S-4289

AN ACT Relating to mandatory overtime; adding new sections to chapter 49.46 RCW; and creating new sections.

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

NEW SECTION. Sec. 1. LEGISLATIVE INTENT. The legislature finds that workers are often required to work long days and even longer weeks. These practices hurt working families, make affordable child care difficult to find, and lead to higher stress levels and industrial injury and occupational disease rates. These practices limit employment opportunities to a smaller number of workers rather than extend employment opportunities to a larger number of workers. Thus, it is the intent of the legislature that workers not be required to work overtime.

NEW SECTION. Sec. 2. MANDATORY OVERTIME PROHIBITED. (1) Except as otherwise provided in this act, no employer may require an employee to work: (a) More than eight hours in any work day; or (b) more than forty hours in any work week. An employee is not prohibited from voluntarily agreeing to work more than eight hours in any work day or more than forty hours in any work week.

(2) Notwithstanding subsection (1) of this section, an employee may be required to work up to ten hours in a work day if the employer's work week is based on four ten-hour days in a work week. An employee is not prohibited from voluntarily agreeing to work more than ten hours in any work day.

NEW SECTION. Sec. 3. OVERTIME COMPENSATION REQUIRED. Nothing in this act limits the application of RCW 49.46.130.

NEW SECTION. Sec. 4. EMPLOYEE DEFINED. For the purposes of this act, "employee" includes any individual employed by an employer except:

(1) An individual exempt under RCW 49.46.010(5) (a) through (n) or RCW 49.46.130(2) (a) through (i);

(2) An individual employed by a private utility and performing emergency work necessary for the public health and safety, if the utility has exhausted reasonable efforts to have the work performed voluntarily by other employees;

(3) An individual employed in fire protection, law enforcement, or emergency medical services;

(4) An individual performing work in emergency situations that endanger public health and safety, including, but not limited to, fires, natural disasters, civil disorders, utility interruptions, services required by the armed forces of the United States, including work performed under a contract with the United States department of defense when the work is necessary because of the declaration of a national emergency, or other situations determined by the department to be emergencies endangering public health and safety;

(5) An individual employed by an employer packing or processing perishable agricultural or horticultural commodities, or perishable freshwater or saltwater fish or shellfish or their products; or

(6) An individual employed by an employer registered as an aquatic farmer with the department of agriculture in accordance with RCW 75.58.040, and performing work defined as aquaculture in RCW 15.85.020.

NEW SECTION. Sec. 5. VARIANCE. (1) An employer may petition the department for a variance from the requirements of section 2 of this act if at least eighty percent of the employer's employees in the affected work unit or, if the employees are represented by an exclusive bargaining representative, in the affected bargaining unit vote by secret ballot to approve a written proposal for regularly scheduled hours of work of more than eight hours in a work day or of more than forty hours in a work week. The agreement may not permit the employer to require any employee to work more than twelve hours in a work day or more than an average of forty-two hours per work week in four consecutive work weeks.

(2)(a) The department shall adopt rules providing for the election procedures and documentation required to apply for a variance under this section. The rules shall include provisions that require employee approval of the variance no less than annually, and that make supervisors ineligible to vote.

(b) For the purposes of this section, "supervisor" means any employee having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

NEW SECTION. Sec. 6. CONTINUOUS PRODUCTION OPERATIONS. (1) Notwithstanding section 2 of this act, an employee may be required to work part of the next succeeding work shift following the work shift completed by the employee if:

(a) The work is required because of an unanticipated event, including, but not limited to, employee illness or emergency repair of production equipment, but not including a need to increase production to meet an increase in market demand, and the unanticipated event has or may halt a continuous production operation;

(b)(i) In good faith, the employer has exhausted reasonable attempts to obtain voluntary work during the succeeding shift; or

(ii) The employee has critical skills and expertise that are required for the work; and

(c) As requested by the employee, the employer has assisted the employee to acquire safe transportation to his or her residence following the succeeding shift, and has assisted the employee to address child care or other family obligations successfully. At the time of requiring the employee to work part of the next succeeding shift, the employer shall inform the employee of the employer's obligation under this section.

(2) This section may not permit an employer to require any employee to work more than twelve consecutive hours, or to work during more than two consecutive work shifts, or to require, in any calendar month, more than sixteen hours beyond the hours of work that may be required under section 2 of this act.

(3) For the purposes of this section:

(a) "Continuous production operation" means a workplace that routinely operates twenty-four hours a day in the following industries: (i) Primary metal processing, in an industry assigned the major group standard industrial classification code "33" or the equivalent code in a successor classification system by the employment security department; or (ii) paper and allied products, in an industry assigned the major group standard industrial classification code "26" or the equivalent code in a successor classification system by the employment security department.

(b) "Standard industrial classification code" means the code identified in RCW 50.29.025(6)(c).

NEW SECTION. Sec. 7. DISCRIMINATION PROHIBITED. (1) No employer may discharge or in any manner discriminate against an employee because the employee exercises any of the rights provided in this act, including the right to vote under section 5 of this act.

(2) Any employee who believes that he or she has been discharged or otherwise discriminated against in violation of this section may, within one year after such violation occurs, file a complaint with the director alleging such discrimination. Upon receipt of a complaint, the director shall cause an investigation to be made as the director deems appropriate. If, after investigation, the director determines that the provisions of this section have been violated, the director may bring an action in superior court of the county in which the violation is alleged to have occurred against the person or persons alleged to have violated the provisions of this section. If the director declines to investigate a complaint of discrimination under the provisions of this section, or declines to institute legal action following an investigation, the employee may institute the action on his or her own behalf after receiving notice of the director's decision not to investigate or initiate legal action on the case. In any action under this section, the superior court shall have jurisdiction, for cause shown, to restrain violations of this act and to order all appropriate relief including rehiring or reinstatement of the employee to his or her former position with back pay.

(3) Within ninety days of the receipt of the complaint filed under this section, the director shall notify the complainant of the determination under subsection (2) of this section.

NEW SECTION. Sec. 8. COLLECTIVE BARGAINING AGREEMENTS. (1) Nothing in this act shall be construed to diminish an employer's obligation to comply with any collective bargaining agreement which provides greater rights to employees than the rights provided under this act.

(2) If employees are covered by an unexpired collective bargaining agreement containing terms that conflict with this act, and the agreement expires on or after the effective date of this act, this act shall apply to these employees on the first day following expiration of the collective bargaining agreement.

NEW SECTION. Sec. 9. RULE MAKING. The director is authorized to adopt rules in accordance with chapter 34.05 RCW that are necessary to implement this act.

NEW SECTION. Sec. 10. Captions used in this act are not any part of the law.

NEW SECTION. Sec. 11. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 12. Sections 2 through 9 of this act are each added to chapter 49.46 RCW.