WSR 15-03-005 PROPOSED RULES OFFICE OF FINANCIAL MANAGEMENT [Filed January 7, 2015, 4:17 p.m.]
Original Notice.
Proposal is exempt under RCW 34.05.310(4) or 34.05.330(1).
Title of Rule and Other Identifying Information: WAC 357-28-260 At what rate must overtime be compensated?, 357-28-285 When must compensatory time be paid in cash?, 357-31-150 Can an employee be paid for accrued sick leave?, 357-31-225 When employees separate from state service, are they entitled to a lump sum payment of unused vacation leave?, 357-31-245 What happens if an employee uses accrued vacation leave, accrued sick leave, accrued compensatory time, recognition leave, accrued temporary salary reduction leave, or receives holiday pay during a period when he/she is receiving time loss compensation?, 357-31-255 What types of leave may an employee use when absent from work or arriving late to work because of inclement weather?, 357-31-265 What is the effect of suspended operations on employees who are not required to work during the closure?, 357-31-390 What criteria does an employee have to meet to be eligible to receive shared leave?, 357-31-435 Must employees use their own leave before using shared leave?, 357-31-530 Under the Family and Medical Leave Act of 1993, how is an eligible employee defined?, 357-31-740 What is temporary salary reduction (TSR) leave and which employees are eligible to earn TSR leave?, and 357-31-745 What provisions apply to temporary salary reduction (TSR) leave?
Hearing Location(s): Office of Financial Management (OFM), Capitol Court Building, 1110 Capitol Way South, Suite 120, Conference Room 110, Olympia, WA 98501, on May 14, 2015, at 8:30 a.m.
Date of Intended Adoption: May 14, 2015.
Submit Written Comments to: Kristie Wilson, OFM, P.O. Box 47500, e-mail Kristie.wilson@ofm.wa.gov, fax (360) 586-4694, by May 7, 2015. For OFM tracking purposes, please note on submitted comments "FORMAL COMMENT."
Assistance for Persons with Disabilities: Contact OFM by May 7, 2015, TTY (360) 753-4107 or (360) 586-8260.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: We are proposing revising these rules to remove language that specifically applies to TSR which was effective July 1, 2011, through June 29, 2013.
In addition to removing the language that pertains to TSR, we are also proposing removing the temporary layoff language in WAC 357-31-390. This language was in effect during the 2009 - 2011 fiscal biennium only.
Reasons Supporting Proposal: ESSB 5860 was passed during the 2011 legislative session. Under this bill, employees who earned a full-time salary of more than $2500.00 per month were subject to a three percent reduction in salary and in exchange received TSR leave. These WACs need to be amended or repealed since the time frame has expired.
Statutory Authority for Adoption: Chapter 41.06 RCW.
Statute Being Implemented: RCW 41.06.150.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: OFM, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Kristie Wilson, 128 10th Avenue S.W., Olympia, WA 98501, (360) 407-4139.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Rules related only to internal government operations. No impact to businesses or industry.
A cost-benefit analysis is not required under RCW 34.05.328. Rules are related to internal government operations and are not subject to violation by a nongovernmental party. See RCW 34.05.328 (5)(b)(ii) for exemption.
January 7, 2015
Roselyn Marcus
Assistant Director of
Legal and Legislative Services
AMENDATORY SECTION (Amending WSR 11-19-091, filed 9/20/11, effective 10/24/11)
WAC 357-28-260 At what rate must overtime be compensated?
Overtime worked by an overtime eligible employee must be compensated at a rate of one and one-half times the employee's regular rate. ((Compensation for overtime worked between July 1, 2011, and June 29, 2013, will not be subject to the three percent temporary salary reduction under chapter 39, Laws of 2011.))
AMENDATORY SECTION (Amending WSR 11-19-091, filed 9/20/11, effective 10/24/11)
WAC 357-28-285 When must compensatory time be paid in cash?
(1) The accumulation of unused compensatory time of any amount that exceeds two hundred forty hours, or four hundred eighty hours for employees engaged in public safety or emergency response activity, must be paid in cash at the regular rate earned by the employee at the time the employee receives such payment. ((Payments made between July 1, 2011, and June 29, 2013, will not be subject to the three percent temporary salary reduction under chapter 39, Laws of 2011.))
(2) Upon termination of employment, an employee must be paid for unused compensatory time in accordance with applicable state and federal law. ((Payments made between July 1, 2011, and June 29, 2013, will not be subject to the three percent temporary salary reduction under chapter 39, Laws of 2011.))
AMENDATORY SECTION (Amending WSR 11-19-091, filed 9/20/11, effective 10/24/11)
WAC 357-31-150 Can an employee be paid for accrued sick leave?
In accordance with the attendance incentive program established by RCW 41.04.340, employees are eligible to be paid for accrued sick leave as follows:
(1) In January of each year, an employee whose sick leave balance at the end of the previous year exceeds four hundred eighty hours may elect to convert the sick leave hours earned in the previous calendar year, minus those hours used during the year, to monetary compensation.
