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Chapter 296-128 WAC

Last Update: 12/19/17

MINIMUM WAGES

WAC Sections

RECORDKEEPING PROVISIONS
HTMLPDF296-128-010Records required.
HTMLPDF296-128-011Special recordkeeping requirements.
HTMLPDF296-128-012Overtime for truck and bus drivers.
HTMLPDF296-128-015Definitions of workday and workweek.
HTMLPDF296-128-020Term for keeping records.
HTMLPDF296-128-025Place for keeping records and availability for inspection.
HTMLPDF296-128-030Petitions for exceptions.
HTMLPDF296-128-035Payment interval.
WORKERS WITH A DISABILITY
HTMLPDF296-128-050Applicability of this regulation.
HTMLPDF296-128-055Definition.
HTMLPDF296-128-060Application for certificate.
HTMLPDF296-128-065Conditions for granting a certificate.
HTMLPDF296-128-070Issuance of certificate.
HTMLPDF296-128-075Terms of certificate.
HTMLPDF296-128-080Renewal of certificate.
HTMLPDF296-128-085Review.
HTMLPDF296-128-090Amendment of this regulation.
EMPLOYMENT OF LEARNERS
HTMLPDF296-128-100Authority.
HTMLPDF296-128-105Definitions.
HTMLPDF296-128-110Application for learner certificate.
HTMLPDF296-128-115Procedure for action upon an application.
HTMLPDF296-128-120Conditions governing issuance of learner certificates.
HTMLPDF296-128-125Terms and conditions of employment under learner certificates.
HTMLPDF296-128-130Records to be kept by employers of learners.
HTMLPDF296-128-135Amendment and revocation of learner certificate.
HTMLPDF296-128-140Supplemental regulations.
HTMLPDF296-128-145Reconsideration and review.
HTMLPDF296-128-150Procedure for amendment.
STUDENT LEARNERS
HTMLPDF296-128-175Applicability of the regulation.
HTMLPDF296-128-180Definitions.
HTMLPDF296-128-185Application for certificate.
HTMLPDF296-128-190Procedure for action upon application.
HTMLPDF296-128-195Conditions governing issuance of special student learner certificate.
HTMLPDF296-128-200Terms and conditions of special student learner certificate.
HTMLPDF296-128-205Term of special certificate.
HTMLPDF296-128-210Review.
HTMLPDF296-128-215Amendment of this regulation.
APPRENTICES
HTMLPDF296-128-225Employment of apprentices at subminimum wages.
HTMLPDF296-128-230Definition of apprentice.
HTMLPDF296-128-235Registration of apprenticeship agreement.
HTMLPDF296-128-240Procedure for issuing certificates authorizing employment of apprentices at subminimum wages.
HTMLPDF296-128-245Terms of special certificate.
HTMLPDF296-128-250Hearing procedure.
EMPLOYMENT OF STUDENT WORKERS
HTMLPDF296-128-275Applicability.
HTMLPDF296-128-280Definitions.
HTMLPDF296-128-285Filing applications.
HTMLPDF296-128-290Issuing or denying certificates.
HTMLPDF296-128-295Conditions governing issuance of certificates.
HTMLPDF296-128-300Data required on certificate.
HTMLPDF296-128-305Wage rate.
HTMLPDF296-128-310Records.
HTMLPDF296-128-315Amending and revoking certificates.
HTMLPDF296-128-400Minors.
EXECUTIVE, ADMINISTRATIVE, PROFESSIONAL, AND OUTSIDE SALESPEOPLE
HTMLPDF296-128-500Purpose.
HTMLPDF296-128-510Executive.
HTMLPDF296-128-520Administrative.
HTMLPDF296-128-530Professional.
HTMLPDF296-128-532Deductions for salaried, exempt employees.
HTMLPDF296-128-533Public employees.
HTMLPDF296-128-535Are professional computer employees exempt from the Washington Minimum Wage Act?
HTMLPDF296-128-540Outside salesman.
REGULAR RATE OF PAY AND COMPENSATORY TIME
HTMLPDF296-128-550Regular rate of pay.
HTMLPDF296-128-560Compensating time off in lieu of overtime pay.
PAID SICK LEAVE
HTMLPDF296-128-600Definitions.
HTMLPDF296-128-610Requirements for a written policy—Duty of the department to provide sample policies.
HTMLPDF296-128-620Paid sick leave accrual.
HTMLPDF296-128-630Paid sick leave usage.
HTMLPDF296-128-640Variance from required increments of paid sick leave usage.
HTMLPDF296-128-650Reasonable notice.
HTMLPDF296-128-660Verification for absences exceeding three days.
HTMLPDF296-128-670Rate of pay for use of paid sick leave.
HTMLPDF296-128-680Payment of paid sick leave.
HTMLPDF296-128-690Separation and reinstatement of accrued paid sick leave upon rehire.
HTMLPDF296-128-700Paid time off (PTO) programs.
HTMLPDF296-128-710Shared leave.
HTMLPDF296-128-720Shift swapping.
HTMLPDF296-128-730Frontloading.
HTMLPDF296-128-740Third-party administrators.
HTMLPDF296-128-750Employee use of paid sick leave for unauthorized purposes.
HTMLPDF296-128-760Employer notification and reporting to employees.
MINIMUM WAGE ACT PROTECTIONS AND ENFORCEMENT
HTMLPDF296-128-770Retaliation.
HTMLPDF296-128-780Enforcement—Retaliation.
HTMLPDF296-128-790Enforcement—Retaliation—Civil penalties.
HTMLPDF296-128-800Enforcement—Retaliation—Appeals.
HTMLPDF296-128-810Enforcement—Paid sick leave.
HTMLPDF296-128-820Enforcement—Tips and service charges.
HTMLPDF296-128-830Enforcement—Complaints alleging a violation of other rights under chapter 49.46 RCW—Duty of department to investigate—Citations—Civil penalties.
HTMLPDF296-128-840Complaints alleging a violation of other rights under chapter 49.46 RCW—Administrative appeals.
HTMLPDF296-128-850Complaints alleging a violation of other rights under chapter 49.46 RCW—Collection procedures.
HTMLPDF296-128-860Severability clause.
DISPOSITION OF SECTIONS FORMERLY CODIFIED IN THIS TITLE
296-128-410Counselor staff occupations in organized seasonal recreational camps—Women and minors. [Industrial Welfare Order 11-63, filed 9/13/63; Minimum Wage and Welfare Order 54, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-415Food processing industry—Women and minors. [Industrial Welfare Order 5-62, filed 11/25/64; Minimum Wage and Welfare Order 51, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-420Fresh fruit and vegetable packing industry—Women and minors. [Industrial Welfare Order 6-62, filed 11/25/64; Minimum Wage and Welfare Order 52, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-425General amusement and recreation industry—Women and minors. [Industrial Welfare Order 8-62, filed 11/25/64; Minimum Wage Order 45-A, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgated, see chapter 296-125 WAC.
296-128-430Health care industry—Women and minors. [Industrial Welfare Order 68-3, filed 5/8/68, effective 7/15/68; Industrial Welfare Order 10-62, filed 11/25/64; Minimum Wage Order 46, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-435Laundry, dry-cleaning and dye works industry—Women and minors. [Industrial Welfare Order 3-62, filed 11/25/64; Minimum Wage and Welfare Order 48, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-440Manufacturing industry and general working conditions—Women and minors. [Industrial Welfare Order 2-62, filed 11/25/64; Minimum Wage and Welfare Order 50, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-445Mercantile industry, wholesale and retail—Women and minors. [Order 71-5, § 296-128-445, filed 5/26/71, effective 7/1/71, Mercantile Industrial Welfare Order 1-71; Industrial Welfare Order 1-62, filed 11/25/64; Minimum Wage Order 44, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4451Applicability. [Order 71-5, § 296-128-4451, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4452Definitions. [Order 71-5, § 296-128-4452, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4453Minimum wages. [Order 71-5, § 296-128-4453, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4454Deductions. [Order 71-5, § 296-128-4454, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4455Statements furnished. [Order 71-5, § 296-128-4455, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4456Records. [Order 71-5, § 296-128-4456, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4457Meal and rest periods. [Order 71-5, § 296-128-4457, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4458Working conditions. [Order 71-5, § 296-128-4458, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4459Uniforms. [Order 71-5, § 296-128-4459, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-446Minor work permits. [Order 71-5, § 296-128-446, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4461Posting of order. [Order 71-5, § 296-128-4461, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4462Separability. [Order 71-5, § 296-128-4462, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4463Penalties. [Order 71-5, § 296-128-4463, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-450Office workers—Women and minors. [Industrial Welfare Order 13-63, filed 11/25/64; Minimum Wage Order 43, filed 3/23/60; Statement of interpretation of applicability of Industrial Welfare Committee Order 13-63, office workers, filed 11/25/64.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-455Personal service industry—Women and minors. [Industrial Welfare Order 4-62, filed 11/25/64.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-460Public housekeeping industrial—Women and minors. [Order 71-5 (Industrial Welfare Order No. 9-71), § 296-128-460, filed 5/26/71, effective 7/1/71; Industrial Welfare Order 9-62, filed 11/25/64; Minimum Wage Order 46, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4601Applicability. [Order 71-5, § 296-128-4601, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4602Definitions. [Order 71-5, § 296-128-4602, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4603Minimum wages. [Order 71-5, § 296-128-4603, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4604Deductions. [Order 71-5, § 296-128-4604, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4605Statements furnished. [Order 71-5, § 296-128-4605, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4606Records. [Order 71-5, § 296-128-4606, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4607Meals and lodging. [Order 71-5, § 296-128-4607, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4608Meal and rest periods. [Order 71-5, § 296-128-4608, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4609Working conditions. [Order 71-5, § 296-128-4609, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-461Uniforms. [Order 71-5, § 296-128-461, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4611Minor work permits. [Order 71-5, § 296-128-4611, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4612Posting of order. [Order 71-5, § 296-128-4612, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4613Separability. [Order 71-5, § 296-128-4613, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-4614Penalties. [Order 71-5, § 296-128-4614, filed 5/26/71, effective 7/1/71.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-465Telephone and telegraph industry—Women and minors. [Industrial Welfare Order 12-63, filed 11/25/64; Minimum Wage and Welfare Order 53, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.
296-128-470Theatrical amusement and recreation industry—Women and minors. [Industrial Welfare Order 7-62, filed 11/25/64; Minimum Wage Order 45, filed 3/23/60.] Repealed by Order 77-32, filed 12/30/77. Later promulgation, see chapter 296-125 WAC.


PDF296-128-010

Records required.

For all employees who are subject to RCW 49.46.020, employers shall be required to keep and preserve payroll or other records containing the following information and data with respect to each and every employee to whom said section of said act applies:
(1) Name in full, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records. This shall be the same name as that used for Social Security record purposes;
(2) Home address;
(3) Occupation in which employed;
(4) Date of birth if under eighteen;
(5) Time of day and day of week on which the employee's workweek begins. If the employee is part of a workforce or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole workforce or establishment will suffice. If, however, any employee or group of employees has a workweek beginning and ending at a different time, a separate notation shall then be kept for that employee or group of employees;
(6) Hours worked each workday and total hours worked each workweek (for purposes of this section, a "workday" shall be any consecutive twenty-four hours);
(7) Total daily or weekly straight-time earnings or wages; that is, the total earnings or wages due for hours worked during the workday or workweek, including all earnings or wages due during any overtime worked, but exclusive of overtime excess compensation;
(8) Total overtime excess compensation for the workweek; that is, the excess compensation for overtime worked which amount is over and above all straight-time earnings or wages also earned during overtime worked;
(9) Total additions to or deductions from wages paid each pay period. Every employer making additions to or deductions from wages shall also maintain a record of the dates, amounts, and nature of the items which make up the total additions and deductions;
(10) Total wages paid each pay period;
(11) Date of payment and the pay period covered by payment;
(12) Paid sick leave accruals each month, and any unused paid sick leave available for use by an employee;
(13) Paid sick leave reductions each month including, but not limited to: Paid sick leave used by an employee, paid sick leave donated to a co-worker through a shared leave program, or paid sick leave not carried over to the following year ("year" as defined in WAC 296-128-620(6));
(14) The date of commencement of his or her employment, as defined in WAC 296-128-600(2);
(15) Employer may use symbols where names or figures are called for so long as such symbols are uniform and defined.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-010, filed 10/17/17, effective 1/1/18; Regulation 294.7.001 (part), filed 12/30/60.]



PDF296-128-011

Special recordkeeping requirements.

(1) In addition to the records required by WAC 296-128-010, employers who employ individuals as truck or bus drivers subject to the provisions of the Federal Motor Carrier Act shall maintain records indicating the base rate of pay, the overtime rate of pay, the hours worked by each employee for each type of work, and the formulas and projected work hours used to substantiate any deviation from payment on an hourly basis pursuant to WAC 296-128-012. The records shall indicate the period of time for which the base rate of pay and the overtime rate of pay are in effect.
For the purposes of this section and WAC 296-128-012, "base rate of pay" means the amount of compensation paid per hour or per unit of work in a workweek of forty hours or less. A base rate of pay shall be established in advance of the work performed and may be based on hours or work units such as mileage, performance of specified duties, or a specified percentage of the gross proceeds charged for specified work. A base rate of pay shall not be established that will result in compensation at less than the minimum wage prescribed in RCW 49.46.020. "Overtime rate of pay" means the amount of compensation paid for hours worked in excess of forty hours per week and shall be at least one and one-half times the base rate of pay.
(2) The records required by this section shall be made available by the employer at the request of the department. Any current or past employee may obtain copies of the formula, the base rate of pay, the overtime rate of pay, and that employee's records. Job applicants seeking employment by the employer as truck or bus drivers subject to the provisions of the Federal Motor Carrier Act, may obtain copies of the formula, the base rate of pay, and the overtime rate of pay.
[Statutory Authority: RCW 43.22.270 and 49.46.130. WSR 08-21-150, § 296-128-011, filed 10/21/08, effective 11/21/08. Statutory Authority: RCW 43.22.270, 49.46.130 and 1989 c 104. WSR 89-22-120, § 296-128-011, filed 11/1/89, effective 12/2/89.]



PDF296-128-012

Overtime for truck and bus drivers.

