(dissenting) — Under the Washington Minimum Wage Act, chapter 49.46 RCW, a person is entitled to overtime compensation paid at one and one-half times their regular rate of pay if that person works more than 40 hours in a week. RCW 49.46.130(1)52 While the majority believes *536our interpretation of chapter 49.46 RCW must be done in lockstep with the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 (FLSA), we need not automatically adopt the federal interpretation of the FLSA when interpreting chapter 49.46 RCW. This is particularly so where the. concept of a so-called fluctuating workweek detracts from the clear policy of overtime wage compensation expressed in RCW 49.46.130. I therefore dissent. Consequently, I would reverse the decision of the. Court of Appeals and the trial court’s order on summary judgment in favor of Tandy Corporation, d/b/a Radio Shack (Radio Shack), and remand the case for trial on the question of whether Radio Shack paid its managers proper overtime compensation.
The majority has accurately described the facts of this case. The plaintiffs are managers for Radio Shack who possess Master of Business Administration degrees and are paid a base pay plus certain commissions, bonuses, and incentive bonuses. These managers were expected to work in excess of 40 hours per week, but were paid not as exempt managerial staff (see RCW 49.46.010(5)(c); WAC 296-128-510 (executive exemption)) but on a so-called fluctuating workweek basis. Yet, the managers’ fluctuating workweek never really fluctuated; they always' worked more than 40 hours per week.
Without getting into the mathematical calculation of wages in this case, there is no question the managers paid under Radio Shack’s formula worked in excess of 40 hours per week; but for each hour of work beyond 40, they were effectively paid less remuneration as their workweek lengthened in duration. Rather than offering an incentive to employers to spread employment and hire additional workers, an employer like Radio Shack would have an actual incentive to work employees, like their managers, an ever increasing number of hours because the effective rate *537paid to such individuals would diminish with the additional hours worked.
The majority interprets RCW 49.46.130(1), which provides for time-and-a-half compensation for overtime, consistently with the FLSA because the Washington statute does not define the term “regular rate.” The majority adopts the concept of a fluctuating workweek from federal law as a part of the definition of “regular rate” in RCW 49.46.130(1). See, e.g., Walling v. A.H. Belo Corp., 316 U.S. 624, 62 S. Ct. 1223, 86 L. Ed. 1716 (1942) and Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 62 S. Ct. 1216, 86 L. Ed. 1682 (1942). The majority also notes a specific federal regulation provides for a fluctuating workweek as part of the FLSA definition of an employee’s regular rate for purposes of overtime compensation. See 29 C.F.R. § 778.114. The majority believes our Department of Labor and Industries has followed the approach articulated in 29 C.F.R. § 778.114 with the adoption of WAC 296-128-550 and the Department’s Interpretive Guideline ES-032 at 3 (July 1992); Clerk’s Papers at 29.
As we clearly indicated in Drinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 298, 996 P.2d 582 (2000), chapter 49.46 RCW and the FLSA are not identical; thus, we are not bound by such federal authority. Nonetheless, the FLSA may be a helpful guide when interpreting Washington’s wage and hour laws. Id.
But, I cannot justify importing into Washington law this federal fluctuating workweek policy when the employee’s workweek does not truly fluctuate. If the managers’ workweek actually fluctuated above or below 40 hours per week, it is conceivable the policy may have some fairness for both employers and employees. But in cases such as this one, where the employer uses this policy as a justification to work employees far beyond 40 hours per week for wage rates that effectively diminish with the more hours worked, we should not enforce such a policy. Instead of carrying out the ostensible policy of overtime compensation laws — to pay employees more for work beyond 40 hours per week and to *538encourage employers to hire additional employees — we today condone a practice entirely at odds with the root policy of overtime compensation laws.53
The purpose of overtime wage laws is to encourage employers to spread employment by hiring additional workers rather than paying overtime. See, e.g., Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 460, 68 S. Ct. 1186, 92 L. Ed. 1502 (1948). In fact, some courts across the United States have held the fluctuating workweek concept defeats the very purpose of overtime wage statutes. The Alaska Supreme Court reached this conclusion regarding its minimum wage law in Dresser Industries, Inc. v. Alaska Department of Labor, 633 P.2d 998 (Alaska 1981). In that case, the Alaska Supreme Court held the use of the fluctuating workweek allows employers to decrease the workers’ average hourly wage as the workers’ overtime increases, which “contravenes the policies of requiring increased overtime compensation and promoting the spreading of employment.” Id. at 1006. See also Skyline Homes, Inc. v. Department of Industrial Relations, 165 Cal. App. 3d 239, 211 Cal. Rptr. 792 (1985). These states are correct. A fluctuating workweek concept, as practiced here, is inconsistent with RCW 49.46.130(1).
Although we have determined the fluctuating workweek concept may not be applied in this case, we have not resolved all the issues in this case. The calculation of an employee’s base rate of pay includes salary, commissions, and certain bonuses. See WAC 356-05-353. The trial court here made no explicit findings with respect to the managers’ base rate of pay for purposes of overtime wage compensation. I would remand the case to the trial court for *539calculation of what constituted the base rate of pay paid to the managers and whether the compensation actually paid to them by Radio Shack was in compliance with the time-and-a-half requirement of chapter 49.46 RCW.
Johnson, Alexander, and Ireland, JJ., concur with Talmadge, J.
Reconsideration denied October 18, 2000.
RCW 49.46.130(1) states:
Except as otherwise provided in this section, no employer shall employ any of his employees for a work week longer than forty hours unless such employee *536receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
Radio Shack argues the managers did not expressly attack the propriety of WAC 296-128-550 as against RCW 49.46.130(1). The entire focus of the managers’ complaint here is the impropriety of the fluctuating workweek under our overtime compensation law. Clerk’s Papers 13A at 3. The issue is sufficiently preserved for judicial review. See generally State v. Barker, 98 Wn. App. 439, 446 n.26, 990 P.2d 438 (1999) (stating a Washington appellate court has the authority to waive the rules of appellate procedure when necessary “to serve the ends of justice”) (citing RAP 1.2(c)); see Sutton v. Hirvonen, 113 Wn.2d 1, 8, 775 P.2d 448 (1989) (stating a reviewing court may consider an issue not raised in the trial court if justice demands) (citing RAP 1.2(a), (c)).