2023:

What WA Employers Need to Know

January 19, 2023

Scott Prange
Meg Burnham

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Introduction

Federal

Washington

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Federal
▪ New Salary Thresholds for Exemption
▪ In May, DOL expected to propose new rule
for salary thresholds for “white collar”
exemptions from minimum wage and
overtime requirements
▪ DOL may be considering phased salary
threshold for “white collar’ exemptions,
increasing until possibly 2026, to as much as
$83,000/year. The current salary threshold is
$35,578/year ($684/week)
▪ Many states have higher salary thresholds
for “white collar” exemptions, including WA

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Federal
▪ New Social Security Cap
▪ Effective January 1st
➢ Employers must
collect employee
social security
taxes but only up
to the new limit:
➢ $160,200

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Federal
▪ New 401(k) Limits
▪ Effective January 1st
➢ Employees may contribute to their
401(k) plans pre-tax up to:
➢ $22,500
➢ Employees may continue to their IRA
up to:
➢ $6,500
➢ Employees in 401(k), 403(b), and most
457 plans, who are 50 and older, may
contribute up to $30,000
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Federal
▪ The End of Noncompetes?
✓ FTC proposed a new rule that would ban
employers from imposing noncompetes on
their workers
➢ For more: Article

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Federal
▪ The End of Noncompetes?
➢ Specifically, FTC’s new rule would make it
illegal for an employer to:
➢ enter into or attempt to enter into a
noncompete with a worker;
➢ maintain a noncompete with a worker; or
➢ represent to a worker, under certain
circumstances, that the worker is subject
to a noncompete.
➢ It would also require employers to rescind
existing noncompetes and actively inform
workers that they are no longer in effect.
➢ For more: Article

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Federal
▪ Speak Out Act
▪ Late last year, President Biden signed two
#Me-Too inspired bills:
➢ Prohibiting use of employment,
mandatory arbitration agreements for
sexual harassment or assault claims
➢ Prohibiting use of employment, pre-
dispute nondisclosure and
nondisparagement clauses when
sexual harassment or assault alleged
➢ Many states have more restrictive
prohibitions, including WA
➢ For more: Article

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Federal
▪ NLRB
▪ Joint Employer Rule
➢ In October, NLRB proposed new joint
employer rule
➢ The proposed rule would find joint
employment if the putative employer
exercises indirect control or reserves the
right to exercise control over the essential
terms or conditions of employment
➢ Employers should analyze staffing
contracts to determine if they unknowingly
have the “authority” to control, even if
indirectly, one or more of their workers’
essential terms and conditions of
employment

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Federal
▪ NLRB
▪ Captive Audience Rule
➢ NLRB set to change captive audience
rule; currently, the NLRA (as interpreted
by the NLRB) permits an employer to
hold a mandatory employee meeting
regarding union organizing effort
➢ NLRB seeks to prohibits employers from
holding employees to compulsory
meetings where union formation
discussed. NLRB General Counsel,
Jennifer Abruzzo, currently seeking test
case

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Federal
▪ NLRB
▪ Exploding ULPs
➢ Perception is NLRB more friendly to union
interests now
➢ In April, NLRB GC issued memorandum,
setting aspirational labor standards; this is
not law, but NLRB may apply when new
test cases heard

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Federal
▪ DOL
➢ In October 2022, the DOL published a
proposed independent contractor rule
shifting back to 6-factor “economic
realities” test. That is, employer must
analyze if worker is economically
dependent for work or is rather in business
for themselves
➢ DOL expected to adopt this as a final rule
by Spring

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Federal
▪ DOL
➢ What is the current rule?
➢ Five-factor “economic realities” test used to determine
whether a worker is an independent contractor. The
five factors are:
1) The nature and degree of the worker’s control
over the work;
2) The worker’s opportunity for profit or loss;
3) The amount of skill required for the work
4) The degree of permanence in the working
relationship; and
5) Whether the work is part of an integrated unit
of production.
➢ The 2021 Rule heavily emphasized the first two
factors, which were designated as “core factors” to be
accorded more probative weight than the others.

