1. Applicability
This policy is intended to assist in determining whether an employee is “Washington based” for purposes of Article 1, Section 1 of the current WARP Operating Procedures, as approved by the Insurance Commissioner pursuant to WAC 284-22-080(1) on July 1, 2015, which states that employers “Must be seeking coverage for Washington based employees.” Employers with non-Washington based employees are not eligible for coverage. Accordingly, whether an employer is eligible for WARP coverage depends, in part, upon whether its employees are Washington based. In addition to seeking coverage for Washington based employees, employers must meet all other WARP eligibility criteria as set forth in the WARP Operating Procedures.

2. Who is a “Washington based” employee?
The term “Washington-based” has been defined in Administrative Policy ES.A.13 MWA issued by the Department of Labor & Industries (“L&I) as it pertains to the Washington-based employee requirement of the Washington Minimum Wage Act (“MWA”), RCW 49.46. (1) WARP finds the definition of the term Washington based employee as stated in L&I Administrative Policy ES.A.13 MWA to be reasonable and mirrors this Washington based employee policy after L&I Administrative Policy ES.A.13 MWA. In so doing WARP in no way suggests, consents to, or implies that WARP is in any way bound by L&I Administrative Policy ES.A.13 MWA specifically, or L&I Administrative Policies generally.

3. What factors determine whether an employee is Washington-based?
To determine whether an employee is Washington based for the purposes of the WARP eligibility criteria, WARP follows the factors of the choice of law analysis set forth in Bostain v. Food Express, Inc. 159 Wn.2d 700, 719, 153 P.3d 846 (2007) and Burnside v. Simpson Paper Company, 123 Wn.2d 93, 864 P.2d 937 (1994). This requires a two-step process to determine what state has the most significant relationship to an employee. A conflict of law analysis is fact specific and must be analyzed on an employee-by-employee basis.

The first step is to determine whether there is a conflict between finding an employee to be Washington based for WARP eligibility purposes and another state’s law. For example, if an employee is considered to be based in more than one state, but the other state does not have an assigned risk plan requiring the employee to be covered by that other state, there is no conflict. If an employee has significant ties to Washington, WARP can provide coverage to that employee.

Where there is a question of which state has the most significant relationship with the employee, WARP must determine which state has the most significant relationship to the employee by evaluating the connections that each state has to the employee. It is important to evaluate the number and the significance of each connection to Washington State. WARP will consider, among other factors, the following questions:

• Where was the employment agreement made?
• Does the employee live in Washington?
• Does the employer have its base of operations in Washington?
• Does the employee have his or her base of operations in Washington?
• Does the employer maintain a work site in Washington?
• If the employee leaves Washington as part of the employee’s work, where does the trip begin and end?
• Does the employee receive work assignments from a location in Washington?
• Is the employee’s work supervised by individuals operating from the employer’s location in Washington?
• How much of the work is performed in Washington?
• How long is the contract to do work in Washington?

These factors parallel the test for when “employment” includes “an individual’s entire service performed within or without or both within and without this state” under the Family and Medical Leave Program. See RCW 50A.04.010(7)(a). While WARP will consider all the above factors in evaluating whether an individual is a Washington based employee, and may consider additional factors that show a connection between the worker and Washington State, some of the factors may be more relevant than others. For example, WARP will give careful consideration to and place particular emphasis on where the work is performed.

4. What are some examples of employees that WARP considers Washington based?
Using a conflict of law analysis and considering the factors described above, WARP would conclude that the following individuals are Washington-based employees for the purposes of eligibility for WARP coverage. The examples are intended for guidance purposes only.

Example 1
Veronica, a resident of Oregon, is hired by marine painting company headquartered in Westport, Washington. Her work consists of painting vessels in dry dock at shipyards adjoining navigable waters. Every weekday, Veronica is required to report to the Westport headquarters of her employer to pick up supplies. Veronica typically spends her day in Washington, but she occasionally has a work assignment in Oregon. Veronica is allowed to end her work-day in Oregon without reporting back to Westport if her day’s assignment is in Oregon.

Veronica is a Washington based employee as that term is defined by the WARP Operating Procedures. To be eligible for coverage Veronica’s employer must also satisfy the other eligibility requirements stated in the WARP Operating Procedures.

Example 2
Gary has worked as a commercial diver for a small company in Bellingham, Washington since 1999. All of Gary’s diving is in navigable waters. Gary is paid by the hour. Gary relocated and now resides in New Orleans, Louisiana. When the Bellingham company does not have work in Washington, Gary performs commercial diving services all over the country for other companies. Gary’s Bellingham employer will occasionally send him proposed diving projects for him to remotely review from his New Orleans residence. Gary is required to travel to the Bellingham office several times a year for assignment to diving jobs to be performed in Washington.

