* Carranza v. Dovex Fruit Co.

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This opinion was filed for record
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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CERTIFICATION FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF WASHINGTON
IN
MARIANO CARRANZA and
ELISEO MARTINEZ,individually
and on behalf of all others similarly
situated,
Plaintiffs,
V.
DOVEX FRUIT COMPANY,
Defendant.
No. 94229-3
En Banc
Filed: may I 0 2018
YU,J. — The Washington Minimum Wage Act(MWA),chapter 49.46
ROW,requires employers to compensate employees for their work. This case asks
us to apply that general principle to the specific context of agricultural workers
who are paid on a piece-rate basis for piece-rate picking work by answering the
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Carranza v. Dovex, No. 94229-3
following two questions, which were certified to us by Judge Mendoza ofthe
United States District Court for the Eastern District of Washington:
A. Does Washington law require agricultural employers to pay
their pieceworkers for time spent performing activities outside of
piece-rate picking work (e.g.,"Piece Rate Down Time" and similar
work)?
B. If the answer to the above question is "yes", how must
agricultural employers calculate the rate of pay for time spent
performing activities outside of piece-rate picking work (e.g.,"Piece
Rate Down Time" and similar work)?
Order Certifying Questions & R. to Wash. Supreme Ct. & Staying Deadlines &
Proceedings, Carranza v. Dovex Fruit Co., No. 2:16-cv-00054-SMJ at 2(E.D.
Wash. Mar. 3, 2017)(Order Certifying Questions).
The answer to the first certified question is yes. The plain language ofthe
MWA requires employers to pay their adult workers "at a rate of not less than [the
applicable minimum wage]per hour.'" RCW 49.46.020(l)-(3)(emphasis added).
There is no exception, other statutory provision, or judicial or executive
interpretation that allows employers to evade this plain language in the context
presented. Therefore, agricultural workers may be paid on a piece-rate basis only
for the hours in which they are engaged in piece-rate picking work. Time spent
performing activities outside the scope of piece-rate picking work must be
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Carranza v. Dovex, No. 94229-3
compensated on a separate hourly basis.' We thus reject Dovex Fruit Company's
argument that it need ensure only that each worker's average weekly compensation
is equal to at least minimum wage.
The parties disagree about which, if any, tasks are outside the scope of
piece-rate picking work. See Pis.' Opening Br, on Certified Questions at 3-4; Def.
Dovex Fruit Co.'s Answering Br. at 2-3. Judge Mendoza described this category
of work as "not explicitly accounted for through piece-rate compensation." Order
regarding Certification Questions to Wash. Supreme Ct. at 7. We recognize that
what is accounted for by the piece rate is a factual dispute beyond the scope of the
'Contrary to the dissent's assertion that we have "define[d] away the certified question"
and "recast[] all work except piece-rate picking work as hourly work," dissent(Stephens, J.) at 5,
4, Judge Mendoza explained the issue as follows:
The Court is unpersuaded by Defendant's framing of the question here as a
potential "double-payment" to piece-rate workers. The issue is not whether Plaintiffs
seek to be paid twice for work that is allegedly already compensated through the
"averaging framework." Rather, the question is how Washington law accounts for work
performed by piece-rate workers that is not explicitly accounted for through piece-rate
compensation (e.g.,"Piece rate Down Time" and similar work). As the Lopez Demetrio
[v. Sakuma Bros. Farms, 183 Wn.2d 649, 355 P.3d 258(2015)] court found "[t]he piece
rate is the only compensation the Workers receive." Lopez Demetrio, 355 P.3d at 261.
Indeed, if the worker "is not picking . . ., the picker is not earning money." Id. (citing a
representative for the defendant in that case). Moreover, it is not clear that the averaging
framework govems in the agricultural context. Further, neither party points to authorities
that definitively resolve the question of how non-piece-rate work (e.g.,"Piece rate Down
Time" and similar work) is or should be calculated and paid to pieceworkers. Neither has
this Court been able to find such legal authority. And whether the averaging framework,
or another compensation scheme, applies to these workers is a question oflaw for the
Washington Supreme Court to consider and answer.
Order regarding Certification Questions to Wash. Supreme Ct. at 7-8 (citations and
footnote omitted).
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Carranza v. Dovex, No. 94229-3
certified question presented. Discovery is ongoing, and we defer resolution of the
question to the district court.
We answer the second certified question consistent with the parties'
position. The rate of pay for time spent performing activities outside of piece-rate
picking work must be calculated at the applicable minimum wage or the agreed
rate, whichever is greater.^
BACKGROUND
This case began in 2016 when the two named plaintiffs filed this putative
class action lawsuit against Dovex on behalf of Dovex's seasonal and migrant
agricultural employees. Each summer, Dovex employs hundreds of seasonal and
migrant workers, many of whom speak limited English, to harvest apples, pears,
and cherries in Dovex's orchards. The plaintiffs allege that Dovex violated state
and federal law by willfully refusing to pay wages and failing to "pay minimum
wage, provide paid rest breaks, maintain accurate and adequate time and wage
records, pay wages when due,[and] provide accurate statements of hours worked."
Order Certifying Questions at 1.
^ Prior to oral argument, the plaintiffs filed a motion to strike a portion of Dovex's
answer to amici that addresses for the first time whether this court's decision should be applied
retroactively. We passed the motion to the merits and now grant. The amici briefs do not raise
retroactivity, and RAP 10.3(f) provides that an "answer to a brief of amicus curiae should be
limited solely to the new matters raised in the brief of amicus euriae."
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Carranza v. Dovex, No. 94229-3
The only claim relevant to the certified questions presented here relates to
agricultural workers who are paid on a piece-rate basis, which is a specified
amount of money per bin of picked apples or pears, or per "lug" of picked cherries.
Pis.' Opening Br. on Certified Questions at 3. Such workers' rate of pay is based
on how many pieces of fruit are actually picked during a pay period.
The plaintiffs allege that Washington law requires Dovex to compensate
them separately and in addition to the agreed upon piece rate for the time they
spend on tasks outside of piece-rate picking. They agree that the piece rate
compensates them for some tasks that are not strictly picking fruit, including going
up and down ladders, moving between trees, and emptying fruit bins. Pis.' Reply
Br. on Certified Questions at 2. However,they argue they have a right to separate
payment for time spent on other tasks such as transporting ladders to and from the
company trailer, traveling between orchards and orchard blocks, attending
mandatory meetings or trainings, and storing equipment and materials. Pis.'
Opening Br. on Certified Questions at 3.
Dovex responds that the plaintiffs are already fully compensated by the
piece rate because all of the tasks they perform are part of piece-rate picking work.
Def. Dovex Fruit Co.'s Answering Br. at 14. Although Dovex admits that it now
pays its employees additional compensation for time spent on some nonpicking
activities, it is undisputed that during the relevant time period Dovex did not.
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Carranza v. Dovex, No. 94229-3
Stipulation of Facts for Questions Certified to Wash. Supreme Ct., Carranza v.
Dovex Fruit Co., No. 2:16-cv-00054-SMJ at 3,4(E.D. Wash. Feb. 10, 2017).
The certified questions present a narrow issue that limit our conclusion to
the context of agricultural workers.^ We must decide whether the pay structure
used by Dovex is prohibited by the MWA and, if so, the rate of pay at which the
workers' time spent on tasks outside of piece-rate picking work must be
compensated. We are not asked to decide which, if any, tasks are outside of piece-
rate picking work in this case, and we do not attempt to do so. The scope of piece-
rate picking is a question offact, not law, and is therefore appropriately left to the
district court.
ISSUES
1. "Does Washington law require agricultural employers to pay their
pieceworkers for time spent performing activities outside of piece-rate picking
work (e.g.,'Piece Rate Down Time' and similar work)?" Order Certifying
Questions at 2.
^ The dissent rewrites the certified question to address a much broader issue than the one
before this court. The dissent frames the issue as "whether the MWA allows piece-rate pay to
subsume nonproduction work time." Dissent(Stephens, J.) at 14 n.5; see also id. at 2. We do
not opine on the legitimacy of a compensation structure similar to Dovex's when used outside
the context of agricultural work.
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Carranza v. Dovex, No. 94229-3
2. "If the answer to the above question is 'yes', how must agricultural
employers calculate the rate of pay for time spent performing activities outside of
piece-rate picking work (e.g.,'Piece Rate Down Time' and similar work)?" Id.
ANALYSIS
First Certified Question
The MWA "establish[es] minimum standards of employment within the
state of Washington," including setting the minimum wage. RCW 49.46.005(1).
Thirty years after its enactment, the MWA was expanded to apply to agricultural
workers by the will of the people pursuant to their initiative power.'^ Laws OF
1959, ch. 294, § l(5)(a); Laws of 1989, ch. 1, § l(5)(a).
