No, this is not a re-run. Well, sort of.
As regular OBW readers know, one of the most hotly contested pieces of legislation in the 2009 session was the so-called "Worker Privacy Act," organized labor's top priority and a gag rule that would prohibit employers from engaging in legitimate, federally protected communications with employees about labor organizing and collective bargaining.
Its abundantly justified demise last session provoked a series of jeremiads from the state labor council, culminating in last week's release of their legislative wrap-up, the common take-away being this misguided and generally unprovoked legislative attack on Washington employers isn't going away anytime soon.
In 2009, aunified business community resisted the proposal on the grounds it is unnecessary, unworkable, and not least of all, unconstitutional insofar as it would be pre-empted by federal law. Before the bill died in a series of eventsbest characterized as Grisham-esque, our legal argument was confirmed in an informal opinion letterfrom Attorney General Rob McKenna's office.
Yesterday afternoon, McKenna's office released the formal Attorney General Opinion (2009 AGO No. 3) confirming the same conclusion its informal opinion reached: the "Worker Privacy Act" is pre-empted by federal law. If our Legislature were to pass it, a court would likely reject it.
Interestingly, after Washington's legislative session adjourned in April, Oregon became the first state in the nation to pass a functionally identical version of the gag rule, and Governor Kulongoski signed it into law on June 30, with an effective date of January 1, 2010. As this useful summaryfrom CCH Workday describes, the measure will almost certainly face a legal challenge on pre-emption grounds.
Expect AG McKenna's contribution to the debate in Washington to resonate in the legal challenge to our south as well.
UPDATE (1:10pm): Senators Mike Hewitt (R-Walla Walla) and Janea Holmquist (R-Moses Lake), the original requestors of the Attorney General Opinion during session, released a statement calling it "the right decision at the right time."
