Posts tagged Employment & Labor
Tip Pooling: Is Now Permissible

In March, the U.S. Department of Labor’s Wage and Hour Division issued a Field Assistance Bulletin that announced a rollback in the tip credit rules under the Fair Labor Standards Act (FLSA).  This changes the way Washington employers can administer tip-pooling in their businesses.  Under the rollback, “back of house” employees (e.g., cooks, bussers, or even stock clerks), can now benefit from—and even share—tips with “front of house” employees (e.g., wait staff, food and beverage servers).  So whether you own a winery, restaurant or other business that employs staff who receive tips, it is important to understand your tip-pooling options.  

What Does This Mean for Employers?

With this rollback, employers now have the option to implement back of house tip-pooling and can implement a policy that shares tips received by front of house staff with back of house individuals. However, back of house tip-pooling is entirely optional: employers are not required to adopt this change. 

Employers that choose to adopt this change may select any method to disburse the funds. Some employers may elect to have the front of house employees choose how much they tip back of house staff, while others may elect to disburse a certain pre-defined percentage from all staff to back of house workers.

However, tip-pooling can be a trap for the unwary.

Regardless of the tip-pooling method chosen, the change in the FLSA has other stipulations employers should be aware of:

  • The FLSA prohibits employers, managers and supervisors from participating in tip pools
  • Employers can also withhold certain fees and costs from pooled tips (such as credit card processing fees if tip was paid via credit card), but not others
  • The FLSA also contains a monetary penalty for violations that employers should be aware of 

To learn more about these changes or how tip-pooling may impact your business, visit the U.S. Department of Labor’s website, refer to the published Fact Sheet or contact an attorney at JDSA Law.

Washington’s "Ban-the-Box" Law

Effective: June 7, 2018


By Kellen Norwood, Attorney

By Kellen Norwood, Attorney

Employers in the State of Washington may be restricted from asking about a job applicant’s arrest or criminal background history during the initial stages of the job application process.  On March 13, 2018, Washington Governor Jay Inslee signed into law the Washington Fair Chance Act (WFCA), otherwise known as “ban the box” legislation. 

The WFCA prevents most employers from asking about an applicant’s criminal status until the employer determined the applicant is “otherwise qualified” for the position. After the employer makes this initial decision, that the applicant is “otherwise qualified,” then the employer may ask questions about the applicant’s criminal background history. 

The WFCA outlines relevant definitions for covered employers as follows: 

  • Criminal record” includes any record about a citation or arrest for criminal conduct, including records relating to probable cause to arrest, and includes any record about a criminal or juvenile case filed with any court, whether or not the case resulted in a finding of guilt.

  • Employer” includes public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.

  • Otherwise qualified” means that the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.


The WFCA Requirements –

The General Rules

Under the new WFCA laws, almost all covered employers in the State of Washington will be prohibited from:

Advertisements:
An employer cannot advertise openings in a way that excludes people with arrest or conviction records from applying for a job opening with their companies.  For example, employers cannot use any job publications or advertisements that contain the words “no felons,” “no criminal background,” or other words or phrases that otherwise convey similar messages;

Prescreening of Job Applications:
ntil after the employer has initially determined the applicant is otherwise qualified for the position, an employer cannot:

  • [Job Application] include any question about arrest or criminal history in an employment application; or,

  • [Interviews] ask, either orally or in writing, about the job applicant’s arrest or criminal history; or,

  • [Criminal Background Checks] receive information through a criminal history background check; or,

  • [Other] otherwise obtain information about an applicant’s arrest or conviction record.

  • [Disqualifiers] Have any automatic disqualifiers or categorically disqualify a job applicant based on a criminal record; or,

  • [Reject an Applicant for Failure to Disclose] Reject or disqualify a job applicant for failure to disclose an arrest or criminal record.

Exceptions to The General Rule

The Ban-the-Box WFCA laws do not apply to:

  • An employer who wants to hire a person who will or may have unsupervised access to children under the age of 18 years or a vulnerable person, as defined by Washington law;

  • An employer (including a financial institution), who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant’s criminal record for employment purposes;

  • Various law enforcement agencies or criminal justice agencies;

  • An employer who seeks a non-employee volunteer; or

  • An entity required to comply with the rules or regulations of a self-regulatory organization as defined by the Securities Exchange Act.

