I. MINIMUM WAGE

1. As of January 1, 2002, the minimum wage rates are:

   • Federal law - $5.15

   • Oregon - $6.50

   • Washington - $6.90

2. Alternative minimum wage rates for minors or trainees:
   
   None, in Oregon and under federal law.
   
   In Washington, workers under 16 in non-agricultural work may be paid 85 percent of the minimum wage or $5.865.

II. MAXIMUM WORK HOURS

1. Oregon maximum working hours in manufacturing, mills and factories are 10 hours per day at straight time, and 3 hours per day at overtime rate. ORS 652.020.

2. Washington maximum working hours for domestic employees are 60 hours per week, and 12.5 hours per day for operators of power equipment on waterfront areas. RCW 49.28.080; RCW 29.28.100.

III. CLASSIFICATIONS OF EMPLOYEES

1. Computer professionals may be able to be classified under the professional exemption category. But if they are not eligible, federal exemption applies to computer professionals who meet the following test:

   1. The employee is paid six and one half times the minimum wage or $27.63 per hour or $57,000 per year.
      
      And

   2. the primary duty of the professional is the following:

      1. the application of systems analysis techniques and procedures, including consulting with users to determine hardware, software or system specifications;

      2. the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

      3. the design, documentation, testing, creation or modification of computer systems or programs related to machine operating systems; or,

      4. a combination of the above-described duties that requires the same level of skill.

      29 U.S.C. § 213(a)(17). Additionally, the exemption is limited to those individuals who are proficient in their area.
      
      Oregon requires a four-year degree.
      
      Neither federal law nor Washington law has this requirement.
      
      The exemption specifically excludes employees involved in the operation of computers or in the manufacture, repair or maintenance of computers, as well as employees whose tasks involve computer use, such as engineers, drafters and even users of CAD/CAM systems.

2. Employment Practices That Can Destroy Exempt Status

   1. In 2000, the Washington Supreme Court decided a case that involved various pay practices of an employer, some of which were found to destroy the exempt status and others which were not. Drinkwitz v. Alliant Techsystems, Inc., 140 Wash 2d 291, 996 P.2d 582 (2000). Specifically, the mere tracking of hours alone was not sufficient to destroy otherwise qualified exempt status. The court found certain other practices to be per se violations of the salary basis test, including requiring employees to work a quota number of hours per week, requiring them to make up hours if the quota was not met, deducting pay for missed hours, and suspending employees for missing hours. Requiring employees to work set schedules and docking missed hours from accrued comp time are not per se violations of the salary basis test, but these practices can be considered in the totality of circumstances in a challenge to the exemption.

   2. Cases in Oregon have focused more on the docking of pay for various reasons, including missed hours and for disciplinary reasons. The only case to address the timekeeping question did so minimally and in context with salary reductions for partial-day absences. Hurley v. State of Oregon, 859 F.Supp. 427 (D.Or. 1993), rev’d on other grounds, 27 F.3d 392 (9th Cir. 1994). Timekeeping and attendance policies did not threaten exempt status, where employees’ paychecks did not vary from week to week based on hours actually worked. The court found that an employer can require time to be recorded for a multitude of other legitimate reasons, including budgeting, compiling statistics, tracking productivity, and determining employees’ vacation entitlements. As long as such accounting is not tied to the amount of pay received, keeping track of time on the job is not inconsistent with salaried status.

IV. MEAL and REST PERIODS

1. Oregon Requirements
   
   Under ORS Chapter 653, Oregon employers must give workers rest and meal breaks as follows:
   
   Meal periods:
   
   A meal period of at least 30 minutes is required when an adult employee works a shift of 6 hours or more. If the work period is seven hours or less, but at least six, the meal period must be taken between the second and fifth hour worked. If the work period is more than seven hours, the meal period must be taken between the third and sixth hour worked. If the nature or circumstance of the work require that employee to be on duty or perform any tasks during the meal period, the employer must treat the meal period as hours worked and pay for that time.
   
