Page 35 - Pierce County Lawyer - September October 2024

NEW & YOUNG LAWYERS REPORT BY CHRISTOPHER WALSH
RCW Title 50A:
Paid Family Leave Roulette
The Washington Paid Family Leave Act, codified under RCW Title 50A, aims to provide essential support for families during crucial moments—be it the birth of a
child, a serious health condition, or the need to care for a loved one. The statute seeks to balance and promote family stability and economic security, ensuring that employees can take the necessary time off without the burden of financial insecurity. While well-intentioned, the result of its arbitrary restrictions is a game of chance for women and families that should be able to rely on those benefits.
The legislature expressly acknowledges the auspicious health benefits associated with paid leave, such as decreased infant mortality, increased well-baby visits, and reduced maternal postpartum depression. Additionally, paid leave has been shown to increase the duration of breastfeeding, which is critical for early bonding, and supports positive developmental health. The legislature also expressly recognizes the importance of paternal involvement during the early months of a child’s life, highlighting that access to paid leave enables fathers to engage more directly.
My wife and I welcomed our first child in September, 2023. Although I had no issues filing and receiving benefits through Washington’s Paid Family Leave Act, she was immediately denied benefits because she had not worked the requisite hours in “the last four completed calendar quarters” preceding her application. She had worked the requisite number of hours, but because our baby was born in September, her application did not follow the end of the current calendar quarter. If our baby had been born a month later, despite the same number of hours worked, her application would have been approved.
A couple of close friends also welcomed their first child
in November, 2023, and all seemed to go well with their applications for paid family leave. It was not until several weeks after giving birth that they realized the State was not going to pay her anywhere close to what she was earning before having her baby. Generally speaking, if a claimant’s wage does not exceed the statutory maximum, then a claimant receives ninety percent of their average weekly wage. However, tips account for a large portion of income and the State expressly excludes tips in its definition of wages for purposes of Paid Family Leave benefits.
It is important to note that many service industry workers, such as servers, bartenders, baristas, etc., often depend on tips to make ends meet. These tips are not mere gratuities—they are an integral part of their income and are reported for federal income tax purposes just like every other claimant’s wages. By excluding tips, the law unjustly denies benefits to a segment
of the workforce that is already vulnerable to economic fluctuations. It also forces many parents, particularly mothers
who may require
extended recovery times
after childbirth, back
to work prematurely.
This directly contradicts
the legislature’s intent to support the health and stability of families.
It is worth pointing out that state law in other contexts recognizes tips as an essential part of an employee’s wage. For instance, under the Industrial Insurance Act (RCW Title 51), which provides compensation for injured workers, tips are included in the calculation of wages so long as they are reported to the employer for federal income tax purposes. Even an employee’s board, housing, fuel, and health care premiums are considered “core, nonfringe benefits critical to protecting the basic health and survival of [injured] workers,” if they are part of the consideration for a contract of hire.1 Why does the same definition not apply to Washington’s Paid Family Leave Act?
Both my wife and our friend faced potentially life-threatening complications and neither of them were deserving of dire financial insecurity in addition to the stress they already endured. Unfortunately, they are not alone—they are just two of countless women and their families suffering similar hardships with no recourse. The arbitrary exclusion of tips, and its bizarre quarterly calculation requirement, are antithetical to what the State seeks to provide families during critical life events.
To honor the legislature’s intent and ensure fair treatment
to all Washington workers, the Paid Family Leave Act needs substantial revisions, aligning it with other areas of Washington law that recognize the true earnings of service industry workers. It is time to end the game of roulette, and the choice that families must make between financial stability and the health and well-being of their loved ones.
Christopher Walsh is an attorney at Poli, Moon
& Zane, where his practice focuses primarily
on representing policyholders in disputes with insurance carriers. Christopher is a member of
the American Association for Justice, an EAGLE member of the Washington State Association for Justice, and currently serving his second term as an elected Board Member of the Tacoma-Pierce County Bar Association’s New and Young Lawyers.
In his free time, Christopher enjoys playing music, cooking, and spending time with his family.
1 Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 822, 16 P.3d 583, 594 (2001).
September/October 2024 | PIERCE COUNTY LAWYER 35