AN ACT Relating to payment of production-based compensation wages for the employment and use of labor in agricultural activities and in the production, handling, and storage of farm products; adding a new section to chapter 49.46 RCW; and declaring an emergency.

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

NEW SECTION.  Sec. 1.  A new section is added to chapter 49.46 RCW to read as follows:

(1) For employers electing to pay production-based safe harbor compensation under this chapter, the production-based safe harbor compensation shall not be less than one hundred eight percent of the applicable state minimum wage then in effect for the period of time within which production-based safe harbor compensation activity is being performed and other compensation is not being paid, as measured using a weekly averaging calculation as authorized in WAC 296-126-021, or such other calculation method as authorized by law, and at all times during which production-based safe harbor compensation is being paid, the employee is provided all breaks or rest periods as required by law.

(2) In calculating the qualification of one hundred eight percent of the applicable state minimum wage then in effect of production-based safe harbor compensation, all hours during which the employee is authorized or required by the employer to be on duty on the employer's premises or at a prescribed work location for purposes of performing the activities for which the production-based safe harbor compensation is being paid, inclusive of breaks, rest periods, and time spent on activities directly and indirectly associated with the activity, except to the extent the employee is specifically and separately compensated for a portion of such time on an hourly or other lawful basis, shall be included in the calculation and deemed compensated by payment of the greater of the production-based safe harbor compensation or one hundred eight percent of the applicable state minimum wage then in effect.

(3)(a) To encourage and expedite full compensation of employees for break times, rest and recovery periods, and time spent on activities directly and indirectly associated with the activity on which the production-based safe harbor compensation is calculated that occurred prior to the effective date of this section, employers may elect to pursue either of the following remedies:

(i) The employer may make payments to each of its employees for previously uncompensated or undercompensated break times, rest and recovery periods, time spent on activities directly and indirectly associated with the activity and other nonproductive time for the prior three years from the effective date of this section; or

(ii) The employer may pay each employee an amount equal to four percent of the employee's gross earnings for work performed on a production basis or piece work compensation basis during the three-year period prior to the effective date of this section, less the amounts previously and separately paid to that employee for break times, rest and recovery periods, time spent on activities directly and indirectly associated with the activity and other nonproductive time, if any.

(b) Employers must make reasonable and good faith efforts to locate and pay employees the amounts required under this subsection, and if after reasonable and good faith efforts, employers are unable to locate any employees entitled to the payments, employers may pay the amounts due the employees to the department of labor and industries, with the supporting records of the employees entitled this compensation, which shall have the same effect as though the compensation was paid to the employees entitled to that compensation.

(4)(a) Employers that have paid the compensation as provided in subsection (3) of this section within twelve months of the effective date of this section, shall have an affirmative defense to any claim or cause of action for the recovery wages, recordkeeping claims, damages or penalties, based solely upon the employer's failure to timely pay the employee compensation for break times, rest and recovery periods, and time spent on activities directly and indirectly associated with the activity on which piece rate wages were calculated, whenever instituted.

(b) An employer who makes a reasonable and good faith effort to pay the compensation as provided in subsection (3) of this section, but who solely through good faith error fails to make a payment to one or more employees as described in subsection (3) of this section, shall not lose the affirmative defense set forth in this subsection as a result of that good faith error if the employer, within thirty days of discovery or notice of the error, pays the compensation as described in subsection (3) of this section to the employee.

(5) For purposes of this section, "production-based safe harbor compensation" means a wage rate that may be paid to employees in connection with work related to the growing, production, handling, or storage of farm products as defined in RCW 7.48.310(4) or in performing agricultural activities as defined in RCW 7.48.310(1), based upon the employee's job performance as measured through the number of (a) units picked, packed, or manufactured; (b) tasks performed; (c) events completed; or (d) other measurable recurring circumstances produced, completed, or performed.

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