Chapter 5.15 MINIMUM WAGE ORDINANCE

Chapter 5.15
MINIMUM WAGE ORDINANCE¹ Revised 5/24 Revised 11/24

Sections:

5.15.050 Definitions. Revised 5/24 Revised 11/24

5.15.100 Employment. Revised 5/24 Revised 11/24

5.15.110 Schedule and employer determination. Revised 5/24 Revised 11/24

5.15.160 Minors, apprentices, and special certificates. Revised 5/24 Revised 11/24

5.15.170 Burien hourly minimum wage for Level 1 employers. Revised 5/24 Revised 11/24

5.15.180 Burien hourly minimum wage for Level 2 employers. Revised 5/24 Revised 11/24

5.15.190 Total compensation. Revised 5/24 Revised 11/24

5.15.200 Notice to employees. Revised 5/24 Revised 11/24

5.15.210 Employer records. Revised 5/24 Revised 11/24

5.15.220 Retaliation is prohibited. Revised 5/24 Revised 11/24

5.15.230 Violation. Revised 5/24 Revised 11/24

5.15.240 Enforcement and notice requirement. Revised 5/24 Revised 11/24

5.15.250 Failure to pay wages or wage theft. Revised 5/24 Revised 11/24

5.15.050 Definitions. Revised 5/24 Revised 11/24

For purposes of this chapter:

“Bonuses” means nondiscretionary payments in addition to commission, hourly, piece-rate, or salary paid under an agreement by an employer to an employee;

“Business” and “engaging in business” have the same meanings as in BMC 5.05.050;

“Commissions” means money paid to an employee upon completion of a task, usually selling a certain amount of goods or services;

“Employ” has the same meaning as in RCW 49.46.010(2);

“Employee” has the same meaning as in RCW 49.46.010(3), including but not limited to full-time and part-time employees or equivalents and temporary and seasonal workers. An employer has the burden of proving that a person is not an employee if an employee makes that assertion;

“Employer” has the same meaning as in RCW 49.46.010(4), and an employer may be one of multiple employers if employment by one employer is not completely disassociated from employment by the other employer;

“Franchise” means a written agreement by which:

(a) A person is granted the right to engage in the business of offering, selling, or distributing goods or services under a marketing plan prescribed or suggested in substantial part by the grantor or its affiliate;

(b) The business operation is substantially associated with advertising, a commercial symbol, service mark, a trademark, or trade name; designating, owned by, or licensed by the grantor or its affiliate; and

“Franchisee” means an entity to whom a franchise is granted or possessed;

“Franchisor” means an entity that grants a franchise;

“Full-time equivalent” means counting everyone’s hours divided by whatever number of hours the state defines as a full-time employee;

“Hourly minimum compensation” means the minimum compensation due to an employee for each hour worked during a pay period;

“Hourly minimum wage” means the minimum wage due to an employee for each hour worked during a pay period;

“Level 1 employer” means all employers, including franchisees, that employ 500 or more full-time equivalents (FTEs) in King County or franchisors who employ 500 or more FTEs in the aggregate;

“Level 2 employer” means all employers, including franchisees, that employ 21 to 499 full-time equivalents (FTEs) in King County;

“Level 3 employer” means all employers with 20 or fewer full-time equivalents (FTEs). Employers with 20 or fewer FTEs are exempt from this chapter;

“Medical benefits plan” means medical care (focused on treating illnesses and injuries) and health care (focused on promoting health and preventing illnesses and injuries);

“Minimum compensation” means the minimum wage in addition to received employee tips and reported to the Internal Revenue Service, and money paid by the employer towards an individual employee’s medical benefits plan;

“Minimum wage” means all bonuses, commissions, piece-rate, and wages received by the employee and reported to the Internal Revenue Service;

“Piece-rate” means a price paid per unit of work;

“Retaliation” means denying a job or promotion, demoting, terminating, failing to rehire after a seasonal interruption of work, threatening, penalizing, embarrassing, negatively responding to an employee’s efforts to enforce their rights or utilize this chapter, engaging in unfair immigration-related practices, filing a false report with a government agency, changing an employee’s status to a nonemployee, or otherwise discriminating against any person for any prohibited or unlawful reason. “Retaliation” for an employee may involve any aspect of employment, including pay, benefits, work hours, responsibilities, or other material changes in the terms and conditions of employment;

