WSR 08-10-074




[ Filed May 6, 2008, 10:01 a.m. ]

Subject of Possible Rule Making: Chapter 296-128 WAC, Minimum wages.

Statutes Authorizing the Agency to Adopt Rules on this Subject: RCW 43.22.270 and 49.46.130.

Reasons Why Rules on this Subject may be Needed and What They Might Accomplish: The rule making is in response to Bostain v. Food Express, Inc., 159 Wn.2d 700, 153 P.3d 846 (2007). In that case, the court concluded that RCW 49.46.130(1) requires overtime compensation for hours worked over forty per week for interstate driving, including hours spent working out of state. Current rules require overtime pay for truck drivers only for their hours worked within Washington. These rules are not consistent with the statute and need to be amended.

The court's ruling directly affects two regulations with corresponding policies and enforcement practices. The court's decision has invalidated portions of WAC 296-128-011 and 296-129-012 where the rules define hours for purposes of overtime provisions as hours worked only within Washington state. Language will also be added that allows employers to submit their compensation systems to the department for review and approval.

Other Federal and State Agencies that Regulate this Subject and the Process Coordinating the Rule with These Agencies: None.

Process for Developing New Rule: Interested parties and the public may also participate by providing written comments or giving oral testimony during the public hearing and comment process.

Interested parties can participate in the decision to adopt the new rule and formulation of the proposed rule before publication by contacting Sally Elliott, Department of Labor and Industries, Specialty Compliance Services Division, P.O. Box 44400, Olympia, WA 98504-4400, phone (360) 902-6411, fax (360) 902-5292, e-mail

May 6, 2008

Judy Schurke


Washington State Code Reviser's Office