   Rest Breaks:
   
   Oregon employers must provide adult employees a rest period of at least 10 minutes for every four hours major part of four hours worked. The rest period should be taken in the middle of each four hour segment worked unless the nature or circumstances of the work require the break be at a different time.
   
   Meal and rest periods cannot be added together or accumulated, nor can the rest periods be deducted from the beginning or end of the work period.
    

   Length of Work Period	Rest Breaks Required	Meal Period Required
   2 hours or less	0	0
   2+ hours to less than 6 hours	1	0
   6 hours	1	1
   more than 6 hours to 10 hours	2	1
   10 hours or more to less than 14 hours	3	1
   14 hours	3	2
   more than 14 hours to 18 hours	4	2
   more than 18 hours to less than 22 hours	5	2
   22 hours	5	3
   more than 22 hours to 24 hours	6	3

   Oregon law does not provide employees witha right to sue for rest period violations. Oregon regulations provide for a civil penalty assessed by the Bureau of Labor and Industries.

2. Washington Requirements

   Meal periods:
   
   Nonexempt employees must receive a meal break of at least 30 minutes beginning not less than 2 hours nor more than 5 hours after the beginning of the shift. Employees working 3 or more hours of overtime are entitled to another break of at least 30 minutes prior to or during the overtime period. Employees must be paid for their breaks if they cannot be relieved of all duties during the meal breaks.
   
   Rest periods:
   
   Nonexempt employees must receive paid rest period of at least 10 minutes for each four hours of working time. No employee can be required to work more than three hours without a break. Scheduled breaks are not required if the nature of the work allows employees to take breaks equivalent to 10 minutes per every 4-hour work period.
   
   A recent Washington Supreme Court decision held that an employee could make an employer that failed to provide mandated rest periods pay for the missed rest periods. Wingert v. Yellow Freight System, Inc. (this decision is available on the internet  at http://www.courts.wa.gov/opinions/opindisp.cfm?docid=709726MAJ). The employees had received a break around 2:45 p.m. and then worked overtime of less than two hours, but were not offered a break. The court found that this practice violated Washington law because the employees worked more than three hours without a break. The employer effectively received an extra 10 minutes of labor for free, so the employees were due wages for all the break time that they missed.

V. TRAVEL TIME

Special One-Day Assignments: An employee who is sent on a one day assignment to a city more than 30 miles from the employee’s fixed official workstation is compensable time under Oregon law.

There is no comparable rule under either federal or Washington state law.

VI. PAYCHECK DEDUCTIONS

Under Oregon law, employers may make only limited deductions from an employee’s pay. As a general rule, deductions are permitted only in the following circumstances:

1. An employer is required by law ;

2. The deduction is authorized in writing by the employee, for the employee’s benefit and is reported in the employer’s books;

3. The employee has voluntarily signed a written authorization for the deduction, provided that the ultimate recipient of the money is not the employer and that the deduction is reported in the employer’s books;

4. The deduction is authorized by a collective bargaining agreement to which the employer is a party or

5. The deduction is made from the payment of wages upon termination of employment and is authorized pursuant to a written agreement between the employee and the employer for repayment of the loan made to the employee by the employer if all of the following conditions are met:

   • The employee has voluntarily signed the agreement;

   • The loan was paid to the employee in cash or other negotiable order check memorandum for which there is a sufficient amount of funds provided for repayment of such instrument when due;

   • The loan was made solely for the employee’s benefit and was not used either directly or indirectly for any purpose required by the employer or connected to the employee’s employment with the employer;

   • The amount of the deduction does not exceed $170 for any one week of a pay period.

   • Any deduction must be included on an itemized statement furnished to the employee at the time payment of wages, salary or commission is made and may be attached to or be part of the check, draft, voucher or other instrument by which payment is made, or delivered separately. The deduction law specifically includes withholdings authorized in writing to be contributed to charitable organizations, as dues, check off or service fees to labor organizations or enforcement of lawful attachment of claims against an employee’s wages.

