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HomeMy WebLinkAboutInitiative 1 - 2025 Administrative Rule - Ordinance Concerning Labor Standards (Minimum Wage)CITY OF TUKWILA Administrative Rule 2025-1 TUKWILA LABOR STANDARDS APPLICABLE TO TMC 5.63 MINIMUM WAGE AND ADDITIONAL 1-1OURS FOR QUALIFIED PART-TIME EMPLOYEES Effective Date: April 3, 2025 TLS 01-010 — Purpose Supercedes: City of Tukwila Administrative Rule 2023-1 Approve: Thonias McLeod, Mayor CHAPTER 1: PURPOSE AND CONSTRUCTION The purpose of these Tukwila Labor Standards (115") is to provide rules and procedures to implement and ensure compliance with chapter 5.63 of the Tukwila Municipal Code and TMC 5.04.113 (collectively, "Ordinance' or "TMC Chapter 5.63") and to ensure that the employees as specified in the Ordinance who work in the City of Tukwila ("City") (1) receive at least a minimum wage comparable to employees in neighboring cities of SeaTac and Seattle ("Wage Requirement"); and 2) have fair access to additional hours of work ("Additional Hours Requirement"). TLS 01-0,20 — Construction These Tukwila Labor Standards do not cover every requirement of the Ordinance. If a matter arises in administering the Ordinance that is not specifically covered by these rules and procedures, the Finance Director, or designee, shall specify the practices to be followed. These rules and procedures shall be liberally construed to permit the City to accomplish its administrative duties in implementing the Ordinance, including providing technical assistance, determining if a violation has occurred, and proscribing penalties and remedies. These rules and procedures are declared to be separate and severable. If any chapter, clause, sentence, paragraph, subdivision, section, subsection, or portion of these rules and procedures or the application thereof to any employer, employee, or circumstance, is held to be invalid, it shall not affect the validity of the remainder of these rules and procedures, or the validity of the application of the rules and procedures to other persons or circurnstances. The Ordinance shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirernent, policy, or standard that provides for greater requirements; and nothing in the Ordinance or in these rules and procedures shall be interpreted or applied so as to create any power or duty in conflict with federal or state law. CHAPTER 2: DEFINITIONS TLS 02-010 — Intent The intent of this Chapter is to implement and facilitate compliance with the Ordinance, which 1 4911-2863-2340, v, 2 (KMS4911-2863-2340;2/13175,000001/1 may also include questions and answers and examples. This Chapter does not include all the definitions that are set forth in the Ordinance. If a term that is defined in the Ordinance is not included in this Chapter, it is to be defined in accordance with the definition in the Ordinance and the common-law rules of statutory construction. TLS 02-020 Cover d Eniployer A. Definition of "Covered Employer" An employer is a "covered employer" if it either: 1) employs at least 15 employees regardless of where those employees are employed, or 2) has annual gross revenue over $2 million generated within the city limits of the City of Tukwila. "Covered employer" includes any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee, and it includes public and private employers and nonprofits. See TMC 5.63.020 and RCW 49 46.010. Only employees who meet the definition of "employee" in TMC 5.63.020.D and RCW 49.46.010 are included when counting the number of employees. B. Questions and Answers regarding the Definition of "Covered Employer" Question 1: Is my company a covered employer if it has 15 employees worldwide, but only has 3 employees in Tukwila and it only generated $1 million in gross revenue in Tukwila? Answer: Yes, because it meets the 15-employee threshold. An employer does not need to meet the gross revenue requireiment to be covered if it meets the requirement for number of employees. Question 2: Is my company a covered employer if it has over $2 million in gross revenue in Tukwila but only one employee? Answer: Yes It does not need to meet the 15-employee threshold if it meets the gross revenue threshold. Question 3: Is my company a covered employer if we had 15 employees last year but only 12 employees this year? Our grass revenues have always been below the $2 million threshold. Answer: Yes. Per TMC 5.63.060.B, employer classification for the current calendar year is based an the average number of employees during all weeks in the previous calendar year in which the employer had at least one employee. All employees will be counted, regardless of their location, and including employees who are full-time, part-time, temporary, jointly employed, or employed through a temporary services or staffing agency or similar entity. Question 4: Is my company a covered employer on July 1 if we started our business on January 1 and had an average of 15 employees from April 1 through June 30? Our gross revenues have not reached the $2 million threshold. Answer: Yes. PerTMC 5.63.060LB, if an employer had no employees during the previous calendar year, the classification is based on the average number of employees during the most recent three months of the current year. All employees will be counted, regardless of their location, and 4911-2863-2340, v. 2 {KNI54911-2863-2340;2/13175000001/} including employees who are full-time, part-time, temporary, jointly employed, or employed through a temporary services or staffing agency or similar entity. Question 5: Is my company a covered employer if we hod over $2 million of revenue in Tukwila last year, but we know our gross revenue in Tukwila this year will be less than $2 million? We have never had more than 14 employees. Answer: Yes. Per TMC 5 63 060 C, employer classification for the current calendar year is calculated based on the gross revenue for the previous year. Question 6: Is my company a covered employer if we have annual gross revenue under $2 million in Tukwila and 15 people who work for us worldwide, but 3 of the people who work for us are employed in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesperson? Answer: No. The people who are working in a bona fide executive, administrative, or professional capacity or in the capacity of outside salesperson are not "employees" under INK 5.63.060.L and RCW 49.46.010, 5o your company does not meet the 15-person threshold for being a covered employer. T1.5 02-030 —Covered Position A. Definition of "Covered