Newsletter March 30, 2023

POLICY

• Legislative Update
• WA Supreme Court reverses decision, legalizes “excise tax” on income
• Lawmakers must restore police pursuits for public safety
• Proposed rule update would give outdoor workers increased protection from heat exposure

ON THE LOCAL FRONT

• Seattle City Council extends paid sick & safe time benefits for app-based workers

RETAIL THEFT & PUBLIC SAFETY

• AG’s ORC Task Force convenes for third meeting
• King County, Seattle prosecutors claim progress in curbing organized retail theft

TRENDS

• Retail sales to grow between 4% and 6% in 2023
• Artificial intelligence: How ChatGPT is changing the shopping experience

SAFETY

• Forklift tragedies can be avoided

Legislative Update

HB 1155 — My Health, My Data

House Bill 1155, relating to health data privacy, has been a focused piece of legislation for retailers this session. The bill seeks to protect sensitive healthcare data not currently covered by the federal HIPAA Law (Health Insurance Portability and Accountability Act). The legislation is extremely broad as presently written and would unintentionally include many non-sensitive healthcare products and services, such as numerous over-the-counter medications, vitamins, health foods, health-related clothing, devices, and tools.

WR supports consumers having access to and control of their personal data. However, as currently drafted, this bill will be problematic for retailers to clearly identify what is and isn’t covered—leaving them exposed to unwarranted lawsuits and legal actions.

Rep. Vandana Slatter (D-48-Bellevue) is the prime sponsor of HB 1155. The bill was voted out of committee March 22 and is awaiting final vote by the full Senate. It will need to return to the House for concurrence before going to the Governor for signing.

The effective date has been extended out to a year, making it effective March 31, 2024, rather than 90 days after adjournment. Regarding enforcement, the per se violation language was removed, which would have allowed any consumer “injured by a violation” to bring an action if all required elements of a Consumer Protection Act (CPA) were established.

SB 5187 & HB 1140 ORC Task Force Funding – Operating Budget 

WR met with the House and the Senate budget writers regarding funding for the Attorney General’s ORC Task Force. The House included $1.13 million in their budget proposal this week and the Senate included in their budget $2.265 million for the 2023-25 biennium, and $3.02 million for the 2025-27 biennium. This week, in a letter to Rep. Ormsby, Chair of the House Appropriations Committee, Mark Johnson, WR VP of Policy & Government Affairs encouraged the House to agree to increase the funding for the ORC Task Force as the Senate recommended. Johnson clarified the funding would “allow the Attorney General to increasese his efforts by hiring the needed staff to deter and prosecute major ORC rings.” WR continues to support full task force funding.

SB 5171 Gender Price Discrimination

SB 5171 addresses gender price discrimination and was amended to align with similar laws in New York and California, making gender-based pricing illegal. The bill was filed by Sen. Manka Dhingra, D-Redmond, following a presentation by six Kirkland high school students, claiming that studies had shown that prices for personal care products marketing to women are 13% higher on average than products for men. The bill passed out of the Senate and had a hearing before the House Consumer Protection and Business Committee on March 21. Rose Gundersen, WR VP of Operations & Retail Services, provided comments on behalf of WR, testifying to the fact that pricing is primarily determined by manufacturers and should be exempt from the “business” definition in the bill. The bill was scheduled for executive session in the House Committee on Consumer Protection & Business on Tuesday of this week but did not come up for a vote and appears will not likely receive further consideration this session.

WR has significant concerns with compliance and wants retailers to be removed from the language as they should not be held responsible for manufacturers’ differential pricing.

HB 1068 Injured workers’ rights during medical exams

HB 1068 concerns injured workers during independent medical exams. In the workers’ compensation system, a claim manager representing a State Fund or self-insured employer can request for an injured employee to undergo an independent medical examination (IME). These assessments are utilized to decide if a claim should be allowed or re-opened, to resolve new medical issues, support appeals, determine case progress, and evaluate a worker’s permanent disability or work restrictions. IME examinations are performed by medical providers approved by the Department of Labor and Industries.

HB 1068 would allow an injured worker to record video of IMEs using their phone or any other recording device during an exam by one person of the worker’s choosing.

