H-2496

AN ACT Relating to the application of the state wage and hour laws without altering the minimum wage; amending RCW 49.46.005, 49.46.010, 49.46.090, 49.46.130, 49.48.030, 49.48.040, 49.52.050, 49.52.070, and 49.52.080; adding a new section to chapter 49.46 RCW; repealing RCW 49.12.150; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 49.46.005 and 1961 ex.s. c 18 s 1 are each amended to read as follows:

Whereas the establishment of a minimum wage for employees is a subject of vital and imminent concern to the people of this state and requires appropriate action by the legislature to establish minimum standards of employment within the state of Washington, therefore the legislature declares that in its considered judgment the health, safety and the general welfare of the citizens of this state require the enactment of this measure, and exercising its police power, the legislature endeavors by this chapter to establish a minimum wage for employees of this state to encourage employment opportunities within the state.

The legislature further finds and declares that it is in the interest of the health, safety, and the general welfare of the citizens of this state and necessary to aid and foster interstate and intrastate commerce, that the Washington minimum wage act parallel the federal fair labor standards act in the absence of express language to the contrary. Under this objective, the legislature finds that section 3, chapter 289, Laws of 1975 1st ex. sess. was adopted for the purpose of creating conformity between state overtime pay standards and the federal fair labor standards act. RCW 49.46.130(2)(h), was intended to incorporate alternative federal premium guarantee standards, whether based on a different minimum workweek, premium guarantee formula, or some combination thereof, into state wage and labor law.

The provisions of this chapter are enacted: (1) In the exercise of the police power of the state for the purpose of protecting the immediate and future health, safety and welfare of the people of this state; (2) to protect intrastate commerce from practices that burden and obstruct it; (3) to protect the right of collective bargaining; and (4) to define and limit the jurisdiction of the courts.

Sec. 2. RCW 49.46.010 and 1993 c 281 s 56 are each amended to read as follows:

As used in this chapter:

(1) "Director" means the director of labor and industries;

(2) "Wage" means compensation due to an employee by reason of employment, payable in legal tender of the United States or checks on banks convertible into cash on demand at full face value, subject to such deductions, charges, or allowances as may be permitted by rules of the director;

(3) "Employ" includes to permit to work;

(4) "Employer" includes any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee;

(5) "Employee" includes any individual employed by an employer but shall not include:

(a) Any individual (i) employed as a hand harvest laborer and paid on a piece rate basis in an operation which has been, and is generally and customarily recognized as having been, paid on a piece rate basis in the region of employment; (ii) who commutes daily from his or her permanent residence to the farm on which he or she is employed; and (iii) who has been employed in agriculture less than thirteen weeks during the preceding calendar year;

(b) Any individual employed in casual labor in or about a private home, unless performed in the course of the employer's trade, business, or profession;

(c) Any individual employed in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesman as those terms are defined and delimited by rules of the director. However, those terms shall be defined and delimited by the Washington personnel resources board pursuant to chapter 41.06 RCW for employees employed under its jurisdiction;

(d) Any individual engaged in the activities of an educational, charitable, religious, state or local governmental body or agency, or nonprofit organization where the employer-employee relationship does not in fact exist or where the services are rendered to such organizations gratuitously. If the individual receives reimbursement in lieu of compensation for normally incurred out-of-pocket expenses or receives a nominal amount of compensation per unit of voluntary service rendered, an employer-employee relationship is deemed not to exist for the purpose of this section or for purposes of membership or qualification in any state, local government or publicly supported retirement system other than that provided under chapter 41.24 RCW;

(e) Any individual employed full time by any state or local governmental body or agency who provides voluntary services but only with regard to the provision of the voluntary services. The voluntary services and any compensation therefor shall not affect or add to qualification, entitlement or benefit rights under any state, local government, or publicly supported retirement system other than that provided under chapter 41.24 RCW;

(f) Any newspaper vendor or carrier;

(g) Any carrier subject to regulation by Part 1 of the Interstate Commerce Act;

(h) Any individual engaged in forest protection and fire prevention activities;

(i) Any individual employed by any charitable institution charged with child care responsibilities engaged primarily in the development of character or citizenship or promoting health or physical fitness or providing or sponsoring recreational opportunities or facilities for young people or members of the armed forces of the United States;

(j) Any individual whose duties require that he or she reside or sleep at the place of his or her employment or who otherwise spends a substantial portion of his or her work time subject to call, and not engaged in the performance of active duties;

(k) Any resident, inmate, or patient of a state, county, or municipal correctional, detention, treatment or rehabilitative institution;

(l) Any individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi municipal corporation, political subdivision, or any instrumentality thereof, or any employee of the state legislature;

(m) All vessel operating crews of the Washington state ferries operated by the department of transportation;

(n) Any individual employed as a seaman on a vessel other than an American vessel;

(o) Any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is:

(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 operating systems; or

(iv) A combination of duties described in (i), (ii), and (iii) of this subsection (5)(o), the performance of which requires the same level of skills; and

who, for an employee who is compensated on an hourly basis, is compensated at a rate of not less than twenty-seven dollars and sixty-three cents an hour.

