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Employment Law


    Legislative Developments

    Washington Department of Labor & Industries EAP Exemption Update

    The Department of Labor & Industries is seeking public feedback on updating current overtime exemption rules and regulations.  The first pre-draft version of the proposed rules is now available.  Among other things, the draft is proposing increasing the salary threshold to anywhere between 1.5 to 3 times the Washington State hourly minimum wage for a 40-hour workweek.  This would be a potentially drastic change from the current federal minimum of $455.

    Visit the Department’s engagement site here to learn more about EAP exemptions, read the pre-draft rule language, and review the project timeline.  Provide your own feedback and review feedback submitted by others here.


    2019 Washington Department of Labor & Industries Rates

    Good news on the Labor & Industries front: The Department is proposing an average 5% decrease in premiums for 2019!  If passed, this would be the largest single year drop since 2007.  There are a few factors at play, including a reduction in statewide injuries, the success of the Stay at Work Program, and the recent receipt of a $2.5M federal grant to help workers at risk of filing a long-term disability claim return to work.  You can find more information in the official press release here

    Keep in mind that the 5% is an across-the-board average, so certain rate classes will change by more (or less) than that figure.  You can look up the 2019 proposed rates by risk classification here to see if your business’s risk class rates have changed.  Rate classifications are multiplied by each business’s unique experience modification rating (EMR) to calculate the actual premiums due.   Finalized rates and EMRs will be made available in early December.


    Washington Paid Family & Medical Leave Update

    The Washington Employment Security Department has been hard at work as the Paid Family Medical Leave rulemaking process rolls on!  The Department is hosting a series of recurring webinars to help employers get ready for what's next; view the schedule and register for webinars here.  As well, check out the Upcoming Meetings schedule for more information on how to attend or call in to public hearings and meetings.  Finally, here's an update on where the rulemaking process is at:

    • Phase 1 rules related to CBAs, premiums, and voluntary plans have been finalized!  Read the post adoption notice here.
    • Phase 2 final proposed rules related to employer responsibilities/penalties and small business assistance have been filed, and the public comment period is open through October 29, 2018 at 5:00 PM.  This your last chance to submit feedback on Phase 2, so be sure to do so before then to make your voice heard!  You can find links to the final proposed Phase 2 rules and submit your feedback to the Department here.  Looking for more detailed information such as reasoning behind a rule, or a cost-benefit analysis?  Check out the Phase 2 Significance Analysis located here
    • Phase 3 draft #2 of proposed rules related to benefit applications and eligibility is in the works, and is expected to be released on October 25, 2018.  Read the draft and submit your feedback to the Department here.   
    • Phase 4 related to continuation of benefits and fraud kicked off in October!  Draft #1 of proposed rules is expected to be released on November 14, 2018.  More to come!

    As a reminder, all employers will have the responsibility to report hours and earnings, collect and remit premiums, and post required notices beginning January, 2019.  Benefits are available to be collected beginning January, 2020.  Find the most up to date information, download fact sheets and other resources, and sign up for emailed updates by visiting the Employment Security’s Paid Family & Medical Leave website!


    Federal DOL Announces Additional OT Regulation Listening Sessions

    The Department of Labor’s Wage & Hour Division is seeking to update current overtime regulations.  Accordingly, the DOL is holding nationwide public listening sessions during the months of September and October to obtain feedback and public comment on several different topics, including proposed salary level changes, methodology for updating salary levels, and frequency of salary updates, among other things.  For more information, head to the DOL site here.   


    Janus v. State, County, & Municipal Employees

    Opinion of the majority on Janus -- click here to read the full opinion.

    For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. Under Illinois law, if a public-sector collectivebargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. §315/6(e). No form of employee consent is required.

    This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Johnson v. Zerbst, 304 U. S. 458, 464 (1938); see also Knox, 567 U. S., at 312–313. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967) (plurality opinion); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U. S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met.

    Abood was wrongly decided and is now overruled. The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

    It is so ordered.


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