The Washington Court of Appeals’ decision in Dept. of Labor & Industries v. Simmons, 537 P.3d 701 (Wash. App. 2023) brought much-needed clarity to one issue that had been lingering in L&I assessment cases: whether an employer must actually receive a Notice and Order of Assessment for service to be effective.
Prior to Simmons, if an employer wanted, they could theoretically set their deadline for appealing an L&I assessment by determining when they would be at home to receive the mail.
But after Simmons, the answer is now clear. Actual receipt is not required.
But in clarifying that rule, Simmons opened the door to a different, and far more troubling, question: When, exactly, does the 30-day appeal clock start to run?
What Simmons Decided
In Simmons, L&I mailed a Notice of Assessment by certified mail. Delivery was attempted to the employer’s address, but the letter went unclaimed. The employer later argued that because he never actually received the notice, service was invalid and the resulting tax warrant should be vacated.
The Court rejected that argument, holding that RCW 51.48.120 does not require actual receipt, and that service is satisfied when the Department mails the notice “by a method for which receipt can be confirmed or tracked.” Significantly, the Court also rejected the BIIA’s prior decision in Jaz Services, No. 13 11377, at 3 (Wash. Bd. of Indus. Ins. Appeals Apr. 9, 2015), which had treated actual receipt as the trigger for the appeal period.
So far, so good, right? The rule after Simmons is now straightforward: i.e., if L&I uses certified mail (or another trackable method), service can be valid even if the employer never signs for or opens the letter.
What Simmons Did Not Answer
But what Simmons did not decide is just as important. That is, when does service occur within that mailing process? Is it:
- the date L&I deposits the notice in the mail?
- the date USPS attempts delivery?
- the date a notice is left?
- or some other point in the tracking history?
The Court did not say, and this silence is consequential. This is because, now that actual receipt is not required, the service date becomes the key date to start the 30 day clock to appeal — and neither Simmons nor the statute expressly defines this start date.
The Risk: Service at the Moment of Mailing
As a result of Simmons, the Department has a plausible argument that service occurs when the notice is mailed, so long as it is sent by a trackable method.
And if that position is adopted, it would mean that the 30-day appeal period begins to run the moment L&I drops the notice in the mail, i.e. before the notice even reaches the employer’s address. In some cases, this would cause several days of the appeal period to expire while the notice is still moving through the mail system.
Even worse, though, is that under this interpretation, employers would have no practical way to know when the clock started, since they would not know when L&I deposited the mail with the post office. And if an employer doesn’t know the start date, they would not be able to pinpoint the deadline for their appeal.
Why This Matters in Practice
We are already seeing cases where the timeliness of an appeal turns on a few days — sometimes less. And in those cases, the difference between the mailing date and delivery attempt date can determine whether an employer has a right to challenge an assessment at all.
And, as many of you already know, the stakes are high. Once the 30-day period expires, the assessment becomes final. At that point, appeal options are extremely limited, and effectively non-existent.
The Better View: Service Upon Delivery Attempt
In our view, the better reading of RCW 51.48.120 — and the one most consistent with how trackable mail actually works — is that service occurs when the notice reaches the employer’s address and delivery is attempted.
Consistent with Simmons and RCW 51.48.120, this is the first point at which:
- the mailing has been tracked to the employer’s address, and
- the employer has a meaningful opportunity to retrieve it.
It also aligns with how certified mail functions in practice. The “notice left” event reflects that the item has arrived and is available for pickup, which is fundamentally different from the earlier act of placing the item in the mail.
Practical Advice Going Forward
Until this issue is more clearly resolved — either by the courts or by the legislature — employers should assume that the appeal clock may start earlier than expected.
At a minimum:
- Treat any communication from L&I as time-sensitive.
- Do not ignore certified mail or delay retrieving it.
- Act quickly once a Notice of Assessment is received.
Most importantly, if you become aware that an assessment may have been issued — even if you have not yet seen it — it is worth investigating immediately.
Final Thought
Simmons resolved an important question, but it did not eliminate uncertainty. It simply moved the uncertainty to a different point in the timeline.
And for employers facing L&I assessments, that uncertainty can be the difference between having a case — and losing the right to bring one at all.