As of today, Initiative 124, which was approved by Seattle voters in November 2016, is nearly dead after the State Court of Appeals invalidated it for impermissibly containing multiple, unrelated subjects. But Council members Teresa Mosqueda and Debora Juarez, along with some of their colleagues, are about to take a look at passing at least parts of it into law the old-fashioned way — and fixing some of its most glaring flaws in the process.
I-124, entitled “An act establishing minimum health and safety standards for hotel employees in the City of Seattle,” has four main sections, summarized below:
- Measures to protect hotel workers from assault and sexual harassment. Among other things, it requires hotel employers to provide a panic button to each employee assigned to work alone in a guest room. It also requires hotels to maintain a list of guests who have been accused of any act of violence, and hotels must ban those guests from returning to their hotel for at least three years from the data of the reported incident.
- Protecting hotel employees from injury. Hotels are required to use and provide safety devices and work practices that are adequate to make the workplace safe, including storage/handling/exposure of chemicals. It also places a cap on the square footage of space that the hotel can require a worker to clean in an eight-hour shift, and if a worker agrees to clean more, the hotel must pay 1.5 times regular pay for all hours worked in that shift.
- Improving access to medical care for low-income hotel workers. Hotels must either provide a gold-level medical plan to low-income workers, or pay them roughly the cost of a gold-level plan in addition to their regular pay.
- Reducing layoffs from the sale of hotels. If a hotel is sold, then the new owner must initially offer jobs to the workers employed by the previous owner before hiring any new employees, unless the new owner decides to hire fewer employees or discharges any of them for just cause.
There are numerous issues with I-124, and it demonstrates perfectly the biggest hazard of the voter initiative process: without a legislative process that allows for deliberations and amendments to identify and correct a bill’s faults, initiatives often become “take it or leave it” propositions where the voters must decide whether they prefer a badly-written bill to no bill at all.
The biggest problem with Initiative 124 is the one that the Court of Appeals ruled on: that it violates the “single subject” rule for legislation. State law says that a voter initiative may only involve a single subject, to avoid “logrolling” where voters are asked to accept something they don’t like in order to get something they do like. There is a large corpus of case law interpreting the “single subject” rule, with the state Supreme Court alone having ruled in 80 separate cases. At a high level, the case law says that the components of an initiative must all be “germane” both to the title that appears on the ballot, and to the other components. The proponents of the initiative (including the city) have argued in court that I-124’s intent is to provide a comprehensive set of health and safety protections for hotel workers, and thus all the components are necessary. The opponents have argued that the four components have little or nothing to do with each other and thus are not “germane” to each other and represent multiple topics. The Court of Appeals agreed with the opponents. The City of Seattle has appealed the case to the state Supreme Court; briefs have been filed by both sides, and the Court is scheduled to decide whether to accept the case in its April 2nd conference. If they decide not to take the case, I-124 is officially dead; if they take it, then it still remains on life support.
- plaintiffs’ brief to state Supreme Court
- City of Seattle’s brief to state Supreme Court
Even if the Supreme Court takes the case and eventually finds that it doesn’t violate the “single subject” rule, I-124 is far from out of the woods. The opponents argued two other issues, neither of which the Court of Appeals touched and would likely need to be sent back to lower courts to be further argued. First, there is the question of the “blacklist” of hotel guests required by the first section of the initiative: there is no provision for a guest to find out whether their name is on a hotel’s list, nor to challenge it. For the government to require hotels to ban guests based on accusations alone looks like a violation of due process requirements under the law. The opponents also argued that the second section, which deals with workplace safety regulations, is preempted by the Washington Industrial Safety and Health Act of 1973.
In addition, there is a separate case in federal court challenging section 3 (the health insurance requirement), arguing that it is preempted under federal law. That case has been stayed pending the outcome of the state case, since it is moot if the state Supreme Court throws out I-124 in its entirety.
To recap: in two weeks, I-124 may be permanently dead, if the state Supreme Court strikes it down. If it doesn’t, it has months — or perhaps years — of further litigation ahead of it in both state and federal courts. In either case, it won’t be in effect anytime soon, leaving a vulnerable population without needed protections.
This morning, Council member Mosqueda kicked off a discussion in her committee of what the Council might do on its own to salvage the situation by taking the components of I-124 and running them through the Council’s legislative process. They reviewed a memo summarizing the initiative that was prepared by the Council’s staff, then launched into a discussion of the path forward.
Council member Juarez clearly had done her homework, noting that she had read the legal briefs submitted by both sides to the Supreme Court, as well as the Court of Appeals ruling. She said that she believed there are sections of the initiative that are “good law,” but that the combination is what hurt it. She went on to say that she thinks “there’s a way we can craft a phenomenal law that addresses the deficiencies called out by the Court of Appeals.”
Juarez, Bagshaw and Herbold all particularly stressed that it would take “working around the table” with a wide set of stakeholders, as the Council did with the Secure Scheduling Ordinance, to craft a good bill, and that they wanted to hear from industry representatives as well. Mosqueda, who is unabashedly pro-labor but not necessarily anti-business, signaled her support for bringing in “various voices.”
Another issue they want to address is enforcement. I-124 does not empower the city’s Office of Labor Standards to enforce it; rather, it provides a private cause of action so that hotel employees could sue if their employers violate the initiative’s provisions. The Council members seems much more interested in empowering the city to take enforcement action on its own.
Mosqueda said she plans to continue the discussion at her next committee meeting on April 4th, where she expects to bring in people working in the industry (though it’s not clear whether that will include employers as well). She did not give any indication as to her timeframe for drafting legislation.
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