“RCW” or “Revised Code of Washington” means as the statute exists or may be amended;

“Successor” means any entity to whom an employer conveys all or a major part of the employer’s business, whether real or personal property, tangible or intangible, by disposing, exchanging, quitting, retiring, or selling the business only if it is not in the ordinary course of the employer’s business. For purposes of this definition, “entity” means an individual, administrator, or any legal or commercial entity;

“Tip(s)” means a verifiable sum presented by a customer to an employee as a gift or gratuity in recognition of some service performed by an employee for the customer;

“Wage(s)” has the same meaning as in RCW 49.46.010(7); bonuses, commissions, and piece-rate are included in wages. [Ord. 856 § 1, 2024; Ord. 855 § 2, 2024; Ord. 837 § 2, 2024]

5.15.100 Employment. Revised 5/24 Revised 11/24

(1) Subject to subsection (2) of this section, employees are covered by this chapter for each hour worked within Burien’s geographic boundaries.

(2) An employee who typically works outside Burien and performs work in Burien occasionally is covered by this chapter in a two-week period only if the employee works more than two hours for an employer within Burien during that period.

(a) To track the time of employees who occasionally work in Burien, employers must use consecutive two-week periods in sequence as they occur. Employers shall not skip or shift two-week periods.

(b) Once an employee who occasionally works in Burien performs more than two hours of work for an employer within Burien during a two-week period, payment for all time worked in Burien during that two-week period shall be made in compliance with the requirements of this chapter.

(c) This chapter does not cover the time spent in Burien solely to travel through Burien from another municipality to someplace other than Burien, with no employment-related or commercial stops in Burien or to eat, refuel, or for a personal errand. [Ord. 855 § 3, 2024; Ord. 837 § 3, 2024]

5.15.110 Schedule and employer determination. Revised 5/24 Revised 11/24

(1) Employers with 20 or fewer FTEs are exempt from this chapter. An employee not covered by this chapter shall be included in any determination of the employer size.

(2) Determining the Number of Employees. The determination of employer schedule for the current calendar year will be calculated using the average number of employees who worked for compensation per calendar week during the preceding calendar year for any and all weeks during which at least one employee worked for compensation. If an employer did not have any employees during the previous calendar year, the employer schedule would be calculated based on the average number of employees who worked for compensation per calendar week during the first 90 calendar days of the current year in which the employer engaged in business.

(3) Entitled to Compensation. All employees who worked for compensation shall be counted, including but not limited to:

(a) Employees who worked inside Burien;

(b) Employees who worked outside Burien for a Burien business or entity; and

(c) Employees who worked temporarily in full-time, part-time, or joint employment or through “temp” services, staffing agencies, or a similar entity.

(4) Separate or Integrated Employer. In determining the size of a franchise or business, separate legal entities that form an integrated enterprise are a single employer under this chapter. Factors to make this assessment include, but are not limited to:

(a) Degree of interrelation between the entities’ operations;

(b) Degree of board or shared upper-level management;

(d) Degree of common ownership or financial control.

(5) Separate Employer Presumption. There shall be a presumption that separate legal entities, which may share some degree of interrelated operations and common management, shall not be an integrated enterprise and be considered separate employers under this chapter if the separate legal entities:

(a) Operate in separate and distinct physical locations from one another; and

(b) Have a different majority controlling interest ownership. [Ord. 855 § 4, 2024; Ord. 837 § 4, 2024]

5.15.160 Minors, apprentices, and special certificates. Revised 5/24 Revised 11/24

(1) An employer may only pay less than the Burien minimum wage if permitted by Chapter 49.46 RCW and Chapter 296-128 WAC, and as to learners, apprentices, messengers, and persons who are mentally or physically challenged.

(2) An employer may only employ a minor under 14 if the employer complies with all Labor and Industries (L&I) and WAC 296-128-400 requirements, including, but not limited to, obtaining the necessary permissions and a minor work permit.