(1)(a) The compensation system under which a truck or bus driver subject to the provisions of the Federal Motor Carrier Act is paid shall include overtime pay at least reasonably equivalent to that required by RCW 49.46.130 for working in excess of forty hours a week. To meet this requirement, an employer may, with notice to a truck or bus driver subject to the provisions of the Federal Motor Carrier Act, establish a rate of pay that is not on an hourly basis and that includes in the rate of pay compensation for overtime. An employer shall substantiate any deviation from payment on an hourly basis to the satisfaction of the department by using the following formula or an alternative formula that, at a minimum, compensates hours worked in excess of forty hours per week at an overtime rate of pay and distributes the projected overtime pay over the average number of hours projected to be worked. The following formula is recommended for establishing a uniform rate of pay to compensate work that is not paid on an hourly basis and for which compensation for overtime is included:
1.
Define work unit first. E.g., miles, loading, unloading, other.
2.
Average number of work units
=
Average number of work units accomplished per week
 
per hour
Average number of hours projected to be worked per week
3.
Weekly Base Rate
=
Number of units per hour x 40 hours x base rate of pay
4.
Weekly Overtime rate
=
Number of units per hour x number of hours over 40 x overtime rate of pay
5.
Total weekly pay
=
Weekly base rate plus weekly overtime rate
6.
Uniform rate of pay
=
Total weekly pay
Total work units
Example:
A truck driver is paid on a mileage basis for a two hundred thirty mile trip performed about ten times a week. The base rate of pay is twenty cents a mile. The overtime rate of pay is thirty cents a mile. The average length of the trip is four and one-half hours.
1.
2300 mi.  divided by
per week
45 hours per week
=
51.1 miles
per hour
2.
(a)
51.1 miles/hour times 40 hours times .20/ mile = $408.80
 
(b)
51.1 miles/hour times 5 hours = 255.5 miles
 
(c)
255.5 miles times .30/mile = $76.65
 
(d)
$408.80 plus $76.65 = $485.45 divided by 2300 miles = 21.1 cents mile
(b) In using a formula to determine a rate of pay, the average number of hours projected to be worked and the average number of work units accomplished per week shall reflect the actual number of hours worked and work units projected to be accomplished by persons performing the same type of work over a representative time period within the past two years consisting of at least twenty-six consecutive weeks.
(c) The department may evaluate alternative rates of pay and formulas used by employers in order to determine whether the rates of pay established under this section result in the driver receiving compensation reasonably equivalent to one and one-half times the base rate of pay for actual hours worked in excess of forty hours per week.
(2) Where an employee receives a different base rate of pay depending on the type of work performed, the rate that is paid or used for hours worked in excess of forty hours per week shall be at least the overtime rate of pay for the type of work in which most hours were worked.
(3) Compensation plans before March 1, 2007. An employer who employed drivers who worked over forty hours a week consisting of both in-state and out-of-state hours anytime before March 1, 2007, may, within ninety days of the adoption of this subsection, submit a proposal consistent with subsection (1) of this section to the department for approval of a reasonably equivalent compensation system. The employer shall submit information to substantiate its proposal consisting of at least twenty-six consecutive weeks over a representative time period between July 1, 2005, and March 1, 2007. The department shall then determine if the compensation system includes overtime that was at least reasonably equivalent to that required by RCW 49.46.130.
Note 1:
On March 1, 2007, the Washington state supreme court ruled that overtime rate of pay includes hours worked within and outside the state of Washington for Washington-based employees. Bostain v. Food Express, Inc., 159 Wn.2d 700, 153 P.3d 846 (2007).
Note 2:
The adoption date of this subsection is October 21, 2008.
[Statutory Authority: RCW 43.22.270 and 49.46.130. WSR 08-21-150, § 296-128-012, filed 10/21/08, effective 11/21/08. Statutory Authority: RCW 43.22.270, 49.46.130 and 1989 c 104. WSR 89-22-120, § 296-128-012, filed 11/1/89, effective 12/2/89.]



PDF296-128-015

Definitions of workday and workweek.

(1) A workweek is a fixed and regularly recurring period of one hundred sixty-eight hours or seven consecutive twenty-four-hour periods. It may begin on any day of the week and any hour of the day, and need not coincide with a calendar week.
(2) A workday is a fixed and regularly recurring period of twenty-four hours. It may begin at any hour of a calendar day and must begin at the same time each calendar day.
[Regulation 294.7.001 (part), filed 12/30/60.]



PDF296-128-020

Term for keeping records.

Unless otherwise specifically authorized by the director all records required under WAC 296-128-010 shall be kept for a period of at least three years.
[Regulation 294.7.001 (part), filed 12/30/60.]



PDF296-128-025

Place for keeping records and availability for inspection.

Each employer shall keep the records required by this regulation safe and accessible at the place or places of employment or at one or more established central recordkeeping offices where such records are customarily maintained. All such records shall be open at any time to inspection and transcription or copying by the director and his duly authorized representative and to the employee, upon request for that employee's work record, at any reasonable time.
[Statutory Authority: RCW 43.22.270, 49.12.020, 49.12.091, 49.12.050, 49.46.020 and 49.46.070. WSR 89-22-016 (Order 89-16), § 296-128-025, filed 10/24/89, effective 11/24/89; Regulation 294.7.001 (part), filed 12/30/60.]



PDF296-128-030

Petitions for exceptions.

(1) Submission of petitions for relief. Any employer or group of employers who, due to peculiar conditions under which he or they must operate, desires authority to maintain records in a manner other than required in this regulation, or to be relieved of preserving certain records for the period specified in the regulation, may submit a written petition to the director setting forth the authority desired and the reasons therefor.
(2) Action on petitions. If, on review of the petition and after completion of any necessary investigation supplementary thereto, the director shall find that the authority prayed for, if granted, will not hamper or interfere with enforcement of the provisions of the act or any regulation or orders issued thereunder, he may then grant such authority but limited by such conditions as he may determine are requisite, and subject to subsequent revocation. Where the authority granted hereunder is sought to be revoked for failure to comply with the conditions determined by the director to be requisite to its existence, the employer or groups of employers involved shall be notified in writing of the facts constituting such failure and afforded an opportunity to achieve or demonstrate compliance.
(3) Compliance after submission of petitions. The submission of a petition or the delay of the director in acting upon such petition shall not relieve any employer or group of employers from any obligations to comply with all the requirements of the regulations in this part applicable to him or them. However the director shall give notice of the denial of any petition with due promptness.
[Regulation 294.7.001 (part), filed 12/30/60.]



PDF296-128-035

Payment interval.

(1) This rule shall apply to employers and employees subject to chapter 49.46 RCW.
Note:
Employers and employees not subject to this regulation may still be subject to the payment interval requirements of WAC 296-126-023 or 296-131-010.
(2) Definitions:
(a) "Monthly interval" means a one-month time period between established pay days.
(b) "Pay day" means a specific day or date established by the employer on which wages are paid for hours worked during a pay period.
(c) "Payment interval" means the amount of time between established pay days. A payment interval may be daily, weekly, bi-weekly, semi-monthly or monthly.
(d) "Pay period" means a defined time frame for which an employee will receive a paycheck. A pay period may be daily, weekly, bi-weekly, semi-monthly or monthly.
(3) An employer shall pay all wages owed to an employee on an established regular pay day at no longer than monthly payment intervals. If federal law provides specific payment interval requirements that are more favorable to an employee than the payment interval requirements provided under this rule, federal law shall apply.
(4) If an employer pays wages on the basis of a pay period that is less than a month, the employer shall establish a regular pay day no later than ten calendar days after the end of the pay period, unless expressly provided otherwise by law.
Example 1: Employer establishes a weekly pay period. The workweek is from Sunday January 1 through Saturday January 7. Unless a different payment interval applies by law, the employer must pay wages no later than January 17.
Example 2: Employer establishes two semi-monthly pay periods (the first pay period covers the 1st day of the month to the 15th day of the month; the second pay period covers the 16th day of the month to the last day of the month). Unless a different payment interval applies by law, the employer must pay wages no later than the 25th day of the current month for the first pay period, and no later than the 10th day of the following month for the second pay period.
(5) If an employer pays wages on the basis of a monthly pay period, the employer may establish a regular payroll system under which wages for work performed by an employee during the last seven days of the monthly pay period may be withheld and included with the wages paid on the pay day for the next pay period.
Example: Employer establishes a monthly pay period starting on the 1st day of each month with an established pay day on the last day of the month. In a thirty-one-day month, unless a different payment interval applies by law, the employer must pay wages for work performed between the 1st and 24th days of the month on the established pay day (the last day of the month). The employer may pay wages for work performed between the 25th and 31st days of the current month on the following month's pay day (which means that the employer would pay wages for work performed between the 25th and 31st days of the current month, and the 1st and 24th days of the following month, on the following month's pay day).
If pay period is:
And if pay day for regular wages is:
Then pay day for overtime wages must be no later than:
1st of the month - 15th day of the month
25th of the month
10th of the following month
16th of the month - 30th or 31st of the month
10th of the following month
25th of the following month
(6) An employer shall pay overtime wages owed to an employee on the regular pay day for the pay period in which the overtime wages were earned. If the correct amount of overtime wages cannot be determined until after such regular pay day, the employer may establish a separate pay day for overtime wages; provided, that the payment of overtime wages may not be delayed for a period longer than that which is reasonably necessary for the employer to compute and arrange for payment of the amount due, and overtime wages must be paid by the regular pay day following the next pay period.
Example: Employer establishes two semi-monthly pay periods. The first pay period covers work performed from the 1st day of the month to the 15th day of the month with the pay day of the 25th; the second pay period covers the 16th day of the month to the last day of the month with the pay day of the 10th of the following month. An employee works overtime in each of the pay periods. Unless a different payment interval applies by law, the employer must pay the overtime wages no later than the 10th day of the following month for the overtime earned during the first pay period, and no later than the 25th day of the following month for the overtime earned during the second pay period.
If pay period is:
And if pay day for regular wages is:
Then pay day for overtime wages must be no later than:
1st of the month - 15th day of the month
25th of the month
10th of the following month
16th of the month - 30th or 31st of the month
10th of the following month
25th of the following month
(7) Mailed paychecks shall be postmarked no later than the established pay day. If the established pay day falls on a weekend day or holiday when the business office is not open, mailed paychecks shall be postmarked no later than the next business day. Employers that pay employees by direct deposit or other electronic means shall ensure that such wage payments are made and available to employees on the established pay day.
(8) These rules may be superseded by a collective bargaining agreement negotiated under the National Labor Relations Act, 29 U.S.C. Sec. 151 et seq., the Public Employees' Bargaining Act, RCW 41.56.010 et seq., or the Personnel System Reform Act, RCW 41.80.001 et seq., if the terms of, or recognized custom and practice under, the collective bargaining agreement prescribe specific payment interval requirements for employees covered by the collective bargaining agreement; provided, that:
(a) All regular wages (whether paid on an hourly, salary, commission, piece rate, or other basis) shall be paid to employees covered by the collective bargaining agreement ("covered employees") at no longer than monthly intervals;
(b) All other wages (including overtime, bonus pay, and other categories of specialty pay in addition to regular wages) are paid in accordance with the payment interval requirements applicable to covered employees under the terms of, or recognized custom and practice under, the collective bargaining agreement; and
(c) The employer pays regular wages to covered employees at no less than the applicable minimum wage rate.
[Statutory Authority: Chapters 49.12, 49.30, and 49.46 RCW. WSR 07-03-145, § 296-128-035, filed 1/23/07, effective 3/1/07. Statutory Authority: RCW 43.22.270, 49.12.020, 49.12.091, 49.12.050, 49.46.020 and 49.46.070. WSR 89-22-016 (Order 89-16), § 296-128-035, filed 10/24/89, effective 11/24/89.]



PDF296-128-050

Applicability of this regulation.

This regulation is issued pursuant to RCW 49.46.060, Washington minimum wage and hour law, which authorized the director of the department of labor and industries, to the extent necessary in order to prevent curtailment of opportunities for employment, to issue special certificates for employment of individuals whose earning capacity is impaired by age or physical or mental deficiency or injury at wages lower than the minimum wage applicable under RCW 49.46.020. Such certificates shall be subject to the conditions prescribed in this regulation.
[§ 1, Regulation 294.6.005, filed 12/30/60.]



PDF296-128-055

Definition.

"Worker with a disability" means an individual whose earning capacity is impaired by age or physical or mental deficiency or injury for the work he or she is to perform.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-055, filed 10/17/17, effective 1/1/18; § 2, Regulation 294.6.005, filed 12/30/60.]



PDF296-128-060

Application for certificate.

(1) Application for a certificate authorizing the employment of workers with a disability shall be made upon forms made available by the director or authorized representatives.
(2) The application shall set forth, among other things, the nature of the disability, a description of the occupation at which the worker with a disability is to be employed, and the wage the employer proposes to pay the worker with a disability per hour. The nature of the disability must be set out in detail.
(3) The application shall be signed jointly by the employer and the worker with a disability for whom such application is being made, except as otherwise authorized by the director or an authorized representative.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-060, filed 10/17/17, effective 1/1/18; § 3, Regulation 294.6.005, filed 12/30/60.]



PDF296-128-065

Conditions for granting a certificate.

(1) If the application is in proper form and sets forth facts showing:
(a) A subminimum wage is necessary to prevent curtailment of the worker with a disability's opportunities for employment;
(b) The disability impairs the earning capacity of the worker for the work he or she is to perform, a certificate may be issued.
(2) The director or an authorized representative may require the submission of additional information to that shown on the application and may require the worker with a disability to take a medical examination where it is deemed necessary in order to determine whether or not the issuance of a certificate is justified.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-065, filed 10/17/17, effective 1/1/18; § 4, Regulation 294.6.005, filed 12/30/60.]



PDF296-128-070

Issuance of certificate.

If the application and other available information indicate that the requirements of this regulation are satisfied, the director or an authorized representative shall issue a certificate. Otherwise the director or an authorized representative shall deny a certificate. If issued, copies of the certificate shall be mailed to the employer and the worker with a disability and if denied, the employer and the worker with a disability shall be given written notice of the denial.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-070, filed 10/17/17, effective 1/1/18; § 5, Regulation 294.6.005, filed 12/30/60.]



PDF296-128-075

Terms of certificate.

(1) A certificate shall specify, among other things, the name of the worker with a disability, the name of the employer, the occupation in which the worker with a disability is to be employed, the authorized subminimum wage rate and the period of time during which such wage rate may be paid.
(2) A certificate shall be effective for a period to be designated by the director or an authorized representative and a worker with a disability employed under such certificate may be paid subminimum wages only during the effective period of the certificate.
(3) The wage rate set in the certificate shall be fixed at a figure designed to reflect adequately the worker with a disability's earning capacity. No wage rate shall be fixed at less than seventy-five percent of the applicable minimum wage under RCW 49.46.020 unless, after investigation a lower rate appears to be clearly justified.
(4) Any money received by a worker with a disability by reason of any state or federal pension or compensation program for workers with a disability shall not be considered as offsetting any part of the wage or remuneration due the worker by the employer.
(5) The worker with a disability or trainee shall be paid not less than one and one-half times the regular rate for hours worked in excess of forty in the workweek or eight in the workday.
(6) The terms of any certificate, including the subminimum wage rate specified therein, may be amended by the director or an authorized representative upon written notice to the parties concerned, if the facts justify such amendment.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-075, filed 10/17/17, effective 1/1/18; § 6, Regulation 294.6.005, filed 12/30/60.]



PDF296-128-080

Renewal of certificate.

Application for renewal of any certificate shall be filed in the same manner as an original application. If such application has been filed prior to the expiration date of the certificate, the certificate shall remain in effect until the application for renewal has been granted or denied.
[§ 7, Regulation 294.6.005, filed 12/30/60.]



PDF296-128-085

Review.

