Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-10-074.

     Title of Rule and Other Identifying Information: Chapter 296-128 WAC, Minimum wages.

     Hearing Location(s): Department of Labor and Industries, 7273 Linderson Way S.W., S117, Tumwater, WA, on August 29, 2008, at 9:00 a.m.

     Date of Intended Adoption: October 1, 2008.

     Submit Written Comments to: Sally Elliott, Department of Labor and Industries, P.O. Box 44400, Olympia, WA 98504-4400, e-mail yous235@lni.wa.gov, fax (360) 902-5292, by August 29, 2008.

     Assistance for Persons with Disabilities: Contact Sally Elliott by August 1, 2008, (360) 902-6411 or yous235@lni.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The rule making is in response to Bostain v. Food Express, Inc., 159 Wn.2d 700, 153 P.3d 846 (2007). In that case, the court concluded that RCW 49.46.130 (2)(f) requires overtime compensation for hours worked over forty per week for interstate driving, including hours spent working out of state. Current rules require overtime pay for truck drivers only for their hours worked within Washington. These rules are not consistent with the decision under Bostain and need to be amended.

     The court's ruling directly affects two regulations with corresponding policies and enforcement practices. The court's decision has invalidated portions of WAC 296-128-011 and 296-128-012 where the rules define hours for purposes of overtime provisions as hours worked only within Washington state.

     Employers may have relied on the two regulations before Bostain. Employers who paid workers on a basis other than an hourly basis with time and a half for overtime hours will have the opportunity to get formal review of their compensation systems.

     WAC 296-128-011 and 296-128-012 are being updated to reflect the March 2007 Supreme Court's decision in Bostain, by deleting "within the state" throughout the rules and adding language that allows employers to submit their compensation systems to the department for review and approval.

     Employers are already able to submit their compensation systems to the department. However, the added language will expressly require the department to review compensation systems for time periods before March 1, 2007 (the date of the Bostain decision) of employers who relied on the department's regulations. The added language requires the department to review compensation systems submitted by employers, and approve such compensation systems for the time period for which the employers seek approval if the department's review finds that they complied with RCW 49.46.130 (2)(f) for hours worked both in and out of the state of Washington. The added language does not change the employer's obligation to pay overtime for hours worked within and outside Washington under Bostain and RCW 49.46.130 (2)(f). The department will not approve a compensation system for any time period unless the compensation system is reasonably equivalent to RCW 49.46.130 for hours worked both in and out of the state of Washington.

     Reasons Supporting Proposal: See Purpose above.

     Statutory Authority for Adoption: RCW 43.22.270 and 49.46.130.

     Statute Being Implemented: RCW 43.22.270 and 49.46.130.

     Rule is necessary because of state court decision, Bostain v. Food Express, Inc., 159 Wn.2d 700, 153 P.3d 846 (2007).

     Name of Proponent: Department of labor and industries, governmental.

     Name of Agency Personnel Responsible for Drafting: Rich Ervin, Tumwater, Washington, (360) 902-5310; Implementation and Enforcement: Patrick Woods, Tumwater, Washington, (360) 902-6348.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. The department did not conduct a small business economic impact statement, since the proposed [changes] does [do] not impose any costs on businesses in an industry (per RCW 19.85.030(1)).

     A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Sally Elliott, Department of Labor and Industries, P.O. Box 44400, Olympia, WA 98504-4400, e-mail yous235@lni.wa.gov.

July 23, 2008

Judy Schurke

Director

OTS-1709.1

AMENDATORY SECTION(Amending WSR 89-22-120, filed 11/1/89, effective 12/2/89)

WAC 296-128-011   Special recordkeeping requirements.   (1) In addition to the records required by WAC 296-128-010, employers who employ individuals as truck or bus drivers subject to the provisions of the Federal Motor Carrier Act shall maintain records indicating the base rate of pay, the overtime rate of pay, the hours worked by each employee for each type of work, and the formulas and projected work hours used to substantiate any deviation from payment on an hourly basis pursuant to WAC 296-128-012. The records shall indicate the period of time for which the base rate of pay and the overtime rate of pay are in effect.

