/FTUEv
X IN CLERKS OFFICE X
This opinion was filed for record
'agRBE COUOT.afOlE rinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 298, 996 P.2d
582 (2000)("Because the MWA is based upon the FLSA, federal authority under
the FLSA often provides helpful guidance.");Inniss v. Tandy Corp.,141 Wn.2d 517,
524,7 P.3d 807(2000)("When construing provisions ofthe[MWA],this Court may
consider interpretations of comparable provisions of the [FLSA] as persuasive
authority,"); Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 862 n.6, 93 P.3d
108 (2004)("The FLSA is persuasive authority because the MWA is based on the
FLSA."); see also Clawson v. Grays Harbor Coll. Dist. No. 2, 109 Wn. App. 379,
35 P.3d 1176 (2001), ajf'd, 148 Wn.2d 528, 61 P.3d 1130 (2003); lift v. Prof'I
NursingServs., Inc., 76 Wn. App. 577,886 P.2d 1158(1995). "At least where there
is no contrary legislative intent, when a state statute is 'taken "substantially
verbatim" from [a]federal statute, it carries the same construction as the federal law
and the same interpretation as federal case law.'" Anfinson, 174 Wn.2d at 868
-9-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
(alteration in original)(quoting State v. Bobic, 140 Wn.2d 250, 264, 996 P.2d 610
(2000)(quoting State v. Carroll, 81 Wn.2d 95, 109, 500 P.2d 115 (1972))).2
The majority contends that it is inappropriate to rely on the FLSA for guidance
in this case because the FLSA minimum wage provision contains the term
"workweek," while the MWA does not include similar language. Majority at 8-9.
In the majority's view, the MWA is therefore distinguishable from the federal
minimum wage provision "because our legislation states 'per hour,' rather than 'in
any workweek.'" Id. at 9. A closer reading of the FLSA's plain language and the
legislative history for both statutes exposes several flaws in this argument.
First, the MWA and FLSA provisions at issue do not differ in their relevant
language. Though the forepart of the federal minimum wage provision uses the
phrase "in any workweek," the operative portion of the statute requires wages at
'^rates . . . not less than [minimum wage] an hour.'''' 29 U.S.C. § 206(a)(emphasis
added);see Douglas v. Xerox Bus. Servs., LLC,875 F.3d 884,886 n.l (9th Cir. 2017)
(noting "'in any workweek'" is part of a prefatory clause and not a measure of
minimum wage compliance). The FLSA states in relevant part:
^ The majority asserts that "[t]he dissent rests its analysis on the mistaken
assumption that we are bound by interpretations of the FLSA." Majority at 9 n.5. To the
contrary, at no point do I assume to be bound by the FLSA. Instead, as this court has done
many times before, I simply "consider interpretations of comparable provisions of the
[FLSA] as persuasive authority" when construing provisions of the MWA. Inniss, 141
Wn.2d at 524.
-10-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
Every employer shall pay to each of his employees who in any
workweek is engaged in commerce or in the production of goods for
commerce ... wages at the following rates:
(1) Except as otherwise provided in this section, not less than—
(A) [minimum wage] an hour.
29 U.S.C. § 206(a) (emphasis added). Similar to the MWA, which requires
employers to pay employees "wages at a rate of not less than [minimum wage]per
hour," RCW 49.46.020(1)(emphasis added), the focus of the FLSA is also on the
minimum rate ofpay. Although recognizing that"we must give effect to every word
when engaging in statutory interpretation," majority at 9 n.5, the majority
nonetheless ignores this key term—"rate"—in its plain language analysis.
The majority's focus on the absence of the term "workweek" is further
undermined by the legislative history of both statutes. It is doubtful that our
legislature intentionally diverged from the FLSA by not including the phrase "in any
workweek." This is unlikely because the "in any workweek" language did not
appear in the FLSA until after the MWA was enacted. When the FLSA was passed
in 1938,the original version ofthe minimum wage provision read:
(a) Every employer shall pay to each of his employees who is engaged in
eommerce or in the produetion of goods for eommerce wages at the
following rates—
(1) ... not less than 25 eents an hour.