Position" For purposes of the Additional Hours Requirement, a "covered position" is a position that a covered employer intends to fill by hiring an additional employee or subcontractor, including hiring through the use of temporary services or staffing agencies. B. Questions and Answers regarding the Definition of "Covered Position" Question 1: Are exempt positions covered by the Ordinance's Additional Hours Requirement? Answer: No. The Additional Hours Requirement only applies to employees who are covered by the minimum wage laws (sometimes referred to as "nonexempt ernployees"). For details, see TMC 5.63.020, TMC 5.63.030(2), and the definition of "employee" in RCW 49,46.010, Because Tukwila's definition of "employee" is based on the state definition in RCW 49.46.010, which has numerous exceptions, such as certain casual laborers, overtime -exempt "white collar" workers, volunteers, and others (all sometimes referred to as "exempt employees"), exempt employees do not have the protections of the Additional Hours Requirement. Question 2: If a covered employer creates a new position but only posts the position internally, is the new position a covered position? Answer: No. Because the employer is not hiring additional e p yees or subcontractors, the position would not be a covered position. 4911-2863-2340. v. 2 (KM54911-2863-2340;243175.000001/) Question 3: If one Maintenance Technician position was a covered position because the covered employer filled it with a new employee and the employer subsequently plans to fill a second Maintenance Technician position through an internal recruitment, is the second Maintenance Worker position aka a covered position? Answer; No. The internal recruitment will result in the second position being filled by an existing employee. C. Examples regarding the Definition of "Covered Position" EXAMPLE 1: The covered employer has 15 full-time employees who each work 40 hours per workweek and five part-time employees who were hired to work for six weeks. At the end of the six weeks, the employer plans to employ TJ, who is one of the temporary part-time employees, as a regular employee. The employer does not have to offer the hours that TJ will be working as a regular employee to any of the other temporary employees because T.1 is not a new employee. The employer does not have to offer those hours to the permanent employees either, because they are working 40 hours per workweek, and the additional hours would cause them to earn overtime. TLS 02-040— Gross Revenue A. Definition of "Gross Revenue" For purposes of the Ordinance, "gross revenue" means revenue generated from sales made, services performed, and other business activities that occur within the Tukwila city limits. B. Calculation of Gross Revenue "Gross revenue" includes the consideration, whether money, credits, rights or property expressed in terms of money, proceeding or accruing by reason of the transaction of business and includes gross proceeds of sales, compensation for rendition of services, gains realized from interest, rents, royalties, fees, commissions, dividends and other emoluments, however designated, all without any deduction on account of cost of property sold, materials used, labor, interest, losses, discount and any other expense whatsoever. C. Questions arid Answers regarding the Definition of "Gross Revenue" Question 1: My business has multiple locations within the City and outside the City, and our gross revenue within the City annually exceeds $2 million. Does my business need to keep track of its gross revenue for purposes of the Ordinance if we are not going to claim we have gross income in the City that is $2 million or less? Answer: No. Employers who are not claiming to have $2 million or less in annual gross revenue in the City do not need to provide proof of their gross revenue for purposes of determining whether their gross revenue is below the $2 million threshold established by the Ordinance. 4 4911-2863-2340, v, 2 (KMS4911-2863-2340;1/1317541000025 TLS 02-050 — Hour Worked within the City A. Definition of "Hour Worked within the City" "Hour worked within the City" is to be interpreted according to its ordinary meaning, including all hours worked within the geographic boundaries of the City of Tukwila, excluding time spent in the City solely for the purpose of travelling through the City from a point of origin outside the City to a destination outside the City, with no employment -related or commercial stops in the City except for refueling or the employee's personal meals or errands. B. Questions and Answers regarding the Definition of "Hour Worked within the City" for Employers who are Affected by the Minimum Wage Requirements of the Ordinance Question 1: if an employer's place of business is outside the City of Tukwila but some of its employees work from home within the City for all or port of each workday, do the employee's hours worked from home count as hours worked within the City? Answer: Yes. Question 2: If an employee lives in the City, do the hours they spend at home while on vacation or other paid leave count as hours worked within the City? Answer: No, because hours spent on paid leave are not hours worked for the purposes of the Ordinance. Question 3: If an employer's place of business is outside the City of Tukwila but some of its employees occasionally work in the City on a short-term basis, such as on a construction project, do the hours they spend working on the construction project count as hours worked in the City? Answer: Yes, Question 4: If an employer's place of business is outside the City of Tukwila but some of its employees occasionally work in the City on a short-term basis, can the employer pay them the City's minimum wage for their hours worked within the City and the state minimum wage for hours worked in a location that does not have its own minimum wage? Answer: Yes, unless the employer has an agreement with the employee or an applicable collective bargaining agreement that requires the employer to pay the employees at a higher rate. Question 5: What if the employer does not know that its employees are working some of their hours within the City? For example, if on employee is working remotely from a cafe in Tukwila even though they don't live there, or if the employer does not realize that a construction project is within the City limits. Answer: It is the employer's responsibility to keep track of the number of hours worked in the City, so employers who are affected by the minimum wage