November 2021: Seattle is Increasing Minimum Wage

Update Applicable to:

All employers in Seattle, WA.

What happened?

On September 30, 2021, Washington State’s Department of Labor and Industries (L&I) announced that the state’s minimum wage will increase, and because of this, Seattle is also increasing its minimum wage.

What are the details?

Beginning January 1, 2022, Seattle will increase its minimum wage to $17.27 per their Minimum Wage Ordinance that went into effect on April 1, 2015, and will continue to increase on January 1, every year.

  • Employers with 501 or more employees will need to pay $17.27 per hour.
  • Employers with 500 or fewer employees can pay $15.75 per hour if they pay $1.52 per hour towards medical benefits and/or if the employee earns $1.52 per hour in tips.

For more information, please see the links below:

Wage increase in Washington State Announcement

Minimum Wage Ordinance

Minimum Wage Table 1

Minimum Wage Table 2

Article 1

What do employers need to do?

Employers should review the information above and prepare to make changes to their payroll system to comply with the upcoming wage increase.

November 2021: Washington State Minimum Wage Increasing in 2022

Update Applicable to:

All employers operating in the state of Washington.

What happened?

On September 30, 2021, Washington State’s Department of Labor & Industries (L&I) announced that the state’s minimum wage will be increasing by 5.83%.

What are the details?

Starting January 1, 2022, Washington State’s current minimum wage will be increasing by 5.83%, based on the L&I’s calculation from the Consumer Price Index Summary.

  • Employees ages 16 and up will have their minimum wage increased from $13.59 to $14.49.

  • Under state law, employers can pay 85% of the minimum wage to workers ages 14-15. For 2022, the wage for that younger group will be $12.32 per hour.

  • Salaried exempt employees will have their wages increased based on the “Salary threshold implementation schedule” provided by L&I.

For more information, please see the links below:

Department of Labor & Industries news release

Consumer Price Index

Salary threshold implementation schedule

Article

What do employers need to do?

Employers should review the information above and prepare to make changes to their payroll system to comply with the upcoming wage increase.

August 2021 Washington HR Legal Updates

Washington’s Wage Recovery Act Passed to Include Statutory Wage Liens on Unpaid Wages

Update Applicable to:
All employers in Washington.

What happened?
On April 16, 2021, Governor Inslee signed Senate Bill 5355 (SB 5355) into law.

What are the details?
Effective January 1, 2022, employees will be able to place a lien on their employers’ property to secure unpaid wages while they wait for a resolution on their unpaid wage claims.

These wage liens can be placed on property owned or subsequently acquired by the employer. This includes:

  • Real property in the state.
  • Goods and tangible chattel paper (i.e., records establishing a monetary obligation or security interests) in the state.
  • Accounts and payment intangibles. Only property in the state of Washington is subject to a lien, but employers or property owners do not need to be located in Washington for the lien to attach.

Specifically for willful violations, the property can include the real property and personal property of any officer, vice-principal, or agent. The lien could also apply to the property of those individuals’ spouses, domestic partners, and heirs.

If an employer or owner believes that the wage claim is frivolous and made without reasonable cause or clearly excessive, the party can file a motion in court directing the employee to appear before the court to show cause as to why the requested relief should not be granted. In addition, employers cannot require their employees to waive their rights to obtain a wage lien in any employment contracts or agreements.

The law can be read here.

An article on the new law can be found here.

What do employers need to do?
Employers should review the law in order to familiarize themselves with it prior to it going into effect so that they are aware of the process and what it provides. The law firm, Perkins Coie LLP, encourages employers to review the law as it has specific provisions setting out procedures on how to foreclose on a lien, the priority a wage lien is given over other types of liens, and form notices of wage liens.

July 2021 Washington HR Legal Updates

Washington Enacts Employee Long-Term Care Insurance Program 

Update Applicable to:
All employers in Washington. 

What happened?
On April 21, 2021, Governor Jay Inslee signed the WA Cares Fund (or “Fund”) into law. 