The MWA states that "every employer shall pay to each of his or her
employees who has reached the age of eighteen years wages at a rate of not less
than [the applicable minimum wage]per hour.'" RCW 49.46.020(l)-(3)(emphasis
added). The central issue here is our interpretation ofthe phrase "at a rate of not
less than [the applicable minimum wage] per hour" and its narrow application to
agricultural workers who are paid on a piece-rate basis.
The parties correctly agree that the MWA requires payment of at least
minimum wage for all hours worked and that the time Dovex's employees spend
While the MWA now applies to agricultural workers, they are expressly excluded from
the regulation governing minimum wage compensation for other workers paid on a commission
or piece-rate basis. WAC 296-126-00l(2)(c), -021.
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Carranza v. Dovex, No. 94229-3
on the tasks allegedly outside of piece-rate picking work are hours worked. But, as
reflected in the certified questions,,they dispute what an employer must do to
comply with its duty to pay its workers at least minimum wage per hour.
The plaintiffs contend that the MWA requires compensation for each hour
actually worked, such that time spent on activities outside of piece-rate picking
work must be compensated on a separate hourly basis. Dovex, meanwhile,
contends that its duty is limited to ensuring that when a worker's total weekly
compensation is averaged across all hours worked on all tasks in a week, the
resulting average hourly rate is at least equal to minimum wage. Dovex's
approach is referred to as "workweek averaging."
As always in cases of statutory interpretation, we look first to the plain
language of the statute to discern the legislature's intent. Dep 't ofEcology v.
Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4(2002). In this case, the
MWA's plain language unambiguously supports the plaintiffs' view. The statute
does not restrict employers to a specific compensation structure, but it does require
an employer to pay its employees at least minimum wage "per hour." RCW
49.46.020(l)-(3). The legislature's choice of the words "per hour" evinces an
intent to create a right to compensation for each individual hour worked, not
merely a right to workweek averaging.
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Carranza v. Dovex, No. 94229-3
This conclusion is well illustrated by a comparison ofthe plain language of
the MWA and the federal Fair Labor Standards Act of 1938(FLSA),29 U.S.C. §§
201-219, on which the MWA is largely based. Anfinson v. FedEx Ground
Package Sys., Inc., 174 Wn.2d 851, 868, 281 P.3d 289(2012). The FLSA provides
that "[ejvery employer shall pay to each of his employees ... in any workweek...
wages at" not less than minimum wage. 29 U.S.C. § 206(a)(emphasis added).
Some federal courts have held that this provision allows workweek averaging.
See, e.g., Douglas v. Xerox Bus. Servs., LLC, 875 F.3d 884(9th Cir. 2017);
Hensley v. MacMillan Bloedel Containers, Inc., 786 F.2d 353, 357(8th Cir. 1986);
Dove V. Coupe, 759 F.2d 167, 172(D.C. Cir. 1985); United States v. Klinghoffer
Bros. Realty Corp., 285 F.2d 487,490(2d Cir. 1960). These holdings cannot
apply to the MWA because our legislation states "per hour," rather than "in any
workweek."^ Therefore, the MWA's plain language requires us to conclude that
employees have a per hour right to minimum wage.
In addition to the statute itself, analogous case law further supports the
plaintiffs' view. We agree with Dovex that our decision in Lopez Demetrio v.
^ The dissent rests its analysis on the mistaken assumption that we are bound by
interpretations ofthe FLSA. Dissent(Stephens, J.) at 10. We are not. Drinkwitz v. Alliant
Techsystems, Inc., 140 Wn.2d 291, 298, 996 P.2d 582(2000). The dissent then dismisses the
importance of the phrase "in any workweek," found in the FLSA and not the MWA,but we must
give effect to every word when engaging in statutory interpretation. City ofSpokane v.
Taxpayers ofCity ofSpokane, 111 Wn.2d 91, 102, 758 P.2d 480(1988). The dissent's approach
amounts to a novel way of interpreting the plain language of the MWA without any citation to
authority. Dissent(Stephens, J.) at 14.
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Carranza v. Dovex, No. 94229-3
Sakuma Bros. Farms, 183 Wn.2d 649, 355 P.3d 258 (2015), did not directly
address the specific issue of whether and how workers paid on a piece-rate basis
should be paid for time spent on activities outside of piece-rate picking work. Def.
Dovex Fruit Co.'s Answering Br. at 8-13. However, precedent from comparable
situations has established that pursuant to "the MWA,employees are entitled to
compensation for regular hours worked.''^ Stevens v. Brink's Home Sec., Inc., 162
Wn.2d 42, 47, 169 P.3d 473 (2007)(emphasis added). Without an applicable
exception, time spent on job duties that are not otherwise compensated must be
compensated on a per hour basis. These principles apply here.
For instance, similar to the plaintiffs' claim in this case that they are not paid
for time spent traveling between orchards, the plaintiffs in Stevens were
technicians who were not compensated "for time they spent driving company
trucks from their homes to the first jobsite and back from the last jobsite." Id. at
44. We concluded that this time must be compensated as hours worked in
accordance with the MWA. Id. at 49-50.
Also similar to the plaintiffs' claim in this case that they are not paid for
time spent at mandatory meetings and trainings is the claim of the plaintiffs in
Seattle ProfI Eng'g Emps. Ass'n v. Boeing Co., that they were required to attend
"a 'pre-employment orientation' session" without compensation. 139 Wn.2d 824,
827, 991 P.2d 1126, 1 P.3d 578(2000){SPEEA). We accepted "Boeing's
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Carranza v. Dovex, No. 94229-3
concession that its mandatory pre-employment orientation sessions constituted
work" and focused principally on "the remedy available under Washington law"
because the workers were entitled to compensation. Id. at 829.
The Ninth Circuit has similarly concluded that the MWA provides a per
hour right to minimum wage. In Alvarez v. IBP, Inc., hourly workers at IBP Inc.'s
city ofPasco meat processing plant sought compensation for the time it took to
perform tasks, including "gather[ing] their assigned equipment, don[ning] that
equipment in one ofthe Pasco plant's four locker rooms, and prepar[ing] work-
related tools before venturing to the slaughter or processing floors," and then
repeating the process in reverse at the end ofthe workday. 339 F.3d 894, 898 (9th
Cir. 2003). The court compared the MWA and the FLSA and considered this
court's case law as well as the Department of Labor and Industries'(DLI)
interpretations and regulations. M at 912-13. It specifically rejected using
workweek averaging to measure compliance with the MWA and instead held that
the workers' time was compensable because the MWA provides a per hour right to
compensation for hourly employees.^ Id. at 913.
^ The dissent is mistaken when it states Alvarez supports its position that workweek
averaging is permissible for workers paid by the piece because it dismisses the role of WAC 296-
126-021 in the court's analysis. Dissent(Stephens, J.) at 19-20. The Ninth Circuit noted that
DLI regulations "permit use ofthe work-week measure only for particular employment
categories." Alvarez, 339 F.3d at 912. As discussed in greater detail, infra pp. 14-15,just as in
Alvarez, there is no relevant regulation that allows for workweek averaging for agricultural
workers paid by the piece.
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Carranza v. Dovex, No. 94229-3
Dovex nevertheless argues that its pay structure is permissible because each
week, a worker's total piece-rate compensation divided by his or her total hours
worked equals at least the applicable minimum wage. Def. Dovex Fruit Co.'s
Answering Br. at 21-41. This argument misses the point. As we noted in Lopez
Demetrio, a case that considered an analogous piece-rate compensation structure,
"'[I]f the picker is not picking .. .,the picker is not earning money.'" 183 Wn.2d
at 653 (alterations in original). Workweek averaging ignores the per hour right to
compensation that the MWA imposes by making it possible to conceal the fact that
an employer is not compensating its employees for all hours worked because
payment for some hours of piece-rate picking work is spread across all hours
worked. This interpretation places few limitations on an employer. Despite
protestations from the dissent, nothing would prevent an employer from ordering
its workers to clean the toilets without further pay after completing their piece-rate
picking work for the day. Dissent(Stephens, J.) at 5. However, no applicable
interpretive case law or regulations justify allowing workweek averaging in this
context.
To support its right to structure a flexible compensation system, Dovex
looks to Inniss v. Tandy Corp., 141 Wn.2d 517, 531, 7 P.3d 807(2000). Def.
Dovex Fruit Co.'s Answering Br. at 17-18. The general principle that flexible
compensation structures are permissible is not in question. However,Inniss
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Carmnza v. Dovex, No. 94229-3
considered only the legality of an employer's method of calculating a specific
payment structure for overtime hours pursuant to RCW 49.46.130(1). 141 Wn.2d
at 523. It thus interpreted a different provision ofthe MWA that is not at issue in
this case, and it did so by relying on comparable provisions and regulations ofthe
FLSA, which are also inapplicable here. Id. at 523-29. And as noted above,
relying on the FLSA in this case is inappropriate because the MWA and FLSA
provisions at issue here clearly differ in their plain language.