Note: The WFCA is not intended to interfere with or diminish any collective bargaining agreements in unionized workplaces.


What If You Violate the WFCA?

First, the WFCA does not provide a private cause of action for job applicants against a potential employer who feels the potential employer may have violated the WFCA.  The WFCA provides that the State of Washington Attorney General’s Office (AGO) is granted authority to investigate possible violations of the WFCA.  The AGO has the power to assess fines, penalties, costs, and attorneys’ fees. The maximum penalties may include:

  • A notice of violation for the first violation;

  • A fine of $750 for the second violation; and,

  • A fine of $1,000 for each subsequent violation.


The WFCA and Local Governments

The WFCA applies to the State of Washington.  However, the WFCA does not preempt local governments or municipalities located within the State of Washington from enforcing their own ban-the-box ordinances.  

For example, there are currently two cities – Seattle and Spokane – that already have similar ordinances on the books.  Seattle passed the Fair Chance Employment Ordinance with similar laws to the WFCA.  Spokane passed a similar law to the WFCA, the Fair Chance Hiring Act.


How Does the WFCA Apply to You?

What should you do before the WFCA becomes effective as of June 7, 2018?  First, please note, this is a new law (outside of the cities of Seattle and Spokane).  As such, the courts in the State of Washington have not had the opportunity to interpret the law, or provide guidance on how it will be enforced or applied to employers. 

At a minimum, most employers can no longer ask about a job applicant’s arrest or criminal history until he/she has determined that the applicant is otherwise qualified for the position.  The WFCA does not expressly outline the steps an employer must follow after the employer has made this determination on the job applicant’s status. 

As a covered employer, you should, at a minimum, take the following steps now: 

  • Fulfill your obligations under the Fair Credit Reporting Act if they plan to obtain criminal history reports from third-party vendors.

  • Follow best practices throughout the hiring process.

    • Engage in an individualized assessment of any disclosed arrests or criminal history prior to making any employment decisions.

    • Review and revise, as needed:

      • Your hiring practices,

      • Job application postings and advertisements,

      • Job application forms, checklists, policies, and procedures,

      • Interview questions and forms,

    • Finally, all covered employers should provide periodic training updates to its human resource and other employees involved in the job posting, screening, and interview process.


Kellen Norwood is an attorney with JDSA Law.

[Content provided in this article should be used for informational purposes only and is not intended to be a substitute for professional advice. Always seek the advice of a relevant professional with any questions about any legal decision you are seeking to make.]

 

Paid Sick Leave – Frequently Asked Questions

Starting January 1, 2018, all Washington employers regardless of size must offer paid sick leave to certain employees. Eligible employees will be entitled to accrue at least one hour of paid sick leave for every 40 hours worked. Starting January 1, 2018, Washington employers must also increase the minimum wage they pay to their employees to $11.50 per hour. Certain cities already require a higher minimum wage. Both of these requirements are the result of Initiative 1433 that passed in 2016.

Employers must notify their employees about the availability of this new, legally mandated employee benefit, and depending on how employers intend to comply with the new law, they may need to implement written paid sick leave policies. Employers who currently offer paid leave of any sort will need to review and potentially revise their policies, including any disciplinary policies related to attendance, to ensure compliance with the new law.

JDSA Law traveled throughout Central Washington in November, informing employers about the new law.

If you missed our presentations, below are some Frequently Asked Questions that will benefit you


1.  I understand this applies to all employers regardless of how many employees they have (even just one), but which employees are eligible for this benefit?

All “employees” as defined in the Washington Minimum Wage Requirements and Labor Standards (RCW 49.46) are eligible for paid sick leave benefits. This law (RCW 49.46.010(3)), however, excludes 16 categories of employees from the definition of “employee”. These 16 categories of employees are not entitled to paid sick leave benefits. For example, those employed in a bona fide executive, administrative, or professional capacity, or in the capacity of outside salesperson as defined by law (“white collar” exempt employees) make up one of the 16 categories that are not entitled to paid sick leave. Employers should review these categories to determine if their employees fit within them. If they do not, they are eligible for the benefit.