(6) "Occupation" means any occupation, service, trade, business, industry, or branch or group of industries or employment or class of employment in which employees are gainfully employed.

Sec. 3. RCW 49.46.090 and 1959 c 294 s 9 are each amended to read as follows:

(1) ((Any employer who pays any employee less than wages to which such employee is entitled under or by virtue of this chapter, shall be liable to such employee affected for the full amount of such wage rate, less any amount actually paid to such employee by the employer, and for costs and such reasonable attorney's fees as may be allowed by the court. Any agreement between such employee and the employer to work for less than such wage rate shall be no defense to such action.)) Except as provided in subsection (2) of this section, no employer shall be subject to any liability or punishment under this title on account of the failure of the employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of the employee:

(a) Walking, riding, or traveling to and from the actual place of performance of the principal activity or activities that the employee is employed to perform; and

(b) Activities that are preliminary to or subsequent to the principal activity or activities that the employee is employed to perform;

that occur either before the time on any particular workday at which the employee commences, or after the time on any particular workday at which the employee ceases, the principal activity or activities.

For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee that are incidental to the use of the vehicle for commuting shall not be considered part of the employee's principal activities if the use of the vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee or representative of the employee.

(2)(a) An employer shall not be relieved of liability or punishment under subsection (1) of this section if the activity of the employee is compensable by either:

(i) An express provision of a written or nonwritten contract in effect, at the time of such activity, between such employee, the employee's agent, or collective bargaining representative and the employer; or

(ii) A custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, covering the activity, not inconsistent with a written or nonwritten contract, in effect at the time of the activity, between such employee, the employee's agent, or collective bargaining representative and the employer.

(b) For the purposes of (a) of this subsection, an activity is considered as compensable under an applicable contract provision or custom or practice only when the activity is engaged in during the portion of the day with respect to which the activity is so made compensable.

(c) In applying the minimum wage and overtime compensation provisions of this title to determine the time for which an employer employs an employee with respect to walking, riding, traveling, or other activities preliminary to or subsequent to the activities described in subsection (1) of this section, there shall be counted all that time, but only that time, during which the employee engages in any such activity that is compensable within the meaning of (a) and (b) of this subsection (2).

(3) At the written request of any employee paid less than the wages to which he or she is entitled under or by virtue of this chapter or chapter 49.12 or 49.48 RCW, the director may take an assignment ((under this chapter or as provided in RCW 49.48.040 of such wage claim in trust for the assigning employee and may bring any legal action necessary to collect such claim, and the employer shall be required to pay the costs and such reasonable attorney's fees as may be allowed by the court)) of the wage claim in trust for the assigning employee, and may, as assignee for the employee, bring an action for unpaid wages under RCW 49.48.030 or an action for exemplary damages as provided under RCW 49.52.070.

Sec. 4. RCW 49.46.130 and 1995 c 5 s 1 are each amended to read as follows:

(1) Except as otherwise provided in this section, no employer shall employ any of his or her employees for a work week longer than forty hours unless such employee receives compensation for his or her employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he or she is employed.

(2) This section does not apply to:

(a) Any person exempted pursuant to RCW 49.46.010(5). The fact that an employee is subject to deductions from pay for voluntary or involuntary absences of less than a full day or of less than a full workweek shall not be a factor in determining whether that employee is exempted under RCW 49.46.010(5)(c), except during workweeks in which the employee incurs an actual reduction in pay. For purposes of this subsection, the term "actual reduction in pay" does not include any reduction in accrued paid leave or any other practice that does not reduce the amount of the employee's pay for the workweek in question. The payment of compensation or provision of compensatory time off in addition to a salary shall not be a factor in determining whether a person is exempted under RCW 49.46.010(5)(c);

(b) Employees who request compensating time off in lieu of overtime pay;

(d) Seasonal employees who are employed at concessions and recreational establishments at agricultural fairs, including those seasonal employees employed by agricultural fairs, within the state provided that the period of employment for any seasonal employee at any or all agricultural fairs does not exceed fourteen working days a year;

(e) Any individual employed as a motion picture projectionist if that employee is covered by a contract or collective bargaining agreement which regulates hours of work and overtime pay;

