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422 W Riverside Ave, Suite 1100
Spokane, WA 99201

(509) 624-5265

Spokane Coeur d'Alene Law Firm, Real Estate law, Business and Corporate law, Banking law, Tax law, Litigation, Labor and Employment. 


Spokane City Council Adopts Paid Sick and Safe Leave for Employees: Will Your Organization Be Ready?

Nick Pecoraro

By William M. Symmes and Amy M. Mensik, Witherspoon Kelley

On January 11, 2016, the Spokane City Council passed an ordinance requiring employers to provide employees "earned" (i.e., paid) sick and safe leave (ESSL). Spokane, Washington is the latest city in an increasing number of cities, counties, and states across the U.S. to mandate paid sick and safe leave.  A copy of the ESSL ordinance as passed by the city council on January 11, 2016 is available here.  The ESSL ordinance now goes to the mayor for approval; however, it is anticipated that this ordinance will go into effect as the city council has enough votes to override a mayoral veto, if any.   [Update 1/25/16: As expected, the mayor vetoed the ESSL ordinance on January 22; however, the city council overrode that veto on January 25, setting the stage for the ordinance to take effect as passed.]

As written and passed by city council, the Spokane ESSL ordinance is slated to take effect January 1, 2017.  But employers should start thinking now about how the law may affect their policies and practices.  Witherspoon Kelley labor and employment law attorneys will be conducting a complimentary webinar in the near future to assist HR professionals ensure that their organization is compliant with the law.  The webinar will also provide insight and recommendations on areas where the ESSL ordinance is potentially unclear.  More details, including the exact date, time, and registration details for the webinar will follow. 

In the meantime, here is a summary of the ESSL law as passed by the Spokane City Council and some potential implications:

What Are the Basics of Spokane's ESSL Law?

As passed by the city council, Spokane's ESSL ordinance applies to all private employers (including non-profits) in the city of Spokane who employ at least one employee within the city. With few exceptions, all employees who perform their work in Spokane for an employer in Spokane are covered by the law, including full-time, part-time, and "temporary" workers.  Employees who only occasionally enter the city for work for a covered employer are only covered once they physically work more than 240 hours within the city in a year. 

Employees are entitled to accrue at least one (1) hour of ESSL for every 30 hours worked.  Employees start accruing ESSL from their first day of employment (or once an out-of-city employee reaches 240 hours work within the city).  Although accrual starts immediately, employers can require employees to wait no more than 90 days after the start of employment to use accrued ESSL.

Per the ordinance as passed, the amount of accrued leave an employee may use per year depends on employer size.  For employers with 10 or more employees, employees must be able to use at least 40 hours (5 days) of ESSL per year.  Employees of employers with fewer than 10 employees may use at least 24 hours (3 days) of ESSL per year.  Employers must also permit employees to carry over at least 24 hours of accrued but unused ESSL to the next year.  Employees must be compensated for ESSL use at their regular rate of pay and benefits.  The ordinance does not require employers to "cash out" accrued but unused ESSL upon the employee's separation or otherwise.

Employees can use ESSL for their own illness, injury, or preventative care, or for those health needs of the employee's family member (spouse/domestic partner, minor child or adult child incapable of self-care due to disability, parent or guardian, grandparent, or grandchild).  Employees must also be allowed to use ESSL for issues related to the employee's or employee's family member's status as a victim of domestic violence, sexual assault, or stalking, or when the employer's place of business or employee's child's school or daycare is closed by a public official.  Finally, ESSL may be used for bereavement leave for a family member.  

The ESSL law, as passed by the city council, also requires employers to comply with various notice, posting, and other certification requirements.  Employers are also prohibited from retaliating against an employee because of an employee's exercise of rights under the ESSL law, or from "misrepresenting" the employer's business activities in order to evade the law's requirements. 

My Organization Already Offers the Same Amount or More Paid Leave than Spokane's ESSL Law Requires.  Will That Comply?