    Under Washington law, the following deductions are permitted:

6. Those required by law;

7. Those specifically agreed to in writing in advance between the employer and the employee for a lawful purpose and to the benefit of the employee;

8. For health care services, required by rule or regulation.

9. Such items as union dues, wage assignments (provided that spouse provides written consent), employee contributions to medical care plans and employee’s share of workers’ compensation contributions.

    Any agreement for deductions that would take the employee below the minimum required
    must accrue to the benefit of the employee.

   Washington prohibits:

• deductions for breakage, cash shortages, customer failures to pay, unless caused by a dishonest act of the employee.

• deductions for losses due to acceptance of bad checks, unless the employer can show that the employee violated a previously-known company procedure.

• If the employee has sole access to a cash register, drawer or portable cash depository, and the employee participated in cash accounting both before and after their shift, cash shortages can be deducted from employee’s pay. When portable cash depositories are used, employers must provide for periodic withdrawals of cash receipts during a shift in order to prevent large accumulations of cash.

       Even if these deductions are otherwise allowable, they can only be taken from the
       termination wages of the employee, and both the employer and the employee must
       have agreed upon the deduction orally or in writing.

VII. FINAL PAYCHECKS

1. Under Oregon law:
    

   Termination	End of next business day (Monday through Friday), regardless of whether employer is open for business over the weekend.
   Quit with 48 hours notice	Final work day
   Quit without 48 hours notice	Five working days OR the next regular pay day (whichever comes first)

    

   1. Although paid vacation is not required, if provided and accrued at time of termination, unused vacation should be paid upon separation absent declared policy to the contrary.

   2. Sick pay is not to be considered a vested right or wage. Employees are usually not entitled to payment of accrued sick pay upon termination.

2. Washington law:

   1. Under Washington law, the final paycheck is due at the end of the established pay period, regardless of notice given or termination status (voluntary or involuntary).

   2. There are no statutory requirements in Washington to provide for vacation or sick pay. These are all matters of company policy. Company policy should clearly state whether terminated employees will be paid for accrued but unused vacation pay.

    

NEW WASHINGTON FAMILY CARE BILL
RCW 49.12.270 - .295

Prior to this recently-passed legislation, for any employer with accrued sick leave policy (paid or unpaid and written or informal), an employee could

1. Use accrued sick leave to care for sick child under age of 18 (a child’’s illness includes a developmental disability), but

2. Were not allowed to use vacation leave or short and long term disability leave or care for ill spouse.

In March 2002, the State of Washington expanded employees’ state-law rights to utilize paid time off to care for family members. Substitute Senate Bill 6426 amended the “sick leave to care for child” provisions of RCW 49.12.270 - .295. The new rules take effect January 1, 2003.
The new bill makes three substantive changes:

1. employees can use any paid time off (sick, vacation or personal time) for family care. It is unclear in the new bill whether “comp” time or disability leave could also be used, but they probably can. Time off for jury duty or military service probably is not included in the definition of “paid time off.” The superseded law addressed only sick leave.

2. family care now covers care for a child under 18, a child over 18 who is incapable of self-care due to mental or physical disability, a spouse, parent, parent-in-law or grandparent, who has a serious health condition or medical emergency. The superseded law addressed only child care.

3. the new bill added broad anti-retaliation provisions. It prohibits discharge or threat of discharge, demotion, suspension, discipline or other discriminatory action against an employee who has exercised or attempted to exercise a right under this law. Also protected are employees who filed a complaint, testified or assisted in any proceeding against an employer based on this law.

Employees cannot utilize paid time off in advance of earning it. Employees must also abide by any other terms of the collective bargaining agreement or employer policy that apply to leave, except for any terms applying to the choice of type of leave utilized. Employers are free to grant more generous leave policies than the law requires, but they must abide by the minimum provisions of the law.

Note that this new bill applies to all Washington employers regardless of size and covers all employees eligible for time-off.

Also note that this bill does not amend the Washington Family Leave Law. The Washington Family Leave Law provides 12 weeks of time-off for care of a newborn child, a newly adopted child under age 6 or a terminally ill child under age 18. Coverage is limited to employees working more than 35 hours per week for employers of more than 100 employees.

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