EAP Pre-Draft Proposed Rule Language (Second Version)

Consultation has concluded

A sticky note that says "feedback" which is laid atop a keyboard.

In March 2018, the Department of Labor & Industries filed a CR-101 for the rulemaking addressing the executive, administrative, and professional (“EAP” or “white collar”) exemptions from the Minimum Wage Act. These are the rules that determine which salaried employees in Washington are required by law to receive overtime pay, minimum wage, and paid sick leave.

Over the last seven months, the department has engaged stakeholders regarding the scope and content of the rulemaking, relevant data, and draft concepts for updates to the rules. In October, the department circulated an initial pre-draft version of updates to the rule language and solicited both written comments and in-person feedback from stakeholders.

The department reviewed the comments received, and identified additional updates to the pre-draft rule language. As a result of those edits, the department is circulating a second pre-draft version of the rule language for review prior to filing the official CR-102 draft version.

We are asking the public to review the second pre-draft version of the proposed rules and provide feedback by Monday, December 31, 2018. Additional information, including the rulemaking timeline, can be found on the “Learn about EAP exemptions” page of this engagement site.

Feedback can be submitted directly to this page via the “Submit Comments” tab. Feedback can also be submitted using an attached document via the “Upload Documents” tab. Please note that uploaded documents will not appear on the website immediately. Uploads may take up to 24 hours to post.

Feedback can also be submitted via the EAPRules@Lni.wa.gov email box. Feedback submitted to the email box will be uploaded to this engagement site.

In March 2018, the Department of Labor & Industries filed a CR-101 for the rulemaking addressing the executive, administrative, and professional (“EAP” or “white collar”) exemptions from the Minimum Wage Act. These are the rules that determine which salaried employees in Washington are required by law to receive overtime pay, minimum wage, and paid sick leave.

Over the last seven months, the department has engaged stakeholders regarding the scope and content of the rulemaking, relevant data, and draft concepts for updates to the rules. In October, the department circulated an initial pre-draft version of updates to the rule language and solicited both written comments and in-person feedback from stakeholders.

The department reviewed the comments received, and identified additional updates to the pre-draft rule language. As a result of those edits, the department is circulating a second pre-draft version of the rule language for review prior to filing the official CR-102 draft version.

We are asking the public to review the second pre-draft version of the proposed rules and provide feedback by Monday, December 31, 2018. Additional information, including the rulemaking timeline, can be found on the “Learn about EAP exemptions” page of this engagement site.

Feedback can be submitted directly to this page via the “Submit Comments” tab. Feedback can also be submitted using an attached document via the “Upload Documents” tab. Please note that uploaded documents will not appear on the website immediately. Uploads may take up to 24 hours to post.

Feedback can also be submitted via the EAPRules@Lni.wa.gov email box. Feedback submitted to the email box will be uploaded to this engagement site.

To submit your feedback directly to this page, please enter your comments in the text box below.

(Submitted on 12/29/18 by Catherine Adams)

Dear Director Sacks:

My name is Catherine Adams and I work in Seattle.

I think if you are paid less than $75,000 per year you deserve overtime. If corporations can't obey the law: You welcome to do business in WA State for the good of the PEOPLE. I am sick and tired of this attitude that we are the United Corporations of America and We the People are becoming slaves.

L&I should restore overtime rights because it is YOUR job to protect We the People.

With overtime, people will actually be able to buy groceries and MAYBE put some monies in a savings.

Put the People first, without us to pay taxes, corporations won't be stepping in to cover all the taxes

Allison Drake 20 days ago

(Submitted on 12/29/18 by Karen and Will Lozow Cleary)

Dear Director Sacks:

We're a couple who've worked decades for not enough benefits ,health insurance ,or decent pay.

Both my husband I have worked for decades as salaried workers .It's not right to be abused by a greedy boss who demands you work over-time without being paid time and a half .Comp -time doesn't help anybody pay the bills ,or get ahead . You can't take a vacation without real benefits and a living wage .Please bring back the forty hour week ,over -time ,benefits and a living wage too.