Dovex and the dissent also mischaracterize our precedent when they argue
that Lopez Demetrio already endorsed using workweek averaging to measure
compliance with the MWA. Def. Dovex Fruit Co.'s Answering Br. at 23, 39-41;
dissent(Stephens, J.) at 22-24. In Lopez Demetrio, we were asked the limited
question of whether WAC 296-131-020(2) requires an agricultural employer to pay
its workers compensated on a piece-rate basis separately for their mandatory rest
breaks. 183 Wn.2d at 654. We answered yes and noted that workweek averaging
is an acceptable method of calculating an employee's rate of pay for rest break
periods. Id. at 660-61. However, unlike in Lopez Demetrio, this case asks us to
evaluate MWA compliance in the context of hours worked, not rest breaks. It is
undisputed that time spent on work outside the scope of piece-rate picking is work
and, pursuant to the MWA,is hourly work. Lopez Demetrio does not undercut the
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Carranza v, Dovex, No. 94229-3
MWA's plain requirement that agricultural workers are entitled to hourly
compensation for hourly work.
Dovex and Justice Stephens' dissent further argue that their statutory
interpretation is supported by administrative regulations and policies. The dissent
erroneously asserts that"DLI has consistently interpreted RCW 49.46.020(1)to
allow for workweek averaging to determine minimum wage compliance under
piece-rate compensation plans." Dissent(Stephens, J.) at 15. As correctly pointed
out in the amicus brief of the Washington State Attorney General, DLI has not
interpreted the MWA as it applies to agricultural workers paid by the piece.
Amicus Br. of Att'y Gen, of Wash, at 8.
There is no regulation that allows workweek averaging in the context of
agricultural workers paid by the piece. Instead, Dovex and Justice Stephens'
dissent give great deference to DLLs interpretation ofthe MWA that does not
apply to agricultural workers. WAG 296-126-021 arguably allows workweek
averaging when an employer pays its workers on a piece-rate basis. However,that
regulation has no role here because agricultural workers are expressly exempt, as
Dovex and the dissent admit. WAG 296-126-00l(2)(c); Def. Dovex Fruit Go.'s
Answering Br. at 37(noting that the regulation applies "in the non-agricultural
piece rate context"); dissent(Stephens, J.) at 15 n.6. The dissent buries in a
footnote its acknowledgement that agricultural workers are exempt, and then
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Carranza v. Dovex, No. 94229-3
illogically concludes the court should still adhere to the interpretation. Dissent
(Stephens, J.) at 15 n.6. Agricultural workers are regulated by different
regulations, chapter 296-131 WAC,which do not include any regulation allowing
for compensation calculated by workweek averaging for adult agricultural
workers.^
Not only is there no applicable regulation, but there also is no applicable
administrative policy.^ Dovex and the dissent attempt to rely on a nonbinding DLI
policy that arguably endorses workweek averaging. Def. Dovex Fruit Co.'s
Answering Br. at 36-37 (quoting Administrative Policy ES.A.3, at 2(effective July
15, 2014)); dissent(Stephens, J.) at 15. But the portion ofthe policy relevant to
workers paid by the piece purports to interpret WAC 296-126-021, which, again,
expressly exempts agricultural workers. WAC 296-126-00l(2)(c). Furthermore,
even if it were applicable to agricultural workers paid by the piece, administrative
policies "[have] no force or effect as a law or regulation.'''' Stevens, 162 Wn.2d at
54(Madsen, J., concurring)(emphasis added). While the level of deference owed
to regulations is an issue of ongoing debate, administrative policies do not even
'	The dissent places great emphasis on a regulation relating to minimum wage
compliance for agricultural workers paid by the piece who are minors, WAC 296-131-117(1).
Dissent(Stephens, J.) at 15 n.6. The certified questions do not concern minor agricultural
workers.
^ Dovex also claims a DLI handout is interpretative guidance in support of its position,
but the handout was removed from the agency's website years ago. Dovex Fruit Co.'s Statement
of Additional Auths. at 1.
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Carranza v. Dovex, No. 94229-3
have the force of regulations, and deference to such policies is inappropriate
because "[t]his court has the ultimate authority to interpret a statute." Bostain v.
Food Express, Inc., 159 Wn.2d 700, 716, 153 P.3d 846(2007).
Finally, "'[sjtatutes should be interpreted to further, not fhistrate, their
intended purpose.'" Id. at 712(alteration in original)(quoting Burnside v. Simpson
Paper Co., 123 Wn.2d 93, 99, 864 P.2d 937(1994)). Remedial legislation like the
MWA "is given a liberal construction" in accordance with the legislature's intent
of protecting employees. Anfinson, 174 Wn,2d at 870. Liberally construing the
MWA favors interpreting its minimum wage mandate as providing employees with
a right to hourly compensation for hourly work. The dissent erroneously claims
that "[t]his is not a case about unpaid workers or unpaid time" but its approach is at
odds with the purpose ofthe MWA and is a clear admission that its interpretation
favors employers over workers. Dissent(Stephens, J.) at 19.
Dovex and Justice Stephens' dissent's suggested approach of using
workweek averaging to measure compliance with the MWA is also inconsistent
with Washington's "long and proud history of being a pioneer in the protection of
employee rights." Drinkwitz, 140 Wn.2d at 300. It is unquestionable that no
legislation has attempted to refute this history or this state's commitment to it.
However, Dovex and the dissent's interpretation risks doing just that for seasonal
and migrant agricultural workers, a group that is historically comprised of
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Carranza v. Dovex, No. 94229-3
vulnerable workers who often face language barriers, have limited education, and
endure difficult working conditions, and for whom employment protections have
been hard fought. See generally Br. of Amicus Curiae Familias Unidas por la
Justicia et al.; Amicus Curiae Br. of United Farm Workers of Am.& Migrant
Clinicians Network.
In closing, we note that the dissent contends we have relied on California
courts' interpretation oftheir state minimum wage act in order to interpret the
MWA. Dissent(Stephens, J.) at 26-31. We do not cite, rely on, or adopt
California law in reaching our conclusion.
We therefore hold that agricultural workers who are paid on a piece-rate
basis are entitled to separate hourly compensation for the time they spend
performing tasks outside of piece-rate picking work. Despite the dissent's effort to
paint this holding as "extend[ing] far beyond this case" and "seriously
undermin[ing] the piece-rate payment system as a viable compensation plan," our
decision today is limited, as it must be, to agricultural workers. Id. at 24-25. The
answer to the first certified question is yes.
Second Certified Question
Because we answer the first certified question in the affirmative, we must
determine how an employer must calculate the rate of pay for the time its
agricultural employees who are compensated on a piece-rate basis spend
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Carranza v. Dovex, No. 94229-3
performing tasks outside of piece-rate picking work. We answer the second
certified question consistent with the answer requested by the parties. It is
undisputed that the employees are entitled to at least minimum wage because
"[t]he MWA 'sets the floor below which the agreed rate cannot fall without
violating the statute.'" Lopez Demetrio, 183 Wn.2d at 660(quoting SPEEA, 139
Wn.2d at 835). It is also undisputed that an employer can enter into a contractual
agreement to pay its workers at a different rate that is above minimum wage.
Therefore, an employer must pay its workers minimum wage or a contractually
agreed upon rate, whichever is higher, for time spent on activities outside the scope
of piece-rate picking.
CONCLUSION
The answer to the first certified question is yes. The MWA provides that an
agricultural worker who is paid on a piece-rate basis for piece-rate picking work
must be paid separate hourly compensation for the time he or she spends
performing tasks outside of piece-rate picking work. The answer to the second
question is that the separate rate of pay must be at least minimum wage or the
agreed upon rate, whichever is higher.
18
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Carranza v. Dovex, No. 94229-3
WE CONCUR:
iez.
19
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Carranza v. DovexFruit Co., No. 94229-3
Fairhurst, C.J.(dissenting)
No. 94229-3
FAIRHURST, C.J. (dissenting)—I disagree with the majority because I
believe the answer to the first certified question is no. I agree with Justice Stephens'
interpretation ofthe plain language ofRCW 49.46.020 and join Sections LB and I.D
of her opinion.
I am not signing on to the other sections in Justice Stephens' opinion for a
handful of reasons, summarized here. In Section LA, Justice Stephens believes we
must "understand[] what is meant by 'activities outside ofpiece-rate picking work.'"
