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Seattle has amended the quartet of laws addressing labor standards (Seattle Sick Time and Safe Time Ordinance, Seattle Fair Chance Employment Ordinance, Seattle Minimum Wage Ordinance, and Seattle Wage Theft Ordinance). These changes affect, among other things, notice and posting requirements and also strengthen enforcement.
Generally, employers should be aware of the following revisions to these laws:
Posting requirements. Under all of the ordinances, employers must display a poster in a conspicuous and accessible location where any of their employees work. The poster must be provided in English and in the primary language of the employees. The Seattle Office for Civil Rights (SOCR) SOCR has indicated that it will issue a single poster, including translated versions, to meet this requirement. The current posters are available on SOCR’s website, and the updated version should be available at this link when it is issued. Alternatives to posting are only allowed if posting is not feasible. Examples of infeasible situations include situations where the employee works remotely or does not have a regular workplace.
Increased penalties, remedies and enforcement. The amended ordinances increase employer penalties and provide greater remedies for employees. The Seattle Sick Time and Safe Time Ordinance, Seattle Minimum Wage Ordinance, and Seattle Wage Theft Ordinance will now allow employees to recover up to three times unpaid compensation, plus interest. Penalty schedules are listed in each ordinance, though penalties may be mitigated if the employer promptly pays the amounts owed. For example, penalties may be waived if payments are made within 10 days. The amended ordinances also include stronger anti-retaliation provisions and provide SOCR with broader investigation powers.
Private right of action. Effective April 1, 2016 (and April 1, 2017 for businesses with fewer than 50 employees), the Seattle Sick Time and Safe Time Ordinance, Seattle Minimum Wage Ordinance, and Seattle Wage Theft Ordinance will offer a private right of action for employees to pursue remedies in court, which will include treble damages, interest, and attorneys’ fees and costs.
Greater burdens on employers. The amended ordinances shift certain burdens to employers, which will make it easier for SOCR to prove violations. For example, the ordinances establish a rebuttable presumption that any adverse action taken within 90 days of protected activity is retaliatory. Thus, if an employee complains about a wage issue and experiences any negative change in employment within 90 days after the complaint, the employer will have to submit “clear and convincing” evidence to disprove that retaliation took place. As another example, the ordinances place squarely on the employer the burden of establishing independent contractor status.
Additional amendments to the individual ordinances are outlined below:
Seattle Sick Time
Written policy required. On April 1, 2016, employers must provide a written notice of the employer’s policy and procedure for providing sick time, including: (1) the employer’s chosen benefit year; (2) tier size; (3) rate of accrual, use and carryover; (4) manner of providing employees with updated amount of available paid sick and safe time each time wages are paid; and (5) notification of the requirements for absences and requesting leave. Employers should revise existing policies to address these issues, or provide a summary of this information to existing employees and to new employees at the time of hire.
Reporting of sick time each time wages are paid. The ordinance has an ongoing requirement to provide the amount of paid sick time (or other leave) available for paid sick time use each time wages are paid. This can be provided on the employee’s paycheck stub or wage statement, or electronically.
Please click here to read Littler’s Insight for additional information about the specific Seattle Sick Time amendments.
Expansion to exempt employees, rest breaks, and other types of “compensation.” The Wage Theft Ordinance now applies to non-exempt and exempt employees. This means that exempt employees must receive the notices and will have remedies available under the law if all compensation is not paid to them. The amended ordinance also expands the definition of “compensation” to include not only wages and tips, but also salaries, overtime, commissions, piece rate, bonuses, rest breaks, paid leave, and expense reimbursement. If any of these payments are not made as agreed or as required by law, employees will have recourse under the ordinance.
Notice to current employees. On April 1, 2016, employers must provide a notice of employment information in English and the primary language of the employee(s) to current employees. This is a new requirement. The notice must provide: (1) name of employer and any trade names; (2) physical address of employer’s main office or principal place of business, and, if different, a mailing address; (3) telephone number of employer, and, if applicable, email address; (4) employee’s rate or rates of pay, and, if applicable, eligibility to earn overtime rate or rates of pay; (5) employer’s tip policy, including an explanation of any tip sharing, pooling, or allocation policies; (6) pay basis (e.g., hour, shift, day, week, commission); and (7) employee’s established pay day for earned compensation. The SOCR has a form notice and translated versions available on its website.
Notice at hire and before changes. As before, the ordinance requires employers to provide the notice of employment information to new hires and before changes in employment. The seven categories, which are listed above, have been somewhat modified from the original ordinance. The amendments have clarified several issues, which should simplify administration. First, the type of “change” that requires a new notice is a change in one of the seven categories of information. Second, the notice must be provided “before” a change in the information, and the ordinance no longer specifies that it must be given within one pay period prior to the change. Third, notice of retroactive changes must be provided “as soon as practicable.”
Wage statements. As before, the ordinance requires written notice each time compensation is paid. The wage statement requirements include the following: (1) all hours worked, with regular and overtime hours shown separately; (2) all rates of pay whether paid on an hourly, salary, commission, piece rate, or other basis, and employees with a rate other than hourly or salary are entitled to a detailed printed accounting of commissions, piece rate, or other payments; (3) tip compensation; (4) pay basis (e.g., hour, shift, day, week, commission); (5) gross wages; and (6) all deductions for that pay period. These six categories have been somewhat modified from the original ordinance. The ordinance no longer requires wage statements to be provided in languages other than English.
Record-keeping. Records must be kept as required by current law. In addition, records must show total tips for each pay period.
Annual posting requirement. Under the Seattle Minimum Wage Ordinance, the required poster is updated annually to reflect the new minimum wage. In December, employers should obtain the updated poster from the SOCR and display it as described above.
Global employer size. An employer’s schedule size is now based on the number of employees worldwide, instead of the number of U.S. employees.
Work study. The amended ordinance requires work study employees to receive the Seattle minimum wage.
Employers with employees who work in Seattle should review their current posting and onboarding practices to comply with these notice and posting requirements.
Breanne Sheetz Martell and Pamela H. Salgado are attorneys with Littler in Seattle. Republished with permission. © Littler. All rights reserved.
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