dissenting:
I
The Savings Plus Plan
Microsoft has a payroll department, and it has a separate accounts payable department. Because these plaintiffs were regarded both by Microsoft and by themselves as independent contractors or freelancers, Microsoft did not budget or pay for them through the payroll department, but through the accounts payable department. This commonplace distinction is fatal to the plaintiff’s request for Savings Plus Plan (“SPP”) benefits because to be eligible for these benefits, they have to have been on the employer’s “payroll.” The Plan itself so states.
As freelancers, the plaintiffs worked for Microsoft with the clear understanding that they were not entitled to the benefits they now seek. They knew Microsoft paid them based on the submission of invoices and out of accounts payable. Nevertheless, they now contend-without a foot to stand on-that they were indeed on Microsoft’s “payroll” and thus eligible for SPP benefits. In my reading of this record, they were not on Microsoft’s “payroll,” period. I agree with the district court’s analysis. All this may seem formalistic to the casual reader, but it was an important distinction to Microsoft, and to these workers when they agreed as freelancers to perform work for this company.
How the plaintiffs got on Microsoft’s payroll budget from the accounts payable department is a strange tale based not on the facts, but on an immaculate patching together by the majority of a series of interpretations, constructions, presumptions, plausibilities, assertions, and assumptions, topped off by an irrelevant definition of “payroll” in a Random House dictionary. This amalgam is driven in turn by an IRS ruling that the majority takes way beyond its necessary reach. The majority’s strained and Urbanesque journey belies its claim that it does not create ambiguity where none exists. In the context of this ease-forget Random House-“payroll” has an ascertainable meaning illustrated in large measure by the existence in Microsoft of an alternative method of paying people for their work: out of accounts payable. Anyone familiar with business is familiar with this distinction. Where is the ambiguity but in the eyes of uninitiated outsiders? I discern none, and the plaintiffs saw none either when they voluntarily worked under these circumstances.
As the majority indicates, we interpret terms in ERISA plans “in an ordinary and popular sense as would a person of average intelligence and experience,” but we should do so with an eye to what those hypothetical people actually know (e.g., that they did not bargain for the payroll benefits they now seek). To do otherwise is to engage in head-in-the-sand thinking. All the maxims invoked by the majority to support their holdings are useless unless they square with the facts. If I know I have a “no benefits” contract, for example, what good does it do to ask what the ordinary average Babbitt (George, not Bruce) might believe after read*1201ing a Random House dictionary? These plaintiffs were university-educated. One had a law degree. They knew what they were getting into, and contra proferentem should not suggest otherwise. The majority’s preference for answering this issue as a theoretical rather than a real question is wrong.
But for the sake of argument, we can ignore the contextual definition of “payroll” and concede the existence of an ambiguity created by the words “United States.” Then we can examine extrinsic evidence to see if the plaintiffs have a righteous claim to this benefit. Here, their argument becomes tenuous in the extreme. The plaintiffs have not presented a shred of relevant extrinsic evidence that would justify their belief (after signing the documents they did and after accepting the contractual relationship governing this case) that they were on the payroll and entitled to any of the payroll benefits of regular employees, including the SPP. Plaintiff Vizcaino’s answers in her deposition testimony, answers representative of the testimony of all plaintiffs, adequately illustrate this point:
Q. You didn’t ask anything [during your initial interview] about the benefits on this job?
A. Well, yeah, I must have I guess. I don’t remember what we said but, I guess it— yeah, we weren’t going to get benefits at that time.
Q. Okay. And just so we understand each other, when you say benefits-let me rephrase the question. By benefits I assume that you mean, and correct me if I’m wrong, things like holidays, vacation, sick leave, other kinds of paid leave, participation in the employee stock purchase plans, that kind of thing. Is that the way you mean benefits?
A. Yeah.
Q. Okay. Now, at the end of this conversation, this interview with Ms. Carter, I assume it was at the end of the conversation, did you accept the position on the terms that had been discussed in that interview?
A. Yes.
(emphasis added). Equally telling is the deposition testimony of plaintiff Culbert:
Q. Did you ever hear anybody use the term “regular employee” during your time at Microsoft when you were a freelancer?
A. I do recall, yes.
Q. And when that term was used did you understand it to refer to people who were salaried as opposed to freelancers?
A. Yes.
Q. So that until this status change [when Culbert became a regular employee] in October of 1989 you were never a regular employee at Microsoft?
