LAWRENCE HILL, ADAM WISE, and ROBERT MILLER, on their own behalves and on behalf of all persons similarly situated, Respondents,
GARDA CL NORTHWEST, INC., f/k/a AT SYSTEMS NORTHWEST, INC., a Washington corporation, Appellant.
class action case, the Plaintiffs, nearly 500 employees of
Garda CL Northwest, Inc. (Garda), an armored vehicle company,
successfully sued Garda for denying them meal periods and
rest breaks guaranteed under Washington's Industrial
Welfare Act, chapter 49.12 RCW, and Minimum Wage Act, chapter
49.46 RCW. The trial court awarded the Plaintiffs double
damages, prejudgment interest, and attorney fees. Garda
appeals the trial court's certification of the class,
denial of its motions for summary judgment, grant of the
Plaintiffs' partial summary judgment motion on liability,
award of double damages, award of prejudgment interest, and
use of a lodestar to multiply the Plaintiffs' attorney
contends that the trial court abused its discretion by
certifying the class without making a clear record of its
reasons or considering the criteria of CR 23. We hold that
the trial court's order was sufficient because it
identified the common question that predominated and
explained why a class action was superior to individual
argues that the trial court erred by concluding that neither
the Federal Aviation Administration Authorization Act of 1994
(FAAAA) nor section 301 of the Labor Management Relations Act
(LMRA) preempts the Plaintiffs' claims. We hold that the
FAAAA does not preempt the Plaintiffs' claims because
complying with Washington law would not have had a
significant impact on Garda's operations if Garda had
sought a variance. We also hold that section 301 of the LMRA
does not preempt the Plaintiffs' claims because the
Plaintiffs' rights are independent and non-negotiable,
and we do not have to interpret the Plaintiffs' various
collective bargaining agreements (CBAs) with Garda in order
to resolve the issue.
maintains that the trial court erred by granting the
Plaintiffs' summary judgment motion on Garda's
liability for failing to provide meal periods and rest
breaks. It argues that the Plaintiffs' waived their right
to meal periods when they acknowledged their CBAs, which
purported to contain waivers. Because the Plaintiffs could
not waive their meal periods through a CBA, we hold that
acknowledging their CBAs did not constitute a waiver. Garda
argues further that questions of material fact remain whether
the Plaintiffs were able to take rest breaks. We hold that
Garda's own testimony and materials established that
there was a policy against taking true breaks. Accordingly,
we affirm summary judgment on Garda's liability.
also argues that the court erred by awarding double damages
for the missed meal periods because those are not wage
violations and Garda's conduct was not willful. We hold
that failing to provide meal breaks is a wage violation, but
agree that Garda's conduct was not willful. Therefore, we
reverse the award of double damages for the meal period
also argues that the court should not have awarded
prejudgment interest for any damages for which it awarded
double damages. Because prejudgment interest is not available
when the plaintiff receives punitive damages, such as double
damages, we reverse the award of prejudgment interest on the
rest break damages.
Garda contends that the trial court abused its discretion by
applying a 1.5 lodestar multiplier to the Plaintiffs'
attorney fee award. This multiplier was reasonable given the
risks of the case and the fact that the Plaintiffs'
attorneys took the case on a contingency basis. We affirm.
is an armored truck company that picks up, transports, and
delivers currency and other valuables. Each truck has a
two-person crew, consisting of a driver and a messenger. The
truck routes vary in length and number of stops, with some
requiring as long as 10 hours to complete.
operates branches in seven cities in Washington: Seattle,
Tacoma, Mount Vernon, Wenatchee, Yakima, Spokane, and Pasco.
Company-wide policies, applicable to all Washington branches,
include rules for ensuring the safety and security of the
truck, the crew, and the valuables. The policies require
Garda drivers and messengers to be alert at all times and
prohibit Garda employees from bringing personal cell phones
or reading materials on the trucks.
branches have their own managers. Each branch has its own
drivers association, which negotiates CBAs on behalf of that
branch's employees. A large percentage of Garda employees
signed acknowledgments of their branches' CBAs. Each CBA
had one of the following provisions regarding meal breaks:
• "[R]outes will be scheduled without a designated
• "Employees hereto agree to an on-duty meal
• "The Employees hereto waive any meal period(s) to
which they would otherwise be entitled."
employees often go to the bathroom or buy food and beverages
while on their routes, but do not take official meal breaks.
Garda managers agree that, because of the dangerous nature of
their work, all Garda employees must maintain some level of
alertness during the entirety of their routes.