(a) No sick leave hours may be converted which would reduce the calendar year-end balance below four hundred eighty hours.
(b) Monetary compensation for converted hours is paid at the rate of twenty-five percent and is based on the employee's current salary. ((Monetary compensation for converted hours which is paid between July 1, 2011, and June 29, 2013, will not be subject to a temporary salary reduction.))
(c) All converted hours are deducted from the employee's sick leave balance.
(d) Hours which are accrued, donated and returned from the shared leave program in the same calendar year may be included in the converted hours for monetary compensation.
(e) For the purpose of this section, hours which are contributed to a sick leave pool per WAC 357-31-570 are considered hours used.
(2) Employees who separate from state service because of retirement or death must be compensated for their total unused sick leave accumulation at the rate of twenty-five percent. The employer may deposit equivalent funds for a retiring employee in a medical expense plan as provided in WAC 357-31-375. Compensation must be based on the employee's salary at the time of separation. ((Compensation for unused sick leave which is paid between July 1, 2011, and June 29, 2013, will not be subject to a temporary salary reduction.)) For the purpose of this subsection, retirement does not include "vested out-of-service" employees who leave funds on deposit with the department of retirement systems (DRS).
(3) No contributions are to be made to the department of retirement systems (DRS) for payments under subsection (1) or (2) of this section, nor are such payments reported to DRS as compensation.
AMENDATORY SECTION (Amending WSR 11-19-091, filed 9/20/11, effective 10/24/11)
WAC 357-31-225 When employees separate from state service, are they entitled to a lump sum payment of unused vacation leave?
(1) When an employee who has completed six continuous months of employment separates from service by reason of resignation with adequate notice, layoff, trial service reversion, separation, dismissal, retirement, or death, the employee is entitled to a lump sum payment of unused vacation leave. The payment is computed by using the formula published by the office of financial management. ((Payments made between July 1, 2011, and June 29, 2013, will not be subject to a temporary salary reduction.)) No contributions are to be made to the department of retirement systems (DRS) for lump sum payment of excess vacation leave accumulated under the provisions of WAC 357-31-215(2), nor shall such payment be reported to the DRS as compensation.
(2) General government permanent employees may defer the payment of accumulated vacation leave to which they are entitled for a period of thirty calendar days in any of these circumstances:
(a) If the separation resulted from a layoff, trial service reversion, or conclusion of a project or nonpermanent appointment and there is a reasonable probability of reemployment; or
(b) If the separation resulted from an employee returning to a classified position from an exempt position under the provision of RCW 41.06.070.
AMENDATORY SECTION (Amending WSR 11-19-091, filed 9/20/11, effective 10/24/11)
WAC 357-31-245 What happens if an employee uses accrued vacation leave, accrued sick leave, accrued compensatory time, recognition leave, ((accrued temporary salary reduction leave,)) or receives holiday pay during a period when he/she is receiving time loss compensation?
An employee who uses accrued vacation leave, accrued sick leave, accrued compensatory time, recognition leave, ((accrued temporary salary reduction leave,)) or receives holiday pay during a period when he/she is receiving time loss compensation is entitled to time-loss compensation and full pay for vacation leave, sick leave, compensatory time, recognition leave, ((temporary salary reduction leave,)) and holiday pay.
AMENDATORY SECTION (Amending WSR 11-19-091, filed 9/20/11, effective 10/24/11)
WAC 357-31-255 What types of leave may an employee use when absent from work or arriving late to work because of inclement weather?
When the employer determines inclement weather conditions exist, the employer's leave policy governs the order in which accrued leave and compensatory time may be used to account for the time an employee is absent from work due to the inclement weather. The employer's policy must allow the use of accrued vacation leave, accrued sick leave up to a maximum of three days in any calendar year, ((accrued temporary salary reduction leave,)) and the use of leave without pay in lieu of paid leave at the request of the employee. The employer's policy may allow leave with pay when an employee is absent due to inclement weather.
AMENDATORY SECTION (Amending WSR 11-19-091, filed 9/20/11, effective 10/24/11)
WAC 357-31-265 What is the effect of suspended operations on employees who are not required to work during the closure?
At a minimum, employees not required to work during suspended operations must be allowed to use their personal holiday, or accrued vacation leave((, or accrued temporary salary reduction leave)). Overtime eligible employees must also be allowed to use accrued compensatory time to account for the time lost due to the closure. Overtime eligible employees may be allowed to use leave without pay and given an opportunity to make up work time lost (as a result of suspended operations) within the work week. For overtime eligible employees, compensation for making up lost work time must be in accordance with WAC 357-28-255, 357-28-260, and 357-28-265 if it causes the employee to work in excess of forty hours in the workweek, and must be part of the employer's suspended operations procedures. The amount of compensation earned under this section must not exceed the amount of salary lost by the employee due to suspended operation.
