Washington Paid Family Leave Act- Are Seasonal Workers Exempt?

A new statewide exit law that has taken many employers past surprise

In November 2016, Washington voters passed Initiative 1433, all-time known for increasing Washington's minimum wage to 1 of the highest in the nation. Yet, I-1433 as well included a requirement for statewide paid ill leave ("PSL") for non-exempt employees that has caught many employers by surprise.

The PSL police becomes constructive on Jan i, 2018, and the Department of Labor and Industries ("L&I") just published last administrative rules about the law's requirements. All Washington employers demand to review these requirements and have action to ensure compliance.

Under the new constabulary, employees must accrue at least i 60 minutes of paid sick go out for every 40 hours worked. The PSL police permits use of paid sick go out for a broad array of reasons, including just almost whatever medical need for the employee and the employee's extended family; domestic violence, sexual assault, or stalking bug; or in the unlikely upshot that the employee's or family unit member'due south work or school is closed for public health reasons.

Although the PSL police force contains many requirements that may seem familiar to employers who are already complying with local ill go out laws, such every bit Seattle's Paid Ill and Safe Leave, there are some features of the new law that are different and more onerous on employers than under those local ordinances. The statewide PSL police does not supplant those local ordinances, which means that employers who are subject to land and local laws must employ the terms that are most generous to employees.

The new law only applies to employees that are not exempt from Washington's Minimum Wage Act. All not-exempt employees receive the benefits under this constabulary, even on-call, temporary, or seasonal workers, and regardless of where employees piece of work in Washington. Unlike under many local sick leave laws, the PSL law affects all employers, regardless of their revenue or number of employees.

Also, dissimilar nether many existing sick leave laws, employers and employees cannot agree to waive the requirements of the PSL law, such as under a collective bargaining agreement ("CBA"). This can crusade meaning challenges for employers with employees represented by a union, because the new law'due south requirements tin return portions of existing matrimony contracts illegal, or provide employees with a benefit that was non contemplated when existing contracts were bargained.

The remainder of this alert summarizes what employers must practice, cannot exercise, and have the option of doing in response to the new PSL law. The final rules embrace these matters in far more detail.

What employers must practice by January one, 2018 for non-exempt employees:

• Ensure that non-exempt employees accrue at least one 60 minutes of paid sick leave for every twoscore hours worked.
• Eliminate caps on PSL accrual, and ensure that employees can bear over at least forty hours of leave from twelvemonth to year.
• Permit the use of PSL in the lowest increment possible under an employer'due south payroll system and practices, non to exceed an hour.
• Permit employees to use PSL after 90 days of employment (versus 180 days under Seattle's paid sick go out law).
• Pay employees on PSL the charge per unit that they would take earned if they had worked, including differentials, except that employers need non pay at an overtime or premium charge per unit unless such a rate is required under a CBA or employer policy.
• Create a written policy roofing PSL rights, including required employee find,  how the employer intends to handle verification of PSL, and, if an employer is using an existing leave bank to satisfy the new police's requirements, how PSL is designated inside that banking company.  L&I has provided sample policies for employers to customize and employ.
• Notify employees almost their entitlement to PSL, the charge per unit at which they volition accrue PSL, authorized purposes for which PSL tin be used, and that retaliation for utilise of PSL is prohibited.
• Each month, provide employees with their PSL balance, the amount of PSL accrued in that month, and the amount of PSL used in that month, including why it was used (used by the employee or donated to another).
• For three years, for each employee, keep records of the date the employee began employment, the monthly information discussed higher up, and the amount of PSL not carried over from year to year.

What employers cannot practise starting on January one, 2018 for non-exempt employees:

• Require that employees find coverage in gild to use PSL.
• Use policies that count the proper use of sick leave equally an absence that may lead to discipline (such every bit strict "indicate" attendance policies that do not consider the reason that employees were absent).
• Retaliate against employees for exercising their PSL rights, including using PSL absences as a negative cistron in evaluations and employment decisions.
• Request verification that an employee on PSL is using the leave for its intended purpose until the employee has been out on leave for more than three sequent days when the employee was scheduled to work (unless such verification is permitted by another law, such equally FMLA).
• Permit existing employees to voluntarily cash out PSL that would leave them with a PSL balance of less than 40 hours.
• "Goose egg out" employees' PSL when the employees terminate employment or transfer to an exempt position, unless the value of the PSL is paid out to the employees.  If an employee leaves employment and is re-hired inside 12 months, the employee'south PSL residue must be reinstated (unless it was cashed out at the finish of employment).

What employers may exercise starting on Jan 1, 2018 for non-exempt employees:

• Use existing Paid Time Off programs to satisfy the PSL requirements of the new police force, equally long as such programs meet or exceed the requirements of the new law.  Notwithstanding, unless employers want the entire Paid Fourth dimension Off accruals to exist subject to the PSL requirements, the Department of Labor and Industries has indicated that they must designate a portion of the existing program for PSL, notify employees almost such designation, and separately track PSL accrual, use, and carryover.
• Pay for accrued, unused PSL upon employees' separation from employment.  Withal, cashing out PSL is non required unless agreed to in a CBA or employee policy.

Although the rules describing the enforcement of the PSL requirements are not final, in their present grade, they nowadays significant risks for employers who do non comply with the new police force. L&I has announced that it will investigate non-compliance with the accrual, utilise, and carryover requirements of the PSL law as wage payment violations. Under Washington police, wage payment violations tin consequence in double damages and individual liability for people involved in decisions around ill exit. L&I tin can also investigate allegations that an employer retaliated against employees for taking PSL, and the law grants employees the correct to sue on such claims. Final enforcement rules are scheduled to be released in mid-December, but we do not anticipate that the rules volition change significantly from their electric current form.

Many employers understandably confused the voter-passed PSL constabulary with a Paid Family and Medical Leave Law enacted by the Washington Legislature last summer. The Legislature's Paid Family and Medical Get out Law sets up a organization of land-administered family and medical get out, funded by employer and employee contributions starting in 2019, and becoming bachelor for employee use in 2020. We will upshot an alert regarding this police afterwards the 2018 legislative session.

If you accept questions nearly the PSL police force, please contact Michael Brunet at 206.816.1480 or mbrunet@gsblaw.com, or any of GSB'southward Labor and Employment attorneys.

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Source: https://www.foster.com/newsroom-alerts-washington-state-paid-sick-leave-law-effective-January12018

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