For years, Washington’s employment laws were to California’s like Macklemore was to Dr. Dre – yes, they had a west coast flavor, but they weren’t as scary as California. Washington laws provided for meal and rest breaks, but there wasn’t much class action litigation. They allowed non-competes, and averaging of wages to determine if someone was paid minimum wage. But Washington is now coming out as Snoop Dogg and fully embracing its West-Side street cred, just like the original on Dre’s The Chronic.
First, in 2015, the Washington Supreme Court in Demetrio v. Sakuma Bros., 183 Wash.2d 649 (2015),held that agricultural piece-rate workers must be separately paid for rest breaks, even if they are paid completely for their time worked. This certainly had the flavor of California’s own decision in Gonzalez v. Downtown LA Motors, 215 Cal.App.4th 36 (2013), but was a good example of Washington paying homage to the godfathers like Cube and Jerry Brown down south that led the way, without overshadowing its mentor.
Then in 2017, Washington decided to make its own mark, announcing itself as a full member of the West-Side’s Death Row of employment laws by deciding in Brady v. AutoZone Stores, Inc., 188 Wash.2d 576, that Washington employers have a “mandatory obligation” to provide meal breaks, and ensure those meal breaks complied with the law. This went beyond what California’s Supreme Court had held in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), where the employer’s obligation is to “provide a reasonable opportunity to take an uninterrupted 30-minute break.” Needless to say, there was rejoicing among the Plaintiffs’ bar at this decision, and class action litigation exponentially increased in Washington as a result.
Now fast forward to 2018, when Washington has followed up its cameo appearance with its own Doggystyle moment, holding that piece-rate agricultural workers must be compensated separately for “non-picking” tasks in Carranza v. Dovex Fruit Company, 416 P.3d 1205 (2018). This decision is limited to agricultural workers, but aggressive plaintiffs lawyers have filed multiple class actions within days of this ruling and further litigation regarding piece-rate compensation will surely occur.
To understand Dovex, you have to look at the lyrics of the parties in this case. On one side of the wage-and-hour battle, the Plaintiffs argued that work that did not fall within the piece rate must be paid out at a separate hourly rate. The employer argued that what mattered is the total compensation paid to the employee for the total hours worked.
The Supreme Court broke this down to hold that, essentially, when a picker was not picking, he or she was not being paid . This varies from the federal interpretation of the FLSA, endorsed by (among others) the FLSA, which holds that minimum wage compliance is determined over the entire work week. Dovex does follow California law, however, which requires that employees be paid at least the minimum wage for “each and every separate hour worked,” and if an employee was paid via piece rate, he or she was not being paid for all the tasks they performed over the course of the day . For now, Washington has regulations, WAC 296-126-021, that specifically allow for (non-agricultural) piece-rate workers’ weekly wages to be averaged across all hours worked in a workweek to determine minimum wage compliance. California just seems to be too old-school to have a regulation that makes this much sense.
So what does this mean for Washington employers, and others who are operating on the West Coast? It is fair to say that there will likely be more class action litigation, and the cost of doing business may increase, just as it has in California. Employers can proactively assess their policies in light of this trend, looking at the cases currently pending before the Washington Supreme Court to identify possible concerns, and address those before the rules are retroactively changed. And employers can look to California to better understand where Washington is going, though knowing that the young ones are always trying to outdo the OGs.
1. I’ll let you determine where Oregon falls within this analysis. My vote is for the Black Eyed Peas.