LaCoursiere v. Camwest Dev., Inc. ( 2014 )


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  •      Fl LE
    IN THE SUPREME COURT OF THE STATE OF WASHINGTON
    SHAUN LaCOURSIERE, a single individual, )
    )
    Petitioner,                       )                     No. 88298-3
    )
    v.                                                )                       En Bane
    )
    CAMWEST DEVELOPMENT, INC., a               )
    corporation organized under Washington lav )              Filed        OCT 2 3 2014
    ----~~~~~---
    and ERIC H. CAMPBELL, an individual,       )
    )
    Respondents.                      )
    )
    WIGGINS, J.-We must decide in this case whether a portion of the wages
    paid to plaintiff Shaun LaCoursiere was rebated to his employer or its agent in violation
    of Washington's wage rebate act, chapter 49.52 RCW. 1 LaCoursiere's employer,
    CamWest Development Inc. (CamWest), paid LaCoursiere three discretionary
    bonuses during the course of his employment.                Pursuant to his employment
    agreement, a portion of LaCoursiere's bonus money was directly invested in a related
    company, CamWest Managers LLC (the LLC).                    When CamWest terminated
    LaCoursiere's employment before the investment fully vested, LaCoursiere lost a
    1 RCW 49.52.050(1) prohibits "[a]ny employer or officer, vice principal or agent of any
    employer" from collecting or receiving rebates "theretofore paid by such employer to such
    employee." For convenience, this opinion refers collectively to officers, vice principals, and
    agents as "agents."                                              ·
    No. 88298-3
    portion of his investment in the LLC. We affirm the Court of Appeals' dismissal of
    LaCoursiere's claim. Even though the bonuses constituted "wages," there was no
    rebate of those wages because LaCoursiere's unvested interest reverted to the LLC
    and not to LaCoursiere's employer, CamWest. However, we reverse the award of
    attorney fees to CamWest because LaCoursiere's claim is grounded in the wage
    rebate act (WRA), under which reasonable attorney fees and costs are available only
    to prevailing employees.
    FACTS
    CamWest specializes in residential construction. CamWest uses its related
    company, the LLC, to finance building projects. It is the sole business of the LLC to
    loan money to CamWest. Eric Campbell is the founder and president of CamWest
    and also the manager of the LLC.
    In 2003 CamWest hired Shaun LaCoursiere as an assistant project manager.
    In 2005 LaCoursiere accepted a promotion to project manager.          As part of this
    promotion, LaCoursiere voluntarily signed both an employment agreement (governing
    his employment and pay) and an LLC agreement (governing his participation in a profit
    sharing plan).
    The employment agreement provided that in addition to LaCoursiere's annual
    salary, LaCoursiere may receive a discretionary bonus. If CamWest decided to issue
    a bonus, the bonuses were based on net profits from individual projects that
    LaCoursiere worked on and LaCoursiere's performance as a manager. CamWest
    would be free to weigh each of the work performance criteria differently as long as it
    evaluated all project managers using the same standards and gave each manager a
    2
    No. 88298-3
    point score (1 00 points being the maximum score). After Cam West calculated the
    bonus, the employment agreement provided that after taxes, 44 percent of the bonus
    would be distributed to LaCoursiere and the remaining 56 percent would be distributed
    directly to the LLC (as part of the LLC bonus structure).     Lastly, the employment
    agreement contained an attorney fee provision, which mandated that the prevailing
    party in any legal dispute arising under the agreement would be entitled to attorney
    fees and costs.
    Upon his first capital contribution on May 15, 2006, LaCoursiere signed the LLC
    agreement and became a member in the LLC. Under the LLC agreement, the portion
    of LaCoursiere's bonus that went to the LLC served as capital to be lent to CamWest.
    In return, he received one "unit" of membership in the LLC for every dollar paid into
    the LLC and annual interest payments based on his relative ownership in the LLC as
    compared to other members.        The LLC members accrue 20 percent of a full
    membership interest annually until they fully vest as members.
    The LLC agreement also provided that if CamWest terminated LaCoursiere for
    cause, his interest in the LLC would be immediately sold. Upon sale, LaCoursiere
    would be entitled to the fair market value of the LLC divided by the total number of
    units held by the members as of the date of the fair market valuation, multiplied by the
    percentage of the member's vesting in the LLC. In other words, if LaCoursiere was
    60 percent vested, he would receive 60 percent of his proportional interest in the LLC.
