Washington’s statewide and local minimum wages will substantially increase in 2017. While most employers are aware that Initiative 1433 raises the state minimum wage to $11.00/hour on January 1, 2017, the Initiative’s mandatory paid sick leave requirements (set to take effect in 2018) are not as well known. This advisory summarizes the main requirements that Initiative 1433 imposes on all Washington employers and compares the new state law changes to parallel requirements in local laws for Seattle, Spokane, Tacoma, and the city of SeaTac.

Initiative 1433: Minimum Wage

Washington voters passed Initiative 1433 in November, electing to raise the minimum wage statewide from $9.47/hour in 2016 to $13.50 by 2020:

  • January 1, 2017: $11.00/hour
  • January 1, 2018: $11.50/hour
  • January 1, 2019: $12.00/hour
  • January 1, 2020: $13.50/hour

The new Washington minimum wage law does not supplant local wage laws enacted in various cities, so many employers will still need to ensure compliance with federal, state and local requirements.

Local Minimum Wage Updates

Seattle:

Seattle’s Minimum Wage officially climbs to $15/hour for large employers.  Effective January 1, 2017, the minimum wage rates and minimum compensation scheme in Seattle will be as follows:


Source: Seattle Office of Labor Standards


As a reminder, employers must post information in English and Spanish (and possibly additional languages) about the Seattle minimum wage, paid sick and safe leave, wage theft, and fair chance employment ordinances.

Other Cities:

Effective January 1, 2017, the minimum wage in Tacoma and SeaTac will rise as follows:

  • Tacoma: $11.15/hour
  • City of SeaTac: $15.34/hour (for certain hospitality and transportation employers)

Initiative 1433: State Paid Sick Leave (and Comparison to Local Ordinances)

Effective January 1, 2018, Initiative 1433 requires all Washington employers to provide paid sick leave, regardless of the employer’s size.  Here is a summary of the key components of the sick leave law, and how it compares to requirements in other Washington cities with paid sick leave laws:

 

Washington Paid Sick Leave under Initiative 1433 (effective 1/1/18)

Seattle

Tacoma

Spokane (effective 1/1/17)

Effective Dates

January 1, 2018

Ongoing

Ongoing

Jan. 1, 2017 until implementation of I-1433

Employer Size

No minimum: 1+

Tier 1: 5-49

Tier 2: 50-249

Tier 3: 250+

1+

1+

Employer Location

Silent (awaiting guidance in final rules)

Anywhere

Anywhere

Must have physical location in Spokane

Employees Covered

As defined in RCW 49.46.010

Employees who perform more than 240 hours of work in Seattle within a calendar year

Employees who perform more than 80 hours of work in Tacoma within a calendar year

Employees who perform more than 240 hours of work in Spokane within a calendar year

Exclusions

As defined in RCW 49.46.010

Work-study students, independent contractors, and government workers (other than City of Seattle employees)

Work-study students, independent contractors, single-person businesses, and government workers

Work-study students, independent contractors, single-person businesses, government workers, seasonal and domestic workers,  and certain construction

Accrual

1 hour for every 40 hours worked

 

 

 

 

Silent as to cap on accrual (awaiting guidance in final rules)

 

 

 

 

 


Employer must provide regular notification of employee’s balance

Tier 1 and 2: 1 hour for every 40 hours worked

Tier 3: 1 hour for every 30 hours worked

 

No maximum accrual

 

 

 

 



Employer must provide written record of available sick leave every pay period

1 hour for every 40 hours worked

 

 

 


24 hours maximum accrual

 

 

 

 


Employer must provide regular notification of employee’s balance

1 hour for every 30 hours worked in Spokane

 

 

 

No guidance as to accrual cap

 

Accrual for exempt employees tied to normal work week

 

Employer must provide information about employee’s balance and use every pay period

Rollover (max)

40 hours

Tier 1: 40 hours

Tier 2: 56 hours

Tier 3: 72 hours

24 hours

24 hours for employers with 1-9 employees

 

40 hours for employers with 10+ employees

Use: Annual Max

Silent as to cap on use (awaiting guidance in final rules)

Tier 1: 40 hours

Tier 2: 56 hours

Tier 3: 72 hours

40 hours

24 hours for employers with 1-9 employees

 

40 hours for employers with 10+ employees

Use: Increments

Silent (awaiting guidance in final rules)

Smaller of hourly increments or, if feasible, 15-minute increments

1-hour increments unless employer establishes written minimum use policy

1 hour minimum increments

Use: Waiting Period

90 days

180 days

180 days

90 days

Use: Purposes

Employee’s own mental or physical illness, injury, or medical condition; medical diagnosis, care, or treatment, including preventative care

Care for employee’s family member. 

“Family member” broadly defined to include:

(a)   Child (biological, adopted, foster, stepchild, or child to whom employee is legal guardian, de facto parent, or stands in loco parentis), regardless of age or dependency status.