Not necessarily.  Employers with existing (even more generous) sick leave or all-purpose "PTO" policies must still comply with the ESSL law's minimum standards, including, but not limited to, accrual rates, limits on waiting periods, usage, notice, etc.  For example, employers who offer 40 hours (5 days) of annual PTO that accrues over the year likely do not comply with the minimum accrual rate in the ordinance as passed by the city council.  Existing policies with more than a 90-day waiting period to use sick leave or PTO, or those that only cover full time workers will also need to be changed.  Various other changes to existing personnel policies and practices may also be needed. 

How Will the ESSL Ordinance Be Enforced and What Are the Penalties for Violations?

As passed by the council, the ESSL ordinance currently does not specify the exact procedures for how the ESSL law will be enforced (e.g., which division within Spokane city government will enforce the law, etc.), stating procedures will be issued by October 2016.  As currently drafted, a violation of the ESSL law is classified as a civil infraction under Spokane city code, which may include graduating penalties for multiple infractions.   The city may also revoke or refuse to renew an employer's business license.  The Spokane ESSL ordinance does not currently provide employees a right to bring a private lawsuit against an employer for violating the law.

Next Steps for Employers

Spokane's ESSL law states it will take effect January 1, 2017, but employers should start considering now what they may need to do to ensure compliance, including reviewing existing policies and practices.  Get a head start and join Witherspoon Kelley labor and employment attorneys at our upcoming free webinar on the Spokane ESSL law.  More details on the date, time, and registration for this webinar will follow.  Please feel free to contact us for more information in the meantime, Amy Mensik ( and William M. Symmes (, or by phone at 509-624-5265.  Please also check out the rest of our firm's website to see what else we're up to.

Nick Pecoraro

Joel Hazel, a partner at the law firm of Witherspoon Kelley in the firm's Coeur d'Alene, Idaho office is the recipient of the Idaho State Bar's Professionalism Award for 2015.  The Professionalism Award represents an expression of respect and commendation from Mr. Hazel's peers and represents one of the highest honors any Idaho lawyer can receive in his or her career.  Recipients must have a wide reputation for ability, diligence, courtesy and cooperation.  They are lawyers who have demonstrated a devotion to public service, the improvement of the administration of justice, and a career-long practice of civility, integrity and dignity. 


Nick Pecoraro

Mike Currin, Witherspoon Kelley's past President was recently named by Inland Business Catalyst magazine as one of the region's 50 most influential leaders for 2015. Mr. Currin is the only attorney on the Power 50 List, which is comprised of the most influential business professionals in the Inland Northwest. It features those leaders who work to create positive change in Spokane and the entire Inland Northwest. Mr. Currin has worked his entire career with people and  ompanies in the Inland Northwest to create a vibrant business community and he continues to lead by example for his colleagues in the bar.

Witherspoon Kelley Super Lawyers

Nick Pecoraro

Eight attorneys from Witherspoon Kelley, P.S. have been selected to the 2015 Washington State Super Lawyers list. Brian Rekofke and Ryan Beaudoin were recognized in Medical Malpractice Litigation--Defense, and William M. Symmes was recognized in Employment Litigation-Defense and Business Litigation. Recognized as Rising Stars from the firm by Super Lawyers Magazine were: William O. Etter (Tax); Steven Dixson (Medical Malpractice--Defense); Robin Lynn Haynes (Business Litigation); Michael Kapaun (Banking); and Nathan Smith (Real Estate).

Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.

Witherspoon Kelley Attorneys Named Washington Super Lawyers and Rising Stars

Nick Pecoraro

Three Witherspoon Kelley attorneys have been named "Super Lawyers" and six Witherspoon Kelley attorneys have been recognized as "Rising Stars" by Super Lawyers Magazine.  These attorneys are recognized by their peers and industry group as leaders in their practice areas.  No more than five percent of all attorneys can be recognized as "Super Lawyers" and only two and one-half percent of all attorneys either under the age of 40 or practicing 10 years of less are eligible to for Rising Stars status.  The recognized attorneys are:

Super Lawyers:
Ryan M. Beaudoin - Medical Malpractice Defense; Business Litigation
Brian T. Rekofke - Medical Malpractice Defense
William M. Symmes - Employment Litigation Defense; Business Litigation; Construction Litigation - Business

