Seattle Unpaid Overtime Attorney
Disclaimer: The information on this website does not, and is not intended to constitute legal advice. All information on this site is for general information purposes. No reader of this site should act or refrain from acting on the basis of information provided on this site without seeking legal advice from counsel.
Ed Hones is an employment lawyer in Seattle, Washington, who represents victims of wage theft and unpaid overtime. The purpose of this page is to provide workers with an easy-to-digest legal framework for Washington’s overtime laws, and to also provide answers to common questions that workers have about overtime. If you believe you were a victim of unpaid overtime, contact Hones Law for a free consultation.
Overview of overtime law in Washington
Under Washington State’s Minimum Wage Act, nonexempt employees must receive at least 1.5 times their hourly rate for each hour worked over 40 in a seven-day workweek.1
Put simply, if you are an hourly worker, and you work more than 40 hours in a week, your employer must pay you overtime.
However, employers are not required to pay overtime to certain “exempt” employees or independent contractors.
Who is exempt from overtime pay in washington state?
Washington’s overtime requirements do not apply to exempt employees or independent contractors. Exemption classifications in Washington are as follows:
- Executive.
- Administrative.
- Professional.
- Outside salespeople.
- Computer professionals.
- Domestic employees in or about a private home.
- Volunteers.
- Newspaper vendors.
- Seamen on foreign vessels.
- Airline employees.
- Independent contractors.*
*Independent contractors are not considered “employees” in Washington, and are thus not afforded the protections of the Minimum Wage Act because the act applies to “employees.”
Table of Contents
Washington state exempt employee laws explained
Washington’s overtime requirements do not apply to exempt employees. The primary classifications for exempt employees are as follows: (1) Executive, (2) Administrative, (3) Professional, (4) Computer Professionals, and (5) Outside Salespeople.
Executive
Employees are executive, and thus exempt from overtime requirements if they meet the following criteria:
- Paid on a salary basis at an amount greater than minimum wage (specific amount changes every year and can be found here);
- Manages the business, a department, or subdivision;
- Regularly supervises two or more workers;
- Hires or fires other employees (or recommends hiring or firing); and
- Regularly exercises discretion.
Furthermore, an employee is an executive if they own at least a 20% equity interest in the enterprise.
(WAC 296-128-510)
Administrative
Employees are administrative, and thus exempt from overtime if they meet the following criteria:
- Paid on a salary basis at an amount greater than minimum wage (the specific amount changes every year and can be found here);
- Performs office work related to management or business operations of the employer; and
- Regularly exercises discretion and independent judgment;
Professional
Employees are professional, and thus exempt from overtime if they meet the following criteria:
- Paid on a salary basis at an amount greater than minimum wage (see WAC 296-128-545 for specific amount);
- Work requires consistent exercise of discretion and judgment;
- Work is predominantly intellectual and varied in character;
- Work requires advanced knowledge or specialization, like an advanced degree; OR
- Work is inventive, imaginative, original, or requires talent in an artistic or creative endeavor, like acting; OR
- Teaching or instructing in an educational establishment.
(WAC 296-128-530)
Computer Professional
Employees are computer professionals, and thus exempt from overtime requirements if they meet the following criteria:
- Employed as a computer systems analyst, computer programmer, software engineer;
- Duties require a high level of knowledge and skill; and
- Meets certain salary requirements (see WAC 296-128-535 for the specific amount that changes every year).
(WAC 296-128-535)
Outside Salespeople
Employees are outside salespeople, and thus exempt from overtime if they meet the following criteria:
- Paid by the employer on a guaranteed salary, commission, or fee basis;
- Duties include making sales, or obtaining orders, or securing contracts for service;
- Regularly works away from the employer’s place of business in performing those sales duties; and
- Employer advised worker of their status as an “outside salesperson;”
(WAC 296-128-540)
Independent contractors in Washington
Independent contractors are also exempt from Washington’s overtime requirements, but for a different reason than the other exemptions. Independent contractors are not considered “employees.” And because the act only protects “employees,” the act doesn’t apply to independent contractors.