Any person aggrieved by any action of the director or his authorized representative taken pursuant to this regulation may, within fifteen days after notice of such action has been mailed, file with the director a petition for review of the action complained of, setting forth grounds for seeking such review. If reasonable grounds exist, the director or his authorized representative may grant such review and to the extent deemed appropriate afford all interested persons an opportunity to be heard on such review.
[§ 8, Regulation 294.6.005, filed 12/30/60.]



PDF296-128-090

Amendment of this regulation.

Any person desiring revision of any of the terms of this regulation may submit in writing to the director a petition setting forth the changes desired and the reasons for proposing them. If the director believes that reasonable cause for amendment of this regulation is set forth he will schedule a hearing in accordance with RCW 49.46.080.
[§ 9, Regulation 294.6.005, filed 12/30/60.]



PDF296-128-100

Authority.

This regulation is promulgated in accordance with RCW 49.46.060.
[§ 1, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-105

Definitions.

As used in this regulation:
(1) A "learner" is a worker whose total experience in an authorized learner occupation is less than the period of time allowed as a learning period for that occupation in a learner certificate issued pursuant to these regulations.
(2) An "experienced worker" is a worker whose total experience in an authorized learner occupation is at least equal to the period of time allowed as a learning period for that occupation in a learner certificate issued pursuant to these regulations.
(3) "Experienced worker available for employment" means an experienced worker residing within the area from which the employer customarily draws its labor supply or within a reasonable commuting distance of such area, and who is willing and able to accept employment with the employer; or an experienced worker residing outside of the area from which the employer customarily draws its labor supply, who has in fact made himself available for employment.
[§ 2, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-110

Application for learner certificate.

(1) Whenever the employment of learners at wages lower than the minimum wage applicable under RCW 49.46.020 is believed necessary to prevent curtailment of opportunities for employment by a specified employer, an application for a certificate authorizing the employment of such learners at subminimum wage rates may be filed by the employer with the director of the department of labor and industries or his authorized representative.
(2) Application must be made on the official form provided by the department and furnish all information called for on said form.
(3) Separate application must be made with respect to each establishment or place of business operated by the applicant and in which he desires to employ learners at subminimum wage rates.
[§ 3, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-115

Procedure for action upon an application.

(1) Upon receipt of an application for a learner certificate or renewal of such certificate the director or his authorized representative shall consider all relevant facts and, subject to the conditions specified in WAC 296-128-120, shall issue or deny a learner certificate or, in appropriate circumstances, provide an opportunity to interested parties to present their views on the application prior to granting or denying a learner certificate.
(2) If a learner certificate is granted, notice of such fact and the terms of the certificate shall be posted at the employer's place of business for fifteen days after receipt thereof and any interested person may file with the director written requests for reconsideration or review. Such application should set forth the applicant's interest in the review and the reasons he seeks review.
(3) If a learner certificate is denied, notice of such denial shall be mailed to the employer and it shall be without prejudice to the subsequent filing of an application.
[§ 4, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-120

Conditions governing issuance of learner certificates.

The following conditions shall govern the issuance of a special certificate authorizing the employment of learners at subminimum wage rates:
(1) An adequate supply of qualified experienced workers is not available for employment; the experienced workers presently employed in occupations in which learners are requested, are afforded an opportunity for full time employment; learners are available for employment; and the granting of a certificate is necessary to prevent curtailment of employment opportunities.
(2) Reasonable efforts have been made to obtain experienced workers, including the placement of an order with the employment security office of the state of Washington.
(3) The issuance of a learner certificate will not tend to create unfair competitive labor cost advantages nor have the effect of impairing or depressing wage or working standards established for experienced workers for work of a like or comparable character in the industry.
(4) Abnormal labor conditions such as a strike, lock-out or other similar condition do not exist at the place of business for which a learner certificate is requested.
(5) There are no serious outstanding violations of the provisions of learner certificates previously issued to the employer, nor have there been any serious violations of the Washington Minimum Wage and Hour Act which provide reasonable grounds to believe that the terms of a certificate may not be complied with.
(6) The occupation or occupations in which learners are to receive training require a sufficient degree of skill to necessitate an appreciable training period.
(7) Learners shall be afforded every reasonable opportunity for continued employment upon completion of the learning period.
(8) Unless otherwise specified in the learner certificate, a learning program shall not exceed four hundred eighty hours of employment, and the total hours worked in any establishment by learners shall not exceed ten percent of the total hours normally worked by experienced workers in such establishment: Provided, That where less than ten experienced workers are employed by an employer, a learner certificate may authorized the employment of learners for a maximum of forty hours per week under a bona fide learner program.
[§ 5, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-125

Terms and conditions of employment under learner certificates.

(1) A learner certificate, if issued, shall specify, among other things:
(a) The number or proportion of learners authorized to be employed on any one day;
(b) The occupations in which learners may be employed;
(c) The subminimum wage rates permitted for each learner occupation during the authorized learning period; which shall not be less than eighty-five percent of the minimum wage specified in RCW 49.46.020, as it may be amended, unless otherwise specified in the certificate;
(d) The learning period for each authorized learner occupation;
(e) The effective and expiration dates of the certificate.
(2) A learner certificate may be issued for a period of not longer than one year. A renewal certificate will not be issued without a clear showing that conditions set forth in WAC 296-128-120 still prevail.
(3) Learners hired pursuant to a learner certificate prior to the date on which such certificate expires may be continued in employment at the authorized subminimum wage rate for the duration of their authorized learning period even though the certificate expired before the learning period is completed.
(4) A copy of the learner certificate shall be posted by the employer during its effective period in a conspicuous place in the department where learners are to be employed.
(5) No learner shall be hired under a learner certificate if, at the time the employment begins, experienced workers capable of equaling the performance of a worker of minimum acceptable skill are available for employment.
(6) No learner shall be hired under a learner certificate while abnormal labor conditions exist such as a strike, lock-out, or other similar conditions in the place of business for which a learner certificate has been issued.
(7) The number of hours of previous employment in a learner occupation for which the learner has been hired must be deducted from the authorized learning period if within the three years immediately preceding the hiring of such learner he has been employed in the learner occupation for less than the total number of hours authorized as a learning period and shall also be deducted from the authorized learning period all hours spent in pertinent training in a vocational training school on the occupation for which the learner has been employed.
(8) No provision of any learner certificate will excuse noncompliance with higher standards applicable to learners which may be established under any other state law, federal law, or trade union agreement.
(9) Unless otherwise specified in the learner certificate a learning program shall not exceed four hundred eighty hours of employment and the total hours worked in any establishment by learners shall not exceed ten percent of the total hours normally worked by experienced workers in such establishment: Provided, That where less than ten experienced workers are employed by an employer a learner certificate may authorize the employment of learners for a maximum of forty hours per week under a bona fide learner program.
[§ 6, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-130

Records to be kept by employers of learners.

The director or his authorized representative may specify additional records to be kept by employers of learners as a condition to compliance with the learner certificate.
[§ 7, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-135

Amendment and revocation of learner certificate.

The director may amend or revoke a learner certificate when it is necessary by reason of changes in these regulations, or where the employer has violated its terms, or where the certificate was obtained by misleading or false statements, or where changed conditions warrant it in the opinion of the director.
[§ 8, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-140

Supplemental regulations.

(1) Upon application of any person or persons, representing any industry or branch thereof, or upon his own motion, the director, if he deems it advisable, may, after appropriate and timely notice to interested parties, cause a hearing to be held to determine the need for employment of learners at wages lower than the minimum wage applicable under RCW 49.46.020 in order to prevent curtailment of employment opportunities in any industry or branch thereof; and if such need is found to exist, determine the occupations which require a learning period and the limitations as to wages, time, number, proportion, and length of learning period. Such hearing shall be held before the director or his duly authorized representative. Following such hearing the director may, by supplemental regulations, prescribe the conditions under which special certificates shall be issued for the employment of learners in such industry or branch thereof, if he finds that there is a need therefor to prevent curtailment of opportunities for employment.
(2) At such hearing the director may cause to be brought before him or his authorized representative any witness whose testimony he deems material to the subject matter before him.
[§ 9, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-145

Reconsideration and review.

(1) Any person aggrieved by the action of the director or his authorized representative denying or granting a learner certificate may within fifteen days after mailing of notice of such action file a written request for reconsideration with the director.
(2) A request for a reconsideration shall be accompanied by a statement of the additional evidence which the applicant believes may materially affect the decision.
(3) A request for review shall be granted where reasonable grounds are set forth in the request and if such review is granted all interested persons shall be afforded an opportunity to be heard.
[§ 10, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-150

Procedure for amendment.

The director may at any time upon his own motion or upon written request of any interested persons setting forth reasonable grounds therefor amend or revoke any of the terms of this regulation or of any supplemental regulations promulgated in accordance with WAC 296-128-140 after hearing as provided in RCW 49.46.080.
[§ 11, Regulation 294.6.003, filed 3/23/60.]



PDF296-128-175

Applicability of the regulation.

This regulation is issued in accordance with RCW 49.46.060, to provide for the employment under special certificates of student learners at wages less than the minimum provided in RCW 49.46.020, in order to prevent curtailment of opportunities for employment. Such certificates shall be subject to the terms and conditions hereinafter set forth.
[§ 1, Regulation 294.6.004, filed 3/23/60.]



PDF296-128-180

Definitions.

(1) A "student learner" is a student who is receiving instruction in an accredited school, college, or university, and who is employed on a part-time basis in a bona fide vocational training program, or in a job-training program established by an accredited school and approved by the director of the department of labor and industries.
(2) A "bona fide vocational training program" is one authorized and approved by the state board of vocational education and provides for part-time employment which may be scheduled for part of the workday or workweek, for alternating weeks or for other limited periods during the year, supplemented by and integrated with a definitely organized plan of instruction designed to teach technical knowledge or related industrial information given as a regular part of the student learner's course by an accredited school, college, or university.
[§ 2, Regulation 294.6.004, filed 3/23/60.]



PDF296-128-185

Application for certificate.

(1) Whenever the employment of a student learner at wages lower than the minimum wage applicable under RCW 49.46.020 is believed necessary to prevent curtailment of opportunities for employment, an application for a special certificate authorizing the employment of such student learner at subminimum wages shall be filed by the employer with the director of the department of labor and industries or his authorized representative.
(2) Application shall be on forms furnished by the department of labor and industries and must be signed by the employer, an appropriate school official and the student learner. Such application shall, among other things, show: The nature of the training program; the total number of workers employed by the employer; the number and hourly wage rate of experienced workers employed in the occupation in which the student learner is to be trained; the hourly wage rate or progressive wage schedule which the employer proposes to pay the student learner; the age of the student learner; the period of employment training at subminimum wages; the number of hours of employment training a week; the number of hours of school instruction a week.
[§ 3, Regulation 294.6.004, filed 3/23/60.]



PDF296-128-190

Procedure for action upon application.

(1) Upon receipt of application for the employment of a student learner the director or his authorized representative shall either issue a special certificate or deny the application. To the extent deemed necessary the director or his authorized representative may provide an opportunity to interested persons to to be heard on the application prior to granting or denying it.
(2) If a special certificate is issued it shall be mailed to the employer and a copy of it shall be mailed to the school official who signs the application.
[§ 4, Regulation 294.6.004, filed 3/23/60.]



PDF296-128-195

Conditions governing issuance of special student learner certificate.

The following conditions must be satisfied before a special certificate may be issued authorizing employment of student learners at subminimum wages:
(1) Any training program under which the student learner will be employed must be a bona fide vocational training program as defined in WAC 296-128-180 or be a part of a job-training program established by the governing body of the school and approved by the director of the department of labor and industries.
(2) The employment of the student learner at subminimum wages must be necessary to prevent curtailment of opportunities for employment.
(3) The occupation for which the student learner is receiving preparatory training must require a sufficient degree of skill to necessitate a substantial learning period.
(4) The employment of a student learner must not have the effect of displacing a worker employed in the establishment in which the student learner is to be employed.
(5) The employment of the student learner at subminimum wages must not tend to impair or depress the wage rates or working standards established for experienced workers for work of a like or comparable nature.
(6) The issuance of such a certificate must not tend to prevent the development of apprenticeships or must not impair established apprenticeship standards in the occupation or industry involved.
[§ 5, Regulation 294.6.004, filed 3/23/60.]



PDF296-128-200

Terms and conditions of special student learner certificate.

(1) The special student learner certificate if issued shall specify among other things: (a) The name of the student learner; (b) the name and address of the employer; (c) the name of the school which provides the related school instruction; (d) the occupation in which the student is to be trained; (e) the maximum number of hours of employment training in any one week at a specified subminimum wage rate; (f) the number of hours per week in which the student is engaged in his school training program; (g) the effective and expiration dates of the certificate.
(2) The subminimum wage rate shall be not less than seventy-five percent of the minimum wage provided in RCW 49.46.020.
(3) Unless otherwise authorized by the director or his authorized representative the number of hours of employment training each week at subminimum wages pursuant to certificate, when added to the hours of school instruction shall not exceed forty hours: Provided, however, That when school is not in session on any school day or school week, the student learner may work a number of hours in addition to the weekly number of hours of employment training authorized by the certificate, provided that the hours do not exceed eight in such day or forty in such week.
(4) Unless otherwise authorized by the director or his authorized representative the total number of hours worked by all student learners employed by an employer shall not exceed 10 percent of the total hours worked by all regular employees of said employer in the establishment in which such student learners are employed.
[§ 6, Regulation 294.6.004, filed 3/23/60.]



PDF296-128-205

Term of special certificate.

A special student learner certificate may be issued for a period not to exceed the length of one school year unless the director finds that a longer period is justified by extraordinary circumstances.
[§ 7, Regulation 294.6.004, filed 3/23/60.]



PDF296-128-210

Review.

Any person aggrieved by the action of the director or his authorized representative in denying or granting a special student learner certificate may within fifteen days after the mailing of notice of such action file a written request for review which will be granted where such request sets forth reasonable grounds therefor. To the extent the director or his authorized representative deems it necessary he shall afford all persons interested in said review an opportunity to be heard.
[§ 8, Regulation 294.6.004, filed 3/23/60.]



PDF296-128-215

Amendment of this regulation.

Any person desiring revision of any of the terms of this regulation may submit in writing to the director a petition setting forth the changes desired and the reasons for proposing them. If the director believes that reasonable cause for amendment of this regulation is set forth he will schedule a hearing in accordance with RCW 49.46.080.
[§ 9, Regulation 294.6.004, filed 3/23/60.]



PDF296-128-225

Employment of apprentices at subminimum wages.

The director or his authorized representative, to the extent necessary to prevent curtailment of employment opportunities, shall issue special certificates to employers or apprenticeship committees as defined in RCW 49.04.040 authorizing the employment of apprentices in skilled trades at wages lower than the minimum wage applicable under RCW 49.46.020, subject to the limitations and conditions set forth in this regulation.
[§ 1, Regulation 294.6.002, filed 12/30/60.]



PDF296-128-230

Definition of apprentice.

