NFIB Submits Official Comments Regarding State Overtime Rule

Date: October 02, 2019

"The department’s high salary threshold alone may effectively bar small employers from being able to employ overtime-exempt workers at all"

NFIB is officially on record in opposition to the Department of Labor & Industries proposed overtime rule. Highlights from a three-page letter to department Director Joel Sacks, signed by NFIB Washington State Director Patrick Connor, included:

“NFIB believes the department failed to adequately consider the ability of small employers, particularly those outside the Seattle metropolitan area, to pay one or more employees a salary at or above this high level. The department’s preliminary small business economic impact statement (SBEIS) fails to mention any such data, investigation, or analysis. Conversely, statements provided during the department’s listening and public comment sessions indicated $80,000 is in excess of what many small employers are able to pay themselves as business owners, let alone a reasonable compensation level for EAP or other overtime-exempt workers covered by the rule.

“NFIB believes the department failed to fully comply with the requirements of Chapter 19.85 RCW, the Regulatory Fairness Act. Small businesses and small business advocates supported a regional approach to the salary threshold, somewhat akin to the State of Oregon’s minimum wage law, as well as including a highly compensated employee threshold consistent with the federal overtime rule. Neither approach was included in the proposed rule, nor do the department’s SBEIS or other materials indicate or explain whether or how these suggestions were considered, and if so, why they were both rejected by the department. NFIB suggested rewriting the state rule to simply adopt or point to the federal overtime rule, now in effect and as may be amended, which would avoid confusion and conflict between potentially different state and federal requirements, making it easier for small businesses to understand and comply with their obligations under a single, uniform standard. We are not aware of any information in the record indicating this recommendation was considered pursuant to RCW 19.85 in general, or RCW 19.85.030(2) in particular.

“The department’s current proposal results, in no small part, from its failure to periodically review its EAP (overtime) rule over the past 40 years or so. The current proposal threatens to continue this pattern of failure by creating an autopilot approach that denies stakeholders – employers and workers alike – the opportunity to regularly review, refine, replace, or repeal a rule that we believe will be all but unworkable for this state’s small employers.

“Consequently, NFIB must oppose the rule and urges the department to continue working with stakeholders to craft a workable alternative.”

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