requirements of the Ordinance need to establish procedures to accurately record when their employees are working in the City. 5 4911-2863-2340, v. 2 (10.451911-2863-2340;2/13175.000000 TLS 02-060 — Large Employer A. Definition of "Large Employer" "Large employer" means all employers that employ more than 500 employees, regardless of where those employees are employed, and all franchisees associated with a franchisor or a network of franchises with franchisees that employ more than SOO employees in aggregate. B. Questions and Answers regarding the Definition of "Large Employer" Question 1: Does a franchisee have to employ more than SOO employees in order to be a large employer? Answer: It depends. The definition of "large employer" in TMC 5.63.020 includes "... all employers that employ more than 500 employees, regardless of where those employees are employed, and all franchisees associated with a franchisor or a network of franchises with franchisees that employ more than 500 employees rro aggregate." Question 2: If a franchisee with over $2 million in annual gross revenue within the City of Tukwila that employs 15 people worldwide is associated with a franchisor or with a network of franchisees that employs more than 500 employees in the aggregate, is the franchisee a large employer? Answer: Yes. TLS 02-070 — Midsize Employer A. Definition of "Midsize Employer" A "midsize employer" is a covered employer that does not fit within the definition of a large employer. In the Ordinance, midsize employers are also referred to as "other covered employers." B. Questions and Answers regarding the Definition of "Midsize Employer" Question 1: is a franchisee with 5 employees and over $2 million in annual gross revenue generated within the City of Tukwila a midsize employer? Answer: It depends. If the franchisee is associated with a franchisor or a network of franchises with franchisees that employ more than 500 employees in aggregate, then it would not be a midsize employer; it would be a large employer. TLS 02-080 — Qualified Part -Time Employee A. Definition of "Qualified Part -Time Employee" Covered employers are only required to offer additional hours to existing qualified part-time employees. An employee is a "part-time employee" for the purposes of the Additional Hours Requirement if, at the time the employer seeks to hire an additional employee for a covered 6 4911-21'.3-2340, v. 2 {KM$4913.-2863-2340;2/13175,000001/) position, the employee is an existing employee who usually works fewer than thirty-five (35) hours per week. A "qualified part-time employee" for the purposes of the Additional Hours Requirement is an existing part-time employee who, in the covered employer's good faith and reasonable judgment, has the skills and experience to perform the work. B. Questions and Answers regarding the Definition of "Qualified Part -Time Employee" Question 1: How does a covered employer determine whether an existing part-time employee is "qualified" for additional hours of work? Answer: Covered employers must use their good faith and reasonable judgment to determine whether an existing part-time employee has the skills and experience to perform the work. Question 2: Are covered employers required to conduct employee reviews of port -time employees to determine if they are qualified for additional hours of work? Answer: No. However, covered employers do need to establish a process for determining which existing part-time employees have the skills and experience to perform the work, and covered employers need to document how they decided which part-time employees were qualified and would be offered additional hours before hiring additional employees or subcontractors, including hiring through the use of temporary services or staffing agencies. US 02-090 — Service Charge A. Definition of "Service Charge" "Service charge" means an automatic charge added to a customer's bill for services related to food, beverages, entertainment, or porterage (e.g., handling luggage). An automatic charge is a service charge when it is a separately designated amount collected from customers that is described in such a way that the customer might reasonably believe that the charge is for the service provided by an employee. Types of service charges may include charges identified as "service charge," "nnandatory gratuity," "delivery charge," or "porterage charge." A mandatory gratuity that is automatically added to a bill, such as a restaurant charge for service for a party of more than a certain number, is a service charge. Service charges paid to an employee are in addition to, and may not count towards, the employee's hourly minimum wage. B. Questions and Answers garding Service Charges Question 1: Do employers have to pay service charges to employees? Answer: Employers must pay employees all service charges as defined under RCW 49,46.160 except those that, pursuant to RCW 49,46.160, are itemized as not being payable to the employee or employees servicing the customer 7 4911-2E63-2340, v. 2 {Ktv154911-2863-2340,2(13175.,000001/) Question 2: If the percentage of the service charge that is paid to the employee is not disclosed in an itemized receipt and in any menu provided to the customer, how much of the service charge must be distributed by the employer to the employee? Answer: If any portion of a service charge is not clearly designated as being retained by the employer, it is due to the employee or employees serving the customer. See Washington State Employment Security Administrative Policy ES.A.12, https://lni.wa.gov/workers- rightsLdocsiesa12.pdf. Question 3: Do service charges paid to an employee count towards the employee's hourly minimum wage? Answer: No. Service charges paid to an employee are in addition to, and may not count o ards, the employee's hourly minimum wage. TLS 02-100 Small Employer A. Definition of "Small Employer" "Small employer" means an employer that meets both of the following criteria: 1) employs fewer than 15 employees regardless of where they are employed; and 2.) has annual gross revenue of $2 million or less in the City of Tukwila. B. Questions and Answers Regarding the Definition of "Small Employer" Question 1: Are exempt employees counted to determine if an employer is a small employer? Answer: No, because Tukwila's definition of "employee" is based on the state definition in RCW 49.46,010, which has numerous exceptions, such as certain casual laborers, overtime -exempt "white collar" workers, volunteers, and others (all sometimes