Worker Protection Act: Ensuring justice can be served

This story was published in the Winter 2021 issue of The Washington Nurse magazine.

Wa nurse worker protections

Missed meal and rest breaks. Unpaid overtime. Falsi­fied timecards.

This was the experi­ence of nurses working in the home care and hospice program at Yakima Regional Medical Center. As reported by the Associ­ated Press: The nurses said they were routinely denied overtime when they had to work more than eight hours per day, such as when a patient nearing death required additional atten­tion or when they had to finish paper­work or coordi­nate further care after a long shift. […] When they complained about having to work for free, they were told they could resign.”

In April 2015, WSNA sued Yakima Regional Medical Center on behalf of its members who worked in the hospital’s home care and hospice program for unpaid hours of work, including unpaid overtime and missed meal breaks. The trial court heard testi­mony from 16 witnesses and reviewed thousands of pages of documents.

The trial court ruled that the Employer delib­er­ately kept inaccu­rate records to make it appear the nurses worked fewer hours than they actually did; bullied the nurses into signing timecards that reflected fewer than the actual number of hours worked; and knowingly, willfully and with intent to deprive nurses of pay they were lawfully owed, failed to compen­sate them for all of the time worked and for the meal breaks they missed.

The trial court awarded WSNA damages for back pay of $1,447,758.09, plus statu­tory double damages because the Employer’s viola­tions were willful, for a total of nearly $2.9 million, plus attor­neys’ fees, costs and interest.

On appeal in August 2020, the Washington State Supreme Court threw out the trial court’s judgment, ruling that WSNA did not have standing to file the lawsuit, saying, The damages estab­lished through repre­sen­ta­tional testi­mony are not certain, easily ascer­tain­able, and within the knowl­edge of the defen­dant.” Although it is undis­puted that the only reason there was any uncer­tainty about the precise amount of damages is that the employer had delib­er­ately, knowingly and willfully falsi­fied its records to deprive the nurses of the wages they had earned, the Supreme Court’s ruling gave the employer immunity from the lawsuit by WSNA to recover the nurses’ stolen wages.

A legislative fix #

WSNA supported a bill in Olympia during the 2020 legisla­tive session that would fix the standing issue for future cases by allowing individ­uals, associ­a­tions or unions to file a cause of action on behalf of the state to enforce various employ­ment laws (such as those in the Yakima nurses’ case). This is called a qui tam action, which currently only applies to Medicaid fraud cases under Washington state law. Last year’s bill number was House Bill 1965, the Worker Protec­tion Act (it will have a new bill number in 2021).

There will be a new bill number for the 2021 legisla­tive session. We will have infor­ma­tion about this on the WSNA website closer to the session and encourage you to ask your legis­la­tors to pass the Worker Protec­tion Act to create a pathway for cases like this.

Why is the Worker Protection Act needed? #

The Worker Protec­tion Act would estab­lish workers’ rights to collec­tive litiga­tion in Washington state. In the case of the Yakima nurses, the Worker Protec­tion Act would give WSNA standing to bring this case.

What are qui tam actions that the Worker Protection Act allows? #

The Worker Protec­tion Act allows a cause of action to be filed by a relator (any person, corpo­ra­tion, associ­a­tion, legal entity or local govern­ment) on behalf of the state to enforce various employ­ment laws. These actions may allege multiple viola­tions affecting multiple employees, essen­tially allowing a class action lawsuit. However, it is impor­tant to note that court rules related to class action lawsuits do not apply for qui tam actions.

The right to bring a qui tam action under the Worker Protec­tion Act may not be impaired by a private agree­ment, such as a worker employ­ment contract, and any settle­ment awarded in court may not be confidential.

What is the state’s role in a qui tam lawsuit? #

A relator bringing a qui tam action must file notice with the state agency. The three state agencies most likely to be involved are:

  • Washington State Depart­ment of Labor & Indus­tries (L&I) for viola­tions of worker protec­tion standards.
  • Washington State Human Rights Commis­sion for viola­tion of discrim­i­na­tion laws.
  • Washington State Depart­ment of Health with respect to whistle­blower protections.

When notice of a qui tam action is given, an agency may choose to inves­ti­gate — in which case, the agency has 180 days to make a deter­mi­na­tion in the inves­ti­ga­tion. Impor­tantly, no action can be taken in court by a relator if the agency takes action to resolve the complaint.

If the agency does not inves­ti­gate or make a deter­mi­na­tion, then the relator may file an action in Superior Court. At this point, the agency is given 30 days in which it may inter­vene in the lawsuit. If the agency inter­venes, then it has the primary litiga­tion responsibility.

How are damages divided in a successful qui tam action? #

The Worker Protec­tion Act clearly outlines how damages are awarded in qui tam actions; it also says the relator who prevails would be entitled to reason­able attor­neys’ fees and costs.

  • If the state agency inter­venes, the agency would receive 80% of the penal­ties awarded and the relator would receive the other 20%.
  • If the state agency does not inter­vene, then the agency would receive 40% of the penal­ties awarded and the relator would receive the other 60%.

It is impor­tant to note that damages awarded to the state agency are required to be distrib­uted to the aggrieved employees.

What if the employer retaliates? #

Retal­i­a­tion against an employee for actions taken under the Worker Protec­tion Act are prohibited.

How is the public notified of qui tam actions? #

The Worker Protec­tion Act requires L&I to publish an online database of qui tam notices. Other agencies must provide infor­ma­tion to L&I for the database.

2021 Legislative Session #

Just like many schools and offices, the Washington State Legislature’s 2021 Regular Session is being held remotely. This year, legis­la­tors will be hearing testi­mony, debating policy and poten­tially voting from their homes. This means that all of us are going to have to modify how we engage with our state lawmakers.

A remote session comes with many challenges, but also new oppor­tu­ni­ties. Because testi­mony will be heard online instead of in person, people who wouldn’t normally have the time to travel to Olympia for testi­mony may be able to share their stories via Zoom. During WSNA’s remote Lobby Day on Feb. 4, 2021, partic­i­pants will meet with legis­la­tors online — it’s easy, and we are hoping it will increase the number of WSNA members who can participate.

Unfor­tu­nately, a remote session also comes with several restric­tions and challenges. Legis­la­tors are facing a large array of policy decisions this year, including COVID-19 response, police account­ability and a $4.5 billion deficit. This means legis­la­tors will have even more limited time than usual — and they are expected to be able to handle fewer bills. This means that WSNA will have to be much nimbler and more creative when it comes to ampli­fying our voices.

The legisla­tive session operates on a biennial schedule, convening for a longer session in the odd years when the state’s biennial budget is written and adopted. This year’s legisla­tive session began Jan. 11, 2021, and will last for 105 days.

W or more infor­ma­tion on bills and the legisla­tive calendar (including cut-off points), visit www​.leg​.wa​.gov.

WSNA’s priorities for the 2021 Legislative Session

WSNA is working to improve enforcement of the Nurse Staffing Law

Our experiences over the past two years have illustrated deficiencies in enforcement of the Nurse Staffing Law, and WSNA has filed 22 complaints with the DOH. We couldn’t have done it without the Assignment Despite Objection (ADO) forms our members filed to call out problems in their facilities.

Your voice is more essential than ever

The legislative session may look different this year, but one thing will remain the same: Your voice is essential to the process! Nurses are the most trusted profession, and your voice carries much credibility and weight with lawmakers.