Version 2: I-1433 Draft Proposed Rule Language

We would like to restate comments made by others regarding the second version of the draft proposal WAC 296-128-660 (2) relating to the rate of pay for employees paid on commission or piece-rate basis. We agree that the most recent draft is problematic.
Given that commissioned and piece rate employees have fluctuating income over the course of a calendar year, the method provided will result in wide variations in the rate of pay. The rule creates an incentive for employees to misuse sick leave and manipulate the rate of pay artificially higher than their normal hourly compensation by waiting to take sick leave after a pay period of high commissions.
We also agree that there should be an alternative method of calculation to determine the regular rate of pay based on prior calendar year earnings. Using an employee’s prior year provides both employees and employers with certainty as to the amount of compensation during the course of the year. This method would significantly reduce administrative burden given that the rate only needs to be updated once a year consistent with hourly and salaried employees.

To Whom it May Concern,

It is very helpful that you have clarified that "Normal hourly compensation" does not mean that the employer would have to apply overtime standards to an employee's normal hourly compensation on hours used for paid sick leave. My hope is that the next version will also clarify the question of holiday rate and shift differentials on paid sick leave. I understand the intent of the law is to allow employees to continue to support themselves and their families in the case of illness but to require employers to pay holiday rates or shift differentials on time not worked seems excessive and not in the spirit of the law. I work in the healthcare industry where coverage is needed 24/7 to care for patients. Holiday and shift differential pay is intended as an incentive for employees who work less desirable days or hours. It would be unfair to require employers to pay this incentive to people for time not worked (especially since they would also have to pay the incentive to the employees called in to cover those shifts). It could also incentivize people to call out on holidays, creating a greater hardship for the employer to cover shifts that are absolutely needed for the care of patients.

Thank you for your time and consideration.

(Submitted on 6/2/17 by Jennifer Combs, VSI Law Group, PLLC)

To Whom It May Concern:

After reviewing the second version of the draft proposed rules to implement I-1433 (codified Chapter 49.46 RCW), I noticed that they are missing a key component: a collective bargaining rights waiver. Unions, through their ability to engage in collective bargaining agreements, negotiate to provide the best total compensation package for their members. They are empowered to prioritize issues as their members see fit, and negotiate to achieve those goals.

I-1433 is wonderful for non-represented groups, who don’t have that ability to bargain through strength of numbers for a well-provisioned compensation package. However, groups represented by Unions *can* do that, and they should be allowed to continue to negotiate, compromise, and tailor compensation in the ways to best fit the needs of the members.

When Seattle passed their Paid Sick Time and Paid Safe Time laws (Seattle Municipal Code 14.16), they included a Collective Bargaining Agreement Waiver provision, SMC 14.16.120. Seattle recognized that Unions have the unique ability to address all types of compensation as a total package, and that the collective bargaining agreements needed the flexibility to address paid sick time and paid leave as was most appropriate for their members. SMC 14.16.120 states that the provisions of Chapter 14.16 do not apply to any employees covered by a bona fide collective bargaining agreement to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms.

L&I should follow Seattle’s lead. I propose the following language should be included in the WAC for Chapter 49.46 RCW: “The provisions of Chapter 49.46 RCW concerning paid sick leave do not apply to any employees covered by a bona fide collective bargaining agreement to the extent that paid sick leave is expressly addressed within a collective bargaining agreement or MOU in clear and unambiguous terms.” The rules for I-1433 should allow for collective bargaining agreements to control when it comes to paid sick leave, as long as the agreements contain clear and unambiguous waiver language, specifically referencing I-1433. This law should not be used to weaken Unions and weaken their ability to negotiate for the best total compensation package for their members.

To Whom It May Concern,

I am writing to submit feedback regarding the second version of the draft proposed rule to implement the paid sick leave portion of Initiative 1433 approved by voters. Thank you for addressing a few of the items identified in my response to the previous draft. Several concerns remain outstanding.

WAC 296-128-620 4(b) - The requirement to allow the use of paid sick leave in the smallest increment for which the employer tracks compensation is onerous. Timekeeping systems are typically capable of computing time in hundredths of an hour. The ability to calculate time in increments of less than one minute does not make it practicable to manage the work of employees in those same increments. I realize other employment regulations may require allowing time off in such increments but I don't think these regulations should further perpetuate that standard. It would be more reasonable to make the standard something like ten (or fifteen) minutes or the smallest increments other leaves are tracked in, whichever is smaller.

