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Office of the Attorney General

Attorney General

Bob Ferguson

AGO 2021 No. 1 - Feb 23 2021
Attorney General

MEDICAL BENEFITS—ELECTED OFFICIALS—EMPLOYEES—Whether State, County, And City Elected Officials Are “Employees” Subject To Withholding Under Washington’s Paid Family And Medical Leave Act

Elected officials are “employees” for purposes of Washington’s Paid Family and Medical Leave Act, and are subject to withholding of premiums as described by RCW 50A.10.030.

February 23, 2021

The Honorable C. Dale Slack
Columbia County Prosecuting Attorney
215 E Clay Street
Dayton, WA   99328

Cite As:
AGO 2021 No. 1

Dear Prosecutor Slack:

            By letter previously acknowledged, you have requested our opinion on two questions, which we paraphrase as follows:

1.         Do state, county, and city elected officials within the State of Washington qualify as “employees” under Washington’s Paid Family and Medical Leave Act (PFMLA)?

2.         Are state, county, and city elected officials within the State of Washington subject to the withholding of Paid Family and Medical Leave premiums as described by RCW 50A.10.030?

BRIEF ANSWERS

            1.         Yes. The PFMLA creates a paid family and medical leave insurance benefit system for all Washington workers who qualify as “employees” and meet eligibility requirements. The PFMLA is silent on whether elected officials are included in that definition, but principles of statutory interpretation lead us to conclude that the legislature likely did not intend to silently exclude elected officials from the Act’s protection.

            2.         Yes. Under the PFMLA, premiums are assessed on a per-employee basis. Because elected officials would likely be considered employees under the Act, premiums should be withheld.

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BACKGROUND

            The Washington state legislature enacted the Paid Family and Medical Leave Act in 2017. Laws of 2017, 3d Spec. Sess., ch. 5. The PFMLA established an insurance program that allows qualifying Washington workers to take up to 18 weeks of paid leave per year to care for themselves or a family member starting in 2020. Employees and employers began contributing premiums to the program in January 2019. The PFMLA expands upon Washington’s current Family Leave Act and the federal Family and Medical Leave Act, both of which currently afford qualifying employees 12 weeks of unpaid leave under similar circumstances. The Washington State Employment Security Department (ESD) is responsible for administering the PFMLA. RCW 50A.05.020; see also RCW 50A.05.060 (rulemaking authority).

            Your opinion request seeks guidance on whether Washington state, county, and city elected officials should be considered employees under the PFMLA, and whether as a result they are required to contribute premiums to the program.

ANALYSIS

1.         Do state, county, and city elected officials within the State of Washington qualify as “employees” under Washington’s Paid Family and Medical Leave Act (PFMLA)?

            For the reasons discussed more fully below, we conclude that state, county, and city elected officials are employees for purposes of the PFMLA.

a.         The plain language of the statute is ambiguous

            The PFMLA does not directly address the question of whether elected officials qualify as employees. Most provisions of the 2017 Act have been codified as RCW Title 50A. Laws of 2017, 3d Spec. Sess., ch. 5, § 100 (codification instruction). RCW 50A.05.010(5)(a) provides that the term “employee” means “an individual who is in the employment of an employer.” The only listed exception is “employees of the United States of America.” RCW 50A.05.010(5)(b).

            The statute defines the term “employer” to include all state and local government entities. RCW 50A.05.010(7).[1] Therefore, the portion of the definition at issue here is whether elected officials are considered “in the employment of” their respective jurisdictions. If so, they would be considered employees under the PFMLA.

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            The PFMLA defines “employment” widely, to mean “personal service, of whatever nature, unlimited by the relationship of master and servant as known to the common law or any other legal relationship performed for wages or under any contract calling for the performance of personal services, written or oral, express or implied.” RCW 50A.05.010(8)(a).

            The definition specifically excludes four categories of persons: self-employed people; people performing “casual labor,” i.e., work that is infrequent and irregular; contracted workers providing services under limited circumstances not applicable here; and contractors and electricians, under certain circumstances. RCW 50A.05.010(8)(b). However, self-employed people may nonetheless opt in to PFMLA coverage. RCW 50A.10.010.