     For the purposes of this section and WAC 296-128-012, "base rate of pay" means the amount of compensation paid per hour or per unit of work in a workweek of forty hours or less. A base rate of pay shall be established in advance of the work performed and may be based on hours or work units such as mileage, performance of specified duties, or a specified percentage of the gross proceeds charged for specified work. A base rate of pay shall not be established that will result in compensation at less than the minimum wage prescribed in RCW 49.46.020. "Overtime rate of pay" means the amount of compensation paid for hours worked ((within the state of Washington)) in excess of forty hours per week and shall be at least one and one-half times the base rate of pay.

     (2) The records required by this section shall be made available by the employer at the request of the department. Any current or past employee may obtain copies of the formula, the base rate of pay, the overtime rate of pay, and that employee's records. Job applicants seeking employment by the employer as truck or bus drivers subject to the provisions of the Federal Motor Carrier Act, may obtain copies of the formula, the base rate of pay, and the overtime rate of pay.

[Statutory Authority: RCW 43.22.270, 49.46.130 and 1989 c 104. 89-22-120, § 296-128-011, filed 11/1/89, effective 12/2/89.]

1.	Define work unit first. E.g., miles, loading, unloading, other.
2.	Average number of work units	=	Average number of work units accomplished per week
	per hour		Average number of hours projected to be worked per week
3.	Weekly Base Rate	=	Number of units per hour x 40 hours x base rate of pay
4.	Weekly Overtime rate	=	Number of units per hour x number of hours over 40 x overtime rate of pay
5.	Total weekly pay	=	Weekly base rate plus weekly overtime rate
6.	Uniform rate of pay	=	Total weekly pay
			Total work units

Example:

A truck driver is paid on a mileage basis for a two hundred thirty mile trip performed about ten times a week. The base rate of pay is twenty cents a mile. The overtime rate of pay is thirty cents a mile. The average length of the trip is four and one-half hours.

1.	2300 mi. divided by per week		45 hours per week	=	51.1 miles per hour
2.	(a)	51.1 miles/hour times 40 hours times .20/ mile = $408.80
	(b)	51.1 miles/hour times 5 hours = 255.5 miles
	(c)	255.5 miles times .30/mile = $76.65
	(d)	$408.80 plus $76.65 = $485.45 divided by 2300 miles = 21.1 cents mile

     (b) In using a formula to determine a rate of pay, the average number of hours projected to be worked and the average number of work units accomplished per week shall reflect the actual number of hours worked and work units projected to be accomplished by persons performing the same type of work over a representative time period within the past two years consisting of at least twenty-six consecutive weeks.

     (c) The department may evaluate alternative rates of pay and formulas used by employers in order to determine whether the rates of pay established under this section result in the driver receiving compensation reasonably equivalent to one and one-half times the base rate of pay for actual hours worked ((within the state of Washington)) in excess of forty hours per week.

     (2) Where an employee receives a different base rate of pay depending on the type of work performed, the rate that is paid or used for hours worked ((within the state of Washington)) in excess of forty hours per week shall be at least the overtime rate of pay for the type of work in which most hours were worked.

     (3) Compensation plans before March 1, 2007. An employer who relied on WAC 296-128-011(1) before March 1, 2007, may, within ninety days of the adoption of this subsection, submit a proposal consistent with subsection (1) of this section to the department for approval of a reasonably equivalent compensation system. The employer shall submit information to substantiate its proposal consisting of at least twenty-six consecutive weeks over a representative time period between July 1, 2005, and March 1, 2007. The department shall then determine if the compensation system includes overtime that was at least reasonably equivalent to that required by RCW 49.46.130 (1)(f). Approval of a reasonably equivalent compensation system under this subsection shall constitute continuing approval for the period the employer uses the compensation system.

Note 1:

On March 1, 2007, the Washington state supreme court ruled that overtime rate of pay includes hours worked within and outside the state of Washington for Washington-based employees. Bostain v. Food Express, Inc., 159 Wn.2d 700, 153 P.3d 846 (2007).

Note 2:

The adoption date of this subsection is October 21, 2008.

[Statutory Authority: RCW 43.22.270, 49.46.130 and 1989 c 104. 89-22-120, § 296-128-012, filed 11/1/89, effective 12/2/89.]