Dissent(Stephens, J.) at 2.1 agree with Justice Yu's reasoning that this "is a factual
dispute beyond the scope ofthe certified question." Majority at 3.
In Section I.C, Justice Stephens supports her plain meaning interpretation with
administrative policies and guides from the Department of Labor and Industries
(DLI). But since the plain language of the statute is unambiguous, our interpretive
inquiry is at an end. State v. Armendariz, 160 Wn.2d 106, 110-11, 156 P.3d 201
(2007); see also Quinaiilt Indian Nation v. Imperhim Terminal Servs., LLC, 187
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Carranza v. Dovex Fruit Co., No. 94229-3
Fairhurst, C.J.(dissenting)
Wn.2d 460, 474, 387 P.3d 670 (2017) ("If a statute is ambiguous, an agency's
promulgated rules help our interpretation."). Because consideration ofthese sources
is unnecessary, I refrain from making a conclusive determination about DLFs
position. Lastly, in Part II, Justice Stephens argues that the majority radically
changes Washington law, silently embraces the California Labor Code, and creates
urmecessary legal tasks for DLI and the legislature. While I agree that the majority
incorrectly interpreted RCW 49.46.020, I refrain from making these
characterizations about the opinion or its potential impacts.
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Carranza v. Dovex Fruit Co., No. 94229-3
Fairhurst, C.J. (dissenting)
^ . QC
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Carranza v. Dovex Fruit Co.
(Stephens, J., dissenting)
No. 94229-3
STEPHENS, J. (dissenting)—^Washington's Minimum Wage Act (MWA),
oh. 49.46 RCW,was never intended to restrict the type of compensation system an
employer may use, whether it be an hourly,salary, commission,or piece-rate system.
Rather, the statute's mandate is clear: every employer must pay each employee a
minimum wage rate of pay for every hour worked. Ignoring the statutory term
"rate," the majority creates a "per hour" right to separate compensation under the
MWA for the time agricultural pieceworkers spend performing tasks outside of
piece-rate picking work. This holding disregards the fact that piece-rate
compensation is calibrated to account for the so-called "down time" necessarily
involved in piecework. Nothing in the MWA disallows workweek averaging of
piece-rate pay to subsume both production and nonproduction time. Because the
majority's erroneous interpretation ofthe MWA departs from its plain language and
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
from years of consistent interpretation by the agency charged with enforcing the
statute, I respectfiilly dissent.
1. The MWA Does Not Mandate Separate Hourly Compensation for Time Spent
on "Activities outside ofPiece-Rate Picking Work"
This case requires us to decide if the MWA mandates that agricultural
employers pay their pieceworkers separate hourly compensation "for time spent
performing activities outside of piece-rate picking work (e.g., 'Piece Rate Down
Time' and similar work)." Order Certifying Questions & R. to Wash. Supreme Ct.
& Staying Deadlines & Proceedings, Carranza v. Dovex Fruit Co., No. 2:16-cv-
00054-SMJ at 2(E.D. Wash. Mar. 3, 2017)(Order Certifying Questions). Stated
differently, the question is whether the MWA allows for piecework compensation
plans to subsume production as well as nonproduction work time, so long as the
average hourly wage in each week meets the statutory minimum.
A. Piece-Rate Work Is Not Synonymous with Piece-Rate Picking Work
The starting point to answering the first certified question seems obvious—
understanding what is meant by "activities outside of piece-rate picking work." It
seems only logical that we would want to know the subject matter of the certified
questions before proceeding to answer them. The district court drew a line between
piece-rate picking work and nonproduction activities outside of picking work based
on Dovex Fruit Co.'s compensation plan. See Order Certifying Questions at 2
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
(describing "activities outside of piece-rate picking work (e.g., 'Piece Rate Down
Time' and similar work)"). The term "Piece Rate Down Time" is described in the
record as including "[mjoving [1]adders, moving from block to block, weather down
time, waiting for bins." Stipulation of Facts for Questions Certified to Wash.
Supreme Ct. at 5 (E.D. Wash. Mar. 3, 2017)(Stipulation of Facts). "Piece Rate
Down Time" activities are also described to include transporting ladders from a
company trailer to the areas where workers pick fruit, transporting ladders from
where they were used to pick fruit back to the company trailer, and traveling between
orchard blocks (by foot or vehicle). Stipulation of Facts at 3-4. Although the
pieceworker is not picking during "Piece Rate Down Time" activities, these
nonpicking activities are described as integral and indispensable to the principal
activity for which the workers are employed, i.e., harvesting the fruit.
Viewed in this context, when Judge Mendoza in the first certified question
uses the phrase ""and similar work,'''' he is presumably referring to other nonpicking
activities that are similarly geared toward the ultimate goal of fruit production.
Order Certifying Questions at 2(emphasis added). "Similar" nonpicking activities
would include waiting for equipment and materials necessary for picking fruit(e.g.,
bags and ladders), receiving instructions before picking, storing equipment and
materials after picking is complete, and waiting in one orchard block before traveling
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
to the next block. These activities are associated with the harvesting task on which
the piece rate is based.^ Whether Dovex or other employers may decide to pay
hourly wages for some or all of the activities outside of piece-rate picking work is
irrelevant; the question is whether the MWA categorically prohibits subsuming the
pay for these tasks into the piece-rate compensation structure.
The majority essentially equates piece-rate work with piece-rate picking work.,
on the premise that "'[i]f the picker is not picking . . . , the picker is not earning
money.'" Majority at 12{qpotmgLopezDernetrio v. Sakuma Bros. Farms,Inc., 183
Wn.2d 649,653,355 P.3d 258(2015)(second alteration in original)). It thus recasts
all work except piece-rate picking work as hourly work, claiming that "[i]t is
undisputed that time spent on work outside the scope of piece-rate picking ... is
hourly work." Id. at 13. In fact, the parties do dispute whether the type of
nonpicking work described in the record as "Piece Rate Down Time and similar
work" is hourly work or is instead nonproduction work subsumed in the piece rate.
The majority seeks to reframe the certified questions by redefining the relevant
^ Dovex notes that agricultural employers vary the piece rate paid throughout the
season to account for increased nonproduction time during certain periods. See Dovex
Fruit Co.'s Answering Br. at 16 ("The reason Dovex must vary its piece rate is for the
obvious purpose of taking into account all of the various non-picking tasks that affect the
number of pieces a piece rate employee can pick per day. As time required to perform
these non-picking tasks goes up, so too does the piece rate to attract and maintain the piece
rate employee.").
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
terms. It suggests, for example,that because the plaintiffs do not dispute that piece-
rate pay may subsume certain nonpicking work, such as moving ladders within
orchard blocks or emptying fruit bins, such work falls outside the certified question.
Id. at 4-5 & n.2. At the same time, the majority attempts to sweep into the ambit of
"Piece Rate Down Time and similar work"tasks that nobody suggests are subsumed
into piece-rate pay, such as cleaning toilets. Id. at 12. The majority's approach
defines away the certified question, leaving it to conclude that employees have "a
right to hourly compensation for hourly work." Id. at 16. Ofcourse they do, but the
question is whether the work at issue in this case is hourly work.
We should answer the first certified question as it is presented—
distinguishing between piece-rate picking work(i.e., production time)and piece-rate
down time and similar work (i.e., nonproduction time). See Pis.' Resp. to Def.'s Br.
Regarding Certification to Wash. Supreme Ct. at 5 (noting certified question should
be framed based on "the undisputed fact that Dovex does not separately pay for work
performed outside of active production work that is paid on a piece-rate basis"
(emphasis added)). Understanding that these are the relevant categories of piece-
rate work at issue, nothing in the MWA requires payment for piece-rate down time
and similar work on an hourly basis. In holding that the MWA requires per hour
compensation for such work, the majority misreads the plain language of ROW
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
49.46.020 and mistakenly distances the MWA from the federal Fair Labor Standards
Act of 1938(FLSA),29 U.S.C. §§ 201-219, on which it was modeled. The majority
further relies on inapposite cases that address hourly(not piece-rate) compensation,
and brushes aside years of clear regulatory policy and guidance by the Washington
Department ofLabor & Industries(DLI), which is charged with enforcing the MWA.
Finally, the majority erroneously interprets our recent decision in Lopez Demetrio
as supporting its view, when in fact that case reinforces that the MWA allows
workweek averaging of piece-rate compensation as a permissible measure of
minimum wage compliance.