            The Act also defines “wages” broadly, as “the remuneration paid by an employer to an employee.” RCW 50A.05.010(28).[2] For self-employed people opting into coverage under the PFMLA, the Act provides that the definition of their wages will be defined by rule. RCW 50A.05.010(28)(c). The reference to self-employed people as earning “wages” suggests that the term as used in the definition of “employment” was intended to be somewhat flexible.

            Courts determining the plain meaning of a statute may also consider “related statutes or other provisions in the same act that disclose legislative intent.” In re Personal Restraint of McWilliams, 182 Wn.2d 213, 217, 340 P.3d 223 (2014). Here, the rest of the PFMLA statute also does not directly address elected officials. The PFMLA benefit is available to all persons who meet the eligibility requirements under RCW Title 50A, and these requirements do not exclude elected officials either explicitly or implicitly. Although elected officials may not take paid leave in the same sense as a government employee, the PFMLA benefit is not conditioned on whether the beneficiary has been offered employer-paid leave.

b.         Statutory interpretation tools suggest that the legislature did not intend to silently exclude elected officials

            When interpreting a statute, a court’s fundamental objective is to “ascertain and carry out the legislature’s intent.” Arborwood Idaho, L.L.C. v. City of Kennewick, 151 Wn.2d 359, 367, 89 P.3d 217 (2004). If a statute is unambiguous, its meaning is to be derived from the language of the statute alone. In re Residence of Eaton, 110 Wn.2d 892, 898, 757 P.2d 961 (1988). But if, as here, the intent of the statute is not clear from the language of the statute by itself, the court may resort to tools of statutory construction to derive a statute’s meaning. Dep’t of Transp. v. State Emps.’ Ins. Bd., 97 Wn.2d 454, 458, 645 P.2d 1076 (1982).

            Courts determining the plain meaning of a statute may also consider “related statutes or other provisions in the same act that disclose legislative intent.” In re Personal Restraint of

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McWilliams, 182 Wn.2d at 217. The most relevant and instructive comparable statute here is the Employment Security Act (ESA). The PFMLA shares many similarities with the ESA, which also provides for an employment-based insurance scheme (in the ESA’s case, for unemployment benefits) and is also administered by the Employment Security Department. Several of PFMLA’s provisions are modeled directly on the ESA.[3] Both statutes explicitly apply to state and local government employees as well as private employees. And the definitions of “employment,” “employer,” and “wages” are materially similar for both acts. See Attachment.

            The ESA, however, specifically excludes elected officials from its definition of state and local government employment, rendering them ineligible for unemployment benefits. It does so by excluding, from the definition of employment, services performed “[i]n the employ of the state or any of its instrumentalities or political subdivisions of this state in any of its instrumentalities by an individual in the exercise of duties: (a) [a]s an elected official; (b) [a]s a member of the national guard or air national guard; or (c) [i]n a policymaking position the performance of the duties of which ordinarily do not require more than eight hours per week.” RCW 50.44.040(10).

            As noted above, the key definitional question under the PFMLA is whether elected officials are considered “in the employment of” their respective jurisdictions. The ESA’s text strongly suggests that elected officials are considered to perform services “in the employ of” state or local governments, but the ESA nonetheless exempts them specifically from the definition of employment. The fact both the PFMLA and the ESA use materially identical definitions of employment, the ESA explicitly considers elected officials to be “in the employ” of the state or local governments, and the PFMLA, unlike the ESA, does not exempt elected officials from its coverage, strongly suggests that the legislature intended the PFMLA to cover elected officials.

            Further, under the principles of statutory interpretation, the legislature is presumed not to engage in meaningless acts. Thus, elected officials would be covered for unemployment insurance purposes but for the specific exclusion contained in the ESA. None of these exceptions appear in the PFMLA.[4] Because the PFMLA does not contain an analogous provision excluding elected

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officials from its definition of employment—a materially identical definition to that contained in the ESA—this omission could be construed as legislative intent to include them.[5]

