BIAW Files Lawsuit Against L&I due to Emergency Rule

July 8, 2020

BIAW has filed a lawsuit to repeal an emergency rule that authorizes the Department of Labor and Industries (L&I) to fine businesses that violate Gov. Inslee’s Stay at Home Order.

The suit, filed in Thurston County Superior Court, asks the court to strike down the new emergency rule, adopted by L&I last week, on the grounds that it is illegal, unconstitutional, and unnecessary.

The lawsuit argues that the emergency rule, as written, violates due process and exceeds the statutory authority given to the agency by the Legislature. In the statute granting the governor the power to issue orders, the Legislature spelled out only one means of enforcement – a gross misdemeanor – which is punishable by a $5000 fine and 364 days in jail. The Legislature did not give state agencies the authority to pass rules that let them establish fines as well.

BIAW participated in the governor’s working group, which included input from L&I, that recommended the Phase I and II safety requirements for construction that the governor adopted and ordered. Those requirements included a role of L&I for enforcement, but the only penalty specifically mentioned in either the Phase I or Phase II requirements is shutting down a construction jobsite until compliance can be achieved. The law also provides that violations could be punished as a gross misdemeanor.