-11-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
FairLaborStandards Actof 1938,Pub.L. No.75-718,§ 6(a)(1),52 Stat. 1060,1062.
The MWA was adopted in 1959 with a minimum wage provision that looked almost
identical to the original version ofthe federal minimum wage provision:
Every employer shall pay to each of his employees wages at a rate ofnot less
than one dollar per hour except as may be otherwise provided under this act.
Laws of 1959, ch. 294, § 2. The similarities between the 1938 federal minimum
wage provision and the MWA's 1959 minimum wage provision are undeniable.
Both provisions use the terms "wages," "rate," and "hour," without any mention of
"workweek."
It was not until 1961, two years after the MWA was adopted, that Congress
modified the introductory phrase of the federal minimum wage provision to add a
reference to the workweek. See Act ofMay 5,1961,Pub.L.No.87-30,§ 5(a)(l)-(2),
75 Stat. 65, 67 (amending the FLSA of 1938—inserting the "in any workweek"
language). This amendment was merely clarifying. Prior to 1961, the federal
Department of Labor had consistently adhered to the workweek-averaging measure
of minimum wage compliance, which is evidenced by Department of Labor policy
statements and guidance. Dove v. Coupe, 245 U.S. App. D.C. 147, 759 F.2d 167,
-12-
Carrama v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
171 (1985)(the Department of Labor "established the workweek as the measuring
rod for compliance at a very early date").^
Notably, based on the Department ofLabor's express adoption and persistent
adherence to workweek averaging, the Ninth Circuit recently interpreted the 1961
amendment as providing "an even stronger foundation to read the minimum-wage
provision to preserve, not upset, the entrenched per-workweek measure." Douglas,
875 F.3d at 889."^ As it relates to the MWA, at the time Washington adopted the
MWA the workweek measure of minimum wage compliance was already well
established and widely accepted.
In sum, the plain language of the MWA does not impose a per-hour right to
minimum wage compensation, nor does it prohibit the per-workweek measure of
^ For example, in 1940, just over a year and a half after FLSA was passed, the
Department ofLabor issued a policy statement providing that "[f]or enforcement purposes,
the Wage and Hour Division is at present adopting the workweek as the standard period of
time over which wages may be averaged to determine whether the employer has paid the
equivalent of[the minimum wage]." The Bureau OF Nat'l Affairs, Inc., Wage and
Hour Manual 185 (1942).
The plaintiffs in Douglas made the same argument about the FLSA that the
plaintiffs (and the majority) make here about the MWA. They argued that the FLSA
measures minimum wage compliance on an hour-by-hour basis and does not allow
averaging because "FLSA's plain language 'speaks only of an hourly wage'" and "[t]he
'statute's text is explicit that, with respect to the minimum wage,the only metric Congress
envisioned was the hour, with each hour having its own discrete importance.'" Appellant's
Opening Br., Douglas v. Xerox Bus. Servs., LLC, No. 16-35425, at 23 (9th Cir. Sept. 28,
2016)(quoting Norceide v. Cambridge Health All, 814 F. Supp. 2d 17, 23 (D. Mass.
2011)). The Ninth Circuit correctly rejected this view, though in doing so it did not find
the "workweek" language in the prefatory clause to be significant. Douglas, 875 F.3d at
886-87 &n.l.
-13-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
minimum wage compliance, as the majority holds. To the contrary, like the FLSA
on which it was modeled, the MWA requires employers to pay employees the
equivalent ofthe minimum wage rate for every hour worked. While the MWA does
not expressly address the issue of whether separate pay is required for piece rate
down time and similar work,it contemplates a single minimum wage calculation for
all piece-rate work. The MWA neither distinguishes between different categories of
work activities nor mandates separate compensation. Quite simply, the act requires
employers to compensate employees a rate of not less than the minimum wage and
to pay employees for each hour worked.^
^ The first certified question presents a narrow issue—^whether the MWA allows
piece-rate pay to subsume nonproduction work time. At times, the briefing goes beyond
this question. For example, the workers allege that Dovex's compensation plan enables
employers to "require an employee to perform five hours of piece-rate work and 35 hours
of other work activities in a week and refuse to pay the employee for the 35 hours of non-
piece-rate work so long as the employee receives at least minimum wage" under the
workweek averaging calculation. Pis.' Opening Br. on Certified Questions at 31. Whether
Dovex willfully deprived the workers of a meaningful opportunity to cam their piece-rate
pay is an important, but separate, issue that is not before us. If Dovex did in fact deprive
the workers of any part of their wages, Dovex admits that the workers would have claims
under the wage rebate act, RCW 49.52.050, and also potentially breach of contract claims.