    The LLC agreement further provided that in the event of a sale, Eric Campbell, the
    founder and president of CamWest, would have the first right to purchase the units
    3
    No. 88298-3
    and CamWest the second right to purchase. Any remaining units "shall be purchased
    by all of the Members on a pro rata basis."
    In his first year as a manager, CamWest paid LaCoursiere an after-tax bonus
    of $80,217.05, with $49,961.80 of that bonus distributed directly to the LLC. The full
    details of LaCoursiere's net, after-tax bonuses are detailed below:
    Portion Paid to    Portion Paid to the
    Year of Bonus          Total Bonus
    LaCoursiere              LLC
    2005              $ 80,217.05           $ 30,255.25          $ 49,961.80
    2006              $ 65,021.46           $24,672.50           $40,348.96
    2007              $ 21 J 154.66          $4,444.30           $ 16,710.36
    LaCoursiere also received three yearly interest payments from the LLC, totaling
    $16,468.
    The construction industry took a downturn in 2008, and CamWest demoted
    LaCoursiere to senior laborer and reduced his salary on December 12, 2008. Then,
    on March 6, 2009, CamWest terminated LaCoursiere due to his consistent tardiness.
    At this point, LaCoursiere's membership interest in the LLC was 60 percent vested.
    Over the next eight months, LaCoursiere received payments for his 60 percent
    vested membership interest; before the final payout, he sued CamWest under the
    WRA. LaCoursiere argued that the profit sharing plan was a rebate under the WRA
    because the bonuses were "wages" once they were paid, and the plan was really a
    mechanism for CamWest to divert some of those wages back to itself. He sought
    statutory double damages of $323,387.14 plus costs and attorney fees.
    The trial court granted summary judgment in favor of CamWest but denied
    CamWest's motion for attorney fees and costs. The Court of Appeals affirmed the
    4
    No. 88298-3
    summary judgment order, holding that (1) the bonuses were not wages, (2) the
    bonuses were not rebated, and (3) LaCoursiere was not entitled to relief under RCW
    49.52.070 because he knowingly submitted to alleged violations of the WRA.
    LaCoursierev. CamWest Oev., Inc., 
    172 Wash. App. 142
    , 151-53, 
    289 P.3d 683
    (2012).
    Additionally, the Court of Appeals reversed the trial court's denial of the attorney fees
    on the grounds that the employment agreement was central to the dispute. /d. at 153-
    54.
    ANALYSIS
    This court reviews an order of summary judgment de novo. Mohr v. Grantham,
    
    172 Wash. 2d 844
    , 859, 
    262 P.3d 490
    (2011 ). We perform the same inquiry as the trial
    court and will affirm an order of summary judgment when "there is no genuine issue
    of material fact and the moving party is entitled to judgment as a matter of law." Qwest
    Corp. v. City of Bellevue, 
    161 Wash. 2d 353
    , 358, 
    166 P.3d 667
    (2007). We review the
    evidence in the light most favorable to the nonmoving party and draw all reasonable
    inferences in that party's favor. /d. This case presents three questions of law: (1)
    Whether the bonuses paid to LaCoursiere were "wages"; (2) if the answer is yes,
    whether the bonuses were rebated; and (3) whether CamWest is entitled to attorney
    fees pursuant to the employment agreement.
    The WRA states in pertinent part:
    Any employer or officer, vice principal or agent of any employer, whether
    said employer be in private business or an elected public official, who
    (1) Shall collect or receive from any employee a rebate of any part
    of wages theretofore paid by such employer to such employee ....
    5
    No. 88298-3
    Shall be guilty of a misdemeanor.
    RCW 49.52.050.