The term "apprentice" shall mean a person at least 16 years of age who is covered by a written agreement registered with the Washington state apprenticeship council providing for not less than 4,000 hours of reasonably continuous employment for such person, and for his participation in an approved schedule of work experience through employment which should be supplemented by 144 hours per year of related technical instruction.
[§ 2, Regulation 294.6.002, filed 12/30/60.]



PDF296-128-235

Registration of apprenticeship agreement.

Before an apprentice may be employed at subminimum wages, the employer or apprenticeship committee shall have submitted an apprenticeship agreement for registration with the director of apprenticeship or the apprenticeship council of the department of labor and industries.
[§ 3, Regulation 294.6.002, filed 12/30/60.]



PDF296-128-240

Procedure for issuing certificates authorizing employment of apprentices at subminimum wages.

(1) Upon being informed by the director of apprenticeship that such apprenticeship agreement has been accepted for registration in accordance with RCW 49.04.030, and that such agreement calls for employment of apprentices at subminimum wages, the director, or his authorized representative, may issue a special certificate in accordance with WAC 296-128-225. Otherwise, he shall deny the special certificate.
(2) The special certificate, if issued, shall be mailed to the employer or apprenticeship committee and a copy shall be mailed to the apprentice. If the certificate is denied, the employer or apprenticeship committee will be so notified by mail.
(3) A special certificate will not be issued where there are serious outstanding violations involving an employer for whom a special certificate is being requested, or where there are any serious outstanding violations of a certificate previously issued, or where there have been any serious violations of the act which provide reasonable grounds to conclude that the terms of a certificate may not be complied with, if issued.
[§ 4, Regulation 294.6.002, filed 12/30/60.]



PDF296-128-245

Terms of special certificate.

(1) Each special certificate shall specify the conditions and limitations under which it is granted, including the name of the apprentice, the skilled trade in which he is to be employed, the subminimum wage rates and the periods of time during which such wage rates may be paid.
(2) The terms of any special certificate, including the wages specified therein may be amended for cause.
[§ 5, Regulation 294.6.002, filed 12/30/60.]



PDF296-128-250

Hearing procedure.

The director or his authorized representative may conduct an investigation, which may include a hearing, prior to issuing or denying an application for special certificate. To the extent he deems appropriate, the director, or his authorized representative, may provide an opportunity for other interested persons to be heard prior to granting or denying an apprentice certificate.
[§ 6, Regulation 294.6.002, filed 12/30/60.]



PDF296-128-275

Applicability.

The regulations hereinafter set forth are issued pursuant to RCW 49.46.060 to provide for the employment by educational institutions under special certificates of student workers as learners at wages lower than the minimum wage applicable under RCW 49.46.020. Such certificates shall be subject to the terms and conditions hereinafter set forth.
[§ 1, Regulation 294.6.001, filed 3/23/60.]



PDF296-128-280

Definitions.

As used in the regulations:
(1) A "student worker" is a student who is receiving instruction in a bona fide educational program in an educational institution and who is employed on a part-time basis by the educational institution from which the student is receiving his instruction, for the purpose of enabling the student to defray part of his school expenses.
(2) "Department" means department of labor and industries.
(3) "Director" means director of department of labor and industries.
(4) "Supervisor" means supervisor of wage and hour division of the department of labor and industries.
[§ 2, Regulation 294.6.001, filed 3/23/60.]



PDF296-128-285

Filing applications.

Whenever the employment of student workers as learners at wages lower than the minimum wage applicable under RCW 49.46.020 is believed necessary to prevent curtailment of opportunities for employment in a specified educational institution, applications for special certificates authorizing the employment of such student workers as learners at subminimum wage rates may be filed by an appropriate official of the educational institution with the director, supervisor, or duly authorized representative of the wage and hour division of the department of labor and industries on official forms furnished by the department.
[§ 3, Regulation 294.6.001, filed 3/23/60.]



PDF296-128-290

Issuing or denying certificates.

Upon receipt of an application for the employment of student workers as learners, the director or his authorized representative shall issue or deny a special certificate authorizing employment of student workers. To the extent he deems appropriate, the director or his authorized representative may provide an opportunity to other interested persons to present data and views on the application prior to granting or denying a student worker certificate. If a student worker certificate is granted, it shall be mailed to the educational institution. If a student worker certificate is denied, notice of such denial shall be mailed to the educational institution and such denial shall be without prejudice to the filing of any subsequent application.
[§ 4, Regulation 294.6.001, filed 3/23/60.]



PDF296-128-295

Conditions governing issuance of certificates.

The following conditions shall govern the issuance of a special certificate authorizing the employment of student workers as learners by an educational institution at subminimum wage rates:
(1) The employment of the student workers at subminimum wages authorized by the certificate must be necessary to prevent curtailment of opportunities for employment in a specified educational institution.
(2) The issuance of the student worker certificate will not tend to create unfair competitive labor cost advantages nor have the effect of impairing or depressing wage or working standards established for experienced workers for work of a like or comparable character in the industry or community.
(3) The occupations to be filled by the student workers shall not be in the production of goods or services which would be sold in competition with privately owned businesses, nor in enterprises operated by the educational institution in competition with privately owned businesses.
(4) There have been no serious outstanding violations of the provisions of a student workers certificate previously issued to the educational institution, nor have there been any serious violations of the act which provide reasonable grounds to conclude that the terms of a student worker certificate may not be complied with, if issued.
[§ 5, Regulation 294.6.001, filed 3/23/60.]



PDF296-128-300

Data required on certificate.

The student worker certificate, if issued, shall specify, among other things:
(1) The name and address of the educational institution employing the student workers;
(2) The occupations in which the student workers are employed;
(3) The number of student workers to be employed in any one day;
(4) The authorized subminimum wage rate to be paid for each occupation;
(5) The effective and expiration dates of the certificate.
[§ 6, Regulation 294.6.001, filed 3/23/60.]



PDF296-128-305

Wage rate.

The subminimum wage rate shall be not less than 75 percent of the minimum wage rate established by RCW 49.46.020, as it may be amended.
[§ 7, Regulation 294.6.001, filed 3/23/60.]



PDF296-128-310

Records.

In addition to any other records required by reason of the Washington Minimum Wage and Hour Act, the educational institution shall keep and maintain the following records specifically relating to student workers employed at subminimum wage rates:
(1) Each student worker employed under a student worker certificate shall be designated as such on the payroll records kept by the institution, with each student worker's occupation and rate of pay being shown.
(2) The records required including a copy of any special certificate issued, shall be kept and made available for inspection at all times for at least three years from the effective date of the certificate.
[§ 8, Regulation 294.6.001, filed 3/23/60.]



PDF296-128-315

Amending and revoking certificates.

The director of the department of labor and industries or his authorized representative may amend the provisions of a student worker certificate or he may revoke such certificate where it is shown to his satisfaction that its provisions have not been complied with.
[§ 9, Regulation 294.6.001, filed 3/23/60.]



PDF296-128-400

Minors.

(1) Applicability of order. This order shall apply to all minors employed in any industry or establishment in the state of Washington who are not expressly covered by another minimum wage and welfare order issued by the industrial welfare committee, except: Minors employed:
(a) By common carrier railroads, sleeping car companies and freight or express companies subject to regulations of federal law.
(b) In agricultural labor.
(c) In domestic work or chores performed in or about private residences.
(d) In a vocational education, work experience or apprentice training program, when such program is properly supervised by school personnel or in accordance with written agreements and approved training schedules.
(e) Directly by a telephone or telegraph company. This order shall not apply to newspaper vendors and newspaper carriers.
(2) Definitions. For the purpose of this order:
(a) A "minor" is a person of either sex under the age of eighteen years.
(b) The term "employee" shall mean any minor who is employed to work in any industry or establishment in the state of Washington other than those expressly excluded by the foregoing paragraphs.
(c) The term "employer" shall mean any person, association, corporation, co-partnership, or municipal corporation, engaged in any industry or establishment covered by this order and who (or which) employs any minor covered by this order.
(d) The term "agricultural labor" shall mean employment.
(i) On a farm, in the employ of any person in connection with the cultivating of the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including raising, shearing, feeding, caring for, training and management of livestock, bees, poultry, and furbearing animals and wildlife, or in the employ of the owner or tenant or other operator of a farm in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment; or
(ii) In handling, planting, packing, packaging, grading, storing, or delivering to storage or to a market or to a carrier for transportation to market, any agricultural or horticultural commodity; but only if such service is performed as an incident to ordinary farming operations, or, in the case of fruits and vegetables in their raw and natural state, as an incident to the preparation of such fruits and vegetables for market. The provisions of this paragraph shall not be deemed to be applicable with respect to services performed in connection with commercial canning or commercial freezing or any other commercial processing which changes the character of the product from its raw and natural state or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption.
(3) Minimum wages.
(a) Minimum wages for all minors covered by this order, in the state of Washington shall be fifty cents per hour, regardless of the manner in which they are computed, except when another order (or orders) issued by the industrial welfare committee of the state of Washington provides a different minimum.
(b) Whenever the administrator of the wage and hour division of the United States department of labor shall issue a certificate or certificates permitting the employment of learners, apprentices, messengers, and handicapped workers, at wage rates below the minimums herein fixed, the payment of wages in accordance with such permits shall not constitute a violation of this order.
(4) Hours.
(a) No minor shall be employed more than five hours without a meal period, on the employee's time, of at least thirty minutes.
(b) There shall be a rest period on the employer's time of ten minutes in every four-hour period of employment.
(c) Minors 14 and 15 years of age shall not be employed more than eight hours in any one day or six days in any one week. In computing the hours, one-half the total attendance hours in school shall be included. When school is not in session said minors shall not be employed more than forty hours in any one week.
(d) Minors 16 and 17 years of age shall not be employed more than eight hours in any one day or six days in any one week except in seasonal industries or in cases of emergency.
(e) Minors 14 and 15 years of age shall not be permitted to work after the hours of 7:00 p.m. or before 6 a.m. (pacific standard time), unless such employment is specifically authorized by the terms of this order, or by a permit specifically authorizing such employment issued by the industrial welfare committee of the state department of labor and industries, or its duly designated agent for the issuance of such permit.
(f) Minor boys 14 and 15 years of age may be issued permits to work in approved amusement industries not more than six days a week and not later than 7:00 p.m. (pacific standard time).
(g) Minors 16 and 17 years of age attending school may be employed after 7:00 p.m. (pacific standard time) for such hours not exceeding eight hours in any one day, and in such employments, as shall be specifically authorized in the individual permits issued to each minor, when upon investigation by the supervisor of women and minors in industry the conditions of employment are found not detrimental to the welfare of the minors or their school program. Such permits shall not be issued to girls unless satisfactory assurance is given the industrial welfare committee of the state department of labor and industries or its authorized agent that such minors are to be safely conveyed to their homes.
(5) Work permits and proof of age certificates.
(a) No minor shall be employed in any occupation covered by this order unless the employer has on file during the period of employment an unexpired work certificate or permit issued by the industrial welfare committee of the state department of labor and industries or its duly designated agent for the issuance of such permit. Such permit will not be issued except upon presentation of such evidence of age as is required by the industrial welfare committee.
(b) The issuance of a certificate or permit to work shall not authorize or excuse a violation of the state of Washington compulsory school attendance law, and shall not be issued to any minor legally required to attend school when school is in session except with the approval of the school authorities.
(6) Employment prohibited to all minors.
(a) No minor shall be employed in any occupation which the state department of labor and industries, through its industrial welfare committee, shall upon due notice and hearing find and by order declare to be particularly hazardous for the employment of minors under the ages specified in such order as detrimental to their health or morals.
(b) No minor shall be permitted to work in any of the following occupations:
(i) In any place where intoxicating liquor is served in the same room.
(ii) As driver or helper on state licensed motor vehicles in traffic congested areas.
(iii) In operating, tending or in dangerous proximity to dangerous power driven machinery.
(iv) In connection with the commercial operation of a 35 millimeter projection machine in a motion picture theatre or public building.
(v) To give signals to engineers in logging operations, or to receive and forward signals.
(vi) As an engineer, or within dangerous proximity to any cables, rigging or hazardous machinery.
(7) Employment prohibited to all minor girls. No minor girl shall be employed as:
(a) A shaker in a laundry, except on hand towels, handkerchiefs, napkins and similar small articles.
(b) In or in connection with a barber shop.
(c) A canvasser or peddler from house to house.
(d) An elevator operator.
(e) A clerk selling cigars or tobacco.
(f) A hotel messenger.
(g) A cabaret performer.
(h) In shooting galleries, penny arcades, bowling alleys.
(i) A public messenger (i.e., one whose services are available to the public for hire), except that girls 16 and 17 years of age will be permitted as building messengers in buildings within a radius of three blocks from one another.
(8) Employment entirely prohibited to minors under 16 years of age. Minors under sixteen years of age shall not be permitted to operate machinery in connection with processing or manufacturing plants.
(9) Employments prohibited to minors under 14 years of age. Minors under fourteen years of age shall not be employed in the following occupations unless such employment is specifically authorized by a permit issued by a judge of the superior court of the state of Washington:
(a) In stock room work in warehouses.
(b) As clerks in mercantile establishments.
(c) In offices as errand or office maintenance workers.
(d) In cafes as bus boys or dishwashers or helpers.
(e) As service station attendants.
(f) In other occupations which the industrial welfare committee, after due notice and hearing, shall have determined to be hazardous or detrimental to the welfare of the minor.
(10) Employment of minors 14 to 18 years of age. Minors 14 to 18 years of age may be employed in any occupation or industry except where such employment is expressly prohibited by this order or by statute of the state of Washington, provided that all the conditions and requirements of this order are complied with.
(11) Working conditions.
(a) All places where minors are employed shall be maintained in a safe and sanitary condition. The requirements for safety, sanitation and first aid shall be in conformity with the safety standards, rules and regulations as adopted by the division of safety of the department of labor and industries.
(b) Every room in which minors are employed shall be adequately heated and ventilated, and supplied with adequate natural or artificial light in accordance with the general safety standards of the department of labor and industries.
(c) Each such room shall be provided with a smooth, tight floor, which can be kept clean and sanitary. Where wet processes are employed, the floors must be adequately drained so that there will be no unreasonable depth of liquid at any point. Where floors are wet, wooden racks or grating of an adequate height shall be provided at such points.
(d) Toilet rooms shall be provided for women and female minors sufficiently separated and isolated to insure privacy, which rooms shall be maintained in a sanitary condition, adequately lighted, heated and ventilated. A sufficient number of wash bowls or sink space shall be located either within the toilet room or adjacent to the toilet room. Any wash bowls or sinks not so located shall be installed in an approved location. Sufficient soap and either individual or paper towels shall be provided.
(e) Employers shall provide for adequate keeping of employee's outer clothing during working hours, and for their work clothes during nonworking hours. When the occupation requires a change of clothing, a suitable space adequately heated shall be provided where employees may make such change in privacy.
(f)(i) A suitable rest room for women and female minors shall be provided, and shall be properly ventilated and heated.
(ii) An adequate cloak room shall be provided.
(iii) An adequate lunch room furnished with tables and chairs, and facilities for heating water shall be provided: Provided, however, That where less than ten women and female minors are regularly employed, the supervisor of women and minors in industry, upon application and showing, may permit a modified compliance with the foregoing part of this section or any part of the same.
(g) No female minor shall be required or permitted to lift or carry an excessive weight.
(h) No female minor shall be knowingly employed for a period of four weeks before confinement for pregnancy or four weeks thereafter.
(12) Records. Records showing the name of minors employed, dates of employment, wages paid and the hours worked by them, shall be kept by the employer and available for inspection by the representatives of the industrial welfare committee of the state department of labor and industries at all reasonable times.
(13) Posting of order. The employer shall post a copy of this order in all places where minor workers are employed.
(14) Separability. If the application of any provision of this order, or any section, subsection, subdivision, sentence, clause, phrase, word or portion of this order shall be held invalid or unconstitutional, the remaining provisions thereof shall not be affected thereby but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included therein.
(15) Penalties. The supervisor of women and minors in industry shall investigate the complaint of any individual alleging that this order has been violated. Any person employing a minor in violation of this order shall upon conviction thereof be punished in accordance with the applicable laws of the state of Washington, RCW 49.12.170, now states as follows: "Any person employing a woman or minor for whom a minimum wage or standard conditions of labor have been specified, at less than said minimum wage, or under conditions of labor prohibited by order of the committee; or violating any other of the provisions of RCW 49.12.010 through 49.12.180, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars."
[Minimum Wage and Welfare Order No. 49, filed 3/23/60.]