Everyone should have the same access to overtime ,benefits and a living wage . It boosts morale ,lessens turn-over and even boosts productivity . Every worker needs to feel appreciated and compensated for a job well done.

Whenever workers have more disposable income and a living wage of at least fifteen an hour -the entire community benefits.

Be fair ,be just ,stand up for American companies ,good wages and strong unions .Please do the right thing and restore the 40 hour week and overtime too.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Anna Minard)

Dear Director Sacks:

My name is Anna, and I’m a lifelong Seattleite. I’ve worked multiple salaried jobs in the last 10 years. My first salaried position paid the equivalent of about $12 – $13 an hour, and definitely required me to work more than 40 hours a week—sometimes it was a full 6 days.

As you consider new overtime rules, I urge you to restore overtime rights to about triple the minimum wage, or ~$75,000/year. That seems like an appropriate threshold, if a little low, for something as serious as losing the right to be compensated for extra hours worked. Giving up overtime pay is not a small sacrifice, and employers should be expected to use this arrangement only for workers who are paid enough to make it fair.

This rule hasn’t been updated in a long time, and we’ve now seen what it looks like when employers use it as a loophole to get more work out of people for less pay. I know lots of people across various industries, from nonprofit to admin to tech, who have calculated their hours and salary and realized they’re making well under average wages or even the minimum wage. If this threshold is set too low, the whole concept of salaried jobs is essentially just a workaround to exploit people’s time, and it undermines existing laws about work. I hear that some employers are yet again saying they’re fearful about what a new workplace rule will mean for them, but please remember that they are arguing for something quite simple: the right to not pay their employees for all the hours they work. If they are concerned about their bottom line because they rely so heavily on abusing people’s time, that itself is very telling about how well the existing overtime rules are working. And frankly, this happens every time any new workplace rules or labor laws are proposed, and yet we continue to see basic things like sick and safe leave or a decent minimum wage have a positive effect on the people who live and work in this state.

A refresh on overtime rights would be a great first step toward restoring the dignity of work and fixing the skewed balance of power between working people and their employers. People deserve to be paid fairly for their work. That’s the kind of thing we all expect L&I to support and protect.

Thank you for addressing overtime pay and taking public comment on these rules.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Helen Wheatley)

Dear Director Sacks:

My name is Helen Wheatley, and I live in Olympia, Washington. I have two teenage boys who currently work in the retail sector, and they also go to community college.

Please restore overtime rights to assure that most workers actually get meaningful overtime pay.

People who work in retail are constantly pressured to work more hours than they want to. This problem especially gets in the way of young people who are trying to go to school to improve their lives over the long term, and parents of young children who need to arrange for child care.

Restoring and even expanding overtime pay requirements not only forces employers to respect workers' time, but also encourages them to hire more people instead of stretching the people they have.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Victoria Divian)

Dear Director Sacks:

My name is Victoria and I live in Lakewood. I've worked for Fred Meyer for 3 years.

I urge you to restore overtime rights so everyone who is paid less than triple the minimum wage gets overtime pay when they work overtime hours, over 40 hours a week.

I've seen more managers stressed out especially during the holidays to put in more overtime or being forced to work overtime without any recognition or pay. They have families too who need them at home as well.

If employers had to pay overtime to salaried managers or managers making over three times minimum wage, logically speaking they would lower the amount of overtime needed by these higher level managers and pass down the time to those who are struggling to pay their bills and support their families, the lower level workers.

I would gladly volunteer to take on some overtime so my high level managers could go spend the holidays with their families.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Julie Diana Bergmans)

Dear Director Sacks:

My name is Julie, and I live in Rainer Beach. I have worked a vintage clothing reseller for ten years. While self employed, my partner is not. He works for a large corporation, and I’ve seeb the toll that workweeks over 40 hours can take.

I think that anyone making less than 75,000 a year should absolutely have a right to overtime pay when they work more than 40 hours a week. I also believe there should be caps on how many hours ANY employee should be asked to work within a week, but that’s not under consideration here.

