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Washington Minimum Wage Act (WMWA) - questions and answers

WMWA guideline changes

Most employees covered by the Washington Minimum Wage Act (WMWA) must be provided a minimum wage, overtime for working above 40 hours in a seven day workweek, and paid sick leave. WMWA exempts certain kinds of covered employees from its requirements, including bona fide Executive, Administrative, and Professional (EAP) workers.

Effective January 1, 2021 the Washington State Department of Labor & Industries (L&I) increased the weekly standard salary level required to exempt executive, administrative or professional (EAP) employees from Washington State’s overtime pay requirements. An exempt employee must earn a salary of at least 1.75 times the minimum wage, or $958.30 a week ($49,831.60/year) to maintain the exemption. For hourly computer professionals, L&I’s new salary threshold is $47.92 per hour. L&I also updated its EAP duties tests to more closely align with the federal standards.

Unlike the federal law, WMWA does not include a “highly compensated employees” (HCE) standard.  Under federal law, the total annual compensation level for highly compensated employees is $107,432 per year.

The weekly standard salary level will continue to increase each year over the next eight years. By 2028 the annual salary threshold will be $78,624.00.  The phased in salary thresholds can be found at WAC 296-128-545.

Note: in limited circumstances, the salary threshold does not apply to certain professionals (e.g., teachers, doctors, and lawyers) because those professionals are considered exempt under the WMWA based on their duties alone. In addition, there are other specialized rules which apply in higher education settings, as discussed in number 4 below. 

Changes to the standard salary level to exempt EAP employees from WMWA overtime requirements are effective January 1, 2021. As noted above, the weekly standard salary level will continue to increase each year over the next eight years. By 2028 the annual salary threshold will be $78,624.00. The phased in changes will be effective January 1 of each subsequent year.

Not necessarily.  The salary threshold required to exempt EAP employees from overtime protections under FLSA are different. Under FLSA, the standard salary threshold is $684 per week or $35,568 per year. Under the WMWA, the standard salary threshold is higher and more favorable to the worker.  Where there are differences between the state and federal overtime rules, the employer must follow the rule that is most favorable to the worker.  Since state law is more favorable, employees who are currently exempt under FLSA may now be overtime eligible under state law requiring the employer to provide overtime pay to those employees.

Employees considered exempt from WMWA’s overtime requirements must meet both the threshold salary test (using the new increased salary basis threshold above in question #1) and the duties test of a particular position.  

It depends. For classified employees and those employees exempt from civil service the salary threshold discussed in question #1 should be applied in order to exempt the position. For academic employees, consult your assigned AAG about whether the new salary basis threshold applies. This salary threshold would not apply to individuals whose primary duty is teaching, and there are other specialized rules that apply in the higher education settings. L&I Administrative Policy ES.A.9.5; WAC 296-128-530(2)(a); See also for guidance attached DOL Fact Sheet.

Salary test and duties test

In most circumstances, yes. Employees have to meet both the threshold salary test and the duties test to be considered overtime exempt.  It is not enough to meet one test but not the other unless the claimed exemption is one for a professional whose duties alone make them exempt regardless of the salary paid or if other specific rules apply, such as in higher education (see #4 above and #1 Note).   

For non-represented positions WAC 357-28-245 requires general government employers to get OFM approval when changing a position’s overtime eligibility designation from overtime eligible to overtime exempt. For represented positions, refer to the appropriate collective bargaining agreement to ensure required notifications occur when making changes to an employee’s overtime status.

Part-time and cyclical employees

The relevant inquiry is what the standard salary level is to qualify for exemption under state law. The salary threshold to qualify for exemption is $958.30 per week under WMWA.

The new salary threshold is $958.30 per week meaning that if the position calls for the employee to work 40 weeks out of the year, then the ability to exempt the position from WMWA would depend on whether or not the employee’s weekly salary exceeds $958.30 per week.

