Executive Administrative Professional (EAP) exemptions (Chapter 296-128 WAC, Minimum Wages)

Chapter 296-128, WAC

All updates for this rule:

The purpose of this rulemaking is to update Chapter 296-128 WAC, Minimum Wages, regarding exemptions for employees working in an executive, administrative, or professional capacity, or in the capacity of an outside salesperson. Most employees covered by the Washington Minimum Wage Act must be provided a minimum wage, overtime for working above forty hours in a seven-day workweek, and paid sick leave. The Minimum Wage Act exempts some workers from these requirements. RCW 49.46.010(3)(c) exempts any individual “employed in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesperson as those terms are defined and delimited by rules of the director [of the department of Labor & Industries].” The department promulgated rules in 1976 for the executive, administrative, professional, and outside salesperson exemptions, defining salary thresholds and duties tests for an employee to be considered exempt from the Minimum Wage Act under RCW 49.46.010(3)(c). The department later promulgated an additional professional computer employees exemption, WAC 296-128-535, and other clarifying rules in WAC 296-128, which could be subject to revisions during this rulemaking. These exemption rules have been largely untouched since 1976, and currently exempt more workers than originally intended. Updating the rules would restore appropriate function to the exemption rules.

3/20/2018

Preproposal (CR-101)

Enforcement for Paid Sick Leave and Retaliation (Initiative 1433) (Chapter 269-128 WAC, Minimum wages)

The purpose of this rulemaking is to adopt rules pertaining to the enforcement directives related to the implementation of Initiative 1433, An Act Related to Fair Labor Standard. Initiative 1433 passed on November 8, 2016, and requires, in part, employers provide paid sick leave to employees beginning on January 1, 2018. Initiative 1433 directs the Department to adopt and implement rules to carry out and enforce the act. The changes were adopted 12/19/2017 and became effective on 1/1/2018.

1/1/2018	Rule Changes Effective
12/19/2017	Adoption (Rule-Making Order CR-103)  Adopted Rule Language  Response to Public Comments (CES)
11/17/2017	Comments Due
11/9/2017	Public Hearing
11/8/2017	Public Hearing
10/3/2017	Proposed Rulemaking (CR 102)  Proposed Rule Language
7/5/2017	Preproposal (CR-101)

Minimum Wage Act and Initiative 1433 (Chapter 296-128 WAC, Minimum Wages)

The purpose of this rulemaking is to implement, carry out, and enforce Initiative 1433, An Act Relating to Fair Labor Standards, which requires employers provide paid sick leave to employees. These rules: – Set parameters for the directives in Chapter 49.46 RCW; and – Create definitions and descriptions for paid sick leave pertaining to: written policies, accrual, usage, variance from required increments of use, reasonable notice, verification for absences exceeding three days, rate of pay, payment of paid sick leave, separation and reinstatement of accrued paid sick leave upon rehire, paid time off (PTO) programs, shared leave, shift swapping, frontloading, third party administrators, employee use of paid sick leave for unauthorized purposes, employer notification and reporting to employees, and retaliation. In addition to the paid sick leave proposed rules, amendments are being made to rules updating outdated language concerning people with disabilities to “People-first” language. Enforcement of the retaliation and enforcement directives related to the implementation of Initiative 1433 are being addressed in a separate rulemaking. The department will be working with employee and employer representative to perform outreach about the new rules. An online employer resource center is being developed to assist employers in learning about their new requirements, to provide guidance on employee notification and sample policies, etc. This rulemaking’s effective date is January 1, 2018, the effective date of the paid sick leave provisions of Initiative 1433. The changes were adopted 10/17/2017 and became effective on 1/1/2018.

1/1/2018	Rule Changes Effective
10/17/2017	Adoption (Rule-Making Order CR-103)  Adopted Rule Language  Final Cost Benefit Analysis  Response to Public Comments (CES)  Revised Small Business Economic Impact Statement (SBEIS)
9/1/2017	Comments Due
8/29/2017	Public Hearing
8/17/2017	Public Hearing
8/16/2017	Public Hearing
8/8/2017	Public Hearing
7/5/2017	Proposed Rulemaking (CR 102)  Proposed Rule Language  Small Business Economic Impact Statement (SBEIS)  Preliminary Cost Benefit Analysis
1/4/2017	Preproposal (CR-101)

Misleading minimum wage surcharges could soon be a thing of the past. Working Washington has sent an official request to the State Department of Labor & Industries calling on the agency to establish rules that would effectively eliminate misleading surcharges which pose as taxes or claim to go towards wages.

Despite what it says on these receipts, there is no such thing as the “Seattle Fair Wage Act” or a “WA Min Wage Fee.”

Paying the minimum wage is a basic cost of doing business, not an extra add-on to be counted separately. If there’s no line item for the rent and no napkin-laundering charge called out, then there’s no good reason to tack on an extra few percent and attribute it to the minimum wage — unless you’re trying to send a political message about opposition to raising the wage, that is.

For more than a year, we’ve collected examples of misleading minimum surcharges from across the state. We’ve asked businesses to eliminate these charges. We’ve published a list. We’ve gone to the press. And more.

We’ve had success turning back many of these charges — but others are still out there. (For example, the two pictured above.)

So now we’re taking the next step. We sent a letter to L&I asking them to use their authority under the law to clarify that:

• Service charges can never pose as taxes or government-mandated fees.
• Any surcharges that include the word “wage” or similar language are forbidden, because they will invariably be interpreted as intended to count towards employees’ wages, and that would be illegal under state law.
• Workers must be made whole for service charges which inappropriately were counted towards wage obligations, as this is effectively wage theft.

Taken together, these three rules would effectively eliminate misleading minimum wage surcharges. That’s why we’re asking you to add your name in support.

After you add your name, we’ll deliver your signatures to L&I — and we’ll let you know how they respond.

Thanks. Let’s do this!

Sage, Working Washington

P.S. You can read our complete letter to L&I here.