B. The Plain Language ofRCW 49.46.020 Is Clear: Employers Must Pay
Employees Wages at a Rate Not Less Than the Minimum Wage per Hour
of Work
The MWA was enacted to "establish[] a minimum standard for wages and
working conditions of all employees in this state." RCW 49.46.120. To accomplish
this purpose,the MWA regulates minimum wage rates and directs employers to pay
their employees not less than the minimum hourly wage, mandating that "every
employer shall pay to each of his or her employees who has reached the age of
eighteen years wages at a rate ofnot less than [minimum wage'] per hour." RCW
49.46.020(1) (emphasis added). At issue here is a question of pure statutory
interpretation—^whether the latter portion ofthis sentence requires separate hour-by-
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
hour compensation for activities outside of piece-rate picking work, such as
transporting ladders to and from fields, waiting for equipment, or receiving
instructions before picking.
The majority concludes that the MWA's plain language unambiguously
provides employees a right to compensation for each individual hour worked.
Majority at 8. The majority's plain language analysis begins and ends with the last
two words in RCW 49.46.020(1)—"per hour." Relying exclusively on this
language, the majority concludes that "[t]he legislature's choice of the words 'per
hour' evinces an intent to create a right to compensation for each individual hour
worked, not merely a right to the workweek averaging." Id. However,the majority
neglects to consider, and effectively reads out of RCW 49.46.020(1), an equally
important term that appears earlier in the same sentence—^the word "rate." In this
regard, the majority's reading of RCW 49.46.020(1) violates the principle that a
reviewing court is duty-bound to give meaning to every word in a statute and to
avoid rendering any language superfluous. City ofSeattle v. Williams, 128 Wn.2d
341, 349,908 P.2d 359(1995).
The MWA prescribes a minimum wage rate per hour, which is not the same
as a minimum wage that must be paid per hour. See Seattle ProfI Eng'g Emps.
Ass'n V. Boeing Co., 139 Wn.2d 824, 834 n.4, 991 P.2d 1126 (2000) {SPEEA)
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
("Minimum wage rates are regulated by RCW 49.46.020, which requires an
employer to 'pay to each ofhis or her employees who has reached the age ofeighteen
years wages at a rate of not less than [minimum wage] per hour.'"). The MWA
defines "wage" as "compensation due to an employee by reason of employment...
." RCW 49.46.010(7). "Rate" is commonly understood as "[pjroportional or
relative value; the proportion by which quantity or value is adjusted." Black'S Law
Dictionary 1452(10th ed. 2014). Viewing the "per hour" language in context,the
MWA's minimum wage provision measures the relative value, i.e., rate, ofthe wage
on an hourly basis. It does not impose a right to compensation on a per hour basis,
as the majority maintains.
The plain language of RCW 49.46.020 simply requires employers to pay
employees the equivalent ofthe minimum wage rate for each hour of work. Nothing
in the MWA restricts the type of compensation system an employer may use,
whether it be an hourly,salary, commission,or piece-rate system. The MWA neither
distinguishes between different types of work activities nor mandates separate
hourly compensation for specific categories of work. Rather, as it applies here, the
relevant MWA mandate is that whatever compensation scheme is agreed on, it must
result in a wage that is at least the equivalent of the minimum hourly wage rate for
all hours worked. As this court has previously recognized, the MWA "merely sets
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
the floor below which the agreed rate cannot fall without violating the statute."
SPEEA, 139 Wn.2d at 835 (citing RCW 49.46.020(1)).
A comparison of the plain language of the MWA with comparable language
in the FLSA supports this view. It is well established that the MWA is based on the
FLSA. Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 868, 281
P.3d 289 (2012)("We have repeatedly recognized that the 'MWA is based on the
[FLSA]."); E>rinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 298, 996 P.2d
582 (2000)("Because the MWA is based upon the FLSA, federal authority under
the FLSA often provides helpful guidance.");Inniss v. Tandy Corp.,141 Wn.2d 517,
524,7 P.3d 807(2000)("When construing provisions ofthe[MWA],this Court may
consider interpretations of comparable provisions of the [FLSA] as persuasive
authority,"); Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 862 n.6, 93 P.3d
108 (2004)("The FLSA is persuasive authority because the MWA is based on the
FLSA."); see also Clawson v. Grays Harbor Coll. Dist. No. 2, 109 Wn. App. 379,
35 P.3d 1176 (2001), ajf'd, 148 Wn.2d 528, 61 P.3d 1130 (2003); lift v. Prof'I
NursingServs., Inc., 76 Wn. App. 577,886 P.2d 1158(1995). "At least where there
is no contrary legislative intent, when a state statute is 'taken "substantially
verbatim" from [a]federal statute, it carries the same construction as the federal law
and the same interpretation as federal case law.'" Anfinson, 174 Wn.2d at 868
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
(alteration in original)(quoting State v. Bobic, 140 Wn.2d 250, 264, 996 P.2d 610
(2000)(quoting State v. Carroll, 81 Wn.2d 95, 109, 500 P.2d 115 (1972))).2
The majority contends that it is inappropriate to rely on the FLSA for guidance
in this case because the FLSA minimum wage provision contains the term
"workweek," while the MWA does not include similar language. Majority at 8-9.
In the majority's view, the MWA is therefore distinguishable from the federal
minimum wage provision "because our legislation states 'per hour,' rather than 'in
any workweek.'" Id. at 9. A closer reading of the FLSA's plain language and the
legislative history for both statutes exposes several flaws in this argument.
First, the MWA and FLSA provisions at issue do not differ in their relevant
language. Though the forepart of the federal minimum wage provision uses the
phrase "in any workweek," the operative portion of the statute requires wages at
'^rates . . . not less than [minimum wage] an hour.'''' 29 U.S.C. § 206(a)(emphasis
added);see Douglas v. Xerox Bus. Servs., LLC,875 F.3d 884,886 n.l (9th Cir. 2017)
(noting "'in any workweek'" is part of a prefatory clause and not a measure of
minimum wage compliance). The FLSA states in relevant part:
^ The majority asserts that "[t]he dissent rests its analysis on the mistaken
assumption that we are bound by interpretations of the FLSA." Majority at 9 n.5. To the
contrary, at no point do I assume to be bound by the FLSA. Instead, as this court has done
many times before, I simply "consider interpretations of comparable provisions of the
[FLSA] as persuasive authority" when construing provisions of the MWA. Inniss, 141
Wn.2d at 524.
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
Every employer shall pay to each of his employees who in any
workweek is engaged in commerce or in the production of goods for
commerce ... wages at the following rates:
(1) Except as otherwise provided in this section, not less than—
(A) [minimum wage] an hour.
29 U.S.C. § 206(a) (emphasis added). Similar to the MWA, which requires
employers to pay employees "wages at a rate of not less than [minimum wage]per
hour," RCW 49.46.020(1)(emphasis added), the focus of the FLSA is also on the
minimum rate ofpay. Although recognizing that"we must give effect to every word
when engaging in statutory interpretation," majority at 9 n.5, the majority
nonetheless ignores this key term—"rate"—in its plain language analysis.
The majority's focus on the absence of the term "workweek" is further
undermined by the legislative history of both statutes. It is doubtful that our
legislature intentionally diverged from the FLSA by not including the phrase "in any
workweek." This is unlikely because the "in any workweek" language did not
appear in the FLSA until after the MWA was enacted. When the FLSA was passed
in 1938,the original version ofthe minimum wage provision read:
(a) Every employer shall pay to each of his employees who is engaged in
eommerce or in the produetion of goods for eommerce wages at the
following rates—
(1) ... not less than 25 eents an hour.
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
FairLaborStandards Actof 1938,Pub.L. No.75-718,§ 6(a)(1),52 Stat. 1060,1062.
The MWA was adopted in 1959 with a minimum wage provision that looked almost
identical to the original version ofthe federal minimum wage provision:
Every employer shall pay to each of his employees wages at a rate ofnot less
than one dollar per hour except as may be otherwise provided under this act.
Laws of 1959, ch. 294, § 2. The similarities between the 1938 federal minimum
wage provision and the MWA's 1959 minimum wage provision are undeniable.
Both provisions use the terms "wages," "rate," and "hour," without any mention of
"workweek."
It was not until 1961, two years after the MWA was adopted, that Congress
modified the introductory phrase of the federal minimum wage provision to add a
reference to the workweek. See Act ofMay 5,1961,Pub.L.No.87-30,§ 5(a)(l)-(2),
75 Stat. 65, 67 (amending the FLSA of 1938—inserting the "in any workweek"
language). This amendment was merely clarifying. Prior to 1961, the federal
Department of Labor had consistently adhered to the workweek-averaging measure
of minimum wage compliance, which is evidenced by Department of Labor policy
statements and guidance. Dove v. Coupe, 245 U.S. App. D.C. 147, 759 F.2d 167,
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Carrama v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
171 (1985)(the Department of Labor "established the workweek as the measuring
rod for compliance at a very early date").^
Notably, based on the Department ofLabor's express adoption and persistent
adherence to workweek averaging, the Ninth Circuit recently interpreted the 1961
amendment as providing "an even stronger foundation to read the minimum-wage
provision to preserve, not upset, the entrenched per-workweek measure." Douglas,
875 F.3d at 889."^ As it relates to the MWA, at the time Washington adopted the
MWA the workweek measure of minimum wage compliance was already well
established and widely accepted.