(b)   Parent of employee or employee’s spouse or registered domestic partner (biological, adoptive, de facto, foster, stepparent, legal guardian, or person who stood in loco parentis when employee was a minor child);

(c)    Spouse;

(d)   Registered domestic partner;

(e)   Grandparent;

(f)    Grandchild; or

(g)   Sibling

 

Closure of employee’s workplace, or employee’s child’s school or care provider, for health-related reason by order of public official

 

Domestic violence leave

Same purposes as state law

 



“Family member” defined as: Child (under 18 or 18+ and incapable of self-care), parent, parent-in-law, grandparent, spouse or registered domestic partner

Same purposes as state law plus bereavement leave for death of family member

 
“Family member” defined as: Child (under 18 or 18+ and incapable of self-care), parent, grandparent, spouse or domestic partner

Same purposes  as state law plus bereavement leave for death of family member


“Family member” defined as: Child (under 18 or 18+ and incapable of self-care), parent, grandparent, spouse or domestic partner; plus grandchild or guardian

Verification

More than 3 consecutive days

More than 3 consecutive days or pattern of abuse

Employer may take reasonable measures to verify use of leave; must have written policy regarding documentation requirements

No limitations

Pay Out Upon Separation

Employer not required to pay out accrued but unused sick leave at termination

Same as state law

 

Same as state law

 

Same as state law

 

Reinstatement of Accruals

If employee is rehired within 12 months of separation, previous balance must be reinstated

Reinstatement if rehired within 7 months of separation

Reinstatement if rehired within 6 months in the same calendar year of separation

Not required

Notice of Absence

Employer may require employee to provide reasonable notice of absence

Foreseeable leave: written request at least 10 days in advance or as early as possible

 

Unforeseeable leave: notice as soon as practicable, complying with employer’s call-in procedures

Foreseeable leave: written request at least 10 days in advance or as early as possible

 

Unforeseeable leave: notice as soon as practicable, complying with employer’s call-in procedures

Advance notice not addressed, but request should specify employee’s reasonable estimate of duration

 

Attendance Policies

Employer prohibited from maintaining policies that count use of paid sick leave as absence for disciplinary purposes

Employer generally may not count any absence covered by the ordinance for disciplinary purpose, but may discipline for clear instance or pattern of abuse

Employer generally may not count any absence covered by the ordinance for disciplinary purpose, but may discipline for clear instance or pattern of abuse

No specific guidance

As with the minimum wage, many Washington employers will find themselves subject to overlapping paid sick leave laws that are confusingly similar yet not completely identical.  For example, while most paid sick leave ordinances cap annual accrual and use, Initiative I-1433 caps neither (but does cap maximum rollover).  Similarly, many employers familiar with the Washington Family Care Act (WFCA) will observe that Initiative I-1433 defines “family” much more broadly than the WFCA, meaning employees will be able to use sick leave for paid family care in a wider range of circumstances (including care for the employee’s adult children and siblings).

One of the concerns about passing employment laws by initiative is that Initiative 1433 predictably contains many gaps and ambiguities, which will hopefully be addressed when the Department of Labor and Industries issues interpretive rules.  For instance, Initiative 1433 completely ignores the fact that many employers offer Paid Time Off (PTO) programs rather than dedicated sick leave.  The law contains not a single reference to PTO, and accordingly fails to address how employers with PTO programs should ensure compliance with the new requirements.   In addition, unlike local ordinances, Initiative 1433 lacks an express exception to the three-consecutive-day rule for verification in cases of suspected sick leave abuse.

A note for employers with no-fault attendance policies: Employers with no-fault attendance policies will need to consider how to adapt given the law’s prohibition on policies that count use of paid sick leave as absences for disciplinary purposes.

A note about payout at separation: While the Initiative does not require payout of accrued but unused sick leave upon separation, be sure that your written policies could not be interpreted otherwise to avoid the risk of potential contract issues.

A note for employers with employees represented by labor organizations: Initiative 1433 does not permit its wage or sick leave provisions to be waived in a collective bargaining agreement.

Practice Tips: What Should Employers Do Now

  • Ensure payroll has made any necessary changes to implement new minimum wage rates for 2017.
  • Employers with employees in Seattle, Tacoma, or Spokane must ensure they have sick leave policies in place for 2017 that comply with the applicable local ordinance(s).
  • Later this year, employers should revise any employee handbooks or sick leave policies to ensure compliance with the new sick leave law.  Employers may choose to have one policy for all of Washington – providing the most generous aspects of the sick leave requirements that apply to their workforce – or have separate policies for each City with its own requirements. 
  • Employers with multi-state or statewide workforces are encouraged to contact legal counsel to ensure sick leave policies are compliant with applicable local and state requirements.