A. I worked at Microsoft consistently.
Q. But you were never what was referred to as a regular employee?
A. That’s correct. I was never what was referred to as a regular employee at that time, correct.
Q. And I take it at no time before October of 1989 did you ever apply for benefits of any type from Microsoft: sick leave, vacation, holidays, participation in the employee stock purchase program?
A. I didn’t apply for those things.
* * * * * *
Q. But during the course of the next few weeks or months [after beginning work at Microsoft] it became clear to you that being a freelancer meant that you got no benefits?
A. That it meant something, if I may, it meant that in some ways I was different from the regular salaried employees with whom I worked.
Q. But among those ways of which it made [sic] you different was that you got no benefits?
A. Correct.
(emphasis added). In the light of this testimony, this case becomes just another example of litigants trying to force their feet into glass slippers that do not fit. As the magistrate judge correctly observed, these plaintiffs had express contracts for “no benefits.”
*1202Why they would accept such an arrangement without benefits is also clear from the record: Microsoft paid them more cash on an hourly basis than regular employees. Plaintiff Culbert explains:
Q. Did you have any understanding at that time [when you became a regular employee of Microsoft] about whether it was common for freelancers to be making more on an hourly basis than the equivalent hourly rate for people who were regular salaried employees?
A. Yes.
Q. What was your understanding?
A. That in general freelance production editor [sic] on a gross cash basis would stand to make more than a regular staff employee.
Nevertheless, the plaintiffs brought this lawsuit pursuing not only SPP and stock purchase benefits, but vacation, sick leave, holidays, short-term disability, and group health and life insurance as well, i.e., the best of both worlds.
With all respect to my colleagues, their atmospheric use of the IRS’s determination to shore up their analysis by suggesting Microsoft is a tax cheat is gratuitous and inappropriate. I do not discern on the part of Microsoft an unlawful purpose to violate the tax laws. What the IRS does for the purpose of collecting its due-both early and from the most reliable pocket-need not cast a dark light on a relationship with which both Microsoft and these employees were comfortable. It simply does not follow either from the IRS’s ruling or from Microsoft’s compliance with it (1) that these plaintiffs were payroll employees or (2) that to deny the plaintiffs’ claim gives Microsoft unacceptably unclean hands. To quote the United States General Accounting Office in June of 1996,
[M]any employers struggle in making the [employee/independent contractor] classification decision because of the unclear rules. Until the classification rules are clarified, we are not optimistic that the confusion over who is an independent contractor and who is an employee can be avoided. The Treasury Department characterized the situation in 1991 in the same terms as it used in 1982; namely, that “applying the [20 factor] common law test in employment tax issues does not yield clear, consistent, or satisfactory answers, and reasonable persons may differ as to the correct classification.”1
As the magistrate judge observed, “[p]lain-tiffs concede that the IRS ruling ... is in no way binding on this court.” The IRS’s familiar aggressive tax collection position and Microsoft’s payroll argument can exist independently of each other without doing violence to the law.2
By tone and by choice of words the majority seems subtly to accuse Microsoft of reprehensible conduct towards its workers. Microsoft is identified as “refusing” to pay its workers fringe benefits as though it did something wrong in creating the contractual relationships in this case. Later in the opinion the majority charges Microsoft with “misrepresenting” to the plaintiffs their employment status and with taking advantage of them. They clothe Microsoft with a Dickensian anti-labor attitude. Such characterizations spring full-bloom from the first sentence of the majority’s opinion where “avoiding payment of employee benefits” and “increasing profits” foreshadow the negative coloration of the infidel Microsoft’s role in this drama. The majority’s tone and accusations go against the factual record as developed and described by the magistrate judge in his Report and Recommendation dated April 15, 1994:
Plaintiffs offer the explanation that Microsoft really knew all along that they were regular “employees” entitled to benefits, *1203and hid this entitlement from them by “mislabelling” them as independent contractors or freelancers. This argument is not persuasive. “Mislabelling” as used by Plaintiffs implies a unilateral act by Microsoft which in some way hid their true status from Plaintiffs. In truth, Microsoft was quite open about the terms of its working relationships with Plaintiffs on the subject of employee benefits and each of the Plaintiffs fully understood and accepted those terms.
(emphasis added).
Neither federal nor state law mandates the benefits sought, nor does the applicable collective bargaining agreement. Microsoft was free to offer the benefits in return for work as Microsoft saw fit. Thus, the majority seems to overlook the constitutional right of private parties freely to enter into contracts of their own choice and benefit. It is not for the courts under these circumstances to add clauses to agreements that the parties never contemplated, or to accuse parties of attitudes and behavior of which they are not guilty. Congress designed ERISA to protect benefits workers already had, not to give them benefits for which they did not contract. See 18 U.S.C. § 1001 (Congressional findings and declaration of policy).