What are the details?
The WA Cares Fund, effective January 1, 2022, creates a mandatory, public, state-run long-term care insurance program for workers. Employers will not have an employer-paid portion of the premium but are responsible for collecting and reporting the premiums. Key points to keep in mind for this Fund are: 

  • The law imposes a new employee-paid premium of $0.58 per $100 of earnings.
  • There is no employer-paid portion of the premium.
  • Employers are responsible for collecting, remitting, and reporting these premiums, and employers will face penalties if they do not.
  • The benefits offered under the WA Cares Fund are limited.
  • The WA Cares Fund premiums are uncapped, but there is a $36,500 lifetime cap, indexed for inflation, on the benefits an employee can receive, so highly compensated employees will help subsidize the program.
  • WA Cares benefits are available only if the employee receives care in Washington.
  • Employees can opt out of the WA Cares Fund only if they secure their own private long-term care insurance by November 1, 2021, and they apply for and receive an exemption by December 31, 2022. 

The WA Cares Fund is being funded by employee premiums paid via a mandatory payroll deduction. Employers are responsible for collecting and remitting these employee premiums, including submitting a quarterly report of these premiums, to the Washington State Employment Security Department (ESD). 

The premiums deducted from each individual employee in Washington will be based on the employee’s wages equal to $0.58 for every $100 and will be reassessed every other year, starting January 1, 2024, but has a cap of .58%. All employees must contribute (unless approved for exemption) and the employer will withhold the amount and pay it to the WA Cares Fund. 

Employees may opt out of the Fund by attesting that they have purchased private long-term care insurance before November 1, 2021 and applying for exemption on the Washington State Employment Security Department’s (ESD) website. Exemptions will only be accepted from October 1, 2021 through December 31, 2022, once approved the employee will receive an official exemption approval letter from the ESD that the employer must receive. Once received, the employer must stop deducting premiums beginning the first day of the quarter after the quarter in which the exemption was approved. 

Employers and employees that are party to a collective bargaining agreement in existence on October 19, 2017, are not required to reopen the agreement or to comply with the WA Cares Fund law unless and until the existing agreement is reopened, renegotiated, or expires. 

An article on the new Fund can be read here

The official website for the fund is located here. 

What do employers need to do?
Employers should review the fund and update any applicable policies to ensure they are in compliance and prepared to begin deducting and reporting the premiums.

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Washington Enacts Emergency Heat Standard Rule 

Update Applicable to:
All employers in Washington. 

What happened?
On July 9, 2021, Washington’s Department of Labor & Industries filed emergency rules in addition to their existing Outdoor Heat Exposure rules. 

What are the details?
The rules, effective July 13, 2021, the Department of Labor & Industries (L&I) in Washington added emergency rules that are used to provide additional protections to employees who are exposed to extreme heat. 

When the temperature is at or above 89 degrees, the new and existing rules will combine to require employers to: 

  • Provide water that is cool enough to drink safely.
  • Allow and encourage workers to take additional paid preventative cool-down rest to protect from overheating.
  • Be prepared by having a written outdoor heat exposure safety program and providing training to employees.
  • Respond appropriately to any employee with symptoms of heat-related illness. 

When temperatures reach 100 degrees or above, the employers are required to respond by: 

  • Providing shade or another sufficient means for employees to cool down.
  • Ensuring workers have a paid cool-down rest period of at least 10 minutes every two hours.
  • Have and maintain one or more areas with shade at all times, while employees are present, that are either open to the air or provided with ventilation or cooling and not adjoining a radiant heat source, such as machinery or a concrete structure. The shaded area must be large enough to accommodate the number of employees on a meal or rest break. The shaded area must be located as close as practicable to where the employees are working. 

L&I will be working to incorporate the rules as permanent. 

The rule can be read here

Articles on the rule can be read here, here and here. 

What do employers need to do?
Employers should review the emergency rules and make any policy and worksite updates to stay in compliance.

May 2021 Washington HR Legal Updates

Temporary Paid Family and Medical Leave Act Changes

Update Applicable to:
Applicable to all employers in Washington State offering paid family and medical leave.

What happened?
Washington State has passed temporary amendments to its Paid Family and Medical Leave (PFML) Act, which will give employees and employers special grants related to administering this leave.

What are the details?
Employee Grant
Previously, to qualify for PFML with a serious health condition, an employee would have had to have worked 820 hours in the qualifying period. The temporary amendment makes it so that employees who would not have worked the 820 hours in the qualifying period may now consider this requirement met if:

  • They worked 820 hours in 2019; or
  • They worked 820 hours through the second quarter of 2019, to the first quarter of 2020.

An employee would be ineligible if they have worked insufficient hours in either of these two categories or if they were separated from employment due to misconduct or voluntarily unrelated to COVID-19.

