The “litigation privilege” is a judicially created privilege that protects participants—including attorneys, parties, and witnesses—in a judicial proceeding against civil liability for statements they make in the course of that proceeding. See, e.g., Mason v. Mason, 19 Wn. App. 2d 803, 830-31, 497 P.3d 431 (2021) review denied, 199 Wn.2d 1005 (2022); Deatherage v. Examining Bd.  of Psychology, 134 Wn.2d 131, 135-36, 948 P.2d 828 (1997). As applied to witnesses, the privilege is sometimes referred to as witness immunity, and under it, “[a]s a general rule, witnesses in judicial proceedings are absolutely immune from suit based on their testimony.” Bruce v. Byrne-Stevens & Assocs. Eng’rs,  Inc., 113 Wn.2d 123, 125, 776 P.2d 666 (1989).

Statements “are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief.” McNeal v. Allen, 95 Wn.2d 265, 267, 621 P.2d 1285 (1980). But statements having “ ‘no connection whatever’ ” with the litigation are not privileged. Demopolis v. Peoples Nat. Bank of Wash., 59 Wn. App. 105, 110, 796 P.2d 426 (1990) (quoting RESTATEMENT (SECOND) OF TORTS, § 586, comment c (AM. LAW INST. (1977))). Thus, not every passing statement made in court avoids liability. But the determination of pertinency is not a high bar. As the Restatement (Second) of Torts indicates, a statement “need not be strictly relevant to any issue” so long as it bears “some reference to the subject matter of the . . . litigation.” RESTATEMENT § 586, comment c.
 
Litigation privilege therefore prohibits liability stemming from statements (1) made in the course of a judicial proceeding (2) that are pertinent to the litigation. Pertinency is a question of law reviewed de novo. Demopolis, 59 Wn. App. at 110.
 
The purpose of the litigation privilege doctrine is to encourage frank, open, untimorous argument and testimony and to discourage retaliatory, derivative lawsuits. As applied to attorneys, it furthers “ ‘a public policy of securing to [counsel] as officers of the court the utmost freedom in their efforts to secure justice for their clients.’ ” Mason, 19 Wn. App. 2d at 831 (quoting McNeal, 95 Wn.2d at 267). As applied to witness testimony, it preserves “the integrity of the judicial process by encouraging full and frank testimony.” Bruce, 113 Wn.2d at 126. The rule addresses the concern that a witness may either be reluctant to come forward to testify in the first place or shade their testimony “to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence.” Briscoe v. LaHue, 460 U.S. 325, 333, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983).

Source:  Young v. Rayan et al., Washington Court of Appeals, Div. 1, (No. 84426-1-I (06/26/2023).

On June 14, 2021, Seattle City Council passed SMC 14.34, the Independent Contractor Protections (ICP) Ordinance. This ordinance requires covered hiring entities to provide independent contractors with disclosures prior to entering a contract and at the time of payment. In addition, hiring entities must provide timely payment under the terms of a contract, the terms of the pre-contract disclosure, or within 30 days of contract performance. The ordinance goes into effect on September 1, 2022.

The ordinance requires commercial hiring entities to provide self-employed independent contractors with: 

• A pre-work written notice that identifies the proposed terms and conditions of work and the terms and conditions of payment before starting work. 
• Timely payment in accordance with the terms and conditions of the pre-work written notice or contract. 
• If left unspecified, then provide payment within 30 days after the completion of services under the contract.
• A written notice that gives specific itemized payment information each time that payment is made.   

Note: ICP does NOT require any specific terms or conditions for the pre-work written notice or contract. 
Who is Covered? 
Self-employed independent contractors who:  

1.  have no employees, 
2. perform any part of their work in Seattle for a commercial hiring entity, AND  
3. will receive or may reasonably expect to receive at least $600 in total compensation from the hiring entity between January 1 and December 31 in a given year.  

