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Personnel

Below are selected “Ask MRSC” inquiries we have received from local governments throughout Washington State related to personnel and human resources. Click on any question to see the answer.

These questions are for educational purposes only. All questions and answers have been edited and adapted for posting to the MRSC website, and all identifying information, including the inquirer’s name and agency name, has been removed.


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Is it legal to pay an independent contractor an hourly rate less than minimum wage?
Reviewed: 09/20

Independent contractors are exempt from minimum wage requirements. See RCW 49.46.010(3)(d) defining "employee" for purposes of the state minimum wage act, to specifically not include "[a]ny individual engaged in the activities of an . . . local government body . . . where the employer-employee relationship does not in fact exist . . ."

As stated by the Department of Labor and Industries (L&I) in its administrative policy on the Minimum Wage Act Applicability, "A bona fide independent contractor is exempt from the MWA (Minimum Wage Act) because that person is not 'employed' by an employer."

The critical thing here is to make sure that the individual is truly an independent contractor. The test for whether someone is an independent contractor depends to a great extent on the amount of control the employer has over the worker. Some guides that may be of use to you (in the event you are unsure whether a worker is an employee or an independent contractor) are:

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Do Washington state lunch break and rest break laws apply to exempt employees?
Reviewed: 03/20

The Washington Labor rules in WAC Chapter 296-126, which include the meal and rest rules in WAC 296-126-092, do not apply to “[a]ny individual employed in a bona fide executive, administrative or professional capacity or in the capacity of outside salesperson” because such persons are not included in the definition of “employee” for purposes of the rule. See WAC 296-126-002 (2)(b).

The Washington Minimum Wage and Overtime law also does not apply to certain “bona fide executive, administrative or professional” individuals, as well as many other kinds of employees. RCW 49.46.010(3)(c). All of these employees, including the professionals, are often referred to as “exempt.” However, WAC 296-128-500, provides a further definition of the professional terms that define duties and a base salary. So it is possible to have an employee that performs executive, administrative, or professional functions that doesn’t meet the rule’s definition for purposes of the exemption.

The same is true under the federal law. See MRSC's page on the Fair Labor Standards Act.

WAC 296-126-092 does not provide a definition of executive, administrative, or professional, but it is likely safe to assume that the duty and salary based definition in WAC 296-128-500 applies. In fact, a federal district court found that a salaried pharmacist was a “professional” and thus not subject to the Washington meal and rest break rules. Parmar v. Safeway, US District Court (W.D. Washington) March 14, 2011 (unpublished decision).

So, if you have employees that are “exempt” under the state and federal law for overtime pay in part because they are “bona fide executive, administrative or professional” employees, then the Washington meal and break rules would not apply to them because of the overlap in terms. So it is less that an overtime “exempt” employee is also exempt from the meal and break rules (because the word “exempt” means many types of employees), but rather an individual that meets the definition of the professional type of “exempt” employee likely meets the definition of a professional employee that is also not subject to the meal and break rules. There may be other types of overtime “Exempt” employees that ARE subject to meal and break rules.

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Is there a process our agency should have for an employee to access their personnel file?
Reviewed: 11/19

Yes. Regarding employee review of a personnel file, that RCW 49.12.240 provides:

Every employer shall, at least annually, upon the request of an employee, permit that employee to inspect any or all of his or her own personnel file(s).

Regarding correction of erroneous or disputed information in the file, RCW 49.12.250 states:

(1) Each employer shall make such file(s) available locally within a reasonable period of time after the employee requests the      file(s).

(2) An employee annually may petition that the employer review all information in the employee’s personnel file(s) that are regularly maintained by the employer as a part of his business records or are subject to reference for information given to persons outside of the company. The employer shall determine if there is any irrelevant or erroneous information in the file(s), and shall remove all such information from the file(s). If an employee does not agree with the employer’s determination, the employee may at his or her request have placed in the employee’s personnel file a statement containing the employee’s rebuttal or correction. Nothing in this subsection prevents the employer from removing information more frequently.

(3) A former employee shall retain the right of rebuttal or correction for a period not to exceed two years.

Regarding limitations on an employee’s inspection of his/her personnel file, RCW 49.12.260 provides:

RCW 49.12.240 and 49.12.250 do not apply to the records of an employee relating to the investigation of a possible criminal offense. RCW 49.12.240 and 49.12.250 do not apply to information or records compiled in preparation for an impending lawsuit which would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

If the exemptions in RCW 49.12.260 may apply, we recommend you review the file with your legal counsel.