Def.'s Answering Br. at 20. Notably, the workers have asserted wage rebate act claims
elsewhere in the litigation. Compl. at 15-16.
-14-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
C. DLI Has Consistently Interpreted the MWA as Allowing Workweek
Averaging for Pieceworkers, and Courts Should Defer to the Agency's
Interpretation
While the proper interpretation ofthe MWA in this case begins and ends with
the statute's plain language, it should give us pause that the majority's interpretation
is at odds with the long-standing view ofthe agency charged with administering the
MWA. DLI has consistently interpreted RCW 49.46.020(1)to allow for workweek
averaging to determine minimum wage compliance under piece-rate compensation
plans. The majority swiftly dismisses DLLs interpretation as nonbinding and
undeserving of any deference because '"[tjhis court has the ultimate authority to
interpret a statute.'" Majority at 14-15 (alteration in original)(quoting Bostain v.
Food Express, Inc., 159 Wn.2d 700, 716, 153 P.3d 846 (2007)). However, under
Washington law, deference is owed to an agency's interpretation of a state statute
"ifthe law being interpreted is within [that] agency's expertise." Budget Rent A Car
Corp. V. Dep't ofLicensing, 144 Wn.2d 889, 901,31 P.3d 1174(2001).
DLI regulations and policies recognize that the MWA allows for workweek
averaging under piece-rate compensation plans. See, e.g., WAC 296-129-021; WAC
296-131-117(1).^ Administrative policy ES.A.3 describes the standards DLI uses to
^ The majority correctly notes that the specific regulation addressing workweek
averaging for pieceworkers appears in a chapter of the administrative code that does not
apply to agricultural workers. See WAC 296-126-021; majority at 13-14. The later-added
-15-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
determine whether an employee has been paid the statutory minimum hourly wage
when compensated on a nonhourly basis, as in piece-rate work. Administrative
Policy ES.A.3 (revised July 15, 2014), http;//www.lni.wa.gov/WorkplaceRights/
files/policies/esaS.pdf[https://perma.cc/3JKA-GLQJ]. The following section ofthe
policy is persuasive as to DLLs approval of weekly averaging as a measure of
minimum wage compliance for pieceworkers:
For employees paid on commission or piecework basis, wholly or in part...
the commission or piecework eamings earned in each workweek are credited
toward the total wage for the pay period. The total wage for that period is
determined by dividing the total eamings by the total hours worked;the result
must be at least the applicable minimum wage for each hour worked. See
WAC 296-126-021.
Id. at 2.
Additionally, following this court's decision in Lopez Demetrio,DLI issued a
revised administrative policy on meal and rest periods for agricultural workers.
Administrative Policy ES.C.6.2 (revised Aug. 11, 2016), http://www.hii.wa.gov/
chapter that pertains to agricultural employment, ch. 296-131 WAC,contains no specific
workweek averaging provision. However, a provision identical to WAC 296-126-021 is
contained in the chapter applicable to minor workers, including agricultural workers. See
WAC 296-131-117(1). The majority makes no attempt to explain why DLI would interpret
RCW 49.46.020 differently for adult and minor agricultural workers, stating simply,"The
certified questions do not concem minor agricultural workers." Id. at 14 n.5. I believe,
however, that the omission of adult agricultural workers from the otherwise universal mle
ofworkweek averaging under RCW 49.46.020 does not reflect a conscious policy decision.