(3) Under RCW 49.12.110 and 49.46.170, and related laws or guidance, employees “with a disability to such a degree that the employee is unable to obtain employment in the competitive labor market, or to a trainee or learner not otherwise subject to the jurisdiction of the apprenticeship council, a special certificate or permit authorizing the employment of such employee for a wage less than the legal minimum wage; and the director shall fix the minimum wage for said person, such special certificate or permit to be issued only in such cases as the director may decide the same is applied for in good faith and that such certificate or permit shall be in force for such length of time as the director shall decide and determine is proper.” The applicable RCW definitions shall apply to this subsection. [Ord. 855 § 5, 2024; Ord. 837 § 5, 2024]

5.15.170 Burien hourly minimum wage for Level 1 employers. Revised 5/24 Revised 11/24

Effective January 1, 2025, at 12:01 a.m., Level 1 employers shall pay each employee an hourly minimum wage of at least $4.50 over the Washington State hourly minimum wage. Each time that the Washington State hourly minimum wage increases for inflation, the Burien hourly minimum wage shall adjust to remain $4.50 over the state minimum wage unless or until the Washington State minimum wage exceeds the hourly livable wage for a single adult with one child. [Ord. 855 § 6, 2024; Ord. 837 § 6, 2024]

5.15.180 Burien hourly minimum wage for Level 2 employers. Revised 5/24 Revised 11/24

Effective July 1, 2025, at 12:01 a.m., Level 2 employers shall pay each employee an hourly minimum wage of at least $3.50 over the Washington State hourly minimum wage. Each time that the Washington State hourly minimum wage increases for inflation, the Burien minimum wage shall adjust to remain $3.50 over the state minimum wage unless or until the Washington State minimum wage exceeds the hourly livable wage for a single adult with one child. [Ord. 855 § 7, 2024; Ord. 837 § 7, 2024]

5.15.190 Total compensation. Revised 5/24 Revised 11/24

Wages, as defined above, shall not include tips and medical benefits plans for the state level of the minimum wage, but for the Burien-required additional minimum wage under this chapter employers may, but are not required to, include tips and medical benefits plan expenses as a part of the Burien-required additional minimum wage if the employer meets the applicable state and Burien minimum wage requirements. [Ord. 855 § 8, 2024; Ord. 837 § 8, 2024]

5.15.200 Notice to employees. Revised 5/24 Revised 11/24

(1) Annually, on or by January 1st of each year, Burien will create or make available for printing or copying for posting a poster to inform employees in Burien of their rights concerning the Burien minimum wage. To the degree economically and practically feasible, Burien will make available for printing or copying for posting a notice in English, Spanish, Vietnamese, and possibly other languages.

(2) Employers shall display the Burien minimum wage notice poster in a conspicuous and accessible place at every workplace or job site where their employees work. Employers shall display the poster in English and the primary language of the employee(s) at the particular workplace. If displaying the notice poster is infeasible, such as when employees work remotely or do not have a regular workplace or job site, employers must give the notice poster to each such employee in their primary language in a physical or electronic format that is reasonably conspicuous and accessible.

(3) The poster shall give notice of an employee’s right to:

(a) The Burien minimum wage under this chapter;

(b) Not suffer retaliation for seeking benefits of this chapter;

(d) Bring a private action after giving the business 45 days’ notice of the claim or discrepancy as required by this chapter. [Ord. 855 § 9, 2024; Ord. 837 § 9, 2024]

5.15.210 Employer records. Revised 5/24 Revised 11/24

Each employer shall retain records documenting minimum wages and compensation paid to each employee as required by L&I, Chapter 49.12 RCW, and related laws. [Ord. 855 § 10, 2024; Ord. 837 § 10, 2024]

5.15.220 Retaliation is prohibited. Revised 5/24 Revised 11/24

(1) No employer or any other person shall interfere with, restrain, deny, or attempt to deny an employee the protections under this chapter or to prevent the employee from exercising the employee’s rights provided or protected under this chapter or any applicable law, including but not limited to Chapters 43.22 (Department of Labor and Industries), 49.12 (Industrial Welfare), 49.46 (Minimum wage requirements and labor standards), and 49.48 RCW (Wages – Payment – Collection).

(2) No employer or any other person shall retaliate against any person who attempts to avail themselves of the rights provided or protected under this chapter, including but not limited to requesting information regarding Burien’s minimum wage or this chapter; sharing such information or informing others about this chapter and/or related protections under the law; requesting the Burien minimum wage or pursuing the minimum wage by request, grievance, complaint, or dispute resolution and taking actions related to such efforts; or any person that whistleblows or refuses to assist in what is or appears to be an effort to violate this chapter or any related law. Prohibited retaliation could be termination, demotion, reduced hours, a change in responsibility or authority, a demand for inappropriate favors, or reporting or communicating that the person in this subsection (2), or a family member, close friend, partner, fiancé, or similarly significant person is not lawfully in the United States or has or may have actual or suspected citizenship or immigration status concerns.