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Federal
▪ DOL
➢ What is the proposed change to the independent contractor test?
➢ The proposed rule does away with “core factors,” and looks to the “totality of
circumstances” based on the following six non-exhaustive factors to be fully and
equally considered:

1) The worker’s opportunity for profit or loss based on his or her use of
managerial skill;

2) Whether the worker makes capital or entrepreneurial investments

related to the performance of work, and if so, whether such
investment relative to the employer’s investment indicates the
worker is an independent business;

3) Degree of permanence in the work relationship;

4) Nature and degree of control exercised over the performance of

work;

5) Extent to which the work performed is an integral part of the

employer’s business; and
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6) Skill and initiative, including whether a worker uses specialized skills
to perform the work.
Federal
▪ DOL
▪ Employers should prepare to audit
classifications, reassign workers if needed,
and ensure financial contingencies, to
avoid costly litigation, administrative
actions, and statutory penalties

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Federal
▪ OSHA Penalties Increase - Pressure on Employer
to Comply
▪ Beginning January 16th, OSHA penalties for all
citations have increased:

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Federal
▪ OFCCP
▪ DOL increasingly intervening in OFCCP
litigation to ensure Executive Orders
enforced regarding workplace standards
and prohibitions on discrimination.
▪ Likewise, the OFFCP has hired more
contract administrators to administer
adherence to Executive Orders
▪ Employer should therefore expect
increased Focus on Pay + Audit
Obligations
▪ Starting January 2, 2023, OFFCP began
releasing EEO-1 Data

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Federal
▪ SCOTUS
▪ Glacier Northwest, Inc. v. Int’l
Bhd. Of Teamsters Local
Union No. 174.
➢Does the NLRA preempt a
state tort claim against a
union for intentionally
destroying an employer’s
property in the course of a
labor dispute?
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Federal
▪ SCOTUS
▪ Glacier Northwest, Inc. v. Int’l Bhd. Of
Teamsters Local Union No. 174.
➢The employer is suing the union
for property damage under state
law, alleging striking truck drivers
intentionally abandoned trucks
filled with concrete, which later
hardened and became unusable.

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Federal
▪ SCOTUS
▪ Glacier Northwest, Inc. v. Int’l Bhd. Of
Teamsters Local Union No. 174.
➢The NLRA protects a union’s right to
strike, but it requires striking workers
to take reasonable precautions to
protect their employers’ property from
foreseeable hazards because of
sudden work stoppages.

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Federal
▪ SCOTUS
▪ Glacier Northwest, Inc. v. Int’l Bhd. Of
Teamsters Local Union No. 174.
➢Washington Supreme Court found
company’s claims were preempted
under Supreme Court’s 1959
decision in San Diego Building
Trades Council v. Garmon, holding
when activity is arguably covered
under NLRA, courts must defer to
NLRB. The Court could use this as
an opportunity to limit or
reverse Gannon’s preemption, which
would return labor relations to days
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Federal
▪ SCOTUS
▪ Groff v. Dejoy
➢ Court agreed to hear an appeal by
former mail carrier in Pennsylvania
who accused US Postal Service of
religious bias after being reprimanded
for refusing to deliver packages on
Sundays.

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Federal
▪ SCOTUS
▪ Groff v. Dejoy
➢ CBA and Groff’s job as a “rural carrier
associate” in Holtwood, Pennsylvania,
required him to fill in as needed for
absent career carriers, including on
Sundays.

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Federal
▪ SCOTUS
▪ Groff v. Dejoy
➢Gerald Groff’s case after lower courts
dismissed his claim that Postal
Service violated federal anti-
discrimination law by refusing to
exempt him from working on
Sundays, when the evangelical
Christian observes the
Sabbath. Those courts found Groff’s
demands placed too much hardship
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Federal
▪ Congress
➢ Congress split
➢ Narrow Republican majority in House
➢ With thin Republican majority in
House, more employer-friendly bills
expected, though unclear if they will
pass

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Washington
▪ State Minimum Wage Hike
▪ Effective January 1st
➢ State
➢ $15.74
➢ Local may be higher:
➢ Seattle
➢ $16.50-$18.69
➢ SeaTac
➢ $19.06
➢ Tukwila
➢ $17.06

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Washington
▪ New Salary Thresholds for Exemption
▪ L&I updated the overtime rules in 2020,
creating an 8-year implementation schedule
that incrementally raises the minimum wage
multiplier until it reaches 2.5 times in 2028.
▪ The pace of the increase is based on the size
of the employer.

