BILL REQ. #:  H-3779.4 

Read first time 01/16/08.   Referred to Committee on Commerce & Labor.

     AN ACT Relating to overtime compensation in agriculture, forestry, and fisheries; and amending RCW 49.46.130.

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

Sec. 1   RCW 49.46.130 and 1998 c 239 s 2 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 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, in connection with dairying, 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)) by the owner or operator of a farm in any practices as an incident to or in conjunction with farming operations, including packing, packaging, grading, storing or delivering to storage, or to market or to a carrier for transportation to market, any agricultural or horticultural commodity produced by the owner or operator; ((or)) (iii) in transporting or preparing for transportation (A) fruit or vegetables in their raw or natural state from the farm to the place of first processing or marketing or (B) individuals employed in the harvesting of fruits and vegetables between the farm and any point within the state; (iv) by the owner or operator of a farm in connection with livestock auction operations as an adjunct to the raising of livestock if the individual is (A) primarily employed during the work week by the owner or operator of the farm who raises the livestock and (B) paid for his or her employment in connection with such livestock auction operations at a wage rate not less than that prescribed by RCW 49.46.020; (v) by the owner or operator of a farm in 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)) of any agricultural or horticultural commodity produced by the owner or operator; or (vi) in connection with any agricultural or horticultural commodity after its delivery to a terminal market for distribution for consumption;
     (h) Any individual employed in the catching, taking, propagating, harvesting, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning, or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by that individual;
     (i) Any individual employed in planting or tending trees, surveying, or felling timber, or in preparing or transporting logs or other forestry products to the mill, processing plant, railroad, or other transportation terminal, if the number of employees in such forestry or lumbering operations does not exceed eight;
     (j) 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))) (k) 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.