referred to as "exempt employees"), and exempt employees are not included in the employee count for determining whether an employer is a small employer. For details, see TMC 5.63,020.F and the definition of "employee" in RCW 4946.010, TLS 02-110 --Tips A. Definition of "Tips" "Tips" means a verifiable sum to be presented by a customer as a gift or gratuity in recognition of some service performed for the customer by the employee receiving the tip. Where the employer has established a mandatory tip pool or where the employer has agreed to administer a tip pool arrangement that was established by employees amongst themselves to share tips with other employees, only the portion of the tip pool that is allocated to a particular employee is considered to be a tip presented to that employee. Tip pools must comply with state and federal law. 4911-2863-2340, v, 2 11M154911-2863-2340;2/13175,000001/} B. Questions and Answers regarding the Definition of "Tips" Question 1:Do employers have to pay tips to employees? Answer: Employers must pay all tips and gratuities to their employees. Tips may be paid using a tip pool if the tip pool complies with state and federal law. Question 2: Do tips paid to an employee count towards the employee's hourly minimum wage? Answer: No. Tips paid to an employee are in addition to, and may not count towards, the employee's hourly minimum wage. CHAPTER 3: RULES AND PROCEDURES SPECIFIC TO THE MINIMUM WAGE REQUIREMENT TLS 03-010 — Intent This Chapter provides rules and procedures explaining the minimum wage rate requirements. TLS 03-020 —Minimum Wage Rates A. Minimum Wage for Large Employers Effective July 1, 2023, every large employer must pay an hourly wage at least equal to the 2022 living wage in the City of SeaTac, adjusted for inflation. On January 1, 2024, and on each January 1 thereafter, the minimum hourly wage will be adjusted for inflation defined as 100% of the annual average growth rate of the bi-monthly Seattle -Tacoma - Bellevue Area Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W)for the 12-month period ending in August, B. Minimum Wage for Midsize Employers Effective July 1, 2023, the minimum hourly wage applicable to midsize employers is $2 per hour less than that of large employers, From January 1, 2024, through June 30, 2024, the minimum hourly wage for midsize employers will be $2 per hour less than the inflation -adjusted rate applicable to large employers for 2024. Effective July 1, 2024, through December 31, 2024, the minimum wage hourly wage for midsize employers will be $1 per hour less than the inflation -adjusted rate applicable to large employers for 2024. From January 1, 2025, through June 30, 2025, the minimum hourly wage for midsize employers will be $1 per hour less than the inflation -adjusted rate applicable to large employers for 2025, Effective July 1, 2025, the minimum wage hourly wage for midsize employers will be the same rate applicable to large employers, 9 4911-2863-2340. v, 2 {KM54911-2863-2340;2(13175,000001/} C. Other Minimum Wage Requirements Nothing in the Ordinance shall be interpreted or applied so as to create any power or duty in conflict with federal or state law, so employers who are not affected by Tukwila's minimum wage requirements must still follow the state and federal minimum wage laws. D. Questions and Answers regarding Minimum Wage Rates Question 1: How can employers find out what the minimum wage will be for 2024 and subsequent years? Answer: The City's Finance Department will establish and publish the applicable hourly minimum wage rate for the following year by October 15 of each year. The City has posted the minimum wage for 2023 on its website at www.TukwilaWa.gov/MinimumWage. The City anticipates using its website to post the minimum wage in the future. If the link above is broken, or if you would like a copy of the applicable wage rate, contact the City by email at MinimumWage@TukwilaWa,gov. Question 2: Do midsize employers need to adjust their minimum wages on January 1, 2024, and on January 1, 2025, in addition to adjusting them on July 1 of each of those years? Answer: Yes, because midsize employers are required by the Ordinance to pay an hourly wage that is tied to the hourly minimum wage paid by large employers. As a result, when the minimum wage for large employers is adjusted for inflation on January 1, 2024, and on January 1, 2025, the minimum hourly wage for midsize employers needs to be adjusted for inflation too. Question 3: Is the index used by the City of Tukwila to calculate the Tukwila rninli!u different from the index that is used to calculate the state minimum wage? Answer: Yes. The state uses the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), which is the average for U.S. cities, and the City of Tukwila uses the CPI-W for the Seattle -Tacoma -Bellevue Area. CHAPTER 4: RULES AND PROCEDURES SPECIFIC TO THE ADDITIONAL HOURS REQUIREMENT TLS 04-010 — Intent This Chapter is intended to provide rules and procedures to assist employers in implementing the Additional Hours Requirement. in each of the following areas: 1) developing a process for distributing the additional hours of work; 2) the effect of a collective bargaining agreement; and 3) the limitations on when employers need to offer additional hours of work to existing part-time employees, TLS 04-020 — P Employees ocess Distributing Additional Hours of Work to Existing Qualified Part -Time A. Description of Process Covered employers must use a reasonable, transparent, and nondiscriminatory process to distribute the hours of work among their qualified part-time employees before hiring additional 4911-2O63-2340, v. 2 (K M S491.1-2R63.2 340; 2/13175.Q00001/} employees or subcontractors, including hiring through the use of temporary services or staffing agencies. B. Questions and Answers regarding the Process for Distributing Additional Hours of Work to Qualified Part -Time Employees Question 1: Can a covered employer give all the additional hours of work to one qualified part- time employee even though two qualified part-time employees both want to work the additional hours? Answer: It depends on the process used by the employer to distribute the additional hours of work. The process used to distribute the hours among multiple qualified part-time employees must be reasonable, transparent, and nondiscriminatory. Question 2: Do covered employers have to offer an employee additional work hours if the employer would be required to compensate the employee at time -and -a -half