OVERTIME WAGE LAW IN WASHINGTON STATE
LAW OFFICE OF SCOTT MCKAY - Seattle, Washington
Seattle: (206) 992-5466
SALARIED EMPLOYMENT, EXEMPTIONS &
OVERTIME PAY IN WASHINGTON STATE
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Washington State's Overtime Law Presumptively Applies to EVERYONE. Washington law requires overtime wages to be paid whenever an employee works more than 40 hours during a week.
In order to lawfully avoid paying overtime wages, the employer has the burden of proving that the employee's work is "exempt." This burden of proof extends to ALL employees, INCLUDING "SALARIED" EMPLOYEES. In order to avoid paying overtime wages, the employer MUST establish that the employee's work "plainly" falls within at least one of the exemptions that are listed in the Washington Minimum Wage Act or the federal Fair Labor Standards Act. This is a rule of general application, and applies to ALL EMPLOYEES, including those who are paid on a salary basis.
Note: For a list of statutory exemptions under Washington law, click here. For a list of statutory exemptions under federal law, click here).
SALARIED PAY AND "EXEMPT" STATUS: Correcting a Myth.
Many people falsely believe that so long as an employee is paid a salary, then he/she will be automatically exempt from state and federal overtime wage laws. This is false. In point of fact, there is no such thing as a "salary" exemption under either state or federal law. As explained below, "salaried" pay is only one of several different elements that must be met for certain types of employees to be exempt (see below). Thus, the mere fact that an employee is paid a salary DOES NOT immunize the employer from overtime liability.
SALARIED EMPLOYEES: ARE YOU "EXEMPT" FROM OVERTIME LAWS?
In general, if a salaried employee is being properly classified as "exempt," he/she will usually fall within one of three different exemptions. Each of these exemptions has various requirements, ALL OF WHICH must be met for the exemption to apply. Those exemptions are:
1. The exemption for "Bona Fide Executive, Administrative or Professional Employees";
2. The exemption for "Computer Professionals";
3. The exemptions for "Sales Workers."
This website is exclusively devoted to discussion of the first exemption described above, the exemption for "Executive, Administrative or Professional Employees" (see below).
Note: For information about exemptions that may be applicable to computer professionals, see the Washington Department of Labor and Industry's publication pertaining to "Computer Professional Positions." For information about "sales workers," see the Department's publications pertaining to "Outside Salespersons" and "Commissioned Sales Employees of Retail/Service Establishments" (commonly referred to as "inside salespersons").
MANDATORY TWO-PART TEST FOR THE "EXECUTIVE, ADMINISTRATIVE & PROFESSIONAL" EXEMPTION
In order for an employee to be properly classified as "exempt" under the "Executive, Administrative and Professional" Exemption, the employer must prove that the employee meets EACH of two separate tests: the "Salary Basis Test” AND the “Duties Test.” If either test is not met, then the employee must receive overtime pay.
QUESTION 1: What are the requirements for the "Salary Basis" test and "Duties" test?
1) Salary Basis Test: The employee must be paid on a "bona fide salary basis." In essence, this means that the employee must receive a flat weekly salary that does not vary or fluctuate according to how many hours of work have been performed.
If the salary is subject to reductions based upon the number of hours that have been worked, then it is probable that the "Salary Basis Test" cannot be met.
2) Duties Test: In addition to passing the “Salary Basis Test,” the employee must also pass a “Duties Test.”
Under this test, the employee's "primary job duty" must be to act as a true or "bona fide" professional, executive or administrative employee.
For executive or administrative positions, the employee must have independent discretion to manage the business or a customarily recognized subdivision of the business, or he/she must have the authority to make truly high level administrative decisions. In general, job duties that involve supervising day to day production operations or income producing operations do not qualify for exemption. For example, working foreman and production supervisors usually do not qualify for exemption.
For professional positions the employee must generally have an advanced degree (at least a B.S. or B.A.) in recognized field of science or learning such as law, medicine, engineering, etc. (Technicians or workers that have community college or vocational degrees, or who learn their skills through training or apprenticeships (e.g., electricians) generally DO NOT qualify for exemption).
For more information about the "Duties Test," click here or click on the tab for Duties Test tab, above.
QUESTION 2: What about technicians or highly skilled workers whose jobs require specialized training, knowledge or experience. Are they exempt as “professional employees"?
