WSR 18-17-116
PROPOSED RULES
EMPLOYMENT SECURITY DEPARTMENT
[Filed August 16, 2018, 5:15 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 18-09-037.
Title of Rule and Other Identifying Information:
Chapter 192-01 WAC, Employment security rule governance.
•WAC 192-01-001 Rule governance statement.
Chapter 192-500 WAC, Definitions.
•WAC 192-500-010 Employer.
•WAC 192-500-015 Employer agent.
•WAC 192-500-020 Calendar quarter.
•WAC 192-500-025 Terms meaning deliver.
•WAC 192-500-030 Willful.
•WAC 192-500-035 Interested parties.
•WAC 192-500-040 Aggrieved person.
Chapter 192-510 WAC, Assessing and collecting premiums.
•WAC 192-510-045 How will the department assess the size of employers for calendar years 2019 and 2020?
•WAC 192-510-065 When can an employer deduct premiums from employees?
•WAC 192-510-066 How are premium payments applied?
Chapter 192-530 WAC, Voluntary plans.
•WAC 192-530-035 When must an employer with a voluntary plan provide benefit payments?
•WAC 192-530-060 What happens at the end of a voluntary plan?
•WAC 192-530-070 What is good cause for terminating an approved voluntary plan?
Chapter 192-540 WAC, Employer responsibilities.
•WAC 192-540-010 When must an employer send notice to employees who may need paid family and medical leave?
•WAC 192-540-020 What are the employer requirements for posting notice in a work place?
•WAC 192-540-025 Is notice required if an employer reduces the portion of employee premiums it is electing to pay?
•WAC 192-540-030 What are employers required to report to the department?
•WAC 192-540-040 How should employers report hours worked for each calendar quarter?
•WAC 192-540-050 When are employers required to submit quarterly reports to the department?
Chapter 192-550 WAC, Penalties and audits.
•WAC 192-550-010 What happens if an employer fails to submit required reports?
•WAC 192-550-020 What happens if an employer willfully fails to remit required payments?
•WAC 192-550-030 How will the department calculate interest on delinquent payments?
•WAC 192-550-040 Can employer interest be waived?
•WAC 192-550-050 Audit procedures.
•WAC 192-550-080 What happens if an employer fails to provide requested information to the department for an audit?
Chapter 192-560 WAC, Small business assistance.
•WAC 192-560-010 Which businesses are eligible for small business assistance grants?
•WAC 192-560-020 What is the application process for a small business assistance grant?
•WAC 192-560-030 What are significant additional wage-related costs for the purposes of small business assistance grants?
Chapter 192-570 WAC, Dispute resolution.
•WAC 192-570-010 Conference and conciliation.
•WAC 192-570-020 Complaints regarding unlawful acts.
Chapter 192-800 WAC, Practice and procedure.
•WAC 192-800-002 Untimely appeals.
Hearing Location(s): On October 24, 2018, at 9:00 a.m., at 640 Woodland Square Loop S.E., Lacey, WA 98503. Meeting will be held in the Park Place Conference Room; and on October 29, 2018, at 9:00 a.m., at DoubleTree by Hilton Spokane City Center, 322 North Spokane Falls Court, Spokane, WA 99201. Meeting room will be posted on a sign in the lobby and listed on the hotel's daily event board. Event parking is $8, metered street parking is also available.
Date of Intended Adoption: October 29, 2018.
Submit Written Comments to: Christina Streuli, Employment Security Department, P.O. Box 9046, Olympia, WA 98507-9046, email cstreuli@esd.wa.gov, online portal https://www.opentownhall.com/portals/289/forum_home, by October 29, 2018.
Assistance for Persons with Disabilities: Contact Teresa Eckstein, State EO Officer, phone 360-902-9354, TTY 711, email TEckstein@esd.wa.gov, by October 23, 2018.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposal will further define paid family and medical leave (PFML) requirements for premium assessment, voluntary plans, employer responsibilities, penalties and audits, small business assistance grants, dispute resolution, and appeals. The proposal will also add a rule governance statement to clarify what chapters in Title 192 WAC apply to the PFML program.
Reasons Supporting Proposal: The rules will assist in meeting the requirements to implement the collection of premiums and accept voluntary plans from Washington employers by January 1, 2019, as mandated by Title 50A RCW, Family and medical leave. Additionally, the rules will provide guidance for employees and employers regarding operations and requirements for the new PFML program.
Statutory Authority for Adoption: RCW 50A.04.215.
Statute Being Implemented: RCW 50A.04.010, 50A.04.070, 50A.04.075, 50A.04.080, 50A.04.085, 50A.04.090, 50A.04.095, 50A.04.100, 50A.04.135, 50A.04.140, 50A.04.180, 50A.04.195, 50A.04.230, 50A.04.505, 50A.04.520, 50A.04.600, 50A.04.605, 50A.04.610, 50A.04.615, 50A.04.620, 50A.04.650, 50A.04.625, 50A.04.630, 50A.04.635, 50A.04.650, 50A.04.655, 50A.04.660, and 50A.04.665.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Employment security department (ESD), PFML, governmental.