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Washington
▪ New Salary Thresholds for Exemption
▪ Effective January 1st
➢ Workers must earn the following minimum
salary thresholds in addition to meeting
the required job test:
➢ Small employers (-50):
➢ $57,293.60/year or
$1,101.80/week
➢ Large employers (+50):
➢ $65,478.40 or $1,259.20/week
➢ Exempt computer professionals:
➢ $55.09/hour
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Washington
▪ Agricultural Compensation
▪ In 2020, SCT handed down
Cuevas v DeRuyter Brothers,
holding that dairy works
entitled to overtime
▪ In 2021, the state legislature
enacted ESSB 5172,
extending the entitlement to
overtime to all agriculture
workers, phased in over three
years

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Washington
▪ Agricultural Compensation
▪ Effective January 1st, the
threshold for when overtime
must be paid drops from 55 to
48 hours (next year, it drops to
40 hours)
▪ L&I has updated guidance for
piece rate workers and
overtime

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Washington
▪ Workers’ Compensation Rates Skyrocket
➢ L&I proposed a 4.8% increase
in the workers’ compensation
insurance
➢ This translates to $61 more a
year that employers and
employees will jointly pay
➢ Increased LNI audits

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Washington
▪ PFML Premiums Balloon
➢ By law, ESD
recalculates the premium rate
annually in October based on
program usage and premiums
collected the
previous year. More
than 154,000 workers
claimed benefits in 2022, with
more than $1 billion in benefits
paid; benefits have outpaced
funding, leading to solvency
concerns.
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Washington
▪ PFML Premiums Balloon
▪ Effective January 1st
➢ Total premium rate will be .8%
(last year it was .6%)
➢ Employers (with 50 or
more employees) pay
27.24% of the total
premium and employees
pay 72.76% (like last year)
➢ Employers must collect
employee’s cap up to
Social Security caps (this
year, $160,200).

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Washington
▪ Long Term Care Act Back Again
➢ Starting July 1st, employers must collect
WA care premium from employee wages
and report employee wage/hours at the
end of each quarter (same as under PFML)

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Washington
▪ Long Term Care Act Back Again
➢ Starting January 1st, Employees may now
claim exemptions for the following reasons:
➢ Live outside WA
➢ They are spouse/registered domestic
partner of an active-duty service member
➢ They have non-immigrant work visas
➢ They are veterans with a 70% service-
connected disability rating or higher
➢ You must not deduct premiums for exempted
employees; you must keep a record of the
exemption
➢ Previous employee exemptions submitted
and approved are still effective.
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Washington
▪ Noncompete Thresholds Up
▪ Effective January 1st
➢ Employees
➢ $116,593.18
➢ W-2, Box 1
➢ Independent Contractors
➢ $291,482.95
➢ An employee’s moonlighting cannot be
prohibited unless they earn 2 X state
minimum wage:
➢ $31.48/hour
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Washington
▪ Silenced No More
➢ On March 24, 2022, Washington
Governor Jay Inslee signed
"Silenced No More," E.S.H.B.
1795, a sweeping bill that applies
to employment, settlement, and
severance agreements and
prohibits attendant nondisclosure
or nondisparagement provisions
which restrict employees from
disclosing or discussing
violations of clear mandates of
public policy, discrimination,
harassment, retaliation, and
wage and hour infractions.
➢ For More: Article
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Washington
▪ HELL-SA
➢ Even though Governor Inslee’s
statewide emergency
proclamation has ended,
President Biden’s federal,
national emergency
proclamation continues and is
set to end on March 1st (unless
continued)
➢ Therefore, HELSA (and all
COVID-19 reporting
requirements thereunder) is still
in effect until at least March 1st

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Washington
▪ WA Supreme CT
➢ N/A

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Washington
▪ Employment-Related Bills
➢ SB5417
➢ Prohibits employers from holding employees
captive to listen to political or religious beliefs
➢ SB5061/HB1320: Personnel Records
➢ Upon request, employers must provide
unredacted personnel files within 14 days
➢ SB5286
➢ PFML: Alters employer/employee premium
regime to allow for increases proportional to
amount of PFML claims paid relative to
premiums paid
➢ HB 1136
➢ Requires employers to pay employees for all
necessary expenditures

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Washington
▪ Employment-Related Bills
➢ HB1286
➢ Protects employers who provide
employees access to or reproductive
care benefits

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 Questions?