Gary is a Washington based employee as that term is defined by the WARP Operating Procedures. To be eligible for coverage Gary’s employer must also satisfy the other eligibility requirements stated in the WARP Operating Procedures.

Example 3
Chloe, a Honolulu, Hawaii resident, applied for a job with a Washington freight forwarding firm headquartered in Seattle. Chloe was offered her job in-person in Seattle. Her work involves overseeing the unloading of cargo ships at the Port of Honolulu in support of her employer’s Seattle operation. All of her work occurs over navigable waters or in adjoining areas. Chloe is not required to physically report to the freight forwarding firm’s Seattle headquarters. Chloe receives instruction and work assignments from the Seattle office only and all of her work is in direct support of the Seattle office.

Under the circumstances presented, Chloe is a Washington based employee as that term is defined by the WARP Operating Procedures. To be eligible for coverage Chloe’s employer must also satisfy the other eligibility requirements stated in the WARP Operating Procedures. . Chloe would not be considered a Washington based employee if her work was not principally in support of the Washington operations of her employer.

Example 4
Paul is a Montana resident who works as a commercial fisherman on a vessel with a homeport in Port Angeles, Washington. The vessel fishes exclusively in Alaska. Paul only works one season at a time, returning to Port Angeles at the end of each season. Paul signs a crew contract in Port Angeles prior to each season. A couple times a year, Paul performs work on the vessel above and beyond the usual preparation for the season. This work is performed at the dock and can last from anywhere between a couple weeks to a couple months. There is no expectation that Paul report to the vessel in Port Angeles except at the beginning of a season or those times when Paul is performing maintenance beyond preparation for the season.

Paul is a Washington based employee with respect to his non-seaman work performing maintenance at the dock beyond preparation for the season, as that term is defined by the WARP Operating Procedures. To be eligible for coverage Paul’s employer must also satisfy the other eligibility requirements stated in the WARP Operating Procedures.

5. What are some examples of employees WARP does not consider to be Washington based?
Using a conflict of law analysis and considering the factors described above, WARP would conclude that the following individuals are not Washington based employees. The examples are intended for guidance purposes only.

Example 1
Amy has a shop on a pier over Lake Coeur d’Alene in Idaho where she machines components for a vessel engine manufacturer based on a pier in Everett, Washington. Amy’s employer has no facilities in Idaho and only operates the manufacturing plant in Everett. Amy’s employer has employed suppliers like Amy in every western state, but Amy is the only one in Idaho. Amy is required to travel to do business within the boundaries of Idaho to obtain materials approved by her employer to incorporate into the components she machines. The only time Amy is required to travel to Washington is to attend a once-a-year training class held at the pier in Everett. The vast majority of Amy’s job can only be performed at her shop in Idaho.

Amy is not a Washington based employee and her employer is not eligible for WARP coverage.

Example 2
Phil, a resident of Miami, Florida, works for a Miami marine crane installation company that is headquartered in Seattle. Phil applied for and received a job with the Seattle company while a representative for the employer was touring the employer’s facility adjoining navigable waters at PortMiami. Although 50 employees work in Seattle, only 5 workers are employed at PortMiami. Phil travels from home to work in Miami every weekday, and except for a few conferences out of state each year, nearly all of his work is performed at the PortMiami facility.

Phil is not a Washington based employee and his employer is not eligible for WARP coverage.

Example 3
Stew is a port engineer employed by the Society of Port Engineers in Seattle. Stew travels to port facilities throughout the United States to promote training and access to career opportunities for maritime industry personnel. He is a resident of New York, New York. The company has a facility in New York. He interviewed at the company’s facilities at the Port of Seattle. More than 70% of his work is at sea ports in states other than Washington. Stew is generally dispatched from his home in New York. He receives his assignments from the Senior Port Engineer, who works at the company’s Port of Seattle office. Other than securing the job in Washington, and receiving dispatch calls from Washington, the vast majority of Stew’s work is performed in other states.

Stew is not a Washington based employee and his employer is not eligible for WARP coverage.

Example 4
Gordon, a resident of Moclips, Washington, was hired as a longshoreman by a company headquartered in Astoria, Oregon. Every weekday morning, Gordon reports to the Astoria headquarters of his employer to receive work assignments at various ports primarily in Oregon, but occasionally also in Washington. Gordon typically spends all of his day in Oregon, but occasionally is assigned to a port in Washington. Gordon is allowed to end his workday in Washington without reporting back to Astoria if his assignment is in Washington.

Gordon is not a Washington based employee and his employer is not eligible for WARP coverage.

This policy is effective as of December 11, 2019.

(1) The L&I Administrative Policy ES.A.13 MWA uses the hyphenated term “Washington-based” pursuant to the MWA, whereas WARP uses the unhyphenated term “Washington based” pursuant to the WARP Operating Procedures. The hyphenated and unhyphenated versions of the term “Washington-based” and “Washington based” are not legally distinguishable and are therefore used interchangeably herein.