PDF296-128-500

Purpose.

This regulation is adopted in accordance with chapter 49.46 RCW to define the terms "bona fide executive, administrative, or professional capacity or in the capacity of outside salesman," to define salary basis and to establish a procedure for computing overtime pay.
An employee who meets the definitions of executive, administrative, or professional and who is paid on a salary basis (except as provided for in WAC 296-128-530(5)) is considered exempt from the requirements of chapter 49.46 RCW. Payment of a salary does not in and of itself exempt a worker from the minimum wage and overtime requirements.
[Statutory Authority: RCW 49.46.005, 49.46.010, 49.46.120, and chapter 49.46 RCW. WSR 03-03-109, § 296-128-500, filed 1/21/03, effective 2/21/03; Order 76-5, § 296-128-500, filed 2/24/76.]



PDF296-128-510

Executive.

The term "individual employed in a bona fide executive . . . capacity" in RCW 49.46.010 (5)(c) shall mean any employee:
(1) Whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof; and
(2) Who customarily and regularly directs the work of two or more other employees therein; and
(3) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and
(4) Who customarily and regularly exercises discretionary powers; and
(5) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours worked in the work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1) through (4) of this section: Provided, That this paragraph (5) shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment, or who owns at least a 20 percent interest in the enterprise in which he is employed; and
(6) Who is compensated for his services on a salary basis at a rate of not less than $155 per week exclusive of board, lodging, and other facilities: Provided, That an employee who is compensated on a salary rate of not less $250 per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all of the requirements of this section.
[Order 76-5, § 296-128-510, filed 2/24/76.]



PDF296-128-520

Administrative.

The term "individual employed in a bona fide . . . administrative . . . capacity" in RCW 49.46.010 (5)(c) shall mean any employee:
(1) Whose primary duty consists of the performance of office or nonmanual field work directly related to management policies or general business operations of his employer or his employer's customers; or
(2) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and
(3) Who customarily and regularly exercises discretion and independent judgment; and
(a) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined in this regulation), or
(b) Who performs under only general supervision work along specialized or technical lines requiring special training, experience or knowledge, or
(c) Who executes under only general supervision special assignments and tasks; and
(4) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent of his hours worked in the work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1) through (3) of this section; and
(a) Who is compensated for his services on a salary or fee basis at a rate of not less than $155 per week exclusive of board, lodging, or other facilities; or
(b) Who, in the case of academic administrative personnel is compensated for his services as required by paragraph (4)(a) of this section, or on a salary basis which is at least equal to the entrance salary for teachers in the school system, educational establishment, or institution by which he is employed: Provided, That an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the performance of office or nonmanual work directly related to management policies or general business operations of his employer or his employer's customers; which includes work requiring the exercise of discretion and independent judgment, shall be deemed to meet all of the requirements of this section.
[Order 76-5, § 296-128-520, filed 2/24/76.]



PDF296-128-530

Professional.

The term "individual employed in a bona fide . . . professional capacity" in RCW 49.46.010 (5)(c) shall mean any employee:
(1) Whose primary duty consists of the performance of work:
(a) Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or
(b) Original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the intention, imagination, or talent of the employee; or
(c) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in the school system or educational establishment or institution by which he is employed; and
(2) Whose work requires the consistent exercise of discretion and judgment in its performance; and
(3) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) and is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and
(4) Who does not devote more than 20 percent of his hours worked in the work week to activities which are not an essential part of and necessarily incident to the work described in paragraphs (1) through (3) of this section; and
(5) Who is compensated for his services on a salary or fee basis at a rate of not less than $170 per week exclusive of board, lodging, or facilities: Provided, That this paragraph (5) shall not apply in the case of an employee who is the holder of a valid license or certificate permitting the practice of law, medicine, or dentistry and who is actually engaged in the practice thereof: Provided, That an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the performance of work either requiring knowledge of an advanced type in a field of science or learning, which includes work requiring the consistent exercise of discretion and judgment, or requiring invention, imagination, or talent in a recognized field of artistic endeavor, shall be deemed to meet all of the requirements of this section.
[Order 76-5, § 296-128-530, filed 2/24/76.]



PDF296-128-532

Deductions for salaried, exempt employees.

(1) When does this section apply? This section applies to any employee who is paid on a salary basis and who meets the definitions of executive, administrative, or professional.
(2) What does salary basis mean? Salary is where an employee regularly receives for each pay period of one week or longer (but not to exceed one month) a predetermined monetary amount (the salary) consisting of all or part of his or her compensation, which amount will not be less than required to be paid pursuant to WAC 296-128-510 through 296-128-530. The salary shall not be subject to deduction because of variations in the quantity or quality of the work performed, except as provided in this section. Under RCW 49.46.130 (2)(a), salaried employees may receive additional compensation or paid time off and still be considered exempt.
(3) When are deductions from salary allowed?
(a) If the employee performs no work in a particular week, regardless of the circumstances, the employer may deduct for the entire week.
(b) When the employee takes at least a whole day off for personal reasons other than sickness or accident, the employer may deduct in full day increments.
(c) Deductions for absences due to sickness or disability may be made in full day increments if the deduction is made according to the employer's bona fide plan, policy or practice of providing paid sick and disability leave (other than industrial accidents or disability).
(i) Deductions are permitted when either leave is exhausted or the employee has not yet qualified under the plan.
(ii) Deductions are permitted even if an employee receives compensation under that plan or under workers' compensation laws.
(d) When an employee is eligible for the federal Family and Medical Leave Act 29 U.S.C. Sec. 2611 et seq., deductions may be made for partial day absences due to leave taken according to that law and the applicable provisions in chapter 49.78 RCW.
(e) In the first and final week of employment, an employee's salary may be prorated for the actual days worked.
(f) Deductions are allowed for disciplinary absences that are imposed for violations of safety rules of major significance. This includes only those relating to the prevention of serious danger to the plant, the public, or other employees, such as rules prohibiting smoking in explosive plants or around hazardous or other flammable materials.
(g) Deductions are allowed when authorized under RCW 49.48.010, 49.52.060, or WAC 296-126-025.
(4) What are improper deductions from salary?
(a) Deductions are not permitted for partial days of work, except as permitted by subsection (3)(d) of this section or by WAC 296-128-533.
(b) Deductions are not permitted for lack of work for any amount of time less than a full week.
(c) Deductions are not permitted when the employee participates in jury duty, attendance as a witness, or temporary military leave if the employee performs any work during that week. The employer may, however, offset any amounts received by an employee as jury or witness fees or military pay.
(d) Deductions are not permitted for absences due to sickness or disability if the employer does not have a bona fide plan, policy or practice in place for sick or disability leave.
(e) Any other deductions not allowed under subsection (3) of this section.
(5) Is a "window of correction" permitted? A limited window of correction will be permitted when an improper deduction is shown to be infrequent and inadvertent and the employer immediately begins taking corrective steps to promptly resolve the improper deduction when brought to the attention of the supervisor or other appropriate representative of the employer. Such corrections will be allowed only to the extent that the deduction is not due to lack of work or part of a pattern of the same or substantially similar deductions.
(6) What deductions may be made from leave banks?
(a) Deductions may be made from compensatory time in any increment.
(b) Deductions may be made from bona fide leave banks in partial or full day increments. However, partial day deductions may be made only on the express or implied request of the employee for time off from work. Leave bank deductions may not be made for less than one hour.
A "bona fide leave bank" is a benefit provided to employees in the case of absence from work due to sickness or personal time off, including vacation. It must be in writing and contained in contract or agreement, or in a written policy that is distributed to employees. A leave bank policy, or a leave bank provision in a contract or agreement, is not "bona fide" if it is used as a subterfuge to circumvent or evade the requirements of this regulation.
(c) When leave banks are exhausted, deductions from salary may not be made, except as permitted in subsection (3) of this section.
[Statutory Authority: RCW 49.46.005, 49.46.010, 49.46.120, and chapter 49.46 RCW. WSR 03-03-109, § 296-128-532, filed 1/21/03, effective 2/21/03.]



PDF296-128-533

Public employees.

(1) How do the provisions specified in WAC 296-128-532 affect public employees? WAC 296-128-532 (1) through (5) is applicable to public employees, except that deductions from salary or leave banks are permitted in the following additional circumstances.
(a) Deductions from salary for partial day absences: A public employee who otherwise meets the requirements of WAC 296-128-532 will not be disqualified from the executive, administrative, or professional exemptions on the basis that such public employee is paid according to a pay system that:
(i) Is established by statute, ordinance, or regulation, or by a policy or practice established according to principles of public accountability, under which the public employee accrues sick or personal leave (annual, vacation, etc.); and
(ii) Permits the public employee's pay to be reduced or the public employee to be placed on leave without pay for absences for personal reasons or because of illness or injury of less than one work day when accrued leave is not used by a public employee.
(b) Deductions from leave banks: Deductions may be made from a public employee's accrued leave banks in any increment in accordance with any statute, ordinance, or regulation, or by a policy or practice established according to principles of public accountability.
(c) Deductions for furlough: Deductions from the salary of a public employee for absences where authorized by law due to a budget-required leave of absence will not disqualify the public employee from being paid on a "salary basis" except in the workweek in that the absence occurs and for which the public employee's pay is accordingly reduced.
(2) What does "public employee" mean? Public employee means an employee directly employed by a county, incorporated city or town, municipal corporation, state agency, institution of higher education, political subdivision or other public agency and includes any department, bureau, office, board, commission or institution of such public entities.
[Statutory Authority: RCW 49.46.005, 49.46.010, 49.46.120, and chapter 49.46 RCW. WSR 03-03-109, § 296-128-533, filed 1/21/03, effective 2/21/03.]



PDF296-128-535

Are professional computer employees exempt from the Washington Minimum Wage Act?

(1) Any employee who is a computer system analyst, computer programmer, software engineer, software developer or other similarly skilled worker will be considered a "professional employee" and will be exempt from the minimum wage and overtime provisions of the Washington Minimum Wage Act if:
(a) Their primary duty is of one of the following:
(i) Applying systems analysis techniques and procedures to determine hardware, software, or system functional specifications for any user of such services; or
(ii) Following user or system design specifications to design, develop, document, analyze, create, test or modify any computer system, application or program, including prototypes; or
(iii) Designing, documenting, testing, creating or modifying computer systems, applications or programs for machine operation systems; or
(iv) Any combination of the above primary duties whose performance requires the same skill level; and
(b) Their rate of pay is at least $27.63 per hour.
(2) This professional exemption only applies to highly skilled employees who:
(a) Possess a high degree of theoretical knowledge and understanding of computer system analysis, programming and software engineering; and
(b) Have the ability to practically apply that theoretical knowledge and understanding to highly specialized computer fields; and
(c) Generally attain the necessary level of expertise and skill to qualify for an exemption through a combination of education and experience in the field; and
(d) Consistently exercise discretion and judgment in the application of their special knowledge as opposed to performing purely mechanical or routine tasks; and
(e) Engage in work that is predominantly intellectual and inherently varied in character as opposed to work that is routinely mental, manual, mechanical, or physical.
(3) While many employees who qualify for this exemption hold a bachelor's or higher degree, no degree is required for this exemption.
(4) This professional exemption does not apply to:
(a) Trainees or employees in entry level positions learning to become proficient in computer systems analysis, programming and software engineering; or
(b) Employees in computer systems analysis, programming and software engineering positions who have not attained a level of skill and expertise which allows them to generally work independently and without close supervision; or
(c) Employees engaged in the operation of computers; or
(d) Employees engaged in the manufacture, repair or maintenance of computer hardware and related equipment; or
(e) Employees covered by a collective bargaining agreement.
[Statutory Authority: RCW 49.46.010 (5)(c). WSR 98-02-027, § 296-128-535, filed 12/31/97, effective 2/1/98.]



PDF296-128-540

Outside salesman.

The term "individual employed in the capacity of outside salesman" in RCW 49.46.010 (5)(c) shall mean any employee:
(1) Who is employed for the purpose of and who is customarily and regularly engaged away from his employer's place or places of business, as well as on the premises (where the employee regulates his own hours and the employer has no control over the total number of hours worked) in the following alternative activities:
(a) In making sales; including any sale, exchange, contract to sell, consignment for sale, shipment for sale or other disposition; or
(b) In obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; or
(c) In demonstrating products or equipment for sale; or
(d) In the sale of services and performance of the service sold when the compensation to the employee is computed on a commission basis; and
(2) Whose hours of work of a nature other than that described in (1)(a), (b), (c) and (d) of this section do not exceed 20 percent of the hours worked in the work week by nonexempt employees of the employer: Provided, That work performed incidental to and in conjunction with the employee's own outside sales or solicitations, including incidental deliveries and collections, shall not be regarded as nonexempt work; and
(3) Who is compensated by the employer on a guaranteed salary, commission or fee basis and who is advised of his status as "outside salesman."
[Order 76-5, § 296-128-540, filed 2/24/76.]



PDF296-128-550

Regular rate of pay.

The regular rate of pay shall be the hourly rate at which the employee is being paid, but may not be less than the established minimum wage rate. Employees who are compensated on a salary, commission, piece rate or percentage basis, rather than an hourly wage rate, unless specifically exempt, are entitled to one and one-half times the regular rate of pay for all hours worked in excess of forty per week. The overtime may be paid at one and one-half times the piecework rate during the overtime period, or the regular rate of pay may be determined by dividing the amount of compensation received per week by the total number of hours worked during that week. The employee is entitled to one and one-half times the regular rate arrived at for all hours worked in excess of forty per week.
[Order 76-5, § 296-128-550, filed 2/24/76.]



PDF296-128-560

Compensating time off in lieu of overtime pay.