Rising Stars:
Steven J. Dixon - Medical Malpractice Defense; Business Litigation
William O. Etter - Tax Business; Estate Planning and Probate
Robin L. Haynes - Business Litigation; Employment Litigation Defense
Michael J. Kapaun - Banking; Business Litigation; Appellate
Nathan G. Smith - Real Estate - Business; Land Use/Zoning; Environmental


Nick Pecoraro


Washington State Bar Association Real Property, Probate and Trust Section Midyear Conference June 12-14 in Spokane      

  •  Nathan G. Smith, Co-Chair
  • Jody M. McCormick Conference Speaker: "Untangling the Web of Lien Priority Issues"
  • Robin L. Haynes Conference Speaker:  "Practice Safe Tech: Cloud Computing, Social Media and Ethics"


* * *

Washington State Bar Association Family Law Section Midyear Meeting, June 19 in Spokane

  • Peter D. Svennungsen, Conference Speaker: "QDROs, Pensions, and Tax Issues"


Nick Pecoraro

Witherspoon • Kelley is pleased to congratulate the following firm members who have risen to leadership roles in a variety of significant organizations.

Jody M. McCormick:
-Chair, Real Property, Probate and Trust Section, Washington State Bar Association

Matthew W. Daley:
-President, Federal Bar Association of the Eastern District of Washington

Emily K. Arneson:
-Chair-elect, Washington Women Lawyers, Spokane Chapter

Joel P. Hazel:
-Attorney Member, Idaho Judicial Council

Todd J. Adolphson:
-President, Spokane Young Lawyers

William M. Symmes:
-Trustee, Spokane County Bar Association

-Executive Committee Member and Officer, Labor & Employment Law Section of Washington State Bar Association

-Eastern Washington Representative to Board of Directors, Washington Defense Trial Lawyers

Matthew A. Mensik:
Washington State Bar Association Young Lawyer Delegate to the American Bar Association

Witherspoon • Kelley Wins Spoliation Appeal: Cloninger v. Chen, et al., 184 Wn. App. 1041 (2014)

Nick Pecoraro

Given the ever-increasing volume and variety of data storage issues facing American companies, the appeal of Cloninger v. Chen, et al. carried high stakes and broad implications.  Cloninger was a wrongful death/medical negligence case against an anesthesiologist and a local hospital.  The corporate negligence allegations against the hospital included a spoliation of evidence for failure to retain data from a physiologic monitor.  On appeal from a defense verdict, plaintiffs asked the court to eliminate intent as a necessary element in claims for spoliation.  The plaintiffs were additionally advocating for a rule that would allow a spoliation claim based solely upon the belief that relevant data may have been lost. 

On behalf of the hospital defendant, Witherspoon • Kelley successfully preserved the law intact. The Court of Appeals held that spoliation claims are available only where the claimant shows both: (i) that relevant data, in fact, existed and was lost; and (ii) that the data was lost due to intentional acts or knowing failure to act by the defendant.  

Loss of Chance Clarified: Rash v. Providence Health & Services, et al., 183 Wn. App. 612 (2014)

Nick Pecoraro

Since its recognition in the 1980s, Washington's "loss of chance" cases have been used to lessen the required showing of "but for" causation in medical negligence cases.  This issue was brought to a head in Rash v. Providence Health & Services, et al.  Rash was a medical negligence/wrongful death case claiming that a failure by the hospital to provide a patient's routine medication following a knee arthroscopy resulted in death and a "loss of chance" of survival.  The hospital successfully moved for dismissal of the loss of chance claim and plaintiffs appealed. 

Plaintiffs argued on appeal that in loss of chance cases the burden should be reduced to a showing that the defendant's conduct was "a substantial factor" in bringing about the alleged harm.  On behalf of Providence Sacred Heart Medical Center, Witherspoon • Kelley was successful in safeguarding the traditional legal principles – plaintiffs must still show that the defendant's conduct was, in fact, a cause of the alleged injury.