2.  Do I have to tell my employees about this new law?
Yes, you must notify your eligible employees in written or electronic form of their entitlement to the following:

Employees hired on or after January 1, 2018, must be notified no later than the start of their employment. You have until March 1, 2018 to notify any employees employed by you prior to January 1, 2018, but because employees will accrue paid sick leave starting on January 1, 2018, and some may be eligible to use the benefit prior to March 1, 2018, notifying current employees by January 1, 2018 makes sense.

  • Employees are entitled to paid sick leave;
  • The rate at which the employee will accrue paid sick leave (at least 1 hour per every 40 hours worked);
  • The authorized purposes for which the employees can use paid sick leave; and
  • Retaliation by you for the employee’s lawful use of paid sick leave or his/her exercise of other rights under the law is prohibited

3.  What other notifications do I have to provide employees? Do I have to have a written paid sick leave policy?

The law does not require that you have a written policy, but if you choose to incorporate certain optional practices into your paid sick leave policy, you must do so in writing. For example, if you require employees to provide reasonable advance notice for their foreseeable use of paid sick leave or verification that their use was for an authorized purpose, you must have a written policy outlining these requirements. If you allow employees to share their leave benefits with one another or if you front load their leave rather than use an accrual method, this must also be in writing.

You must also provide employees with written notification of the following:

  • Monthly notification of paid sick leave hours accrued, used, and remaining. This requirement can be met by inclusion on pay stubs or by separate written notice.
  • If you offer to pay out accrued unused paid sick leave upon termination, you must generally agree upon the terms of such pay out in writing with the employee.
  • If you are providing paid sick leave as a part of a paid time off (PTO) policy.
  • If you use a 12-month period for accrual and tracking other than the calendar year.
  • If you allow employees to work additional hours or swap shifts instead of using their accrued sick leave for an absence, this must be by mutual agreement between all employees involved and you. Because you cannot require employees to search or find a replacement worker to cover missed work time, for your protection you should document the mutual agreement of those involved in a shift swap.

4.  How does this affect my attendance policy?

You must ensure your attendance policies do not subject employees to any adverse employment actions as a result of taking their accrued paid sick leave. Revise any no-call no-show policy to reflect the requirements of the new law. Remember that under the paid sick leave law, employees are allowed to have up to three consecutive scheduled work days of paid sick leave, and only when they exceed that amount can an employer require them to provide written verification that the leave was taken for an authorized purpose, and only if the employer’s written policy allows it.


5.  What if an employee is absent on the last day of the pay period and does not tell me whether they are taking paid sick leave? Do I pay them paid sick leave for that absence and when?

Although this is not expressly addressed in the paid sick leave law or accompanying regulations, our inquiries with the Department of Labor and Industries indicate that the Department interprets the law to require an employee’s consent to use the paid sick leave benefit. In this context, an employer should not assume an absence is for an authorized purpose and apply the benefit without hearing from the employee. In those rare instances where an employee is incapacitated due to his/her physical condition and could not timely notify you that leave is for an authorized purpose, you should treat the time off as unpaid until you hear from the employee, and then retroactively apply the benefit if circumstances warrant.


6.  I’m worried about the fact that I cannot discipline employees for no-call no-shows with this new law. What should I do?

The law and regulations allow employers to require employees to notify them as soon as practicable of their need to use paid sick leave and generally prior to the start of a missed shift. That said, an employer’s notice requirement cannot interfere with an employee’s lawful use of his/her paid sick leave. There are rare circumstances where an employee is unable to call, text, or at least have someone else notify the employer prior to the start of the shift. Unless one of those rare circumstances is at issue, if an employer’s policy requires, employees must provide advance notice of their tardiness or absence. In order to determine whether an employees’ failure to timely notify of his/her absence is justified, employers may ask employees for the reason that they could not notify the employer prior to the shift starting that they are taking paid sick leave (so long as the employee is not required to give information regarding his/her medical condition by doing so).