The provisions of chapter 49.46 RCW requiring one and one-half times the regular rate of pay for hours worked in excess of forty per week does not apply to any person who requests compensating time off in lieu of overtime pay. Therefore, compensating time may be as agreed upon by the employer and the individual employee at the request of the employee, but may not be imposed by the employer in lieu of overtime pay upon any employee who has not so requested such compensating time off.
[Order 76-5, § 296-128-560, filed 2/24/76.]



PDF296-128-600

Definitions.

(1) "Absences exceeding three days" means absences exceeding three consecutive days an employee is required to work. For example, assume an employee is required to work on Mondays, Wednesdays, and Fridays, and then the employee uses paid sick leave for any portion of those three work days in a row. If the employee uses paid sick leave again on the following Monday, the employee would have absences exceeding three days.
(2) "Commencement of his or her employment" means no later than the beginning of the first day on which the employee is authorized or required by the employer to be on duty on the employer's premises or at a prescribed workplace.
(3) "Department" means the department of labor and industries.
(4) "Director" means the director of the department of labor and industries, or the director's authorized representative.
(5) "Employee" has the same meaning as RCW 49.46.010(3).
(6) "Employer" has the same meaning as RCW 49.46.010(4).
(7) "Frontloading" means providing an employee with paid sick leave before it has accrued at the rate required by RCW 49.46.210 (1)(a).
(8) "Health-related reason" means a serious public health concern that could result in bodily injury or exposure to an infectious agent, biological toxin, or hazardous material. Health-related reason does not include closures for inclement weather.
(9) "Hours worked" shall be interpreted in the same manner as WAC 296-126-002(8).
(10) "Normal hourly compensation" means the hourly rate that an employee would have earned for the time during which the employee used paid sick leave. For employees who use paid sick leave for hours that would have been overtime hours if worked, employers are not required to apply overtime standards to an employee's normal hourly compensation. Normal hourly compensation does not include tips, gratuities, service charges, holiday pay, or other premium rates, unless the employer or a collective bargaining agreement allow for such considerations. However, where an employee's normal hourly compensation is a differential rate, meaning a different rate paid for the same work performed under differing conditions (e.g., a night shift), the differential rate is not a premium rate.
(11) "Regular and normal wage" has the same meaning as normal hourly compensation.
(12) "Separation" and "separates from employment" mean the end of the last day an employee is authorized or required by the employer to be on duty on the employer's premises or at a prescribed workplace.
(13) "Verification" means evidence that establishes or confirms that an employee's use of paid sick leave is for an authorized purpose under RCW 49.46.210 (1)(b) and (c).
(14) "Workweek" means a fixed and regularly recurring period of one hundred sixty-eight hours, or seven consecutive twenty-four hour periods. It may begin on any day of the week and any hour of the day, and need not coincide with a calendar week.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-600, filed 10/17/17, effective 1/1/18.]



PDF296-128-610

Requirements for a written policyDuty of the department to provide sample policies.

Where these rules set forth requirements for an employer to have a written policy (WAC 296-128-650(3), 296-128-660(2), 296-128-710(2), and 296-128-730(4)), the department shall, in consultation with employee and employer representatives, develop sample policies which meet the department's standard for compliance with these rules. The department shall make such sample policies available on the department's web site.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-610, filed 10/17/17, effective 1/1/18.]



PDF296-128-620

Paid sick leave accrual.

(1) Employees accrue paid sick leave for all hours worked. An employee must accrue at least one hour of paid sick leave for every forty hours worked as an employee. Employers may provide employees with a more generous paid sick leave accrual rate.
(2) Paid sick leave for employees who are employed on or before January 1, 2018, will accrue for all hours worked beginning on January 1, 2018. Employees hired after January 1, 2018, begin accruing paid sick leave upon the commencement of his or her employment.
(3) Employers are not required to allow employees to accrue paid sick leave for hours paid when not working. For example, employers are not required to allow employees to accrue paid sick leave during vacation, paid time off, or while using paid sick leave.
(4) Employers must allow employees to carry over at least forty hours of accrued, unused paid sick leave to the following year. If an employee carries over forty hours of unused paid sick leave to the following year, accrual of paid sick leave in the subsequent year would be in addition to the forty hours accrued in the previous year and carried over.
(5) Employers may cap carryover of accrued, unused paid sick leave to the following year at forty hours. Employers may allow for a more generous carryover of accrued, unused paid sick leave to the following year.
(6) "Year," for purposes of this section, means calendar year, fiscal year, benefit year, employment year, or any other fixed consecutive twelve-month period established by an employer policy or a collective bargaining agreement, and used in the ordinary course of the employer's business for the purpose of calculating wages and benefits. Unless otherwise established by the employer, the default definition of "year" is calendar year.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-620, filed 10/17/17, effective 1/1/18.]



PDF296-128-630

Paid sick leave usage.

(1) An employee is entitled to use paid sick leave for the authorized purposes outlined in RCW 49.46.210 (1)(b) and (c).
(2) An employee is entitled to use accrued, unused paid sick leave beginning on the ninetieth calendar day after the commencement of his or her employment. Employers may allow employees to use accrued, unused paid sick leave prior to the ninetieth calendar day after the commencement of his or her employment.
(3) Beginning on the ninetieth calendar day after the commencement of his or her employment, employers must make accrued paid sick leave available to employees for use in a manner consistent with the employer's established payment interval or leave records management system, not to exceed one month after the date of accrual.
(4) Unless a greater increment is approved by a variance as provided by WAC 296-128-640, employers must allow employees to use paid sick leave in increments consistent with the employer's payroll system and practices, not to exceed one hour. For example, if an employer's normal practice is to track increments of work for the purposes of compensation in fifteen-minute increments, then an employer must allow employees to use paid sick leave in fifteen-minute increments.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-630, filed 10/17/17, effective 1/1/18.]



PDF296-128-640

Variance from required increments of paid sick leave usage.

(1) The department shall grant a variance from the increments required by WAC 296-128-630(4) for "good cause." Good cause means situations where an employer can establish that compliance with the requirements for increments of use are infeasible, and that granting a variance does not have a significant harmful effect on the health, safety, and welfare of the involved employees. The existence of a collective bargaining agreement which sets forth increments of use may be used as a factor in determining good cause for granting a variance from the increments required by WAC 296-128-630(4).
(2) An employer may seek a variance from the requirement to provide employees with paid sick leave in increments greater than the increments required by WAC 296-128-630(4) by submitting a written application to the department. The application must contain the following:
(a) A justification for the variance, which establishes good cause for providing paid sick leave in increments greater than the increments required by WAC 296-128-630(4);
(b) The paid sick leave increments of use being sought;
(c) The group of employees for whom the variance is sought; and
(d) Evidence that the employer provided to the involved employees and, if applicable, to their union representatives, the following:
(i) A copy of the written request for a variance;
(ii) Information about the right of the involved employees and, if applicable, their union representatives, to be heard by the department during the variance application review process;
(iii) Information about the process by which involved employees and, if applicable, their union representatives, may make a written request to the director for reconsideration, subject to the provisions outlined in subsection (7) of this section; and
(iv) The department's address and phone number, or other contact information.
(3) The department must allow the employer, any involved employees and, if applicable, their union representatives, the opportunity for oral or written presentation during the variance application review process whenever circumstances of the particular application warrant it.
(4) No later than sixty days after the date on which the department received the application for a variance, the department must issue a written decision either granting or denying the variance. The department may extend the sixty-day time period by providing advance written notice to the employer and, if applicable, the union representatives of any involved employees, setting forth a reasonable justification for an extension of the sixty-day time period, and specifying the duration of the extension. The employer must provide involved employees with notice about any such extension.
(5) Variances shall be granted if the department determines that there is good cause for allowing an employer to provide paid sick leave in increments greater than the increments required by WAC 296-128-630(4). The variance order shall state the following:
(a) The paid sick leave increments of use approved in the variance;
(b) The basis for a finding of good cause;
(c) The group of employees impacted; and
(d) The period of time for which the variance will be valid, not to exceed three years from the date of issuance.
(6) Upon making a determination for issuance of a variance, the department must make notification in writing to the employer and, if applicable, the union representatives of any involved employees. If the variance is denied, the written notification will include a stated basis for the denial.
(7) An employer, involved employee and, if applicable, their union representative, may file with the director a request for reconsideration within fifteen days after receiving notice of the variance determination. The request for reconsideration must set forth the grounds upon which the reconsideration is being made. If reasonable grounds exist, the director may grant such review and, to the extent deemed appropriate, afford all interested parties an opportunity to be heard. If the director grants such review, the written decision of the department will remain in place until the reconsideration process is complete.
(8) Unless subject to the reconsideration process, the director may revoke or terminate the variance order at any time after giving the employer at least thirty days' notice before revoking or terminating the order.
(9) Where immediate action is necessary pending further review by the department, the department may issue a temporary variance. The temporary variance will remain valid until the department determines whether good cause exists for issuing a variance. An employer need not meet the requirement in subsection (2)(d) of this section in order to be granted a temporary variance.
(10) If an employer obtains a variance under these rules, the employer must provide the involved employees with information about the increments of use requirements that apply within fifteen days of receiving notification of such approval from the department. An employer must make this information readily available to all employees.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-640, filed 10/17/17, effective 1/1/18.]



PDF296-128-650

Reasonable notice.

(1) An employer may require employees to give reasonable notice of an absence from work for the use of paid sick leave for an authorized purpose under RCW 49.46.210 (1)(b). Employers may require employees to comply with the employer's notification policies, as long as such policies do not interfere with an employee's lawful use of paid sick leave.
(a) If the need for paid sick leave is foreseeable, the employer may require advance notice from the employee. Unless the employer allows less advance notice, the employee must provide notice at least ten days, or as early as practicable, in advance of the use of paid sick leave.
(b) If the need for paid sick leave is unforeseeable, the employer may require notice from the employee. The employee must provide notice to the employer as soon as possible before the required start of their shift, unless it is not practicable to do so. In the event it is impracticable for an employee to provide notice to their employer, a person on the employee's behalf may provide notice to the employer.
(2) If an employer requires employees to give reasonable notice of an absence from work for the use of paid sick leave for an authorized purpose under the Domestic Violence Leave Act, chapter 49.76 RCW, any such reasonable notice requirements must comply with the provisions outlined in WAC 296-135-060.
(3) Employers must have a written policy or a collective bargaining agreement outlining any requirements of an employee to give reasonable notice for the use of paid sick leave, and must make notification of such policy or agreement, prior to requiring an employee to provide reasonable notice. An employer must make this information readily available to all employees. If an employer does not require an employee to give reasonable notice for the use of paid sick leave, a written policy is not required.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-650, filed 10/17/17, effective 1/1/18.]



PDF296-128-660

Verification for absences exceeding three days.

(1) For absences exceeding three days, an employer may require verification that an employee's use of paid sick leave is for an authorized purpose under RCW 49.46.210 (1)(b) and (c).
(2) If an employer requires verification for the use of paid sick leave under RCW 49.46.210 (1)(b) and (c), the employer must have a written policy or a collective bargaining agreement outlining any such requirements. The employer must notify the employee of such policy or agreement, including the employee's right to assert that the verification requirement results in an unreasonable burden or expense on the employee, prior to requiring the employee to provide verification. An employer must make this information readily available to all employees.
(3) If an employer requires an employee to provide verification from a health care provider identifying the need for use of paid sick leave for an authorized purpose under RCW 49.46.210 (1)(b) and (c), the employer must not require that the information provided explain the nature of the condition. If the employer obtains any health information about an employee or an employee's family member, the employer must treat such information in a confidential manner consistent with applicable privacy laws.
(4) Employer-required verification may not result in an unreasonable burden or expense on the employee.
(a) If an employer requires verification, and the employee anticipates that the requirement will result in an unreasonable burden or expense, the employee must be allowed to provide an oral or written explanation to their employer which asserts:
(i) That the employee's use of paid sick leave was for an authorized purpose under RCW 49.46.210 (1)(b) or (c); and
(ii) How the employer's verification requirement creates an unreasonable burden or expense on the employee.
(b) The employer must consider the employee's explanation. Within ten calendar days of the employee providing an explanation to their employer about the existence of an unreasonable burden or expense, the employer must make a reasonable effort to identify and provide alternatives for the employee to meet the employer's verification requirement in a manner which does not result in an unreasonable burden or expense on the employee. A reasonable effort by the employer to identify and provide alternatives could include, but is not limited to:
(i) Accepting the oral or written explanation provided by the employee, as outlined in (a)(i) and (ii) of this subsection, as a form of verification which meets the employer's verification requirement; or
(ii) Mitigating the employee's out-of-pocket expenses associated with obtaining medical verification.
(c) If after the employer considers the employee's explanation, the employer and employee disagree that the employer's verification requirement results in an unreasonable burden or expense on the employee:
(i) The employer and employee may consult with the department regarding the verification requirement; and
(ii) The employee may file a complaint with the department.
(5) If an employer requires verification that the use of paid sick leave is for an authorized purpose under RCW 49.46.210 (1)(b), verification must be provided to the employer within a reasonable time period during or after the leave. For employee use of paid sick leave under RCW 49.46.210 (1)(b), "reasonable time period" is a period of time defined by a written policy or a collective bargaining agreement, but may not be less than ten calendar days following the first day upon which the employee uses paid sick leave.
(6) If an employer requires verification that the use of paid sick leave is for an authorized purpose under the Domestic Violence Leave Act, chapter 49.76 RCW, any such verification requirements must comply with the provisions outlined in WAC 296-135-070.
(7) For use of paid sick leave for purposes authorized under federal, state, or other local laws that permit employers to make medical inquiries, an employer may require verification from an employee that complies with such certification requirements.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-660, filed 10/17/17, effective 1/1/18.]



PDF296-128-670

Rate of pay for use of paid sick leave.

(1) For each hour of paid sick leave used, an employee must be paid the greater of the minimum hourly wage rate established by RCW 49.46.020 or their normal hourly compensation.
(2) An employer must calculate an employee's normal hourly compensation using a reasonable calculation based on the hourly rate that an employee would have earned for the time during which the employee used paid sick leave. Examples of reasonable calculations to determine normal hourly compensation include, but are not limited to:
(a) For an employee paid partially or wholly on a commission basis, dividing the total earnings by the total hours worked in the full pay periods in the prior ninety days of employment;
(b) For an employee paid partially or wholly on a piece rate basis, dividing the total earnings by the total hours worked in the most recent workweek in which the employee performed identical or substantially similar work to the work they would have performed had they not used paid sick leave;
(c) For a nonexempt employee paid a salary, dividing the annual salary by fifty-two to determine the weekly salary, and then dividing the weekly salary by the employee's normal scheduled hours of work;
(d) For an employee whose hourly rate of pay fluctuates:
(i) Where the employer can identify the hourly rates of pay for which the employee was scheduled to work, a calculation equal to the scheduled hourly rates of pay the employee would have earned during the period in which paid sick leave is used;
(ii) Where the employer cannot identify the hourly rates of pay for which the employee would have earned if the employee worked, a calculation based on the employee's average hourly rate of pay in the current or preceding thirty days, whichever yields the higher hourly rate.
(3) For employees who are scheduled to work a shift of indeterminate length (e.g., a shift that is defined by business needs rather than a specific number of hours), the rate of pay may be calculated by multiplying the employee's normal hourly compensation by the total hours worked by a replacement employee in the same shift, or similarly situated employees who worked that same or similar shift.
(4) An employer must apply a consistent methodology when calculating the normal hourly compensation of similarly situated employees.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-670, filed 10/17/17, effective 1/1/18.]