The grant is equal to the normal PFML benefit.

Employer Grant
The statute currently provides grants to two categories of employers: (1) employers with 150 or fewer employees; and (2) employers with 50 or fewer employees who choose to pay the employer-side PFML premiums. If an employer hires a temporary worker to replace an employee on PFML for seven days or more, the employer may receive a grant of $3,000. If an employee’s PFML creates significant additional wage-related costs, an employer may receive a grant of up to $1,000 as reimbursement.

Both grants will expire on June 30, 2023.

What do employers need to do?
Employers should review their existing PFML practices and update their administrative side to take advantage of the additional benefits being provided by the state.

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Washington Phases in New Overtime Requirements

Update Applicable to:
All agricultural employers in Washington State.

What happened?
On May 11, 2021, Senate Bill 5172 was passed, creating a new phased approach for overtime as it applies to agricultural workers.

What are the details?
In response to the recent ruling of the Washington Supreme Court, which provided that dairy workers should receive overtime as other workers do, the legislature worked together on a bill to provide a path for all other agricultural employers on how to provide overtime to their employees. Historically, Washington State had exempted agricultural work from overtime requirements.

The new law sets the following schedule:

  • From January 1, 2022 to December 31, 2022, agricultural workers must be paid time-and-a-half for any hours worked beyond 55 hours in a workweek.
  • From January 1, 2023 to December 31, 2023, agricultural workers must be paid time-and-a-half for any hours worked beyond 48 hours in a workweek.
  • Beginning January 1, 2024, agricultural workers must be paid time-and-a-half for any hours worked beyond 40 hours in a workweek.

Senate Bill 5172 can be found here.

What do employers need to do?
Agricultural employers should review their pay structures and begin making any needed adjustments to prepare for the first changes to overtime on January 1, 2022.

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Washington Passes Workers’ Compensation Liability Presumption and Notice Requirements

Update Applicable to:
All employers operating in Washington State.

What happened?
On May 11, 2021, Washington State Governor Inslee signed into law SB 5115, the Health Emergency Labor Standards Act (HELSA), which expands the workers’ compensation framework for infectious and contagious diseases and imposes new notice requirements on employers.

What are the details?
The new law applies to industries with frontline workers, including:

  • First responders, such as law enforcement and paramedics;
  • Employees in food processing and distribution industries;
  • Maintenance, janitorial, and food service workers at any facility treating patients with infectious or contagious disease subject to a public health emergency;
  • Drivers and operators employed by transit agencies;
  • Childcare facility employees;
  • Retail store employees who have in-person interaction with the general public;
  • Hotel, motel, or transient accommodation employees;
  • Restaurant employees;
  • Home care aides;
  • Correctional officers;
  • Educational employees (K-12 and higher education) who have in-person interaction;
  • Public library employees; and
  • Nursing home employees.

Under a public health emergency, SB 5115 provides a “prima facie presumption” that infectious or contagious diseases transmitted through respiratory droplets, aerosols, or contact with contaminated surfaces are occupational in nature. To rebut the presumption, an employer must establish that exposure occurred during nonemployment (or other employment) activities, leave from work, or during a period of quarantine occurring immediately prior to the injury or occupational disease. The presumption provides worker’s compensation benefits, including temporary disability benefits for frontline employees who contract infectious or contagious diseases. The bill also eliminates the existing three-day waiting period before allowing employees to receive temporary disability benefits.

SB 5115 creates a new reporting requirement to the Washington State Department of Labor and Industries in the event of an outbreak. Under SB 5115, an outbreak exists during a public health emergency when an employer with more than 50 employees at a workplace or worksite has 10 or more employees at the workplace test positive for the infectious or contagious disease.

A “potential exposure” occurs when an individual at the worksite has a positive confirmed case of an infectious disease. Under SB 5115 employers must take the following actions within 24 hours of the occurrence of a “potential exposure”:

  • Provide written notice to all employees and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to the infectious or contagious disease.
  • Provide written notice to employee representatives.

Senate Bill 5115 can be found here.

What do employers need to do?
Washington employers should review their workplace practices to ensure there will be minimal possibility of being impacted by the changes passed by SB 5115.

April 2021 Washington HR Legal Updates

Governor Updates Proclamation 20-46 Employer Responsibilities

Update Applicable to:
All employers operating within Washington State.