If the person’s pay is tied to the amount of time (i.e., the quantity) that they work, they are hourly employees and overtime eligible because they are not being paid on a salary basis pursuant to WMWA rules.  Specifically, under WMWA rules an employee will be considered to be paid on a “salary basis” if the employee regularly receives for each pay period of one week or longer (but not to exceed one month) a pre-determined monetary amount (the salary) consisting of all or part of his or her compensation, which amount will not be less than what is required to be paid pursuant to WAC 298-128-510 through 295-128-530. The salary shall not be subject to deduction because of various in quantity or quality of the work performed, subject to exceptions in WAC 296-128-532(3).  WAC 296-128-532.

Note: This is the same standard used under FLSA, 29 C.F.R. § 541.602(a).

It does not matter if the employee is working full-time or part-time. The standard salary level for exemption is $958.30 per week ($49,831.60 annually). As such, absent the limited exceptions for higher education, if a part-time employee’s weekly pay doesn’t reach $958.30 per week, they are eligible for overtime.   

Split-level ranges

Split level pay ranges are salary ranges in which the new WMWA salary threshold falls somewhere in the current salary range. The current split level salary ranges are 40-51 on the general service salary schedules for represented employees under WFSE GG and HE WPEA & WFSE, Coalition.   For non-represented, please refer to other salary schedules for the cutoff at $49,831.60.

Employees could switch from overtime eligible to overtime exempt once their salary exceeds the new salary threshold, provided employee’s duties also meet the WMWA exemption criteria.  It is up to the agency to apply the new salary basis test so that employees would switch from overtime eligible to overtime exempt mid-pay range.

Agencies should be reviewing their current positions to ensure that they are properly classified. Agencies are responsible for determining whether a worker’s job duties and salary meet the requirement to be overtime exempt under WMWA. You are highly encouraged to take a close look not only at the salary, but at whether the position duties meet the job duties test under L&I’s rules.

Miscellaneous

Agencies or higher education institutions should contact their assigned Labor and Personnel or Education Division AAG.

This is a very fact specific question that should be asked of your assigned Labor and Personnel or Education Division AAG.  The WMWA rules state that an employee who otherwise meets the salary basis requirements shall not be disqualified from the exemption if that public employee is paid according to a pay system that is established by statute, ordinance, regulation or by a policy or practice established according to the principles of public accountability under which the employee accrues personal leave (annual, vacation etc.) and sick leave and which requires the public agency employee's pay to be reduced or such employee to be placed on leave without pay for absences for personal reasons or because of illness or injury of less than one work-day when accrued leave is not used by a public employee. WAC 296-128-533(1)(a). See also federal law for guidance, 29 C.F.R. § 541.710(a).

The salary threshold test should be applied to the pre-determined salary set by the salary schedule without regard to potential furloughs that may arise.  If in the future the employer requires a furlough of less than one week, it will destroy the salary basis for that workweek if the employee performs work. See WAC 296-128-533(1)(c). For that week only, the employee would be entitled to protections under the Minimum Wage Act, which would include payment for all time worked over 40. You will want to change them to overtime eligible only for the week when the furlough occurs. Otherwise they remain overtime exempt.

Higher education

Under both federal and state law, teachers are exempt if their primary duty is teaching, tutoring, instructing or lecturing to impart knowledge and that person also performs these duties at an educational establishment.  Coaches are exempt under the professional exemption, when their primary duty is teaching student athletes how to perform their sport.  L&I Administrative Policy ES.A.9.5; WAC 296-128-530(2)(a).

If the teaching activities are covered by the professional exemption then the employee is also exempt from paid sick leave coverage.  RCW 49.46.010(3)(c). 

An employee whose primary duty is in an overtime eligible position will carry that eligibility over to the nonexempt assignment, while an employee whose primary duty is in an overtime exempt position can perform work that would be overtime eligible without losing the exemption. For employees with multiple appointment types with the same employer, it is sometimes unclear which position is their primary duty for purposes of determining exempt or nonexempt status. Please contact your assigned AAG for assistance with questions involving the impact of multiple appointment types on an employee’s overtime status.

The answer to this question is fact-specific and requires analysis of the position’s primary duties under the administrative exemption of WMWA. Please contact your assigned AAG for analysis.

Direct any questions you may have to classandcomp@ofm.wa.gov and reach out to your assigned Assistant Attorney General.

Last updated
Tuesday, July 27, 2021
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