Vigilant Blog

News, trends and analysis in employment law, HR, safety & workers' comp

Aug 05, 2021

WASHINGTON: New L&I wage and hour guidance for employers

Wage and Hour 

The Washington Department of Labor and Industries (L&I) adopted two administrative policies providing guidance to Washington employers on state wage and hour topics. These policies (organized in a question and answer format) provide explanations and detailed examples of compliance with the Washington Minimum Wage Act (WMWA), which is generally more favorable toward employees than the federal Fair Labor Standards Act (FLSA). Here’s a summary of important developments in these newly adopted policies.

Hours Worked: L&I adopted a revised policy on hours worked (ES.C.2), which was last updated on September 2, 2008. The revised policy clarifies the definition of “hours worked” and when employees must be paid for their time, including travel time, training time, meeting time, on-call time, waiting time, and activities before and after work. It also addresses how the use of a company vehicle intersects with paid work time, and which “interns” are actually employees entitled to minimum wage and overtime. Notably:

  • The definition of hours worked hasn’t changed, but is now divided into three elements: “(1) an employee is authorized or required by the employer (2) to be on duty (3) on the employer’s premises or at a prescribed workplace.”
  • Mandatory security or health screenings before employees enter or exit the workplace are considered “hours worked” and employees must be paid for that time.
  • An out-of-town travel compensation policy has been added, explaining that door-to-door travel by non-exempt employees away from their home community (other than normal commuting) is considered hours worked and must be paid. The previous administrative policy didn’t address out-of-town travel at all, but the revised policy requires pay from the time an employee leaves their home until they arrive at their travel destination (e.g., hotel) regardless of the day and time of travel or how the employee spends that time. This is a significant expansion of Washington’s paid travel time requirement and a significant departure from travel pay requirements under federal law.

Employment Relationships: L&I also adopted a new policy (ES.A.14) on employment relationships that explains who is considered an “employer” of a worker and which workers are considered “employees” or “independent contractors” under the Washington wage and hour rules. This new policy answers questions such as:

  • When is a corporate officer, owner, or manager an “employer” who can be liable for wage and hour compliance?
  • When are separate employers considered “joint employers” for WMWA compliance?
  • When are two entities considered the “same employer” for wage and hour purposes?
  • Which workers are “independent contractors” not covered by WMWA?
  • When are employers considered “successors” for WMWA compliance?

Tips: When it comes to wage and hour requirements, compliance with federal law is not enough; employers are required to follow both federal and state laws. A common misconception is that the federal law overrules the state law if the laws conflict, but it’s actually whichever law is most favorable to the employee that’s controlling. In Washington, the state wage and hour law is often more favorable to the employee, so understanding the requirements addressed in these L&I policies is critical for compliance. Contact your Vigilant Law Group employment attorney with any questions.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.