Employers are required to provide paid sick and safe leave ("PSSL") to all employees as of January 1, 2018. This guide identifies the most common errors employers make in complying with state laws and local ordinances for PSSL.
Assuming PSSL Does Not Apply to You.
Employers mistakenly believe Washington's state and local PSSL laws do not apply to them, often based upon prior versions of the law or urban legends.
Washington, Seattle, and Tacoma PSSL rules apply to employers of all sizes and to employers that are not based in Washington.
Employees who occasionally work in Seattle and Tacoma are entitled to PSSL under those cities' ordinances as well. Occasional work includes working remotely, making deliveries, having sales meetings, and much more. Employers must track the number of hours employees work in these cities. Once an employee hits 240 hours in Seattle in a single year or 80 hours in Tacoma in a single year, they are entitled to PSSL under those cities' rules for the rest of their employment.
Thinking You're Safe as Long as You Offer Enough Hours
Employers frequently tell me they don't need a review of their PSSL policy for compliance with Washington, Seattle, and Tacoma law. The most common reason I hear is "the company offers more than what the law requires." Sometimes, the employer is incorrect on the number of hours required by the laws that actually apply to it. More frequently, employers forget that providing at least the minimum number of hours of PSSL is just one of many requirements under the various PSSL laws. Once they realize these things, they often change their minds and have counsel review their policies.
Not Revising Your Attendance Policies
Employers often forget to update their attendance policies to make them consistent with the new requirements of the various PSSL and other protected leave laws.
There is a complex alphabet soup of state and federal leave laws that employers must consider before disciplining employees for absences: FMLA, WFLA, WFCA, ADA, WLAD, PSSL, PSST, DVLA, etc. An employer with a compliant PSSL policy, for example, can still run afoul of the Washington, Seattle, and Tacoma rules if the attendance policy is not also updated.
Applying PSSL to the Wrong Employees
Washington's PSSL law only applies to non-exempt employees, but Seattle and Tacoma's PSSL ordinances also apply to exempt employees. The definition of exempt and non-exempt for PSSL is the same as it is under Washington's Minimum Wage Act. The fact that an employee is paid on a salary versus hourly basis does not guarantee that she is an exempt employee. If you're not sure about whether a particular job classification is exempt or non-exempt, consult with a lawyer. This will save you from potential problems with both PSSL and wage laws.
Believing One Size Fits All
It is nice that the Washington Department of Labor & Industries, the Seattle Office of Labor Standards, and other organizations provide templates for PSSL policies. However, there is no one policy that can be used by every employer. Policies must be properly tailored for each employer's size, location(s), unionization, and benefit year. Each policy must also be customized for special "accessories" an employer may choose, such as frontloading, PTO, unlimited time, sharing, swapping, cash out, and reinstatement, and more. Finally, every PSSL policy must be consistent with the rest of the employer's "wardrobe" of other policies on attendance and other types of leave.
Employers who simply copy another company's policy or even use a template provided from a reliable source should ask themselves if saving a small amount of money now is worth the hefty lawyers' bills defending against litigation or an administrative action that will likely come later.
Additional resources provided by the author
This guide highlights the top 5 mistakes employers make, but there are many others. The best way to avoid any missteps in providing PSSL is to hire counsel to prepare and review all your relevant policies for compliance with all applicable laws.
Check out free archived webinars on Washington PSSL offered by Jackson Lewis, P.C.
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