WAC 296-128-630 - Variances from the required increments - Rather than create this process that will be an administrative burden for the Department as well as employers, why not set a more reasonable minimum increment standard such as the one I have suggested above?

WAC 296-128-640 2 - If the need for paid sick leave is foreseeable, why limit the amount of notice the employer can require to 14 calendar days? If the employee knows six weeks in advance they may need 6-8 weeks off for a surgery and recovery, why shouldn't the employer have more than two weeks to plan coverage for the employee? Providing as much notice as possible would place no additional burden on the employee and would allow businesses more time to plan for smooth operations in the employee's absence. This would be especially useful for smaller employers.

WAC 296-128-650 3 - This states the employer must not require that the information provided explain the nature of the condition. That is much broader than I believe is intended by the spirit of the initiative. It suggests employers can't inquire whether the condition is a health condition. The regulation should state the employer cannot require information about the specific health condition but may require information that the reason is a health condition.

WAC 296-128-650 3 - I renew my concern about the use of "unreasonable" regarding the expense of providing verification. This term is far too vague and will result in litigation.

WAC 296-128-650 6 - The period of time for an employee to provide verification must be "reasonable." Again, this is a vague term. You have clarified in this section by saying that it may not be less than ten calendar days. Many health conditions may have resolved before ten calendar days. This is a concern for employers regarding whether the health provider can provide legitimate verification that the leave was taken appropriately.

WAC 296-128-660 2 - One pay period is too short a period of time to establish normal hourly compensation for employees earning commission or being paid on a piece-rate basis. A period of at least 90 days would be more reasonable. Otherwise, spikes in paid sick leave usage immediately following periods with high commission or piece-rate earnings are completely predictable. This would be unfair, particularly to smaller employers.

WAC 296-128-750 1- Notification requirements on employers should be limited to employment posters.

WAC 296-128-760 2 - This requirement is unnecessary. It is already covered in WAC 296-128-740.

WAC 296-128-760 4 - Correct typo: "threatened action by an employee against an employee..." Should be "threatened action by an employer against an employee..."

WAC 296-128-010 12 and 13 - Changing "pay period" to "month" requires additional reporting beyond the pay statement for employers who have pay periods shorter than one month and will report this information each pay period. I suggest retaining "pay period" and adding "or at least each month" to the statute instead.

I appreciate your consideration of these additional comments and recommendations.

Thank you,
Lorna Klemanski, Chelan Public Utility District #1

To whom it may concern,

It would still be nice if these proposed rules were more explicit when it comes to accepting tips/gratuities. RCW 49.46.020(3) states that an employer must pay employees all tips/gratuities, and the proposed WAC 296‐128‐760(1) seems to protect that by stating it is unlawful to restrain or deny the exercise of any right provided under 49.46 RCW (which the previously mentioned 49.46.020(3) falls under). It would be nice if WAC 296‐128‐760(3) were amended to include tips/gratuities. Specifically, expand "exercising his or her right to paid sick leave, minimum wage, and overtime;" to "exercising his or her right to paid sick leave, minimum wage, overtime, tips, and gratuities;".

I am also hopeful the issue of tips/gratuities will be covered further in the administrative policies that will be drafted this month.

Also, I believe there is a small error in the proposed WAC 296‐128‐760(4): "Adverse action means any action taken or threatened by an employee against an employee", I suspect that is intended to read "by an *employer* against an employee".

(Submitted by Julie Dobbins, Hockinson School District)

To whom it may concern:

To start I would like to state that I understand the intent behind this initiative, however, I do not believe all ramifications have been considered. In a typical business where you have employees working regular schedules and they earn no sick, vacation, personal days, etc. It could be relatively easy to determine how to award them sick leave.

In the field of education, "regular" employees are awarded sick leave. However, in order to remain operational for the day we have to get "Substitute" employees to cover them when they are out sick. So assuming we determine a way to allocate the sick leave to a substitute. When does a substitute use sick time? Do they take a job to cover an employee who is out sick and then call in sick themselves and we are left with no one to cover a classroom full of children? We have a severe issue in this state with a shortage of substitute teachers. This will take more of them out of the daily operation of running a school. How does a substitute report sick leave? Currently substitutes are given work through automated web based programs. They can take work, but they cannot claim a days pay unless they come and do the work. Do we need to purchase another system? Do we revert back to paper methods?