II
The Employee Stock Purchase Plan
The plaintiffs’ second claim of entitlement is to stock option benefits under Microsoft’s Employee Stock Purchase Plan (“ESPP”), a claim we process under the law of the State of Washington. The law in question is the Washington law of contracts.
As with the plaintiffs’ first claim, the majority engages in analytical gymnastics to find a contractual right where none exists. No one disputes that the offer made by Microsoft and accepted by the plaintiffs explicitly excluded the ESPP benefits now sought. Plaintiffs freely admit as demonstrated earlier that they never expected when these contracts were formed to receive any such benefits. Microsoft never offered the benefits to the plaintiffs, either bilaterally or unilaterally, the plaintiffs never accepted them, and the plaintiffs never relied on them in any way whatsoever as part of their compensation package. As the magistrate judge found in his Report and Recommendation,
Microsoft indeed offered such benefits to its “regular employees” and described them in employee handbooks issued to regular employees, but not to freelancers. Moreover, it is not contended by any Plaintiff that he/she was ever offered such benefits by any Microsoft spokesperson, or even a handbook, and to the extent that any of them saw the books, they understood that they were not entitled to them.
Thus, without an offer, without acceptance, without consideration, and without a meeting of the minds, the majority creates by operation of law a contractual right on behalf of these plaintiffs that they never even contemplated until this lawsuit began.
This unpredictable result is so radical that it trespasses on Article I, section 10, Clause 1 of the Constitution, which prohibits a state from impairing the obligation of contracts. Neither through legislation nor by judicial act could a state severely transmogrify a contractual obligation in this manner and force one party to it to confer such benefits on the other. The result in this case resembles the thrust of the Minnesota statute struck down by the Supreme Court in Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 98 S.Ct. 2716, 57 L.Ed.2d 727 (1978). In that case, Minnesota had enacted a law requiring certain private employers who provided pension benefits under a plan meeting the qualifications of section 401 of the Internal Revenue Code to provide pension benefits “conspicuously beyond those that [the company] had voluntarily agreed to undertake.” Id. at 240, 98 S.Ct. at 2720. The Supreme Court held this statute unconstitutional under the contracts clause (1) because it failed to deal with a “broad, generalized economic or social problem,” and (2) because of its narrow aim at only certain employers. The Court noted also in the employer’s favor (1) that the employees of Allied Structural never relied on the statutory benefit at issue, and (2) that the statute “compelled the employer to exceed bargained-for expectations *1204and nullified an express term of the pension plan.” Id. at 246 n. 18, 98 S.Ct. at 2723 n. 18. Justice Stewart said,
The severity of an impairment of contractual obligations can be measured by the factors that reflect the high value the framers placed on the protection of private contracts. Contracts enable individuals to order their personal and business affairs according to their particular needs and interests. Once arranged, those rights and obligations are binding under the law, and the parties are entitled to rely on them.
Id. at 245, 98 S.Ct. at 2723.3 Because we are bound to apply state law to this dispute, we have no authority to impair the obligation of these contracts either. To do so is tantamount to depriving Microsoft of property without due process of law.
CONCLUSION
The IRS’s understandably tough enforcement program not only collects more money for the government, but it now has the unforeseen and unnecessary consequence of forcing employers retroactively to extend to workers optional benefits for which they did not contract. I perceive no need whatsoever to permit the IRS’s ruling to spill out of its unique context and to do damage to contracts between companies and workers. The ruling and the contracts can exist independently of each other. Peaceful coexistence simply means that all workers will be made to pay their taxes, no more, no less, and that all workers will get that for which they bargained. Thus, I respectfully dissent.
. General Accounting Office, Pub. No. GAO/T-GGD-96-130, Tax Administration: Issues in Classifying Workers as Employees or Independent Contractors 5 (1996) (statement of Natwar M. Gandhi, Associate Director, Tax Policy and Administration Issues, General Government Division).
. Because independent contractors have been found by the IRS to have a lower compliance rate than employees in paying their taxes-to the tune of two to three billion dollars a year-the IRS adopted an aggressive enforcement program in 1986 resulting to date in 12,983 Employment Tax Examination Program audits and the reclassification of 527,000 workers. Id.
. See also Associated Builders & Contractors, Golden Gate Chapter v. Baca, 769 F.Supp. 1537 (N.D.Cal.1991) (holding that municipal legislation requiring contractors to pay minimum wages and benefits in order to receive private building permits unconstitutionally impaired the contractors’ collective bargaining contracts).