    Passed in 1939, the WRA-also known as the "anti-kickback" statutes-was
    enacted by the legislature to "prevent abuses by employers in a labor-management
    setting, e.g., coercing rebates from employees in order to circumvent collective
    bargaining agreements." Ellerman     v.   Centerpoint Prepress, Inc., 
    143 Wash. 2d 514
    ,519-
    20, 
    22 P.3d 795
    (2001 ). '"[T]he fundamental purpose of the [WRA] is to protect the
    wages of an employee against any diminution or deduction therefrom by rebating,
    underpayment, or false showing of overpayment of any part of such wages."' Schilling
    v.   Radio Holdings, Inc., 
    136 Wash. 2d 152
    , 159, 
    961 P.2d 371
    (1998) (quoting State       v.
    Carter, 
    18 Wash. 2d 590
    , 621, 
    140 P.2d 298
    , 
    142 P.2d 403
    (1943)). "The [WRA] is thus
    primarily a protective measure, rather than a strictly corrupt practices statute." 
    Carter, 18 Wash. 2d at 621
    . Accordingly, this court must "liberally construe[] [the WRA] to
    advance the Legislature's intent to protect employee wages and assure payment."
    
    Schilling, 136 Wash. 2d at 159
    .
    I.   The Bonuses Were Wages
    We hold that bonuses, once paid for work performed, are wages. The WRA
    does not define "wage." To give undefined terms meaning, this court may look to
    dictionary definitions and related statutes. Garrison     v.   Wash. State Nursing Bd., 
    87 Wash. 2d 195
    , 196, 
    550 P.2d 7
    (1976) (dictionary); Oep't of Ecology v. Campbell & Gwinn,
    LLC, 
    146 Wash. 2d 1
    , 10, 
    43 P.3d 4
    (2002) (related statutes). "Ultimately, in resolving a
    question of statutory construction, this court will adopt the interpretation which best
    6
    No. 88298-3
    advances the legislative purpose." Bennett v. Hardy, 
    113 Wash. 2d 912
    , 928, 
    784 P.2d 1258
    (1990).
    While the WRA does not define "wage," another related wage statute, the
    Minimum Wage Act, chapter 49.46 RCW, broadly defines "wage" as "compensation
    due to an employee by reason of employment."           RCW 49.46.01 0(7).      Similarly,
    Webster's defines "wage" as "a pledge or payment of usu. monetary remuneration by
    an employer esp. for labor or services usu. according to contract and on an hourly,
    daily, or piecework basis and often including bonuses, commissions, and amounts
    paid   by     the   employer for   insurance,   pension,   hospitalization,   and   other
    benefits." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2568 (2002) (emphasis
    added).
    Washington courts have previously addressed whether bonuses are wages in
    only two narrow circumstances: (1) where a bonus is paid, but not for work performed,
    and (2) where guaranteed payment of a future bonus is implied in a contract. See,
    e.g., Byrne v. Courtesy Ford, Inc., 
    108 Wash. App. 683
    , 692, 
    32 P.3d 307
    (2001) (holding
    that television unexpectedly won in raffle by company and given to employee was not
    a wage because there was not sufficient testimony that television was given as
    compensation for work); Simon v. Riblet Tramway Co., 
    8 Wash. App. 289
    , 292-93, 
    505 P.2d 1291
    (1973) (holding that paying employee a bonus regularly for 10 years
    establishes an implied agreement to pay the bonus as part of employee's earned
    compensation); Powell v. Republic Creosoting Co., 
    172 Wash. 155
    , 159, 
    19 P.2d 919
    (1933) (holding that a substantial bonus paid for 11 consecutive years is sufficient to
    hold that future bonus money was necessarily due as compensation). However, no
    7
    No. 88298-3
    Washington case discusses the character of bonuses already paid for work
    performed.
    LaCoursiere's bonuses are, in important respects, analogous to the promised
    bonus in Flower v. TR.A. Industries, Inc., 
    127 Wash. App. 13
    , 35, 
    111 P.3d 1192
    (2005).
    Flower entered into an employment agreement that granted him moving expenses
    and a $10,000 signing bonus. /d. at 23. After moving and two months of work, the
    employer fired Flower and refused to pay the signing bonus. /d. at 24. Among other
    claims, Flower filed suit for the $10,000 signing bonus, arguing that it was due to him
    as a wage. After looking at the employment agreement, the court held that the signing
    bonus was due under the terms of the agreement and not subject to repayment of any
    sort. Noting that wages are "moneys due "'by reason of employment,""' the court held
    further that "[t]here [was] no doubt that the bonus was to be paid 'by reason of
    employment."' /d. at 34-35 (quoting Hayes v. Trulock, 
    51 Wash. App. 795
    , 806, 
    755 P.2d 830
    (1988) (quoting RCW 49.46.01 0(2))).