PDF296-128-680

Payment of paid sick leave.

Unless verification for absences exceeding three days is required by an employer, the employer must pay paid sick leave to an employee no later than the payday for the pay period in which the paid sick leave was used by the employee. If verification is required by the employer, paid sick leave must be paid to the employee no later than the payday for the pay period during which verification is provided to the employer by the employee.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-680, filed 10/17/17, effective 1/1/18.]



PDF296-128-690

Separation and reinstatement of accrued paid sick leave upon rehire.

(1) When an employee separates from employment and is rehired within twelve months of separation by the same employer, whether at the same or a different business location of the employer, the employer must comply with the provisions of RCW 49.46.210 (1)(k). If an employee separates from employment, the employer is not required to provide financial or other reimbursement to the employee for accrued, unused paid sick leave at the time of separation.
(2) An employer may choose to reimburse an employee for any portion of their accrued, unused paid sick leave at the time the employee separates from employment.
(a) If an employer chooses to reimburse an employee for any portion of their accrued, unused paid sick leave at the time the employee separates from employment, any such terms for reimbursement must be mutually agreed upon in writing by both the employer and the employee, unless the right to such reimbursement is set forth elsewhere in state law or through a collective bargaining agreement.
(b) If an employee is rehired by the same employer, whether at the same or a different business location of the employer, within twelve months after the date the employee separates from employment, the employer must reinstate the employee's accrued, unused paid sick leave. An employer need not reinstate any hours of paid sick leave previously provided to the employee through financial or other reimbursement at the time of separation, as long as the value of the paid sick leave was established and paid at a rate that was at least equal to the employee's normal hourly compensation.
(3) When an employee separates from employment and the employee is rehired within twelve months of separation by the same employer, whether at the same or a different business location of the employer, an employee who reached the ninetieth calendar day of employment prior to separation shall have their previously accrued, unused paid sick leave balance available for use upon rehire. If the employee did not reach the ninetieth calendar day of employment prior to separation, the previous period of employment must be counted for purposes of determining the date upon which the employee is entitled to use paid sick leave.
(4) Upon rehire, an employer must provide notification to the employee of the amount of accrued, unused paid sick leave available for use by the employee.
(5) If the period of time an employee separates from employment extends into the following year ("year" as defined at WAC 296-128-620(6)), the employer is not required to reinstate more than forty hours of the employee's accrued, unused paid sick leave.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-690, filed 10/17/17, effective 1/1/18.]



PDF296-128-700

Paid time off (PTO) programs.

(1) Paid time off (PTO) provided to employees by an employer's PTO program (e.g., a program that combines vacation leave, sick leave, or other forms of leave into one pool), created by a written policy or a collective bargaining agreement, satisfies the requirement to provide paid sick leave if the PTO program meets or exceeds the provisions of RCW 49.46.200 and 49.46.210, and all applicable rules, including:
(a) Accrual of PTO leave at a rate of not less than one hour for every forty hours worked as an employee;
(b) Payment for PTO leave at the employee's normal hourly compensation;
(c) Carryover of at least forty hours of accrued, unused PTO leave to the following year ("year" as defined at WAC 296-128-620(6));
(d) Access to use PTO leave for all the purposes authorized under RCW 49.46.210 (1)(b) and (c); and
(e) Employer notification and recordkeeping requirements set forth in WAC 296-128-010 and 296-128-760.
(2) If an employee chooses to use their PTO leave for purposes other than those authorized under RCW 49.46.210 (1)(b) and (c), and the need for use of paid sick leave later arises when no additional PTO leave is available, the employer is not required to provide any additional PTO leave to the employee as long as the employer's PTO program meets or exceeds the provisions of RCW 49.46.200 and 49.46.210, and all applicable rules.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-700, filed 10/17/17, effective 1/1/18.]



PDF296-128-710

Shared leave.

(1) An employer may establish a shared paid sick leave program in which an employee may choose to donate paid sick leave to a co-worker.
(2) If an employer establishes a shared paid sick leave program, the employer must have a written policy or a collective bargaining agreement which specifies that an employee may donate accrued, unused paid sick leave to a co-worker for purposes authorized under RCW 49.46.210 (1)(b) and (c).
The employer must notify employees of such policy or agreement prior to allowing an employee to donate or use shared paid sick leave. An employer must make this information readily available to all employees.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-710, filed 10/17/17, effective 1/1/18.]



PDF296-128-720

Shift swapping.

(1) An employer may not require, as a condition of an employee using paid sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is using paid sick leave.
(2) Upon mutual agreement by the employer and employee(s) involved, an employee may work additional hours or shifts, or trade shifts with another employee, in lieu of using available paid sick leave for missed hours or shifts that qualify for the use of paid sick leave.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-720, filed 10/17/17, effective 1/1/18.]



PDF296-128-730

Frontloading.

(1) An employer may, but is not required to, frontload paid sick leave to an employee in advance of accrual.
(2) If an employer frontloads paid sick leave, the employer must ensure that such frontloaded paid sick leave complies with the provisions of RCW 49.46.200 and 49.46.210, and all applicable rules.
(3) If an employer frontloads paid sick leave, the employer must do so by using a reasonable calculation, consistent with the accrual requirement set forth under RCW 49.46.210 (1)(a), to determine the amount of paid sick leave the employee would be projected to accrue during the period of time for which paid sick leave is being frontloaded.
(a) If the employer calculates and frontloads, and an employee subsequently uses, an amount of paid sick leave which exceeds the paid sick leave the employee would have otherwise accrued absent frontloading, the employer shall not seek reimbursement from the employee for such paid sick leave used during the course of ongoing employment.
(b) If an employer frontloads paid sick leave to an employee, but such frontloaded paid sick leave is less than the amount the employee was entitled to accrue under RCW 49.46.210 (1)(a), the employer must make such additional amounts of paid sick leave available for use by the employee as soon as practicable, but no later than thirty days after identifying the discrepancy.
(4) The employer must have a written policy or a collective bargaining agreement which addresses the requirements for use of frontloaded paid sick leave. An employer must notify employees of such policy or agreement prior to frontloading an employee paid sick leave, and must make this information readily available to all employees.
(5) An employer may not make a deduction from an employee's final wages for frontloaded paid sick leave used prior to the accrual rate required by RCW 49.46.210 (1)(a), unless there is a specific agreement in place with the employee allowing for such a deduction. Such deductions must also meet the requirements set forth in RCW 49.48.010 and WAC 296-126-025.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-730, filed 10/17/17, effective 1/1/18.]



PDF296-128-740

Third-party administrators.

(1) Employers may contract with a third-party administrator in order to administer the paid sick leave requirements under RCW 49.46.200 and 49.46.210, and all applicable rules.
(2) Employers are not relieved of their obligations under RCW 49.46.200 and 49.46.210, and all applicable rules, if they elect to contract with a third-party administrator to administer paid sick leave requirements. With the consent of employers, third-party administrators may pool an employee's accrued, unused paid sick leave from multiple employers as long as the accrual rate is at least equal to one hour of paid sick leave for every forty hours worked as an employee. For example, if a group of employers have employees who perform work for various employers at different times, the employers may choose to contract with a third-party administrator to track the hours worked and rate of accrual for paid sick leave for each employee, and pool such accrued, unused paid sick leave for use by the employee when the employee is working for any employers in the same third-party administrator network.
(3) A collective bargaining agreement may outline the provisions for an employer to use a third-party administrator as long as such provisions meet all paid sick leave requirements under RCW 49.46.200 and 49.46.210, and all applicable rules.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-740, filed 10/17/17, effective 1/1/18.]



PDF296-128-750

Employee use of paid sick leave for unauthorized purposes.

(1) If an employer can demonstrate that an employee's use of paid sick leave was for a purpose not authorized under RCW 49.46.210 (1)(b) and (c), the employer may withhold payment of paid sick leave for such hours, but may not subsequently deduct those hours from an employee's legitimately accrued, unused paid sick leave hours.
(2) If an employer withholds payment for the use of paid sick leave for purposes not authorized under RCW 49.46.210 (1)(b) and (c), the employer must provide notification to the employee. If the employee maintains that the use of paid sick leave was for an authorized purpose, the employee may file a complaint with the department.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-750, filed 10/17/17, effective 1/1/18.]



PDF296-128-760

Employer notification and reporting to employees.

(1) Employers must notify each employee of their entitlement to paid sick leave, the rate at which the employee will accrue paid sick leave, the authorized purposes under which paid sick leave may be used, and that retaliation by the employer for the employee's lawful use of paid sick leave and other rights provided under chapter 49.46 RCW, and all applicable rules, is prohibited.
(a) Employers must provide such notification in written or electronic form, and must make this information readily available to all employees.
(b) For employees hired on or after January 1, 2018, employers must notify each employee of such rights no later than the commencement of his or her employment. For existing employees as of January 1, 2018, the employer must notify each employee no later than March 1, 2018.
(c) The department shall, in consultation with employee and employer representatives, develop sample notification policies which meet the department's standard for compliance with these rules. The department shall make such sample notification policies available on the department's web site.
(2) Not less than monthly, employers must provide each employee with written or electronic notification detailing the amount of paid sick leave accrued and the paid sick leave reductions since the last notification, and any unused paid sick leave available for use by the employee. Employers may satisfy the notification requirements by providing this information in regular payroll statements.
(a) Employers are not required to provide monthly notification to an employee if the employee has no hours worked since the last notification.
(b) If an employer chooses to frontload paid sick leave to an employee in advance of accrual:
(i) The employer must make written or electronic notification to an employee no later than the end of the period for which the frontloaded paid sick leave was intended to cover, establishing that the amount of paid sick leave frontloaded to the employee was at least equal to the accrual rate under RCW 49.46.210 (1)(a); and
(ii) The employer is not relieved of their obligation to provide notification, not less than monthly, of the paid sick leave available for use by the employee.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-760, filed 10/17/17, effective 1/1/18.]



PDF296-128-770

Retaliation.

(1) It is unlawful for an employer to interfere with, restrain, or deny the exercise of any employee right provided under or in connection with chapter 49.46 RCW. This means an employer may not use an employee's exercise of any of the rights provided under chapter 49.46 RCW as a negative factor in any employment action such as evaluation, promotion, or termination, or otherwise subject an employee to discipline for the exercise of any rights provided under chapter 49.46 RCW.
(2) It is unlawful for an employer to adopt or enforce any policy that counts the use of paid sick leave for a purpose authorized under RCW 49.46.210 (1)(b) and (c) as an absence that may lead to or result in discipline by the employer against the employee.
(3) It is unlawful for an employer to take any adverse action against an employee because the employee has exercised their rights provided under chapter 49.46 RCW. Such rights include, but are not limited to: Filing an action, or instituting or causing to be instituted any proceeding under or related to chapter 49.46 RCW; exercising their right to paid sick leave, minimum wage, overtime, tips and gratuities; or testifying or intending to testify in any such proceeding related to any rights provided under chapter 49.46 RCW.
(4) Adverse action means any action taken or threatened by an employer against an employee for their exercise of chapter 49.46 RCW rights, which may include, but is not limited to:
(a) Denying use of, or delaying payment for, paid sick leave, minimum wages, overtime wages, all tips and gratuities, and all service charges, except those service charges itemized as not being payable to the employee or employees servicing the customer;
(b) Terminating, suspending, demoting, or denying a promotion;
(c) Reducing the number of work hours for which the employee is scheduled;
(d) Altering the employee's preexisting work schedule;
(e) Reducing the employee's rate of pay; and
(f) Threatening to take, or taking action, based upon the immigration status of an employee or an employee's family member.
[Statutory Authority: RCW 49.46.810. WSR 17-21-092, § 296-128-770, filed 10/17/17, effective 1/1/18.]



PDF296-128-780

EnforcementRetaliation.

(1) An employee who believes that they were subject to retaliation by their employer, as defined in WAC 296-128-770, for the exercise of any employee right under chapter 49.46 RCW, may file a complaint with the department within one hundred eighty days of the alleged retaliatory action. The department may, at its discretion, extend the one hundred eighty-day period on recognized equitable principles or because extenuating circumstances exist. For example, the department may extend the one hundred eighty-day period when there is evidence that the employer has concealed or misled the employee regarding the alleged retaliatory action.
(2) If an employee files a timely complaint with the department alleging retaliation, the department will investigate the complaint and issue either a citation and notice of assessment or a determination of compliance within ninety days after the date on which the department received the complaint, unless the complaint is otherwise resolved. The department may extend the period by providing advance written notice to the employee and the employer setting forth good cause for an extension of the period, and specifying the duration of the extension.
(3) The department may consider a complaint to be otherwise resolved when the employee and the employer reach a mutual agreement to remedy any retaliatory action, or the employee voluntarily and on the employee's own initiative withdraws the complaint. Mutual agreements include, but are not limited to, rehiring, reinstatement, back pay, and reestablishment of benefits.
(4) If the department's investigation finds that the employee's allegation of retaliation cannot be substantiated, the department will issue a determination of compliance to the employee and the employer detailing such finding.
(5) If the department's investigation finds that the employer retaliated against the employee, and the complaint is not otherwise resolved, the department may, at its discretion, notify the employer that the department intends to issue a citation and notice of assessment, and may provide up to thirty days after the date of such notification for the employer to take corrective action to remedy the retaliatory action. If the complaint is not otherwise resolved, then the department shall issue a citation and notice of assessment. The department's citation and notice of assessment may:
(a) Order the employer to make payable to the employee earnings that the employee did not receive due to the employer's retaliatory action, including interest of one percent per month on all earnings owed. The earnings and interest owed will be calculated from the first date earnings were owed to the employee;
(b) Order the employer to restore the employee to the position of employment held by the employee when the retaliation occurred, or restore the employee to an equivalent position with equivalent employment hours, work schedule, benefits, pay, and other terms and conditions of employment;
(c) Order the employer to cease using any policy that counts the use of paid sick leave as an absence that may lead to or result in discipline against the employee;
(d) For the first violation, order the employer to pay the department a civil penalty as specified in WAC 296-128-790; and
(e) For a repeat violation, order the employer to pay the department up to double the civil penalty as specified in WAC 296-128-790.
(6) The department will send the citation and notice of assessment or determination of compliance to both the employer and employee by service of process or using a method by which the mailing can be tracked or the delivery can be confirmed to their last known addresses.
(7) During an investigation of the employee's retaliation complaint, if the department discovers information suggesting alleged violations by the employer of the employee's other rights under chapter 49.46 RCW, and all applicable rules, the department may investigate and take appropriate enforcement action without requiring the employee to file a new or separate complaint. If the department determines that the employer violated additional rights of the employee under chapter 49.46 RCW, and all applicable rules, the employer may be subject to additional enforcement actions for the violation of such rights. If the department discovers information alleging the employer retaliated against or otherwise violated rights of other employees under chapter 49.46 RCW, and all applicable rules, the department may launch further investigation under chapter 49.46 RCW, and all applicable rules, without requiring additional complaints to be filed.
(8) The department may prioritize retaliation investigations as needed to allow for timely resolution of complaints.
(9) Nothing in WAC 296-128-780 through 296-128-800 impedes the department's ability to investigate under the authority prescribed in RCW 49.48.040.
(10) Nothing in WAC 296-128-780 through 296-128-800 precludes an employee's right to pursue private legal action.
[Statutory Authority: RCW 49.46.810, 49.46.005, 49.46.020, 49.46.090, 49.46.100, 49.46.120, 49.46.200, 49.46.210, 49.46.810, 49.46.820, and 49.46.830. WSR 18-01-111, § 296-128-780, filed 12/19/17, effective 1/1/18.]