Timeline for compliance 

1. Hiring entities that have an independent contractor already working for them as of September 1, 2022 must provide the required notice of rights and pre-work written notice to the independent contractor either by September 30, 2022 or by the date of compensation, whichever date is sooner. 
2. Hiring entities that hire an independent contractor after September 30, 2022, must provide the required notice of rights and pre-work written notice

• before the independent contractor begins work for the hiring entity. 
• Hiring entities must provide the required written notice
• that gives specific itemized payment information
  1. each time payment is made to the independent contractor.
  Contact OLS  
  • Hiring Entities: Hiring Entities may contact OLS to request translation of model notices, assistance with compliance, or training via the Employer Inquiry form.  
  • Independent Contractors: Covered independent contractors have a right to make a complaint with OLS or file a lawsuit if a hiring entity violates this law. Independent contractors may file a complaint with OLS or ask a question via the Worker Inquiry form. 
  Workplace Poster and Other Resources: OLS provides multiple resources on this law, including: Notice of Rights workplace poster, Model Pre-Work Written Notice, Model Written Notice – Itemized Payment Information, and Fact Sheet. The most updated resources can found for download on this page or on our Resources page.  Many resources, including the Notice of Rights workplace poster and model written notices, will also be available in Spanish and multiple other languages on the Language Access pages. 
  Translations: ICP Fact Sheets are available in Amharic, Simplified Chinese, Japanese, Khmer, Korean, Punjabi, Somali, Spanish, Tagalog, Tigrigna, Vietnamese on the OLS Languages webpage.

Source:  City of Seattle Office of Labor Standards

Washington businesses and individuals who hire employees and independent contractors should be aware of the following notable change to Washington law and take the following recommended actions.    See RCW 49.44.211.

Effective June 9, 2022, employers may not include a provision in any contract with an employee or independent contractor that prohibits the employee or independent contractor from disclosing or discussing conduct, or the existence of any settlement involving conduct, that the employee or independent contractor reasonably believed under Washington state, federal, or common law to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, or that is recognized as against a clear mandate of public policy. Prohibited non-disclosure and non-disparagement provisions include those contained in employment agreements, independent contractor agreements, agreements to pay compensation in exchange for the release of a legal claim, or any other agreement between an employer and an employee.   

It is a violation of the new law for an employer to seek to enforce such a provision, for an employer to request or require an employee enter into such a provision, and for an employer to discharge, discriminate, or retaliate against an employee for disclosing or discussing conduct that the employee reasonably believes to be illegal conduct.

​An employer who violates this section after June 9, 2022, can be held liable in a civil cause of action for actual or statutory damages of $10,000, whichever is more, as well as reasonable attorneys' fees and costs.

Action Items: Update Employee Handbooks ASAP and issue notice to independent contractors with this or similar language:  

"The Company does not restrict or prohibit employees or independent contractors from disclosing or discussing conduct, or the existence of any settlement involving conduct, that the employee or independent contractor reasonably believes under Washington state, federal, or common law to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, or that is recognized as against a clear mandate of public policy. This includes such conduct that occurs at the workplace, at work-related events coordinated by or through Company, between employees, or between Company and an employee, whether on or off the employment premises."

Action Item: Update templates for Offer Letters, Employment Agreements, Non-Disclosure Agreements, Independent Contractor Agreements, Employee Separation and Release Agreements, and Employee Resignation Agreements to ensure compliance. 