I say this because, as discussed in the main text, DLI has consistently included adult
agricultural workers in its published policies explaining the workweek averaging
regulation, WAC 296-126-021.
-16-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
WorkplaceRights/files/policies/esc62.pdf [https://perma.cc/AKX8-RP5F]. This
policy explains how employers should calculate a worker's "regular rate of pay" in
order to compute the amount owed for rest periods: "This is done by dividing the
total compensation earned in a workweek by the total active hours of work(the "total
active hours of work" does not include the break time). The result is the regular rate
of pay for the week." Id. at 2. The policy gives some examples of how employers
should calculate the rate of pay to ensure it is equal to or greater than the minimum
wage:
First, add up the worker's total piece-rate earnings for the workweek. Even
ifthe worker earns different piece rates during the workweek, total all piece-
rate earnings for the week. Next, divide those earnings by the worker's active
hours of work (exclude rest period time). This amount is the worker's
"regular rate" of pay.
Id. This new policy is just one more piece of evidence confirming that workweek
averaging is firmly established as a method for determining minimum wage
compliance for pieceworkers under the MWA.^ The majority's novel view that the
MWA requires hourly compensation for pieceworkers' is out of step with long
standing agency interpretation of the law.
^ As explained below, this new policy also confirms that our decision in Lopez
Demetrio provides no support for the majority's "per hour" interpretation of the MWA.
-17-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
D. The Majority's "per Hour"Interpretation ofthe MWA Finds No Support
in Case Law Interpreting the Statute
The majority relies on "precedent from comparable situations" to support its
holding that the MWA provides a right to hour-by-hour compensation for piece rate
down time and similar work. Majority at 9-11 (discussing Stevens v. Brink's Home
Securities, Inc., 162 Wn.2d 42, 47, 169 P.3d 473 (2007); SPEEA, 139 Wn.2d 824;
and Alvarez v. IBP, Inc., 339 F.3d 894, 898 (9th Cir. 2003)). These cases are not at
all comparable to the present case, as they involved workers who were contractually
required to donate time to their employers.
In each ofthe cited cases,the employer contractually refused to pay any wage
for certain required work activities. See Stevens, 162 Wn.2d at 47-50 (employer
violated MWA by refusing to compensate technicians for time spent driving
company vehicle to first jobsite and back home from last jobsite); SPEEA, 139
Wn.2d at 827, 835 n.6, 838 (employer violated MWA by refusing to compensate
employees for time spent attending preemployment orientation sessions); Alvarez,
339 F.3d at 913-14 (employer violated MWA by refusing to compensate factory
workers for time spent donning and doffing protective work gear). Here,in contrast,
Dovex records each employee's daily work time and the applicable piece rate, and
its compensation system guarantees that employees receive at least the minimum
-18-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
wage for every hour worked in a week. This is not a case about unpaid workers or
unpaid time. Thus,Stevens,SPEEA, and Alvarez are factually inapposite.
The second flaw in the majority's case law analysis is more nuanced. While
the majority says Alvarez "specifically rejected using workweek averaging to
measure compliance with the MWA," majority at 11, the reasoning in that case in
fact undermines the majority's position. In Alvarez, the Ninth Circuit considered
whether the MWA required an employer to compensate hourly employees for the
time it took them to change into required specialized protective clothing and safety
gear. While the Alvarez court concluded that employees retain a right to be paid
minimum wage for every hour worked under Washington law, it adopted the "per-
hour" measure of minimum wage compliance only for one particular employment
category—hourly employees. See, e.g., Alvarez,339 F.3d at 912("Washington state
courts have yet to determine whether hourly-employees, like plaintiffs, have a per-
hour or a work-week right to minimum wage."(emphasis added)), 913(holding that
"the Washington Supreme Court would construe the WMWA as using a per-hour
standard for hourly employees'"(emphasis added)).
