Democrats this year—likely related to criticisms of the bill advanced by the American Civil Liberties Union and other consumer advocates.
While employers have consistently objected to the inclusion of a private right of action in the bill, they have also strongly requested that the bill should include a “right to cure” for alleged violations under the bill. Key members in the House were trying to develop a plan that would include a private right of action (which business groups oppose), but that would also include a “right to cure” (which business groups support). On Wednesday, April 21, 2021, the Office of the Attorney General sent an e-mail to House Democrats strongly objecting to any plan that would include a right to cure in the bill. This development effectively stalled further discussions around the bill. Although the bill was advanced to the House floor for possible consideration, the measure died when it was not brought to a vote. The bill has been returned to the Senate Rules Committee where it will be available for possible consideration during the 2022 Legislative Session.
Governor Considers Bill Addressing Defenses in Personal Injury and Wrongful Death Cases where the Person Injured or Killed was Committing a Felony
The Governor is currently considering ESSB 5263—a measure providing that, in actions arising out of law enforcement activities resulting in personal injury or death, it is a complete defense to the action that the finder of fact has determined beyond a reasonable doubt that the person injured or killed was engaged in the commission of a felony at the time of the occurrence causing the injury or death, the commission of which was a proximate cause of the injury or death. However, this defense does not affect the right to bring a lawsuit under the federal Civil Rights Act of 1983. The bill was substantially amended through the legislative process, and is now limited to actions arising out of law enforcement activities.
Current law provides that it is a complete defense to any lawsuit for damages for personal injury or wrongful death that the person injured or killed was engaged in the commission of a felony which was a proximate cause of the injury or death. However, this defense does not affect the right to bring a lawsuit under the federal Civil Rights Act of 1983. As introduced, the original version of SB 5263 would have narrowed the complete defense against any personal injury or wrongful death lawsuits for damages, to instances where the person injured or killed has been convicted of a class A or B felony, which was a proximate cause of the injury or death.
When the original bill was considered at a hearing, WDTL members Mike Sanders, Jean Homan (for the City of Tacoma), and Megan Coluccio, testified in opposition to the measure, along with other stakeholders from local government, police, and liability perspectives. They noted that the original version of the bill would have required the conviction of a felony in order to assert the defense. They expressed opposition to the idea that defendants could be exposed to liability for the actions of an attacker who was not convicted of a felony. They also noted that dead people cannot be prosecuted, so when a person is killed in self-defense, the attacker's estate would be able to sue and the current defense would not be available for the defendant.
The bill was amended following this testimony, and the amended version of the bill is now pending before Governor Inslee.
Senate Declines to Advance Controversial Prejudgment Interest Bill
The Senate failed to bring SSB 5155 to a vote on the Senate floor before the deadline for passage. The original version of the bill would have caused prejudgment interest to run from the date that the cause of action accrued. The bill would have required interest to accrue at 2% above the prime rate. Although the measure was amended by two Senate Committees, the bill was not considered further after missing the critical deadline for approval on the Senate floor.
Ryan Beaudoin, on behalf of WDTL, together with the Liability Reform Coalition, business, Hospital, and Physician groups, testified in opposition to the measure when it was considered by the Senate Law and Justice Committee. They noted that plaintiffs usually take two to three years before they file a lawsuit, and the courts can take many years before they go to trial, so that defendants would be penalized by paying for prejudgment interest for events that are out of their control. Plaintiff lawyers and consumer groups testified in support. The bill was approved by the Senate Law and Justice Committee on February 4, 2021, and the revised bill was referred to the Senate Ways and Means Committee. The amended bill that was approved by the Senate Law and Justice Committee provided that interest on judgments involving medical malpractice claims runs from the date of the entry of judgment, and not from the date that the cause of action accrued.
Negotiations Result in Agreement on Consumer Protection Act Bill
Negotiations between business stakeholders and the Office of the Attorney General resulted in agreement on key amendments to SSB 5025—a measure that increases penalties for violations under the Consumer Protection Act. The agreed-to bill has been approved by the House and Senate, and is awaiting action by Governor Inslee.
The original bill, which was requested by Attorney General Ferguson, would have dramatically increased penalties for violations of the Consumer Protection Act (“CPA”). The bill would have also only allowed a prevailing defendant to be awarded attorney’s fees if the state's action is found to be frivolous, and when a prevailing defendant under the CPA is not a small business. Business groups testified against the measure when it was considered. Negotiations between the Office of the Attorney General and business stakeholders resulted in key amendments that were adopted when the measure was considered in the House. The revised bill includes an increase in penalties under the CPA, but the increases were reduced from the original version of the bill, and are in alignment with the number of years since the penalties were last adjusted. The increases are at 50% to 70% above current levels. The revisions also provide that a prevailing defendant can recover attorney’s fees.
House Declines to Advance Bill Abolishing Professional Rescue Doctrine
The House failed to move forward SHB 1341, and the bill died when it was not approved before the applicable deadline. The measure would have abolished the professional rescue doctrine, that precludes a professional rescuer from recovering for injuries inherently within the scope of a particular rescue activity. The general rule in Washington is that a person who is injured while rescuing or attempting to rescue another may recover from the party whose negligence created the need for rescue. Because professional rescuers assume certain risks as part of their profession, the general rule does not apply to them. The bill was presented due to several high profile cases involving serious injuries to professional firefighters who have been precluded from recovering for these injuries in civil actions.
SHB 1341 would have abolished the restriction related to professional rescuers. Although they did not testify, many public and private sector stakeholders expressed deep concern about the bill. The measure was considered and approved by the House Civil Rights and Justice Committee, but it was not brought to the House floor for consideration prior to the deadline for passage. The bill remains in the House Rules Committee, where it will be available for consideration during the 2022 Legislative Session.