February 2009, three Garda employees, Lawrence Hill, Adam
Wise, and Robert Miller, sued Garda, alleging that Garda did
not provide them with legally sufficient rest breaks or meal
periods, in violation of the Washington Industrial Welfare
Act, chapter 49.12 RCW, and the Minimum Wage Act, chapter
49.46 RCW. They moved for class certification, which the
trial court granted in July 2010.
class consists of nearly 500 current and former Garda
employees (collectively, the Plaintiffs) who worked for Garda
between February 11, 2006, and February 7, 2015. The court
appointed Hill, Wise, and Miller as the named representatives
of the class. Garda moved to compel arbitration under the
terms of the CBAs, but the Washington Supreme Court held that
the arbitration procedures were unconscionable and remanded
the case back to the trial court in September
moved for summary judgment on the ground that the
Plaintiffs' claims were preempted by section 301 of the
LMRA or, in the alternative, that the Plaintiffs had waived
their right to meal breaks through their CBAs. The trial
court denied Garda's motion.
December 2014, Garda received permission to amend its answer
to add the affirmative defense that the FAAAA preempted the
Plaintiffs' claims. Garda moved for summary judgment on
this preemption argument and the trial court denied it. Garda
then moved unsuccessfully to decertify the class.
Plaintiffs moved for partial summary judgment on the issues
of liability and their entitlement to double damages. The
trial court granted the motion as to liability but denied
summary judgment on double damages.
2015, the case proceeded to a bench trial on the issue of
damages and, in September, to a trial on double damages. In
October, the court found for the Plaintiffs, awarding $4,
209, 596.61 in back pay damages, $1, 668, 235.62 in double
damages, and $2, 350, 255.63 in prejudgment interest. In
December, the trial court awarded the Plaintiffs $1, 127,
734.50 in attorney fees, after applying a 1.5 lodestar
argues that the trial court erred by certifying the class and
denying its motion to decertify the class. It contends that
the trial court oversimplified the case and neglected to
weigh individual questions against common questions. We
disagree. The trial court's order certifying the class
identified the overriding question for this case as whether
Garda had provided legally-sufficient rest breaks and meal
periods to all class members. The trial court did not abuse
Rule 23 governs class actions. Individuals "may sue or
be sued" as representatives of a class if
(1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common
to the class, (3) the claims or defenses of the
representative parties are typical of the claims or defenses
of the class, and (4) the representatives will fairly and
adequately protect the interests of the class.
to maintain a class action, the court must find "that
the questions of law or fact common to the members of the
class predominate over any questions affecting only
individual members, and that a class action is superior to
other available methods for the fair and efficient
adjudication of the controversy." CR
court reviews a trial court's decision to certify a class
for [an] abuse of discretion." Miller v. Farmer
Bros. Co., 115 Wn.App. 815, 820, 64 P.3d 49 (2003). A
court abuses its discretion if its decision is manifestly
unreasonable or based on untenable grounds. Miller.
115 Wn.App. at 820. "The court must articulate on the
record each of the CR 23 factors for its decision on the
certification issue." Schwendeman v. USAA
Cas. Ins. Co., 116 Wn.App. 9, 19, 65 P.3d 1 (2003). We
review class decisions "liberally" and will
"err in favor of certifying a class."
Miller, 115 Wn.App. at 820.
Miller, the trial court certified the class but did
not make any findings regarding whether joinder of the 29
individual plaintiffs would be impracticable. 115 Wn.App. at
821. The Court of Appeals reversed and remanded to the trial
court for additional findings showing it had rigorously
considered the CR 23 criteria. Miller, 115 Wn.App.
at 821. By contrast, in Eriks v. Denver, the Supreme
Court held that the trial court had not erred by certifying a
class when it "specifically concluded there were common
questions of fact and that 'the interests of justice
would be impaired by requiring [class] members to proceed
individually.'" 118 Wn.2d 451, 467, 824 P.2d 1207
(1992). The Supreme Court noted that the "judge also
incorporated by reference the authorities and arguments cited
in the investors' brief. Therefore, it [was] obvious the
judge considered all of the criteria of CR 23."
Eriks, 118 Wn.2d at 467.
the trial court granted class certification under CR 23(a)
and CR 23(b)(3). The court specifically found
that common questions of law and fact will predominate over
any individual questions. The single common and overriding
issue presented is whether Drivers and Messengers are allowed
legally sufficient rest or meal breaks and whether Drivers
and Messengers are entitled to compensation for missed meal
periods and rest breaks. The claims of individual class
members are likely valued at a few thousand dollars each and
adjudicating the claims presented on a class basis will be
manageable; Class adjudication of common issues is therefore
argues that these findings are not adequate to support the
trial court's finding that common questions predominated
and a class action would be superior to individual actions.
