EAP Scoping Questions

Participation for the department's EAP scoping questions has concluded.

Group of people around a table in a discussion with sunshine streaming through windows in the background.

During the first two rounds of scoping for the Executive, Administrative, Professional (“EAP”) rulemaking, the Department of Labor & Industries received feedback regarding the potential content of this rulemaking, and the key questions and data which needed to be understood and/or addressed.

In order to start analyzing potential content for updates to these rules, the department is requesting your feedback on the following questions:

What are your thoughts on whether the department should propose to eliminate the short and long duties test and use a single duties test for EAP employees?
If the department were to propose rule language to further clarify the duties tests for EAP employees, what language should be included?
If the department were to propose an updated salary level for executive, administrative, and professional employees, what specific salary level or approach should be used?
If the department were to propose rule language to create an exemption for highly compensated employees, what should be the criteria for meeting that exemption?
If the department were to propose a fixed salary level, should this rulemaking also include an automatic updating mechanism?
If the department were to propose modifications to the exemption for computer professionals, what should be the criteria for meeting that exemption?
If the department were to propose modifications to the exemption for individuals employed in the capacity of an outside salesperson, what should be the criteria for meeting that exemption?
If the department were to propose an effective date for the updated rule, what should that effective date be?

Feedback can be submitted directly to this page via the “Submit Comments” tab. Feedback can also be submitted using an attached document via the “Upload Documents” tab. Please note that uploaded documents will not appear on the website immediately. Uploads may take up to 24 hours to post.

In order to start analyzing potential content for updates to these rules, the department is requesting your feedback on the following questions:

What are your thoughts on whether the department should propose to eliminate the short and long duties test and use a single duties test for EAP employees?
If the department were to propose rule language to further clarify the duties tests for EAP employees, what language should be included?
If the department were to propose an updated salary level for executive, administrative, and professional employees, what specific salary level or approach should be used?
If the department were to propose rule language to create an exemption for highly compensated employees, what should be the criteria for meeting that exemption?
If the department were to propose a fixed salary level, should this rulemaking also include an automatic updating mechanism?
If the department were to propose modifications to the exemption for computer professionals, what should be the criteria for meeting that exemption?
If the department were to propose modifications to the exemption for individuals employed in the capacity of an outside salesperson, what should be the criteria for meeting that exemption?
If the department were to propose an effective date for the updated rule, what should that effective date be?

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Participation for the department's EAP scoping questions has concluded.

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(Submitted on 7/7/18 by Sidney Noelle Kenney)

1. No comment.
2.No comment.
3. There should be a threshold of $78,000.00. If someone is denied overtime protection, they should be fairly compensated. Otherwise, we run the danger of slave labor as many industries, specifically, fast food and retail already employee. I work in an office. I am on-call 24/7 on holidays, on my days ""off"", when I'm on vacation, and my employer requires me to make calls to my staff on my days off and during the business week from 7am-11pm at night. The job description stated the position consisted of 40hrs a week and a rotation of being on call. This isn't the only company that takes advantage of the lack in protections. It's not right. It's not just. And it's not American. Looking at my pay I'm conjunction with the hours I work, I make $12.50 an hour. I work for aacres and I supervise the people taking care of our developmentally disabled citizens and I work 120+ hours every two weeks. I with all the time spent away from family I'd like to be compensated or not required to give that time. Most currently this is and has been the climate for exempt workers for approximately the last twenty or so years. Overworked and underpaid.
4. A threshold in addition with a duties test is a must.
5. It should absolutely include an auto updating mechanism. This will prevent this from happening to hard working Americans going forward.
6. It should be a higher salary threshold. Possibly, in the 90th percentile of salaries for that position.
7. Guaranteed base salary that falls withing the 80th percentile of that industry.
8. The date should be either the beginning of November to further stimulate sales in the holiday season or the first of the year to coincide with a new tax year.
Please feel free to contact me any time at 540-589-4259.

Allison Drake almost 6 years ago

(Submitted on 7/7/18 by Sidney Noelle Kenney)

1. No comment.
2.No comment. 
3. There should be a threshold of $78,000.00. If someone is denied overtime protection, they should be fairly compensated. Otherwise, we run the danger of slave labor as many industries, specifically, fast food and retail already employee. I work in an office. I am on-call 24/7 on holidays, on my days ""off"", when I'm on vacation, and my employer requires me to make calls to my staff on my days off and during the business week from 7am-11pm at night. The job description stated the position consisted of 40hrs a week and a rotation of being on call. This isn't the only company that takes advantage of the lack in protections. It's not right. It's not just. And it's not American. Looking at my pay I'm conjunction with the hours I work, I make $12.50 an hour. I work for aacres and I supervise the people taking care of our developmentally disabled citizens and I work 120+ hours every two weeks. I with all the time spent away from family I'd like to be compensated or not required to give that time. Most currently this is and has been the climate for exempt workers for approximately the last twenty or so years. Overworked and underpaid. 
4. A threshold in addition with a duties test is a must.
5. It should absolutely include an auto updating mechanism. This will prevent this from happening to hard working Americans going forward. 
6. It should be a higher salary threshold. Possibly, in the 90th percentile of salaries for that position. 
7. Guaranteed base salary that falls withing the 80th percentile of that industry.
8. The date should be either the beginning of November to further stimulate sales in the holiday season or the first of the year to coincide with a new tax year.
Please feel free to contact me any time at 540-589-4259.

