L&I working on new overtime rules; comments welcome

The Department of Labor and Industries has announced its intention to conduct rulemaking on the executive, administrative, professional (EAP) and outside salesperson exemption to the Minimum-Wage Act rules under WAC 296-128.

Most employees covered by the Washington Minimum-Wage Act (MWA) must be provided a minimum wage, overtime for working above 40 hours in a seven-day workweek and paid sick leave. The MWA exempts some workers from these requirements. RCW 49.46.010(3)(c) exempts any individual “employed in a bona fide executive, administrative or professional capacity, or in the capacity of outside salesperson, as those terms are defined and delimited by rules of the director [of the Department of Labor & Industries].”

The Department promulgated rules in 1976 for the EAP and outside salesperson exemptions, defining salary thresholds and duties tests for an employee to be considered exempt from the MWA under RCW 49.46.010(3)(c). The department later promulgated an additional professional computer-employees exemption, WAC 296-128-535, and other clarifying rules in WAC 296-128, which could be subject to revisions during this rulemaking.

L&I has created a document of draft rule concepts, which comprise a menu of policy options for consideration prior to drafting EAP rule updates. They include suggestions from stakeholder comments, language to align with similar federal rules, and other possible updates for consideration. See the EAP Draft Rule Concepts.

Any AGC members with comments about this matter are encouraged to email AGC Chief Lobbyist Jerry VanderWood. The initial comment period ends on September 5, 2018.