In sum, the plain language of the MWA does not impose a per-hour right to
minimum wage compensation, nor does it prohibit the per-workweek measure of
^ For example, in 1940, just over a year and a half after FLSA was passed, the
Department ofLabor issued a policy statement providing that "[f]or enforcement purposes,
the Wage and Hour Division is at present adopting the workweek as the standard period of
time over which wages may be averaged to determine whether the employer has paid the
equivalent of[the minimum wage]." The Bureau OF Nat'l Affairs, Inc., Wage and
Hour Manual 185 (1942).
The plaintiffs in Douglas made the same argument about the FLSA that the
plaintiffs (and the majority) make here about the MWA. They argued that the FLSA
measures minimum wage compliance on an hour-by-hour basis and does not allow
averaging because "FLSA's plain language 'speaks only of an hourly wage'" and "[t]he
'statute's text is explicit that, with respect to the minimum wage,the only metric Congress
envisioned was the hour, with each hour having its own discrete importance.'" Appellant's
Opening Br., Douglas v. Xerox Bus. Servs., LLC, No. 16-35425, at 23 (9th Cir. Sept. 28,
2016)(quoting Norceide v. Cambridge Health All, 814 F. Supp. 2d 17, 23 (D. Mass.
2011)). The Ninth Circuit correctly rejected this view, though in doing so it did not find
the "workweek" language in the prefatory clause to be significant. Douglas, 875 F.3d at
886-87 &n.l.
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
minimum wage compliance, as the majority holds. To the contrary, like the FLSA
on which it was modeled, the MWA requires employers to pay employees the
equivalent ofthe minimum wage rate for every hour worked. While the MWA does
not expressly address the issue of whether separate pay is required for piece rate
down time and similar work,it contemplates a single minimum wage calculation for
all piece-rate work. The MWA neither distinguishes between different categories of
work activities nor mandates separate compensation. Quite simply, the act requires
employers to compensate employees a rate of not less than the minimum wage and
to pay employees for each hour worked.^
^ The first certified question presents a narrow issue—^whether the MWA allows
piece-rate pay to subsume nonproduction work time. At times, the briefing goes beyond
this question. For example, the workers allege that Dovex's compensation plan enables
employers to "require an employee to perform five hours of piece-rate work and 35 hours
of other work activities in a week and refuse to pay the employee for the 35 hours of non-
piece-rate work so long as the employee receives at least minimum wage" under the
workweek averaging calculation. Pis.' Opening Br. on Certified Questions at 31. Whether
Dovex willfully deprived the workers of a meaningful opportunity to cam their piece-rate
pay is an important, but separate, issue that is not before us. If Dovex did in fact deprive
the workers of any part of their wages, Dovex admits that the workers would have claims
under the wage rebate act, RCW 49.52.050, and also potentially breach of contract claims.
Def.'s Answering Br. at 20. Notably, the workers have asserted wage rebate act claims
elsewhere in the litigation. Compl. at 15-16.
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
C. DLI Has Consistently Interpreted the MWA as Allowing Workweek
Averaging for Pieceworkers, and Courts Should Defer to the Agency's
Interpretation
While the proper interpretation ofthe MWA in this case begins and ends with
the statute's plain language, it should give us pause that the majority's interpretation
is at odds with the long-standing view ofthe agency charged with administering the
MWA. DLI has consistently interpreted RCW 49.46.020(1)to allow for workweek
averaging to determine minimum wage compliance under piece-rate compensation
plans. The majority swiftly dismisses DLLs interpretation as nonbinding and
undeserving of any deference because '"[tjhis court has the ultimate authority to
interpret a statute.'" Majority at 14-15 (alteration in original)(quoting Bostain v.
Food Express, Inc., 159 Wn.2d 700, 716, 153 P.3d 846 (2007)). However, under
Washington law, deference is owed to an agency's interpretation of a state statute
"ifthe law being interpreted is within [that] agency's expertise." Budget Rent A Car
Corp. V. Dep't ofLicensing, 144 Wn.2d 889, 901,31 P.3d 1174(2001).
DLI regulations and policies recognize that the MWA allows for workweek
averaging under piece-rate compensation plans. See, e.g., WAC 296-129-021; WAC
296-131-117(1).^ Administrative policy ES.A.3 describes the standards DLI uses to
^ The majority correctly notes that the specific regulation addressing workweek
averaging for pieceworkers appears in a chapter of the administrative code that does not
apply to agricultural workers. See WAC 296-126-021; majority at 13-14. The later-added
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
determine whether an employee has been paid the statutory minimum hourly wage
when compensated on a nonhourly basis, as in piece-rate work. Administrative
Policy ES.A.3 (revised July 15, 2014), http;//www.lni.wa.gov/WorkplaceRights/
files/policies/esaS.pdf[https://perma.cc/3JKA-GLQJ]. The following section ofthe
policy is persuasive as to DLLs approval of weekly averaging as a measure of
minimum wage compliance for pieceworkers:
For employees paid on commission or piecework basis, wholly or in part...
the commission or piecework eamings earned in each workweek are credited
toward the total wage for the pay period. The total wage for that period is
determined by dividing the total eamings by the total hours worked;the result
must be at least the applicable minimum wage for each hour worked. See
WAC 296-126-021.
Id. at 2.
Additionally, following this court's decision in Lopez Demetrio,DLI issued a
revised administrative policy on meal and rest periods for agricultural workers.
Administrative Policy ES.C.6.2 (revised Aug. 11, 2016), http://www.hii.wa.gov/
chapter that pertains to agricultural employment, ch. 296-131 WAC,contains no specific
workweek averaging provision. However, a provision identical to WAC 296-126-021 is
contained in the chapter applicable to minor workers, including agricultural workers. See
WAC 296-131-117(1). The majority makes no attempt to explain why DLI would interpret
RCW 49.46.020 differently for adult and minor agricultural workers, stating simply,"The
certified questions do not concem minor agricultural workers." Id. at 14 n.5. I believe,
however, that the omission of adult agricultural workers from the otherwise universal mle
ofworkweek averaging under RCW 49.46.020 does not reflect a conscious policy decision.
I say this because, as discussed in the main text, DLI has consistently included adult
agricultural workers in its published policies explaining the workweek averaging
regulation, WAC 296-126-021.
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
WorkplaceRights/files/policies/esc62.pdf [https://perma.cc/AKX8-RP5F]. This
policy explains how employers should calculate a worker's "regular rate of pay" in
order to compute the amount owed for rest periods: "This is done by dividing the
total compensation earned in a workweek by the total active hours of work(the "total
active hours of work" does not include the break time). The result is the regular rate
of pay for the week." Id. at 2. The policy gives some examples of how employers
should calculate the rate of pay to ensure it is equal to or greater than the minimum
wage:
First, add up the worker's total piece-rate earnings for the workweek. Even
ifthe worker earns different piece rates during the workweek, total all piece-
rate earnings for the week. Next, divide those earnings by the worker's active
hours of work (exclude rest period time). This amount is the worker's
"regular rate" of pay.
Id. This new policy is just one more piece of evidence confirming that workweek
averaging is firmly established as a method for determining minimum wage
compliance for pieceworkers under the MWA.^ The majority's novel view that the
MWA requires hourly compensation for pieceworkers' is out of step with long
standing agency interpretation of the law.
^ As explained below, this new policy also confirms that our decision in Lopez
Demetrio provides no support for the majority's "per hour" interpretation of the MWA.
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
D. The Majority's "per Hour"Interpretation ofthe MWA Finds No Support
in Case Law Interpreting the Statute
The majority relies on "precedent from comparable situations" to support its
holding that the MWA provides a right to hour-by-hour compensation for piece rate
down time and similar work. Majority at 9-11 (discussing Stevens v. Brink's Home
Securities, Inc., 162 Wn.2d 42, 47, 169 P.3d 473 (2007); SPEEA, 139 Wn.2d 824;
and Alvarez v. IBP, Inc., 339 F.3d 894, 898 (9th Cir. 2003)). These cases are not at
all comparable to the present case, as they involved workers who were contractually
required to donate time to their employers.