Overtime is taxing. It keeps workers away from their homes and families. Sometimes the hours happen at home, with business calls to other countries. It’s clear to me that in some part, businesses allow the hours to be stacked on because there’s no extra cost to them. Time and a half is deserved and appropriate for hours in excess of 40. Since I’ve been self employed, and partnered with someone salaried I was unaware that there were so many workers toiling without this basic benefit. This needs to be restored, for anyone making 75,000 or less. That’s nothing here in Seattle.

If employers were required to pay time and a half, I think we would see a few positive changes. In cases where companies run their existing employees ragged, you might see new hires to share the burden, reducing unemployment, and allowing the previously overworked more time for home, family and recreation, which serves their mental health. I think it will be good for the economy. In businesses that continue to have somewhat regular overtime, employees will be better able to afford their housing, food at the store, pay bills on time, and maybe have some discretionary funds. There’s no downsides to overtime pay, except kvetching from companies used to abusing their staff.

Allison Drake 20 days ago

(Submitted on 12/291/8 by Nancy Stieg)

Dear Director Sacks:

My name is Nancy Stieg and I have lived and worked in Washington State for the Boeing Co for 35 years. Most of these years have been as an unrepresented salary worker

I think that if you are a salary employee and not in management, you should be paid for the overtime hours your work. Any time increments over 40 hrs per week should be paid at overtime rates.

L&I should restore overtime rates because my employer has demanded mandatory overtime from my organization for more than the last 4 years and does not pay anything until 4 hrs, in 2 hr increments have been completed beyond the 40 hr work week. There is No Pay for those 4 hrs weekly. That’s 16 to 20 hrs unpaid work time per month, when demanded. This shows a lack of responsible staffing and process failures that then requires us to be placed on mandatory overtime. This policy provides a way for an employer to cheat their workforce out of their personal time and remain understaffed and poorly operating instead of forcing them to assess the root cause and make process improvements and to hire at appropriate staffing levels to maintain success

If employers were required to pay overtime for all worked hours beyond the 40 hour workweek, employers would be more interested in investigating root causes that create the need for excessive overtime and make process improvements to improve productivity and quality in order to prevent overtime requirements. It could also mean these businesses will need to investigate their staffing levels and work load leveling which in turn creates more profit for the business and its stakeholders
I request this for all salary, non represented, non management employees at all salary levels.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Michael Whalen)

Dear Director Sacks:

My name is Michael Whalen and I live in University Place, I've been working as a Grocery clerk for three years.

I'm urging you to restore overtime rights so that everyone paid less than triple the minimum wage (about $75,000/year) gets overtime when they work overtime hours.

L&I overtime rights for workers over 40 hours should be given to help and aid workers financially. Working constantly more than 40 hours, and not reaping in more money than usual is morally wrong. If L&I and 40 hour week can be secured than make it happen.

This will help workers with financials if working overtime and people will be more wiling to put in the work knowing they will be paid much more. This also shows how our state cares about working people. Workers without a Union will have some support by the state to achieve the pay they deserve for their labor. This willl also help struggling college students and former students drowning in debt to get more finances.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Isaac Crane)

Dear Director Sacks:

My name is Isaac Crane. I have lived and worked in Washington all of my life, part of which as an “agricultural worker”. We are all hardworking people and deserve to be compensated for our time.

Please give us back the overtime!

I used to have to work 60 hours a week just ro pay the rent with no overtime.

Making this change means there will be more money to go into the local economy, therefore more small businesses.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Brie Gyncild)

Dear Director Sacks:

I'm Brie Gyncild. I live in Seattle. I've worked a number of jobs over the years.

I know how challenging it can be to make ends meet — and to attend to the practical matters in life (caring for children or aging parents, participating in community activities, etc.) while working for a low wage. Working extra time without extra pay is not only unfair but it compromises quality of life, as it takes time away from other important priorities.

