WSR 19-12-102
PROPOSED RULES
DEPARTMENT OF
LABOR AND INDUSTRIES
[Filed June 4, 2019, 6:46 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 18-07-092.
Title of Rule and Other Identifying Information: Chapter 296-128 WAC, Minimum wages, updates to exemptions for executive, administrative, professional, and outside salespersons.
Hearing Location(s): On July 15, 2019, at 2:00 p.m., at the Washington State Department of Labor and Industries Headquarters, Rooms S117/S118, 7273 Linderson Way S.W., Tumwater, WA 98501; on July 16, 2019, at 10:00 a.m., at The Swedish Club, Stockholm Hall, 1920 Dexter Avenue North, Seattle, WA 98109; on July 17, 2019, at 10:00 a.m., at Four Points by Sheraton Hotel and Conference Center, Whatcom Room, 714 Lakeway Drive, Bellingham, WA 98229; on August 5, 2019, at 10:00 a.m., at the Hal Holmes Community Center, Hal Holmes Room, 209 North Ruby Street, Ellensburg, WA 98926; on August 6, 2019, at 10:00 a.m., at SpringHill Suites by Marriott Kennewick Tri-Cities, Vista Hall, 7048 West Grandridge Boulevard, Kennewick, WA 99336; and on August 7, 2019, at 10:00 a.m., at the CenterPlace Regional Event Center, Large Meeting Room, 2426 North Discovery Place, Spokane Valley, WA 99216.
Date of Intended Adoption: December 3, 2019.
Submit Written Comments to: Joshua Grice, Employment Standards Program Manager, P.O. Box 44510, Olympia, WA 98504-4510 , email EAPRules@Lni.wa.gov, fax 360-902-5300, by September 6, 2019, 11:59 p.m.
Assistance for Persons with Disabilities: Contact office of information and assistance, phone 800-547-8367, by July 8, 2019.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule making is being proposed to update the Minimum Wage Act (MWA) exemptions for executive, administrative, professional (EAP), and outside salespersons. These proposed rules will:
| |
| • | Amend WAC 296-128-500, update the language which addresses the purpose of the rules. |
| • | Add WAC 296-128-505 (new), provide definitions. |
| • | Amend WAC 296-128-510, redefine duties test for an individual employed in an executive capacity. |
| • | Amend WAC 296-128-520, redefine duties test for an individual employed in an administrative capacity. |
| • | Amend WAC 296-128-530, redefine duties test for an individual employed in a professional capacity. |
| • | Amend WAC 296-128-535, redefine duties test and hourly rate for computer professionals. |
| • | Amend WAC 296-128-540, redefine duties test for outside salespersons. |
| • | Add WAC 296-128-545 (new), update or establish salary thresholds for EAP employees. Create an implementation schedule for salary threshold changes. |
Reasons Supporting Proposal: The department is engaging in this rule making to ensure the regulations in Washington state effectively distinguish between employees who the legislature intended to be protected by MWA and bona fide EAP, computer professional, and outside sales employees who it intended to exempt. The department recognizes that when the definitions become outdated, the protections intended by MWA erode, and employees who the Washington state legislature intended to protect receive neither the protections of MWA, nor the higher salaries, above-average benefits, and greater job security and advancement opportunities expected for bona fide EAP and outside sales employees, and which justify their exemption from MWA's protections. Additionally, employers do not have an efficient and reliable means of identifying which workers are, or are not, entitled to these protections. With this proposed rule, the department intends to restore protections so that employees who should receive minimum wage, overtime, tips and service charges, paid sick leave, and protection from retaliation will do so, and to implement a mechanism to ensure that the test for exemption remains up-to-date so future workers will not be denied the protections that the legislature intended to afford them.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Department of labor and industries, governmental.
Name of Agency Personnel Responsible for Drafting: Joshua Grice, Tumwater, Washington, 360-902-5310; Implementation and Enforcement: Christopher Bowe, Tumwater, Washington, 360-902-6639.
A school district fiscal impact statement is not required under RCW
28A.305.135.
A cost-benefit analysis is required under RCW
34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Joshua Grice, P.O. Box 44510, Olympia, WA 98504-4510, phone 360-902-5310, fax 360-902-5300, email
EAPRules@Lni.wa.gov.
