Clawson v. Grays Harbor College District No. 2

The "salary basis" test adopted in Drinkwitz v. AlliantTechsystems requires that "professional" employees receive a predetermined amount in each pay period, not subject to reductions because of variations in the quality or quantity of work performed. 140 Wn.2d 291, 300, 996 P.2d 582 (2000).

As the majority notes, because the Washington Minimum Wage Act (MWA), chapter 49.46 RCW, is a remedial act, we narrowly construe the professional exemption. I agree with the majority that the petitioners are paid a predetermined amount which is not subject to reduction regardless of the quality or quantity of work. I also agree that under Drinkwitz "calculating `exempt' employees' compensation using an hourly rate and including this hourly rate in personnel records" does not per se violate the MWA so long *Page 549 as the predetermined amount is honored. Drinkwitz,140 Wn.2d at 302. Nonetheless, Drinkwitz makes it clear that it is the total employment relationship which is under scrutiny when examining whether the professional exemption should apply.

The majority adopts the federal exception for public employees under 29 C.F.R. § 541.5d, which permits docking or leave without pay where the policy is "`established pursuant to principles of public accountability.'" Majority at 543-44. Without the exception for public employees approved by the majority, a practice of docking pay for partial-day absences after accrued sick leave has been exhausted would violate the MWA.

I agree with the majority that the use of "contact hours" to calculate the salary does not violate the MWA "salary basis" under these facts. However, where the use of hours for calculation of the "salary" is taken together with other employment requirements, such as a set workday schedule, recording time, weekly hourly quotas or other such employment practices, the "duties" test may be violated. No such practices are raised in this case; thus, the parties stipulated the "duties" portion of the test is satisfied to determine whether an employee was exempt from the MWA as a "professional." Majority at 537 n. 31.

Petitioners argued that the "salary basis" was violated based upon comparisons of their duties, time expended, and pay received to those of full-time faculty. However, the case was not well developed from a factual standpoint to allow for such an analysis. Therefore, I concur in the decision of the majority.

CHAMBERS, J., concurs with IRELAND, J.

*Page 550