Significantly, in reasoning that hourly employees retain a per-hour right to
minimum wage under the MWA, the Alvarez court found it important that DLI
regulations "permit use of the work-week measure only for particular employment
-19-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
categories," including pieceworkers. Id. at 912-13 (citing, inter alia, WAC 296-126-
021, expressly allowing for workweek averaging for pieceworkers). The court aptly
observed, "Were the Washington legislature disposed to apply the workweek
measure to hourly employees, it could have done so as expressly as it did vis-a-vis
other employment types." Id. Thus, unless we entertain the majority's fiction that
pieceworkers are actually hourly workers when engaged in activities outside of
piece-rate picking work, Alvarez undermines rather than supports the majority's
position.
The last case the majority leans on is LopezDemetrio,quoting our observation
that "'[i]f the picker is not picking . . . , the picker is not earning money.'" 183
Wn.2d at 653(second alteration in original); see majority at 12. The majority reads
this statement of a simple truth as signaling our rejection of workweek averaging
under the MWA. But, a closer look at the analysis in Lopez Demetrio reveals why
this reading is wrong. The court in Lopez Demetrio fully recognized that one reason
the workers in that case were left to "finance their own rest breaks" was because the
MWA allows for piece-rate compensation to be measured on a workweek basis.
Lopez Demetrio, 183 Wn.2d at 653. Thus, when the employer in Lopez Demetrio
divided the employees' piece-rate earnings by their total hours worked, rest breaks
-20-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
were left uncompensated by the employer. Id. This violated the clear mandate of
WAC 296-131-020(2)that rest breaks must be paid "on the employer's time."
The court in Lopez Demetrio made clear that "a pieceworker's right to
separate pay for rest breaks springs notfrom the MWA but rather from WAC 296-
131-020(2)'s mandate that rest breaks be paid 'on the employer's time.'" Id. at 661
(emphasis added). While the first certified question in Lopez Demetrio asked
whether separate pay was required "under WAC 296-131-020(2) and/or the
[MWA]," we answered the question based solely on the regulation, not the MWA.
Id. at 654. In fact, our analysis of the separate compensation issue contained not a
single reference to the MWA. It was WAC 296-131-020, not the MWA, that
mandated separate compensation for the "periods of inactivity," i.e., the rest breaks
at issue in that case. Id. at 652, 656. Here, the workers rely solely on RCW
49.46.020 of the MWA as the statutory anchor for their claim. There is no
comparable regulation. As we explained in Lopez Demetrio, the MWA itself does
not prohibit workweek averaging or impose a requirement of hourly compensation
for nonproduction time in a piece-rate compensation system.
While the piece-rate compensation plans at issue in Lopez Demetrio and this
case may be similar, rest breaks are simply not analogous to "activities outside of
piece-rate picking work (e.g., 'Piece Rate Down Time' and similar work)." Order
-21-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
Certifying Question at 2. Unlike the nonpicking work tasks at issue in this case (e.g.,
traveling between orchards, waiting for weather to clear, transporting ladders to or
from a company trailer, attending work meetings), the rest break requirement in
WAG 296-131-020 refers to periods of inactivity during which no work can be
performed. Accordingly, when we used the phrase "periods of inactivity" in Lopez
Demetrio, we were referring to mandated periods of what might better be described
as nonwork—^time spent sitting, cooling down, rehydrating, and physically
recuperating from picking activities. 183 Wn.2d at 652,656(distinguishing between
the two periods of separately compensable time—^working or resting—^we used the
phrasing,"the piece rate is earned only while the employee is working (i.e., no pay
accrues during rest breaks)"). This category ofnonwork is "critical to the health and
effectiveness of employees, especially those working long hours outside." Id. at
658. We recognized that folding rest breaks into piece-rate compensation would
"incentivize missed rest breaks at the expense ofthe employee's health." Id. at 659.
The policies at issue in Lopez Demetrio, specifically addressed in WAG 296-131-
020, are not at issue in the certified questions in this case.