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Washington
▪ Equal Pay Act
➢ Pay Transparency
➢ Job Postings

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 The Evolving Landscape
of Pay Transparency
▪ Employers worry that pay transparency will:
➢ Turn off potential candidates
➢ Not provide clear picture of total comp/benefits
➢ Cause employee morale issues
➢ Give rise to unnecessary legal risk

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Grass roots efforts
to create more
transparency

▪ Glassdoor, Indeed
▪ Social media
▪ Tiktok

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Growing, National Pay Transparency Trend

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Growing, National Pay Transparency Trend
▪ What Employers Should Do?
➢ Look nationally, across jurisdictions, how employee compensation is structured.
➢ Consider a workplace audit of current employee salaries
➢ At best, employee pay disparities effect employee contentment and attrition
➢ At worst, employee pay disparities may implicate pay equity laws, and may lead to a lawsuit
(including potential class actions)
➢ Develop plan to create for all jobs a salary range or wage scale
➢ Develop a process for all jobs to publish salary ranges or wages scales along with general
descriptions of benefits.

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 Amendment to
Washington’s Equal
Pay & Opportunities Act
Requires Employers to
Disclose Salary and
Benefit Information in
Job Postings

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The Basics – What Was
Already Required
▪ Who?
➢ Employers with 1 or more employees

▪ What?
➢ Must provide “similarly-employed” workers
➢ equal compensation:
➢ Job titles not determinative
➢ Performance of job requires similar skills, efforts, responsibilities, and working conditions
➢ Must not limit career advancement opportunities to employees on the basis of gender

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The Basics – What Was
Already Required
▪ Who?
➢ Employers with 1 or more employees

▪ What?
➢ Employers cannot prohibit employees
from inquiring about, disclosing,
comparing, or discussing their wages,
including pay and benefits, with others.

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The Basics – What Was
Already Required
▪ Who?
➢ Employers with 1 or more employees

▪ What?
➢ Cannot ask for an applicants salary
history or require that an applicant’s
prior wage or salary history meet certain
criteria.

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The Basics of What’s New
▪ When?
➢ Starting January 1, 2023
▪ Who?
➢ Employers with 15 or more employees
▪ What?
➢ Must disclose in all job postings:
➢ Salary range or wage scale
➢ General description of all benefits
➢ General description of “other
compensation”
➢ LNI Administrative Guidance

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 Q: What employers must comply?

A:
All employers with 15 or more
employees must comply, if they have 1
or more WA-based employees. The
law also applies if the employer has at
least 15 employees and posts for a
position that could be filled with a
Washington employee.

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Q: What if the job posting is for remote work
that could be filled by a Washington-based
employee?

A:
If employer is soliciting applicants
(including current employees) for a
position that could be filled by a
Washington-based employee, they must
comply.

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 Q: Does the new law apply to job
postings for positions that must be
filled outside of Washington?

A:
If the job posting is for a position that is
tied to a worksite physically located
outside of Washington, employers do
not need to include the wage and
salary information.

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Q: What is a “job posting”?

A:
A job posting is any solicitation meant
to recruit applicants:
▪ Electronic/print copy
▪ By employer or third party
▪ References specific position
▪ Lists qualifications for desired
applications.

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Q: What is a “job posting”?

This may include:

▪ Posting on Company’s website
▪ Posting on electronic job board
▪ Social media posts
▪ Window signs

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 Q: What wage/salary information
must be included?

A:
Each job posting must include the
expected wage scale or salary range
for the position.

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 Q: What is a salary range or wage
scale?

A.
“Most reasonable and genuinely
expected range of compensation for
the job.”
“The range should extend from the
lowest to the highest pay established
by the employer prior to publishing the
job posting.”

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 Q: What is a salary range or
wage scale?

A.
A salary range or wage scale should
be clear without open-ended phrases
such as $50,000 per year and up (with
no top of the range) or up to
$45.00/hour (with no bottom of scale)

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 Q: What is a salary range or
wage scale?