7.  What is appropriate monthly notice to employees of the sick leave they have accrued, used, and have available? Can this be on their pay stubs?

Monthly notifications must be in writing. This can be done on employee pay stubs. Keep in mind that Washington is not the first state to enact paid sick leave and accounting programs have already been tracking similar paid sick leave for their clients in other states. Some of the major accounting software programs have the ability to track and print paid sick leave accrual and use. You should contact your accountant, bookkeeper, and/or accounting software provider for further information.


8.  Can I require that employees take paid sick leave in half day or full day increments?

Although the regulations provide a process for obtaining a variance based on a showing of good cause, you must allow employees to use paid sick leave in increments consistent with your payroll system and practices, not to exceed one hour. But note, if you track time for compensation purposes in smaller increments, you must allow employees to use paid sick leave in those smaller increments.


9.  Do you have a sample paid sick leave policy that I could use?
We can provide a paid sick leave policy, including the consultation needed to tailor the policy to your business for a flat fee. Please contact us if you are interested in such a policy.


10.  If I have other questions not addressed in the FAQ, where can I go?
There are many resources available to obtain information about Paid Sick Leave. Refer to the Resource Information below:

Are You a Farm Labor Contractor? The Answer May Surprise You.

If your workers are performing duties on property not owned by the entity paying them, then the entity with the payroll account is a farm labor contractor.

Prior to state or federal involvement, a market existed within the agriculture industry for those who could gather a crew of workers and bring that crew to various farmers to help with certain tasks – be it harvest, pruning or general labor.  The farmer would pay the “crew boss”, and it was the responsibility of the crew boss to then pay the workers.  However, this second payment, the one to the workers, didn’t always reach the folks who did the actual work.  When the workers complained or brought charges, the crew boss was often gone. Into the wind. After receiving enough complaints of this practice and then being unable to track down the perpetrator, the United States Department of Labor created the Farm Labor Contractor registration program.  Washington State later adopted its own set of rules, known as the Washington Farm Labor Contractor Act (the “Act”), modeled after the federal registration program. 

The policy behind this registration program is to stop those who do not pay their workers and then can’t be found for prosecution.  Under the federal program, if you are an “agricultural employer” and either own or lease land (thus allowing yourself to be found by authorities), you do not need to register as a farm labor contractor.  Agricultural employers in Washington held the belief that the Washington registration program had the same exception until the Washington State Supreme Court, on March 3, 2016, issued a decision to the contrary.  This case, Saucedo v. John Hancock Life & Health Insurance, has significantly impacted almost every agricultural employer within the state of Washington. 

For example, let’s say you own two orchards... 

The orchards are next to each other, yet are held in two separate entities: Farm A, LLC and Farm B, LLC.  All employees are processed under Farm A, LLC.  If you operate under this structure, or any similar structure, then Farm A, LLC is considered a farm labor contractor, and must apply for a license.  If your workers are performing their duties on property not owned by the entity that is paying them, the entity with the payroll account is a farm labor contractor and must register with L&I.

Federal Overtime Exemption Rule Invalidated

On Thursday, August 31, 2017, the United States District Court for the Eastern District of Texas granted summary judgment to business interests and multiple states, permanently invalidating a federal regulation that would have significantly increased the minimum salary threshold to qualify for executive, administrative, and professional exemptions from overtime pay under the Fair Labor Standards Act.

For employers, this means that the minimum salary threshold to qualify for one of these “white collar” exemptions remains unchanged at $455 per week ($23,660) and employers can continue to plan their pay practices based on federal regulations as they have existed since 2004.

Many employers have been following developments in this area closely, as the final rule — issued in May 2016 and scheduled to take effect on December 1, 2016 — would have increased the minimum salary threshold to qualify for these exemptions to $913 per week ($47,476 annually).

Many employers adjusted their pay practices in anticipation of the new rule, but just days before the effective date, the same Texas federal court referenced above issued a nationwide preliminary injunction temporarily barring the Department of Labor from implementing the rule. The court has now issued a final order invalidating the rule. The Department is highly unlikely to appeal this decision; it recently withdrew its appeal of the Texas court’s preliminary injunction with the Fifth Circuit Court of Appeals. That court dismissed the Department’s appeal on September 6, 2017.

