Category Archives: Labor & Employment

Overview of SSB 5975 – Paid Family and Medical Leave

To view this article as a PDF file, click here.

Background: Following prolonged discussions between the business community and worker advocates, the Legislature in 2017 amended the state’s family and medical leave insurance program. That program was first passed in 2007 but never funded. The issue of paid family leave continued to poll extremely well across all demographics statewide. Legislators believed failure to find a legislative solution in 2017 would likely result in a statewide initiative backed by organized labor and likeminded social groups.

Bill Summary: SSB 5975 made substantial policy changes to the state family and medical leave insurance program and provided a funding mechanism. The chart below summarizes many of the provisions of SSB 5975.

Issue Negotiated Bill Language of SSB 5975 (2017)
Who is in the program? ·         All employees.

·         Employees at employers with 50 or fewer employees will pay premiums, in the same amount they would if at large employers, but these employers will not be required to pay premiums. If these employers choose to pay the employer share of premiums, they will be eligible for business assistance and must stay in the program for a minimum of 3 years.

·         To qualify, an individual must work for 820 hours in 4 of the last 5 quarters.

·         Independent contractors and self-employed may opt-in. They would be required to pay 100% of the premiums and must opt-in for at least 3 years (consistent with voluntary opt-ins for the UI system).

·         Employers may waive out of the disability leave bucket, paid family leave bucket, or both, if they have an approved plan that is equal or better than the state plan.

Who pays and how much ·         For disability leave, premiums will be split 55% employer/45% employee.

·         For family leave, premiums will be paid 100% by employee.

·         This results in a total premium share of 37% by the employer and 63% by the employee.

·         ESD would begin to collect premiums January 1, 2019, and begin paying benefits January 1, 2020.

·         Premiums are calculated at the Social Security wage base.

Job retention ·         There is no additional requirement beyond the federal FMLA – namely, the job is protected if the employee works for an employer with 50+ employees and has worked with that employer for 12 months and 1,250 hours prior to the qualifying event.

·         Key employees are exempted from the job protection requirement.

Number of weeks of benefits per year ·         Disability: Up to 12 weeks, or up to 14 weeks for a pregnant individual with pregnancy complications.

·         Family: Up to 12 weeks.

·         Annual cap: Up to 16 weeks, or up to 18 weeks for a pregnant individual with pregnancy complications.

Amount of wage replacement ·         90% of up to half state Average Weekly Wage and 50% of earnings above.

·         Cap of $1,000 per week, adjusted annually for inflation.

·         Benefit calculated on the 2 highest earning quarters in the last 4 completed quarters.

Types of leave & eligible family members ·         Same medical conditions and military exigency needs as currently allowed under FMLA.

·         For family leave, the eligible family members are the same as those allowed for sick leave under I-1433.

Business items ·         No UI charge for employer that hires a temporary worker to cover a worker on leave, and then lays off the temp worker.

·         For businesses with 150 or fewer employees, they can receive a $3,000 training grant for hiring a temporary worker when a regular employee is on leave or additional wage costs for remaining workers. This is capped at $30,000 per year.

Notice to the employer ·         Workers required to provide 30 days notice or as soon as practicable.
Local ordinances ·         No local government program.

·         No employer top-up.

·         No local government enforcement of state program.

Other ·         ESD will administer the program.

·         Entities subject to a collective bargaining agreement would not need to comply until the CBA is reopened, renegotiated, or expires.

·         Workers must take leave in at least 8-hour increments. They cannot take a couple of hours of paid family or disability leave.

·         There is no eligibility for workers’ compensation or UI while on paid family or disability leave. FMLA leave under federal law must be taken concurrently with paid family or disability leave.

·         Employers may seek a waiver to offer their own paid family or disability programs that meet specific conditions.

Appeals/

Enforcement

·         The appeal process for employees and employers is modeled on ESD’s current appeal process for UI – namely, an initial claim at ESD, appeal to OAH, and appeal to trial courts.

·         Employers have the right to cure.

·         The bill creates a PFMLI Ombuds in ESD available to all employers and employees in the state.