But, by finding that a single issue was "overriding,
" the trial court signaled that it had considered the
individual issues and determined that that this one was
common to all putative class members and would predominate.
By naming the specific issue, the court demonstrated that it
had engaged in a critical examination of the issues. In
addition, the court stated that it had "considered"
the parties' motions, which thoroughly examined these
issues. We conclude that the trial court's
findings were sufficient to show that a question common to
the Plaintiffs predominated.
the trial court estimated the value of each individual's
claim and concluded that the action would be manageable as a
class action. These findings, together with the court's
findings that there were likely hundreds of class members and
that a common question predominated, are adequate to show the
court's reasons for determining that a class action was
superior to individual actions.
record also supports the trial court's decision to
certify the class. The FAAAA and section 301 preemption
issues are legal questions that are common to the whole class
and do not require analyzing the different
CBAs. And, while individual branch managers may
have treated individual class members differently, the
summary judgment motion on liability relied on Garda's
state-wide policies and the concessions by Garda's
corporate designee, which applied to all class members.
also argues that the trial court did not make adequate
findings in response to its motion to decertify the class. It
is true that the trial court's order addressing that
motion simply recited the documents it considered and then
denied the motion. But Garda cites no authority for its
position that the trial court must offer new findings to
support a decision not to decertify. The trial court's
original findings were adequate to support its decision to
deny Garda's motion.
short, the trial court did not abuse its discretion by
certifying the class and declining to decertify the class.
Summary Judgment Motions on Preemption
argues that the trial court should have granted its motions
for summary judgment on the grounds that the FAAAA and
section 301 of the LMRA preempt the Plaintiffs' claims.
judgment is proper if, viewing the facts in the light most
favorable to the nonmoving party, no genuine issues of
material fact exist and the moving party is entitled to
judgment as a matter of law. Dowler v. Clover Park Sch.
Dist. No. 400, 172 Wn.2d 471, 484, 258 P.3d 676 (2011);
CR 56. We review summary judgment decisions de novo.
Dowler, 172 Wn.2d at 484.
argues that it was entitled to judgment as a matter of law
because the FAAAA preempts the Plaintiffs' claims.
Specifically, it argues that complying with Washington's
meal and rest period requirements would have a significant
impact on its prices, routes, and services. We hold that the
FAAAA does not preempt the Plaintiffs' claims because, by
obtaining a variance, Garda can comply with the meal and rest
period rules without significantly impacting its operations.
federal law preempts state law is a question of congressional
intent. Dep't of Labor & Indus, of State of Wash,
v. Common Carriers. Inc., 111 Wn.2d 586, 588, 762 P.2d
348 (1988). Federal law preempts state law when Congress has
explicitly said so, when federal regulation of a field is so
comprehensive that there is no room for state action, or when
there is an actual conflict between federal and state law.
Common Carriers, 111 Wn.2d at 588. There is a strong
presumption against federal preemption when a state acts
within its historic police powers. Common Carriers,
111 Wn.2d at 588; Hawaiian Airlines. Inc. v. Norris,
512 U.S. 246, 252, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994).
is an affirmative defense; the proponent of the defense bears
the burden of establishing it. Dilts v. Penske Logistics.
LLC, 769 F.3d 637, 649 (9th Cir. 2014). This court
reviews preemption determinations de novo. Robertson v.
State Liquor Control Bd., 102 Wn.App. 848, 853, 10 P.3d
FAAAA forbids states from enacting or enforcing any law
"related to a price, route, or service of any motor
carrier. . . with respect to the transportation of
property." 49 U.S.C. § 14501(c)(1). Congress passed
the FAAAA in order to "eliminate non-uniform state
regulations of motor carriers" and "'even the
playing field' between air carriers and motor
carriers." Californians for Safe & Competitive
Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1187 (9th
Cir. 1998) (quoting H.R. Conf. Rep. No. 103-677, at 86-88
(1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1757,
"related to" expresses a broad preemptive purpose,
there is no preemption "when a state statute's
'effect is no more than indirect, remote, and
tenuous.'" Robertson. 102 Wn.App. at 854-55
(quoting Mendoca. 152 F.3d at 1189). While the FAAAA
usually preempts laws that affect the way a carrier interacts
with its customers, it often does not preempt laws that
affect the way a carrier interacts with its workforce because
they are "too tenuously connected to the carrier's
relationship with its customers." Costello v.