A.
Examples:
▪ $25-$30 per hour
▪ $65,000-$85,000 per year
▪ Commission based salesperson – 4-8 % of
net sale price per unit
▪ $.55-$.75 per pound of strawberries picked
▪ The greater of $.75 per pound of
strawberries picked or $19.00 per hour

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 Q: What if the posted position
can be filled with different job
titles?
A:
If the employer is posting for a position that can
be filled with different job titles, the employer
should specify in the posting the salary range or
wage scale for each job title that could ultimately
fill the position. For example:
▪ Associate Step 1: $50,000 - $60,000 per year
▪ Associate Step 2: $60,000 - $70,000 per year
▪ Associate Step 3: $70,000 - $80,000 per year

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 Q: What if the posted position
has a starting range?
A:
The employer must list:
➢ The starting salary range or wage scale for the
initial employment timeframe (or probationary
period); and
➢ The entire salary range or wage scale expected
later

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Q: What benefit information must
be included?
A:

Employers must include a “general

description of all benefits” including by
way of example:

▪ Health care benefits

▪ Life insurance

▪ Disability Insurance

▪ Retirement benefits

▪ Benefits permitting days off

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 Q: What is a “general description”?

A:

▪ Insurance
▪ If the employer offers different types
of insurance should list them out
(e.g., medical insurance, vision,
dental, etc.)

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 Q: What is a “general description”?

A:

▪ Retirement Plans
▪ If the employer offers retirement
benefits, it must list the retirement
options (e.g., 401k, deferred
compensation, etc.)

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 Q: What is a “general description”?

A:
▪ Holidays
▪ If the employer offers paid holidays,
it must state the number of paid
holidays the employee will receive
once hired.

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 Q: What is a “general description”?

A:
▪ Paid Time Off/Vacation
▪ If the employer offers PTO or
vacation, it must specify the amount
of PTO/vacation the employee will
receive once hired.

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 Q: What is a “general description”?

A:
▪ More Generous Paid Sick Leave
▪ If the employer offers PST beyond
that required by law, it must specify
the amount of PST the employee will
receive once hired.

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 Q: What “Other Compensation”
Must be Included?

A:
Any forms of compensation offered in
addition to the salary or wages,
including by way of example:
▪ Any commissions
▪ Any bonuses
▪ Profit sharing
▪ Stock options
▪ Housing allowances
▪ Tuition reimbursements
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Q: Can employers use links to benefit summaries and “other
compensation” information in electronic postings?

A:
Employers who utilize electronic job
postings must include the general
description but may use links that
route the applicant to another page
where more detailed descriptions can
be found.

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Q: What if the employer hires the applicant into a position that is
different than the position the employee applied for?

A:
If the employer decides to offer the
applicant a different position than the
applied-for position, the employer
should provide the applicant with the
job posting (that includes the wage
and salary information) for the position
offered.

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Q: How is the law enforced?

▪ A:
▪ L&I may investigate any complaint,
issue a citation, and notice of
assessment, including for:
▪ Statutory damages equal to actual
damages or $5,000 (whichever is greater)
▪ A civil penalty: first violation-$500; repeat
violations-$1,000 or 10% of actual
damages (whichever is greater)
▪ Actual damages
▪ Interest
▪ Investigation and enforcement costs

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Q: How is the law enforced?

A:
▪ An employee may also pursue a private right of
action within 3 years of the alleged violation:
▪ Statutory damages equal to actual damages or
$5,000 (whichever is greater)
▪ A civil penalty: first violation-$500; repeat violations-
$1,000 or 10% of actual damages (whichever is
greater)
▪ Actual damages
▪ Interest
▪ Reasonably attorneys’ fees and costs

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Q: Are there recordkeeping
requirements?

A:
▪ No. But employers may want to keep
records of job postings for up to 3
years, to defend against potential
claims.

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The Great Unknown

▪ Website Aggregators.
▪ Employee Negotiates Higher Salary
or Wage.
▪ Tipped Employees.
▪ Signing Bonuses.
▪ Rate of Pay vs. Salary Range

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The Great Unknown

▪ Salary Range for How Long

▪ Current Postings

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 Questions?

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