or otherpremium rate under any law or collective bargaining agreement? Answer: No. See TMC 5.63.070.B. Question 3: Can an employer offer additional hours or a new position to an existing employee without going through the process in 11.5 04-020? Answer: Yes. The process for distributing additional hours of work to existing qualified part-time employees only applies before a covered employer hires additional employees or subcontractors, including hiring through the use of temporary services or staffing agencies to fill those hours. If a covered employer distributes additional hours to an existing employee or places an existing employee in a vacant or new position, then the Additional Hours Requirement does not apply. Question 4: Can a covered employer post a notice at the worksite or on an intronet to give notice to qualified part-time employees that extra hours are available, or must the employer give notice individually to each qualified employee? Answer: If this method of giving notice is part of a reasonable, transparent, and nondiscriminatory process to distribute the hours of work, then it would be an acceptable way to provide notice. Question 5: What steps are necessary to fulfill the requirement that the process for distributing additional hours is transparent? Answer: The distribution process must be in writing and available for review by existing part-time employees prior to the employer's decision to hire one or more additional employees or subcontractors, including hiring through the use of temporary services or staffing agencies to fill the additional hours of work. The employer must also keep documentation of the process used to distribute the hours of work among existing qualified part-time employees. Question 6: What steps are necessary to fulfill the requirement that the process for distributing additional hours is nondiscriminatory? Answer: The distribution process must not violate any federal, state, or local laws that protect 11 4911-2063-2340, v. 2 PAS4911-2863-2340;2/13175.000000 employees from discrimination. Question 7: How often does a covered employer need to give a notice of availability to qualified existing part-time employees if the covered employer is continually seeking to fil! a covered position, such as due to employee turnover? Answer: Covered employers must offer additional hours of work to qualified existing part-time employees before hiring additional employees or subcontractors, including hiring through the use of temporary services or staffing agencies. TLS 04-030 — Applicability to Collective Bargaining Agreements The Ordinance shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for greater wages or compensation; and nothing in the Ordinance shall be interpreted or applied so as to create any power or duty in conflict with federal or state law See TMC 5,63,10a Collective bargaining agreements are governed by federal and state laws and regulations, so the Additional Hours Requirements must be interpreted and applied so as to not be in conflict with such laws. TLS 04-040 — Limitations on Requirement to Offer Additional Hours of Work to Existing Part -Time Employees A. When Offers of Additional Hours are Not Required Covered employers are not required to offer additional hours of work to existing part-time employees under the following circumstances: 1) the position the employer seeks to fill is not a covered position; 2) the employer fills an open position with an existing employee; 3) the employer distributes additional work hours to existing employees; 4) none of the existing part- time employees meet the criteria for being a "qualified part-time employee;" 5) the additional hours are for work that Is outside the City; 6) the employer rehires an employee after a seasonal interruption of work; and/or 7) offering the additional hours of work to an existing qualified part- time employee would conflict with federal or state law. The circumstances under which covered employers are not required to offer additional hours of work to existing part-time employees set forth in this Subsection A are illustrative and not exclusive, as there may be other circumstances where the Hours Requirement does not apply. B. [Reserved] CHAPTER 5: ENFORCEMENT TLS 05-010 — Intent This Chapter is to provide rules and procedures to assist in understanding: 1) who can bring a civil action to enforce the Ordinance; 2) who can be sued for a violation of the Ordinance; 3) what remedies are available to a person or a class of persons that suffers financial injury as a result of a violation of the Ordinance; 4) the process for submitting a complaint to the City Attorney; and 5) administrative actions 12 4911-2863-2340. v. 2 1W54911-2863=2340;2/13175 000001/1 the City may pursue for violations of the Ordinance. TLS 05-020 — Civil Actions for Violation of the Ordinance A. Criteria for a Civil Action Any person or class of persons that suffers financial injury as a result of a violation of TMC Chapter 5.63 or is the subject of prohibited retaliation under TMC 5.63, or any other individual or entity acting on their behalf, may bring a civil action in a court of competent jurisdiction against the employer or other person violating TMC Chapter 5.63. A civil action must be filed within five years of the date of the violation of TMC Chapter 5.63. B. Questions and Answers regarding Criteria for a Civil Action Question 1: Who can bring a civil action in court an behalf of a person who suffers financial injury as a result of a violation of this Ordinance or is the subject of prohibited retaliation? Answer: An individual or entity acting on behalf of a person or a class of persons that suffers financial injury as a result of a violation of TMC Chapter 5.63 or is the subject of prohibited retaliation under TMC Chapter 5.63. The City Attorney also may, if the City Attorney deems appropriate, initiate legal or other action to remedy any violation of TMC Chapter 5.63. Additionally, the City may, in the exercise of its authority and performance of its functions and services, agree by contract or otherwise to participate jointly or in cooperation with Washington State, King County, or any city, town, or other incorporated place, or subdivision thereof, or engage outside counsel, to enforce TMC Chapter 5.63. Question 2: Who con be sued far er violation of the Ordinance? Answer: A civil action for violation of TMC Chapter 5.63 can be brought against the employer or other person violating TMC Chapter 5.63. "Employer" is defined as set forth in RCW 49.46.010 and TMC 5.63.020. Question 3: What remedies are available in a civil action? Answer: Upon prevailing in a civil action, any person or class of persons that suffers financial injury as a result of a violation of the Ordinance or is the subject of prohibited retaliation under this Ordinance, or any other individual or entity acting on their behalf, shall be awarded reasonable attorney fees and costs and such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any unpaid wages plus interest due to the person and liquidated damages in an additional amount of up to twice the unpaid wages; compensatory damages; and a penalty payable to any aggrieved party of up to $5,000 if the aggrieved party was subject to prohibited retaliation. For the purposes of the Ordinance, Interest shall accrue from the date the unpaid wages were first due at the higher of twelve percent per annum or the maximum rate permitted under RCW 19.52.020. 