Wingert v. Yellow Freight Systems, Inc.

Alexander, C.J.

(dissenting) — Although I agree with the conclusion reached by Justice Sanders in his dissent, I write separately in order to set forth additional reasons for my disagreement with the majority’s holding that Roger Wingert and the other named respondents (Wingert) have (1) a right to maintain a private cause of action pursuant to RCW 49.52.070, and (2) an implied cause of action under chapter 49.12 RCW.

As the majority observes, RCW 49.52.070 provides for a civil cause of action against employers who violate any provisions of subsections (1) and (2) of RCW 49.52.050. RCW 49.52.050(2) provides that it is a misdemeanor for an employer to “wilfully and with intent to deprive . . . pay any employee a lower wage” than that required by “statute, ordinance, or contract.” RCW 49.52.050 does not, however, provide that it is a misdemeanor to pay an employee a lesser wage than that which the employer is obligated to pay pursuant to a regulation. Application of the statute is limited by its own language to cases in which the employer has breached the requirements of a statute, ordinance, or contract. This is significant here because Wingert’s cause of action against Yellow Freight is based on Yellow Freight’s alleged violation of a regulation, WAC 296-126-092.

*855The majority recognizes that the plain language of the statute precludes its application for violations of a regulation. It nevertheless finds RCW 49.52.050 applicable here on the basis that “ ‘ “properly promulgated, substantive agency regulations have the “ ‘force and effect of law.’ ” ’ ” Majority at 848 (quoting Manor v. Nestle Food Co., 131 Wn.2d 439, 445, 932 P.2d 628, 945 P.2d 1119 (1997) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 295, 99 S. Ct. 1705, 60 L. Ed. 2d 208 (1979)). In doing so it ignores this court’s repeated admonition that “ ‘Courts should assume the Legislature means exactly what it says.’ Plain words do not require construction.” Berger v. Sonneland, 144 Wn.2d 91, 105, 26 P.3d 257 (2001) (footnote omitted) (quoting W. Telepage, Inc. v. City of Tacoma, 140 Wn.2d 599, 609, 998 P.2d 884 (2000)). Regulations can have the full force and effect of law, but they are not statutes. More importantly, regulations are not included under RCW 49.52.050. The effect of the majority’s decision is to rewrite the statute to include regulations, a task that is only within the province of the legislature.

The majority also concludes that Wingert has an implied cause of action under chapter 49.12 RCW for unpaid wages. In reaching this conclusion, the majority employs the three-part test set forth in Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258 (1990). The second part of that test asks whether the “legislative intent, explicitly or implicitly, supports creating or denying a remedy.” Id. at 920. The majority answers this question in the affirmative, indicating that the Department of Labor and Industries, through authority delegated to it by the legislature, would not have enacted a regulation requiring periodic rests “ ‘if it did not intend for employees to be able to enforce that right.’ ” Majority at 850 (emphasis added) (quoting Wingert v. Yellow Freight Sys., 104 Wn. App. 583, 591-92, 13 P.3d 677 (2000) , review granted, 144 Wn.2d 1009, 32 P.3d 284 (2001) ). While that is perhaps true, the legislature enacted RCW 49.52.050, and, as noted above, chose to omit violations of regulation as a basis for a cause of action. In short, it is the intent of the legislature that governs, and its intent is evinced by the language it has used in the statute. This *856court should adhere to the plain language and not imply a cause of action where one does not exist.