    The bonuses in Flower and in this case were not purely gratuitous. The bonus
    in Flower was paid in exchange for the employment; LaCoursiere's bonuses were paid
    for his work performance. Both bonuses were due by reason of employment. While
    CamWest maintained the discretion to give the bonus in the first place, once CamWest
    paid LaCoursiere the bonus based on his work performance, that bonus became a
    wage that LaCoursiere was "entitled to receive from his employer, and which the
    employer is obligated to pay." 
    Carter, 18 Wash. 2d at 621
    . The only difference is that
    the bonus in Flower was not yet paid and LaCoursiere's bonuses were already paid.
    8
    No. 88298-3
    But this difference only makes it more certain that LaCoursiere's bonuses were
    wages-they were most certainly earned for work performed.
    Therefore, we hold that LaCoursiere's bonuses were wages because the
    bonuses were already paid for work performed. This interpretation gives effect to the
    legislature's intent to protect money due to employees and comports with the broad
    definition of "wage."
    II.   There Was No Rebate
    LaCoursiere's wages were not rebated under the profit sharing plan. The WRA
    and related acts do not define "rebate." But from the context of the statute and other
    provisions in the WRA, we conclude that a rebate occurs when an employee receives
    less than his or her expected wages because a portion of those wages have returned
    to the employer or its agent. Here, it was not CamWest but the LLC that collected and
    received the bonus money. Because the LLC was not LaCoursiere's employer, there
    was no rebate.
    According to the plain language of the statute, a "rebate" occurs when an
    employer or its agent collects or receives a portion of an employee's wage after the
    wage has been paid.     RCW 49.52.050(1) prohibits "[a]ny employer or officer, vice
    principal or agent of any employer" from collecting or receiving rebates "theretofore
    paid by such employer to such employee."           Webster's defines "rebate" as "a
    retroactive abatement, credit, discount, or refund."          WEBSTER's THIRD NEW
    INTERNATIONAL DICTIONARY 1892 (2002); see a/so BLACK'S LAW DICTIONARY 1458 (1Oth
    ed. 2014) (defining "rebate" as a "return of part of a payment, serving as a discount or
    reduction"); Jumamil v. Lakeside Casino, LLC, 
    179 Wash. App. 665
    , 687-88, 
    319 P.3d 9
    No. 88298-3
    868 (2014) (explaining that a rebate is a return of employee's wages (citing 
    Carter, 18 Wash. 2d at 621
    )). A later provision governs rebates of wages on public works and
    provides that a public officer who "takes or receives ... any part or portion of wages
    paid to any laborer, worker, or mechanic" is guilty of a gross misdemeanor. RCW
    49.52.090.
    We further explained in Carter that a rebate need not be rebated or returned to
    the hand that actually paid out the 
    wages. 18 Wash. 2d at 622
    . However, to state a
    claim under RCW 49.52.050, an employee must show that the party unlawfully
    receiving or collecting rebated wages "was both an agent and had control over the
    payment of wages." Rekhter v. Dep't of Social & Health Se1vs., 
    180 Wash. 2d 102
    , 123,
    
    323 P.3d 1036
    (2014) (discussing 
    Ellerman, 143 Wash. 2d at 522
    ). 2 In other words,
    wages are rebated only when they are returned to an entity that controlled and
    originated payment. See Savage-Scofield Co. v. City of Tacoma, 
    56 Wash. 457
    , 460,
    
    105 P. 1032
    (1909) ("[a]ccepting the common use of the word 'rebate'-'to draw back,'
    one cannot draw back something which he never put forward").
    2 The concurrence/dissent challenges our reliance on Rekhter, reasoning that Rekhter
    analyzed a claim for wrongful withholding of wages, not rebating of wages.