The proposed rule does impose more-than-minor costs on businesses.
For informational purposes, the department computed the minor cost threshold defined as one percent of average annual payroll per business for each sector based on the quarterly census of employment and wages ($10,500). The department also calculated per-employer cost for all employers across sectors and for each sector individually, based on the assumption that the sectoral cost is proportional to the share of affected workers by each sector. The average annualized per-employer cost in 2020 is less than the minor cost threshold for employers in any affected sector. However, we cannot confirm this assumption, nor do we have data to determine whether or not this average cost is larger than the minor cost at a more detailed level (for example, 4-digit North American Industry Classification System level). Therefore, the department assumes the rule will impose more-than-minor costs to business.
In addition, there is insufficient data to determine the size of the cost impact to both large and small employers to calculate disproportionate impacts. As required by RCW
19.85.030, in the absence of this data, the department identified cost mitigation measures, where legal and feasible, as described in the small business economic impact statement.
A copy of the statement may be obtained by contacting Joshua Grice, P.O. Box 44510, Olympia, WA 98504-4510, phone 360-902-5310, fax 360-902-5300, email EAPRules@Lni.wa.gov.
June 4, 2019
Joel Sacks
Director
AMENDATORY SECTION(Amending WSR 03-03-109, filed 1/21/03, effective 2/21/03)
WAC 296-128-500Purpose.
(1) This regulation is adopted in accordance with chapter
49.46 RCW to define the terms "bona fide executive, administrative, or professional capacity or in the capacity of outside ((
salesman))
salesperson," to define salary basis and to establish a procedure for computing overtime pay.
(2) An employee who meets the definitions of executive, administrative, or professional and who is paid on a salary basis (except as provided for in WAC
296-128-510 (2)(b), 296-128-520 (1)(c), 296-128-520 (2)(b), 296-128-530((
(5)))
(1)(b), 296-128-530 (2)(b) and (3)(e), or WAC 296-128-535 (1)(c)) is considered exempt from the requirements of chapter
49.46 RCW.
A job title, or payment of a salary
, does not in and of itself exempt a worker from ((
the minimum wage and overtime))
these requirements.
NEW SECTION
WAC 296-128-505Definitions.
(1) "Customarily and regularly" means a frequency that must be greater than occasional but which, of course, may be less than constant. Tasks or work performed "customarily and regularly" includes work normally and recurrently performed every workweek; it does not include isolated or one-time tasks.
(2) "Educational establishment" means an elementary or secondary school system, an institution of higher education, or other educational institution.
(3) "Exclusive of board, lodging, or other facilities" means "free and clear" or independent of any claimed credit for noncash items of value that an employer may provide to an employee. Thus, the costs incurred by an employer to provide an employee with board, lodging, or other facilities may not count towards the minimum salary amount required for an exemption.
(4) "Primary duty" means the principal, main, major, or most important duty that the employee performs. Determination of an employee's primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole. Because the burden of proving an exception to the definition of "employee" falls on the employer claiming the exception, the burden falls on the employer to demonstrate that the employees meet the primary duty requirement.
(a) Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee's relative freedom from direct supervision; and the relationship between the employee's salary and the wages paid to other employees for the kind of nonexempt work performed by the employee.
(b) The amount of time spent performing exempt work can be a useful guide in determining whether exempt work is the primary duty of an employee. Employees who spend more than fifty percent of their time performing exempt work will generally satisfy the primary duty requirement. Employees who do not spend more than fifty percent of their time performing exempt duties may meet the primary duty requirement if the other factors support such a conclusion. The burden falls on the employer to demonstrate that the employees meet the primary duty requirement.
AMENDATORY SECTION(Amending Order 76-5, filed 2/24/76)
WAC 296-128-510Executive.