Our answer to the second certified question in Lopez Demetrio confirms that
workweek averaging of piece-rate earnings does not violate the MWA. Having
decided in Lopez Demetrio that rest breaks must be paid "on the employer's time"
-22-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
under the specific regulation, our further task was to determine the proper rate ofpay
required for the break periods. Id. at 659-60. Without expressly using the term, we
described workweek averaging as an acceptable measure ofcompliance. Id. at 660-
61 (calculating a pieceworker's "defacto hourly rate" as "the quotient of an
employee's piece rate earnings by the number of hours he or she worked"). We
provided a detailed example to demonstrate the averaging minimum wage
calculation in practice, casting away any remaining doubt as to whether workweek
averaging is appropriate for agricultural pieceworkers:
Suppose an employee is paid 50 cents per pound of fruit picked (the piece
rate). The employee works 5 8-hour days and takes 20 minutes ofrest breaks
each day, as provided by WAC 296-131-020(2). The employee has spent
38.6 hours producing and 1.4 hours on breaks, for 40 hours oftotal work. If
the employee produces 750 pounds of fruit, he or she eams $375.00 that
week.
Id. at 661 n.3. In order to ensure rest breaks are paid "on the employer's time," as
required by WAC 296-131-020 (but not the MWA itself), we directed that the total
earnings in this example($375)must be divided by all hours worked, with only time
spent resting excluded (38.6 hours). Id. at 662 & n.4. In our example, we did not
instruct employers to separately track work activities outside of piece-rate picking
work, such as moving ladders or waiting for work materials. Nor did we require
employers to provide separate compensation for those nonpicking activities, because
they are not like rest breaks. Instead, as the majority must concede, our decision in
-23-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
Lopez Demetrio allowed for workweek averaging as an acceptable method of
calculating a pieceworker's rate of pay. See majority at 12.^
In sum, the majority finds no support in our precedent for its ambitious
reimagining of the MWA as a guarantor of "per hour" compensation. The
recognition in Stevens,SPEEA,and Alvarez that hourly workers must be paid for all
hours worked does not undercut the long-standing practice of allowing workweek
averaging to determine minimum wage compliance for pieceworkers. Nor does the
holding in Lopez Demetrio—^that a specific regulation required rest breaks to be paid
separately from hours worked—support the majority's view that RCW 49.46.020
disallows workweek averaging to determine minimum wage compliance.
At the end of the day, the majority has simply rewritten the MWA. It has
abruptly departed from prior precedent aligning the MWA with its federal
counterpart, the FLSA. And, it has rejected out of hand the long-standing
interpretation of the MWA by the agency charged with enforcing it. The
consequences of today's holding extend far beyond this case. The statute the
majority has rewritten, RCW 49.46.020, broadly applies to all nonhourly employees
^ As noted above, DLI subsequently read our decision in Lopez Demetrio this same
way and issued a revised administrative policy that specifically instructs agricultural
employers to calculate piece-rate workers' wages using workweek averaging (excluding
rest breaks) in order to determine if the rate of pay complies with the minimum wage.
Administrative Policy ES.C.6.2, at 2;supra note 5.
-24-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
covered under the MWA,including nonagricultural pieceworkers and commission-
based employees. Reading it to require hour-by-hour compensation for
nonproduction time will seriously undermine the piece-rate payment system as a
viable compensation plan in many settings.
II. The Majority's "per Hour" Interpretation of the MWA Radically Changes
Washington Law and Undermines Piece-Rate Compensation Plans
Do not believe the majority's promise that today's decision is a narrow
holding. The majority claims to be interpreting the MWA only in the limited context
of adult agricultural pieceworkers. Majority at 13-14. However, the majority's
holding that the MWA provides employees a right to minimum wage compensation
for each individual hour of work is based on its reading of RCW 49.46.020, which
applies equally to nonagricultural pieceworkers and commission-based employees.
Majority at 9("the MWA's plain language requires us to conclude that employees
have a per hour right to minimum wage").
The practical effect of the majority's holding is to accept the plaintiffs' plea
to transform the MWA into California minimum wage law, despite the fact that
federal courts have recently rejected arguments to do so. See Helde v. Knight
Transp., Inc., No. C12-0904RSL, 2016 WL 1687961, *2 (W.D. Wash. Apr. 26,
2016)(holding that "Plaintiffs' underlying assumption is faulty: the MWA does not
require payment on an hourly basis"); Mendis v. Schneider Nat'I Carriers Inc., No.