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Do you have a list of federal and state posters that are required to be hung? Also, what is the requirement related to having those posters in another language?
Reviewed: 10/19

MRSC has a webpage relating to Required Employment Posters. There are a number of resources on that webpage including a helpful fact sheet entitled, Workplace Posters: Required and Recommended, prepared by the Washington State Department of Labor and Industries (L&I). The fact sheet provides a list of posters that Washington State and federal agencies require or recommend employers post in their places of business. The fact sheet also includes online resources and contact numbers for state agencies that issue posters. MRSC's Required Employment Posters page also has links to federally-required employment posters. Note that the list is not intended to be exhaustive and we recommend you also consult with your agency attorney.

L&I also has a webpage entitled “Answers to questions about required workplace posters” that we recommend you review because it includes additional information about signage requirements including whether you are required to post in languages other than English.

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Under what circumstances can a local government official receive reimbursement for meals or travel expenses incurred in connection with official duties?
Reviewed: 10/19

State law governs reimbursement of state and local officials for reimbursement of travel expenses. RCW 42.24.090 allows the governing body of a local government to, at its discretion, adopt a policy authorizing travel and meal reimbursement if certain criteria is satisfied:

No claim for reimbursement of any expenditures by officers or employees of any municipal corporation or political subdivision of the state for transportation, lodging, meals or any other purpose shall be allowed by any officer, employee or board charged with auditing accounts unless the same shall be presented in a detailed account: PROVIDED, That, unless otherwise authorized by law, the legislative body of any municipal corporation or political subdivision of the state may prescribe by ordinance or resolution the amounts to be paid officers or employees thereof as reimbursement for the use of their personal automobiles or other transportation equipment in connection with officially assigned duties and other travel for approved public purposes, or as reimbursement to such officers or employees in lieu of actual expenses incurred for lodging, meals or other purposes. The rates for such reimbursements may be computed on a mileage, hourly, per diem, monthly, or other basis as the respective legislative bodies shall determine to be proper in each instance: PROVIDED, That in lieu of such reimbursements, payments for the use of personal automobiles for official travel may be established if the legislative body determines that these payments would be less costly to the municipal corporation or political subdivision of the state than providing automobiles for official travel.

All claims authorized under this section shall be duly certified by the officer or employee submitting such claims on forms and in the manner prescribed by the state auditor.

There is some flexibility associated with travel reimbursement as shown above in RCW 42.24.090. The statute requires a travel policy to establish how officers and employees shall be reimbursed for travel costs associated with their work. Local governments typically have such travel policies to fit the needs of their respective jurisdictions.

We have a webpage that provides examples of meal and travel policies adopted by local governments. If your agency has a policy for reimbursement of travel and meal expenses incurred in connection with official business, then you should follow that policy with respect to requests for reimbursement. If there is not a policy, your agency should consider adopting one—the webpage linked above has numerous examples that may be helpful in that regard.

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Have the courts determined which document takes precedence in a conflict between personnel rules and policies and a union contract? For instance, if the city's personnel rules say one thing, but the union contract says something different, which one is applicable?
Reviewed: 08/19

In our opinion, the collective bargaining agreement (CBA) has priority over a directly conflicting personnel policy. There may be terms and specific language in the CBA about such potential conflicts. Likewise, the city’s Personnel Policy may have terms about compliance with applicable CBAs.

Chapter 41.56 RCW is the Public Employees Collective Bargaining Act. MRSC has topic pages on Personnel Policy Manuals and Civil Service.

Regarding the courts, there are several cases about the priority of collective bargaining, but I did not find one specifically about priority over all personnel policies. For example, in Spokane and Spokane Police Guild v. Spokane Civil Service Commission, 98 Wn. App. 541 (1999) the court held that which is bargained during a collective bargaining agreement will prevail over any inconsistent civil service rule. In Rose v. Erickson, 106 Wn.2d 420 (1986)the court found the legislature did not intend the procedures of chapter 41.14 RCW (civil service) to supplant chapter 41.56 RCW (collective bargaining); the legislature intended that chapter 41.56 RCW prevail.

Depending on the circumstances you are considering, the city may need to bargain with the union about a particular personnel policy if there is a conflict with the CBA. we recommend you consult with your city attorney and, perhaps, a labor attorney.

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Does an at-will employee have the right to file an appeal to contest termination?
Reviewed: 05/19

No, “at-will” employees (not covered by civil service or a collective bargaining agreement) do not have administrative appeal hearing rights. We have a very comprehensive page on Employee Termination. Here is an excerpt from that page on at-will employees and termination:

In Washington, many governmental employment relationships are "at will," that is, a person's employment continues at the will or pleasure of the employer. Absent the requirements of civil service or collective bargaining agreements, discussed later, a public employee does not have a property interest in his or her employment, and that employment can be terminated without due process, "at will," without notice, statement of cause, or hearing (Yantsin v. Aberdeen (1959); Nostrand v. Little (1961); Halliburton v. Huntington (1978); Gaar v. King County (1972)).