(1) The term "individual employed in a bona fide executive … capacity" in RCW
49.46.010 ((
(5)))
(3)(c) shall mean any employee:
(((1)))(a) Whose primary duty ((consists of the))is management of the enterprise in which ((he))the employee is employed or of a customarily recognized department or subdivision thereof; and
(((2)))(b) Who customarily and regularly directs the work of two or more other employees ((therein)); and
(((3)))(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring ((or)), firing ((and as to the)), advancement ((and)), promotion, or any other change of status of other employees ((will be))are given particular weight; and
(((4) Who customarily and regularly exercises discretionary powers; and
(5) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent, of his hours worked in the work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1) through (4) of this section: Provided, That this paragraph (5) shall not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment, or who owns at least a 20 percent interest in the enterprise in which he is employed; and
(6) Who is compensated for his services on a salary basis at a rate of not less than $155 per week exclusive of board, lodging, and other facilities: Provided, That an employee who is compensated on a salary rate of not less $250 per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the management of the enterprise in which he is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, shall be deemed to meet all of the requirements of this section.))(d) Who is compensated on a salary basis at a rate of not less than the amount specified in WAC 296-128-545, exclusive of board, lodging, or other facilities.
(2) The term "individual employed in a bona fide executive … capacity" in RCW 49.46.010 (3)(c) shall also include any employee: (a) Who owns at least a bona fide twenty percent equity interest in the enterprise in which the employee is employed, regardless of whether the business is a corporate or other type of organization, and who is actively engaged in its management; and
(b) The requirements of WAC 296-128-545 do not apply to the executive employees described in this subsection.
(3) For the purposes of this section:
(a) A "customarily recognized department or subdivision" must have a permanent status and a continuing function.
(i) A recognized department or subdivision need not be physically within the employer's establishment and may move from place to place.
(ii) When an enterprise has more than one establishment, the employee in charge of each establishment may be considered in charge of a recognized department or subdivision of the enterprise.
(iii) Continuity of the same subordinate personnel is not essential to the existence of a recognized department or subdivision with a continuing function.
(b) "Management" includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees' productivity and efficiency for the purpose of recommending promotions or other changes in status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety and security of the employees or the property; planning and controlling the budget; and monitoring or implementing legal compliance measures.
(c) "Two or more other employees" means two full-time employees or their equivalent. One full-time and two half-time employees, for example, are equivalent to two full-time employees. Four half-time employees are also equivalent. Hours worked by an employee cannot be credited more than once for different executives.
AMENDATORY SECTION(Amending Order 76-5, filed 2/24/76)
WAC 296-128-520Administrative.
(1) The term "individual employed in a bona fide … administrative … capacity" in RCW
49.46.010 ((
(5)))
(3)(c) shall mean any employee:
(((1)))(a) Whose primary duty ((consists of))is the performance of office or nonmanual ((field)) work directly related to the management ((policies)) or general business operations of ((his))the employer or ((his))the employer's customers; ((or
(2) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and
(3) Who customarily and regularly exercises))
(b) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance; and
(((a) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity (as such terms are defined in this regulation), or
(b) Who performs under only general supervision work along specialized or technical lines requiring special training, experience or knowledge, or
(c) Who executes under only general supervision special assignments and tasks; and
(4) Who does not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent of his hours worked in the work week to activities which are not directly and closely related to the performance of the work described in paragraphs (1) through (3) of this section; and
(a) Who is compensated for his services on a salary or fee basis at a rate of not less than $155 per week exclusive of board, lodging, or other facilities; or
(b) Who, in the case of academic administrative personnel is compensated for his services as required by paragraph (4)(a) of this section, or on a salary basis which is at least equal to the entrance salary for teachers in the school system, educational establishment, or institution by which he is employed: Provided, That an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the performance of office or nonmanual work directly related to management policies or general business operations of his employer or his employer's customers; which includes work requiring the exercise of discretion and independent judgment, shall be deemed to meet all of the requirements of this section.))(c) Who is compensated on a salary or fee basis at a rate of not less than the amount specified in WAC 296-128-545, exclusive of board, lodging, or other facilities.
(2) The term "individual employed in a bona fide … administrative … capacity" in RCW 49.46.010 (3)(c) shall also include any employee: (a) Whose primary duty is performing administrative functions directly related to academic instruction or training in an educational establishment or department or subdivision thereof; and
(b) Who is compensated on a salary or fee basis at a rate of not less than the amount specified in WAC 296-128-545, exclusive of board, lodging, or other facilities, or on a salary basis which is at least equal to the entrance salary for teachers in the educational establishment by which they are employed.