(Submitted on 7/6/18 by Angela Lowe, Verity Credit Union)

While we support revaluating and updating the EAP exemption for the protection of employees, we have concerns that he proposed salary threshold for exemption would have a significant impact on our organization. We are a mid-sized, not-for-profit credit union and operate in the Seattle area. We currently have 10 people who fall under the EAP and Outside Sales exemptions who would be impacted by this change, including several of our Branch Managers. Raising the salary threshold to the proposed level of $68,000-$70,000 would limit our ability to fill or even offer these jobs in the future. As an organization committed to promoting strong and viable communities, we ask that you don't limit our ability to offer our services in an increasingly competitive and challenging market. Thank you.

Allison Drake almost 6 years ago

(Submitted on 7/5/18 by Jeremy S., Grass CPA & Associates)

As a small business accounting firm that handles; accounting, payroll and federal, state and local taxes for many small businesses, we would urge the department to have the effective date of any rule changes, to the state EAP rules, be January 1st of the effective year. We also implore the department to finalize all rules no later than September 30th of the year prior, so that employers and accounting professionals can understand the new rules and seek legal counsel if questions arise. We also would hope that the department will launch, no later that October 1st of the year prior, an aggressive education campaign to give employers and payroll professionals the opportunity to get educated on the changes, and make changes to their payroll systems, if necessary, before the law goes into effect.

Allison Drake almost 6 years ago

(Submitted on 7/5/18 by Gary Smith, IBA)

L&I EAP Rule Leaders:

Below are IBA's responses to L&I's EAP Scoping Questions .

1. What are your thoughts on whether the department should propose to eliminate the short and long duties test and use a single duties test for EAP employees?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to be consistent with EAP federal definitions and duties tests to avoid confusion and to avoid disproportionate costs impacts on small businesses as they must hire an attorney to understand the differences in any definition and to avoid confusion to help the Department comply with the state's Regulatory Flexibility Act RCW 19.85 requiring state agencies to minimize disproportionate rule costs on small businesses..

2. If the department were to propose rule language to further clarify the duties tests for EAP employees, what language should be included?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to be consistent with federal definitions of duties tests to avoid disproportionate costs impacts on small businesses as they must hire an attorney to understand the differences in any definition and to avoid confusion and to help the Department comply with the state's Regulatory Flexibility Act RCW 19.85 requiring state agencies to minimize disproportionate rule costs on small businesses.

3. If the department were to propose an updated salary level for executive, administrative, and professional employees, what specific salary level or approach should be used?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to not propose a fixed salary level for EAP employees but instead recognize regional salary levels that vary by 2.5 times and a 49% lower salary level for small business by region based on data already acquired by the Department and help the Department comply with the state's Regulatory Flexibility Act RCW
19.85 requiring state agencies to minimize disproportionate rule costs on small businesses.

4. If the department were to propose rule language to create an exemption for highly compensated employees, what should be the criteria for meeting that exemption?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to be consistent with federal definitions if it adds an exemption for highly compensated employees to avoid disproportionate costs impacts on small businesses as they must hire an attorney to understand the differences in any definition and to avoid confusion and to help the Department comply with the
state's Regulatory Flexibility Act RCW 19.85 that Requires state agencies to minimize disproportionate rule costs on small businesses.

5. If the department were to propose a fixed salary level, should this rulemaking also include an automatic updating mechanism?

Reponses: Small businesses that make up over 90% of all state employers need Washington State to not propose a fixed salary level for EAP employees but instead have regional salary levels that vary by 2.5 times and a 49% lower salary level for small business as they pay lower wages than larger businesses based on data already acquired by the Department and use update timings consistent with
federal increase timings of EAP salary updates to avoid confusion and to help the Department comply with the state's Regulatory Flexibility Act RCW 19.85 requiring state agencies to minimize disproportionate rule costs on small businesses.

6. If the department were to propose modifications to the exemption for computer professionals, what should be the criteria for meeting that exemption?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to be consistent with federal definitions of duties tests for computer professionals to avoid disproportionate costs impacts on small businesses as they must hire an attorney to understand the differences in any
definition and to avoid confusion and to help the Department comply with the state's
Regulatory Flexibility Act RCW 19.85 that requires state agencies to minimize
disproportionate rule costs on small businesses.