[Read more]

WA Supreme Court reverses decision, legalizes “excise tax” on income

After decades and dozens of attempts to overturn Washington State’s ban on income taxes, the Washington State Supreme Court upheld a new 7% tax on capital gains. Since 1933, Washington courts have defined income as property—barring lawmakers from imposing income taxes without an amendment to the state’s constitution. The state can now legally tax income on capital gains via an excise tax.

A 7-2 majority ruled that the tax on capital gains passed by the Legislature in 2021 is an excise tax rather than a tax on property or income. That redefinition let the judges say the tax is constitutional without having to overrule its 90-year precedent prohibiting an income tax on Washingtonians.

The Wall Street Journal’s opinion piece on the court’s decision clarifies, “The majority’s logic contradicts common sense, nearly a century of state law, and the view of the U.S. Internal Revenue Service, which defines capital gains as a form of income. The majority opinion boasts that ‘forty-one other states and the District of Columbia tax capital gains.’ Yes, and every one considers capital gains to be income.” And every country as well.

For the first time, a state has permitted an excise tax, confined within its boundaries, to extend beyond the state lines, which could potentially breach provisions of the Federal Commerce Clause.

As a result of the court’s decision, residents of Washington can anticipate a future where they will face increased taxes on both property and investment.

Potential next steps by the opponents of the excise/income tax—the Opportunity for All Coalition—could include filing an appeal to the US Supreme Court or collecting signatures and filing an initiative to the people for a November vote—at an estimated cost of $7-$10 million.

Lawmakers must restore police pursuits for public safety

Amber Goldade experienced a heartbreaking loss last year when a tragic incident took her daughter’s life. The authorities failed to apprehend a repeat offender who had stolen a truck for the third time within a few weeks. Despite being spotted by the police, they could not chase and arrest him, ultimately allowing him to remain free.

In a recent statement to lawmakers on the Capitol steps, Goldade said, “Supporters of the no-pursuit law say it was passed in the name of ‘safety.’ Some supporters still say that there is no data saying the law is unsafe. The truth is that there is data, but it shows that the no-pursuit law has made Washington less safe. The data they used to pass this law has been debunked, but the law still hasn’t been changed. I wish people would just look beyond party lines to see and hear us as people. I know it takes bravery, but that’s how you keep people safe.”

There are countless additional stories of criminals fleeing law enforcement and endangering citizens in our communities. Stolen vehicles are on the rise, and many are being used to carry out retail theft and organized retail crime across the state. 

Call on your legislators to support SB 5352 by restoring its original version. The bill passed out of Committee on Tuesday and is awaiting a vote by the full House. If it passes, it must return to the Senate for concurrence. Please urge your legislator now.

Take 60 seconds to hear Amber’s story. 

Proposed rule update would give outdoor workers increased protection from heat exposure

A new proposal to update Washington’s permanent heat rules would increase protections for agricultural, construction, and other workers exposed to dangerous outdoor temperatures on the job.

The Washington State Department of Labor & Industries (L&I) filed the proposed update to the permanent heat rule last week, officially initiating the formal process for public input.

Current regulations in Washington mandate that employers implement an outdoor heat exposure safety program, which includes training, ensuring a minimum of one quart of suitable drinking water per hour is accessible to each worker, and responding appropriately to employees displaying symptoms of heat-related illnesses. The suggested amendments aim to incorporate additional preventative measures into these rules. By preventing workers from overheating, the risk of heat-related illnesses and traumatic injuries, such as falls from ladders, can be reduced.

Some of the updates to the proposed rule include:

• Updates to the existing temperature action levels to 80°F for most outdoor work, applying to specific portions of the rule such as drinking water and shade;
• Specifics on when and how much shade must be provided;
• Access to preventative cool-down periods as needed to prevent overheating;
• An acclimatization section requiring close observation of employees during heat waves, new workers, and those returning from absences; and
• High-heat procedures requiring close observation of employees and mandatory cool-down rest periods of 10 minutes every 2 hours at 90°F, and 15 minutes every hour at 100°F.