So the rule seems very general that if they work 40 hours they get 1 hour of sick. For what time frame does the 40 hours have to occur? If they work 40 hours in a given week? a given month? or is it a running total so maybe it takes them 3 months before they actually earn the 40 hours. In which case you are constantly tracking hundreds of employees with no good means of doing so.

Was there any consideration to the workload this will put upon school districts? The record keeping for substitute employees would be extremely complicated. Again, let's assume we find a way of allocating the leave. When they use the leave how do we pay them? at what rate? their work is paid at varying rates of pay. Are we going to have to have a look back period to determine the amount earned and then come up with a blended rate of pay? We could potentially award leave at different pay values each time we allocate as their work schedule and pay is never consistent. We would have to calculate a new blended rate for each 40 hours worked? or can we state it will be at a specific amount?
Example: Month #1 a sub works 40 hours exactly and earns all 40 hours at $17.60 per hour. Month #2 again they work exactly 40 hours, 20 at $17.60 and 20 at $22.00. At what extent do I need to track the monetary value of said sick leave? In the next month they claim 2 hours of sick leave - what rate do I pay them?

There are 295 school districts in the State of Washington wondering the same things I am wondering. We do not have an easy way to track this and it will be an unbearable workload when we are all running short staffed as it is.

What are the reporting responsibilities? will we have to file state reports on this as well? The whole initiative is riddled with holes.

In closing - this is a HUGE issue for school districts.

Who is going to watch the kids when the employees are out sick and the subs are too????

One last point - the majority of substitutes working in school districts work in multiple school districts. How do we address double dipping of sick leave used? Example: If a sub earns a total of 8 hours of sick leave in each of 3 districts. What is to stop that substitute from calling in to each of the 3 districts on the same day claiming a sick day? Does that sub get 24 paid sick leave on the same day?

Thank you for your consideration of my comments. You need to simplify this and propose some procedures or clarify the expectations better.

(Submitted on 6/1/17 by Patricia T.O. Pearson, Gordon Thomas Honeywell)

To Whom It May Concern,

I am writing to submit feedback regarding the second version of the draft proposed rule WAC 296-128-660, section 2), which relates to the rate of pay for paid sick leave for employees who are paid on commission or piece-rate basis.

This recent draft provides that employers use a “reasonable calculation” to determine what an employee would have earned if the employee had worked the hours for which sick leave is taken. The rule then provides that an employer who pays the employee the average rate of pay from the current or preceding pay period, whichever is higher, would be meeting the requirement of a “reasonable calculation.”

This proposed rule is problematic for several reasons. First, the requirement to use a “reasonable calculation” is vague and ambiguous and, thus, it provides little real guidance to employers. Second, the requirement of using the higher of the average pay rate from the current or preceding pay period will not always lead to a “reasonable calculation” of the rate that an employee would have earned if the employee had worked if the employee had higher than average commissions during either pay period. Third, using the higher average rate from the two pay periods may incentivize abuse of the system by allowing an employee a higher average rate of pay for sick leave for two pay periods following a large commission. Fourth, as Initiative 1433 already provides that employees must be paid the minimum wage or their normal hourly compensation, it is unclear why employees paid on a commission basis or piece rate basis should have a higher “floor” for their sick pay rate than other types of employees. Fifth and finally, requiring the employer to determine the average rate of pay for the pay period when sick leave is taken for employees paid on a commission would provide the employer almost no time to calculate the rates and comply with the statutory requirement to pay the employee for sick leave taken during that same pay period.

Given these concerns, I suggest that L&I consider the methodology used for California’s Paid Sick Leave law, which provides that employers may use the regular rate of pay or calculate the rate of pay “by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.”

I believe that this methodology will be closer to providing a “reasonable calculation” of the rate of pay for commission and piece rate employees and minimize the potential abuse, as it is an average over a longer period of time. Furthermore, this methodology uses the average of the 90 days of full pay periods prior to the date of sick leave taken, thereby allowing the employer reasonable time to calculate the pay rate for sick leave taken in order to pay the compensation for sick leave in that pay period.

Thank you for your consideration and your efforts on this issue and all others related to Initiative 1433.

