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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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Are there any state laws/requirements for advertising employment opportunities for a small special purpose district?
Reviewed: June 2022

Currently, there are no state requirements to 1) advertise for job openings or 2) that dictate what is required to be in a job advertisement.

However, starting January 1, 2023, all employers with 15 or more employees must include in all job postings the wage scale or salary range, and a general description of the benefits and other compensation to be offered to the hired applicant. See ESSB 5761. Assuming your small district has less than 15 employees, this requirement would not apply. For tips on recruiting employees in this tight labor market, see this recent MRSC blog post: Recruiting for Local Government Positions.

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Is there any exemption for municipal corporations from obtaining a minor work permit?  
Reviewed: June 2022

Municipal corporations are excluded from the definition of “employers” that are required to obtain a work permit by RCW 49.12.005(3) and WAC 296-125-015(4). However, the city must comply with the rest of the requirements for employing minors in RCW 49.12.110-.124.

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Do you have a list of jurisdictions that have adopted Juneteenth as a holiday?
Reviewed: May 2022

We do not have a comprehensive list of jurisdictions that have adopted Juneteenth as a holiday, but we do have several examples below.

The Washington State Legislature adopted SHB 1016, making Juneteenth (June 19) a paid state holiday, effective July 2021. Because June 19 is a Sunday this year, it will be observed for the first time on Monday, June 20, 2022. President Joe Biden also signed legislation into law making Juneteenth a U.S. federal holiday. The date of June 19 commemorates the day in 1865 when knowledge of the Emancipation Proclamation and the abolishment of slavery reached the last remaining enslaved people in Galveston, Texas.

While local governments are not required to follow either the federal or state legal holiday schedule, many do, and RCW 1.16.050(6) authorizes the local legislative body to set their local government holiday schedules. Some jurisdictions that have adopted Juneteenth as a paid holiday for local government employees include Battle Ground, Bellingham, Bremerton, Burien, Burlington, Centralia, Edmonds, King County, Lynnwood, Renton, Seattle, Sumner, Walla Walla, Woodway, and Yakima. Olympia has an agreement with the International Association of Fire Fighters – Mechanics that includes Juneteenth as a paid holiday. Examples of Juneteenth proclamations are located in MRSC’s Sample Document Library, and include Kirkland's proclamation on Juneteenth and Snohomish County’s resolution.

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We recently hired an employee with an address in Oregon. I believe they are going to move here but I do not know when. Will there be any issues with their W-2 for 2021 since Washington does not collect state income tax but Oregon does? Is there something special we should be doing?
Reviewed: November 2021

Generally, there is not an obligation to withhold state income tax for employees living in another state, at least for Oregon residents. An employee that resides in a neighboring state might telecommute temporarily, permanently, or not at all. The employee’s state income tax obligation is triggered by their state of residence and not where they perform their work.

For the State of Oregon, the employer may, but is not required to, withhold state income taxes. Here is an FAQ from the Oregon Department of Revenue:

Q. What about employers located outside of Oregon? Are they required to withhold for Oregon residents working out of state?
A. It isn’t required, but we do ask employers to register and withhold taxes as a convenience to the employee.

One thing to consider for your telecommute policy is if you intend to limit it to an employee’s permanent domicile. During the last year or so many people temporarily relocated to different states without permanently moving there. Even a temporary residency could trigger an obligation for the employee to pay income tax in that state, and there is a possibility that state could require withholding. You will want to establish a procedure to verify your obligations for any state you allow your employees to work from.

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Is there a law governing waiting or probationary periods for use of vacation leave or is this at the discretion of the employer?
Reviewed: November 2021

In Washington, employers are not required to provide employees with vacation benefits, either paid or unpaid. WA Dept. of Labor & Industries: Vacation Leave. If an employer chooses to provide such benefits, it must comply with the terms of its established policy or employment contract.

In most instances, employers link the use of accrued vacation time with the completion of the probationary period. This probationary period is particularly important for union-represented and civil service employees, because after this period they can only be let go for cause and have other due process rights.

If employees are union-represented, the probationary period (and how soon accrued vacation leave can be taken) may be established in that document as well. If you have a mix of represented and unrepresented employees, it is possible that the city adopts a standard for unrepresented employees that is consistent with the standard for represented employees just for the ease of tracking.

Again, while a common benefit, there is no legal requirement to provide vacation time. Only a minimum amount of sick time is mandatory under Washington law (1 hour per 40 hours worked), which an employee is entitled to start using no later than 90 days after they start working. (See LNI’s website for more information on the requirements of the Paid Sick Leave Law.) Some jurisdictions are opting to allow the use of accrued sick leave that is in excess of the state minimum as well as accrued vacation time after 90 days – just for the ease of administration – particularly if the employer opts to have all leave in a single PTO bucket.

From a policy perspective, the reasons for shorter versus longer periods preventing the use of accrued vacation time appear to be shifting in the current job market.

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The city's current policy is to require part-time firefighters to be at least 21 years old. Is there a state law that would prevent us from lowering this minimum age to 18?
Reviewed: August 2021

While the city can require a firefighter to be 21-years-of-age, they can also lower that to 18.

Under the state law for civil service, an applicant for a position as a firefighter “must be of an age suitable for the position applied for.” RCW 41.08.070. As well, the Attorney General’s Office stated in an opinion that “there is no statute barring a person over 18 years of age but less than 21 years of age from serving as a law enforcement officer, a prison guard, a firefighter, or a paramedic, provided that the person otherwise meets all qualifications for the job in question.” AGO 1999 No 6.

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Is it legal to pay an independent contractor an hourly rate less than minimum wage?
Reviewed: September 2020

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: March 2020

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 Overtime and Comp Time.

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: November 2019

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: October 2019

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: October 2019

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: August 2019

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: May 2019

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: March 2019

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 Overtime and Comp Time. 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: March 2019

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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