    Concurrence/dissent. at 2-3.         But Rekhter did not draw the distinction that the
    concurrence/dissent now urges. Although Rekhter involved wrongful withholding of wages
    as opposed to rebating of wages, its holding plainly extends to all claims arising under RCW
    49.52.050. See 
    Rekhter, 180 Wash. 2d at 123
    (explaining what plaintiff must show "in order to
    prevail on a wage claim" under RCW 49.52.050). The concurrence/dissent also overlooks
    that both withholding and rebate claims are codified in subsections of the same statute, which
    applies to "[a]ny employer or officer, vice principal or agent of any employer." RCW
    49.52.050(1) (prohibiting "a rebate of any part of wages"), .050(2) (making it unlawful to "pay
    any employee a lower wage than the wage such employer is obligated to pay such
    employee"). Furthermore, both rebating wages and wrongful withholding of wages give rise
    to civil liability for double damages under RCW 49.52.070.
    10
    No. 88298-3
    Here, the contributions were not a "rebate" because LaCoursiere's investment
    was made in the LLC and not in LaCoursiere's employer, CamWest.                      Under the
    employment agreement, LaCoursiere agreed to contribute part of his bonus money to
    the LLC. 3 The LLC did not employ LaCoursiere, nor did it pay LaCoursiere any wag~s.
    The LLC was not an agent or principal of CamWest and did .not act on behalf of
    CamWest. All the LLC property was owned by the LLC entity and not by CamWest or
    any other individual member. 4 Thus, the contributions do not constitute a return of
    wages to the employer, CamWest.
    It is true that the LLC used the bonus contributions to make loans to CamWest.
    However, this qoes not, in and of itself, transform the contributions into a rebate. The
    most accurate characterization of the business structure at issue here is that
    CamWest and the LLC were separate legal entities engaged in mutually beneficial
    transactions. Notably, loans from the LLC to CamWest were authorized only if they
    contained "terms and conditions not more favorable than CamWest could at the time
    of each obtain from institutional lenders, including the applicable interest rates,
    3 The Court of Appeals also concluded that the LaCoursiere "knowingly submitted" to the
    rebate, and cited this conclusion as an alternative basis for affirming the trial court's grant of
    summary judgment. See 
    LaCoursiere, 172 Wash. App. at 152-53
    . See also 
    Carter, 18 Wash. 2d at 623
    ("If the contribution be in fact a voluntary donation, it does not necessarily constitute a
    rebate of wages merely because it moves to, or for the benefit of, the employer."). We note
    that the mere fact that an employee signed an agreement is likely insufficient to prove
    voluntariness. Cf. 
    id. at 624
    (voluntary because employees suggested one-time gift to
    employer). However, given our conclusion that the wages were not rebated to the employer
    or the employer's agent, we need not reach-as the concurrence/dissent does-the Court of
    Appeals' alternative "voluntariness" holding.
    4It is not clear whether CamWest was ever a member of the LLC, but it is possible because
    CamWest had an option to purchase units in the event of a sale.
    11
    No. 88298-3
    repayment terms and security of performance." 5 Thus, we hold that the contributions
    LaCoursiere made to the LLC were not a rebate.
    A rebate occurs when a portion of an employee's wages returns to the employer
    or an agent of the employer. Here, LaCoursiere's membership in the LLC was subject
    to a vesting schedule.       Nothing was "rebated" when LaCoursiere forfeited the
    unvested portion (40 percent) of his investment at his termination.       LaCoursiere might
    have received the full value of his investment had he stayed with the company for five
    years. LaCoursiere received only 60 percent of his investme_nt in the LLC because
    his persistent tardiness to work resulted in his termination before he could fully vest.
    Under the LLC agreement, his units were then sold according to certain rules-rules
    that make it impossible to predict where the units would end up at the time wages are
    paid.   The unvested portion may be purchased by CamWest 1 but it may also be
    purchased by Campbell or the other LLC members.                 This uncertainty makes it
    impossible to label the forfeiture of the unvested portion of LaCoursiere's investment
    a "rebate."
