STEPHEN MYNATT and ANITA ELAINE MYNATT, on their own behalf And on behalf of all others similarly situated, Appellants/Cross-Respondents,
GORDON TRUCKING, INC., a Washington corporation, Respondent/Cross-Appellant.
ORDER GRANTING MOTION TO PUBLISH OPINION
The Respondent/Cross-Appellant, Gordon Trucking, Inc., filed a motion to publish opinion, and a panel of the court called for an answer to the motion. Appellants did not oppose publication of the opinion. A majority of the panel has determined that the motion should be granted;
Now, therefore, it is hereby
ORDERED that appellant's motion to publish the opinion is granted.
The issue in this appeal is whether a trucking company's pay plan included pay for interstate drivers that is "reasonably equivalent" to overtime, as required by RCW 49.46.130(2)(f). Stephen and Anita Mynatt, a married couple, are team long-haul truck drivers employed by Gordon Trucking, Inc. (GTI). The Mynatts brought claims against GTI for failure to pay overtime and three other claims predicated on the overtime claims. While the lawsuit was pending, the Washington Department of Labor and Industries (L&I) issued a determination letter that the Mynatts' pay plan included the reasonable equivalent to overtime. The trial court dismissed the Mynatts' claims on summary judgment. We affirm.
GTI is a motor carrier headquartered in Pacific, Washington. The Mynatts have been employed by GTI as Washington-based team long-haul drivers since 2004 and are dispatched out of its Pacific terminal. The Mynatts are subject to the Federal Motor Carrier Act, 49 U.S.C. § 3101.
Since 1989, Washington state has authorized motor carriers to compensate drivers with pay that is "reasonably equivalent" to overtime (REOT) through non-hourly, piece-rate compensation plans. WAC 296-128-012 (1989); see also Westberry v. Interstate Distrib. Co., 164 Wn.App. 196, 200, 263 P.3d 1251 (2011). Prior to 2007, L&I interpreted Washington's overtime laws as applying only to drivers' work performed within the state. Id.; former WAC 296-128-011 (1989). Accordingly, GTI's understanding before 2007 was that it was not required to pay overtime for out-of-state work, and it told the Mynatts after they were hired that they would not receive overtime pay as long-haul, interstate drivers. The Mynatts were paid under GTI's PLUSS plan, a mileage-based plan that pays a certain number of cents per dispatched mile associated with each load. Clerk's Papers (CP) at 144. The miles are computer-generated and reflect "practical miles" from city center to city center, not odometer miles. CP at 64. The PLUSS plan also pays flat-rate "accessorial pay" for certain non-driving activities (e.g., loading and unloading). CP at 147, 165, 1309. For short hauls (less than 125 miles), the PLUSS plan pays mileage pay plus an additional $10 to $30.
In March 2007, the Washington Supreme Court held that RCW 49.46.130(1) requires that Washington-based drivers receive overtime pay for all hours worked over 40 per week, whether those hours are performed in or out of the state. Bostain v. Food Express, Inc., 159 Wn.2d 700, 710-21, 153 P.3d 846 (2007). L&I amended its regulations to comport with Bostain. Westberry, 164 Wn.App. at 201. With respect to pay plans in place before March 1, 2007, L&I gave employers of drivers who worked over 40 hours a week, consisting of both instate and out-of-state hours, the opportunity to request formal determinations of whether the plans included "overtime that was at least reasonably equivalent to that required by RCW 49.46.130." WAC 296-128-012(3).
On January 16, 2009, GTI submitted to L&I a request for a determination that the PLUSS plan satisfied the REOT requirement under RCW 49.46.130. GTI followed L&I's Administrative Policy ES.A.8.3 (10/24/08), submitting estimates of hours worked, compensation, miles driven, and average speed information for 30 randomly selected drivers (including both of the Mynatts) over a 26-week period. GTI wrote to L&I:
Gordon Trucking pays its [long] haul drivers an alternative mileage based pay on a weekly basis. Notice to drivers of this pay policy is attached hereto as Exhibit A — Reasonably Equivalent Pay Policy, which was mailed to drivers and published internally. The effective date was January 1, 1998.
CP at 147. Exhibit A, the Reasonably Equivalent Pay Policy (REP Policy), is titled "Description of Driver Compensation for work performed within the State of Washington, " with an effective date of January 1, 1998. It states:
Drivers working mileage runs receive mileage pay at their applicable mileage pay rate, plus accessorial pay (i.e. loading, unloading, making doubles or breaking doubles), if applicable. The combination of mileage pay and accessorial pay rates include a 20% factor for anticipated overtime up to a workweek of 65 hours. As a result, drivers are paid the ...