            Comparing the PFMLA with comparable statutes beyond the ESA is less helpful because those statutes vary widely on whether the term “employer” includes elected officials. For statutes applying to both public and private employees, the legislature has sometimes explicitly included elected officials and sometimes explicitly excluded them. Sometimes, the legislature specifically makes clear that elected officials do not qualify. The Minimum Wage Act (MWA) is an example of this, as is the ESA, as discussed above. RCW 49.46.010(3)(l) (defining the term “employee” in the MWA Act to “not include . . . [a]ny individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi municipal corporation, political subdivision, or any instrumentality thereof, or any employee of the state legislature”); RCW 50.44.040(10)(a) (excluding elected officials from employee definition of ESA).[6] The Industrial Insurance Act, however, explicitly includes elected officials in its definition of employee. RCW 51.08.185 (providing that for purposes of industrial insurance coverage, “employee” shall include “all officers of the state, state agencies, counties, municipal corporations, or other public corporations, or political subdivisions”). And some worker protection laws do not specify whether elected officials are covered. See, e.g., RCW 49.58 (Washington Equal Pay and Opportunities Act); RCW 49.60 (Washington Law Against Discrimination).

            Benefit statutes concerning public employment specifically, however, do generally specify that they intend to include elected officials. See, e.g., RCW 41.05.011(6)(a) (defining the term “employee,” for purposes of the public employees’ benefits board program, to mean “all employees of the state” and “elected and appointed officials of the executive branch of government . . . and members of the state legislature”); RCW 41.05.320 (including elected officials for purposes of salary reduction plan eligibility); RCW 41.40.023 (including “all regularly compensated employees and . . . elective officials” for purposes of state retirement system membership); RCW 41.50.770 (including elected officials for purposes of deferred compensation program eligibility); RCW 43.03.050(1) (authorizing reasonable allowances “to cover . . . expenses for elective and appointive officials and state employees”); RCW 41.44.030(14) (defining “employee” for purposes of statewide city employees retirement program as “any appointive officer or

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employee and shall include elective officials to the extent specified herein”); RCW 43.01.120 (allowing for the purchase of accidental death and dismemberment coverage for “state employees and state elected officials, including legislators”).

            In sum, among the more limited, but arguably more comparable, universe of statutes governing both public and private employees, some statutes are silent, some explicitly include elected officials, and some—such as the Minimum Wage Act and the Employment Security Act—explicitly exclude them.

            No clear answer can be ascertained from these comparable statutes, and these comparisons therefore do not alter our conclusion that the ESA’s explicit exclusion supports treating elected officials as covered by the PFMLA. The MWA and the ESA demonstrate that the legislature is aware of how to exclude elected officials from a benefits program applying to both private and public employees, but has not done so in the PFMLA. To exclude elected officials within the PFMLA’s scope would arguably read a term into the statute that does not currently exist. Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638 (2002) (“Courts may not read into a statute matters that are not in it and may not create legislation under the guise of interpreting a statute.” (Footnote omitted.)); State v. Cooper, 156 Wn.2d 475, 480, 128 P.3d 1234 (2006) (“Where the legislature omits language from a statute, whether intentionally or inadvertently, this court will not read into the statute the language that it believes was omitted.” (quoting State v. Moses, 145 Wn.2d 370, 374, 37 P.3d 1216 (2002))).

c.         Courts interpret worker protection statutes broadly to cover more, rather than fewer, people

            Beyond the tools of statutory interpretation, “[i]n any event the interpretation adopted should be the one that best advances the legislative purpose.” Dep’t of Transp., 97 Wn.2d at 459. Washington courts generally read worker protection statutes, such as the PFMLA, liberally. Thus, courts may not read into the PFMLA an exclusion for elected officials that does not appear explicitly in the text.

            The PFMLA is remedial legislation. As such, courts will give it a liberal construction. This liberal construction generally “favors classification as an employee.” Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 870, 281 P.3d 289 (2012).

            In the related context of unemployment insurance, the consistent theme of the case law interpreting the ESA is the breadth of that act’s coverage, including the broad reach of the “personal services” definition adopted by the PFMLA. See, e.g., Swanson Hay Co. v. Emp. Sec. Dep’t, 1 Wn. App. 2d 174, 404 P.3d 517 (2017). Under the ESA, the relationship between two parties engaged in work “is more likely than any other [context] to be viewed as employment.” Id. at 181. In fact, by expanding the definition of “personal services” to its current language, the legislature “intended . . . by express language[] to preclude any construction that might limit the operation of the act to the relationship of master and servant as known to the common law or any other legal relationship.” Id. at 207. As the state Supreme Court has noted, this definition