    Indeed, the profit sharing plan presented in this case is not the type of "rebate"
    that anti-kickback statutes are designed to address. Other jurisdictions have held that,
    under similar wage statutes, an employer may retain the unvested portion of an
    employee's wages voluntarily invested into the employer-company. See, e.g., Rosen
    5This explicit contractual restriction refutes the concurrence/dissent's assertion that "almost
    nothing in the record" supports the conclusion that CamWest and the LLC are different
    entitles. Concurrence/dissent at 3. The record also includes the LLC agreement. Clerk's
    Papers (CP) at 169-208. Moreover, Campbell's declaration states unequivocally that "[t]he
    LLC is a separate entity from CamWest," CP at 159, and LaCoursiere never presented
    evidence to dispute this assertion. The overlapping ownership of the two entities does not
    erase the fact that they are legally separate.
    12
    No. 88298-3
    v. Smith Barney, Inc., 
    393 N.J. Super. 578
    , 585-94, 
    925 A.2d 32
    (2007), aff'd, 
    195 N.J. 423
    , 
    950 A.2d 205
    (2008) (holding that a vesting provision of a stock plan was
    allowable under a similar wage law because the employee knew both the potential
    risks of forfeiture and benefits of participation before voluntarily agreeing to the plan);
    see also Kim   v.   Citigroup, Inc., 
    368 Ill. App. 3d 298
    , 309, 
    856 N.E.2d 639
    , 
    305 Ill. Dec. 834
    (2006) (holding that a similar wage statute is not violated when an employee
    voluntarily invests wages in a stock plan with a vesting period and voluntarily forfeits
    the unvested portion of the stock). Thus, we hold that while the bonuses in these
    circumstances were wages, there was no rebate of those wages and no violation of
    the WRA. We need not reach the question of whether LaCoursiere knowingly
    submitted to any violation.
    Ill.   Attorney Fees
    "Whether a contract or statute authorizes an award of attorney fees is a
    question of law reviewed de novo." McGuire          v.   Bates, 
    169 Wash. 2d 185
    , 189, 
    234 P.3d 205
    (201 0). We hold that Cam West is not entitled to attorney fees because under the
    WRA, attorney fees may be awarded only to prevailing employees, not employers.
    The Court of Appeals based the award of attorney fees to CamWest upon
    LaCoursiere's employment agreement.             
    LaCoursiere, 172 Wash. App. at 154
    .        The
    employment agreement reads in part:
    If either party brings an action arising under this Agreement, the
    prevailing party shall be entitled to recover its reasonable costs and
    attorney fees incurred in connection therewith, whether at arbitration, trial
    or any appeal therefrom.
    13
    No. 88298-3
    Generally, we enforce attorney fee provisions in contracts "if the action arose
    out of the contract and if the contract is central to the dispute." Seattle-First Nafl Bank
    v. Wash. Ins. Guar. Ass'n, 
    116 Wash. 2d 398
    , 413, 
    804 P.2d 1263
    (1991). However,
    LaCoursiere's claim is grounded exclusively in the WRA. He makes no claims on the
    employment agreement. Therefore, this suit arises out of the WRA, and we apply the
    attorney fee provision in the WRA.
    The WRA allows only prevailing employees to collect attorney fees:
    Any employer and any officer, vice principal or agent of any employer
    who shall violate any of the provisions of RCW 49.52.050 (1) and (2)
    shall be liable in a civil action by the aggrieved employee or his or her
    assignee to judgment for twice the amount of the wages unlawfully
    rebated or withheld by way of exemplary damages, together with costs
    of suit and a reasonable sum for attorney's fees.
    RCW 49.52.070; see also Walters v. A.A. A. Waterproofing, Inc., 
    151 Wash. App. 316
    ,
    321-22, 
    211 P.3d 454
    (2009). We have previously held that mandatory attorney fee
    shifting provisions in employment contracts are unconscionable where the legislature
    authorizes only prevailing employees to collect attorney fees.       See Brown v. MHN
    Gov't Servs., Inc., 
    178 Wash. 2d 258
    , 274-75, 
    306 P.3d 948
    (2013) (holding that a
    mandatory fee shifting provision in an employment agreement is unconscionable
    under a similar statute because it was "a significant deterrent to employees
    contemplating initiating an action to vindicate their rights"); see also Walters, 151 Wn.
    App. at 325 (holding that in the context of the WRA, "a reciprocal attorney fees
    provision is unconscionable"). Therefore, we reverse the Court of Appeals and deny
    CamWest attorney fees. The mandatory attorney fees provision in the employment
    14
    No. 88298-3
    agreement does not apply when an employee makes claims exclusively under the
    WRA.