In each ofthe cited cases,the employer contractually refused to pay any wage
for certain required work activities. See Stevens, 162 Wn.2d at 47-50 (employer
violated MWA by refusing to compensate technicians for time spent driving
company vehicle to first jobsite and back home from last jobsite); SPEEA, 139
Wn.2d at 827, 835 n.6, 838 (employer violated MWA by refusing to compensate
employees for time spent attending preemployment orientation sessions); Alvarez,
339 F.3d at 913-14 (employer violated MWA by refusing to compensate factory
workers for time spent donning and doffing protective work gear). Here,in contrast,
Dovex records each employee's daily work time and the applicable piece rate, and
its compensation system guarantees that employees receive at least the minimum
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
wage for every hour worked in a week. This is not a case about unpaid workers or
unpaid time. Thus,Stevens,SPEEA, and Alvarez are factually inapposite.
The second flaw in the majority's case law analysis is more nuanced. While
the majority says Alvarez "specifically rejected using workweek averaging to
measure compliance with the MWA," majority at 11, the reasoning in that case in
fact undermines the majority's position. In Alvarez, the Ninth Circuit considered
whether the MWA required an employer to compensate hourly employees for the
time it took them to change into required specialized protective clothing and safety
gear. While the Alvarez court concluded that employees retain a right to be paid
minimum wage for every hour worked under Washington law, it adopted the "per-
hour" measure of minimum wage compliance only for one particular employment
category—hourly employees. See, e.g., Alvarez,339 F.3d at 912("Washington state
courts have yet to determine whether hourly-employees, like plaintiffs, have a per-
hour or a work-week right to minimum wage."(emphasis added)), 913(holding that
"the Washington Supreme Court would construe the WMWA as using a per-hour
standard for hourly employees'"(emphasis added)).
Significantly, in reasoning that hourly employees retain a per-hour right to
minimum wage under the MWA, the Alvarez court found it important that DLI
regulations "permit use of the work-week measure only for particular employment
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
categories," including pieceworkers. Id. at 912-13 (citing, inter alia, WAC 296-126-
021, expressly allowing for workweek averaging for pieceworkers). The court aptly
observed, "Were the Washington legislature disposed to apply the workweek
measure to hourly employees, it could have done so as expressly as it did vis-a-vis
other employment types." Id. Thus, unless we entertain the majority's fiction that
pieceworkers are actually hourly workers when engaged in activities outside of
piece-rate picking work, Alvarez undermines rather than supports the majority's
position.
The last case the majority leans on is LopezDemetrio,quoting our observation
that "'[i]f the picker is not picking . . . , the picker is not earning money.'" 183
Wn.2d at 653(second alteration in original); see majority at 12. The majority reads
this statement of a simple truth as signaling our rejection of workweek averaging
under the MWA. But, a closer look at the analysis in Lopez Demetrio reveals why
this reading is wrong. The court in Lopez Demetrio fully recognized that one reason
the workers in that case were left to "finance their own rest breaks" was because the
MWA allows for piece-rate compensation to be measured on a workweek basis.
Lopez Demetrio, 183 Wn.2d at 653. Thus, when the employer in Lopez Demetrio
divided the employees' piece-rate earnings by their total hours worked, rest breaks
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
were left uncompensated by the employer. Id. This violated the clear mandate of
WAC 296-131-020(2)that rest breaks must be paid "on the employer's time."
The court in Lopez Demetrio made clear that "a pieceworker's right to
separate pay for rest breaks springs notfrom the MWA but rather from WAC 296-
131-020(2)'s mandate that rest breaks be paid 'on the employer's time.'" Id. at 661
(emphasis added). While the first certified question in Lopez Demetrio asked
whether separate pay was required "under WAC 296-131-020(2) and/or the
[MWA]," we answered the question based solely on the regulation, not the MWA.
Id. at 654. In fact, our analysis of the separate compensation issue contained not a
single reference to the MWA. It was WAC 296-131-020, not the MWA, that
mandated separate compensation for the "periods of inactivity," i.e., the rest breaks
at issue in that case. Id. at 652, 656. Here, the workers rely solely on RCW
49.46.020 of the MWA as the statutory anchor for their claim. There is no
comparable regulation. As we explained in Lopez Demetrio, the MWA itself does
not prohibit workweek averaging or impose a requirement of hourly compensation
for nonproduction time in a piece-rate compensation system.
While the piece-rate compensation plans at issue in Lopez Demetrio and this
case may be similar, rest breaks are simply not analogous to "activities outside of
piece-rate picking work (e.g., 'Piece Rate Down Time' and similar work)." Order
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
Certifying Question at 2. Unlike the nonpicking work tasks at issue in this case (e.g.,
traveling between orchards, waiting for weather to clear, transporting ladders to or
from a company trailer, attending work meetings), the rest break requirement in
WAG 296-131-020 refers to periods of inactivity during which no work can be
performed. Accordingly, when we used the phrase "periods of inactivity" in Lopez
Demetrio, we were referring to mandated periods of what might better be described
as nonwork—^time spent sitting, cooling down, rehydrating, and physically
recuperating from picking activities. 183 Wn.2d at 652,656(distinguishing between
the two periods of separately compensable time—^working or resting—^we used the
phrasing,"the piece rate is earned only while the employee is working (i.e., no pay
accrues during rest breaks)"). This category ofnonwork is "critical to the health and
effectiveness of employees, especially those working long hours outside." Id. at
658. We recognized that folding rest breaks into piece-rate compensation would
"incentivize missed rest breaks at the expense ofthe employee's health." Id. at 659.
The policies at issue in Lopez Demetrio, specifically addressed in WAG 296-131-
020, are not at issue in the certified questions in this case.
Our answer to the second certified question in Lopez Demetrio confirms that
workweek averaging of piece-rate earnings does not violate the MWA. Having
decided in Lopez Demetrio that rest breaks must be paid "on the employer's time"
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
under the specific regulation, our further task was to determine the proper rate ofpay
required for the break periods. Id. at 659-60. Without expressly using the term, we
described workweek averaging as an acceptable measure ofcompliance. Id. at 660-
61 (calculating a pieceworker's "defacto hourly rate" as "the quotient of an
employee's piece rate earnings by the number of hours he or she worked"). We
provided a detailed example to demonstrate the averaging minimum wage
calculation in practice, casting away any remaining doubt as to whether workweek
averaging is appropriate for agricultural pieceworkers:
Suppose an employee is paid 50 cents per pound of fruit picked (the piece
rate). The employee works 5 8-hour days and takes 20 minutes ofrest breaks
each day, as provided by WAC 296-131-020(2). The employee has spent
38.6 hours producing and 1.4 hours on breaks, for 40 hours oftotal work. If
the employee produces 750 pounds of fruit, he or she eams $375.00 that
week.
Id. at 661 n.3. In order to ensure rest breaks are paid "on the employer's time," as
required by WAC 296-131-020 (but not the MWA itself), we directed that the total
earnings in this example($375)must be divided by all hours worked, with only time
spent resting excluded (38.6 hours). Id. at 662 & n.4. In our example, we did not
instruct employers to separately track work activities outside of piece-rate picking
work, such as moving ladders or waiting for work materials. Nor did we require
employers to provide separate compensation for those nonpicking activities, because
they are not like rest breaks. Instead, as the majority must concede, our decision in
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
Lopez Demetrio allowed for workweek averaging as an acceptable method of
calculating a pieceworker's rate of pay. See majority at 12.^
In sum, the majority finds no support in our precedent for its ambitious
reimagining of the MWA as a guarantor of "per hour" compensation. The
recognition in Stevens,SPEEA,and Alvarez that hourly workers must be paid for all
hours worked does not undercut the long-standing practice of allowing workweek
averaging to determine minimum wage compliance for pieceworkers. Nor does the
holding in Lopez Demetrio—^that a specific regulation required rest breaks to be paid
separately from hours worked—support the majority's view that RCW 49.46.020
disallows workweek averaging to determine minimum wage compliance.
At the end of the day, the majority has simply rewritten the MWA. It has
abruptly departed from prior precedent aligning the MWA with its federal
counterpart, the FLSA. And, it has rejected out of hand the long-standing
interpretation of the MWA by the agency charged with enforcing it. The
consequences of today's holding extend far beyond this case. The statute the
majority has rewritten, RCW 49.46.020, broadly applies to all nonhourly employees
^ As noted above, DLI subsequently read our decision in Lopez Demetrio this same
way and issued a revised administrative policy that specifically instructs agricultural
employers to calculate piece-rate workers' wages using workweek averaging (excluding
rest breaks) in order to determine if the rate of pay complies with the minimum wage.
Administrative Policy ES.C.6.2, at 2;supra note 5.
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
covered under the MWA,including nonagricultural pieceworkers and commission-
based employees. Reading it to require hour-by-hour compensation for
nonproduction time will seriously undermine the piece-rate payment system as a
viable compensation plan in many settings.