In general, technical workers and other highly skilled workers will not be exempt from overtime pay laws unless they have an academic degree in a recognized field of science or intellectual learning such as law, medicine, engineering, architecture, teaching, accounting, etc.
Mechanical and technical trades, and trades that involve technical skills or craftsmanship generally do not qualify for exemption.
If the employee's job skills have been acquired through training or experience rather than by a prolonged course of intellectual or academic education, then in most instances, the employee will not be exempt from overtime wage requirements.
Examples of occupations that typically do not qualify for exemption include computer technicians, customer support staff, medical technicians, telecommunications technicians, mechanics, estimators, licensed practical nurses, bookkeepers, day care instructors, code and compliance inspectors, teaching assistants and paralegals.
Even where technicians or other highly skilled workers pass the "Duties Test," they still will not qualify for exemption unless they also pass the "Salary Basis Test." (See Question Number 1, above).
QUESTION 3: What if my employer claims I am "exempt" from overtime wage laws. Do I have the burden of proving that my employer is wrong?
The employer -- not the employee -- carries the burden of proof. The employer must prove that an employee is exempt by "plain and unmistakable evidence." If the employer is unable to meet this exacting standard, then the employee must be paid overtime wages.
Obviously, this is a very high standard of proof and provides a tremendous advantage to employees. As a practical matter, it means that if there is any doubt as to whether the employee is exempt, then the case must be decided in favor of the employee, and against the employer.
QUESTION 4: If I agreed to work without overtime pay, have I given up my right to recover unpaid overtime?
The law does not allow employees to waive or give up their rights to overtime pay. Agreements or contracts to the contrary are void and illegal.
It should also be emphasized that words or statements that appear in job descriptions or job titles are irrelevant, and have no bearing on the question of whether the employee must be paid overtime wages. Instead, the only thing that matters is the actual facts of employment. In other words, courts will look at what an employee actually does during each day of work, and not at what job descriptions or job titles say he/she does.
QUESTION 5: What if no records were kept as to how many overtime hours I worked. Can I still receive overtime pay?
It is the employer’s duty – not the employee’s duty – to keep accurate records concerning all hours of work (including overtime hours). If no records were kept, then the employee is allowed to provide estimates as to all overtime hours that were worked. So long as such estimates are reasonable, they MUST be accepted by the Court.
QUESTION 6: How do I calculate overtime wages?
For information on how to calculate overtime wages, click here or click on the "Calculating Overtime Pay" tab, above.
QUESTION 7: What if I bring an overtime claim and it is later determined to be invalid. Can I be fired or disciplined?
It is illegal for employers to retaliate in any way against employees who raise concerns or claims about overtime pay. Employers or supervisors who violate the law will be subject to both civil and criminal penalties. Criminal punishment may include up to one year in jail.
QUESTION 8: If I was improperly denied overtime pay, can I receive back pay?
Employees who have been wrongfully denied overtime wages are entitled to collect up to three years of back pay. In addition, employees are entitled to collect statutory interest on all recovered wages, (12%, non-compounded). The employer must also pay for the employee's reasonable attorney fees. If the employer’s failure to pay overtime wages was deliberate rather than accidental, and if the employer did not have a "bona fide" belief that the failure pay wages was lawful, then employee is also entitled to recover an additional award for punitive damages.
QUESTION 9: Can I afford an Attorney?
Where an employee has a valid claim, the Law Office of Scott McKay will agree to represent most employees under a “contingency fee” arrangement. Under this arrangement, attorney fees are due only if funds are actually recovered for the client. If funds are not recovered, then the client owes nothing for attorney fees.
WANT MORE INFORMATION? Attorney Scott McKay is a highly experienced trial lawyer with 27 years of experience. He has litigated overtime cases at all levels of Washington courts, including the Washigton Supreme Court. For more details about his background and significant cases, click on the "About Us" tab, above.
For a FREE INITIAL CONSULTATION or FREE ADDITIONAL INFORMATION, feel free to contact the Law Office of Scott McKay. No Obligations, Strict Confidentiality Observed.
Attorney Scott McKay is a highly experienced trial lawyer with 27 years of experience. He has litigated overtime cases at all levels of Washington courts, including the Washigton Supreme Court. For more details about his background and significant cases, click on the "About Us" tab, above.