Name of Agency Personnel Responsible for Drafting: Christina Streuli, Lacey, Washington, 360-791-6710; Implementation and Enforcement: Matt Buelow, Lacey, Washington, 360-742-7311.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Christina Streuli, ESD, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-791-6710, TTY Teresa Eckstein, State EO Officer, 360-902-9354, 711, TEckstein@esd.wa.gov, email cstreuli@esd.wa.gov.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 34.05.328 (5)(c)(ii) and (iii)(C).
Explanation of exemptions: RCW 34.05.328 (5)(c)(ii) creates an exemption for interpretive rules. This exemption applies to portions of the proposal. RCW 34.05.328 (5)(c)(iii)(C) outlines conditions which must be met for a rule to require analysis. Portions of the proposal do not meet these requirements.
The proposed rule does impose more-than-minor costs on businesses.
Small Business Economic Impact Statement
Rules implementing Title 50A RCW, The family and medical leave program: WAC 192-540-020, 192-540-030, and 192-560-020.
1. Provide a Brief Description of the Requirements of the Proposed Rules: In 2017, the Washington state legislature passed SSB 5975 establishing the Paid Family and Medical Leave Act. SSB 5975 was codified as Title 50A RCW.
The PFML insurance program provides for at least partial wage replacement when a qualified employee takes leave for an approved reason related to family or medical leave. The statute requires ESD to develop rules implementing the program, which are being promulgated in multiple phases. This filing comprises rules developed in phase two, which primarily covers regulations related to employer responsibilities, penalties, and small business grants.
The rules in phase two provide guidance to employers and the community on several topics. At a high level, the rules contain guidance on:
•The responsibilities with which employers must comply such as providing notices to employees who may need the program and what must be reported to the department each quarter;
•The process for performing an audit and accessing certain penalties;
•The components of conference and conciliation and dispute resolution between employers and the department;
•The procedures for applying for small business assistance grants;
•Various definitions needed to clarify phrases used in the rules; and
•Other areas related to PFML.
Rules in this phase also offer additional clarity on the voluntary plan framework and on premium assessment. The majority of rules on these topics were finalized in phase one of the PFML rule making.
2. Costs to Businesses to Comply with the Proposed Rules: The majority of phase two rules do not require a calculation of cost for compliance.1 The following rules do require this analysis:
WAC 192-540-020 What are the employer requirements for posting notice in a work place?2
This rule requires employers to post a standard notice in a common work area that informs employees of certain employee rights under the PFML program. This rule implements RCW 50A.04.075 and provides additional guidance and clarity for employers.
Opportunity cost breakdown for small businesses
Median hourly pay rate to complete the task
$20 per hour
Median hours required to complete the task
1 hour
Opportunity cost for each small business
$20.00, one-time cost
Estimated opportunity cost to all small businesses
$6,265,960.00, one-time cost
WAC 192-540-030 What are employers required to report to the department?3
This rule requires employers to submit quarterly reports to the department containing certain information related to employees. The rule implements RCW 50A.04.080. Instructions on when reports must be filed are contained in WAC 192-540-050, and 192-540-040 addresses how hours are to be included in the report.
Opportunity cost breakdown for small businesses
Median hourly pay rate to complete the task
$29 per hour
Median hours required to complete the task
5 hours
Number of reports that must be submitted
4 annually, on a quarterly basis
Opportunity cost for each small business
$580.00, annually
Estimated opportunity cost to all small businesses
$181,712,840.00, annually
WAC 192-560-020 What is the application process for a small business assistance grant?4
Small businesses are eligible to apply for assistance grants to help offset the cost of an employee taking PFML. The rule establishes application contents and various eligibility and exclusion criteria. The rule implements RCW 50A.04.230 and provides additional guidance for small businesses on how to submit grant applications.
Opportunity cost breakdown for small businesses
Median hourly pay rate to complete the task
$25 per hour
Median hours required to complete the task
10 hours
Opportunity cost for each small business5
$78,324,500, annually
Estimated opportunity cost to all small businesses
$250, for every grant submitted
1 See chapter 5 of the significance analysis for a complete list of rules that do and do not require cost analysis in the small business economic impact study or the significance analysis.
2 See chapter 5 of the significance analysis for full details on the costs imposed on businesses for complying with WAC 192-540-020.
3 See chapter 5 of the significance analysis for full details on the costs imposed on businesses for complying with WAC 192-540-030.
4 See chapter 5 of the significance analysis for full details on the costs imposed on businesses for complying with WAC 192-560-020.
5 Small businesses may be eligible to submit more than one grant application per year. Therefore, this estimate is the lowest threshold of economic impact, assuming every small business submits one grant application per year.
