AN ACT Relating to conditions of employment; amending RCW 49.46.130; and adding new sections to chapter 49.46 RCW.

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

Sec. 1. Section 1, chapter 104, Laws of 1989 and RCW 49.46.130 are each amended to read as follows:

(1) ((No employer shall employ any of his employees for a work week longer than forty hours unless such employee receives compensation for his 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 is employed, except that the provisions of this subsection (1) shall)) Except as otherwise provided in section 2 of this 1990 act, no employer shall employ any employee more than forty hours in any work week unless the employee receives compensation for his or her employment at a rate of pay not less than one and one-half times the employee's regular rate of pay for all hours worked over forty hours in the work week.

(2) This section does not apply to:

(a) Any person exempted pursuant to RCW 49.46.010(5) ((~~as now or hereafter amended and the provision of this subsection shall not apply to~~));

(b) Employees who request compensating time off in lieu of overtime pay ((~~nor to~~));

(c) Any individual employed as a seaman whether or not the seaman is employed on a vessel other than an American vessel((~~, nor to~~));

(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((~~, nor to~~));

(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((~~, nor to~~));

(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 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((.

(2) 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 and 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 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 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 is employed: PROVIDED, That this section shall not apply to));

(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: PROVIDED FURTHER, That in~~)); or

(h) Any industry in which federal law provides for an overtime payment based on a work week other than forty hours ((~~then provisions of this section shall not apply;~~)). However, the provisions of the federal law regarding overtime payment based on a work week other than forty hours 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((~~: PROVIDED FURTHER, That~~)). For the purposes of this subsection, "industry" ((~~as that term is used in this section shall mean~~)) 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 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. 2. (1) Except as otherwise provided in this section, no employer may require an employee to work more than eight hours in any work day or more than forty hours in any work week.

(2) Subsection (1) of this section does not prohibit an employee from voluntarily agreeing to work more than eight hours in any work day or more than forty hours in any work week. If an employee works more than eight hours in any work day or more than forty hours in any work week, he or she shall be compensated:

(a) As provided under RCW 49.46.130 for all hours in excess of forty hours in the work week;

(b) At a rate of pay not less than one and one-half times the employee's regular rate of pay for all hours worked in excess of eight hours up to and including twelve hours in any work day; and

(c) At a rate of pay not less than twice the employee's regular rate of pay for all hours worked in excess of twelve hours in any work day.

(3) Notwithstanding subsection (1) of this section, an employee may be required to work:

(a) 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 shall not be prohibited from voluntarily agreeing to work more than ten hours in a work day. Any employee on a schedule of four ten-hour work days in a work week who works more than ten hours in any work day, up to and including twelve hours, or more than forty hours in a work week shall be compensated at a rate of pay not less than one and one-half times the employee's regular rate of pay. All work performed in excess of twelve hours in a work day shall be compensated at a rate of pay not less than twice the employee's regular rate of pay; or

(b) Up to ten hours in a work day if the employee is covered by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901 et seq.

(4) If an employee voluntarily chooses to work under a flexible work arrangement, this section shall not apply with respect to the first two hours over eight hours worked in any work day by that employee. "Flexible work arrangement" includes, but is not limited to:

(a) A daily work schedule containing core time of no more than six work hours during which the employee is required to work, and designated hours of no less than two hours before and/or after the core time, during which the employee selects the time of arrival and the time of departure;

(b) Job sharing with another employee; or

(5) If both RCW 49.46.130(1) and this section apply to any of the hours worked by an employee, the employee's compensation for those hours shall be calculated under the provision providing the higher compensation.

(6) The overtime compensation requirements of subsections (1) through (4) of this section do not apply to any employee whose total hours of employment during the work week do not exceed thirty hours.

(7) An employer may not require an employee to work more than one shift in any work day if any of the required shifts consists of less than four consecutive hours.

(8)(a) Unless the employer's employees are covered by a collective bargaining agreement or represented by an exclusive bargaining representative, whether the representative is certified or recognized, the employer may petition to the department for a variance from the requirements in this section with respect to work over eight hours in a work day if at least seventy-five percent of the employer's employees in the affected work unit vote by secret ballot to approve a written proposal for regularly scheduled hours of work in a day consisting of hours not otherwise permitted under this section. The agreement shall not permit the employer to require an employee to work over twelve hours in a work day.

(b) The department shall adopt rules providing for the election procedures and documentation required to apply for a variance under this subsection.

(c) Nothing in this subsection limits the application of RCW 49.46.130 to the employees covered by a variance under this subsection.

(9) This section does not apply to:

(a) Any employer who employs fewer than twenty-five individuals;

(b) Any individual exempt under RCW 49.46.010(5) or 49.46.130(2), except for RCW 49.46.130(2)(f);

(d) Work performed in emergency situations, as defined by department rule.

No exemption under this section shall be deemed to provide an exemption under RCW 49.46.130.

NEW SECTION. Sec. 3. (1) No employer may discharge or in any manner discriminate against an employee because the employee exercises any of the rights provided in section 2 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 thirty days after such violation occurs, file a complaint with the director alleging such discrimination. Upon receipt of the 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 shall bring an action in the 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 determines that the provisions of this section have not been violated, the employee may institute the action on his or her own behalf within thirty days of receiving notice of the director's determination. In any action under this section, the superior court shall have jurisdiction, for cause shown, to restrain violations of subsection (1) of this section 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. 4. (1) An employee who reports to work as required by the employer and who is not given work, or is given less than half of the employee's usual or scheduled day's work, shall be paid for the hours in half the usual or scheduled day's work or for four hours of work, whichever is greater, at the employee's regular rate of pay.

(2) Subsection (1) of this section does not apply if:

(a) Operations cannot commence or continue because of threats to employees or property or because of recommendations by civil authorities;

(b) Public utility services are interrupted;

(d) The employee is on paid standby status and is called to perform assigned work at a time other than the employee's scheduled reporting time; or

(e) The employee is employed in fire protection or law enforcement activities.

NEW SECTION. Sec. 5. In the case of employees covered by an unexpired collective bargaining agreement the terms of which conflict with sections 2 or 4 of this act, if the agreement expires on or after the effective date of this act, the effective date of sections 2 and 4 of this act with respect to such employees shall be the first day following expiration of the collective bargaining agreement.

NEW SECTION. Sec. 6. Sections 2 through 5 of this act are each added to chapter 49.46 RCW.