AN
ACT Relating to the ability of employees in the airline industry to trade
shifts voluntarily without creating overtime liability; reenacting and amending
RCW 49.46.130; and creating new sections.
BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature finds that employees in the airline industry have a long-standing
practice and tradition of trading shifts voluntarily among themselves. The legislature
also finds that federal law exempts airline employees from the provisions of
federal overtime regulations. This act is intended to specify that airline
industry employers are not required to pay overtime compensation to an employee
agreeing to work additional hours for a coemployee.
Sec.
2. RCW
49.46.130 and 1997 c 311 s 1 and 1997 c 203 s 2 are each reenacted and amended
to read as follows:
(1)
Except as otherwise provided in this section, 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.
(2)
This section does not apply to:
(a)
Any person exempted pursuant to RCW 49.46.010(5). 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;
(c)
Any individual employed as a seaman whether or not the seaman is employed on a
vessel other than an American vessel;
(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 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. 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. 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);
(i)
Any hours worked by an employee of a carrier by air subject to the provisions
of subchapter II of the Railway Labor Act (45 U.S.C. Sec. 181 et seq.), when
such hours are voluntarily worked by the employee pursuant to a shift-trading
practice under which the employee has the opportunity in the same or in other
work weeks to reduce hours worked by voluntarily offering a shift for trade or
reassignment.
(3)
No employer shall be deemed to have violated subsection (1) of this section by
employing any employee of a retail or service establishment for a work week in
excess of the applicable work week specified in subsection (1) of this section
if:
(a)
The regular rate of pay of the employee is in excess of one and one-half times
the minimum hourly rate required under RCW 49.46.020; and
(b)
More than half of the employee's compensation for a representative period, of
not less than one month, represents commissions on goods or services.
In
determining the proportion of compensation representing commissions, all
earnings resulting from the application of a bona fide commission rate is to be
deemed commissions on goods or services without regard to whether the computed
commissions exceed the draw or guarantee.
(4)
No employer of commissioned salespeople primarily engaged in the business of
selling automobiles, trucks, recreational vessels, recreational vessel
trailers, recreational vehicle trailers, recreational campers, manufactured
housing, or farm implements 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.
(5)
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. 3. This
act does not alter the terms, conditions, or practices contained in any
collective bargaining agreement.
NEW
SECTION. Sec. 4. This
act is remedial in nature and applies retroactively.
NEW SECTION. Sec. 5. 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.