·         The bill requires employers to provide employees with information on their rights under the program and ESD appeals. The information will be provided at the time of hire and be available to employees in handbook or on employment posters thereafter.

Premiums ·         The premium rate will likely be 0.4% for the first two years, to be adjusted thereafter based on the size of the trust fund.

·         Formula: Annual payroll x 0.004 x 0.37 = Annual employer premium

 

Additional Details: To find out more details about SSB 5975, consult the final bill report here: http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bill%20Reports/Senate/5975-S%20SBR%20FBR%2017%20E3.pdf.

Full Text: The text of SSB 5975 can be found here: http://lawfilesext.leg.wa.gov/biennium/2017-18/Pdf/Bills/Session%20Laws/Senate/5975-S.SL.pdf.

Additional Information or Questions: Contact Scott Dilley at scott@wastatedairy.com or 360.581.8153 for more information.

 

Initiative 1433 – Minimum Wage Increase and Paid Sick Leave Mandate

To view this article as a PDF file, click here.

Background: Originally, Washington’s Minimum Wage Act covered only non-agricultural workers. However, in 1988 voters approved Initiative 518, which changed the Minimum Wage Act to cover all workers employed in Washington state. Consequently, the state minimum wage is the same for both non-agricultural and agricultural workers.

In 1998, voters approved Initiative 688, which raised the minimum wage and required the Washington State Department of Labor & Industries to make a cost-of-living increase to the minimum wage each calendar year based on the federal Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W).

The minimum wage for 2016 under Washington law is $9.47/hour. The federal Fair Labor Standards Act minimum wage is presently $7.25/hour. Washington employers must pay the higher of those rates. In addition, some municipalities such as Seattle and Tacoma have enacted higher minimum wage rates in their jurisdictions. Employers subject to those laws must pay the highest minimum wage required.

Full Text: The full text of I-1433 can be found at http://sos.wa.gov/_assets/elections/initiatives/FinalText_954.pdf.

Minimum Wage: Section 3 sets a multi-year increase in the state’s minimum wage rate for workers 18 years of age and older. The first increase is to $11 per hour beginning January 1, 2017. The wage would then increase to $11.50 per hour in 2018, $12 per hour in 2019, and $13.50 per hour in 2020.

Note that there are two large increases – an increase of $1.53 per hour from 2016 to 2017 and an increase of $1.50 per hour from 2019 to 2020.

I-1433 leaves in place the annual minimum wage escalator based on the CPI-W. It mandates that employers pass along all tips and gratuities and certain service charges to employees, and those tips and charges may not count toward the employee’s hourly minimum wage.

Paid Sick Leave: Section 5 mandates that all employers provide paid sick leave to their employees beginning January 1, 2018.

Employees would accrue at least one hour of paid sick leave per 40 hours worked. This is the minimum requirement. Employers may provide more generous paid sick leave policies or permit the use of paid sick leave for additional purposes.

Each hour of paid sick leave is valued at the higher of the minimum wage or the employee’s normal wage. Employers are required to provide regular notification to employees regarding the amount of paid sick leave they have available.

Employees can use paid sick leave for their own mental or physical health needs (including domestic violence) or for their family members’ health needs. Employees are entitled to use paid sick leave after 90 days of employment.

Employers may require employees to give reasonable notice of an absence from work as long as that notice does not interfere with the workers’ lawful use of paid sick leave. For absences exceeding three days, employers may require verification that the use of paid sick leave was for an authorized purpose.

Employers cannot require employees, as a condition of using paid sick leave, to find a replacement worker for their time absent from work.

Unused paid sick leave can be carried over into the following year. The minimum requirement is that employees be allowed to carry over up to 40 hours of unused paid sick leave.

Nothing in I-1433 requires financial or other reimbursement to a worker for unused paid sick leave when that worker leaves employment. However, if the worker is rehired within 12 months, the unused paid sick leave must be reinstated to the worker, and the 90-day window for not using paid sick leave does not start over.

Employers may not discriminate or retaliate against employees for using paid sick leave, and employers may not discipline employees for absences covered by paid sick leave.

