WSR 97-21-145

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[Filed October 22, 1997, 10:06 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-18-079.

Title of Rule: Chapter 296-128 WAC, Minimum wages.

Purpose: Proposed amendments will incorporate into chapter 296-128 WAC the current Federal Fair Labor Standards Act overtime and minimum wage exemptions for computer software professionals by creating a new section, WAC 296-128-535, written in a clear rule-writing style and entitled Are professional computer employees exempt from the Washington Minimum Wage Act?

Statutory Authority for Adoption: RCW 49.46.010 (2)(c).

Summary: Chapter 296-128 WAC, Minimum wages, WAC 296-128-535 Are professional computer employees exempt from the Washington Minimum Wage Act? State-initiated proposed amendments are made to incorporate current Federal Fair Labor Standards Act overtime and minimum wage exemptions for computer software professionals into chapter 296-128 WAC by creating a new section written according to clear rule-writing guidelines.

Reasons Supporting Proposal: See Summary above.

Name of Agency Personnel Responsible for Drafting: Greg Mowat, Tumwater, Washington, (360) 902-5310; Implementation and Enforcement: Ernie LaPalm, Tumwater, Washington, (360) 902-5329.

Name of Proponent: Department of Labor and Industries, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: See Summary above.

Proposal Changes the Following Existing Rules: See Summary above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The department has determined that the proposed rule would reduce the overall economic burden on business (by exempting some employers from paying overtime and minimum wages), and not place a more than minor economic impact on business. Thus, the department is not required to prepare a small business economic impact statement.

RCW 34.05.328 applies to this rule adoption. The proposed rule amendments do meet the test of a "significant legislative rule" because they will amend a significant existing regulatory program. However, since the proposed amendment would adopt a federal regulation without material change--RCW 34.05.328 (5)(b)(iii), the department is exempt from preparing an evaluation of probable costs and probable benefits as required by RCW 34.05.328 (1)(c).

Hearing Location: Department of Labor and Industries Building, Auditorium, 7273 Linderson Way, Tumwater, WA, on November 25, 1997, at 10:00 a.m.

Submit Written Comments to: Greg Mowat, Program Manager, Employment Standards, Department of Labor and Industries, P.O. Box 44510, Olympia, WA 98504-4510, by December 2, 1997, at 5:00 p.m.

In addition to written comments, the department will accept comments submitted to FAX (360) 902-5300. Comments submitted by FAX must be ten pages or less and must be submitted by 5:00 p.m. on December 2, 1997.

Date of Intended Adoption: December 31, 1997.

October 20, 1997

Gary Moore

NEW SECTION

WAC 296-128-535 Are professional computer employees exempt from the Washington Minimum Wage Act? (1) Any employee who is a computer system analyst, computer programmer, software engineer, software developer or other similarly skilled worker will be considered a "professional employee" and will be exempt from the minimum wage and overtime provisions of the Washington Minimum Wage Act if:

(a) Their primary duty is of one of the following:

(i) Applying systems analysis techniques and procedures to determine hardware, software, or system functional specifications for any user of such services; or

(ii) Following user or system design specifications to design, develop, document, analyze, create, test or modify any computer system, application or program, including prototypes; or

(iii) Designing, documenting, testing, creating or modifying computer systems, applications or programs for machine operation systems; or

(iv) Any combination of the above primary duties whose performance requires the same skill level; and

(b) Their rate of pay is at least $27.63 per hour.

(2) This professional exemption only applies to highly skilled employees who:

(a) Possess a high degree of theoretical knowledge and understanding of computer system analysis, programming and software engineering; and

(b) Have the ability to practically apply that theoretical knowledge and understanding to highly specialized computer fields; and

(c) Generally attain the necessary level of expertise and skill to qualify for an exemption through a combination of education and experience in the field; and

(d) Consistently exercise discretion and judgment in the application of their special knowledge as opposed to performing purely mechanical or routine tasks; and

(e) Engage in work that is predominantly intellectual and inherently varied in character as opposed to work that is routinely mental, manual, mechanical, or physical.

(3) While many employees who qualify for this exemption hold a bachelor's or higher degree, no degree is required for this exemption.

(4) This professional exemption does not apply to:

(a) Trainees or employees in entry level positions learning to become proficient in computer systems analysis, programming and software engineering; or

(b) Employees in computer systems analysis, programming and software engineering positions who have not attained a level of skill and expertise which allows them to generally work independently and without close supervision; or

(c) Employees engaged in the operation of computers; or

(d) Employees engaged in the manufacture, repair or maintenance of computer hardware and related equipment; or

(e) Employees covered by a collective bargaining agreement.