Although the Department may propose another increase to the minimum salary threshold for these exemptions, that rule-making process takes time and public involvement. In the meantime, employers can rely on the current regulations.

If there is a silver lining to the federal overtime rule rollercoaster of the past year, it is that many employers may have taken the opportunity to audit their pay practices and to confirm compliance where claiming white collar exemptions.

STAY CONNECTED: Employment and Labor Law

NEWS that impacts your personnel policies and procedures


BREAKING NEWS:

WASHINGTON STATE SUPREME COURT ISSUES RULING ON CASE INVOLVING EMPLOYEES’ MISSED MEAL PERIODS

On June 29, 2017, the Washington State Supreme Court answered two questions certified from a federal district court in the case of Brady v. AutoZone Stores, Inc.

The Court answered the following certified questions as follows:

  1. Is an employer strictly liable under WAC 296-126-092? No. The employer is not automatically liable if a meal break is missed because the employee may waive the meal break under the regulation.
     
  2. If an employer is not strictly liable under WAC 296-126-092, does the employee carry the burden to prove that his employer did not permit the employee an opportunity to take a meaningful break as required by WAC 296-126-092? An employee asserting a meal break violation under WAC 296-126-092 can establish his or her prima facie case by providing evidence that he or she did not receive a timely meal break. The burden then shifts to the employer to rebut this by showing that in fact no violation occurred or that a valid waiver exists.

The opinion can be found at Courts.wa.gov

What does this mean to employers?

Employers may allow employees to waive their meal periods, but the employer may never coerce or force the employee to do so. Also, if you allow employees to waive their meal periods, then you should keep evidence of the waiver on file for at least three years to protect against liability for violations of WAC 296-126-092.  In practice this could be a written waiver signed by an employee either for a period of time or on a case by case basis.

Washington State’s Department of Labor and Industries has posted the following advice to employers:

Business owners please note: The Department of Labor & Industries recommends that you get a written statement from workers who want to give up their meal periods.”

Agricultural employers please note: The regulation for meal and rest periods for agricultural workers is different than that cited in the Bradycase. WAC 296-131-020 governs meal periods for agricultural workers and states that employees “shall receive a meal period…” as opposed to the nonagricultural regulation that states the employees “shall be allowed a meal period…”[emphasis added]. This could give way to the interpretation that while the nonagricultural meal period is waivable, the agricultural meal period cannot be waived.

If you have further questions about this, contact an attorney to assist you with implementing the proper policies and procedures for missed meal periods.


NEW LAW:

New Law Relating to Pregnancy Accommodations Effective on July 23, 2017

Effective July 23, 2017, Washington employers with 15 or more employees must provide reasonable accommodations to their pregnant employees and may not discriminate against pregnant employees on the basis that the employer will have to provide these accommodations.

The summary of the law is as follows:

It is an unfair practice for any employer to:

  • Fail or refuse to make reasonable accommodation for an employee for pregnancy, unless the employer can demonstrate that doing so would impose an undue hardship —undue hardship means an action requiring significant difficulty or expense;
  • Take adverse action against an employee who requests, declines, or uses an accommodation;
  • And deny employment opportunities to an otherwise qualified employee if the denial is based on the employer's need to make reasonable accommodation;

Reasonable accommodation means:

  • Providing more frequent, longer, or flexible restroom breaks;
  • Modifying a no food or drink policy;
  • Job restructuring, part-time or modified work schedules, reassignment to a vacant position, or acquiring or modifying equipment, devices, or an employee's work station;
  • Providing seating or allowing the employee to sit more frequently if the job requires standing;
  • Providing a temporary transfer to a less strenuous or hazardous position;
  • Providing assistance with manual labor and limits on lifting;
  • Scheduling flexibility for prenatal visits;
  • And any further accommodation an employee may request, and to which an employer must give reasonable consideration to in consultation with information provided by the Department of Labor and Industries or the attending health care provider.