Note, however, that a name clearing hearing should be provided to even at-will employees if the agency has publicly announced a false, stigmatizing charge during the termination process. Here is the relevant excerpt from that same webpage:

Name-Clearing Hearings
If the employer has publicly announced the grounds for the employee's discharge, it may be necessary to provide a "name clearing hearing" (Owen v. City of Independence). A name-clearing hearing can be required when there has been a false, stigmatizing charge publicly made against the employee during the disciplinary or termination process. If a stigmatizing charge has been made, the employee should be given an opportunity to "clear" his or her name at a public hearing. This hearing may occur either before or after the termination. Obviously, the need for such a hearing can be avoided altogether by the employer not making any public statements about the termination. (Of course, if the announced reason for the termination is true, the terminated employee may choose from a privacy standpoint to avoid any further public airing of the reasons for his or her discharge.)

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What is the legal authority for awarding comp time?
Reviewed: 03/19

Local governments may adopt policies to provide compensatory or “comp” time to employees. Public employers are allowed to provide compensatory time off in lieu of paid overtime. Employers are not required to provide a comp time option for employees, but it is an available alternative. The Fair Labor Standards Act (FLSA) provides a cap on comp time which may be accumulated by employees. The cap for employees in public safety activities is 480 hours of comp time, and for all other employees, the cap is limited to 240 hours. Local governments may place a lower cap on accrued comp time if desired.

Exempt employees are not eligible for overtime pay but may be provided a comp time option. The Washington State Public Employer Overtime Guide has the following to say on the subject:

Comp time for exempt personnel: Many Washington employers have formal or informal policies of paying comp time to exempt personnel. As a basic matter, an employer is free to set any terms concerning accrual and use of comp time for employees not covered by the FLSA . . . . The Ninth Circuit, the Department of Labor and the Washington Supreme Court (interpreting the Washington Minimum Wage Act) have all concluded that comp time on top of salary is legal.

Public employers' authority to set their own terms governing the payment of comp time to exempt employees, as stated above, appears to stem from 29 C.F.R. §§ 553.28(c), (d), and (e). Generally, the FLSA, at 29 U.S.C. § 207(o), limits the amount of comp time that non-exempt employees can be given. However, FLSA exempt employees are not subject to these limitations because the FLSA does not provide for exempt employee comp time. Instead, pursuant to 29 C.F.R. § 553.28(c), exempt employee comp time would likely be considered to be "other" compensatory time, because it is accrued pursuant to a policy adopted by the employer, rather than from a provision of the FLSA. Specifically, C.F.R. § 553.2829(e) states that:

The requirements of section 7(o) [i.e., 29 U.S.C. § 207(o)] of the FLSA, including the limitations on accrued compensatory time, do not apply to "other" compensatory time as described above.

So a public employer is free to set its own procedure governing comp time given to exempt employees. Once adopted, any such procedure should be clearly outlined in the employer's personnel policy. It also appears that comp time for exempt employees can be posted on an hour-for-hour basis. 29 C.F.R. § 553.28(d) states as follows:

The FLSA does not require that the rate at which "other" compensatory time is earned has to be at a rate of one and one-half hours for each hour of employment. The rate at which "other" compensatory time is earned may be some lesser or greater multiple of the rate or the straight-time rate itself.

Public employers may provide compensatory time off in lieu of paid overtime. Employers are not required to provide a comp time option for employees, but it is an available alternative. Under both federal and state law, an employee cannot be required to accept comp time rather than overtime pay but may choose to do so. An employee may choose, with the employer’s agreement, to take comp time rather than overtime pay, but the employer may not require it.

Limits may be placed on the number of hours of comp time accumulated and the time by which it must be used. A sampling of comp time restrictions from other cities shows that 40 hours is a common limit on accumulated time. The range is from 24 to 160 hours. Limits on the time period for the use of comp time (or overtime is paid instead) include 30 days, 60 days, 12 months, and within the same pay period.

For more information including a section explaining comp time, here is a link to MRSC’s webpage Fair Labor Standards Act. Here is a link to Washington State Labor & Industries Overtime webpage, where there is a section about “comp time,” also called “exchange time,” which states:

Only public employees are eligible for time off instead of being paid overtime under federal law. This is commonly known as “comp time” or “exchange time.” This time off must be credited at the rate of at least 1.5 hours of time off for each hour of overtime worked. An employer may not require a worker to take comp or exchange time - it is at the worker’s request. Private employers cannot enter into these agreements.