7. If the department were to propose modifications to the exemption for individuals employed in the capacity of outside salesperson, what should be the criteria for meeting that exemption?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to be consistent with federal definitions of duties tests to avoid disproportionate costs impacts on small businesses as they must hire an attorney to understand the differences in any definition and to avoid confusion and to help the Department comply with the state's Regulatory Flexibility Act RCW 19.85 that
requires state agencies to minimize disproportionate rule costs on small businesses.

8. If the department were to propose an effective date for the updated rule, what should that effective date be?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to make any changes to EAP rules effective 1/1/ of the year and to notify business owners starting in June of the year prior to the update taking effect, and engage in an aggressive education program for the ensuing six months before the changes become effective to minimize any disproportionate costs impacts
on small businesses as they must hire an attorney to understand the differences in any
definition and to avoid confusion and to help the Department comply with the state's Regulatory Flexibility Act RCW 19.85 that requires state agencies to minimize disproportionate rule costs on small businesses.

Gary Smith
IBA

Allison Drake almost 6 years ago

(Submitted on 7/5/18 by Gary Smith, IBA)

L&I EAP Rule Leaders:

Below are IBA's responses to L&I's EAP Scoping Questions .

1. What are your thoughts on whether the department should propose to eliminate the short and long duties test and use a single duties test for EAP employees?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to be consistent with EAP federal definitions and duties tests to avoid confusion and to avoid disproportionate costs impacts on small businesses as they must hire an attorney to understand the differences in any definition and to avoid confusion to help the Department comply with the state's Regulatory Flexibility Act RCW 19.85 requiring state agencies to minimize disproportionate rule costs on small businesses..

2. If the department were to propose rule language to further clarify the duties tests for EAP employees, what language should be included?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to be consistent with federal definitions of duties tests to avoid disproportionate costs impacts on small businesses as they must hire an attorney to understand the differences in any definition and to avoid confusion and to help the Department comply with the state's Regulatory Flexibility Act RCW 19.85 requiring state agencies to minimize disproportionate rule costs on small businesses.

3. If the department were to propose an updated salary level for executive, administrative, and professional employees, what specific salary level or approach should be used?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to not propose a fixed salary level for EAP employees but instead recognize regional salary levels that vary by 2.5 times and a 49% lower salary level for small business by region based on data already acquired by the Department and help the Department comply with the state's Regulatory Flexibility Act RCW
19.85 requiring state agencies to minimize disproportionate rule costs on small businesses.

4. If the department were to propose rule language to create an exemption for highly compensated employees, what should be the criteria for meeting that exemption?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to be consistent with federal definitions if it adds an exemption for highly compensated employees to avoid disproportionate costs impacts on small businesses as they must hire an attorney to understand the differences in any definition and to avoid confusion and to help the Department comply with the
state's Regulatory Flexibility Act RCW 19.85 that Requires state agencies to minimize disproportionate rule costs on small businesses.

5. If the department were to propose a fixed salary level, should this rulemaking also include an automatic updating mechanism?

Reponses: Small businesses that make up over 90% of all state employers need Washington State to not propose a fixed salary level for EAP employees but instead have regional salary levels that vary by 2.5 times and a 49% lower salary level for small business as they pay lower wages than larger businesses based on data already acquired by the Department and use update timings consistent with
federal increase timings of EAP salary updates to avoid confusion and to help the Department comply with the state's Regulatory Flexibility Act RCW 19.85 requiring state agencies to minimize disproportionate rule costs on small businesses.

6. If the department were to propose modifications to the exemption for computer professionals, what should be the criteria for meeting that exemption?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to be consistent with federal definitions of duties tests for computer professionals to avoid disproportionate costs impacts on small businesses as they must hire an attorney to understand the differences in any
definition and to avoid confusion and to help the Department comply with the state's
Regulatory Flexibility Act RCW 19.85 that requires state agencies to minimize
disproportionate rule costs on small businesses.

7. If the department were to propose modifications to the exemption for individuals employed in the capacity of outside salesperson, what should be the criteria for meeting that exemption?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to be consistent with federal definitions of duties tests to avoid disproportionate costs impacts on small businesses as they must hire an attorney to understand the differences in any definition and to avoid confusion and to help the Department comply with the state's Regulatory Flexibility Act RCW 19.85 that
requires state agencies to minimize disproportionate rule costs on small businesses.

8. If the department were to propose an effective date for the updated rule, what should that effective date be?

Reponse: Small businesses that make up over 90% of all state employers need Washington State to make any changes to EAP rules effective 1/1/ of the year and to notify business owners starting in June of the year prior to the update taking effect, and engage in an aggressive education program for the ensuing six months before the changes become effective to minimize any disproportionate costs impacts
on small businesses as they must hire an attorney to understand the differences in any
definition and to avoid confusion and to help the Department comply with the state's Regulatory Flexibility Act RCW 19.85 that requires state agencies to minimize disproportionate rule costs on small businesses.

Gary Smith
IBA

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