(3) For the purposes of this section:
(a) To qualify for the administrative exemption, an employee's primary duty must be the performance of work directly related to the management or general business operations of the employer or the employer's customers. "Directly related to management or general business operations" means work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.
(b) "Discretion and independent judgment" means the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The phrase "discretion and independent judgment" must be applied in the light of all the facts involved in the particular employment situation in which the question arises. The exercise of discretion and independent judgment implies that the employee has the authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level. The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources. The exercise of discretion and independent judgment also does not include clerical or secretarial work, recording or tabulating data, or performing other mechanical, repetitive, recurrent or routine work.
(c) "Performing administrative functions directly related to academic instruction or training" means work related to the academic operations and functions in a school rather than to administration along the lines of general business operations. Such academic administrative functions include operations directly in the field of education. Jobs relating to areas outside the educational field are not within the definition of academic administration.
AMENDATORY SECTION(Amending Order 76-5, filed 2/24/76)
WAC 296-128-530Professional.
(1) The term "individual employed in a bona fide … professional capacity" in RCW
49.46.010 ((
(5)))
(3)(c) shall mean any employee:
(((1)))(a) Whose primary duty consists of the performance of work:
(((a)))(i) Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction ((and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or
(b) Original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the intention, imagination, or talent of the employee; or
(c))); or
(ii) Requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor; and
(b) Who is compensated on a salary or fee basis at a rate of not less than the amount specified in WAC 296-128-545, exclusive of board, lodging, or other facilities.
(2) The term "individual employed in a bona fide … professional capacity" in RCW 49.46.010 (3)(c) shall also include any employee: (a) With a primary duty of teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in ((the school system or))an educational establishment ((or institution)) by which ((he))the employee is employed; and
(((2) Whose work requires the consistent exercise of discretion and judgment in its performance; and
(3) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) and is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and
(4) Who does not devote more than 20 percent of his hours worked in the work week to activities which are not an essential part of and necessarily incident to the work described in paragraphs (1) through (3) of this section; and
(5) Who is compensated for his services on a salary or fee basis at a rate of not less than $170 per week exclusive of board, lodging, or facilities: Provided, That this paragraph (5) shall not apply in the case of an employee who is the holder of a valid license or certificate permitting the practice of law, medicine, or dentistry and who is actually engaged in the practice thereof: Provided, That an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week (exclusive of board, lodging, or other facilities), and whose primary duty consists of the performance of work either requiring knowledge of an advanced type in a field of science or learning, which includes work requiring the consistent exercise of discretion and judgment, or requiring invention, imagination, or talent in a recognized field of artistic endeavor, shall be deemed to meet all of the requirements of this section.))(b) Who is compensated on a salary or fee basis.
(3) The term "individual employed in a bona fide … professional capacity" in RCW 49.46.010 (3)(c) shall also include any employee: (a) Who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof; or
(b) Who is the holder of the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program pursuant to the practice of the profession. Employees engaged in internship or resident programs, whether or not licensed to practice prior to commencement of the program, qualify as exempt professionals if they enter such internship or resident programs after the earning of the appropriate degree required for the general practice of their profession.
(c) In the case of medicine, the exemption applies to physicians and other practitioners licensed and practicing in the field of medical science and healing or any of the medical specialties practiced by physicians or practitioners. The term "physicians" includes medical doctors including general practitioners and specialists, osteopathic physicians (doctors of osteopathy), podiatrists, dentists (doctors of dental medicine), and optometrists (doctors of optometry or bachelors of science in optometry).
(d) The requirements of WAC 296-128-545 do not apply to the law or medicine professionals described in this subsection.
(4) For the purposes of this section:
(a) "Customarily acquired by a prolonged course of specialized intellectual instruction" restricts the exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The exemption is also available to employees who attained substantially the same advanced knowledge through a combination of work experience and intellectual instruction.
(b) "Field of science or learning" means the traditional professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy, and other similar occupations that have a recognized professional status.