To Whom It May Concern,

I am writing to submit feedback regarding the second version of the draft proposed rule WAC 296-128-660, section 2), which relates to the rate of pay for paid sick leave for employees who are paid on commission or piece-rate basis.

This recent draft provides that employers use a “reasonable calculation” to determine what an employee would have earned if the employee had worked the hours for which sick leave is taken. The rule then provides that an employer who pays the employee the average rate of pay from the current or preceding pay period, whichever is higher, would be meeting the requirement of a “reasonable calculation.”

This proposed rule is problematic for several reasons. First, the requirement to use a “reasonable calculation” is vague and ambiguous and, thus, it provides little real guidance to employers. Second, the requirement of using the higher of the average pay rate from the current or preceeding pay period will not always lead to a “reasonable calculation” of the rate that an employee would have earned if the employee had worked if the employee had higher than average commissions during either pay period. Third, using the higher average rate from the two pay periods may incentivize abuse of the system by allowing an employee a higher average rate of pay for sick leave for two pay periods following a large commission. Fourth, as Initiative 1433 already provides that employees must be paid the minimum wage or their normal hourly compensation, it is unclear why employees paid on a commission basis or piece rate basis should have a higher “floor” for their sick pay rate than other types of employees. Fifth and finally, requiring the employer to determine the average rate of pay for the pay period when sick leave is taken for employees paid on a commission would provide the employer almost no time to calculate the rates and comply with the statutory requirement to pay the employee for sick leave taken during that same pay period.

Given these concerns, I suggest that L&I consider the methodology used for California’s Paid Sick Leave law, which provides that employers may use the regular rate of pay or calculate the rate of pay “by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.”

I believe that this methodology will be closer to providing a “reasonable calculation” of the rate of pay for commission and piece rate employees and minimize the potential abuse, as it is an average over a longer period of time. Furthermore, this methodology uses the average of the 90 days of full pay periods prior to the date of sick leave taken, thereby allowing the employer reasonable time to calculate the pay rate for sick leave taken in order to pay the compensation for sick leave in that pay period.

Thank you for your consideration and your efforts on this issue and all others related to Initiative 1433.

(Submitted on 5/31/17 by Sue Turner, Charles Alan Roofing)

Our company is based on production. We are a roofing contractor. If employees are out it kills production.

My suggestion would be to allow a buy out at the employers discretion at the end of the year rather than only allow a carry over.

A lot of employees like this idea based on my many years in business. It encourages them to not take a day off frivolously and gives them a little year end cash.

(Submitted on 5/31/17 by Casey Groves, Axis Roof and Gutter Inc.)

Dear L&I –

My name is Casey Groves, and I am a small business owner in Snohomish County. I am also in the roofing industry , which in turn, I work with your department to ensure safety and compliance to all regulations your department has set forth for us contractors to follow. Now for the last 17 years my company has been in business, I find it very difficult to keep up with your non-scrupulous regulations (regulations not always clearly defined). I feel that this department does not care about small business owners. My company has generated plenty of revenue for your department, and yet you still continue to baby employee’s. If this department puts another financial burden on our company’s to pay sick time for physical and mental health, 52 hours a year for full time employee’s. This also is subject to audit. My question to you is …… where is our benefit, it is a one way street. My office staff will be directly affected. I don’t see anything about tax cuts, experience factors, B & O tax?

I feel you department is creating a black hole for small business. Companies that stay in compliance with all your regulations will be costed out of jobs. I am seeing this first hand now. This state is going down a road of “work less, pay more”. I grew up working very hard, and decided to take a risk and put my family’s well-being at stake and start a business. Provide 40-50 jobs. In turn , we get spit on by the state. This state is the furthest from business friendly. This is just one man’s opinion is a big pool of players. I do know I am not alone in this fight. I just ask this department to understand how hard business owners work to provide jobs, keep employee’s safe, and put food on their table. In turn , cut us a break already…….I’m not asking for handouts, too proud for that, I just want the Department to realize the true effects of what road there traveling. Employee’s need to be held accountable , not the employer!!!