“Outdoor workers bear the brunt of hotter and hotter weather driven by climate change,” said Craig Blackwood, assistant director for L&I’s Division of Occupational Safety and Health. “We’ve listened carefully to workers, businesses, and other stakeholders to develop proposed rules that create much safer conditions for Washington’s outdoor workforce. As we move to the formal comment period, we’re inviting public input to help shape the final product.”

[Read more]

Seattle City Council extends paid sick & safe time benefits for app-based workers

On Tuesday, the Seattle City Council unanimously approved making permanent a Covid emergency ordinance that provided Paid Sick & Safe Time benefits to food delivery drivers for app-based companies. The ordinance expires on April 30, will be replaced by a permanent one on May 1.

Additionally, the new ordinance creates new coverage for “on-demand” gig workers who do not deliver food but are covered by the minimum compensation ordinance—known as PayUp—passed by the Council last year. Those workers receive coverage starting on January 13, 2024.

The Council is expected to consider additional PayUp ordinances soon, including protections for workers who are “deactivated” or removed from the app by the company.

From left: Carl Kleinknecht, Director of Security, Kemper Development, Shannon Vetto, CEO, Evergreen Market, Ben  Carr, Assistant Attorney General, Tony Romero, Bellevue Police Department, Robert Nelson, President, Washington Organized Retail Crime Association, and Sarah Cherin, Executive VP, UFCW 3000.

AG’s ORC Task Force convenes for third meeting

In June of 2022, Attorney General Bob Ferguson announced the launch of a new Organized Retail Crime (ORC) Task Force dedicated to sharing information and coordinating efforts among state and local law enforcement, prosecutors, retailers, policymakers, and multiple government agencies. In the months since, the AG and his team have been busily working on state, national, and international ORC cases, coordinating with law enforcement agencies on every level.

The Task Force convened at the AG’s downtown Tacoma offices yesterday, March 29, for its third meeting. The first portion of the three-hour meeting focused on the issues impacting the cannabis retail industry.

Panel member Sarah Cherin, Executive VP for UFCW 3000, read several quotes from her retail cannabis union workers. The common sentiment centered on workers feeling unsafe and the emotional distress experienced by those who experienced armed robberies and violence. “The most important thing inside the stores are the workers,” Cherin noted.

According to panel members, the cannabis retail industry has experienced a steady increase in violence in its stores since Washington legalized the recreational use of marijuana nine years ago. Shannon Vetto, CEO of Evergreen Market stores, clarified that the violence has escalated in the past 18 months, and a new theft trend has emerged. “We are now primarily seeing cash grabs rather than cannabis thefts,” Vetto said.

At the ORC Task Force press conference last year, WR President and CEO, Renée Sunde said, “There has never been a more critical time in Washington State to address the impacts of Organized Retail Crime on public safety and the safety of our customers and retail employees. Many of our frontline retail workers have witnessed these outrageous crimes in action and have faced physical threats.” Her words still ring true.

As the legislative session is in its final weeks, WR has continued advocating for fully funding the Attorney General’s ORC Task Force. The $3 million appropriation the AG has requested would support his efforts by hiring the staff necessary to deter and prosecute major ORC rings.

King County Deputy Prosecutor Nicole Lawson

King County, Seattle prosecutors claim progress in curbing organized retail theft

Chris Daniels, KOMO News Senior Reporter, ran a story about King County prosecutors and the Seattle City Attorney’s Office’s claims of their progress in reducing organized retail theft.

King County Deputy Prosecutor Nicole Lawson claims her department has charged 75 cases since August, with 509 theft or attempted theft charges overall—about three per day.

“It’s not to be tolerated,” said Lawson to KOMO News about the effort, part of the Attorney General’s Organized Retail Crime Task Force which launched last year to combine resources to tackle the issue.

“The hope is that with increased coordination between the law enforcement partners, the retailers, myself, the city attorney’s office, and the AG’s Task Force, we can create a message that organized retail theft is something that we take very seriously,” Lawson said.

President of the Washington Retail Association, Renee Sunde, told KOMO, “There has been good progress, most notably defined through the Seattle City Attorney Ann Davison’s release of the High Utilizer Initiative’s report. The report revealed a 57% drop in high-utilizer criminal referrals and over 750 police referrals averted. The partnerships between Seattle Police and the King County Prosecuting attorney’s office have been critical in supporting this effort.”