(c) "Recognized field of artistic or creative endeavor" includes such fields as music, writing, acting, and the graphic arts.
(d) "Work requiring advanced knowledge" means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment, as distinguished from performance of routine mental, manual, mechanical or physical work. An employee who performs work requiring advanced knowledge generally uses the advanced knowledge to analyze, interpret, or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level.
AMENDATORY SECTION(Amending WSR 98-02-027, filed 12/31/97, effective 2/1/98)
WAC 296-128-535((Are professional computer employees exempt from the Washington Minimum Wage Act?))Computer professionals.
(((1) Any employee who is a computer system analyst, computer programmer, software engineer, software developer or other similarly skilled worker will be considered a "professional employee" and will be exempt from the minimum wage and overtime provisions of the Washington Minimum Wage Act if:
(a) Their primary duty is of one of the following:
(i) Applying systems analysis techniques and procedures to determine hardware, software, or system functional specifications for any user of such services; or
(ii) Following user or system design specifications to design, develop, document, analyze, create, test or modify any computer system, application or program, including prototypes; or
(iii) Designing, documenting, testing, creating or modifying computer systems, applications or programs for machine operation systems; or
(iv) Any combination of the above primary duties whose performance requires the same skill level; and
(b) Their rate of pay is at least $27.63 per hour.
(2) This professional exemption only applies to highly skilled employees who:
(a) Possess a high degree of theoretical knowledge and understanding of computer system analysis, programming and software engineering; and
(b) Have the ability to practically apply that theoretical knowledge and understanding to highly specialized computer fields; and
(c) Generally attain the necessary level of expertise and skill to qualify for an exemption through a combination of education and experience in the field; and
(d) Consistently exercise discretion and judgment in the application of their special knowledge as opposed to performing purely mechanical or routine tasks; and
(e) Engage in work that is predominantly intellectual and inherently varied in character as opposed to work that is routinely mental, manual, mechanical, or physical.
(3) While many employees who qualify for this exemption hold a bachelor's or higher degree, no degree is required for this exemption.
(4) This professional exemption does not apply to:
(a) Trainees or employees in entry level positions learning to become proficient in computer systems analysis, programming and software engineering; or
(b) Employees in computer systems analysis, programming and software engineering positions who have not attained a level of skill and expertise which allows them to generally work independently and without close supervision; or
(c) Employees engaged in the operation of computers; or
(d) Employees engaged in the manufacture, repair or maintenance of computer hardware and related equipment; or
(e) Employees covered by a collective bargaining agreement.))
(1) The term "individual employed in a bona fide … professional capacity" in RCW 49.46.010 (3)(c) shall also mean any employee: (a) Who is a computer system analyst, computer programmer, software engineer, or other similarly skilled worker; and
(b) Whose primary duty consists of one of the following:
(i) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
(ii) The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
(iii) The design, documentation, testing, creation or modification of computer programs related to machine operation systems; or
(iv) A combination of the aforementioned duties, the performance of which requires the same level of skills; and
(c) Who is compensated on a salary or fee basis, as provided in WAC 296-128-545, or on an hourly basis at a rate as follows:
(i) Beginning July 1, 2020, and through December 31, 2020:
(A) When the employee works for an employer with fifty or fewer employees, an amount not less than twenty-seven dollars and sixty-three cents per hour; and
(B) When the employee works for an employer with more than fifty employees, an amount not less than 2.75 times the minimum wage prescribed in RCW 49.46.020 per hour. (ii) Beginning January 1, 2021, and through December 31, 2021:
(A) When the employee works for an employer with fifty or fewer employees, an amount not less than 2.75 times the minimum wage prescribed in RCW 49.46.020 per hour; and (B) When the employee works for an employer with more than fifty employees, an amount not less than 3.5 times the minimum wage prescribed in RCW 49.46.020 per hour. (iii) Beginning January 1, 2022, and each following year, an amount not less than 3.5 times the minimum wage prescribed in RCW 49.46.020 per hour regardless of the size of the employer. (iv) For the purposes of this section, the size of the employer is based solely on the number of Washington-based employees it employs at the time of the effective date for each subsection. Each Washington-based employee counts as an employee for the purposes of determining the size of the employer regardless of whether that employee works full-time or part-time.
