BP BHEAD INT S [atlas:bill]

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

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

NEW SECTION. Sec. 1. 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. (1) Except as otherwise provided in this section, 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, subject to the requirements of RCW 49.46.130.

(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, subject to the requirements of RCW 49.46.130.

(3)(a) Notwithstanding subsection (1) of this section, an employee may be required to work part of the next succeeding work shift following the work shift completed by the employee if:

(i) 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;

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

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

(iii) 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 subsection.

(b) This subsection 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 subsection (1) of this section.

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

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

(4)(a) An employer may petition the department for a variance from the requirements of subsection (1) of this section 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.

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

(ii) For the purposes of this subsection, "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.

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

(5) This section does not apply to:

(a) An individual exempt under: RCW 49.46.010(5) (a) through (n), except that employees of the state legislature are not exempt unless employed in a bona fide executive, administrative, or professional capacity; or RCW 49.46.130(2) (a) through (e) and (g) through (i);

(b) Emergency work necessary for the public health and safety, otherwise prohibited by subsection (1) of this section, performed by an employee of a public or private electric, gas, fuel oil, sewer, or water utility company, if the utility has exhausted reasonable efforts to have the work performed voluntarily by other employees;

(c)(i) Work performed:

(A) In an industry processing perishable agricultural or horticultural commodities, or perishable freshwater or saltwater fish or shellfish or their products when the occurrence of seasonal factors that are customary to the industry, as determined by department rule, could result in loss or deterioration of the product because of failure to complete the work in a timely manner; or

(B) For an employer when at least seventy-five percent of the employer's business is supplying essential goods for the production and distribution of perishable agricultural or horticultural commodities, or perishable freshwater or saltwater fish or shellfish or their products to an industry under (c)(i)(A) of this subsection, but only during the seasonal time periods applicable to the industry under (c)(i)(A) of this subsection. An employer who does not meet the requirements of (c)(i)(B) of this subsection based on the total production of the employer's business may apply with the department for an exemption for a particular workplace when the production at that workplace meets the requirements of (c)(i)(B) of this subsection.

(ii) This subsection may not permit an employer to require any employee to work more than twelve consecutive hours, or to require any employee to work, in any calendar month, more than thirty-six hours beyond the hours of work that may be required under subsection (1) of this section;

(d) An individual employed in fire protection or law enforcement activities; or

(e) Work performed in emergency situations that endanger public health and safety, including, but not limited to, fires, natural disasters, civil disorders, utility interruptions, emergency medical services regulated under chapter 18.73 RCW, 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.

No exemption under this section may 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, including the right to vote under section 2(4) 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 to not investigate or not 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 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. If employees are covered by an unexpired collective bargaining agreement containing terms that conflict with section 2 of this act, and the agreement expires on or after the effective date of this act, section 2 of this act shall apply to these employees on the first day following expiration of the collective bargaining agreement.

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.

NEW SECTION. Sec. 6. Sections 2 through 4 of this act are each added to chapter 49.46 RCW.