3. Impact on Sales or Revenue: Any impact on sales or revenue is assumed to be a result of the passage of SSB 5975 by the state legislature rather than the result of agency rule making pertaining to its implementation.
4. Cost of Compliance for Small Businesses vs. Ten Percent of Largest Businesses: Large businesses, defined as the top ten percent of businesses in the state by employment, will experience no economic impact due to the phase two PFML rules. The cost of administering the PFML rules will be spread across a large number of employees and is marginal - it is contained in the existing business cost structure.
WAC 192-540-020 What are the employer requirements for posting notice in a work place? This rule imposes a possible disproportionate impact on small business employers. The event of an employer posting a standard notice in a common work area does take an amount of employee time, paper (if the notice is not printed by the department), ink, and staples, glue, tacks, etc. Because the impact to large businesses is considered marginal and included in existing business cost structure, the impact to small businesses could be disproportional if such a business cost structure is not already in place.
WAC 192-540-030 What are employers required to report to the department? This rule imposes a possible disproportionate impact on small business employers. The report required by this rule is an accounting, human resources, and administrative management activity that occurs quarterly throughout the calendar year. Businesses will need to prepare, create, and submit reports that did not exist before the passage of the PFML act. Most businesses, large and small, will be required to submit this report. However, because the impact to large businesses is considered marginal and included in existing business cost structure, the impact to small businesses could be disproportional if such business cost structure is not already in place.
WAC 192-560-020 What is the application process for a small business assistance grant? This rule imposes economic cost on those businesses that apply for small business assistance grants. The rule establishes application content and various eligibility and exclusion criteria. Receiving an assistance grant reduces the cost of participating in the PFML program and therefore it is assumed that every small business in the state will submit at least one grant application per year. Only small businesses are eligible for these grants; large businesses do not qualify. Therefore, the rule disproportionately effects small businesses.
5. Steps Taken to Reduce Costs on Small Businesses: RCW 19.85.030(2) lists several options for agencies to consider when attempting to reduce the impact of proposed rules on small businesses. These options were considered by agency staff and ultimately deemed unfeasible based on the nature of the rules in question.
WAC 192-540-020 What are the employer requirements for posting notice in a work place? The requirement to post a notice for employees to view is a statutory requirement in RCW 50A.04.075. The statute and rule allow employers to use a notice provided by the department in lieu of creating one. If an employer chooses to create a notice, the rule provides guidance on what must be included. Because the posting of a notice is a statutory requirement and because all employers can choose to use a notice developed by the department, no specific steps were taken to reduce costs.
WAC 192-540-030 What are employers required to report to the department? Statute requires employers to make and furnish reports and information to the department. RCW 50A.04.080. The rule provides additional guidance related to the frequency of those reports and must be included. The department considered all possible data fields employers could be required to provide and settled on those required by the rule because of the need to receive enough information to match the information provided by employers with the information provided by employees when such employees seek to open a claim for benefits. To properly determine if an employee is eligible for benefits the department must have enough information to determine hours worked, location of the work, and other elements. The department considered several other data elements but ultimately deemed them too onerous on employers. The data elements required by the rule are the minimum requirements needed to properly administer the program, ensure the integrity of the system, and limit fraudulent activity.
Similarly, the department cannot require fewer data elements from small businesses than it would from large businesses because of the need to properly match employer information with employee information when an application for benefits is made.
WAC 192-560-020 What is the application process for a small business assistance grant? Because WAC 192-540-030 is dependent on a small business employer opting into a nonrequired component of the law, no specific steps were taken to reduce costs. While it is estimated that the rule will impose a $250 opportunity cost to employers, receiving an assistance grant reduces the overall cost of participation. If an application is approved, the employer will experience a financial gain.
6. How Did the Agency Involve Small Businesses? For the rules considered by this impact study, three surveys were used to gather data from small businesses. The survey sample frame contained 101,398 Washington state unemployment insurance covered small businesses that had an email address.
Three cohorts are used, one for each of the three rules that require an impact statement, each of equal size. The three files are uploaded to a "collector" in Survey Monkey and then sent out for response via the Survey Monkey system. The results from this survey created the data presented in the impact study.
Additionally, the department appointed an advisory committee consisting of advocates for both employer and employee interests, as required in RCW 50A.04.200. The team of advocates for employer interests represents several businesses in the state, including small businesses. These advocates were integral in the development of both the law and the rules governing it.
Lastly, through the standard rule-making process, several public meetings were held prior to filing the notice of proposed rules. Two informal "listening sessions" were held where any member of the public, including small business owners and stakeholders, could voice their opinions on what should be covered by rule in each phase. The department also hosted two "stakeholder meetings" where representatives of the department presented drafts of rules and opened the floor for public comment. All stakeholders, including small business representatives, were also allowed to post comments in response to agency draft rules online through a civic engagement portal.
7. List of Industries Affected: Title 50A RCW generally applies to all employers in Washington state, apart from the federal government.