(f) An individual employed as a truck or bus driver who is subject to the provisions of the Federal Motor Carrier Act (49 U.S.C. Sec. ((~~3101~~)) 31501 et seq. and 49 U.S.C. Sec. 10101 et seq.)((~~, if the compensation system under which the truck or bus driver is paid includes overtime pay, reasonably equivalent to that required by this subsection, for working longer than forty hours per week~~));

(g) Any individual employed (i) on a farm, in the employ of any person, in connection with the cultivation of the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and furbearing animals and wildlife, or in the employ of the owner or tenant or other operator of a farm in connection with the operation, management, conservation, improvement, or maintenance of such farm and its tools and equipment; or (ii) in packing, packaging, grading, storing or delivering to storage, or to market or to a carrier for transportation to market, any agricultural or horticultural commodity; or (iii) commercial canning, commercial freezing, or any other commercial processing, or with respect to services performed in connection with the cultivation, raising, harvesting, and processing of oysters or in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption;

(h) Any industry in which federal law provides for an overtime payment ((~~based on a work week other than forty hours~~)) method, such as 29 U.S.C. 207 (i) or (j). However, the provisions of the federal ((~~law regarding overtime payment based on a work week other than forty hours~~)) overtime payment method shall nevertheless apply to employees covered by this section without regard to the existence of actual federal jurisdiction over the industrial activity of the particular employer within this state. For the purposes of this subsection, "industry" means a trade, business, industry, or other activity, or branch, or group thereof, in which individuals are gainfully employed (section 3(h) of the Fair Labor Standards Act of 1938, as amended (Public Law 93-259).

(3) No employer of commissioned salespeople primarily engaged in the business of selling automobiles, trucks, recreational vessels, recreational vessel trailers, recreational vehicle trailers, recreational campers, or manufactured housing to ultimate purchasers shall violate subsection (1) of this section with respect to such commissioned salespeople if the commissioned salespeople are paid the greater of:

(a) Compensation at the hourly rate, which may not be less than the rate required under RCW 49.46.020, for each hour worked up to forty hours per week, and compensation of one and one-half times that hourly rate for all hours worked over forty hours in one week; or

(b) A straight commission, a salary plus commission, or a salary plus bonus applied to gross salary.

(4) No public agency shall be deemed to have violated subsection (1) of this section with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if: (a) In a work period of twenty-eight consecutive days the employee receives for tours of duty which in the aggregate exceed two hundred forty hours; or (b) in the case of such an employee to whom a work period of at least seven but less than twenty-eight days applies, in his or her work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his or her work period as two hundred forty hours bears to twenty-eight days; compensation at a rate not less than one and one-half times the regular rate at which he or she is employed.

NEW SECTION. Sec. 5. A new section is added to chapter 49.46 RCW to read as follows:

In any action or proceeding based on any act or omission on or after the effective date of this section, no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under this title if the employer pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation of the department, or any administrative practice or enforcement policy of the department with respect to the class of employers to which the employer belonged. Such a defense, if established, is a bar to the action or proceeding, notwithstanding that after the act or omission, the administrative regulation, order, ruling, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect.

Sec. 6. RCW 49.48.030 and 1971 ex.s. c 55 s 3 are each amended to read as follows:

((In any action in which any person is successful in recovering judgment for wages or salary owed to him, reasonable attorney's fees, in an amount to be determined by the court, shall be assessed against said employer or former employer: PROVIDED, HOWEVER, That this section shall not apply if the amount of recovery is less than or equal to the amount admitted by the employer to be owing for said wages or salary.)) (1) Any employer who pays an employee less than the wages to which the employee is entitled under or by virtue of this chapter or chapter 49.12 or 49.46 RCW, is liable in a civil action to the employee for the full amount of the unpaid wages, notwithstanding any agreement to work for a lower wage. In such an action, if the employee is successful in recovering judgment for unpaid wages, reasonable attorneys' fees and costs, in an amount to be determined by the court, shall be awarded to the employee. However, the court shall not award attorneys' fees or costs to the employee if the amount of the judgment for unpaid wages is less than or equal to any amount previously offered or paid by the employer to such employee in response to the employee's wage claim.

(2) Any civil action under this section to recover unpaid wages must be commenced within two years of the date the claim for wages accrued. Unless otherwise agreed by all parties to the action, an employee is only entitled to bring the action on his or her own individual behalf, except an employee may also bring such an action on behalf of any other similarly situated employee who has given his or her prior written consent to become a party to the action and has filed the consent with the court in which the action is brought.

