CERTIFICATION FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON IN
DOVEX FRUIT COMPANY, Defendant. MARIANO CARRANZA and ELISEO MARTINEZ, individually and on behalf of all others similarly situated, Plaintiffs,
Washington Minimum Wage Act (MWA), chapter 49.46 RCW,
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
following two questions, which were certified to us by Judge
Mendoza of the 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)?
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).
answer to the first certified question is yes. The plain
language of the 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(1)-(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
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.
parties disagree about which, if any, tasks are outside the
scope of piece-rate picking work. See Pls.'
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 certified question
presented. Discovery is ongoing, and we defer resolution of
the question to the district court.
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.
case began in 2016 when the two named plaintiffs filed this
putative class action lawsuit against Do vex on behalf of Do
vex'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.
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.
Pls.' 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.
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. Pls.' 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. Pls.' Opening Br. on Certified Questions at 3.
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. 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).
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 of
fact, not law, and is therefore appropriately left to the
"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.
"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.
"establishes] 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, § 1(5)(a);
Laws of 1989, ch. 1, § 1(5)(a).
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(1)-(3) (emphasis
added). The central issue here is our interpretation of the
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.
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 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.
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."
always in cases of statutory interpretation, we look first to
the plain language of the statute to discern the
legislature's intent. Dep't of Ecology 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
49.46.02O(1)-(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.
conclusion is well illustrated by a comparison of the 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 "[e]very 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.
addition to the statute itself, analogous case law further
supports the plaintiffs' view. We agree with Dovex that
our decision in Lopez Demetrio v. 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
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.
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
Prof'l 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 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.
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 of Pasco
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 of the
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 of the 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. Id. 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.
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
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 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
of the MWA that is not at issue in this case, and it did so
by relying on comparable provisions and regulations of the
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.
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 MWA's plain requirement that agricultural
workers are entitled to hourly compensation for hourly work.
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.
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 DLI's interpretation of the MWA that does not
apply to agricultural workers. WAC 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. WAC 296-126-001(2)(c); Def.
Dovex Fruit Co.'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 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
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 of the policy relevant to workers paid by
the piece purports to interpret WAC 296-126-021, which,
again, expressly exempts agricultural workers. WAC
296-126-001(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 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).
'"[s]tatutes should be interpreted to further, not
frustrate, 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 of the MWA and is a clear admission that its
interpretation favors employers over workers. Dissent
(Stephens, J.) at 19.
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 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.
closing, we note that the dissent contends we have relied on
California courts' interpretation of their 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.
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 ...