EAP Pre-Draft Proposed Rule Language

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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 six months, the department has engaged stakeholders regarding the scope and content of the rulemaking, relevant data, and draft concepts for updates to the rules. Prior to filing the official CR-102 draft version, L&I wants your feedback on the first pre-draft of the proposed rule language.

We are asking the public to review the pre-draft version of the proposed rules and provide feedback by October 26, 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 six months, the department has engaged stakeholders regarding the scope and content of the rulemaking, relevant data, and draft concepts for updates to the rules. Prior to filing the official CR-102 draft version, L&I wants your feedback on the first pre-draft of the proposed rule language.

We are asking the public to review the pre-draft version of the proposed rules and provide feedback by October 26, 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.

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

The verbiage used in 296-128-540(c) is hard to decipher. Is the intent that the non-outside sales work not exceed 20 percent of the employee's workweek? If so, why not say that (see, e.g., 296-128-520(c)). As drafted, if the employer's nonexempt employees worked 1000 total hours, this language suggests the outside salesperson could work 200 hours "of a nature other than that described in (1)(a) and (b) - whatever that means.
Subpart (d) should be changed to read "Who is compensated by the employer on a guaranteed salary, commission, fee basis, or any combination thereof." Thanks.

Jeff James about 3 years ago

I would second what Beth Harvey said in regards to nonprofits and using the "proposed but not adopted threshold of $47.5K per year". The only thing I would propose adding is a five year phase-up from the current federal exempt level of $23,660. To double this threshold or increase even more would indeed harm smaller and even medium sized nonprofits who would need additional resources to compensate for the overtime, or raise salaries to meet a higher threshold. Phasing up allows those nonprofits and even small for profit business to raise additional dollars over a reasonable timeframe. This would align with what we have seen via the gradual increases in the minimum wage. Thanks for allowing me to give my feedback.

Peter Grignon about 3 years ago

1. Paragraph D on page 4 (Executive exemption), paragraph C on page 6 (Administrative exemption), paragraph C on page 8 (Professional exemption), and paragraph C on page 12 (Outside sales exemption) are extremely unclear as to the intent of the paragraph and how it affects the duties test. These paragraphs need to, at the very least, be re-written to clarify their intent. Further, if I understand the intent of these paragraphs correctly - and I am not certain I do - then I think it would be extremely difficult to measure and track the 20% of time established in these paragraphs. I cannot, as written, see what value these provisions add to the definitions of these exemptions.

2. I strongly urge the Department to use the proposed-but-not-adopted Federal salary threshold of $47.5K per year as its guide for establishing a threshold for exempt pay. I believe this calculates to around 1.8x the 2019 Washington minimum wage. I work for a nonprofit organization, and like many nonprofits we made changes to our compensation structure - some minor, some significant - to comply with the Federal rule change two years ago before it was held up in Federal court. I feel that the Federal threshold is reasonable, and to raise the overtime-eligible minimum salary higher than that would, in the case of my nonprofit, potentially cause financial hardship. At the very least I recommend that the Department give consideration to adopting some kind of sliding scale that does not overly burden smaller nonprofits and businesses with wages that they cannot afford to pay. Larger and for-profit employers may very well have the capacity to meet a higher threshold, but small organizations like mine simply do not have the resources to be able to meet a threshold that is 3x the Washington State minimum wage, and we are highly unlikely to ever be able to meet that high of a threshold.

Thank you for the opportunity to offer feedback.

Beth Harvey about 3 years ago