13 4911-2863-2340, v. 2 (KMS4911-2863-2340;2/1 Question 4:Who inmn"aggrieved party" for the purposes mfthe Ordinance? Answer: An, party" means an employee or other person who suffers tangible or intangible harm due toanemployer orother pemmn^sviolation ofTK8CChapter 5.63. TILS 05-020 — Complaints to the CityAttornex&or Violation of the Ordinance A. Criteria for Complaint to the City Attorney Complaints that any provision of the Ordinance has been violated may also be presented to the City Attorney, who is hereby authorized to investigate and, if they deem appropriate, initiate legal mrother action toremedy any violation ofthe Ordinance. Filing acomplaint with the City Attorney is not prerequisite for filing m civil action. B. Questions and Answers regarding Criteria for a Civil Action Question l`What is the process for submitting ocomplaint mothe City Attorney? Answer: Complaints that the Ordinance has been violated may be presented to the City Attorney by any person who suffers financial injury as a nsub of av|olat|on of the Ordinance oristhe subject ofprohibited retaliation under the Ordinance. Complaints presented tnthe City Attorney must be made in writing on a Complaint Form that will be posted on the City's website (currently wvvvvJuhmUmVVm.gov/&4in|mnunnVVmge). Complaint Forms may besubmitted tnthe City Attorney byU.S.W1ai|addressed'to~OfficeaftheTmkwi|a[ityA1tomey^attheaddress onthe Complaint Form, or as an attachment to an email addressed to Minim umWage@TukwilaWA,gov. AMer1h* City Attorney receives the Complaint Form, the City Attorney, or designee, is authorized but not required to investigate and, if the CityAttorneV deems appropriate, to initiate legal or otheraction to remedy any violation of the Ordinance. The scope of the investigation, if any, shall be determined by the City Attorney- The City Attorney is also authorized but not required to designate representatives, including city contractors and representatives of wnk»mx or worker advocacy organizations, to access the vvorkoitm and review relevant records to invextigate complaints ofnoncompliance. Rthe City Attorney desigma*s,epresentativesasprovidedinMhissection'thedesignation,viUbe made in writing and, upon request, the designee shall immediately provide a copy of such designation to any employer whose worksite the designee is accessing and the owner or lessor of such vvorksbe. Activities undertaken by any such designee shall be specified in u written agreement executed by the City and the designee. Question 2: Under what circumstances would the Ot/ deny, suspend, or revoke o 0camoe for violation of the Ordinance? Answer: The Finance Director may dcoy, suspend, or revoke any license issued under Chapter 5.04 TIVIC for violation of the Ordinance, and the Finance Director must deny, suspend, or revoke any license issued under Chapter 5.04 TIVIC for repeated intentional violations of this Ordinance. seerwcS.cm.zza,The process for denial, suspension, orrevocation is set forth inTKN[5.8¢.Il0.[and TkXC 5.04.110.1)' and the process for appeal of Notice of Denial, Suspension, or Revocation is set forth in TK8[ 5.04.122. The hearing on appeal will be heard by the 0ty'm Hearing Examiner or other hearing body appointed by the Mayor, City Council, or City Attorney, 14 4911-2063e340,,2 Question 3:What administrative actions can the City take for violations ofthe Ordinance? Answer: Per TMC S.63.090.F, the City has the authority to issue administrative citations andto order injunctive relief including reinstatement, restitution, payment of back wages,o,othe,fnnns of nu|ie[ Additionally, under TK4C 5.60.090H' the remedies and penalties provided under the Ordinance are cumulative and are not intended to be exclusive of any other available remedies orpenalties, including existing remedies for enforcement ofTukwila Municipal Code chapters. Question 4: Can the K7t/ take action against an employer ifmm aggrieved person makes m Answer: Yes. The City has the authority to issue administrative citations and to order injunctive relief including reinstatement, restitution, payment of back wages, or other forms of relief. The City may agree by contract ur otherwi5e to participate jointly or ini cooperation with Washington State, King County, or any city, town, or other incorporated place, or subdivision thereof, or engage outside counsel, to enforce the Ordinance. Also, the remedies and penalties provided under TyWCChapter 5.63 are cumulative and are not intended to be exclusive of any other available remedies or penalties, including existing remedies forenforcement of Tukwila Municipal Code chapters. Any violations of TMIC Chapter 5.04 or failure to comply with TIVIC Chapter 5.04 (which includes TM[ 5.04.113 Violations of Minimum VVaQp and Fair Access toAdditional Nwum Regulations), shall be subject to enforcement and penalties as prescribed imTIVIC Chapter 8.45 and the issuance mfaNotice ufViolation inaccordance with T0NC8.4S'O7O. Question5: Whmmremmemployer's options if theyobject to City representatives accessing work sites that the public isnot allowed toaccess, m/if they object to the production for inspection and copying ofrecords omconstitutional grounds? Amuvver; TMC 5.63.090.D requires employers to give authorized City representatives access to work sites and relevant records for the purpose of monitoring compliance with the chapter and investigating complaints of noncompliance, including production for inspection and copying of employment records, This process iscalled ~Discovery.