II. The Majority's "per Hour" Interpretation of the MWA Radically Changes
Washington Law and Undermines Piece-Rate Compensation Plans
Do not believe the majority's promise that today's decision is a narrow
holding. The majority claims to be interpreting the MWA only in the limited context
of adult agricultural pieceworkers. Majority at 13-14. However, the majority's
holding that the MWA provides employees a right to minimum wage compensation
for each individual hour of work is based on its reading of RCW 49.46.020, which
applies equally to nonagricultural pieceworkers and commission-based employees.
Majority at 9("the MWA's plain language requires us to conclude that employees
have a per hour right to minimum wage").
The practical effect of the majority's holding is to accept the plaintiffs' plea
to transform the MWA into California minimum wage law, despite the fact that
federal courts have recently rejected arguments to do so. See Helde v. Knight
Transp., Inc., No. C12-0904RSL, 2016 WL 1687961, *2 (W.D. Wash. Apr. 26,
2016)(holding that "Plaintiffs' underlying assumption is faulty: the MWA does not
require payment on an hourly basis"); Mendis v. Schneider Nat'I Carriers Inc., No.
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
C15-0144-JCC, 2016 WL 6650992, *3 (W.D. Wash. Nov. 10, 2016)("This Court
reiterates ... that 'Plaintiffs' underlying assumption is faulty'"(quoting T/e/Je, WL
1687961, at *2)); Hill v. Xerox Bus. Servs. LLC, 868 F.3d 758, 761 (9th Cir. 2017)
("Piecework employees ... are entitled to a minimum wage based on a work-week
period.").^ The majority ushers in its transformation silently, without a single
reference to the California Labor Code or California case law. Yet the appeal to
California law appears consistently throughout the briefing and was mentioned
several times at oral argument. The plaintiffs argue that "California's minimum
wage law has language that is essentially the same as the MWA's language" and
thus "case law from California on the issue of minimum wage compliance is
persuasive." Pis.' Opening Br. on Certified Questions at 23. At oral argument, when
plaintiffs' counsel was asked to clarify whether he was asking the court to interpret
our minimum wage act to mirror the California statute and require hourly
compensation to the exclusion of workweek averaging, plaintiffs' counsel
responded:
^ Notably, in Hill v. Xerox Business Services, LLC, currently before this court on
certified questions from a class action filed in federal court, plaintiffs make the exact same
per-hour argument raised here on behalf of agricultural workers, but there in the context of
nonagricultural pieceworkers. Appellee's (Hill) Answering Br., Hill v. Xerox Bus. Servs.,
LLC, No. 94860-7, at 27 (Wash. Nov. 6, 2017) ("when pieceworkers are required to
perform non-production work during which they cannot earn piece rates—as the call center
workers here have—they are entitled to be paid for each hour of that work time at the
minimum wage or higher").
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
That's right. . . . And so in California there is a series of cases under a
minimum wage law with similar language to our minimum wage law and the
courts have consistently found that you have to separately pay for this work
time—^work time during which employees are unable to earn a piece rate
because they're required to do other things.
Wash. Supreme Court oral argument, Carranza v. Dovex Fruit Co., No. 94229-3
(September 14, 2017), at 8 min., 18 sec. through 9 min., 32 sec., video recording by
TVW, Washington State's Public Affairs Network, https://www.tvw.org; see also
id. at 10 min., 31 sec. through 10 min., 48 sec. (plaintiffs' counsel stating that the
MWA contains language "that is much more like California's language which says
you have to pay per hour for all hours worked"). While the majority is careful not
to directly cite or rely on California law, its interpretation of the MWA fully
embraces the plaintiffs' analogy. Majority at 16.
This attempt to equate the Washington MWA with California's Labor Code
and related case law is untenable. First, contrary to the plaintiffs' argument, the
language of California's minimum wage is not "essentially the same as the MWA's
language." Pis.' Opening Br. on Certified Questions at 23. A California wage order
states that "[ejvery employer shall pay to each employee wages not less than
[minimum wage] per hourfor all hours worked."" Cal. Indus. Welfare Comm'n,
Order 14-2001 § 4(A)(revised July 2014)(Regulating Wages, Hours and Working
Conditions in the Agricultural Occupations) (emphasis added), http://www.dir.
ca.gov/iwc/iwcarticlel4.pdf [https://perma.cc/BRK5-LGH2]. Unlike the MWA's
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
minimum wage provision(or the FLSA,on which the MWA was modeled),the word
"rate" does not appear anywhere in the California statute. Instead, the California
law requires payment of a minimum wage, not a wage rate, per hour "for all hours
worked." California courts have interpreted the "for all hours worked" language as
entitling employees to an hourly minimum wage for each hour worked, therefore
prohibiting workweek averaging as a measure of minimum wage compliance. See
Armenia v. Osmose, Inc., 135 Cal. App. 4th 314, 323, 37 Cal. Rptr. 3d 460(2005)
(holding that "for all hours worked" language "expresses the intent to ensure that
employees be compensated at the minimum wage for each hour worked"); Gonzalez
V. Downtown LA Motors, LP, 215 Cal. App. 4th 36, 155 Cal. Rptr. 3d 18 (2013)
(extending the Armenia decision to piece-rate workers).
Furthermore, whereas the MWA is expressly based on the FLSA, California
courts have consistently held that "the minimum wage provisions ofthe FLSA differ
significantly fi-om California's minimum wage law." Armenia, 135 Cal. App.4th at
323. Whereas the FLSA permits workweek averaging as an acceptable measure of
minimum wage compliance, California courts have interpreted the "for all hours
worked" language in the California wage order as ensuring minimum wage
compensation for each hour worked. Id. And, under California law, workweek
averaging is impermissible for all types of nonhourly employment, including
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
nonagricultural piecework and commission-based employment in addition to
agricultural piecework.
Finally, it is worth noting that California courts have interpreted the different
language of that state's minimum wage law in a way that is consistent with its
enforcing agency's view of the statute—something today's majority refuses to do.
Several years before the first California court even considered the issue of workweek
averaging, California's Division ofLabor Standards Enforcement(DLSE)issued an
opinion letter expressly requiring payment ofthe minimum wage for"each and every
separate hour worked." Letter from Aime Stevason, Acting ChiefCounsel ofDLSE,
to William J. Flynn & Susan Itelson 10 (Jan. 29, 2002), https://www.
dir.ca.gov/dlse/opinions/2002-0l-29.pdf [https://perma.cc/STE3-CCHB]. In its
opinion letter, the DLSE acknowledged that the minimum wage law was susceptible
to two divergent interpretations—^the obligation to pay minimum wage either
"attaches to each and every separate hour worked" or extends to "the total number
of hours worked in the pay period," without consideration of any hour in isolation.
Id. The DLSE endorsed the former interpretation and expressly rejected the
averaging formula for all employment types, separating California's minimum wage
act from the FLSA.
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
As noted, Washington's DLI has read our different statutory language
differently and has consistently endorsed the use of workweek averaging for all
nonhourly employees, as evidenced by DLI's regulations, administrative policies,
and guidance. In contrast to the DLSE's explicit rejection of workweek averaging
under California law, DLI has steadily assured Washington employers and
employees that workweek averaging is acceptable under the MWA. That the DLSE
and our DLI would take opposite positions as to workweek averaging makes perfect
sense given our distinguishable statutory frameworks. Whereas California's
minimum wage law establishes a minimum wage per hour "for all hours worked,"
Washington's MWA,like the FESA, establishes a minimum rate of pay per hour,
permitting the relative value of an employee's wage to be measured per hour (i.e.,
weekly earnings divided by hours worked). This entire history of different statutory
language and different agency interpretations is absent from the majority opinion,
which ushers in a radical change in the MWA with very little analysis.
The majority's reinterpretation of RCW 49.46.020 charts an entirely new
direction for minimum wage compliance in Washington. Everyone, including DLI,
will have to revise years of policy and practice, and the legislature will have to
further consider whether statutory provisions that interact with RCW 49.46.020 need
to be amended. See, e.g., RCW 49.46.130(1)(requiring payment of overtime at one
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
and one-half times the employee's "regular rate"); WAC 296-128-550 (allowing
overtime pay based on either the piecework rate during the overtime period or the
"regular rate of pay" determined by workweek averaging). All of this is so
unnecessary because the MWA does not require it. Washington's minimum wage
law fully allows for piece-rate compensation schemes that rely on workweek
averaging, so long as pieceworkers are paid at least the minimum wage rate for every
hour worked.
CONCLUSION
Piece-rate compensation plans are wholly consistent with the MWA, and
piece-rate pay may subsume both production and nonproduction time for agricultural
workers. Nothing in the text, purpose, or history of the MWA requires employers
to pay a separate "per hour" wage for the time employees spend on "Piece Rate
Down Time and similar activities." I would answer no to the first certified question
and, therefore, not address the second question.
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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)
5 /
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