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.