What happened?
Effective April 23, 2021, amendments will go into effect changing some of the responsibilities of employers concerning Proclamation 20-46, which provided additional protections for high-risk workers during the pandemic.

What are the details?
Three primary changes will take effect at the end of this week – two of which provide looser rules for employers to follow, and another that adds additional administrative obligations for employers.

  • Employers will be permitted to require medical verification from any employee who is availing themselves of the protection of this proclamation, to determine if the employee is high-risk and if the employee can return to the workplace with additional accommodations in place. Employers should follow the same interactive process required by state and federal disability laws.
  • Employers may terminate employer-provided health coverage so long as they provide at least 14 days advanced written notice and the employee whose coverage is terminated is not eligible for coverage under the Family and Medical Leave Act (FMLA), a collective bargaining agreement, or other condition-specific to the employment relationship. However, employer-provided health coverage must remain effective through the end of the calendar month of the month in which the 14-day notice lapses.
  • Employers are required to provide at least 14 days advanced written notice explaining any accommodation changes.

An article providing information on the original requirements created by Proclamation 20-46 can be found here

Proclamation 20-46 itself can be found here.

What do employers need to do?
Employers with high-risk employees can update their workplace policies to reflect the new rules regarding the proclamation.

February 2021 Washington HR Legal Updates

Seattle City Council Passes Hero Pay Ordinance

Update Applicable to:
Employers operating within the City of Seattle.

What happened?
On January 25, 2021, the Seattle City Council unanimously passed an ordinance requiring hazard pay for certain grocery business employees during the COVID-19 pandemic.

What are the details?
Much like the cities of California, Seattle has seen it fit to increase compensation to their grocery store workers for the risk they take when working with the public during a pandemic. The ordinance applies only to grocery businesses in Seattle that employ 500 or more employees worldwide regardless of where those employees are employed. A grocery business is defined as a retail store in Seattle that is either of the following: 

  • Over 10,000 square feet and primarily engaged in retailing groceries for offsite consumption; or 
  • Over 85,000 square feet with at least 30% or more of its sales floor area dedicated to the sale of groceries.

Any worker who performs work at a retail location of a grocery business in Seattle and who meets the definition of “employee” under Seattle Municipal Code Section 12A.28.200 must receive hazard pay.  These are any employees who are not employed in a bona fide executive, administrative, professional, or outside sales capacity.  Covered employees include, but are not limited to, full-time employees, part-time employees, and temporary workers. In addition to their regular compensation, the ordinance requires covered employees to receive $4 per hour in hazard pay for each hour worked in Seattle.  Employers are prohibited from reducing employee compensation to prevent employees from receiving the additional $4 per hour in required hazard pay.

Within 30 days of the ordinance’s effective date, employers must display a written notice of rights under the ordinance in a conspicuous and accessible place at any workplace or jobsite where any of their employees work.  The notice must be in English and the primary language(s) of the employees at the workplace. The notice must provide information regarding (1) the right to hazard pay guaranteed under the ordinance; (2) the right to be protected from retaliation for exercising in good faith the rights protected by the ordinance; and (3) the right to file a complaint with the Seattle Office of Labor Standards or bring a civil action for ordinance violations.

You can read more about the ordinance here.

What do employers need to do?
Applicable Seattle employers should update their payroll policies to accommodate this temporary ordinance, and work with onsite managers to ensure the posting requirement is met.

January 2021 Washington HR Legal Updates

2021 Washington Privacy Act Released

Update Applicable to:
Employers operating within Washington State.

What happened?
The Washington State Legislature is once again working on passing a complete version of the Washington Privacy Act (WPA), that will impact all employers operating in the state.

What are the details?
The WPA will put several new requirements on businesses that utilize any form of consumer or employee data. Few exemptions are created for business, mostly only exempting state agencies and other forms of data related to health concerns, like HIPAA personal health information.

The WPA would provide consumers (i.e., Washington state residents) with the right to request that controllers (1) correct inaccurate personal data, (2) delete personal data, (3)confirm whether they are processing personal data about a consumer and, if so, allow the consumer to access the categories of personal data, (4) provide the personal data that a consumer previously provided to the controller in a portable and usable format, and (5)permit consumers to opt out of the processing of personal data that is processed for the purposes of targeted advertising, sold to third parties, or used for certain types of profiling decisions. Controllers would have 15 days to process opt out requests and 45 days to process other requests.