BeavEx. Inc.. 810 F.3d 1045, 1054 (7th Cir. 2016).
"[G]enerally applicable background regulations that are
several steps removed from prices, routes, or services, such
as prevailing wage laws or safety regulations, are not
preempted, even if employers must factor those provisions
into their decisions about the prices that they set, the
routes that they use, or the services that they
provide." Dilts, 769 F.3d at 646.
Dilts, the Ninth Circuit held that the FAAAA did not
preempt California's meal and rest break laws. 769 F.3d
at 647. California's meal and break laws require
employers to provide a 30 minute meal break for employees who
work more than five hours a day and a paid 10 minute rest
period every four hours for employees who work at least three
and one-half hours. Dilts, 769 F.3d at 641-42; Cal.
Lab. Code § 512(a); Cal. Code Regs. Tit. 8, §
11090(12)(A). Under certain circumstances, employees may
waive their meal breaks or agree to an on-duty meal break.
Dilts, 769 F.3d at 641-42. If the employer fails to
provide the required breaks, it must pay the employee
"for an additional hour of work at the employee's
regular rate." Dilts, 769 F.3d at 642.
court held that the FAAAA did not preempt the claims of a
class of delivery drivers and installers who asserted that
their employers were not providing the required meal and rest
breaks. Dilts, 769 F.3d at 640. It acknowledged that
"motor carriers may have to take into account the meal
and rest break requirements when allocating resources and
scheduling routes, " but held that these "normal
background rules" did not have a significant enough
impact on prices, routes, or services to warrant preemption.
Dilts, 769 F.3d at 647. It also held that modest
increases in the cost of doing business, including having to
hire more drivers or having drivers take longer to complete
certain routes, were not the kind of impacts that Congress
intended to preempt. Dilts, 769 F.3d at 648-49.
the Plaintiffs base their claims on Washington's meal
period and rest break laws, which closely resemble
California's. Washington's specific rules are set out
in Washington Administrative Code (WAC) 296-126-092:
(1) Employees shall be allowed a meal period of at least
thirty minutes which commences no less than two hours nor
more than five hours from the beginning of the shift. Meal
periods shall be on the employer's time when the employee
is required by the employer to remain on duty on the premises
or at a prescribed work site in the interest of the employer.
(2) No employee shall be required to work more than five
consecutive hours without a meal period.
(4) Employees shall be allowed a rest period of not less than
ten minutes, on the employer's time, for each four hours
of working time. Rest periods shall be scheduled as near as
possible to the midpoint of the work period. No employee
shall be required to work more than three hours without a
(5) Where the nature of the work allows employees to take
intermittent rest periods equivalent to ten minutes for each
four hours worked, scheduled rest periods are not required.
employees must be free from work duties, including the duty
to be '"vigilant, "" during these breaks.
Pellino v. Brink's Inc., 164 Wn.App. 668,
685-86, 690, 267 P.3d 383(2011).
meal period and rest break regulations are generally
applicable background laws that govern how all employers
interact with their employees. They do not single out motor
carriers or explicitly attempt to regulate prices, routes/or
services. Nevertheless, Garda argues that the FAAAA preempts
Washington's regulations in this case because Garda
cannot comply with the regulations without having to
significantly change its prices, routes, and services.
the dangerous nature of their work, Garda employees must
"remain on alert for possible threats, " "even
when taking a break." They "cannot merely pull
off the road to a parking space or rest stop to take a rest
break." In order to provide completely
vigilance-free breaks, Garda would have to dramatically
change its routes to allow drivers to return to its secure
facilities to take breaks every three hours. It would also
have to stop services completely for rural routes that cannot
be completed in three hours.
is correct that such significant impacts on its routes would
likely warrant a finding of preemption under the FAAAA. But
implementing these changes is only one way that Garda could
comply with Washington's meal and rest period
regulations. Garda also has the option to apply for a
variance from Washington's Department of Labor and
law provides that employers may receive a variance from meal
and rest break rules if the employer can show "good
cause." RCW 49.12.105. '"Good cause' means,
but is not limited to, those situations where the employer
can justify the variance and can prove that the variance does
not have a harmful effect on the health, safety, and welfare
of the employees involved." WAC 296-126-130(4).
Garda's need for its employees to be alert at all times
is based on ensuring the employees' personal safety and