Friday the Department of Labor and Industries (L&I) released pre-draft proposed rule language regarding the executive, administrative, and professional (EAP) exemptions from overtime requirements.

Generally, workers must be paid time and a half when they work more than 40 hours in a week (RCW 49.46.130). One exception to this is an “individual employed in a bona fide executive, administrative, or professional capacity” (RCW 49.46.010(3)(c)).

Existing regulations (WAC 296-128-500 through WAC 296-128-540) establish the definitions of executive, administrative, and professional employees. For such employees to be exempt from overtime, they must earn more than a specified salary threshold and they must perform certain duties. There are currently short and long duties tests; the pre-draft proposal would just have one duties test.

The current state salary threshold is $250 per week ($13,000 per year). The current federal overtime threshold is $455 per week ($23,660 per year). L&I writes, “The department last updated its rules on the EAP exemptions in 1976. . . . Because salary levels have not been updated, the rules governing these exemptions are out of date, and the duties tests may not accurately reflect current expectations of exempt professionals.”

The pre-draft proposal would change the state threshold to 1.5 – 3 times the state minimum wage. (This range is “drawn from stakeholder suggestions.”) Under I-1433, the state minimum wage is scheduled to increase to $12 per hour in 2019 and to $13.50 per hour in 2020, after which it will be indexed to inflation (RCW 49.46.020). This means that if the overtime threshold is changed to a point within that range, it would be significantly higher than the current federal level, as shown in the chart below. (And the threshold would increase every year the minimum wage does.)

Additionally, at the high end of the range in 2019, the threshold would be higher than the median wage in the state and all counties. (And several counties have median wages below the low point of the range.) Average wages for all counties but King fall below the high point of the range.

At the federal level, the Obama administration had adopted new overtime regulations in 2016 that would have increased the federal threshold to $913 per week ($47,476 per year). A federal judge invalidated that rule in 2017 because the Department of Labor “exceeded its authority” by making salary the determinative factor in the exemption instead of duties.

There will be feedback sessions around the state beginning tomorrow, and public comments are due by Oct. 26.