Paid Sick Leave Normal Hourly Compensation - Draft Administrative Policy
Participation for Paid Sick Leave Normal Hourly Compensation - Draft Administrative Policy has concluded.
On November 8, 2016, Washington voters passed Initiative 1433. The initiative, amongst other things, created new requirements in the Washington Minimum Wage Act for employers to provide employees with paid sick leave (PSL), and provided the Department of Labor & Industries (L&I) the authority to enforce and investigate retaliation claims.
To help employers implement these requirements, and to help workers understand their rights, L&I wants your feedback on the draft administrative policy addressing PSL normal hourly compensation.
We are asking the public to review the draft administrative policy by Monday, November 30, 2020.
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, November 18, 2020, from 10:00 a.m. to 12:00 p.m. More details on how to participate will be provided soon.
(Submitted on 11/30/20 by Rose Gundersen) Employment Standard:
Thanks for the opportunity to make public comments and for the staff who responded to Washington Retail’s request for a phone call on Nov 13th. We are submitting comments based on Washington Retail members’ input.
We seek alignment of Administrative Policy draft ES.B.2’s language to WAC 296-128-600, 296-128-670 and RCW 49.46.020. Therefore, adding language such as “non-discretionary bonuses” into section 4 of this draft creates mis-alignment, lack of clarity that could be subject to appeal or litigation. The Department steered a transparent process in the development of WACs related to paid sick leave.
In addition, adding language without substantive support or references in the body of your ES.B.2 draft also make it challenging for employers. For small businesses, lack of clarity and precision in your policy creates unnecessary burden and compliance fear.
Overall, we ask that Administrative Policy would be more helpful when written from the readers’ perspective instead of a place for the Department to express/record your interpretation of laws and rules. As it is, we can’t help but read it as such. There is room for clarity, alignment to RCW/WAC, and additional consideration for whom you write.
Thank you considering.
(Submitted on 11/4/20 by Rose Gundersen) I’d like clarity on “rate of pay calculation” vs “normal hourly compensation” for pay sick leave.
WAC 296-128-670(a) – this means commission is included into the rate of pay calculation
• 4. What earnings must an employer include when calculating an employee’s normal hourly compensation?
Employers must include the following earnings when calculating an employee’s normal hourly compensation, if the employee would have earned such amounts during the time the employee used paid sick leave: the employee’s hourly rate of pay, salaries, piece-rate earnings, commissions, non-discretionary bonuses, and differential rates of pay. See WAC 296-128-600(10). “Differential rates of pay” include different rates normally paid for the same work performed under differing conditions (such as a night or weekend shift), hazard pay (a higher rate for time spent working in hazardous conditions), and call-back pay (higher rates for working outside of normal hours).
Questions:
296-128-670 clearly states that commission should be included in the rate of pay calculation whether the pay is partially or wholly on a commission basis. The draft’s question #4, however, reference 296-128-600 which don’t seem to directly correlate to the question. In fact, 600 names items being excluded in the “normal hourly compensation.”
What is the difference between “normal hourly compensation” vs. “rate of pay”? These two terms, being referenced in two different WACs, could cause confusions. If one stops at 600 without reading 680, they could be in deep trouble.
Many employers can and do track employees' time down to the minute. On Question 2, when you state that "if the employer system tracks increments of less than one hour, then the employee must be paid in that increment," it would be very helpful if you can address whether that means that an employer that tracks time to the minute must allow employees to take sick leave in increments as small as one or just a few minutes. In part it's cumbersome to calculate and pay time down to the minute, but the bigger challenge is with managing schedules and being able to discipline for tardiness without appearing to retaliate against an employee who asks to take sick leave in a small increment.
(Submitted on 10/23/20 by Michaela Gould) I reviewed your draft sick leave policy; I think the examples should also include situations where the employee earns a night shift or weekend shift differential. Also, how would pay be calculated if they work 32 hours in a week, but are paid 40 if they work all their shifts?
Employees subject to Public Works Prevailing Wage rates have a provision for a 2 year period of frozen wage rates from the date that each contract is bid. Many employees work multiple jobs during a week and thus are subject to multiple rates. In the case of Truck Drivers they can work in various zones and multiple wage rates during a work week. Employers currently, at their discretion, pick one of the rates for payment of Paid Pick Leave. The current rate of the Collective Bargaining Agreements should be the rate used to determine the PSL Rate for these employees. All employees subject to Prevailing Wage rates published by L&I should default to the current CBA rates if employees are represented by a CBA.
Paid Sick Leave should not be mandated. It has created so much confusion and distrust between employees and management. It is not for vacation, it's not for days we can't work because of weather. It's amazing how many employees take sick leave during harvest because it's the highest wage of the year. This added to the ridiculously high minimum wage is creating an unsustainable climate for small businesses. This policy rewards employees for not coming to work.