(2) The exemption for employees in computer occupations does not include:
(a) Employees engaged in the manufacture, repair, or maintenance of computer hardware and related equipment; or
(b) Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in WAC 296-128-535 (1)(a).
AMENDATORY SECTION(Amending Order 76-5, filed 2/24/76)
WAC 296-128-540Outside salesman.
(1) The term "individual employed in the capacity of outside salesman" in RCW
49.46.010 ((
(5)))
(3)(c) shall mean any employee:
(((1) Who is employed for the purpose of and who is customarily and regularly engaged away from his employer's place or places of business, as well as on the premises (where the employee regulates his own hours and the employer has no control over the total number of hours worked) in the following alternative activities:
(a) In))(a) Whose primary duty is:
(i) Making sales; including any sale, exchange, contract to sell, consignment for sale, shipment for sale or other disposition; or
(((b) In))(ii) Obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer((; or
(c) In demonstrating products or equipment for sale; or
(d) In the sale of services and performance of the service sold when the compensation to the employee is computed on a commission basis; and
(2) Whose hours of work of a nature other than that described in (1)(a), (b), (c) and (d) of this section do not exceed 20 percent of the hours worked in the work week by nonexempt employees of the employer: Provided, That work performed incidental to and in conjunction with the employee's own outside sales or solicitations, including incidental deliveries and collections, shall not be regarded as nonexempt work)); and
(((3)))(b) Who is customarily and regularly engaged away from the employer's place or places of business in performing such primary duty.
(2) Who is compensated by the employer on a guaranteed salary, commission or fee basis and who is advised of ((his))the employee status as "outside ((salesman))salesperson."
NEW SECTION
WAC 296-128-545Salary thresholds.
To qualify as an exempt employee under this section, an employee must be compensated on a salary or fee basis, exclusive of board, lodging, or other facilities, as follows:
(1) Beginning July 1, 2020, and through December 31, 2020:
(a) When the employee works for an employer with fifty or fewer employees, an amount not less than 1.25 times the minimum wage prescribed in RCW
49.46.020 for a forty-hour workweek; and
(b) When the employee works for an employer with more than fifty employees, an amount not less than 1.75 times the minimum wage prescribed in RCW
49.46.020 for a forty-hour workweek.
(2) Beginning January 1, 2021, and through December 31, 2021:
(a) When the employee works for an employer with fifty or fewer employees, an amount not less than 1.75 times the minimum wage prescribed in RCW
49.46.020 for a forty-hour workweek; and
(b) When the employee works for an employer with more than fifty employees, an amount not less than 2.0 times the minimum wage prescribed in RCW
49.46.020 for a forty-hour workweek.
(3) Beginning January 1, 2022, and through December 31, 2022:
(a) When the employee works for an employer with fifty or fewer employees, an amount not less than 2.0 times the minimum wage prescribed in RCW
49.46.020 for a forty-hour workweek; and
(b) When the employee works for an employer with more than fifty employees, an amount not less than 2.25 times the minimum wage prescribed in RCW
49.46.020 for a forty-hour workweek.
(4) Beginning January 1, 2023, and through December 31, 2024, an amount not less than 2.25 times the minimum wage prescribed in RCW
49.46.020 for a forty-hour workweek regardless of the size of the employer;
(5) Beginning January 1, 2025, and through December 31, 2025:
(a) When the employee works for an employer with fifty or fewer employees, an amount not less than 2.25 times the minimum wage prescribed in RCW
49.46.020 for a forty-hour workweek; and
(b) When the employee works for an employer with more than fifty employees, an amount not less than 2.5 times the minimum wage prescribed in RCW
49.46.020 for a forty-hour workweek.
(6) Beginning January 1, 2026, and each following year, an amount not less than 2.5 times the minimum wage prescribed in RCW
49.46.020 for a forty-hour workweek regardless of the size of the employer;
(7) For the purposes of this section, the size of the employer is based solely on the number of Washington-based employees it employs at the time of the effective date for each subsection. Each Washington-based employee counts as an employee for the purposes of determining the size of the employer regardless of whether that employee works full-time or part-time.