Watch the news story on KOMO

Retail sales to grow between 4% and 6% in 2023

Retail sales are expected to grow between 4% and 6% in 2023 according to an industry forecast released today.

This expected growth compares to 7% in 2022. The 2023 forecast is above the pre-pandemic, average annual retail sales growth rate of 3.6%.

Non-store and online sales—included in the total figure—are expected to grow between 10% and 12% year over year to a range of $1.41 trillion to $1.43 trillion.  As brick-and-mortar stores have evolved in recent years, they remain the primary point of purchase for consumers, accounting for approximately 70% of total retail sales. 

Inflation is expected to continue downward, but will remain between 3% and 3.5% for all goods and services for the year.

Although the labor market has remained resilient, the trade organization anticipates job growth to decelerate in the coming months in lockstep with slower economic activity and the prospect of restrictive credit conditions. The unemployment rate is likely to exceed 4% before next year.



NRF Chief Economist Jack Kleinhenz acknowledges that recent developments in the financial markets and banking sector as well as some unresolved public policy issues complicate the outlook.

Artificial intelligence: How ChatGPT is changing the shopping experience

The retail experience is constantly evolving, and one of the most exciting developments in recent years has been the rise of artificial intelligence (AI). ChatGPT has the potential to revolutionize the way we shop and interact with retailers.

One of the main benefits of ChatGPT is its ability to understand natural language. This means that it can interpret and respond to customer queries and requests in a way that feels human-like. By integrating ChatGPT into a retail environment, customers can communicate with the system in the same way they would with a human sales assistant, providing a more personalized and seamless experience.

For example, imagine a customer walks into a clothing store and is unsure what to buy. Instead of wandering around the store aimlessly, they could simply ask ChatGPT for recommendations based on their personal style, size, and preferences. ChatGPT could then provide suggestions and even show the customer images of the items, making it easier to make a decision.

Additionally, ChatGPT could also help retailers offer more personalized recommendations and marketing strategies. By analyzing customer data and purchase history, ChatGPT can understand a customer's preferences, behaviors, and needs. This information can then be used to create personalized promotions, product recommendations, and even tailored advertising campaigns.

ChatGPT can help retailers with:

• Market Research
• Marketing and Sales Support
• Personalized Recommendations
• Customer Service
• Fraud Detection
• Inventory Management
• Returns and Exchanges

Overall, ChatGPT has the potential to transform the retail experience by providing a more personalized, efficient, and convenient shopping experience for customers. By leveraging the power of AI, retailers can improve their customer service, increase sales, and stay competitive in an ever-changing market.

Suggested reading on Forbes.com

Forklift tragedies can be avoided

Recently, Washington State’s Department of Labor & Industries (L&I) issued a Worker Hospitalization Alert concerning a forklift-related incident. This event epitomized a preventable accident and offered a valuable lesson for future prevention.

In this incident, the injured worker and the forklift driver were inattentive to their surroundings. Both employees demonstrated a lack of safety awareness, and the employer revealed a lack of caring and a sub-par concern for providing a safe workplace. The employer had also disabled the forklift’s built-in backup alarm—an important safety measure that would have alerted workers to oncoming danger. The behaviors of all three’s negligence led to a serious accident.

Preventing tragedies like these is essential. Maintaining and not disabling or modifying safety alert systems on forklifts or other powered industrial trucks is crucial. Drivers must be trained to always stay alert and ensure they can see where they are driving. Additionally, pedestrians should avoid passing through or lingering in zones where drivers may be operating.

Forklift-related injuries should be taken seriously. The National Safety Council reports that 7,290 nonfatal forklift accidents led to missed work time, with a median of 17 days off per incident. That translates to almost a million hours of lost productivity for businesses in the United States in 2020.

Here are some helpful resources:

• RS Safety TV has several videos about forklift safety.
• RS Library has a Forklift Safety Guide for reference.

Our safety team is available to help members take their safety program from compliance to quality safety practices. Contact us at 360-943-9198 x122 or email safety@waretailservices.com to learn more.

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We value all people regardless of race, ethnicity, gender, religion, age, identity, sexual orientation, nationality, or disability, and that is the foundation of our commitment to those we serve.