2-digit NAICS
Industry Sectors
Total Establishments
Total Employment
Total
Total
243,084
3,225,703
11
Agriculture, forestry, fishing and hunting
7,415
89,295
21
Mining
172
2,350
22
Utilities
591
18,747
23
Construction
25,033
180,526
31, 32, 33
Manufacturing
7,698
293,807
42
Wholesale trade
14,199
130,050
44, 45
Retail trade
20,550
368,567
48, 49
Transportation and warehousing
5,633
124,044
51
Information
4,441
128,611
52
Finance and insurance
8,885
93,768
53
Real estate and rental and leasing
8,344
51,941
54
Professional and technical services
25,655
199,303
55
Management of companies and enterprises
716
43,711
56
Administrative and waste services
12,502
161,480
61
Educational services
3,843
283,651
62
Health care and social assistance
55,341
460,623
71
Arts, entertainment and recreation
3,104
70,512
72
Accommodation and food services
17,094
267,382
81
Other services, except public administration
19,739
96,565
92
Public administration
2,129
160,770
Source: Employment security department.
8. Number of Jobs Lost/Created: Any jobs lost or created are assumed to be a result of the passage of SSB 5975 by the state legislature rather than the result of agency rule making pertaining to its implementation.
A copy of the statement may be obtained by contacting Christina Streuli, ESD, P.O. Box 9046, Olympia, WA 98507-9046, phone 360-791-6710, TTY Teresa Eckstein, State EO Officer, 360-902-9354, 711, TEckstein@esd.wa.gov, email cstreuli@esd.wa.gov.
August 16, 2018
Susan G. LeVine
Commissioner
Chapter 192-01 WAC
EMPLOYMENT SECURITY RULE GOVERNANCE
NEW SECTION
WAC 192-01-001Rule governance statement.
The employment security department administers several distinct programs in Titles 50 and 50A RCW through the Washington Administrative Code. The provisions in chapters 192-04 through 192-499 WAC apply to the Employment Security Act in Title 50 RCW and other programs administered by the employment security department, except for the paid family and medical leave program. Chapter 192-500 WAC and thereafter (chapters 192-500 through 192-999 WAC) apply to the paid family and medical leave program in Title 50A RCW.
Chapter 192-500 WAC
DEFINITIONS
NEW SECTION
WAC 192-500-010Employer.
(1) An "employer" is:
(a) Any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company, limited liability company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or the legal representative of a deceased person, having any person in employment or, having become an employer, has not ceased to be an employer as provided in this chapter;
(b) The state, state institutions, and state agencies;
(c) Any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision; and
(d) A franchisee.
(2) "Employer" does not include the United States of America.
(3) For the purposes of paid family and medical leave, the term employer is used for both employer and employer agent.
(4) This section does not apply to any self-employed person or federally recognized tribe that has not elected coverage under Title 50A RCW.
NEW SECTION
WAC 192-500-015Employer agent.
(1) An "employer agent" is a designated representative that is authorized to conduct business on behalf of the employer.
(2) In order to represent an employer before the department, the employer or employer agent must submit a signed power of attorney form to the department.
(3) The employer is responsible for all acts taken or failures to act by the employer agent on the employer's behalf.
NEW SECTION
WAC 192-500-020Calendar quarter.
"Calendar quarter" means the period of three consecutive calendar months ending on March 31st, June 30th, September 30th, or December 31st.
NEW SECTION
WAC 192-500-025Terms meaning deliver.
(1) Unless otherwise specified, the terms "mail," "provide," "file," "submit," and "send" are interchangeable and mean to properly transmit, deliver, or distribute:
(a) By email or other electronic services; or
(b) In another format approved by the department.
(2) This section does not apply to appeals filed under Title 50A RCW.
NEW SECTION
WAC 192-500-030Willful.
"Willful" and "willfully" means a knowing and intentional act or omission, unless otherwise defined in Title 50A RCW.
NEW SECTION
WAC 192-500-035Interested parties.
(1) In all determinations, cases, and appeals adjudicated under Title 50A RCW the employment security department is an "interested party."
(2) Other interested parties in family or medical leave determinations related to the state plan and appeals include:
(a) The employee or former employee; and
(b) An employer or former employer of that employee that is required to provide information to the department related to the determination or appeal in question.
(3) Other interested parties in family or medical leave determinations related to a voluntary plan include:
(a) The employer or former employer; and
(b) An employee or former employee that is required to provide information to the department related to the determination or appeal in question.
(4) Other interested parties in a determination related to a small business assistance grant include the employer requesting the grant.
NEW SECTION
WAC 192-500-040Aggrieved person.
An "aggrieved person" is any interested party who receives an adverse decision from:
(1) The department for which the department has provided notice of appeal;
(2) The office of administrative hearings; or
(3) The commissioner's review office.
Chapter 192-510 WAC
ASSESSING AND COLLECTING PREMIUMS
NEW SECTION
WAC 192-510-045How will the department assess the size of employers for calendar years 2019 and 2020?