Workers should get paid for their time, period. If the agreed-upon time is 40 hours per week, there should be additional compensation for anything more than that. It's one thing if you're a top manager making $200K on a salary, with lots of other perks and a personal stake in the success of a company. It's another thing if you're a worker bee, making $70K, expected to give more time to the company than you have previously committed. Working overtime is by definition going above and beyond the call of duty, and it should be rewarded with overtime pay.

Restoring overtime rights for those who make less than $75K a year will improve quality of life for so many workers, recognize the importance of those workers' contributions, and – frankly – encourage employers to find efficiencies that minimize the necessity for overtime hours.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Virgene Link-New)

Dear Director Sacks:

My name is Virgene and I've worked in the state since 1967.

Everyone deserves overtime rights.

We have a basic work week of 40 hours. We plan our weeks around that time. When overtime infringes, it is good to be recognized for the time by receiving extra pay.

More money in the pockets of employees, is returned to the community! This is a win-win situation.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Wayne R. Kaplan-Coleman)

Dear Director Sacks:

I’m Wayne and I am a business owner in Stevenson, and an employee in Oregon. I am on salary at the Oregon job, and was at my business in Stevenson

I think the idea of “exempt employees” is abused by most companies. The “triple minimum” idea mentioned above seems appropriate.

We need to insure that all employees are treated fairly, and properly recompensed for their labor. When I have accepted salaried positions, I have typically been required to work 50 plus hours a week. Never has the position gone the ther direction. (Less then 40). Companies use this technique to get labor for cheaper.

Either people will have more time to spend wit their families, or the consumer market will gain by more people spending more money. Some company expenses will go up, so there could be some price increases on goods and services.

Allison Drake 20 days ago

(Submitted on 12/29/18 Arthur D. Somers)

Dear Director Sacks:

My name is Art, and I've been a bus driver in Hoquiam for 5 years

I think any time an employee works over 40 hrs per week he/she should be paid time & half per hour for their labors.

Restoring overtime is putting $ in the hands of people who need it & will put it right back into the economy will benefit ALL members of society .

It helps the economy grow & prosper .

Allison Drake 20 days ago

(Submitted on 12/29/18 by Alexander Witherspoon)

Dear Director Sacks:

Reinstate the Overtime rule or Amazon will bleed their workers dry.

Overtime pay should always be required for all workers who work more than 40 hours in 1 week.
Refusal to reinstate the Overtime Rule sends a clear message to companies that they can financially abuse their salaries workers. It closes a loophole that allows them to gain free labor at the expense of all workers.

Reinstate the Overtime Rule, and stop companies from forcing salaried workers to work longer hours.
Mandating Overtime increases based on the combination of Overtime trigger conditions would be nice as well (eg, over 40 hours on a federal holiday would be double time, not x1.5)

Allison Drake 20 days ago

(Submitted on 12/29/18 by Eric Sun)

Dear Director Sacks:

My name is Eric Sun and I live in Bellevue. I’ve worked as a food and beverage operations manager for 1 year.

I’m urging you to restore overtime rights so that everyone paid less than triple the minimum wage (about $75000/year) gets paid overtime when they work overtime hours.

L&I should restore overtime rights because during this year I’ve clocked in 50 hours minimum and on some weeks due to business levels 70-80 hours. I’ve seen other associates being forced to do the same thing without compensation. I saw my other coworker work 70-80 hours a week for about a month when he lost his assistant manager. Being forced to work that many hours without additional compensation is ridiculous.

If employees had to pay time-and-a-half for any hours worked over 40 hours it would make it so that the lack of a social life or even time to relax on the weeks that you had to work 6/7 days with 60+hours slightly work it.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Kory Welsch)

Dear Director Sacks:

My name is Kory Welsch, and I live in West Richland Washington. I’ve worked as a distribution center manager for 3 years.

I think that workers making less than three times the minimum wage should receive overtime pay for hours worked over 8 in a workday.