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Can we reimburse expenses incurred by volunteers?
Reviewed: 03/19

There are no differences between reimbursing expenses incurred by employees, 'volunteers', 'non-employees' or vendors. The issue is whether the expense is a true and just claim against the city. Did the city receive the good or service that it is reimbursing? What are the internal controls in place to assure that the good or service received was in fact received? In this particular case, what is the good that was purchased by the volunteer? Was this a purchase that was needed by the city and was it authorized by the appropriate department head prior to making the purchase?

Does the city have an adopted policy for purchases and reimbursements to employees? If the city has appropriate internal controls and procedures in place to assure that the purchases made by volunteers and other non-employees are pre-authorized by city personnel and that the purchase meets the requirements of the city's purchasing policies, there should not be a problem.

While there are no WACs or RCWs that speak specifically to reimbursements to volunteers, there are requirements by statute that all claims against the city must be audited and authenticated by the auditing officer (RCW 42.24.080). The city will need to look to its own policies for guidance and if this is an area that has not previously been addressed by local policy, consideration should be given to adopting a protocol that will assure the appropriate use of public funds.

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May the veterans' scoring criteria status be claimed in a civil service examination where it previously has been claimed and the person was thereby employed, even if employed by a different public employer?
Reviewed: 10/18

RCW 41.04.010 restricts the scoring criteria status so that it can only be used to obtain employment once (“…until the veteran’s first appointment.”). Once employment is obtained after using this preference, it may not be used again, even if the status was claimed and employment obtained with a different public agency in Washington State. Note that this one-time limitation applies only to the use of the veterans' scoring criteria status that is authorized by RCW 41.04.010. The fact that a veteran may have obtained a job in another state using that state’s veteran’s preference provisions does not impact this state’s veterans’ preference under RCW 41.04.010.

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Is there a legal requirement, or is it only a best practice, for a city to run a police officer's off-duty employment (i.e. security detail at a private event) through the city's payroll system?
Reviewed: 10/18

There is not a state law requiring off duty police work be paid through the city’s payroll system. We are not sure that it is necessarily a “best practice” but we do know it is one option followed by some cities and counties.

There is no specific statutory authorization for officers to provide security work for private employers; that is true for both county and city law enforcement. But it is done regularly, and has been done for decades. Some jurisdictions have adopted policies that attempt to draw a line between work that is done through the public entity and work that is done separately. There are obviously many considerations, including FLSA, liability, use of public equipment for private purposes, etc. . . . .

Having trained officers present at gatherings that raise the potential for violence is generally considered to be good for the community. Having the cost of that security paid for by private employers is a plus.

Some use of law enforcement officers for private purposes are broadly accepted, such as having police motorcycle officers accompany large funeral processions. In some jurisdictions there is a requirement that officers be paid to help direct traffic when major construction projects result in road restrictions. The underlying assumption is that it is often better to have well-trained officers handle situations that could get dangerous if not done properly.

Here are links to MRSC’s webpages on Outside Employment Policies and Police and Law Enforcement Services Policy and Procedure Manuals/a>.

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We have an employee resigning who has accumulated some compensatory time and won't be using it before their last day. Does the city pay the employee for the unused comp time on their final paycheck?
Reviewed: 06/18

Yes. Comp time allows an employee to take paid time off work instead of being paid overtime pay. Comp time accumulates in the same fashion as overtime pay; that is, for every hour worked over 40 hours during the workweek, the employee, if he or she chooses to do so and the use of comp time has been agreed to, accumulates comp time at the rate of an hour and one-half for each overtime hour.

When an employee separates from employment with the city, all accumulated compensatory time must be paid to the employee as these are earnings that he should have been paid for at the time of earning but chose to use for leave time as a benefit provided by the city. MRSC has a web page on the Fair Labor Standards Act (FLSA) which discusses the topic of Compensatory time.

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Can an employee take FMLA leave to care for his unmarried partner in connection with the birth of their child?
Reviewed: 01/18

Under the FMLA (29 CFR 825.120), it is clear that both parents may take FMLA leave in connection with the birth of a child regardless of whether they are married. In addition, an employee may take FMLA leave to care for a pregnant spouse under 29 CFR 825.120(5). However, the FMLA definition of spouse does not apply to unmarried couples, so I agree with you that under the FMLA, the employee would not be eligible to take leave to care for an unmarried partner who is pregnant. Any FMLA leave would begin with the birth of the child. Under Washington’s Family Leave Act (FLA), the result is the same. The entitlement to leave provisions are set forth in RCW 49.78.220, which provide for leave in the event of the birth of an employee’s child. That statute also provides for leave to care for a “family member.” Under RCW 49.78.020, "Family member" means a child, parent, spouse, or state registered domestic partner of an employee. It does not extend to unmarried couples. Therefore, the FLA does not authorize leave for an employee to care for an unmarried partner during her pregnancy. Please note that the Legislature recently passed SSB 5975, which repeals much of the current FLA and replaces it with a paid leave system. However, the definition of “family member” is substantially similar to the definition in RCW 49.78.020 and was not expanded to include unmarried partners. See SSB 5975 Section 2.