(1) For the purposes of premium assessment for calendar year 2019, the department will determine the size of all employers by reviewing the number of employees reported pursuant to WAC 192-540-030 for the first calendar quarter. Employers that report fifty or more employees will be required to pay the employer share of the premium for all calendar quarters in calendar year 2019.
(2) On September 30, 2019, the department will average the number of employees reported over the quarters for which reporting exists to determine employer size for calendar year 2020.
NEW SECTION
WAC 192-510-065When can an employer deduct premiums from employees?
(1) An employer may not deduct more than the maximum allowable employee share of the premium from wages paid for a pay period.
(2) If an employer fails to deduct the maximum allowable employee share of the premium from wages paid for a pay period, the employer is considered to have elected to pay that portion of the employee share under RCW 50A.04.115 (3)(d) for that pay period. The employer cannot deduct this amount from a future paycheck of the employee for a different pay period.
NEW SECTION
WAC 192-510-066How are premium payments applied?
(1) A payment received with a premium assessment will be applied to the quarter for which the premium assessment is filed. A payment exceeding the legal fees, penalties, interest and premiums due for that quarter will be applied to any other debt as provided in subsection (2) of this section. If no debt exists, a refund will be issued for any premium overpayments of fifty dollars or more. Premium overpayments of less than fifty dollars will be credited to future premium assessments.
(2) Payments received will be applied in the following order of priority:
(a) Current quarter balance;
(b) Any previous quarter premium balance starting with the oldest quarter;
(c) Then beginning with the oldest quarter in which a balance is owed:
(i) Penalties;
(ii) Fees; and
(iii) Interest charges.
Chapter 192-530 WAC
VOLUNTARY PLANS
NEW SECTION
WAC 192-530-035When must an employer with a voluntary plan provide benefit payments?
An employer with an approved voluntary plan must send the first benefit payment to the employee within thirty calendar days of the first day of leave, or the receipt of a properly completed application for benefits, whichever is later. Subsequent payments must be sent on the established regular pay schedule at no longer than monthly intervals. Failure to adhere to these requirements may result in the termination of the voluntary plan by the department.
AMENDATORY SECTION(Amending WSR 18-12-032, filed 5/29/18, effective 6/29/18)
WAC 192-530-060What happens at the end of a voluntary plan?
(1) If the employer chooses to withdraw from a voluntary plan due to a legally required increase in the benefit amounts or any change in the rate of employee premiums, the employer must ((notify))provide notice to the department at least thirty ((calendar days before the withdrawal. Notification of withdrawal shall be submitted to the department online or in another format approved by the department.
(2)))days prior to the date that the change goes into effect. The plan will be considered withdrawn on the date of the change. The employer must remit any deductions from the wages of an employee remaining in the possession of the employer to the department within thirty days of the effective date of the withdrawal.
(2)(a) If the employer chooses to withdraw from a voluntary plan for any other reason, the employer must provide notice to the department at least thirty days prior to the end of a calendar quarter. The plan will be considered withdrawn on the first day of the following calendar quarter.
(b) If notice is provided less than thirty days prior to the end of a quarter, the plan will be considered withdrawn on the first day of the second calendar quarter following notice of the withdrawal.
(c) The employer must remit any deductions from the wages of an employee remaining in the possession of the employer to the department within thirty days of the effective date of the withdrawal.
(3) If the department ((has terminated))terminates an employer's ((participation in a)) voluntary plan, the department will notify the employer of the effective date and the reason for termination. The department will calculate the amount owed by the employer and send an invoice for payment. The amount due will consist of all moneys in the plan, including premiums paid by the employer, premiums paid by the employees, moneys owed to the voluntary plan by the employer but not yet paid to the plan, and any interest accrued on all these moneys. The amount will be due immediately. Any balance owed will not start collecting interest until thirty calendar days after the date of the invoice.
(4) Benefit eligibility under a voluntary plan must be maintained for all employees covered by that plan until the effective date of termination or withdrawal.
(a) On the effective date of a voluntary plan termination, employees currently receiving paid family or medical leave benefits are, if otherwise eligible, immediately entitled to benefits from the state program.
(b) For employees currently receiving paid family or medical leave benefits on the effective date of a voluntary plan withdrawal, the employer will have the option to:
(i) Continue to pay benefits under the terms of the voluntary plan until the total amount of the benefit is paid or the duration of leave ends, whichever happens first; or
(ii) Immediately pay the employee the maximum remaining amount of benefits available to the employee under the terms of the voluntary plan, regardless of the duration of leave that is actually taken.
(c) On the effective date of a voluntary plan termination or withdrawal, employees currently taking family or medical leave under this chapter are, if otherwise eligible, entitled to the job protection provisions of RCW 50A.04.600(5) until the duration of leave ends.
(5) Employers are required to notify employees of any plan withdrawal or termination within five business days of notification by the department of the effective date of termination or withdrawal.