-25-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
C15-0144-JCC, 2016 WL 6650992, *3 (W.D. Wash. Nov. 10, 2016)("This Court
reiterates ... that 'Plaintiffs' underlying assumption is faulty'"(quoting T/e/Je, WL
1687961, at *2)); Hill v. Xerox Bus. Servs. LLC, 868 F.3d 758, 761 (9th Cir. 2017)
("Piecework employees ... are entitled to a minimum wage based on a work-week
period.").^ The majority ushers in its transformation silently, without a single
reference to the California Labor Code or California case law. Yet the appeal to
California law appears consistently throughout the briefing and was mentioned
several times at oral argument. The plaintiffs argue that "California's minimum
wage law has language that is essentially the same as the MWA's language" and
thus "case law from California on the issue of minimum wage compliance is
persuasive." Pis.' Opening Br. on Certified Questions at 23. At oral argument, when
plaintiffs' counsel was asked to clarify whether he was asking the court to interpret
our minimum wage act to mirror the California statute and require hourly
compensation to the exclusion of workweek averaging, plaintiffs' counsel
responded:
^ Notably, in Hill v. Xerox Business Services, LLC, currently before this court on
certified questions from a class action filed in federal court, plaintiffs make the exact same
per-hour argument raised here on behalf of agricultural workers, but there in the context of
nonagricultural pieceworkers. Appellee's (Hill) Answering Br., Hill v. Xerox Bus. Servs.,
LLC, No. 94860-7, at 27 (Wash. Nov. 6, 2017) ("when pieceworkers are required to
perform non-production work during which they cannot earn piece rates—as the call center
workers here have—they are entitled to be paid for each hour of that work time at the
minimum wage or higher").
-26-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
That's right. . . . And so in California there is a series of cases under a
minimum wage law with similar language to our minimum wage law and the
courts have consistently found that you have to separately pay for this work
time—^work time during which employees are unable to earn a piece rate
because they're required to do other things.
Wash. Supreme Court oral argument, Carranza v. Dovex Fruit Co., No. 94229-3
(September 14, 2017), at 8 min., 18 sec. through 9 min., 32 sec., video recording by
TVW, Washington State's Public Affairs Network, https://www.tvw.org; see also
id. at 10 min., 31 sec. through 10 min., 48 sec. (plaintiffs' counsel stating that the
MWA contains language "that is much more like California's language which says
you have to pay per hour for all hours worked"). While the majority is careful not
to directly cite or rely on California law, its interpretation of the MWA fully
embraces the plaintiffs' analogy. Majority at 16.
This attempt to equate the Washington MWA with California's Labor Code
and related case law is untenable. First, contrary to the plaintiffs' argument, the
language of California's minimum wage is not "essentially the same as the MWA's
language." Pis.' Opening Br. on Certified Questions at 23. A California wage order
states that "[ejvery employer shall pay to each employee wages not less than
[minimum wage] per hourfor all hours worked."" Cal. Indus. Welfare Comm'n,
Order 14-2001 § 4(A)(revised July 2014)(Regulating Wages, Hours and Working
Conditions in the Agricultural Occupations) (emphasis added), http://www.dir.
ca.gov/iwc/iwcarticlel4.pdf [https://perma.cc/BRK5-LGH2]. Unlike the MWA's
-27-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
minimum wage provision(or the FLSA,on which the MWA was modeled),the word
"rate" does not appear anywhere in the California statute. Instead, the California
law requires payment of a minimum wage, not a wage rate, per hour "for all hours
worked." California courts have interpreted the "for all hours worked" language as
entitling employees to an hourly minimum wage for each hour worked, therefore
prohibiting workweek averaging as a measure of minimum wage compliance. See
Armenia v. Osmose, Inc., 135 Cal. App. 4th 314, 323, 37 Cal. Rptr. 3d 460(2005)
(holding that "for all hours worked" language "expresses the intent to ensure that
employees be compensated at the minimum wage for each hour worked"); Gonzalez
V. Downtown LA Motors, LP, 215 Cal. App. 4th 36, 155 Cal. Rptr. 3d 18 (2013)
(extending the Armenia decision to piece-rate workers).