If the employer's suspended operations procedure allows, employees may be released without a loss in pay.
AMENDATORY SECTION (Amending WSR 11-19-091, filed 9/20/11, effective 10/24/11)
WAC 357-31-390 What criteria does an employee have to meet to be eligible to receive shared leave?
An employee may be eligible to receive shared leave if the agency head or higher education institution president has determined the employee meets the following criteria:
(1) The employee:
(a) Suffers from, or has a relative or household member suffering from, an illness, injury, impairment, or physical or mental condition which is of an extraordinary or severe nature;
(b) The employee has been called to service in the uniformed services;
(c) A state of emergency has been declared anywhere within the United States by the federal or any state government and the employee has the needed skills to assist in responding to the emergency or its aftermath and volunteers their services to either a governmental agency or to a nonprofit organization engaged in humanitarian relief in the devastated area, and the governmental agency or nonprofit organization accepts the employee's offer of volunteer services; or
(d) The employee is a victim of domestic violence, sexual assault, or stalking as defined in RCW 41.04.655((; or
(e) During the 2009-2011 fiscal biennium only, an employee whose monthly full-time equivalent base salary is two thousand five hundred dollars or less is eligible to use shared leave in lieu of temporary layoff as described in chapter 32, Laws of 2010)).
(2) The illness, injury, impairment, condition, call to service, emergency volunteer service, consequence of domestic violence, sexual assault, or stalking, ((or temporary layoff under chapter 32, Laws of 2010, has caused,)) or is likely to cause, the employee to:
(a) Go on leave without pay status; or
(b) Terminate state employment.
(3) The employee's absence and the use of shared leave are justified.
(4) The employee has depleted or will shortly deplete their:
(a) Compensatory time, recognition leave as described in WAC 357-31-565, personal holiday, accrued vacation leave, ((accrued temporary salary reduction leave,)) and accrued sick leave if the employee qualifies under subsection (1)(a) of this section; or
(b) Compensatory time, recognition leave as described in WAC 357-31-565, personal holiday, accrued vacation leave, ((accrued temporary salary reduction leave,)) and paid military leave allowed under RCW 38.40.060 if the employee qualifies under subsection (1)(b) of this section; or
(c) Compensatory time, recognition leave as described in WAC 357-31-565, personal holiday, ((accrued temporary salary reduction leave,)) and accrued vacation leave if the employee qualifies under (1)(c) ((or (d))) of this section((; or
(d) Compensatory time, recognition leave as described in WAC 357-31-565, accrued temporary salary reduction leave, and accrued vacation leave if the employee qualifies under subsection (1)(e) of this section)).
(5) The employee has abided by employer rules regarding:
(a) Sick leave use if the employee qualifies under subsection (1)(a) of this section; or
(b) Military leave if the employee qualifies under subsection (1)(b) of this section.
(6) If the illness or injury is work-related and the employee has diligently pursued and been found to be ineligible for benefits under chapter 51.32 RCW if the employee qualifies under subsection (1)(a) of this section.
AMENDATORY SECTION (Amending WSR 11-23-052, filed 11/10/11, effective 12/13/11)
WAC 357-31-435 Must employees use their own leave before using shared leave?
Employees who qualify for shared leave under WAC 357-31-390 (1)(a) must first use all compensatory time, recognition leave as described in WAC 357-31-565, personal holiday, sick leave, ((temporary salary reduction leave,)) and vacation leave that they have accrued before using shared leave. Employees who qualify under WAC 357-31-390 (1)(b) must first use all of their compensatory time, recognition leave as described in WAC 357-31-565, personal holiday, accrued vacation leave, ((accrued temporary salary reduction leave,)) and paid military leave allowed under RCW 38.40.060 before using shared leave. Employees who qualify under WAC 357-31-390 (1)(c) and (d) must first use all compensatory time, recognition leave as described in WAC 357-31-565, personal holiday, ((temporary salary reduction leave,)) and vacation leave that they have accrued before using shared leave. ((Employees who qualify for shared leave under WAC 357-31-390 (1)(e) must first use all compensatory time, recognition leave as described in WAC 357-31-565, temporary salary reduction leave, and vacation leave that they have accrued before using shared leave.))
AMENDATORY SECTION (Amending WSR 14-06-008, filed 2/20/14, effective 3/24/14)
WAC 357-31-530 Under the Family and Medical Leave Act of 1993, how is an eligible employee defined?
In accordance with 29 C.F.R. Part 825, an eligible employee is an employee who has worked for the state for at least twelve months and for at least one thousand two hundred fifty hours during the previous twelve-month period. Paid time off such as vacation leave, sick leave, ((temporary salary reduction leave,)) personal holiday, compensatory time off, or shared leave and unpaid leave is not counted towards the one thousand two hundred and fifty hour eligibility requirement.
REPEALER
The following sections of the Washington Administrative Code are repealed:
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