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 “expanded the scope of unemployment compensation acts beyond the traditional master-servant relationship,” and the “spirit” of the case law has reaffirmed that these statutes would recognize employment relationships “that formerly would not have been recognized by the common law.” Daily Herald Co. v. Emp. Sec. Dep’t, 91 Wn.2d 559, 563, 588 P.2d 1157 (1979); see also id. at 564 (“the way in which ‘services’ or ‘personal services’ appears in our Unemployment Compensation Act indicates an intention on the part of the legislature to use the term in its broad general sense” (quoting Creameries of America, Inc. v. Indus. Comm’n, 98 Utah 571, 102 P.2d 300, 305 (1940))).

            The test applied by courts for whether work counts as “personal services” in the unemployment insurance context is whether “the services . . . performed under the contracts were clearly for the [employer] or for their benefit.” Daily Herald Co., 91 Wn.2d at 564 (alteration in Daily Herald Co.) (quoting Skrivanich v. Davis, 29 Wn.2d 150, 160, 186 P.2d 364 (1947)). Courts have held, for example, that the services performed by newspaper bundle droppers (who transported bundles of newspapers to designated “drop points” for ultimate delivery by neighborhood carrier) facilitated the circulation of newspapers and clearly benefited the newspaper employer. Id. at 564. By contrast, nursing services provided by nurses to hospitals did not clearly benefit the nurses’ scheduling and billing agent—rather, the services benefitted the hospital. Cascade Nursing Servs., Ltd. v. Emp. Sec. Dep’t, 71 Wn. App. 23, 33, 856 P.2d 421 (1993).

            Assuming that courts will apply a similar test for the “personal services” definition in the PFMLA, the question is whether state and local governments receive a benefit from the service of elected officials. It would at least be consistent with the holdings above to conclude that elected officials provide services for the benefit of state and local jurisdictions by facilitating the administration of government.

            In sum, the statute itself is ambiguous and evidence from other statutes is inconclusive. However, several factors—including the PFMLA’s lack of an explicit exclusion of elected officials (despite having explicitly excluded elected officials from the ESA and the MWA) and the courts’ liberal construction of the “personal services” definition of employment—suggest that elected officials should be considered “employees” under the Act.

2.         Are state, county, and city elected officials within the State of Washington subject to the withholding of Paid Family and Medical Leave premiums as described by RCW 50A.10.030?

            Under the PFMLA, the ESD is responsible for assessing the premium rate for each employee, based upon the amount of the employee’s wages. RCW 50A.10.030(1)(a). The employer, in turn, may deduct a statutorily-defined portion of the premium owed from the employee’s wages. RCW 50A.10.030(3). The employer is then responsible for paying the balance of the premium owed and remitting the total to ESD. RCW 50A.10.030(8) (“The employer must collect from the employees the premiums and any surcharges provided under this section through payroll deductions and remit the amounts collected to the department.”).

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            The PFMLA accordingly authorizes the collection of premiums only in respect to employees. Given the foregoing conclusion that elected officials would likely be considered employees for purposes of the Act, it follows that the state, counties, and cities are permitted to collect and required to pay insurance premiums with respect to their elected officials.

            We trust that the foregoing will be useful to you.

 

ROBERT W. FERGUSON
Attorney General

 

s/ Emma Grunberg
EMMA GRUNBERG
Deputy Solicitor General

 

wros

[attachment]

ATTACHMENT

Term

PFMLA Definition

ESA Definition

Employment

Personal service, of whatever nature, unlimited by the relationship of master and servant as known to the common law or any other legal relationship performed for wages or under any contract calling for the performance of personal services, written or oral, express or implied. RCW 50A.05.010(8)(a).

Personal service, of whatever nature, unlimited by the relationship of master and servant as known to the common law or any other legal relationship, including service in interstate commerce, performed for wages or under any contract calling for the performance of personal services, written or oral, express or implied. RCW 50.04.100.

Employer

Any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company, limited liability company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or the legal representative of a deceased person, having any person in employment or, having become an employer, has not ceased to be an employer as provided in this title; (ii) the state, state institutions, and state agencies; and (iii) any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision. RCW 50A.05.010(7)(a).

Employer means any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company, limited liability company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or the legal representative of a deceased person, having any person in employment or, having become an employer, has not ceased to be an employer as provided in this title. RCW 50.04.080.