Contact Mark D. Walters

RCW 49.44.200 provides: 
(1) An employer may not:
(a) Request, require, or otherwise coerce an employee or applicant to disclose login information for the employee's or applicant's personal social networking account;
(b) Request, require, or otherwise coerce an employee or applicant to access his or her personal social networking account in the employer's presence in a manner that enables the employer to observe the contents of the account;
(c) Compel or coerce an employee or applicant to add a person, including the employer, to the list of contacts associated with the employee's or applicant's personal social networking account;
(d) Request, require, or cause an employee or applicant to alter the settings on his or her personal social networking account that affect a third party's ability to view the contents of the account; or
(e) Take adverse action against an employee or applicant because the employee or applicant refuses to disclose his or her login information, access his or her personal social networking account in the employer's presence, add a person to the list of contacts associated with his or her personal social networking account, or alter the settings on his or her personal social networking account that affect a third party's ability to view the contents of the account.
(2) This section does not apply to an employer's request or requirement that an employee share content from his or her personal social networking account if the following conditions are met:
(a) The employer requests or requires the content to make a factual determination in the course of conducting an investigation;
(b) The employer undertakes the investigation in response to receipt of information about the employee's activity on his or her personal social networking account;
(c) The purpose of the investigation is to: (i) Ensure compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct; or (ii) investigate an allegation of unauthorized transfer of an employer's proprietary information, confidential information, or financial data to the employee's personal social networking account; and
(d) The employer does not request or require the employee to provide his or her login information.
(3) This section does not:
(a) Apply to a social network, intranet, or other technology platform that is intended primarily to facilitate work-related information exchange, collaboration, or communication by employees or other workers;
(b) Prohibit an employer from requesting or requiring an employee to disclose login information for access to: (i) An account or service provided by virtue of the employee's employment relationship with the employer; or (ii) an electronic communications device or online account paid for or supplied by the employer;
(c) Prohibit an employer from enforcing existing personnel policies that do not conflict with this section;
(d) Prevent an employer from complying with the requirements of state or federal statutes, rules or regulations, case law, or rules of self-regulatory organizations; or
(e) Apply to a background investigation in accordance with RCW 43.101.095. However, the officer must not be required to provide login information.
(4) If, through the use of an employer-provided electronic communications device or an electronic device or program that monitors an employer's network, an employer inadvertently receives an employee's login information, the employer is not liable for possessing the information but may not use the login information to access the employee's personal social networking account.

An employee or applicant aggrieved by a violation of RCW 49.44.200 may bring a civil action in a court of competent jurisdiction. The court may:
(1) Award a prevailing employee or applicant injunctive or other equitable relief, actual damages, a penalty in the amount of five hundred dollars, and reasonable attorneys' fees and costs; and
(2) Pursuant to RCW 4.84.185, award any prevailing party against whom an action has been brought for a violation of RCW 49.44.200 reasonable expenses and attorneys' fees upon final judgment and written findings by the trial judge that the action was frivolous and advanced without reasonable cause.  RCW 49.44.205.

Contact Mark D. Walters​

Year.Month.Day - Description 
2022.05.18 - File Naming Protocol

A claim for unjust enrichment may be brought by a party to recover the value of a benefit retained even absent any contractual relationship, if fairness and justice require it. Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 (2008).  
Unjust enrichment requires proof of three elements:
(1) the defendant receives a benefit;  
(2) the received benefit is at the plaintiff's expense; and
​(3) the circumstances make it unjust for the defendant to retain the benefit without payment. Young v. Young, 164 Wn.2d at 484-85. 
An unjust enrichment claim is founded on notions of justice and equity. Young v. Young, 164 Wn.2d at 486. 

There is nothing worse than an employer who accepts the labor of a worker and then refuses to pay the worker.  

Under Washington law, all wages owed to a departing employee must be paid at the end of the next established pay period.  This means employers have to pay departing employees all wages owed on the next regular pay day following the termination date. 

Washington law defines the term "wages" as "compensation due to an employee by reason of employment.”  This can include wages below the minimum wage, being forced work off the clock, overtime pay, hourly wages, salary, commissions as well as unused accrued PTO and vacation pay, and in some cases severance pay.  

Workers in Washington State should know that the law is very pro-employee in this arena. In as recent case, one Washington court explained:  "[Washington’s] wage statutes were enacted to prevent abuses by employers in the labor-management setting, and they reflect the legislature's strong policy in favor of payment of wages to employees. . . . The “‘fundamental purpose of the legislation, as expressed in both the title and body of the act, is to protect the wages of an employee against any diminution or deduction therefrom by rebating, underpayment, or false showing of overpayment of any part of such wages.’” . . . Thus, these wage statutes must be liberally construed to advance the legislature's intent to protect employee wages and assure payment." (Internal citations omitted). 

By statute, employers who fail to pay wages owed to employees can be held liable to the employee for two times the amount of unpaid wages, plus the attorney fees the employee incurs pursuing the recovery of the unpaid wages.   

Unpaid wage liability can attach to the company employer, and officers or agent of the employer.  So, even if the company goes out of business and has no funds, the employee can recover unpaid wages from the company's officers and managers.  

Washington employees are also protected from retaliation if they speak up to their employer to enforce their rights.  

If you are a worker in Washington that has not been paid all wages you are owed by your employer , contact Mark D. Walters.