Washington Department of Labor & Industries Implement Changes to Red Card Appeals Processes and Discrimination Adjudication Processes in August
The Washington Department of Labor & Industries intends to implement the provisions of 2021’s Engrossed Substitute House Bill 1097 later this month. This bill made changes to the inspection and appeal process of Orders of Immediate Restraint (OIR), set up an adjudicatory process for discriminatory employer conduct, and provided additional guidance for calculation of penalties.
An OIR, colloquially know as a red card, is a restriction on any condition, practice, method, process, means, equipment or machinery which violates the requirements of RCW 49.17.060 or any safety and health standards promulgated by the Department where the violation creates a substantial probability that death or serious physical harm could result to workers, and the Department has taken action to restrain this condition, method, process, means, equipment or machinery.
The first change to the rule includes a provision under which an employer may contest an OIR within 10 working days by petition to the superior court in the county in which the condition restrained by the OIR exists. The employer should abide by the OIR until a determination has been made on the petition, because the penalty for failing to abide by the OIR is difficult to overturn.
Where an OIR has been identified and the employer is accused of failing to obey the restriction, the Department must notify the employer of the violation and penalty assessed by confirmed delivery or mail. At that time the employer has 15 working days from the notification to appeal before assessment of penalty becomes final without review.
Additionally, the changes afford workers additional time to bring complaints of discrimination. Under the old rule, employees who believed they were subject to discriminatory conduct as a result of their report had thirty days to file a complaint. The new changes allow workers ninety days to file a complaint, and the Department may extend that period for equitable principles or extenuating circumstances. The rule maintains the presumptive ninety days for the Department’s determination, but also allows the Department to extend that time for good cause expressed in writing to employer and complainant prior to the expiry of the original ninety days.
Where the Department determines the complainant has in fact been subject to discriminatory conduct, then it may issue its choice of penalty, either a citation and notice of assessment, a civil penalty, or an order for appropriate relief. Appropriate relief includes restoring the complainant’s position, schedule, benefits, and pay, or even issuance of back pay at a rate of one percent interest. Civil penalties should be paid to the Director for administration to the supplemental pension fund, but they are not to exceed maximum penalties assessed for first or repeat violations, depending on which category is applicable.
Where the Department finds insufficient evidence of a violation, it will issue a letter of closure at which time the employee may take the issue to superior court. However, if either the employer or complainant appeal the Department’s determination, the Department may reassume jurisdiction, and any final orders will be appealable to the Board of Industrial Insurance Appeals at which the Department’s orders will be defended by an Assistant Attorney General, as in other Department adjudicated cases.
If you have any questions about the updated OIR procedures or discriminatory adjudication processes, please feel free to contact me at