PDF296-128-790

EnforcementRetaliationCivil penalties.

(1) If the department's investigation finds that an employer retaliated against an employee, pursuant to the procedures outlined in WAC 296-128-780, the department may order the employer to pay the department a civil penalty. A civil penalty for an employer's retaliatory action will not be less than one thousand dollars or an amount equal to ten percent of the total amount of unpaid earnings attributable to the retaliatory action, whichever is greater. The maximum civil penalty for an employer's retaliatory action shall be twenty thousand dollars for the first violation, and forty thousand dollars for each repeat violation.
(2) The department may, at any time, waive or reduce any civil penalty assessed against an employer under this section if the department determines that the employer has taken corrective action to remedy the retaliatory action.
(3) The department will deposit civil penalties paid under this section in the supplemental pension fund established under RCW 51.44.033.
(4) Collections of amounts owed for unpaid citations and notices of assessment, as detailed in WAC 296-128-780(5), will be handled pursuant to the procedures outlined in RCW 49.48.086.
[Statutory Authority: RCW 49.46.810, 49.46.005, 49.46.020, 49.46.090, 49.46.100, 49.46.120, 49.46.200, 49.46.210, 49.46.810, 49.46.820, and 49.46.830. WSR 18-01-111, § 296-128-790, filed 12/19/17, effective 1/1/18.]



PDF296-128-800

EnforcementRetaliationAppeals.

(1) A person, firm, or corporation aggrieved by a citation and notice of assessment or a determination of compliance may, within thirty days after the date of such decision, submit a request for reconsideration to the department setting forth the grounds for seeking such reconsideration, or submit an appeal to the director pursuant to the procedures outlined in subsection (4) of this section. If the department receives a timely request for reconsideration, the department will either accept the request or treat the request as a notice of appeal.
(2) If a request for reconsideration is accepted, the department will send notice of the request for reconsideration to the employer and the employee. The department will determine if there are any valid reasons to reverse or modify the department's original decision to issue a citation and notice of assessment or determination of compliance within thirty days of receipt of such request. The department may extend this period by providing advance written notice to the employee and employer setting forth good cause for an extension of the period, and specifying the duration of the extension. After reviewing the reconsideration, the department will either:
(a) Notify the employee and the employer that the citation and notice of assessment or determination of compliance is affirmed; or
(b) Notify the employee and the employer that the citation and notice of assessment or determination of compliance has been reversed or modified.
(3) A request for reconsideration submitted to the department shall stay the effectiveness of the citation and notice of assessment or the determination of compliance pending the reconsideration decision by the department.
(4) Within thirty days after the date the department issues a citation and notice of assessment or a determination of compliance, or within thirty days after the date the department issues its decision on the request for reconsideration, a person, firm, or corporation aggrieved by a citation and notice of assessment or a determination of compliance may file with the director a notice of appeal.
(5) A notice of appeal filed with the director under this section shall stay the effectiveness of the citation and notice of assessment or the determination of compliance pending final review of the appeal by the director as provided for in chapter 34.05 RCW.
(6) Upon receipt of a notice of appeal, the director shall assign the hearing to an administrative law judge of the office of administrative hearings to conduct the hearing and issue an initial order. The hearing and review procedures shall be conducted in accordance with chapter 34.05 RCW, and the standard of review by the administrative law judge of an appealed citation and notice of assessment or determination of compliance shall be de novo. Any party who seeks to challenge an initial order shall file a petition for administrative review with the director within thirty days after service of the initial order. The director shall conduct administrative review in accordance with chapter 34.05 RCW.
(7) If a request for reconsideration is not submitted to the department within thirty days after the date of the original citation and notice of assessment or determination of compliance, and a person, firm, or corporation aggrieved by a citation and notice of assessment or determination of compliance did not submit an appeal to the director, then the citation and notice of assessment or determination of compliance is final and binding, and not subject to further appeal.
(8) The director shall issue all final orders after appeal of the initial order. The final order of the director is subject to judicial review in accordance with chapter 34.05 RCW.
(9) Director's orders that are not appealed within the time period specified in this section and chapter 34.05 RCW are final and binding, and not subject to further appeal.
(10) An employer who fails to allow adequate inspection of records in an investigation by the department under WAC 296-128-780 through 296-128-800 within a reasonable time period may not use such records in any appeal under such rules to challenge the correctness of any determination by the department.
[Statutory Authority: RCW 49.46.810, 49.46.005, 49.46.020, 49.46.090, 49.46.100, 49.46.120, 49.46.200, 49.46.210, 49.46.810, 49.46.820, and 49.46.830. WSR 18-01-111, § 296-128-800, filed 12/19/17, effective 1/1/18.]



PDF296-128-810

EnforcementPaid sick leave.

(1) If an employee files a complaint with the department alleging that the employer failed to provide the employee with paid sick leave as provided in RCW 49.46.200 and 49.46.210, the department will investigate the complaint as an alleged violation of a wage payment requirement, as defined by RCW 49.48.082(12).
(2) When the department's investigation results in a finding that the employer failed to provide the employee with paid sick leave accrual, use, or carryover during an ongoing employment relationship, the employee may elect to:
(a) Receive full access to the balance of accrued paid sick leave hours unlawfully withheld by the employer, based on a calculation of at least one hour of paid sick leave for every forty hours worked as an employee during the period of noncompliance; or
(b) Receive payment from the employer at their normal hourly compensation for each hour of paid sick leave that the employee would have used or been reasonably expected to use, whichever is greater, during the period of noncompliance, not to exceed an amount the employee would have otherwise accrued. The employee will receive full access to the balance of accrued paid sick leave hours unlawfully withheld by the employer, less the number of paid sick leave hours paid out to the employee pursuant to this subsection.
(3) When the department's investigation results in a finding that the employer failed to provide the employee with paid sick leave accrual, use, or carryover, and the employee is no longer employed by the same employer, the employee may elect to receive payment at their normal hourly compensation, receive reinstatement of the balance of paid sick leave hours, or receive a combination of payment and reinstatement from the employer for all hours of paid sick leave that would have accrued during the period of noncompliance. Such hours must be based on a calculation of at least one hour of paid sick leave for every forty hours worked as an employee.
(4) The department's notice of assessment, pursuant to RCW 49.48.083, may order the employer to provide the employee any combination of reinstatement and payment of accrued, unused paid sick leave hours assessed pursuant to subsection (2) or (3) of this section.
(5) For purposes of this section, an employer found to be in noncompliance cannot cap the employee's carryover of paid sick leave at forty hours to the following year for each year of noncompliance ("year" as defined in WAC 296-128-620(6)).
[Statutory Authority: RCW 49.46.810, 49.46.005, 49.46.020, 49.46.090, 49.46.100, 49.46.120, 49.46.200, 49.46.210, 49.46.810, 49.46.820, and 49.46.830. WSR 18-01-111, § 296-128-810, filed 12/19/17, effective 1/1/18.]



PDF296-128-820

EnforcementTips and service charges.

If an employee files a complaint with the department alleging that their employer failed to pay to the employee all tips and gratuities due to the employee under RCW 49.46.020, or all service charges due to the employee under RCW 49.46.020 and 49.46.160, the department will investigate the complaint. The department will investigate the complaint pursuant to the procedures outlined in the Wage Payment Act, RCW 49.48.082 through 49.48.087.
[Statutory Authority: RCW 49.46.810, 49.46.005, 49.46.020, 49.46.090, 49.46.100, 49.46.120, 49.46.200, 49.46.210, 49.46.810, 49.46.820, and 49.46.830. WSR 18-01-111, § 296-128-820, filed 12/19/17, effective 1/1/18.]



PDF296-128-830

EnforcementComplaints alleging a violation of other rights under chapter 49.46 RCWDuty of department to investigateCitationsCivil penalties.

(1) If an employee files a complaint with the department alleging a violation of the employee's rights under chapter 49.46 RCW, and all applicable rules, that are not otherwise enforced by the department pursuant to WAC 296-128-780 through 296-128-820, or the Wage Payment Act, RCW 49.48.082 through 49.48.087, the department will investigate the complaint under this section. Alleged violations include, but are not limited to, failure of an employer to comply with: The recordkeeping requirements set forth in WAC 296-128-010; the requirements to maintain written policies or collective bargaining agreements, as outlined in WAC 296-128-650(3), 296-128-660(2), 296-128-710(1), and 296-128-730(4); and notification and reporting requirements set forth in WAC 296-128-760.
(a) The department may not investigate any such alleged violation of rights that occurred more than three years before the date that the employee filed the complaint.
(b) If an employee files a timely complaint with the department, the department will investigate the complaint and issue either a citation assessing a civil penalty or a closure letter within sixty days after the date on which the department received the complaint, unless the complaint is otherwise resolved. The department may extend the period by providing advance written notice to the employee and the employer setting forth good cause for an extension of the period, and specifying the duration of the extension.
(c) The department will send notice of a citation assessing a civil penalty or the closure letter to both the employer and the employee by service of process or using a method by which the mailing can be tracked or the delivery can be confirmed to their last known addresses.
(2) If the department's investigation finds that the employee's allegation cannot be substantiated, the department will issue a closure letter to the employee and the employer detailing such finding.
(3) If the department determines that the violation of rights under chapter 49.46 RCW, and all applicable rules, that are not enforced by the department pursuant to WAC 296-128-780 through 296-128-820, or the Wage Payment Act, RCW 49.48.082 through 49.48.087, was a willful violation, and the employer fails to take corrective action, the department may order the employer to pay the department a civil penalty as specified in (a) of this subsection.
(a) A citation assessing a civil penalty for a willful violation of such rights will be one thousand dollars for each willful violation. For a repeat willful violator, the citation assessing a civil penalty will not be less than two thousand dollars for each repeat willful violation, but no greater than twenty thousand dollars for each repeat willful violation.
(b) The department may not issue a citation assessing a civil penalty if the employer reasonably relied on:
(i) A written order, ruling, approval, opinion, advice, determination, or interpretation of the director; or
(ii) An interpretive or administrative policy issued by the department and filed with the office of the code reviser. In accordance with the department's retention schedule obligations under chapter 40.14 RCW, the department will maintain a complete and accurate record of all written orders, rulings, approvals, opinions, advice, determinations, and interpretations for purposes of determining whether an employer is immune from civil penalties under (b) of this subsection.
(c) The department may, at any time, waive or reduce a civil penalty assessed under this section if the director determines that the employer has taken corrective action to resolve the violation.
(d) The department will deposit civil penalties paid under this section in the supplemental pension fund established under RCW 51.44.033.
(4) For purposes of this section, the following definitions apply:
(a) "Repeat willful violator" means any employer that has been the subject of a final and binding citation for a willful violation of one or more rights under chapter 49.46 RCW, and all applicable rules, within three years of the date of issuance of the most recent citation for a willful violation of one or more such rights.
(b) "Willful" means a knowing and intentional action that is neither accidental nor the result of a bona fide dispute.
[Statutory Authority: RCW 49.46.810, 49.46.005, 49.46.020, 49.46.090, 49.46.100, 49.46.120, 49.46.200, 49.46.210, 49.46.810, 49.46.820, and 49.46.830. WSR 18-01-111, § 296-128-830, filed 12/19/17, effective 1/1/18.]



PDF296-128-840

Complaints alleging a violation of other rights under chapter 49.46 RCWAdministrative appeals.

(1) A person, firm, or corporation aggrieved by a citation assessing a civil penalty issued by the department under WAC 296-128-830 may appeal the citation assessing a civil penalty to the director by filing a notice of appeal with the director within thirty days of the department's issuance of the citation assessing a civil penalty. A citation assessing a civil penalty not appealed within thirty days is final and binding, and not subject to further appeal.
(2) A notice of appeal filed with the director under this section will stay the effectiveness of the citation assessing a civil penalty pending final review of the appeal by the director as provided for in chapter 34.05 RCW.
(3) Upon receipt of a notice of appeal, the director will assign the hearing to an administrative law judge of the office of administrative hearings to conduct the hearing and issue an initial order. The hearing and review procedures will be conducted in accordance with chapter 34.05 RCW, and the standard of review by the administrative law judge of an appealed citation assessing a civil penalty will be de novo. Any party who seeks to challenge an initial order shall file a petition for administrative review with the director within thirty days after service of the initial order. The director will conduct administrative review in accordance with chapter 34.05 RCW.
(4) The director will issue all final orders after appeal of the initial order. The final order of the director is subject to judicial review in accordance with chapter 34.05 RCW.
(5) Orders that are not appealed within the period specified in this section and chapter 34.05 RCW are final and binding, and not subject to further appeal.
(6) An employer who fails to allow adequate inspection of records in an investigation by the department under WAC 296-128-830 through 296-128-850 within a reasonable time period may not use such records in any appeal under such rules to challenge the correctness of any determination by the department of penalties assessed.
[Statutory Authority: RCW 49.46.810, 49.46.005, 49.46.020, 49.46.090, 49.46.100, 49.46.120, 49.46.200, 49.46.210, 49.46.810, 49.46.820, and 49.46.830. WSR 18-01-111, § 296-128-840, filed 12/19/17, effective 1/1/18.]



PDF296-128-850

Complaints alleging a violation of other rights under chapter 49.46 RCWCollection procedures.

Collections of unpaid citations assessing civil penalties will be handled pursuant to the procedures outlined in RCW 49.48.086.
[Statutory Authority: RCW 49.46.810, 49.46.005, 49.46.020, 49.46.090, 49.46.100, 49.46.120, 49.46.200, 49.46.210, 49.46.810, 49.46.820, and 49.46.830. WSR 18-01-111, § 296-128-850, filed 12/19/17, effective 1/1/18.]



PDF296-128-860

Severability clause.

If any provision of the rules in this chapter, or their application to any person or circumstance is held invalid, the remainder of these rules or their application of the provision to other persons or circumstances is not affected.
[Statutory Authority: RCW 49.46.810, 49.46.005, 49.46.020, 49.46.090, 49.46.100, 49.46.120, 49.46.200, 49.46.210, 49.46.810, 49.46.820, and 49.46.830. WSR 18-01-111, § 296-128-860, filed 12/19/17, effective 1/1/18.]