For a time after being promoted to my current position, I also did not receive overtime pay for hours worked. This effectively lowered my pay rate over the course of a year to less than that of some of my employees. This unfair practice of salary pay leaves the power in the hands of the employer. Enforcing overtime pay would even the power balance between companies and workers. Also, when overtime pay was federally enacted, the pay amount above which workers received overtime was much higher, but inflation has eroded that difference and employers take advantage of this fact.
As mentioned above, this would help rebalance some of the power dynamic between workers and companies, and give workers more choice in their employment. People should have freedom with their employment just like they do with every other area of their life.

Allison Drake 20 days ago

(Submitted on 12/29/18 by Joe)

Dear Director Sacks:

My name is Joe and I live in Walla Walla, WA.

I believe you should be paid overtime over 40 hrs per week no matter what your salary is.

I want L&I to restore overtime rights because businesses should not be alliwed to take advantage of employees

Restoring overtime means people will be required to work more normal shifts with more time for home..work/life balance. And, if more work is needed, perhaps more employees will be hired. Or at the very least, if more work is needed, employees will receive fair compensation.

I dont care how much $$ you make on salary…you should never be required to work more than a few hours over 40 in a week without being compensated. If am employer is requiring/expecting you to work…you should be paid. A salary is based on a 40 hr. work week..so basically it's taking advantage of the employee when pushing them to work more. Joe Walla Walla, WA

Allison Drake 20 days ago

(Submitted on 12/29/18 by Jonathon Kent)

Dear Director Sacks:

My name is Jonathon Kent. I live in Everett.

I think everyone being paid less than triple the minimum wage should be paid overtime.

As the laws are currently written, salaried employees, particularly those who aren't making much more than other employees, are often regularly required to work 50-60 hours per week by default, simply to avoid paying for another day or two every week.

Restoring overtime rights will create additional jobs, as employers will likely choose to hire more people to cover that time. It will also Empire the increasingly coming phenomenon of working class people getting forced to work what essentially amounts to a job and a half worth of time for a single job's pay.

Allison Drake 20 days ago

I am strongly in favor of the updated rules for exempt employees. In my experience, the exemption rules are frequently used as a way to require overtime without paying for it. The increased threshold will drive the conversation about what is the highest value task that an employee can do for the employer. Thank you for updating the rules. Eric Swagerty

Eric Swagerty 20 days ago

I am writing on behalf of Service Alternatives, Inc., where I am the CEO. Service Alternatives is a multi-faceted human services organization with a clear vision and strong values. We support individuals and families of all ages, backgrounds, and abilities and provide a spectrum of services that include employment services, residential services, wraparound/kinship services, foster care, school-based services, independent living support, consultation, and training. We are a large employer in Washington State, with close to 500 employees.

While we recognize and agree with the need to periodically update regulations, we are deeply concerned about the proposed changes to the overtime exemption rule. We have exempt employees that work in a variety of executive, administrative and professional positions, with most of them directly responsible for management of services to vulnerable youth and adults in our state.

As a human service provider, our operating budget is dictated by the remuneration rates set in our contracts by the state of Washington. When faced with in an increase in costs, we do not have the option of “raising prices” or otherwise passing on the costs. Like many in the social service industry, our structure is already flat and lean. While the state may believe that employers will be able to bear the proposed increased salary costs, the reality is that we cannot give what we do not have. If the proposed rule is implemented, we will be faced with making difficult decisions that will have a series of negative impacts on our organization, our employees, and the clients and communities we serve.

Our budgets run extremely tight. When we face an increase in costs in one area, our only option is to make cuts in another area. If the salary level is increased so dramatically and abruptly, there will be a variety of impacts.