Relationship of State and Local Laws: I-1433 does not include state preemption, which means that a patchwork of local labor standards will be allowed to continue in Washington under I-1433. The initiative sets a new wage and benefit floor for employees. Cities and other jurisdictions would still be permitted to enact additional local labor standards that are more favorable to employees.

Rulemaking: The state Department of Labor & Industries is mandated to adopt rules to enforce I-1433. These rules must include, at a minimum, the procedures for reporting sick leave, notifying employees about it, and protecting employees from retaliation for the lawful use of sick leave and other rights.

L&I has set up an I-1433 engagement site, where pertinent information is posted. L&I will divide rulemaking into two separate categories – policy and enforcement. The policy piece will move forward first so that employers have time to plan to meet the I-1433 mandates by the Jan. 1, 2018, deadline.

On July 5, 2017, the Department of Labor & Industries filed the proposed rule (the CR-102) on the sick leave policy. Below are links to the documents contained in the CR-102 filing.

The first step for the enforcement language rulemaking (the CR-101) was also filed on July 5, 2017. The link to the CR-101 filing is below.

Highlights of Proposed Rule on Policy:

  • I-1433 mandates that employees accrue at least 1 hour of paid sick leave for every 40 hours worked.
  • Employers may provide a more generous accrual rate.
  • Accrual is not required for non-work hours (i.e., vacation, sick leave). It is for hours spent working.
  • Accrual begins Jan. 1, 2018.
  • Employees are allowed to carry over at least 40 hours of accrued, unused paid sick leave to the following year.
  • Employees are entitled to use paid sick leave beginning on the 90th calendar day after employment commences.
  • Collective bargaining agreements are not exempt.
  • Employee use of paid sick leave is to be done in time “consistent with the employer’s payroll system and practices, not to exceed one hour.” If an employer tracks time in 15-minute increments, then employees must be allowed to use sick leave in 15-minute increments.
  • The draft rules include reasonable notice provisions and verification for absences exceeding three days.
  • The rate of pay for use of paid sick leave has received much discussion in preliminary rule drafts and meetings. Employers must value and compensate used sick leave at the employee’s “normal hourly compensation using a reasonable calculation based on the hourly rate that the employee would have earned for the time during which the employee used paid sick leave.” This rate may be easy to calculate for some workers, but there are different calculations for workers whose wage rates vary.
  • Generally speaking, employers must reinstate an employee’s hours of accrued, unused paid sick leave if the employee leaves employment and is rehired by the same employer within 12 months.
  • Universal paid time off (PTO) benefits are recognized as hours of paid sick leave under the draft rules.
  • Employers cannot retaliate against employees for using paid sick leave.

Public Comments: Public hearings by L&I will be in August at locations across the state.

  • August 8, 2017, 10:00 a.m., Labor & Industries Headquarters Auditorium, 7273 Linderson Way SW, Tumwater, WA 98501
  • August 16, 2017, 10:00 a.m., Spokane CenterPlace Auditorium, 2426 N. Discovery Pl., Spokane Valley, WA 99216
  • August 17, 2017, 10:00 a.m., Columbia Basin Community College L102, Building L, 2600 North 20th Ave Pasco, WA 99301
  • August 29, 2017, 10:00 a.m., Xfinity Center, Edward D Hansen Conference Center, Ballroom 3 South, 2000 Hewitt Avenue, Suite 200 Everett, WA 98201

Written comments can be submitted by Sept. 1, 2017, at 11:59 p.m. to Allison Drake, PO Box 44400, Olympia, WA 98504-4400, i1433Rules@Lni.wa.gov, fax (360) 902-5300.

Adoption of Rules: Adoption of the rule is planned to be on October 17, 2017, with an effective date of January 1, 2018. L&I will conduct education and outreach to employers and employees October through December 2017.

Additional Information or Questions: Contact Scott Dilley at scott@wastatedairy.com or 360.581.8153 for more information.

