Hours Worked - Draft Administrative Policy
Participation for "Hours Worked - Draft Administrative Policy" has concluded.
In order to be transparent and seek input from the diverse business and labor communities, L&I is currently seeking stakeholder feedback on the draft administrative policy addressing hours worked.
We are asking the public to review the draft administrative policy by Monday, June 14, 2021.
Feedback can be submitted directly to this page via the “Submit Comments” tab, or using an attached document via the “Upload Documents” tab.
Feedback can also be submitted via the ESRules@Lni.wa.gov email box. Feedback submitted to the email box will be uploaded to this engagement site.
A virtual stakeholder feedback session to discuss the content of the draft administrative policies is being held on Wednesday, March 10, 2021, from 2:00 p.m. to 4:00 p.m. Details on how to participate can be found on the timeline located on the "Review Draft Administrative Policies" page.
(Submitted on 2/16/21 by Holly Jones, Ceridian)
In response to Item 13., confirming that rest periods are considered “hours worked,” it would be helpful to have clarification of the expected rate of compensation to be used when paid rest periods are missed and must be compensated as an additional extension of the workday (10 minutes for every missed break).
The Washington Supreme Court’s decision in Washington State Nurses Ass’n v. Sacred Heart Medical Center, 175 Wn.2d 822, 287 P.3d 516 (2012) is helpful in confirming that, where paid rest breaks are missed, the workday is extended by 10 minutes for every missed break, and if this extension of workday results in work exceeding 40 hours in the workweek, then the employee is also entitled to overtime pay for the missed breaks. The trial court in the Sacred Heart case awarded the employees compensation based on time and one-half of the nurses’ “regular rate of pay,” which suggests that the regular rate of pay would be an appropriate rate of compensation for “hours worked” that arise out of missed rest breaks that do not result in overtime. (Additionally, the regular rate of pay is used to compensate missed rest breaks for piece-rate agricultural workers, as is explained in detail in ES.C.6.2).
However, because the facts of Sacred Heart involved a collective bargaining agreement, and because the underlying regulations for non-agricultural workers do not seem to specify the applicable rate for missed rest breaks, confirmation of the applicable rate and, perhaps, a few example calculations, would be helpful, particularly when considering employees who may perform multiple roles at differing rates through the week.
For example, consider an employee with multiple roles, one paid at a rate of $15/hour and a second paid at a rate of $25/hour:
If the employee misses a paid rest break while performing the $25/hour job, this rate in effect at the time the break was missed could also be the expected rate of compensation for the “hours worked” as a result of the missed break.
On the other hand, if the employee misses a paid rest break while performing the $15/hour job, again, arguably the rate in effect at the time the break was missed could be the expected rate of compensation for the “hours worked” as a result of the missed break.
The regular rate of pay, however, would pay based on a weighted average of the two job rates, which could be a lower rate than $25/hour (or higher than $15/hour).
In general, compensating missed rest periods at the regular rate of pay would be easier to administer, as it wouldn’t require tracking the specific rate in effect at the time a break was missed. But because there could be circumstances where an employee’s rate in effect at the time a break is missed would be higher than the regular rate, confirmation of the correct rate would be helpful guidance and would avoid inadvertent underpayments.
Additionally, can it be confirmed, for payroll and recordkeeping purposes, that missed rest breaks should be recorded as hours worked at the end of the relevant shift/workday?