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If an employee is called to active duty and will be gone for several months, must the local government employer continue to pay them and provide benefits while they are away?
Reviewed: 09/17

Under RCW 38.40.060, local government employees are entitled to paid military leave for up to 21 work days. Such military leave is in addition to any vacation or sick leave to which the employee would otherwise be entitled. During the period of military leave, the employee receives his or her normal pay.

Regarding benefits, 38 U.S.C. § 4317 provides that employees who leave their job to perform military service are entitled to continue their employer-based health insurance coverage for up to 24 months while on military leave.

In addition, the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) states that a person who leaves a civilian job to enter active duty is entitled to return to his or her civilian job after discharge or release from active duty. However, there are five basic eligibility requirements under federal law:

  • The person must have been released from service under honorable conditions and must furnish proof of that release;
  • The person must have held a civilian job "other than temporary" at the time he or she entered active duty;
  • The employee must have left the civilian job for the purpose of going into active duty, and must have given notice to his or her employer to that effect;
  • The employee must apply in writing within 90 days of separation or release from training or service (lesser periods apply when the period of service is 180 days or less); and
  • The period of service must not exceed five years.

The reemployment rights are available whether the person is in combat, active duty for training, or inactive duty. For a full list of USERRA regulations issued from the U.S. Department of Labor, see 20 C.F.R. § 1002. For additional information, see MRSC’s Military Leave topic page.

Finally, local governments are free to provide additional leave or benefits for employees who have been called for active service in the military than would otherwise be required by state or federal law. So, be sure to consult your local policies as well.

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With the change in the minimum wage rates and requirement to provide paid sick leave, how do we address sick leave for seasonal employees?
Reviewed: 05/17

Beginning January 1, 2018, RCW 49.46.210 will require that every employer provide each of its employees with at least one hour of paid sick leave for every forty hours worked as an employee.

RCW 49.46.010(3) then defines, for the purposes of chapter 49.46 RCW, “employee” to mean “any individual employed by an employer” but then lists 16 exceptions. See RCW 49.46.010(3)(a)-(p).

So, if the seasonal employees at issue are covered by RCW 49.46.010(3)’s definition of “employee,” and none of the exceptions apply, then I think that your city would, beginning in 2018, need to provide paid sick leave to those employees at a rate of at least one hour of paid sick leave for every forty hours worked as an employee.

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When does an employee become eligible for unemployment benefits?
Reviewed: 01/17

Regarding eligibility for unemployment benefits, page 9 of the state Employment Security Department’s (ESD) Handbook for Unemployed Workers does a great job summarizing the requirements. According to the ESD, some of the key requirements are that one must be:

  • Employed for at least 680 hours in their base year in covered employment.
  • Unemployed for reasons that are not their fault.
  • Able to and available for work.
  • Actively seeking suitable work.
  • Legally authorized to work in the United States and have been authorized to work during their base year.

The appendix to the handbook then goes on to define the words and terms highlighted in bold above.

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If a position has a salary range from $43,400-$56,600, can the local government maintain the position as FLSA-exempt under the newly-revised DOL regulations that change the salary test for exempt employees?
Reviewed: 09/16

The new Department of Labor (DOL) rule, effective on December 1, 2016, raises the salary threshold to qualify to be exempt from FLSA overtime requirements to $47,476 annually, no matter the duties the employee performs. So, whether an employee paid in the salary range of $43,400-$56,600 is exempt depends on where exactly within that salary range they are paid. At a minimum they must be paid more than $47,476 to be FLSA-exempt. If the salary of an employee in that position reaches $47,476, they could then be exempt, if they meet the duties test.

For more information on this new rule, see the MRSC blog posts, New Overtime Rule Issued for White Collar Workers and New FLSA Regulations Proposed Regarding Who is Subject to Overtime.

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Is an employee entitled to an additional 12 weeks of leave for the birth of her second child if it occurs within the same 12 months as the birth of her first child (for which she took 12 weeks of leave)?
Reviewed: 08/16

The Family Medical Leave Act (FMLA) entitles employees to only one 12-week period of leave during any 12-month period, regardless of how many qualifying events there are. So, if she has already used her 12 weeks of leave for the current 12-month period, she can't use more FMLA leave during that same 12 months. She will have to wait until the next 12-month leave commences before being eligible for more FMLA leave.

29 CFR §825.200(a) states:

(a) Except in the case of leave to care for a covered servicemember with a serious injury or illness, an eligible employee's FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for any one, or more, of the following reasons:

  1. The birth of the employee's son or daughter, and to care for the newborn child;
  2. The placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child;
  3. To care for the employee's spouse, son, daughter, or parent with a serious health condition;
  4. Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; and,
  5. Because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a military member on covered active duty status (or has been notified of an impending call or order to covered active duty).