An employer may not claim undue hardship or require written certification from an employee for:

  • Providing more frequent, longer, or flexible restroom breaks;
  • Modifying a no food or drink policy;
  • Or providing seating or allowing the employee to sit more frequently if the job requires standing.”

Learn more here: Final Bill Report SSB 5835

The full text of the law is here: Substitute Senate Bill 5835


IMPORTANT UPDATE:

OSHA Extends Deadline for Electronic Record-Keeping from July 1 to December 1, 2017

The U.S. Department of Labor, Occupational Safety & Health Administration (OSHA) is not currently accepting electronic submissions of injury and illness logs and has issued a proposed rulemaking to extend the July 1 deadline for certain employers to electronically submit such data to the agency for posting online.

Employers with 250 or more employees and those with 20-249 employees in certain industries with historically high rates of occupational injuries and illnesses (including agriculture, construction, and other industries, see full list here) must now submit certain 2016 injury and illness data from Form 300A electronically by December 1, 2017.

Although the extension is in the form of a proposed rulemaking, because OSHA is not accepting electronic submissions and the electronic reporting system will not be available until August 1, employers can assume the deadline has been extended at this time. OSHA describes the deadline extension as an opportunity for the new administration to review the reporting requirements and for employers to familiarize themselves with the electronic reporting system. Based on OSHA’s stated intention to also reconsider, revise, or remove other provisions of the prior final rule, employers should watch for further changes prior to the December 1, 2017, implementation date.

JDSA will continue to provide updates as changes occur.

Although the requirement to electronically report injury and illness information has been delayed, employers’ obligations to track and record workplace injuries and illnesses remain otherwise unchanged.


We’ll continue to keep you well informed of current and upcoming changes that impact you, and your business.

UPCOMING – In the coming weeks, we will post updates on the Third Washington State Legislative Session, and bills currently under consideration including paid family and medical leave, workplace bullying, and articles on the federal Department of Labor’s change in: policies regarding independent contractor classification and joint employer status.

Washington Paid Sick Leave – Spring Update

As previously reported, Initiative 1433 was approved by Washington voters in the last statewide election, and as a result, Washington employers must permit certain employees to accrue at least one-hour paid sick leave for every forty hours worked beginning January 1, 2018.

The Washington State Department of Labor & Industries (“Department”) solicited feedback on the new law from interested stakeholders, and multiple employers and associations provided written comments on issues raised, as well as some proposed solutions. The Department has now issued draft proposed rules to implement the law, scheduled a meeting for Monday, April 24, 2017, 9:00 am – 11:00 am, to discuss the draft rules, and solicited further feedback. If you are interested in attending or calling into this Monday’s meeting, you can participate online, by phone, or in person.

Feedback to the Department’s draft rules is due April 28. The Department intends to revise the proposed rules based on this feedback, circulate an updated draft during the week of May 8th, and seek further stakeholder feedback by May 31. The Department will then draft administrative policies for the new law and hold public hearings throughout Washington this summer, with a final deadline for stakeholder comments on the proposed policies of September 1, 2017.

We will post a blog article, after the Department circulates updated rules in early May, to update you with the current status of the rules. You can find further information about the Department’s paid sick leave rule-making process, including the current draft proposed rules at: https://lni.us.engagementhq.com/.

There is still an opportunity to weigh in on these important rules.

If you have concerns about paid sick leave that are not addressed by the current draft rules, please provide comments to the Department or contact us so we can provide comments on your behalf.

 

L&I Meeting on Proposed Rules - April 24, 2017

Join WebEx Meeting Online:
Link: http://bit.ly/2pxK8JX
Meeting number (access code):  920 577 968
Meeting password: QKjJJU4W

Join by Phone:
1-877-668-4493 (Toll-free)
Meeting number (access code):  920 577 968

Meeting Location:
L&I Headquarters, Room S117
7273 Linderson Way SW, Tumwater, WA 98501-5414



Washington Minimum Wage Increase – Effective 1/1/17

This table shows the minimum wage increases for the next four years.

This table shows the minimum wage increases for the next four years.

