wa-law.org > bill > 2025-26 > HB 2144 > Original Bill
The following definitions apply throughout this section, unless the context clearly requires otherwise:
"Artificial intelligence" means the use of machine learning and related technologies that use data to train statistical models for the purpose of enabling computer systems to perform tasks normally associated with human intelligence or perception, such as computer vision, speech or natural language processing, translation, decision making, and content generation. For the purposes of this subsection, "machine learning" means the process by which artificial intelligence is developed using data and algorithms to draw inferences thereupon to automatically adapt or improve its accuracy without explicit programming.
"Department" means the department of labor and industries.
"Director" means the director of the department of labor and industries or the director's designee.
"Electronic monitoring" means the collection of information concerning an employee's activities or communications by any means other than direct, in-person observation, including, for example, through the use of artificial intelligence, a digital device, computer, telephone, wire, radio, camera, or electromagnetic, photoelectronic, or photo-optical system.
"Employee" means an individual employed by the employer whether by way of manual labor or otherwise.
"Employer" means any person, firm, corporation, partnership, business trust, legal representative, or other business entity that engages in any business, industry, profession, or activity in this state and employs one or more employees, and includes the state, any state institution, state agency, political subdivisions of the state, and any municipal corporation or quasi-municipal corporation.
"Performance evaluation" means an assessment, conducted by or on behalf of the employer, of an employee's execution of any aspect of the employee's job. "Performance evaluation" may include, for example, the assessment of an employee's competence, productivity, efficiency, achievements, strengths, or areas in need of improvement.
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Except as provided in (c) of this subsection, if an employer intends to use electronic monitoring to assist the employer in conducting a performance evaluation of an employee, the employer must notify the employee in writing at least 30 days prior to implementing the use of electronic monitoring.
If, as of the effective date of this section, an employer is already using electronic monitoring to assist in a performance evaluation of an employee, the employer may continue to use electronic monitoring but must provide written notice to the employee within 60 days of the effective date of this section.
Beginning on the effective date of this section, when an employer hires an individual for employment and the employer uses or intends to use electronic monitoring to assist in performance evaluations, the employer must, at the time the job offer is made, provide written notice to the individual stating that the employer uses or intends to use electronic monitoring to assist in performance evaluations.
The notice required under this section must include: (i) A summary of the ways electronic monitoring is or will be used to assist the employer with performance evaluations, such as whether electronic monitoring is used to gather an employee's productivity data, summarize internal data or feedback on an employee, or create a summary of an employee's performance; and (ii) a summary of the verification process, if any, the employer uses to confirm data gathered by the electronic monitoring.
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If an employee files a complaint with the department alleging a violation of the requirements of this section, the department may investigate the complaint. The department may issue either a citation and notice of assessment or a closure letter.
The department may not investigate any complaint alleging a violation of this section that occurred more than three years before the date the employee filed the complaint.
If the department finds that an employee's allegation cannot be substantiated, the department shall issue a closure letter to the employee and the employer detailing the department's finding.
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If the department finds that the employer violated the requirements of this section, the department shall issue a citation and notice of assessment.
The department's citation and notice of assessment must order the employer to immediately comply with the requirements of this section. If the department determines that the violation of this section was a willful violation, the department shall order the employer to pay the department a civil penalty of no less than $100 and no more than $5,000. For repeat willful violations, the department shall order the employer to pay the department a civil penalty of no less than $5,000 for each repeated willful violation. The department may, at any time, waive or reduce a civil penalty assessed under this section.
The department may collect unpaid citations pursuant to RCW 49.48.086.
The department shall deposit civil penalties paid under this section in the supplemental pension fund established under RCW 51.44.033.
For the purposes of this subsection (4), "willful" means a knowing and intentional action that is neither accidental nor the result of a bona fide dispute. "Repeat willful violator" means an employer who has been the subject of a final and binding citation for a willful violation of this section within three years of the date of issuance of the most recent citation for a willful violation.
The department may issue subpoenas to compel the attendance of witnesses or parties and the production of documents, administer oaths and examine witnesses under oath, take depositions, and seek affidavits or other verifications. The department may request an employer to perform a self-audit of any records, which must be provided within a reasonable time as specified in the self-audit request. The records the employer examines for the self-audit must be made available to the department upon request.
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An employer or employee aggrieved by a citation, assessment, or determination issued by the department under this section may appeal the citation, assessment, or determination to the director by filing a notice of appeal with the director within 30 days of the department's issuance of the citation, assessment, or determination. A citation, assessment, or determination not appealed within 30 days is final and binding and not subject to further appeal.
A notice of appeal filed with the director under this section stays the effectiveness of the citation, assessment, or determination pending final review of the appeal by the director as provided for in chapter 34.05 RCW.
Upon receipt of a notice of appeal, the director shall assign the hearing to an administrative law judge of the office of administrative hearings to conduct the hearing and issue an initial order. The hearing and review procedures must be conducted in accordance with chapter 34.05 RCW, and the standard of review shall be de novo. A party who seeks to challenge an initial order must file a petition for administrative review with the director within 30 days after service of the initial order. The director shall conduct an administrative review in accordance with chapter 34.05 RCW.
The director shall issue all final orders after appeal of the initial order. The final order of the director is subject to judicial review in accordance with chapter 34.05 RCW.
Orders that are not appealed within the time period specified in this section and chapter 34.05 RCW are final and binding and not subject to further appeal.
An employer who fails to allow adequate inspection of records in an investigation by the department under this section within a reasonable time period may not use such records in any appeal under this section to challenge the correctness of any determination by the department of penalties assessed.
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In addition to the administrative remedy provided under this section, an employee may bring a civil action against an employer for a violation of this section. A prevailing employee is entitled to statutory damages of no less than $100 and no more than $5,000, plus reasonable attorneys' fees and costs. In determining the amount of statutory damages, the court shall consider the following: Whether the violation was committed willfully or the violation is a repeat violation; the size of the employer; the amount necessary to deter future noncompliance; the purposes of this section; and any other factor deemed appropriate by the court. The court may also order actual damages, reinstatement, injunctive relief, and other appropriate remedies for an employee injured by a violation of this section.
The employee must bring a civil action within three years of the date of the alleged violation of this section regardless of whether the employee pursued an administrative complaint.
The department may adopt rules to implement this section.