(Emphasis added.)

There are options for how an agency measures the 12-month FMLA leave. Note, the 12-month measurement period has to be the same for all employees. You can measure it by: (1) calendar year; (2) a fixed 12-month period; (3) the 12-month period measured forward; (4) the 12-month period measured backward.  This US Department of Labor Fact sheet on measuring the 12-month period details the various options.

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Must employees be required to take a 30-minute lunch break if they work an eight-hour shift?
Reviewed: 08/16

You have inquired whether there is a requirement that employees take a lunch break or whether they can decide to skip lunch and then leave early.

A state regulation, WAC 296-126-092, states that employers, including public employers, must allow employees a meal period of at least 30 minutes, to begin between two and five hours after the beginning of a shift. So, under this regulation, an employer cannot require that employees work without a lunch break.

However, RCW 49.12.187 allows employees, individually or through collective bargaining, to enter into "employment agreements that specifically vary from or supersede, in part or in total, rules adopted under this chapter regarding appropriate rest and meal periods." So, employees may voluntarily choose to combine their meal and rest periods, or even forego a meal period, as long as the employer consents.

We recommend that any such agreement be in writing and state that the employee has voluntarily agreed, pursuant to RCW 49.12.187, to deviate from the 30-minute lunch break period described in WAC 296-126-092, to allow the employee to shorten his or her work day by 30 minutes. 

Note that an employer is not obligated to enter into such an agreement with employees, as it may not be an advantageous arrangement for the employer.

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Under the Fair Labor Standards Act (FLSA) and state law, can overtime pay for nonexempt salaried employees be applied as compensatory time (at time and a half) if that is stated in the agency's policy manual, or does it have to be paid out? Is this the same for nonexempt hourly paid employees?
Reviewed: 07/16

The FLSA, specifically 29 U.S.C. Sec. 207(o), and FLSA regulations (see, e.g., 29 C.F.R. Sec. 553.22, .23, .25, .27, .28, and .50) address the use of comp time under federal law. Under these laws and regulations, a public agency may provide for comp time to its employees as long as comp time is provided for under a collective bargaining agreement, employment agreement, or memorandum of understanding. The agreement can be made in one of three ways: through negotiation with individual employees; through negotiation with employees' representatives; or through negotiation with a recognized collective bargaining agent.

Comp time under state law is governed by RCW 49.46.130(2)(b), which exempts from overtime pay requirements "[e]mployees who request compensating time off in lieu of overtime pay." A related administrative regulation, WAC 296-128-560, provides:

The provisions of chapter 49.46 RCW requiring one and one-half times the regular rate of pay for hours worked in excess of 40 per week does not apply to any person who requests compensating time off in lieu of overtime pay. Therefore, compensating time may be as agreed upon by the employer and the individual employee at the request of the employee, but may not be imposed by the employer in lieu of overtime pay upon any employee who has not so requested such compensating time off.

So, under RCW 49.46.130(2)(b) and WAC 296-128-560 and consistent with federal law, a public employer and employee may agree on comp time in lieu of overtime pay at the request of the employee. As such, the agency can have a policy that allows the employee to request comp time in lieu of overtime pay, but the agency cannot unilaterally decide that an employee must take comp time in lieu of overtime pay.

Also of interest on this topic, more generally, may be the Overtime Pay section on our Fair Labor Standards Act page.

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What makes an employee an exempt employee vs. non-exempt? Must exempt employees have staff under them or can they have no one reporting to them and still be exempt?
Reviewed: 05/16

Regarding the factors that are considered in distinguishing between an exempt vs. a non-exempt employee, the section on Overtime Pay in our Fair Labor Standards Act page, provides a good summary on that issue.

Regarding your second question, a determination related to whether an exempt employee must supervise staff to be exempt depends on the exempt employee category at issue. For example, as explained in our blog post referenced above (emphasis in original):

Each exempt category of employment has its own duties test; for example, to qualify as exempt, an executive employee's primary duty must be managing the organization, or managing a customarily recognized department or subdivision of the organization. 29 CFR 541.100. (FLSA regulations discuss what is meant by "primary duty" (29 CFR 541.700) and give examples of what may be considered to be "management" duties (29 CFR 541.102).) The executive must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent and have the authority to hire or fire other employees, or the executive employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight. (See 29 CFR 541.105 for an explanation of what is meant by "particular weight.")