Thank you for reading

(Submitted on 5/31/17 by Chad Eberhart, Woodstove Warehouse)

- The paid sick leave should be required for businesses with 20 or more employees.
- The paid sick leave rules will impose greater costs on small businesses to comply with than larger businesses and state law, RCW 19.85 requires the Department to minimize those disproportionate costs on small businesses.
- Small businesses should not be liable for any negligible error in calculating a worker’s average hourly wage and should not be subject to civil actions for any inadvertent errors provided the employer is demonstrating a good faith effort to comply with the rules
- L&I should provide small businesses with sample leave notification documents that, if used shall not be subject to any civil penalty. Requiring a small business to prepare such notification policy and notification document in order to comply with the rules would require the small business to hire an attorney at considerable cost in order to comply.
- L&I should provide small businesses with sample verification policy and notification documents that, if used shall not be subject to any civil penalty. Requiring a small business to prepare a verification policy and notification document in order to comply with the rules would require the small business to hire an attorney at considerable cost in order to comply.
- L&I should provide small businesses with a sample discipline policy and notification documents that, if used shall not be subject to any civil penalty. Requiring a small business to prepare a discipline policy and notification document in order to comply with the rules would require the small business to hire an attorney at considerable cost in order to comply.
- Small businesses should not be required to provide a monthly statement of the amount of sick leave a worker has accrued, amounts used, and amounts remaining available on a monthly basis but rather on a quarterly basis
- Small businesses should not be liable for inadvertent negligible errors in tracking accrued sick leave, used sick leave, and available sick leave provided the employer is demonstrating a good faith effort to comply with the rules.
- Consistent with RCW 24.05.110, small businesses should not be subject to a civil penalty for a first time violations of the rules.
- The Department of Labor and Industries must provide consultations services to small businesses to comply with these rules and the consultation service cannot issue any civil penalty for any violations found provided the business corrects the violation within a reasonable period of time. The consultation service must be totally separate and not share any information with any enforcement personnel of the Department. Good faith compliance with written instructions from the consultation service shall not subject the small business to a civil penalty for violating the rule.
- The draft rule sets up a more complex Paid Sick Leave accrual process than did the previous draft rule with respect to worker who work in increments of less than an one hour, i.e. piecework.
- The draft rule allows workers to not show up for a work shift and not notify the employer until the end of their scheduled work shift that the worker is taking Paid Sick Leave and prohibits the employer from verifying the worker took Paid Sick Leave for a valid reason. The provision allows abuse of the paid sick leave rule.
The draft rule does not allow an employer to require an employee to provide Paid Sick Leave verification to the employer if it is determined that it results in an unreasonable burden or expense on the employee.
The draft rule contains a strange new provision to determine the amount of pay a worker should receive for Paid Sick Leave. This strange new provision in some cases sets the pay amount to the person taking Paid Sick Leave to the same amount a replacement worker would be paid to cover the work shift for the worker out on Paid Sick Leave. It does not consider if the replacement worker is the business owner.

(Submitted on 5/30/17 by Wanda Liner, Bremerton School District)

Rate of Pay - I like the suggestion of using a 90 day look back period for calculating the hourly rate for someone who works at different positions with varying rates of pay.

Shared Leave - There is an RCW (may only be for School Districts) stating that the donating employee must retain a balance of 176 hours of sick leave after leave is donated. Thus, this paragraph would NOT be applicable to a Substitute Employee in a School District because we would most likely follow the State minimum of allowing the maximum accrual of 40 hours from year to year and my guess is a substitute would not earn more than 136 additional hours in a year.

In the Retaliation Section, Paragraph 4), 11th word - should this word be Employer, instead of Employee?


I was ill on the day of the first meeting and was not able to attend. I am wondering if there has been any discussion about creating a separate rule for School Districts (like there are in many other areas) or making School Districts Exempt from this initiative? Especially in light of the McCleary case to 100% fund schools. This initiative would effectively increase the amount of funds that will be needed to fully fund schools.

Schools are unique in comparison to the "Real Work World". Our regularly assigned employees earn and use sick leave from the day they are hired, regardless of the hours they work per day. However, our substitutes do not. Thus, our substitutes would potentially fall into the I-1433 ruling. EXCEPT - Substitutes do not have a guarantee of work nor do they have a set work schedule. They are able to accept or turn down any job at their own discretion. The work available to them is a direct result of a regularly assigned employee absence (on leave). It is tough enough to find a substitute to work when a regularly assigned employee is on leave, but with I-1433, a Sub could take a sub job and then ask for paid leave and then we would be stuck trying to find a sub for a sub.....Do you have any suggestions on how to do that? Additionally, the State is then paying wages & benefits for three employees instead of two.... one absent employee, one absent substitute and one working substitute.