~ |fanemployer reasonably believes that the Discovery sought bVthe authorized City representatives exceeds the scope oftheir authority, the employer can seek review of the Discovery by filing a written objection with the Finance Director, City of Tukwila, 8200 Suuthcen1er Blvd., Tukwila, WA 98188 or by email to N1inirnomVVage@Tukwi|aVVa.gov. Any such objections must be received by the Finance Director within five calendar days after the employer receives notice of the Discovery. The Finance Director or their designee shall respond to the objection within ten business days. The decision of the Finance Director can be appealed by the employer or by the authorized City representatives using the process set forth imTN1C5.84.I2J. CHAPTER 6: EMPLOYER NOTICES, 0ECO0OKEEP|NG, AND COMPLIANCE CERTIFICATION This Chapter iotn provide rules and procedures that explain what motices must be given by covered employers, what records must be maintained for purposes of compliance and enforcement of TIVIC Chapter 5.63, and the steps covered employers must take to certify compliance with TIVIC Chapter 5.63. 15 4911e863-2Wv. 2 mws so.om3-2axn4uazrs/mo0040 A- Written Tukwila Labor Standards Notice tm Employees Employers affected by this Ordinance must provide u copy of the "Tukwila Labor Standards Notice to Employees" to all of their employees who work within the City of Tukwila and to all individuals who work for the affected employer through joint employment ("joint emp|oyeex") within the City ofTukwila no later than June 30' 2023. and at least 30 days prior to any changes in the hourly minimum wage. Additionally, any employees and joint employees who begin working for the affected employer within the City of Tukwila after June 30' 20I3 must be given a copy of the "Tukwila Labor Standards Notice to Employees" then in effect on or before their first day of work within the City of Tukwila. The City will prepare the Tukwila Labor Standards Notice to Employees and post it on the City's vve6xite (currently wwxv.Tukwi|aVVa.8ov/K4in),nun`VVa0e) so that it is available for affected *,np|oym,n to download and distribute prior tothe date itisclue. Any updates o,revisions tothe notice will also 6epublished onthe vvebsite. Affected employers must use the most recent version of the notice that is published on the City's w/e6slte. Distribution of the Tukwila Labor Standards Notice toEmployees shall bmbyone ormore of the following methods: 1)sending the notice via email if the individual, has a work email address that they are required tocheck regularly orapersonal email address that they have provided for the purpose nfreceiving work - related notices; Z) sending the notice via U.S. Mail, postage paid; 3) including the notice with the individua|'s pay stub; or4) physically handing the notice tmthe individual. Affected employers must maintain, documentation of the notice method and date the notice was provided to each individual. hnresponse toany request made byoronbehalf mfanemployee orjoint employee, affected employers are responsible, atthe employer's expense, for accurately translating the Tukwi|aLabor Standards Notice to Employees into a language other than English if necessary to effectively communicate the contents of the notice to the employee(s) and joint ennp|oyee(s), and for providing it in an alternative format for employees and joint employees who have a disability that affects their ability to read or understand the Tukwila Labor Standards Notice to Employees. B. ^TuhxvUa Labor Standards" Poster Affected employers must pasta current "Tukwila Labor Standards" poster in each workplace within the City of Tukwila (unless such workplace is an employee's or joint employee's place of nmWmnoa). This poster must be displayed in m noticeable area atthe workplace, in English and in any other|anguagcis) necessary to effectively communicate with affected employees, The City of Tukwila will prepare the poster and post itonthe [ity's,vebsite(currently wvvwJukwi[nVVa,gov/MinirnwmVVaDe) so that it is available for affected employers to download and post prior to the date of any changes to the minirrum wage. When posted, the poster most be at least B.S^ x 11.~ If the City of Tukwila has not developed u poster in a language that is used by an employer to effectively communicate with its employees, the affected employer must provide, at its expense, accurate translations, interpretations, and accommodations for people with disabilities. 16 C. Questions and Answers regarding the Notice, Requirements Questinml, Do I have to give the written 'Tukwila Labor Standards Notice to to my employees N'the Ordinance does not apply tmany mfnny employees? Answer: No. Question 2: Dn/ have togive the written 'Tukwila Labor Standards Notice toEmployees' twall mmyemployees, /f/mnnmmaffected employer? Answer: Affected employers need to give the notice to all employees (as defined in R[VV 49.46.010) who are working or are scheduled to work within the City of Tukwila, However, if the covered employer prefers to give the notice to a broader group of employees, it is acceptable to do so. Question 3'/amocovered employer with myheadquarters in Seattle, and some of my employees occasionally docon/muctionjo6sw/it6/vfhe(ityofTukwi/u Where should Ipost nnK Answer; Affected employers whodo not have a fixed worksite within the City of Tukwila can post their poster inalocation where their employees who work within the City nfTukwila will see it, such as a breaknoom or an area where they pick up tools and equipment before going into the City to do their work, or on location such as in a job trailer, food truck, or rest area. Additionally, posters can beposted outdoors in awork area ifthey are waterproofed (,�g.,laminated orplaced inasee-through protective covering). TLSO8-W3D—Records Retention Requirements A. Types nfRecords that Must beMaintained Affected employers must maintain the following records for five years or until any litigation or enforcement action brought to enforce the Ordinance has been completed, whichever is longer: I. The "Tukwila Labor 5tandardsNotice to Employees" distributed to individuals (including o copy ofthe notice and the date and method of distribution for each notice, to each person) and the "Tukwila Labor Standards" posters (including copies of the posters and the date posted and location for each poster). 2. Any collective bargaining agreements and any written employee policies and procedures related to requirements under this Ordinance such as, but not limited to, an employee handbook ormanual and their effective dates. 