On November 8, 2016, Washington voters passed Initiative 1433 to increase the state minimum wage beginning January 1, 2017.

Beginning on January 1, 2021 and each January 1 thereafter, the minimum wage will be adjusted, using the methodology that is set out in the statute.

Employers in industries with employees who receive tips, should be aware that tips and gratuities, and all service charges, except those itemized as not payable to employees servicing the customer cannot count toward the minimum hourly wage calculation for employees.

 

New Overtime Rules Not in Effect … Yet

 

The US Department of Labor’s (DOL) new regulations regarding overtime exemptions for executive, administrative, and professional employees (known as the “white-collar exemptions") were scheduled to take effect on December 1, 2016.  The regulations would have significantly increased the minimum salary threshold for employees to qualify for white collar exemptions.  Currently, salaried employees who make $455/week ($23,660 per year) or more, are exempt from overtime pay if they satisfy the duties test for one or more of the white collar exemptions.  The new DOL regulations, if permitted to take effect, will increase this salary threshold to $913/week, or $47,476/year.

On November 22, 2016, a federal district court in Texas issued a nationwide preliminary injunction which temporarily stops the DOL from implementing or enforcing most of the new overtime rule. What this means to you, the employer, is that you can continue to pay your exempt executive, administrative, and professional employees just as you have been, assuming they are properly classified as exempt under the current salary threshold and the duties test, until further court order.

DOL appealed the preliminary injunction to the Fifth Circuit Court of Appeals, which established an expedited briefing schedule that has spanned the inauguration and change in administration. In late January, sixty business groups and four states filed briefs in support of the injunction. It is unclear whether the new administration will continue to litigate the matter.

The Texas court’s decision temporarily blocks implementation of the proposed regulation, except for the provision increasing the minimum salary threshold for the Highly Compensated Employee (HCE) exemption. That increase, from $100,000 to $134,004, appears to have taken effect December 1, as planned, by virtue of its exclusion from the judge’s list of blocked regulations. While some suspect this may be a scrivener’s error and the court intended to block this provision along with the others, if you are relying on the HCE exemption, the most conservative approach would be to assume the salary threshold has increased, or consider whether one of the other white collar exemptions applies.

 

What does this mean to employers? 

  1. Ensure your executive, administrative and professional employees are properly classified as exempt under the current salary threshold and duties tests.
  2. If properly classified as exempt under current rules, continue paying those workers just as you did prior to the proposed change to the DOL regulation.

JDSA will continue to monitor this issue in the courts, and update the blog with new developments.

Washington Paid Sick Leave – Begins January 1, 2018

In addition to a minimum wage increase, Initiative 1433 also included provisions for paid sick leave.  Effective January 1, 2018, every employer with one or more employees (as defined in the Washington Minimum Wage Act which excludes certain categories of employees) must provide each employee paid sick leave as stated in the ‘Sick Leave Accrual” information below.

Because the Initiative is silent with respect to full time, part time, or temporary status, these classifications of employees likely also qualify for paid sick leave.

There are many unanswered questions about how this law will be applied and Washington State’s Department of Labor and Industries (“L&I”) will be responsible for answering many of these questions when it issues regulations via the rulemaking process this year.  JDSA will be participating in the rulemaking process and updating our blog as important developments happen.  L&I has held one meeting for interested stakeholders and has distributed stakeholder comments for review. The next meeting of stakeholders is scheduled for February 13, 2017 at L&I’s Headquarters in Tumwater, Washington.

If you are interested in following this process, you can sign up for email updates from L&I’s Wage and Hour list by subscribing to L&I's Wage and Hour E-mail Listserv or by contacting Allison Drake at allison.drake@Lni.wa.gov.

If you would like to submit comments, you can do one of the following:

  1. Send your feedback directly to L&I, or
  2. Submit your questions and concerns by contacting JDSA Law, and we will include them with our comments.
 

Sick Leave Accrual

Under the new law:

  • Employees accrue one hour of paid sick leave for every forty hours worked
  • Employees may use accrued paid sick leave beginning on the 90th calendar day after starting employment
  • Employees may carry over up to 40 hours of sick leave per year