An administrative employee is exempt if the employee’s primary function is to perform office or non-manual work, directly related to the management or general business operations of the employer or the employer’s customers, that includes the exercise of discretion and independent judgment with respect to matters of significance. 29 CFR 541.200. FLSA regulations provide guidance as to what is meant by "directly related to the management or general business operations"(29 CFR 541.201), "discretion and independent judgment" (29 CFR 541.202), and give examples of the administrative exemption (29 CFR 541.203).

The new FLSA regulations that revised the salary level to qualify as an exempt employee and that were scheduled to take effect on December 1, 2016 do not affect the duties test. See New FLSA Overtime Rules Put on Hold.

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May a local government provide in its personnel policies that accrued vacation leave will be paid off at the time of termination or retirement unless the termination is for cause, in which case no vacation payout will be made?
Reviewed: 05/16

Yes, a local government does have this authority. There are no provisions in state law that mandate what the terms of a vacation policy are for a local government. However, a local government's personnel policies should clearly spell out the terms under which vacation is granted, including those related to vacation payout at the time of termination.  

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To what extent can the district have a special event to recognize staff members' accomplishments via rewards of some type?
Reviewed: 04/16

Our general response to these types of questions is "it depends." You will always be on more solid legal ground in making such expenditures if your governing body has adopted, in advance, a policy stating that employees will receive, as a part of their compensation, recognition in the form of an event and/or award to honor accomplishments, length of service, or retirement. If the award or event is properly authorized in a policy of the governing body and includes standards as to how it is applied, then it should be allowable. See the employee recognition section of James Pharris' memorandum Eating and Drinking at Public Expense for a more in-depth discussion of this issue. Mr. Pharris' memorandum was written some time ago but is still considered to be good advice on this subject.

An alternative if you don't already have a policy in place would be to simply take up a collection to pay for light refreshments and/or a plaque or some other symbol of recognition.

We have a webpage devoted to Employee Recognition and Suggestion Award Programs. The page sets out some general information and contains links to local government programs that provide for employee rewards.

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Under what authority did the Seattle City Council raise the minimum wage?
Reviewed: 12/15

Seattle's minimum wage ordinance was passed under its police power authority to provide for the general health and welfare of its residents and other persons employed within the city. See article 11, section of the state constitution. The ordinance cites its promotion of "the general welfare, health, and prosperity of Seattle by ensuring that workers can better support and care for their families and fully participate in Seattle's civic, cultural, and economic life."

Additionally, the state legislature has specifically authorized local governments to enact more stringent minimum wage standards; RCW 49.46.120 states as follows:

This chapter establishes a minimum standard for wages and working conditions of all employees in this state, unless exempted herefrom, and is in addition to and supplementary to any other federal, state, or local law or ordinance, or any rule or regulation issued thereunder. Any standards relating to wages, hours, or other working conditions established by any applicable federal, state, or local law or ordinance, or any rule or regulation issued thereunder, which are more favorable to employees than the minimum standards applicable under this chapter, or any rule or regulation issued hereunder, shall not be affected by this chapter and such other laws, or rules or regulations, shall be in full force and effect and may be enforced as provided by law.

Note that Seattle's was not the first local minimum wage law in the state; SeaTac enacted one by the initiative process, though it was more limited in its scope than what Seattle's council later enacted. The SeaTac ordinance survived a challenge in the state courts. See Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 770 (2015). The Seattle ordinance was unsuccessfully challenged in federal court, but not upon the grounds that Seattle did not have the authority to enact minimum wage requirements. See Int'l Franchise Ass'n v. City of Seattle (9th Cir. 2015).

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Can exempt staff be given compensatory time? Can it be posted on an hour-for-hour basis?
Reviewed: 11/15

Yes, exempt staff can be given compensatory time. The Washington State Public Employer Overtime Guide has the following to say on the subject:

Comp time for exempt personnel Many Washington employers have formal or informal policies of paying comp time to exempt personnel. As a basic matter, an employer is free to set any terms concerning accrual and use of comp time for employees not covered by the FLSA . . . . The Ninth Circuit, the Department of Labor and the Washington Supreme Court (interpreting the Washington Minimum Wage Act) have all concluded that comp time on top of salary is legal.

Public employers' authority to set their own terms governing the payment of comp time to exempt employees, as stated above, appears to stem from 29 C.F.R. §§ 553.28(c), (d), and (e).

Generally, the FLSA, at 29 U.S.C. § 207(o), limits the amount of comp time that non-exempt employees can be given. However, FLSA exempt employees are not subject to these limitations because the FLSA does not provide for exempt employee comp time. Instead, pursuant to 29 C.F.R. § 553.28(c), exempt employee comp time would likely be considered to be "other" compensatory time, because it is accrued pursuant to a policy adopted by the employer, rather than from a provision of the FLSA. Specifically, 29 C.F.R. § 553.28(e) states that:

The requirements of section 7(o) [i.e., 29 U.S.C. § 207(o)] of the FLSA, including the limitations on accrued compensatory time, do not apply to "other" compensatory time as described above.