 

2017 Legislative Session Recap

After a regular 105-day session followed by three 30-day special sessions, the Legislature called it quits for 2017 (so far). These special sessions come as no surprise, as over the past several years the divided Legislature has typically needed special sessions to resolve its business. However, 2017 set a record for the number of days the Legislature was in session.

During the regular session, lawmakers agreed on a bipartisan 2017-19 transportation budget. They reached agreement on the biennial operating budget hours before a June 30th deadline, averting a state government shutdown. Included in that budget package was an education funding plan designed to meet the Supreme Court’s McCleary mandate primarily through a state levy swap. A reduction of the B&O tax rate on manufacturers that was included in the budget deal was subsequently vetoed by Gov. Jay Inslee, instilling further acrimony into an already bitterly divided and opaque budget process.

The Legislature ended the 3rd special session without passing a biennial capital budget. The Senate stood its ground and refused to pass a capital budget because the House did not pass a permanent fix to the Hirst rural water rights issue. As such, the projects in the proposed capital budget remain unfunded and stalled. Unless there is agreement on a Hirst fix, there will not be a 4th special session to pass a capital budget.

The issues listed below remain unresolved due to the Hirst/capital budget standoff between the two chambers.

  • Hirst Decision: Legislators failed to agree on fixing the crisis created by the state Supreme Court’s Hirst decision. The court ruled that Whatcom County failed to comply with the Growth Management Act requirements to protect water resources. The ruling requires the county to make an independent decision about legal water availability before approving or denying building permits that use wells for a water source. Or landowners may attempt to prove, via hydraulic analysis that their house has no impact in in stream flows due to water used in their house (almost impossible and very expensive).
  • Dairy Distillers: We, along with a diverse coalition, asked for funding in the capitol budget for innovative dairy nutrient management technology demonstration projects. Both House and Senate budgets generally reference one project in Eastern Washington and one in Western Washington. The Senate had $4 million for the Conservation Commission for pilot/demonstration projects. The House had $2 million for pilots and an additional $2 million in “non-shellfish” cost share funding that is broadly available, potentially to help with cost share on innovative nutrient management demonstration projects and other projects such as VSP or general cost share for water quality projects.
  • Voluntary Stewardship Program Projects: The operating budget includes $7.6 million in funding to continue planning work. Legislators considered funding for certain VSP projects as part of the Capital Budget. Eligible cost-share funding in the Senate Capital budget was $4 million for shellfish growing areas and $5 million for other parts of state. The House had $4 million for shellfish areas and $7 million available cost share in non-shellfish areas of state.
  • WSU Plant Sciences/WADDL: Legislators considered a proposal to fund two agricultural science buildings on the WSU Pullman campus. The House capital budget had $38.1 million for the first stage of the Global Animal Health Phase II project – the new home of the Washington Animal Disease Diagnostic Laboratory (WADDL). However, no funding was provided for the new Plant Sciences Building in the House budget. The Senate version of the capital budget provided $52 million for Plant Sciences and $23 million for Global Animal Health building. Both buildings are essential to Washington agriculture, and we support the funding of both projects but both like many things this is waiting on an agreement on Hirst and the capital budget.

Below is a list of issues that we worked on or were following during the legislative session, as well as updates on where those issues stand now.