So, how do you know if you are an independent contractor?
Economic-dependence test
In Washington State, courts use the “economic-dependence test” to determine whether a worker is an employee or independent contractor under the Minimum Wage Act. The test focuses on whether “as a matter of economic reality,” the worker is “economically dependent upon the employer or is instead in business for himself.”2
Workers that are economically dependent on the employer are employees. However, workers that are in business for themselves are independent contractors.
Although Washington courts haven’t provided a clear rule yet to determine what constitutes “in business for himself,” courts consider the following factors:
- Does the employer exercise control over your work?
- Do you use your own equipment?
- Does the employer determine your profit or loss?
- How much skill or initiative does your job require?
- How permanent is your relationship with the employer?
Common overtime issues in Washington
Workers cannot waive their overtime
Washington employers’ duty to pay overtime is mandatory. That means that if a non-exempt employee works overtime, their employer must pay it, even if the worker supposedly “waived” the overtime.
However, workers can request to receive time off instead of receiving overtime pay if the worker so chooses (and the employer agrees).3
Irregular workweek
What if you work more than 40 hours in a week, but it’s not in the same Monday through Friday workweek? The answer: Overtime still applies.
In Washington, a workweek is a fixed period of any seven consecutive days. It may begin on any day at any hour and is not required to coincide with a calendar week.4
Rest periods
Rest periods are part of your working hours. In Washington, employers must provide non-exempt employees paid rest periods of at least 10 minutes for every four hours worked.5
Meal Breaks
Meal breaks are sometimes part of your working hours, but not always.
In Washington, if an employer requires a worker to remain on duty during the worker’s meal break, courts consider that meal break “hours worked,” and the employer must pay the worker for that time.6
However, if employees are free of all work duties while taking their meal break, that break is on the worker’s time, not the employer’s.7
On-Call time
Under Washington law, whether an employee’s time on-call is considered part of their working hours depends on a couple things as follows:
- Does the worker have to remain on or close to the employer’s premises?
- Can the worker use the time effectively for their own purpose?
If the worker has to remain on or close to the employer’s premises such that the worker can’t make use of the time for their own purpose, the time is considered working hours. However, if the worker is not required to remain on the employer’s premises and is rather only required to tell the employer where the worker can be reached, the time is not working hours.8
Travel
In Washington, time spent traveling to and from work is generally NOT considered “hours worked.” However, under certain circumstances, a worker’s commute may constitute “hours worked.” In determining whether travel time constitutes “hours worked,” Washington courts examine the following factors:
- Whether the worker is using a company vehicle,
- Whether the worker is permitted to make personal stops,
- Whether the worker must respond to company calls,
- Whether the worker must maintain contact with the employer,
- How often the worker receives assignments at home and spends time writing down instructions and mapping out routes.
Checking emails, voicemails, and assignments at home
Is the time you spend at home checking emails, voicemails, and assignments considered working hours? The answer is “maybe,” and you should talk to an overtime lawyer if that sounds like your situation. I’ll discuss why below.
Washington courts have not yet addressed whether time spent checking emails, voicemail, or assignments at home counts as “hours worked.” (as of writing this in Sept., 2021).
However, Washington courts tend to favor employees when determining the scope of hours worked. For example, the Supreme Court of Washington held that time spent commuting by security company installers and technicians in the employer’s vehicle, during which employees checked assignments, was considered hours worked because the employer’s vehicle can be considered part of the employer’s prescribed workplace.9
If your employer requires you to check email, voicemail, or assignments at home, talk to an overtime lawyer to find out if you are working overtime and deserve overtime pay.
What happens if your job doesn't pay you overtime?
Any employer or former employer that violates Washington’s overtime laws faces the following penalties:
So, what constitutes a willful violation?
