UPDATE 7/23/24: We recently reviewed the current policies regarding Washington’s rest breaks and meal periods. It has come to our attention that while the policies themselves have not changed, there is conflicting documentation on the WA State Department of Labor & Industries website regarding ‘Rest Breaks & Meal Periods’.
These conflicts may affect how you choose to apply and pay out breaks. We have reached out to the WA State Department of Labor & Industries and their response to us was to refer to the policy. You should review these options with your labor attorney to decide how you will utilize your Datatech software.
Policy:
Website Direction:
What does this mean?
Based on the website text, there are two differences in the way we previously understood Washington paid rest break policies.
DIFFERENCE #1
1) The policy says, “If an employee takes a rest period while performing hourly work, an employer does not need to pay the employee separately for the rest period because the rest period has been paid ‘on the employer’s time.'”
We understood that to mean break time did not have to be separate in hourly work because the time was already paid on the employers’ time. Therefore, employers did not pull any breaks from hourly time.
However, the current website text appears to have been updated with the following:
“Note: Recent court cases have defined how ag workers must be paid during their rest breaks.”
“For workers with more than one hourly rate, or who have both hourly and piece rate pay, calculate their regular hourly rate by totaling the weekly amount of pay and divide by the hours worked.”
According to the website text, breaks should be separated if there is more than one hourly rate, so they would be paid at the regular rate of pay.
ADJUSTING PROGRAM SETTINGS #1
If you would like to follow the website’s documentation, in your Datatech software follow these steps:
1. Go to the Add/Update Breaks window and select ‘Extract break time from hourly wages’. This will extract break time from hourly entries ONLY if the employee also has piecework wages in the criteria used to create breaks.
Note: If you would like to continue only paying breaks on piecework wages, leave ‘Extract break time from hourly wages’ unchecked.
IMPORTANT: If you have some employees only paid hourly BUT with multiple rates, you will also need to select, “Extract break time from employees that only have hourly wages.”
If you do not have this option selected, the program will not extract breaks if there are only RH entries. Employees with only one rate will also have their break time extracted, but the rate will be the same as their hourly rate.
DIFFERENCE #2
2) The policy says, “The following examples show how employers should calculate an agricultural employee’s “regular rate of pay” for the workweek. First, add up the agricultural employee’s total piece-rate earnings for the workweek and add the total to the total earnings the employee earned for performing piece-rate down time duties. Even if the employee earns different piece rates during the workweek, total all piece-rate earnings for the week. Next, divide those earnings by the employee’s total hours of work (exclude rest period time). This amount is the employee’s “regular rate of pay.”
The break time rate calculation was specified to be based on piecework earnings and down time earnings during piece-rate work.
Based on the current website text, the rate on breaks is based on all earnings, so hourly days would be included in the regular rate of pay.
ADJUSTING PROGRAM SETTINGS #2
2. On the Daily Payroll Batch Report window, select ‘Regular Rate of Pay’ to include regular hours with piecework hours to calculate the regular rate of pay.
Note: If you only want to base the average hourly rate on piecework wages, select ‘Ave. Hourly Piece Rate’.
The information below was based on the WA policy and was written October 5, 2017. This information has been updated above according to our current understanding.
Datatech software has the ability to calculate Rest & Recovery rates based on either regular rate of pay or average hourly piecework rate. In Washington there was some confusion as to which method should be used because some of the documentation published used the term “regular rate of pay.” This is a term used by the US Wage & Hour Division and many states as a means of calculating overtime, sick pay, break rates, etc. and is typically a weighted average of all compensation divided by hours worked.
In one section of the WA Administrative Policy for break compensation (http://www.lni.wa.gov/WorkplaceRights/files/policies/esc62.pdf) it seems the same method of calculation would be used:
- How must employers compute the amount owed for rest periods for agricultural piecerate workers?
How much a worker must be paid for the rest period depends on whether the worker’s regular rate of pay—the average hourly rate of pay for the workweek not including rest periods—is above minimum wage.
To compute the amount owed for rest periods, the employer must first compute the worker’s regular rate of pay. This is done by dividing the total compensation earned in a workweek by the total active hours of work (the “total active hours of work” does not include the break time). The result is the regular rate of pay for the week.
However, in further review of these policies, they use the term regular rate of pay in reference to only piece-rate earnings. Further along in section 6 reads:
The following examples show how employers should calculate the worker’s “regular rate” of pay for the workweek.
First, add up the worker’s total piece-rate earnings for the workweek. Even if the worker earns different piece rates during the workweek, total all piece-rate earnings for the week. Next, divide those earnings by the worker’s active hours of work (exclude rest period time). This amount is the worker’s “regular rate” of pay.
Additionally, see section 8:
- Some employees alternate between piece-rate and an hourly rate of pay. How should the employer calculate the separate pay for the rest periods?
Rest periods for workers who alternate between piece-rate and hourly-rate wage arrangements must be paid according to their basis of pay at the time they take their rest period.
For example, If a worker takes a rest period while working at the hourly rate of pay, the employer is not required to pay separately for the rest period because the rest period has been paid “on the employer’s time.”
Washington employers may choose to use the “Average Piece-Rate” selection on the Rest & Recovery and/or Batch Report as the method for calculation. This method only takes into consideration the piecework earnings and does not include any hourly wages in the calculation, per the answer to question 6 in the Administrative Policy document.
If you have payroll in both Washington and California, here are the key differences in how breaks are to be paid:
In California, if an employee has both piecework and hourly pay during a pay period, all breaks (including breaks taken while being paid on an hourly basis) must be paid at the employee’s regular rate of pay.
In Washington, breaks taken while earning hourly wages do not need to be paid at a different rate. Breaks taken while earning piecework wages must be paid separately at the average hourly piecework pay rate.
If you need further clarification or have additional questions please consult your legal counsel or the Washington State Dept. of Labor & Industries.