NEW SECTION
WAC 192-530-070What is good cause for terminating an approved voluntary plan?
The department may terminate a voluntary plan if there is a risk that benefits will not be paid or for other good cause shown. Good cause for terminating a voluntary plan includes, but is not limited to, an employer's failure to:
(1) Pay timely and accurate paid family or medical leave benefits;
(2) Provide leave for a qualified event;
(3) Protect the employment and employment benefits of an employee when required;
(4) Provide complete quarterly reports;
(5) Report to the department any amendments made to the voluntary plan; 
(6) Adhere to the approved voluntary plan; or
(7) Adhere to the requirements of Title 50A RCW or chapter 192-500 WAC and thereafter (chapters 192-500 through 192-999 WAC).
Chapter 192-540 WAC
EMPLOYER RESPONSIBILITIES
NEW SECTION
WAC 192-540-010When must an employer send notice to employees who may need paid family and medical leave?
(1) Employers must provide a written notice of employee rights to any employee when an employer becomes aware that the employee is taking family leave, medical leave, or a combination of both for a duration of more than seven consecutive days of work. The employer must use a notice provided by the department.
(2) The notice must be sent to the employee by the fifth business day after the employee's seventh consecutive missed day of work due to family or medical leave, or by the fifth business day after the employer becomes aware that the employee's absence is due to family or medical leave, whichever is later.
NEW SECTION
WAC 192-540-020What are the employer requirements for posting notice in a work place?
(1) Employers must post and keep posted a notice regarding pertinent provisions of Title 50A RCW and filing of complaints in a common area, such as a break room or other area where such notices are customarily posted.
(2) Employers must use a standard notice that the department makes available or a notice developed by the employer, which must be approved by the department. The notice developed by the employer must be submitted to the department and contain the following:
(a) Information on how an employee may file a claim;
(b) Information about filing a complaint against an employer;
(c) Responsibilities for premium payments;
(d) Information including rights to the paid family and medical leave program as provided by the state or the employer's voluntary plan; and
(e) The minimum and maximum provisions available for paid family or medical leave, including:
(i) Weekly benefit amount;
(ii) Maximum weeks available under paid family or medical leave; and
(iii) How long the benefit is available after the employee applies.
(3) Employers can be audited to determine if a proper notice with pertinent information is displayed.
(4) Failure to post this notice may result in a penalty of one hundred dollars for each instance in which the department determines the employer has willfully failed to comply with this requirement. The department will deposit any penalties collected in accordance with this section into the paid family and medical leave enforcement account.
NEW SECTION
WAC 192-540-025Is notice required if an employer reduces the portion of employee premiums it is electing to pay?
An employer that elects to pay all or a portion of its employees' premiums, must give written notice at least one pay period in advance of any reduction to its elected payment.
NEW SECTION
WAC 192-540-030What are employers required to report to the department?
(1) Each calendar quarter, every employer must file a complete report with the department. The report must include each employee's:
(a) Full name;
(b) Social Security number;
(c) Zip code of primary work location;
(d) Job title;
(e) Start date;
(f) Wages paid during that quarter; and
(g) Total hours worked during that quarter.
(2) The report must include the total amount of premiums deducted from all employees' wages, if any, during the calendar quarter.
(3) If an employee does not have a Social Security number but does have an individual taxpayer identification number (ITIN), the ITIN qualifies as a Social Security number. If the employee later obtains a Social Security number, the employer should use the Social Security number when filing the report of the employee's wages.
NEW SECTION
WAC 192-540-040How should employers report hours worked for each calendar quarter?
Each calendar quarter, employers must report to the department the number of hours worked by each employee. Employers must include the following hours in the report.
(1) Hourly employees. Report the total number of hours worked by each employee.
(2) Employees on salary. Report forty hours for each week in which a full-time, salaried employee worked.
(3) Vacation pay, sick leave pay, paid time off. Report the number of hours an employee is on paid leave. Do not report hours for a cash out of leave.
(4) Overtime. Report the number of hours actually worked for which overtime pay or compensatory time is provided, without regard to the amount of wages or compensation paid.
(5) Commissioned or piecework employees. Report the actual number of hours worked by employees paid by commission or by piecework. If there are no reliable time keeping records, report a full-time commissioned or piecework employee at forty hours worked for each week in which any of their duties were performed.
(6) Wages in lieu of notice. Report the actual number of hours for which an employee was paid.
(7) Faculty employees.
(a) To be considered full time, faculty members of community and technical colleges must meet the definition of "full time" as defined in RCW 28B.50.489.
(i) For full-time faculty members, report thirty-five hours per week.
(ii) For part-time faculty members, multiply thirty-five hours by the percentage that is equal to the percentage of hours worked in relation to a full-time faculty member consistent with RCW 28B.50.4891.
Example: A technical college deems a teaching workload of fifteen hours per week to be full time. An instructor teaches a workload of twelve hours per week. Twelve divided by fifteen is eighty percent. Eighty percent of thirty-five is twenty-eight. Report twenty-eight hours per week.