 

All services performed for any political subdivision or instrumentality of one or more political subdivisions of this state or one or more political subdivisions of this state and any other state after December 31, 1977, will be deemed to be services in employment to the extent coverage is not exempted under RCW 50.44.040. RCW 50.44.030(1).

Wages

(a) For purposes of premium assessment, the remuneration paid by an employer to an employee. […]

(b) For the purpose of payment of benefits, the remuneration paid by one or more employers to an employee for employment during the employee’s qualifying period. […] RCW 50A.05.010(28).

(1) For the purpose of payment of contributions, “wages” means the remuneration paid by one employer during any calendar year to an individual in its employment under this title […]

(2) For the purpose of payment of benefits, “wages” means the remuneration paid by one or more employers to an individual for employment under this title during his or her base year […]. RCW 50.04.320.

 


[1] “(a) ‘Employer’ means: (i) Any individual or type of organization, including any partnership, association, trust, estate, joint stock company, insurance company, limited liability company, or corporation, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee, or the legal representative of a deceased person, having any person in employment or, having become an employer, has not ceased to be an employer as provided in this title; (ii) the state, state institutions, and state agencies; and (iii) any unit of local government including, but not limited to, a county, city, town, municipal corporation, quasi-municipal corporation, or political subdivision. (b) ‘Employer’ does not include the United States of America.” RCW 50A.05.010(7) (emphases added).

[2] More specifically, the Act defines wages “[f]or the purpose of premium assessment” as “the remuneration paid by an employer to an employee,” and “[f]or the purpose of payment of benefits” as “the remuneration paid by one or more employers to an employee for employment during the employee’s qualifying period.” RCW 50A.05.010(28)(a), (b).

[3] Senate Comm. Servs., Commerce, Labor & Sports Committee, Proposed Substitute S.B. 5975 (S-2944.3) Paid Family and Medical Leave Section-by-Section Summary (June 28, 2017), https://app.leg.wa.gov/committee schedules/Home/Document/134043#toolbar=0&navpanes=0 (noting sections of PFMLA that are “substantially similar” to ESA).

[4] With regard to the National Guard exception in the ESA, the ESA does cover laid-off federal employees in at least some situations, but the PFMLA specifically excludes federal employees (RCW 50A.05.010(5)(b)), an exclusion that covers members of the military. See Wash. State Emp. Sec. Dep’t, Unemployment: Federal employees, https://esd.wa.gov/unemployment/federal-employees (last visited Feb. 17, 2021) (providing that laid off federal employees “may be eligible for unemployment benefits in Washington state” if certain requirements are met); Wash. State Emp. Sec. Dep’t, Washington Paid Family & Medical Leave: A new benefit for military families (Jan. 2021), https://paidleave.wa.gov/app/uploads/2021/01/2021.Exigency.Infographic.pdf (providing that “[f]ederal workers, including active duty military, are not eligible” for PFMLA benefits). Thus, insofar as National Guard members are considered active duty military and both state and federal employees, they may be excluded from PFMLA coverage without need for a specific exclusion provision.

[5] Although the federal Family and Medical Leave Act (FMLA) contains different definitions of “employment” than the PFMLA, insofar as it is relevant, the FMLA also explicitly excludes elected officials from its definition of individuals employed by a public agency. 29 U.S.C. § 2611(3) (providing that the term “employee” for purposes of the FMLA has the same meaning as that given in the Fair Labor Standards Act, 29 U.S.C. § 203(e)(2)(C)(ii)(I) (excluding persons who “hold[] a public elective office of that State, political subdivision, or agency” from the Fair Labor Standards Act’s public employee definition)).

[6] The MWA’s definition of “employ” “includes to permit to work.” RCW 49.46.010(2). The test for whether a worker is an “employee” subject to the MWA is “whether, as a matter of economic reality, the worker is economically dependent upon the alleged employer or is instead in business for himself.” Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 871, 281 P.3d 289 (2012) (quoting Hopkins v. Cornerstone America, 545 F.3d 338, 343 (5th Cir. 2008)). This test is adopted from the federal Fair Labor Standards Act on which the MWA is based, and as discussed further below, it is not the same as the test applied where, as here, a statute uses the “personal services” definition of employment.