Thank you for taking the time to read and consider my thoughts, comments and questions. Hope you have a great day!

(Submitted on 5/30/17 by Pam Wright, Interwest Technology Systems)

I would like to know why 4)f is even included in this policy. If an employee is here illegally one they shouldn’t even be working and two would the employer get in trouble for hiring an undocumented worker? I find this section should not even be a part of the rules.

Also I have question regarding rate of pay when sick. We have various pay rates due to prevailing wage. I think that what an employee is set to earn on a day to day basis is what the employee should be paid when out sick. This will make record keeping a lot easier. As it stands now if an employee who is scheduled to work on a higher paying job calls in sick not only do we have to replace that employee on the job but also pay the one out at the same rate. Example Employee A calls in sick and is scheduled on a job that pays $64.00/hr (normally earns $24/hr) so we are to pay him $64/hr and employee B who has to go to that job instead. So now the cost for labor for just one day of sick leave goes from $512.00 to $1024.00. I believe because there are many small construction businesses that do prevailing wage this needs to be addressed and changed. Think how much it will cost for multiple sick days?

(Submitted on 5/30/17 by Alan Hartley, Shari’s Management Corporation)

Comment re WAC 296-128-660 (3): The sentence here refers to “non-exempt employees paid a salary”. By definition, non-exempt employees are not paid a salary, but a paid on an hourly rate that can increase with overtime pay. Was this sentence intended to apply to salaried, exempt employees?


Comment re WAC 152-128-690: Can a company have a paid sick leave plan and a PTO plan, can the plans be combined to assure the minimum sick leave coverage? For example, a sick leave plan could allow for a 40 hour sick leave accrual. When combined with a 40 hour PTO plan, this would provide all employees with at least the minimum statutory sick leave allowance.

(Submitted on 5/26/17 by Jim Hardesty)

In the section on Frontloading there is no mention if frontloading negates the need for carryover. Our PTO policy far exceeds the accrual requirement and we front load 100% of PTO on Jan 1. For most jurisdictions the reason for carryover is to ensure employees have available sick time on Jan 1 and are not forced to accrue before taking. We would prefer the rules make clear if frontloading PTO negates the need for carryover or not.

(Submitted on 5/23/17 by Andy Rowlson)

Hello, we are a public employer with rich sick leave benefits. Employees accrue 8 hours sick leave a month, can use paid sick leave after 6 months of employment in 1 hour increments, and can accrue up to a limit of 1,000 sick leave hours. I believe WTA, and many other employers have sick leave programs that vastly exceed the spirit of the 1 hour per 40 hour worked sick leave law. However, the details of our sick leave program do not mesh with the law. I am VERY hopeful an exception can be written, similar to the PTO exception, allowing employers with traditional sick leave programs (8 hours accrued a month, leave max limits above 100 hours, bargained or policy-driven usage rules) to be excepted from the details of this new law. It would be VERY difficult for employees and employers if we changed our sick leave program to the new state 1 hour per 40, (essentially 4 hours per month), and also have a different WTA sick leave bank accruing 4 hours a month. The different banks would have different rules, which would be confusing for everyone. If we applied the states rules to our sick leave bank, we'd have to actually negotiate that with our unions, which cause it's own challenges. Also, we'd need to significantly change our payroll process, which is difficult to do, is expensive, and can cause other unintended issues. Thank you for considering an exception to this law, similar to the spirit of exception around PTO plans. I'd be happy to talk further with you about this.

(Submitted on 5/23/17 by Jeremy Saladino, Grass CPA and Associates, ps)