(b) Part-time faculty members may overcome the presumption of hours established by this formula by providing the department with sufficient evidence of hours worked that exceeds the hours reported by employer.
(8) Severance pay. Do not report hours for severance pay.
(9) Payment in kind. Report the actual hours worked for performing services which are compensated only by payment in kind.
(10) Fractions of hours. If the employee's total number of hours for the quarter results in a fraction amount, round the total to the next higher whole number.
(11) Practice, preparation, and rehearsal time. If an employee who is part of a performing group is paid for a performance but is also required by the employer to attend practice, preparation, and rehearsal on an organized group basis, report the hours spent in the required practice, preparation, and rehearsal as well as the performance.
(12)(a) On-call and standby hours. Report the number of actual hours for which an employee receives wages for being on call or on standby with the employer. Do not report hours for which an employee is scheduled to check in before work, and if not required to work, has no further obligations.
(b) For the purpose of this section, "on-call" and "standby" hours are defined as paid hours when employees must comply with employer requirements, such as maintaining physical or mental status, remaining in a specified location, or being required to report to work within a specific time frame.
NEW SECTION
WAC 192-540-050When are employers required to submit quarterly reports to the department?
The quarterly reports referenced in WAC 192-540-030 must be submitted by the last day of the month following the end of the calendar quarter being reported. If a reporting date falls on a Saturday, Sunday, or a legal holiday, the reports will be due on the next business day.
Chapter 192-550 WAC
PENALTIES AND AUDITS
NEW SECTION
WAC 192-550-010What happens if an employer fails to submit required reports?
(1) An employer that willfully fails to file a complete and timely report under WAC 192-540-030 through 192-540-050 is subject to penalties under RCW 50A.04.090.
(2) The department will send a warning letter for an employer's first incomplete or untimely report. For a second or subsequent occurrence within five years of the date of the last occurrence, the department will assess penalties under the following schedule:
(a) 2nd occurrence: $75.00
(b) 3rd occurrence: $150.00
(c) 4th and subsequent occurrences: $250.00
(3) After five years without a warning letter or occurrence, prior occurrences will not count and the employer shall receive a warning letter instead of a penalty on the next occurrence.
NEW SECTION
WAC 192-550-020What happens if an employer willfully fails to remit required payments?
(1) An employer that willfully fails to remit payment for premiums in full when due is subject to penalties under RCW 50A.04.090 in addition to accruing interest under WAC 192-550-030.
(2) The total amount of the penalty will be equal to the entire balance of premiums not remitted and any interest accrued on those delinquent premiums.
Example: If an employer owes $300 in premium payments and $20 in interest, the penalty for willfully failing to remit payment will equal $320, for a sum total due and owing of $640.
NEW SECTION
WAC 192-550-030How will the department calculate interest on delinquent payments?
(1) When an employer fails to remit payment by the due date, the remaining unpaid balance shall accrue interest at a rate of one percent, compounded monthly, until payment is received in full.
(2) The department will issue a notice to employers whose payments are delinquent. The notice will include the total amount due for all applicable premiums, penalties, and interest under Title 50A RCW.
NEW SECTION
WAC 192-550-040Can employer interest be waived?
(1) An employer may submit to the department an interest waiver request that includes all relevant facts, including all available proof, as to why it is requesting a waiver under RCW 50A.04.140.
(2) At its discretion, the department may waive interest if it finds that the interest was caused by the department's own error or the department's inability to decide the issue.
NEW SECTION
WAC 192-550-050Audit procedures.
(1) The department may inspect and audit employer files and records as needed to ensure compliance with Title 50A RCW. Audits may take place at the discretion of the department.
(2) Employers must provide all requested information to the department within ten business days or a time frame agreed to by the department.
(3) If the department discovers violations for the time frame being audited, the department may expand the audit to include prior and subsequent quarters, up to the most recently completed calendar quarter.
NEW SECTION
WAC 192-550-080What happens if an employer fails to provide requested information to the department for an audit?
Employers must provide all requested documentation as it pertains to the paid family and medical leave program. If an employer fails or refuses to provide necessary payroll or other wage information during an audit, the department may determine payroll and wage information for the purposes of premium assessment based on information otherwise available to the department. This may include information from the same employer, similar employers, labor market information, information provided to other state or local agencies, or the best information otherwise available to the department.
Chapter 192-560 WAC
SMALL BUSINESS ASSISTANCE
NEW SECTION
WAC 192-560-010Which businesses are eligible for small business assistance grants?
(1) Employers determined to have one hundred fifty or fewer employees in the state that are assessed the employer share of the premium are eligible to apply for small business assistance grants.
(2) Employers determined to have fewer than fifty employees are only eligible to apply for a small business assistance grant if they opt to pay the employer share of the premiums. The employer will be assessed the employer share of the premium for a minimum of three years after any grant is received. An employer may provide notice for opting out after the three-year period.