Impact on employees if we raise some salaries to meet the new threshold:
• Positions may be eliminated: Depending on the final salary threshold, we will not be able to afford the increase for everyone currently employed in an exempt position. One outcome could be the elimination of positions. Within a lean structure, this means that employees who already have large workloads will have to absorb additional responsibility.
• Some benefits may be cut: These could include paid vacation time, education benefits, and health benefits. Additionally, out of pocket costs to employees (such as health plan premium contributions) would have to be increased. As an HR professional, I can attest that benefits are often more important in attracting and retaining staff than the salary alone. If employees receive a raise but lose benefits, they will not view that as an improvement to their overall compensation.
• Loss of performance-based increases: If regulations set a salary threshold that is already difficult for us to meet, it eliminates the possibility of having any variance in pay based on performance. There will be no merit increases or bonuses, only the increase mandated each year by the salary threshold. This kind of approach to compensation contributes to a workplace where there is no benefit to exceeding minimum performance standards.
• Salary compression: As budgets are adjusted to increase the pay of one set of exempt employees, we will not be able to afford pay increases for others. This could lead to a structure where employees have less incentive to move higher/into leadership positions, as those positions will not be paid a higher salary than positions with lower levels of responsibility.

Impact if we reclassify currently exempt employees as non-exempt:
• Loss of workplace flexibility: The nature of our work involves providing intensive client support 24-7. This means that exempt employees are regularly working non-traditional schedules, to provide support and crisis management to direct service employees and clients. One of the greatest benefits our exempt employees regularly cite is their ability to work a flexible schedule. If client needs result in a long and demanding work week, they can compensate the following week. They have the flexibility to schedule a personal appointment or attend an event at their child’s school. If we move employees to non-exempt status, necessitating a tightly controlled hourly schedule, they will lose the flexibility they treasure.
• Perceived loss of status: Several years ago, we reclassified two previously exempt job categories to non-exempt. We were very surprised at the reaction of those employees. It was widely regarded as a demotion to a non-professional position, although nothing about their title or status in the organization had changed. Although it may seem to make sense that qualifying for overtime pay would make anyone happy, my experience has been that employees find it an issue of professional pride to be in a position that is classified as exempt.
• Positions may still be eliminated: Due to the nature of our work, it is not always an option to enforce a practice of "no overtime." The health and safety needs of our clients and employees must come first. Rising overtime costs could mean that budgets will be strained to the point where positions will need to be eliminated.

Impact on clients and communities:
• Decreased stability related to staff turnover: Our clients’ emotional and behavioral stability is strongly related to the level of consistency in their day to day lives. Any disruption to their regular routine has a profound impact on their well-being. An increase in staff turnover will have impacts that range from minor to more serious, such as disruption of placement.
• Increased risk to health and safety: Clients, their families, and communities count on us to provide a safe and healthy environment where they can reach their potential. Changes that lead to increased staff turnover and a decrease in managerial support to direct service staff can pose a direct threat to our ability to consistently ensure health and safety.
• Decreased quality of service: We pride ourselves on providing excellent service to our clients and communities. Over the past several years we have been faced with increasing costs because of state mandates (increased minimum wage, sick and safe leave, the upcoming paid FMLA leave), while our contract funding has not kept pace with these new requirements. As regulatory cost increases continue to outpace funding it becomes increasingly difficult, if not impossible, to do work in the state of Washington. For the people we serve, this could mean a loss of opportunity to live in and participate as full members of their communities.

Based on L & I’s current proposal, anywhere from 75-90% of our currently exempt staff would fall under the proposed salary threshold. As you can see, for us the prospect of needing to meet that threshold is quite dismal.

Given that the U.S. Department of Labor is preparing to propose updates to the federal overtime regulations in early 2019, it would be preferable for Washington to wait for and align to those standards. If instead the state decides to proceed with this ill-considered course of action, it should be phased in over a substantial number of years. The phasing in periods should be consistent across geography, industry and employer size. To do otherwise relies on overly broad assumptions about what makes an employer more “able” to meet the requirement, while increasing administrative complexity.

In closing, we urge that you reconsider the proposed regulations and implementation timeline. While the intent of this regulatory update is to improve the lives of employees and contribute to economic stability, the current proposal would have extremely negative impacts for many of the people it is purporting to help. We at Service Alternatives are deeply committed to our employees, clients, and communities. It is on their ultimate behalf that we ask for this consideration.

Thank you for the opportunity to comment.

Belinda Kindschi, MSW
Chief Executive Officer
Service Alternatives, Inc.

Belinda Kindschi 21 days ago