(3) Rebuttable Presumption – Full-Time and Part-Time Employees. There shall be a rebuttable presumption of retaliation if an employer or any employer agent or representative retaliates against an employee within 90 days of the employee exercising their rights under this chapter. The employer may rebut the presumption of retaliation with clear and convincing evidence that the decision or action was not retaliation and was taken for a permissible purpose.

(4) Rebuttable Presumption – Current Seasonal Employees. There shall be a rebuttable presumption of retaliation if an employer or any employer agent or representative retaliates against a seasonal worker before the seasonal worker finishes their seasonal work if the retaliation occurs within 90 days of the seasonal employee exercising their rights under this chapter. The employer may rebut the presumption of retaliation against a currently employed seasonal worker with clear and convincing evidence that the decision or action was not retaliation and was taken for a permissible purpose.

(5) Rebuttable Presumption – Former Seasonal Employees. There shall be a rebuttable presumption of retaliation if an employer or any employer agent or representative retaliates by failing to rehire a former seasonal employee who exercised their rights under this chapter at the next opportunity for work in the same position. The employer may rebut the presumption of retaliation for failing to rehire a seasonal worker by a preponderance of the evidence that the decision or action was not retaliation and was taken for a permissible purpose.

(6) Standard of Proof. Proof of retaliation under this chapter shall be sufficient upon a showing that an employer or any employer agent or representative has retaliated against a person and the person’s exercise of rights protected in this chapter was a motivating factor in the retaliation unless the employer can prove that the action would have been taken in the absence of such protected activity.

(7) This chapter protects employees who were victims of a mistaken violation of this chapter. Mistake is not a defense to violating this chapter.

(8) Complaints. A complaint of a violation of this chapter may be oral, in writing (electronic or paper), or through a third party speaking on behalf of the aggrieved employee, whether they refer to this chapter by name or number. [Ord. 855 § 11, 2024; Ord. 837 § 11, 2024]

5.15.230 Violation. Revised 5/24 Revised 11/24

The failure of any employer to comply with any requirement imposed on the employer under this chapter is a violation subject to enforcement under BMC 5.15.240. [Ord. 855 § 12, 2024; Ord. 837 § 12, 2024]

5.15.240 Enforcement and notice requirement. Revised 5/24 Revised 11/24

Before filing any private action for violations of this chapter, an employee or an employee’s representative must give the employer written notice that the employee has not been paid or received the Burien minimum wage no later than 45 calendar days before filing. This 45-day period is for the employer to investigate and cure, in full, any actual or agreed Burien minimum wage violation or wage theft. If an employer fails to cure a Burien minimum wage violation or a failure to pay wages or disagrees that a Burien wage violation or failure to pay wages occurred, the employee, or the employee’s representative, may file a claim with the Washington State Department of Labor and Industries related to the minimum wage violation or failure to pay wages. The statute of limitations shall be tolled during these 45 days. An employee or employee’s representative must exhaust Washington State Labor and Industries administrative remedies before filing a private action in King County district court.

Under this chapter, if an employee is entitled to unpaid minimum wages, the employer must pay the unpaid or due wages plus interest and liquidated damages up to twice the amount of unpaid wages, including interest, and may receive reasonable attorneys’ fees, court costs, expenses, and whatever equitable or legal relief that is appropriate based on the severity of the violation and the harm to the employee. If the court finds retaliation, the liquidated damages shall be increased to three times the amount of unpaid wages, including interest. Interest is calculated from the date the wages should have been paid at the highest lawful interest rate permissible at the time of the ruling. [Ord. 855 § 13, 2024; Ord. 837 § 13, 2024]

5.15.250 Failure to pay wages or wage theft. Revised 5/24 Revised 11/24

(1) Regardless of the business size, each employer shall pay all compensation owed to an employee because of employment on an established regular payday at no longer than monthly payment intervals.

(2) A violation of this section may result in legal action or enforcement under BMC 5.15.240. [Ord. 855 § 14, 2024; Ord. 837 § 14, 2024]

Code reviser’s note: Per Ordinance 837, Section 19, this chapter is effective January 1, 2025. The amendments of Ordinances 855 and 856 also take effect on January 1, 2025.