So a public employer is free to set its own procedure governing comp time given to exempt employees. Once adopted, any such procedure should be clearly outlined in the employer's personnel policy.

It also appears that comp time for exempt employees can be posted on an hour-for-hour basis. 29 C.F.R. § 553.28(d) states as follows:

The FLSA does not require that the rate at which "other" compensatory time is earned has to be at a rate of one and one-half hours for each hour of employment. The rate at which "other" compensatory time is earned may be some lesser or greater multiple of the rate or the straight-time rate itself.

The city of Edmonds, allows exempt employees to earn comp time:

  • Edmonds Personnel Policy Section 4.4, Compensatory Time
  • Edmonds Municipal Code Section 2.20.020, Application of personnel policies to exempt employees

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Can a local government request or require access to a job candidate's Facebook page as part of its hiring process?
Reviewed: 11/15

No, that cannot be done. Pursuant to RCW 49.44.200(1), an employer, including a public employer, may not:

  • Request, require, or otherwise coerce an employee or applicant to: (1) disclose login information for personal social networking accounts; or (2) access their account in the employer's presence in a manner that enables the employer to observe the contents of the account;
  • Compel or coerce an employee or applicant to add a person, including the employer, to the list of contacts associated with the account;
  • Request or require an employee or applicant to alter the settings on the account that affect a third party's ability to view the contents of the account; or
  • Take adverse action against an employee or applicant for refusal to provide login information, access the account in the employer's presence, add a person to contact lists, or alter the account settings.

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Do former employees have a right to review their personnel files? Would they be allowed to make copies or have the opportunity to respond to anything in their files?
Reviewed: 05/15

We have opined that an ex-employee has a statutory right, as described below, to review his/her personnel file for a two-year period after his/her employment with the city has terminated. A key provision in this regard is RCW 49.12.250, which provides, in part:

3) A former employee shall retain the right of rebuttal or correction for a period not to exceed two years.

The reference to retaining the right of rebuttal or correction must be considered in the context of the other provisions of RCW 49.12.250, which provide, related to an employee's personnel file:

(1) Each employer shall make such file(s) available locally within a reasonable period of time after the employee requests the file(s).
(2) An employee annually may petition that the employer review all information in the employee's personnel file(s) that are regularly maintained by the employer as a part of his business records or are subject to reference for information given to persons outside of the company. The employer shall determine if there is any irrelevant or erroneous information in the file(s), and shall remove all such information from the file(s). If an employee does not agree with the employer's determination, the employee may at his or her request have placed in the employee's personnel file a statement containing the employee's rebuttal or correction. Nothing in this subsection prevents the employer from removing information more frequently.

In order for the right of rebuttal or correction referenced in RCW 49.12.250(3) to be meaningful, a former employee would need to be able to review the contents of the file to possibly rebut or correct information in that file. So, for a two-year period after an employee has concluded his/her employment with the city, that employee retains the right to review his/her personnel file, in accordance with RCW 49.12.250 (and RCW 49.12.260, - see below).

Note that there are limitations on an employee's right of inspection related to his/her personnel file. Presumably, those same restrictions apply as well to former employees. RCW 49.12.260 provides:

RCW 49.12.240 and RCW 49.12.250 do not apply to the records of an employee relating to the investigation of a possible criminal offense. RCW 49.12.240 and RCW 49.12.250 do not apply to information or records compiled in preparation for an impending lawsuit which would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

Once the two-year period referenced in RCW 49.12.250 expires, there's no specific provision allowing a former employee the right to inspect his/her personnel file. The plain meaning of the term "employee" in this context refers to someone working for the city and doesn't seem to include someone who formerly worked for the city. The definition is included in RCW 49.12.005, as follows:

(4) "Employee" means an employee who is employed in the business of the employee's employer whether by way of manual labor or otherwise.

So, after the two-year time period, a former city employee would have the same right of inspection of city records as any other person under the Public Records Act (PRA) (chapter 42.56 RCW). As a practical matter, the city could choose in such a situation to allow a former employee broader access to his/her own personnel file, but the city wouldn't be legally required to.

You also asked whether the city can allow a former employee to make copies of records in his/her personnel file. Based on the provisions referenced above, specifically RCW 49.12.240 and RCW 49.12.250 and RCW 49.12.260, we think the city can make copies of records in a former employee's personnel file and make those records available to that former employee, as long as the city complies with RCW 49.12.250, RCW 49.12.260, and the PRA. If the city is making the records available in response to a PRA request, the city would need to review the records to determine if any exemptions under the PRA apply to any information in any records that are responsive to such a PRA request.

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