3 List of current and former employees who work or have worked in the City of Tukwila during the prior five years, including their position, phone number, physical address, and personal email (if any). 4. Records of any employee discipline, warnings' performance improvement plans, demotions, reassignments, and pay rate orsalary changes, S. Records nfany adverse action asthat term isused imYM[&63.00O. G. Statement of the number of employees employed per year worldwide for each of the previous five calendar years, 17 4911'2863-23*0v,2 7. For each employee who works orhas worked within the City ofTukwila imthe last five years, all records listed inR[VV49.46.07Oand VVA[296-1284]1O. 8. For all employees that perform any work in the City, records of tips, and service charges, and documentation ofany tip pools. 9. All records and other materials received, used, and/or considered in making employment decisions relating tocovered positions. 10. All hiring policies that apply to covered positions. ILAll job postings and job applications for covered positions. 12. KXaxn communications to qualified part-time employees regarding the availability of additional hours mfwork. 11 Notices of additional hours of work made to, qualified part-time employee5 pursuant to Txu[Chapter 5.G3. 14, Documentation of requests from qualified part-time employees for additional hours of work. 15. Documentation showing that a qualified part-time employee declined an offer of additional hours mfwork. 16. Documentation establishing that the process used to distribute additional hours of work among existing qualified part-time employees is reasonable, transparent, and nondiscriminatory. 17. All records used by the employer to calculate the number of employers for employee classification purposes. 10. All records used by the employer to determine if separate entities will be considered a single employer for the purposes ofemployer classification. 19. For employers who are franchisees, records that establish whether or not the franchisee is associated with a franchisor or network offranchisees with franchisees that employ more than SU0employees inthe aggregate. 20. All records used hythe employer tocalculate gross revenue. 31. Any records not listed above that the employer is required to maintain under any other Washington state orfederal law related tmlabor and employment. B. Questions and Answers regarding Recordkeeping Question 1`Do I have to keep the records described in TLS 06-030.A if I am not an affected ,Answer: Each affected employer shall retain records as required by RCVV 48.46.070\ as well as such information as the City may require, which includes all of the information in TLS 86-030.4. See TK4[5.G3.US8.C. Question Z:What are the consequence described above? covered employer does not keep all ofthe records Answer: As noted in TIVIC 5.63.090.C, "If an employer fails to retain such records,there shall bea presumption, rebuttable by clear and convincing evidence, that the employer violated this chapter for the periods and for each employee for whom records were not retained.- QwesNon3,0wcovered employers have tmkeep any records that are not listed above? Answer: Employers may have additional obligations to preserve records that are not listed above, 18 *911-2863-2340.n 2 such as to respond to discovery requests in litigation. Any such recordkeeping requirements are beyond the scope of this Rule. TB 06-040 — Certification Requirements A. Annual Certification TMC 5.63,110 requires employers to annually certify their compliance with TMC Chapter 5.63. The annual certification shall be made using a form provided or approved by the City, which shall be available on the City's website (currently www.TukwilaWa.gov/MinimumWage). Certifications shall be in the form of an unsworn declaration as defined in RCW 5.50.010 and shall include information that the City of Tukwila Finance Director in consultation with the City Attorney determines in their discretion to be appropriate for purposes of certifying compliance with TMC Chapter 5.63. The form of certification may be revised or updated by the City of Tukwila Finance Director in consultation with the City Attorney at any time by posting the updated or revised form on the City's website. Certifications must be received by the City of Tukwila Finance Department no later than January 31 for the previous calendar year. Affected employers who do not timely file their annual certification form are subject to the enforcement provisions set forth in TMC 5.63.090. B. Certification upon Request Upon request made by the City of Tukwila Finance Director, the City Attorney, or their authorized representative, any employer who is requested to do so shall furnish to the City of Tukwila Finance Director, to the City Attorney, or to their authorized representative a certification of compliance upon forms prescribed or approved by the City of Tukwila Finance Director or the City Attorney. Such certifications are part of the information the City may require to confirm and/or monitor compliance with TMC Chapter 5.63. .See TMC 5.63. 090.0 and TMC 5.63.090.D. C. Questions and Answers regarding Certification Question 1: How do employers transmit the certification of compliance forms to the City? Answer: There are three ways to transmit the certification form to the City: 1) sign and return the original Certificate of Compliance to the City of Tukwila Finance Department, 6200 Southcenter Blvd., Tukwila, WA 98188; 2) go to the City's website (currently www.TukwilaWa.gov/MinimumWage) and look for the option to submit it online and sign it using DocuSign; or 3) email a signed copy of the form to MinimumWage@TukwilaWa.gov (please note that email s less secure than DocuSign). Any changes regarding how to file the Certificate of Compliance form will be listed on the form and will be available on the City`s website (currently www.TukwilaWa.gov/M inimumWage). Question 2: Can you provide examples of some circumstances where the Finance Director, City Attorney, or their authorized representative might make a specific request for certification? Answer: For example, a specific request for certification may be made if there is a concern that an annual Certificate of Compliance on file with the City is not accurate or complete, or if there is a concern that an employer may have inaccurately self -determined that it is not an affected employer. There may also be other situations as well; these are just some illustrative examples. 19 4911-2863-2340, v. 2 (kM$4911,-2863-2340;2/13175,0000014