We are a CPA firm that also provides payroll and payroll tax reporting for small business clients. We are watching the Draft rules that have come down related to the Sick Leave law going into effect in 2018. Here are our small business clients concerns.
1. We are pleased by the movement of reporting to employees from per payroll to monthly, our construction clients that pay weekly were not looking forward to paying to report every week. But we are still hopeful that we can get closer to Quarterly for those small employers. Quarterly is the frequency that we report to LnI and ESD. Generating individual reports for sick leave at that time would be an easier calculation. The Best small business software on the market, QuickBooks by Intuit, will not properly calculate and track sick leave the way the law is written.
2. As we read it, the current rule would allow for any employee who is passed over for a promotion, that has used sick leave, can file suit for retaliation. We understand that no one thinks that an employee should be punished for using a benefit they have a right to. But if a business is forced to promote the most experience and senior member of the team and not weigh leadership abilities as well, will probably either not promote anyone, or look outside the firm for all its leaders.
3. In some of our construction companies, if they work a prevailing wage job they need to hope that the crew isn’t sick during that work time. Paying sick leave at prevailing wage versus at their normal wage could easily make these minority-owned small businesses rethink bidding on public work projects.
4. Other clients have recently switched to paying on commission, to them if employee A didn’t do the work and instead someone else did it, why is Employee A getting a commission? They didn’t earn it. This company is now rethinking their whole compensation package because they can’t pay a normal hourly rate for sick pay. This is a company whose competition frequently miss classifies employees as contractors and avoids taxes and other issues like this. Your new rule is penalizing the law abiding small businesses.

Our clients and many like them need your help, Please listen to our plea and the recommendations of those like IBA that are trying to help keep small businesses in Washington.

(Submitted on 5/18/17 by Emily Schuh, Anacortes Administrative Services)

Thank you for the opportunity to comment on the paid sick leave.

At a recently conference of governmental human resource professionals we discussed questions about the implementation of i1433. I thought that it may be helpful to share some of those comments for your consideration.

1. If an organization has a more rich sick leave accrual policy does this supersede the requirement for this benefit? Is this sick leave in addition to sick leave policies that are already in place for our regular employees. If so, does it have to be a separate bank in addition to the 8/hrs per month that employees currently receive?
2. We have some intermittent staff, for example student recreational assistants, who may never work 40 hours in a year. What is the threshold of time that the employees has to work 40 hours in order to be eligible to earn the leave? Must the 40 hours be in a 30 day period (my preference) or spread of a 12 month period.

(Submitted on 5/2/17 by Anthony Holmes, Zerorez of Puget Sound)

To the Department of Labor and Industries:

Thank you for the opportunity to provide input on the draft rules for earned sick and safe leave in Washington. Washington moms, dads, and family members, and small business owners like me, strongly supported Initiative 1433 on the November ballot because a living wage and earned sick time are critical to helping all families thrive. In fact, just 3.5 days of missed work due to illness mean losing an entire month’s grocery budget for an average family. However, we are concerned that aspects of the draft rules from the Department undermine the intent of the initiative passed overwhelmingly by Washington voters.

I believe the final rules on earned sick and safe time must address the following:

- Paid sick and safe leave must be enforced as a monetary loss: Employers’ failure to provide paid sick leave as well as retaliation against employees for using sick leave should be considered and enforced as a monetary loss. The Department of Labor and Industry’s draft rule would only potentially penalize employers and provides no compensation to workers for lost wages or damages. A strong administrative remedy that includes compensation for lost wages and damages is vital for low wage workers who are unlikely to have access to an attorney to pursue a private right of action.

- Use of paid sick leave must be job-protected as prescribed in statute: Initiative 1433 is very clear that use of paid sick leave cannot count towards an absence that may result in discipline of the employee. The draft rules do not directly address these types of systems that count paid sick leave as a mark against the employee.

- Paid sick leave must be available in no more than one hour increments: Requiring employees to use more sick leave than needed hurts employees with limited sick leave banks. Employees who only need 30 minutes of earned sick time – whether to recover from morning sickness or to attend a quick medical appointment – should be able to save their additional earned sick time for future use.

- Closed school or childcare centers due to inclement weather must count as caregiving: When schools or childcare centers are closed due to extreme weather, children must be placed somewhere with 24/7 care and supervision. Initiative 1433 was passed to address a range of caregiving situations, which include emergency situations where children are without access to adult care. Employees who have earned sufficient paid sick time should be able to decide when to use that time to care for their children.

I hope you will take into account this important feedback. Thank you for all that you do.

Businesses should be considered exempt if they are a place of "Secondary Employment" for an individual who has either PTO or Sick Leave at their primary place of employment that meets or exceeds the State Minimum as established already here. Insurance Companies have similar views and rules in place for deciding who covers a person in a family when both parents are fully insured at different businesses. A similar rule would be valuable when looking at which business should be responsible for providing paid sick leave or PTO. The burden should fall on the secondary employer to, as soon as advised they are now the primary employer, implement sick leave or PTO of min standard if the employee loses their primary employment. It could even be retro active up to the stated min within the last twelve calendar months.