Willful violations
Under Washington law, employees are entitled to double damages when their employer’s violation is willful.13 So, what does “willful” mean in terms of unpaid overtime? I’ll explain.
Willful violations exist when an employer withholds overtime with an intent to deprive the worker of his/her/their wages.14 That means that the employer knew it was withholding overtime and did it anyway.
However, an employer does not willfully violate Washington’s overtime requirement if the employer has a genuine dispute about the unpaid wages.15
For instance, if an employer deducts a disputed debt from the worker’s wages, the employer has not willfully withheld wages because the employer has a genuine dispute about the wages it owes.16
How much are overtime claims worth?
A worker with a valid unpaid overtime claim can recover the amount of overtime their employer failed to pay them. However, as noted above, the amount the worker can recover doubles if the employer willfully withheld the overtime. That amount adds up fast.
For example, let’s say John Doe works for ABC Company for Seattle’s minimum wage of $15/hour. Each day, John shows up to work at 8 a.m. and clocks out at 4:30 p.m. But John is required to remain on-duty during his 30-minute lunch break, so John’s lunch break counts as “hours worked.”
In that scenario, John is working eight and a half hours every day, or two and half hours of overtime each week. Over a three year period, John accrues 390 hours of unpaid overtime, which amounts to $8,775 of unpaid overtime (1.5 times his hourly pay for 390 hours).
Furthermore, if John’s employer’s violation was willful, John is entitled to double damages, or $17,550.
How will an overtime lawyer prove your case?
In order to prove your case, your overtime lawyer will first need to collect documents showing your hours worked. These documents may include:
- Work schedule,
- Time sheets,
- Pay stubs,
- Employment contracts,
- Any evidence you have that shows you worked more than 40 hours in a week.
If after collecting the evidence, the lawyer determines you have a good chance of succeeding on your claim, the lawyer will likely take your case and do the following:
- Send a demand letter to your employer.
- If no settlement is reached after the demand letter, your lawyer will file a lawsuit.
- During the pretrial procedure, your lawyer will build your case by conducting discovery.
- If your employer still refuses to pay your overtime, the lawyer will proceed to trial and let a jury decide.
What is the statute of limitations for an overtime violation?
The statute of limitations is the deadline to file your claim. If you fail to meet the statute of limitations deadline, your claim expires.
The statute of limitations varies depending on what kind of claim you file and where you file it.
Washington’s statute of limitations
The statute of limitations for actions involving unpaid wages is THREE YEARS.17
Federal statute of limitations
Overtime payment is also protected by the FLSA, which is federal law. If you choose to file your claim under the FLSA, you must file within TWO YEARS. If however, your claim involves a willful violation, you have THREE YEARS to file your claim under the FLSA.18
Employment Law is my Singular focus
If you were the victim of unpaid overtime, you need an overtime attorney who knows the practice area well and can get you compensation.
I am an overtime lawyer in Seattle, Washington, who focuses on one area of law so that you can rest assured that your case is in the right hands.
Contact Hones Law today for a free consultation.
- RCW 49.46.130(1)
- Alfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 869, 281 P.3d 289, 298 (2012).
- WAC 296-128-560
- WAC 296-128-015(2)
- WAC 296-126-092
- WAC 296-126-092
- WAC 296-126-092
- Wash. Lab. & Indus. Admin. Pol'y ES.C.2(8) (2008)
- Stevens v. Brinks Home Sec., Inc., 169 P.3d 473, 477 (Wash. 2007).
- RCW 49.48.030 & 49.46.090(1)
- RCW 49.48.030 & 49.46.090(1)
- RCW 49.52.070
- RCW 49.52.070
- Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 158, 961 P.2d 371, 374 (1998)
- Allstot v. Edwards, 144 Wn.App. 625, 634, 60 P.3d 601, 605 (2002)
- Allstot v. Edwards, 144 Wn.App. 625, 634, 60 P.3d 601, 605 (2002)
- RCW 4.16.080(2)
- 29 U.S.C.A. § 255