The WPA will also, much like other privacy related legislation, regulates the relationship between data processors and controllers. This will require them to enter into written agreements with each other that “set out the processing instructions to which the processor is bound, including the nature and purpose of the processing, the type of personal data subject to the processing, the duration of the processing, and the obligations and rights of both parties.”

As most employers can expect, the WPA will also include a Privacy Notice requirement. The notice will identify, among other things, the categories of personal data the controller processes, the purposes for which the personal data are processed, how and where consumers may exercise their rights, the categories of third parties, if any, with whom the controller shares personal data, and whether the controller sells personal data or uses it for profiling. Additionally, controllers of personal data will be prohibited from processing sensitive personal data without consent 

Should the WPA pass, it currently has an effective date set for July 31, 2022.

You can read more about the legislation here.

The bill may be read here in its entirety.

What do employers need to do?
Washington State businesses should keep a close eye on this legislation, as it will include large administrative costs for companies who handle personal information.

November 2020 Washington HR Legal Updates

State Supreme Court Grants Overtime to Dairy Workers

What happened?
The Washington Supreme Court has ruled that dairy workers, specifically “milkers,” should be entitled to overtime pay rates.

What are the details?
Previously, in the state of Washington, there were many exemptions to the overtime provisions in the state minimum wage laws. The state Supreme Court ruled that it was in direct violation of the state constitution, namely, Article I, section 12, providing that “no law shall be passed granting to any citizen, class of citizens … privileges or immunities which upon the same terms shall not equally belong to all citizens.” With this in mind, the court decided that it is a fundamental “right of all Washington workers in dangerous industries to receive workplace health and safety protections.“ The court then claimed that the Washington legislature had no reasonable ground to favor agricultural employers and exclude agricultural employees from overtime laws.

While this ruling was specifically for dairy workers, the attacks made by the court are against all exemptions related to agricultural workers. With this in mind, the minority’s opinion in this case stated that the ruling essentially “farm workers will now be entitled to future overtime pay,” without qualification.

An article going over this case can be found here.

The Washington Supreme Court case ruling can be found here.

What do employers need to do?
Employers with agricultural employees within Washington State should consult with their employment attorneys immediately to evaluate their next steps. 

August 2020 Washington HR Legal Updates

Washington State Institutes Supplemental Paid Sick Leave

What happened?
On August 13, 2020, Governor Inslee issued Proclamation 20-67: Food Production Workers Paid Leave.

What are the details?
Proclamation 20-67 modifies previous proclamations to prohibit any food production employer from continuing to operate between August 18, 2020, and November 13, 2020, unless it provides its workers with emergency supplemental paid sick leave for a qualifying, COVID-19-related event within this window.

Covered Employers under Proclamation 20-67 include those operating:

  • Orchards, fields, and dairies;
  • All other industries specifically identified in Washington Administrative Code section 296-307- 006, with some exceptions, including timber tracts, Christmas tree growing, tree farms, forest nurseries, and forestry services;
    • Fruit- and vegetable-packaging warehouses (regardless of whether the warehouse is owned by the grower or producer); and
    • Meat and seafood processors and packers, including those falling under the 3116 and 3117 NAICS industry codes.

Also covered are employers that are farm labor contractors under Revised Code of Washington chapter 49.30 (agricultural labor), but only if they are paying wages to a covered worker.

Covered workers under this proclamation are food production workers who have started providing services to a covered employer.  These include, but are not limited to:

  • Domestic workers, i.e., Washington State-based workers, including those domiciled in Washington;
  • “Seasonal or migrant workers,” as defined by the federal Migrant and Seasonal Agricultural Worker Protection Act; and
  • Temporary foreign workers who are lawfully present in the United States to perform agricultural labor or services of a temporary or seasonal nature

Importantly, the use of the term “worker” (rather than employee) appears to be intentional as this proclamation applies to both covered independent contractors and employees who perform work for the covered employer. 

The proclamation specifically defines which COVID-19–related events are qualifying events, which are:

  • The covered worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • The covered worker is advised by a healthcare official or provider to self-quarantine or self-isolate due to concerns related to or a positive diagnosis of COVID-19;
  • The covered worker is prohibited from working due to health concerns related to the potential transmission of COVID-19; or
  • The covered worker is experiencing COVID-19 symptoms and is seeking a medical diagnosis. You can read the whole proclamation here.

What do employers need to do?
Employers in Washington working in the food industry should update their leave policies to accommodate this new proclamation.