Furthermore, whereas the MWA is expressly based on the FLSA, California
courts have consistently held that "the minimum wage provisions ofthe FLSA differ
significantly fi-om California's minimum wage law." Armenia, 135 Cal. App.4th at
323. Whereas the FLSA permits workweek averaging as an acceptable measure of
minimum wage compliance, California courts have interpreted the "for all hours
worked" language in the California wage order as ensuring minimum wage
compensation for each hour worked. Id. And, under California law, workweek
averaging is impermissible for all types of nonhourly employment, including
-28-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
nonagricultural piecework and commission-based employment in addition to
agricultural piecework.
Finally, it is worth noting that California courts have interpreted the different
language of that state's minimum wage law in a way that is consistent with its
enforcing agency's view of the statute—something today's majority refuses to do.
Several years before the first California court even considered the issue of workweek
averaging, California's Division ofLabor Standards Enforcement(DLSE)issued an
opinion letter expressly requiring payment ofthe minimum wage for"each and every
separate hour worked." Letter from Aime Stevason, Acting ChiefCounsel ofDLSE,
to William J. Flynn & Susan Itelson 10 (Jan. 29, 2002), https://www.
dir.ca.gov/dlse/opinions/2002-0l-29.pdf [https://perma.cc/STE3-CCHB]. In its
opinion letter, the DLSE acknowledged that the minimum wage law was susceptible
to two divergent interpretations—^the obligation to pay minimum wage either
"attaches to each and every separate hour worked" or extends to "the total number
of hours worked in the pay period," without consideration of any hour in isolation.
Id. The DLSE endorsed the former interpretation and expressly rejected the
averaging formula for all employment types, separating California's minimum wage
act from the FLSA.
-29-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
As noted, Washington's DLI has read our different statutory language
differently and has consistently endorsed the use of workweek averaging for all
nonhourly employees, as evidenced by DLI's regulations, administrative policies,
and guidance. In contrast to the DLSE's explicit rejection of workweek averaging
under California law, DLI has steadily assured Washington employers and
employees that workweek averaging is acceptable under the MWA. That the DLSE
and our DLI would take opposite positions as to workweek averaging makes perfect
sense given our distinguishable statutory frameworks. Whereas California's
minimum wage law establishes a minimum wage per hour "for all hours worked,"
Washington's MWA,like the FESA, establishes a minimum rate of pay per hour,
permitting the relative value of an employee's wage to be measured per hour (i.e.,
weekly earnings divided by hours worked). This entire history of different statutory
language and different agency interpretations is absent from the majority opinion,
which ushers in a radical change in the MWA with very little analysis.
The majority's reinterpretation of RCW 49.46.020 charts an entirely new
direction for minimum wage compliance in Washington. Everyone, including DLI,
will have to revise years of policy and practice, and the legislature will have to
further consider whether statutory provisions that interact with RCW 49.46.020 need
to be amended. See, e.g., RCW 49.46.130(1)(requiring payment of overtime at one
-30-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
and one-half times the employee's "regular rate"); WAC 296-128-550 (allowing
overtime pay based on either the piecework rate during the overtime period or the
"regular rate of pay" determined by workweek averaging). All of this is so
unnecessary because the MWA does not require it. Washington's minimum wage
law fully allows for piece-rate compensation schemes that rely on workweek
averaging, so long as pieceworkers are paid at least the minimum wage rate for every
hour worked.
CONCLUSION
Piece-rate compensation plans are wholly consistent with the MWA, and
piece-rate pay may subsume both production and nonproduction time for agricultural
workers. Nothing in the text, purpose, or history of the MWA requires employers
to pay a separate "per hour" wage for the time employees spend on "Piece Rate
Down Time and similar activities." I would answer no to the first certified question
and, therefore, not address the second question.
-31-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
5
/
A_
-32-