  • Ag Workforce Study: SB 5285 requires the workforce training and education coordinating board to conduct a workforce assessment for the agriculture, natural resources, outdoor recreation, and environment sectors to assess the available data on current and projected employment levels and hiring demand for skilled mid-level workers in those sectors. The bill passed both chambers and was signed into law on May 4.
  • Agritourism: SB 5808 provides a higher level of liability protection for farm-based agritourism businesses. Under the bill, an agritourism professional is not liable for unintentional injury, loss, damage, or death resulting exclusively from the inherent risks of an agritourism activity, with certain exceptions. The bill requires every agritourism professional to post a specified warning notice at the site of an agritourism activity and to include the warning notice in written contracts. The bill was signed into law on May 5.
  • Beef Checkoff: SB 5793 originally raised the beef checkoff by $1 per head except for the first sale of green tagged calves. That version passed the Senate on March 7 by a vote of 30-19. In the House, the bill was amended in committee to increase the assessment by only 50 cents per head rather than $1. A 50-cent increase would generate approximately $500,000 in new revenue for the Beef Commission. The goal is to increase research capacity and fund a major beef marketing effort to consumers in the Puget Sound region. The bill stalled in the House and died. HB 2073, a bill requiring the Beef Commission to be more transparent with its actions and finances, passed both chambers easily and was signed into law by Gov. Inslee on May 8.
  • Brand Inspections Fees: SB 5750 would have increased the hourly rate and other fees for brand inspection services by the Washington State Department of Agriculture. The bill did not pass this year. During the interim, we have had conversations with WSDA on program efficiencies.
  • Cattle Feedlot Odor & Dust: SB 5196 is a step forward for cattle feeders and Ecology to address air quality. The bill codifies the best practices process in an air quality “agreement” the cattle feeders and Ecology developed and have operated under since the 1990’s. The bill passed both chambers and was signed by Gov. Inslee on May 5.
  • Distracted Driving: The Legislature updated the distracted driving laws this session. SB 5289 makes it illegal to hold a personal electronic device in either hand, watch a video, or use a hand or finger to compose, send, read, view, access, browse, transmit, save, or retrieve email, text messages, instant messages, photographs, or other electronic data. The bill does allow the minimal use of a finger to activate, deactivate, or initiate a function on the device. Gov. Inslee signed the bill on May 16 but vetoed the section delaying implementation of the bill. As a result, the bill took effect July 23, 2017.
  • Hazardous Substances Tax: HB 2182 would generally increase the hazardous substances tax from 0.7% to 0.9% on wholesale prices from purchaser of first possession of a hazardous substance includes fuel, fertilizer and pesticides. It passed the House 50-47 on April 12. It did not pass the Senate.
  • Paid Family Leave: The first iteration of a family and medical leave insurance program passed in 2007 but was never funded. The issue of paid family leave continued to poll extremely well across all demographics statewide. Legislators believed failure to find a legislative solution in 2017 would likely result in a statewide initiative backed by organized labor and like-minded social groups. The labor-backed HB 1116 went as far as the House Rules Committee, and SB 5149, a proposal friendlier to business, was introduced in the Senate. Neither bill passed during the regular session. Following prolonged discussions between the business community and worker advocates and a negotiated framework, the Legislature substantially amended the state’s family and medical leave insurance program and provided a funding mechanism. Generally speaking, the final bill allows most employees to take off up to 12 weeks of paid family leave and 12 weeks of paid disability leave, capped at 16 weeks total in a benefit year. Shared employer/employee payroll taxes will begin in 2019, and benefits begin in 2020. Certain exemptions and conditions apply. See additional information from WSDF regarding the details of the bill. The final version of the bill, SB 5975, passed a bipartisan Senate 37-12 and a bipartisan House 65-29 before being signed into law by the governor.
  • Pay Equity: Legislators attempted to update the state’s equal pay laws but could not come to agreement. HB 1506 would have expanded the scope and enforcement of current law. That bill passed the House during the regular session and the 1st and 2nd special sessions, but it did not pass the Senate. SB 5836 also failed to pass the Senate.
  • Pregnancy Accommodation: The Legislature passed a bipartisan, compromise bill to promote healthy outcomes for pregnant women and infants. Among other things, SB 5835 requires employers to provide reasonable accommodation in employment for pregnancy unless the accommodation would impose an undue hardship on the employer’s business. The bill passed the Legislature unanimously and was signed into law on May 16.
  • Real ID: Washington state driver’s licenses are currently out of compliance with the standards in the federal Real ID Act. SB 5008 solves this issue by creating a two-tier licensing system — a traditional driver’s license and an Enhanced Driver’s License (EDL). The requirements to obtain a traditional driver’s licenses will not change, but beginning in July 2018, the Department of Licensing will be required to mark those licenses as not complaint for federal purposes. Once the federal government begins enforcing Real ID, Washington residents will not be able to use a traditional license to fly or enter a federal facility like a military base. Instead, Washingtonians will need to use an EDL or other form of federally accepted identification.