(3) An employer may request only one grant for each period of paid family or medical leave taken by an employee. Submissions under (a) and (b) of this subsection do not qualify as grant applications and therefore do not count against the employer's limit of ten applications per year.
(a) An employer that qualifies for a grant under RCW 50A.04.230 (3)(b) for an amount that is less than one thousand dollars may submit documentation of significant additional wage-related costs incurred after filing the initial grant application in an attempt to qualify for additional grant funds.
(b) An employer may submit a revised application for a grant under RCW 50A.04.230 (3)(c) in an attempt to qualify for additional grant funds.
(4) An employer must apply for the grant no later than four months following the last day of the employee's paid family or medical leave.
NEW SECTION
WAC 192-560-020What is the application process for a small business assistance grant?
(1) Applications for small business assistance grants must be submitted online or in another format approved by the department. To be approved, an application must contain:
(a) The name and Social Security number or individual taxpayer identification number of the employee taking leave;
(b) The amount and type of grant being requested;
(c) An explanation summarizing any personnel or significant additional wage-related costs that were taken because of an employee taking leave; and
(d) Written documentation including, but not limited to, personnel records related to the hiring of a new temporary employee, wage reports, and signed statements, showing the temporary worker hired or significant additional wage-related costs incurred are due to an employee's use of leave.
(2) Incomplete applications will not be reviewed and will not count against an employer's limit of ten applications per year under RCW 50A.04.230(4).
(3) The department will deny the application for reasons including, but not limited to, the employer's failure to demonstrate that:
(a) It hired a temporary worker or incurred any significant additional wage-related costs; or
(b) The temporary worker hired or significant additional wage-related cost incurred was not due to an employee's use of family or medical leave.
(4) If a grant application is denied, the application will count against an employer's limit of ten applications per year.
(5) The denial of a grant application is appealable.
NEW SECTION
WAC 192-560-030What are significant additional wage-related costs for the purposes of small business assistance grants?
Significant additional wage-related costs are added expenses incurred by the small business due to an employee's use of leave and include:
(1) Paying additional wages to an existing employee;
(2) Outsourcing costs;
(3) Certification;
(4) Equipment purchases; or
(5) Other costs that the department, in its discretion, determines are appropriate.
Chapter 192-570 WAC
DISPUTE RESOLUTION
NEW SECTION
WAC 192-570-010Conference and conciliation.
(1)(a) The department will engage employers in conference and conciliation when the employer fails to make all required:
(i) Premium payments;
(ii) Payments on penalties assessed by the department for the failure to submit required reports; or
(iii) Payments on penalties assessed by the department for violations related to voluntary plans.
(b) "Conference and conciliation" for the purpose of this chapter means to encourage an amicable resolution of disputes between the employer and the department prior to the issuance of a warning letter.
(2) The department will promptly attempt to contact the employer to engage in conference and conciliation when appropriate under subsection (1) of this section. If the department does not receive a response from the employer by the deadline given, the department will attempt the contact again, for a total of two attempts. A warning letter will be sent to the employer if no contact can be made.
(3)(a) Through conference and conciliation employers will be given an opportunity to provide information and to explain their reasons for failing to meet the department's requirements in subsection (1) of this section. The department will not issue a warning letter if:
(i) The employer provides good cause;
(ii) The department determines that the good cause provided prevented compliance; and
(iii) The parties agree to an approved repayment schedule.
(b) "Good cause" for the purpose of this section means:
(i) Death or serious illness of one or more persons directly responsible for discharging the employer's duties under Title 50A RCW;
(ii) Destruction of the employer's place of business or business records not caused by, or at the direction of, the employer; or
(iii) Fraud or theft against the employer.
(4) The burden of proof is on the employer to provide all pertinent facts and evidence or documentation for the department to determine good cause.
(5) Conference and conciliation is only available to employers that meet the requirements of RCW 50A.04.080, 50A.04.090, and 50A.04.655. Those employers that do not meet these requirements will be issued a warning letter without entering conference and conciliation. Penalties and interest will be assessed thereafter under Title 50A RCW and the rules adopted pursuant thereto.
(6) The department will issue a warning letter when:
(a) The employer does not comply with the approved repayment schedule; or
(b) A resolution is not reached through conference and conciliation.
NEW SECTION
WAC 192-570-020Complaints regarding unlawful acts.
(1) It is unlawful for an employer to discriminate against any employee for a reason specified in RCW 50A.04.085. When the department receives notification from an employee that discrimination may have occurred the department will investigate the allegation and issue a determination. The determination will include any remedies available under RCW 50A.04.100.
(2) Nothing in the chapter shall be construed to prohibit a private right of action under all applicable laws.
Chapter 192-800 WAC
PRACTICE AND PROCEDURE
NEW SECTION
WAC 192-800-002Untimely appeals.
Late appeals will be sent to the office of administrative hearings to determine if the appellant had good cause to file a late appeal.