(3) For purposes of subsection (2) of this section, an action is considered to be commenced on the date determined in accordance with RCW 4.16.170, except that for a collective action, it is considered to be commenced in the case of any individual claimant:

(a) On the date determined in accordance with RCW 4.16.170, if the individual claimant is specifically named as a party plaintiff in the complaint and written consent of the individual to become a party plaintiff is filed on or before the date in the court in which the action is brought; or

(b) If the written consent was not so filed or if the name of the individual claimant did not so appear on the subsequent date on which the written consent is filed in the court in which the action was commenced.

Sec. 7. RCW 49.48.040 and 1987 c 172 s 1 are each amended to read as follows:

(1) The department of labor and industries may:

(a) Upon obtaining information indicating an employer may be committing a violation under chapter((s)) 39.12((,)) or 49.46 ((~~, and 49.48~~)) RCW, or this chapter, conduct investigations to ensure compliance with chapters 39.12((,)) and 49.46((~~, and 49.48~~)) RCW, and this chapter;

(b) ((~~Order~~)) Demand the payment of ((~~all~~)) any wages owed ((~~the workers and institute actions necessary for the collection of the sums determined owed~~)) to an employee; and

(c) Take assignments of wage claims ((and prosecute actions for the collection of wages of persons who are financially unable to employ counsel when in the judgment of the director of the department the claims are valid and enforceable in the courts)) from employees and initiate civil actions to recover unpaid wages owed to the employees as provided under RCW 49.46.090 and 49.48.030.

(2) The director of the department or any authorized representative may, for the purpose of carrying out RCW 49.48.040 through 49.48.080: (a) Issue subpoenas to compel the attendance of witnesses or parties and the production of books, papers, or records; (b) administer oaths and examine witnesses under oath; (c) take the verification of proof of instruments of writing; and (d) take depositions and affidavits. If assignments for wage claims are taken, court costs shall not be payable by the department for prosecuting such suits.

(3) The director shall have a seal inscribed "Department of Labor and Industries--State of Washington" and all courts shall take judicial notice of such seal. Obedience to subpoenas issued by the director or authorized representative shall be enforced by the courts in any county.

(4) The director or authorized representative shall have free access to all places and works of labor. Any employer or any agent or employee of such employer who refuses the director or authorized representative admission therein, or who, when requested by the director or authorized representative, wilfully neglects or refuses to furnish the director or authorized representative any statistics or information pertaining to his or her lawful duties, which statistics or information may be in his or her possession or under the control of the employer or agent, shall be guilty of a misdemeanor.

Sec. 8. RCW 49.52.050 and 1941 c 72 s 1 are each amended to read as follows:

Any employer or officer, vice principal or agent of any employer, whether said employer be in private business or an elected public official, who:

(1) Shall collect or receive from any employee a rebate of any part of wages theretofore paid by such employer to such employee; ((or))

(2) Willfully and with intent to deprive the employee of any part of his or her wages, shall pay any employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract((;)), or under or by virtue of chapter 49.12, 49.46, or 49.48 RCW;

(3) Shall willfully make or cause another to make any false entry in any employer's books or records purporting to show the payment of more wages to an employee than such employee received; or

(4) Being an employer or a person charged with the duty of keeping any employer's books or records shall willfully fail or cause another to fail to show openly and clearly in due course in such employer's books and records any rebate of or deduction from any employee's wages; or

(5) Shall willfully receive or accept from any employee any false receipt for wages;

shall be guilty of a misdemeanor.

Sec. 9. RCW 49.52.070 and 1939 c 195 s 3 are each amended to read as follows:

Any employer and any officer, vice principal, or agent of any employer who shall violate ((~~any of the provisions of subdivisions (1) and (2) of~~)) RCW 49.52.050 (1) and (2) shall be liable in a civil action by the aggrieved employee ((~~or his assignee to~~)) under RCW 49.48.030 for judgment for twice the amount of ((~~the~~)) wages unlawfully rebated or withheld by way of exemplary damages((, together with costs of suit and a reasonable sum for attorney's fees: PROVIDED, HOWEVER, That the benefits of this section shall not be available to any employee who has knowingly submitted to such violations)). However, the exemplary damages are not available to any employee who knowingly has submitted to the violation.

Sec. 10. RCW 49.52.080 and 1939 c 195 s 4 are each amended to read as follows:

The violations by an employer or any officer, vice principal, or agent of any employer of ((~~any of the provisions of subdivisions (3), (4), and (5) of~~)) RCW 49.52.050 (3), (4), and (5) shall raise a presumption that any deduction from or underpayment of any employee's wages connected with such violation was willful.

NEW SECTION. Sec. 11. RCW 49.12.150 and 1913 c 174 s 18 are each repealed.

NEW SECTION. Sec. 12. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.