1. What is the Fair Labor Standards Act (FLSA)?

The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments.

2. Does Washington State govern minimum wage and overtime pay?

Yes.  July 1, 2020 Washington State Labor and Industries (L&I) implemented employment rules regarding the state overtime exemptions. In these employment rules L&I finalized the minimum salary an employee must earn to be exempt from overtime which differs from the federal requirements.  The salary L&I salary threshold will change annually through 2028

3. What are the recent changes to the Washington State overtime eligibility?

Effective January 1, 2021, an employee must earn at least $4,152.64 per month ($49.831.60 annually) and meet the “Standard Duties” test for executive, administrative, or professional employees, as defined by Washington State Department of Labor & Industries (L&I), to be ineligible for overtime pay. Currently under federal law (FLSA), an employee must earn at least $684 per week ($2,964 per month) and meet the “Standard Duties” test to be ineligible for overtime pay under the federal law. Other requirements remain the same.

4. Can the federal law (FLSA) salary test be used for overtime determination?

No. When the federal and state laws conflict, WSU must comply with the federal or state law which is most beneficial to the employee.  The L&I salary threshold exceeds the federal salary threshold of $35,568 annually so WSU must utilize the state threshold.

5. Is the salary test prorated based on Full Time Equivalency (FTE)?

No. Regardless of FTE, an employee must earn at least $4,152.64 per month ($49,831.60 annually) and meet the “Standard Duties” test for executive, administrative, or professional employees, as defined by L&I, to be ineligible for overtime pay.

6. What is the difference between a position being exempt from overtime and an Administrative Professional exempt position?

These are two different exemptions from two different laws. Exemption from overtime (meaning ineligible for overtime) under the FLSA is based on the salary and duties test as mentioned above. In accordance with the Revised Code of Washington (RCW), for a position to be exempt from civil service, it must meet specific criteria identified in RCW41.06.070. Refer to the Exemption Criteria on the HRS website for additional information on Administrative Professional (AP) exemptions.

7. Can an Administrative Professional exempt position be eligible for overtime?

Yes. As explained above, exemption from Civil Service is different than exemption from overtime. Therefore, an Administrative Professional position may be eligible for overtime, and a Civil Service position may be exempt from overtime, depending on the salary and duties test.

8. Will this have an impact on employees who are already eligible for overtime pay?

There will be no change to employees who are currently eligible for overtime pay.

9. If an employee no longer meets the new salary requirement and becomes eligible for overtime, how will they be notified?

Prior to January 2021, employees will receive a letter from Human Resource Services notifying them that they are eligible for overtime and must enter and correct their time in Workday effective January 1, 2021.

10. When do employees eligible for overtime as a result of this change need to begin to track hours worked?

Employees newly eligible for overtime due to the L&I salary test changes will begin tracking hours worked in Workday effective January 1, 2021. Refer to BPPM 60.60 for more information on Time and Leave in Workday, records attendance, leave and overtime.

11. Are overtime eligible employees required to take meal and break periods?

Overtime-eligible employees receive a minimum of a 30-minute unpaid meal break toward the middle of each work shift, no more than five hours after the beginning of the shift.  Additionally, overtime-eligible employees receive a 15 minutes paid rest period for every four hours worked. Refer to BPPM 60.59 – Overtime-Eligible Employees for additional information regarding meal and break periods.

12. How many hours in a work week must overtime eligible employees work before they are paid overtime?

hours worked in excess of 40 hours within the work week. Leave with pay during employees’ regular work schedule is not considered time worked for the purposes of overtime. Refer to BPPM 60.59 – Overtime-Eligible Employees.

13. Can compensatory time be given to overtime eligible employees in lieu of overtime pay?

Yes, at the employee’s request, an employer may approve compensatory time off in lieu of pay. For overtime-eligible part-time employees, work in excess of the regular part- time schedule up to 40 hours in one workweek is compensated as straight time and may not be accrued as compensatory time.

Refer to BPPM 60.59 Overtime-Eligible Employees for additional information on overtime compensation.

14. Can employees “volunteer” to work longer hours and not be paid?

No. Overtime eligible employees cannot “volunteer” to work longer hours without pay. They must be paid for all overtime (1.5 times regular pay) for all time worked above 40 hours within the work week in accordance with the FLSA and university policy.

Refer to BPPM 60.59 Overtime-Eligible Employees for additional information on overtime compensation.

15. If an employee works more than 40 hours in one week, can they adjust their hours worked the next week to avoid overtime?

No. An employee must be paid based upon the hours worked in a single week in accordance with the FLSA. Averaging of hours over 2 or more weeks is not permitted. Thus, an employee cannot be compensated at straight time for working 45 hours one week and 35 hours the next week, in order to average 40 hours per week.

16. What if employers do not comply with the new regulations?

Employers may be assessed civil money penalties (CMPs) of up to $1,000 for each violation for repeated or willful violations of the minimum wage and overtime requirements of the Act.

CMPs are intended to discourage employers from future noncompliance and are not tied to the amount of the back wage liability incurred. They will ordinarily be assessed based on violations occurring within a two-year investigation period. Where violations are determined to be willful, the investigation will cover a three year period.

17. Where can I learn more about this?

You can learn more on the Washington State Labor & Industries site where you will find resources such as FAQs, implementation schedule, and fact sheets or you may contact HRS at 509-335-4521. Additional information is referenced in WAC 296-128-500 through WAC 296-128-545.