by Gregory Williams, Esq. | Under Washington State Human Rights Commission (WSHRC) Employment Regulations, what are the rules concerning jurisdiction–counting the number of persons employed? Here’s my point of view. (NOTE: please read our DISCLAIMER before proceeding).
THE STATUTORY AUTHORITY (RCW)
RCW 49.60.120(3) is the statutory authority enabling the WSHRC to adopt rules concerning jurisdiction (counting the number of persons employed). See WAC 162-16-220, WA State Legislature Website (bottom of page body). The statute declares that the WSHRC has “the function[ ], power[ ], and dut[y] … [t]o adopt, amend, and rescind suitable rules to carry out the provisions of this chapter, and the policies and practices of the commission in connection therewith.” RCW 49.60.120(3) (hyperlinks added).
JURISDICTION — COUNTING THE NUMBER OF PERSONS EMPLOYED
WAC 162-16-220 is the relevant regulation, and it addresses jurisdiction (counting the number of persons employed) as follows:
(1) Purpose and scope. RCW 49.60.040 defines “employer” for purposes of the law against discrimination in part as “any person . . . who employs eight or more persons.” This section establishes standards for determining who is counted as employed when deciding whether a person is an employer. The standards in this section do not define who is entitled to the protection of the law against discrimination.
(2) Time of calculation. A person will be considered to have employed eight if the person either:
(a) Had an employment relationship with eight or more persons for any part of the day on which the unfair practice is alleged to have occurred, or did occur; or
(b) Had an employment relationship with an average of eight or more persons over a representative period of time including the time when the unfair practice is alleged to have occurred.
An employment relationship is most readily demonstrated by a person’s appearance on the employer’s payroll. The representative period of time for (b) of this subsection will ordinarily be the twenty weeks prior to and including the date on which the unfair practice is alleged to have occurred. However, where this period will not accurately reflect the overall employment level, as in a seasonal industry, we will use the month during which the unfair practice is alleged to have occurred plus the preceding eleven months.
(3) Part-time employees. A person working part time will be counted the same as a person working full-time. Persons subject to call to work (such as volunteer firefighters) will be considered to be employed at all times when they are subject to call.
(4) Area of calculation. A person who employs eight or more persons is an “employer” for purposes of the law against discrimination even though less than eight of the employees are located in the state of Washington.
(5) Multiple places of employment. The count will include all persons employed by the same legal entity, whether or not the persons work in the same place of business or line of business.
(6) Connected corporations. Corporations and other artificial persons that are in common ownership or are in a parent-subsidiary relationship will be treated as separate employers unless the entities are managed in common in the area of employment policy and personnel management. In determining whether there is management in common we will consider whether the same individual or individuals do the managing, whether employees are transferred from one entity to another, whether hiring is done centrally for all corporations, and similar evidence of common or separate management.
(7) Persons on layoff. Persons on layoff will not be counted.
(8) Persons on leave. Persons on paid leave will be counted. Persons on unpaid leave will not be counted.
(9) Employee or independent contractor. Independent contractors will not be counted. In determining whether a person is employed or is an independent contractor for the jurisdictional count we will use the same standards that we use for the purpose of determining whether a person comes within the protection of the law against discrimination. These standards are set out in WAC 162-16-230.
(10) Pay. Anyone who is paid for work and who otherwise meets the standards in this section will be counted. This includes paid interns and work study program participants. Pay includes compensation for work by the hour, by commission, by piecework, or by any other measure. For the treatment of unpaid persons, see subsection (11) of this section.
(11) Unpaid persons. An unpaid person will be counted if he or she is generally treated in the manner that employers treat employees. That is, if management selects the person (particularly if selected in competition with other persons), assigns work hours, disciplines the unpaid person like an employee, or provides employment benefits such as industrial insurance, then the person will be counted as an employee. The typical volunteer firefighter would be counted. A person who comes into the food bank when he or she pleases, is put to work if there is anything to do, who leaves when he or she pleases, who has no expectation of paid employment, and who receives no employment benefits, would not be counted.
(12) Family members. Because of the definition of “employee” in RCW 49.60.040, we will not count “any individual employed by his or her parents, spouse, or child.” Other family members will be counted.
(13) Domestic help. Because of the definition of “employee” in RCW 49.60.040, we will not count a person in the domestic service of the employing person.
(14) Directors. Directors of corporations, and similar officers of other private or public artificial legal entities, will not be counted simply because they serve in that capacity.
(15) Officers. Officers of corporations, and officers of other private or public artificial legal entities, will be counted unless:
(a) They receive no pay from the corporation or other entity; and
(b) They do not participate in the management of the corporation or other entity beyond participation in formal meetings of the officers.
(16) Partners. Partners will not be counted as employed by the partnership or by each other.
(17) Members of a professional service corporation. All persons who render professional services for a professional service corporation will be counted as employees of the corporation.
(18) Temporary employee placement services. Persons placed with an on-site employer by a temporary employee placement service:
(a) Will be counted as employees of the temporary placement service; and
(b) Will also be counted as employees of the on-site employer if the on-site employer generally treated them in the manner that employers treat employees (please see the factors listed in WAC 162-16-230).
WAC 162-16-220 (emphasis added) (hyperlinks added).
LEARN MORE
If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with Law Office of Gregory A. Williams, P.S., Inc.; Williams Law Group, PS; or the author of this article. Please see our DISCLAIMER.
–gw