    CONCLUSION
    We affirm the Court of Appeals' dismissal of LaCoursiere's WRA claim against
    CamWest. But on the issue of attorney fees, we reverse the Court of Appeals and
    reinstate the trial court's order denying CamWest's motion for attorney fees.
    15
    No. 88298-3
    WE CONCUR
    16
    LaCoursiere v. Cam West Development, Inc., No. 88298-3
    (Gonzalez, J. concurring in part and dissenting in part)
    No. 88298-3
    GONZALEZ,    J. (concurring in part and dissenting in part)-I concur with much
    in the majority opinion. I agree that bonuses, once paid, are wages for purposes of
    chapter 49.52 RCW. I also agree that prevailing employers are not entitled to attorney
    fees under the act. It would frustrate the broad remedial purpose of the act to allow an
    employer to override the clear statutory system by contract. I write separately,
    however, for two reasons.
    First, I disagree with the Court of Appeals' conclusion that as a matter of law,
    LaCoursiere "'knowingly submitted"' to any violation and thus inay not take
    advantage of the private suit provision of the act. LaCoursiere v. Cam West Dev., Inc.,
    
    172 Wash. App. 142
    , 152, 
    289 P.3d 683
    (2012) ("'[T]he benefits ofthis [private suit]
    section shall not be available to any employee who has lmowingly submitted to such
    violations."' (quoting RCW 49.52.070)). The only evidence that LaCousiere
    "lmowingly submitted" to any violation is the employment and LLC agreements that
    detailed the mechanics of the bonus system. Nothing in these contracts would suggest
    to the reasonable reader that the worker was waiving the statutory productions of Title
    49 RCW. "Courts will not 'infer from a general contractual provision that the parties
    intended to waive a statutorily protected right unless the undertaking is explicitly
    1
    LaCoursiere v. CamWestDevelopment, Inc., No. 88298-3
    (Gonzalez, J. concurring in part and dissenting in part)
    stated. More succinctly, the waiver must be clear and unmistakable.'" Pasco Police
    Officers' Ass 'n v. City ofPasco, 
    132 Wash. 2d 450
    , 462, 
    938 P.2d 827
    (1997) (internal
    quotation marks omitted) (quoting Metro. Edison Co. v. Nat'! Labor Relations Bd.,
    460 U.S. 693,708, 
    103 S. Ct. 1467
    , 
    75 L. Ed. 2d 387
    (1983)). It would undermine the
    remedial purposes of the act to let employers evade it with contractual language that
    never mentions it. It may be that LaCoursiere did knowingly submit to a violation of
    the act, but taken in the light most favorable to LaCoursiere, as we must at this stage,
    CamWest is not entitled to summary judgment on this issue.
    Second, I disagree with the majority that CamWest is entitled to summary
    judgment dismissal on the rebate claim. Initially, I observe that the majority's citation
    to our recent opinion, Rekhter v. Dep 't of Soc. & Health Servs., 
    180 Wash. 2d 102
    , 123,
    323 P .3d 1036 (20 14), is not well taken. Majority at 10. Rekhter was not a wage
    rebate claim; it was a claim for unlawfully withheld wages. Chapter 49.52 RCW
    governs more than wage rebates; we call it the "wage rebate act" from time to time (as
    well as the "anti-kickback act") by tradition and not as a summary of the act's
    contents. See, e.g., Champagne v. Thurston County, 
    163 Wash. 2d 69
    , 72, 
    178 P.3d 936
    (2008). Rekhter involved a claim brought under chapter 49.52 RCW for wrongfully
    withheld wages. 
    Rekhter, 180 Wash. 2d at 109
    (citing RCW 49.52.050, .070). Rekhter,
    like most of our chapter 49.52 RCW cases over its long history, never describes the
    act as the "wage rebate act." See, e.g., Morgan v. Kingen, 
    166 Wash. 2d 526
    , 
    210 P.3d 2
    LaCoursiere v. Cam West Development, Inc., No. 88298-3
    (Gonzalez, J. concurring in part and dissenting in part)
    995 (2009); Schilling v. Radio Holdings, Inc., 
    136 Wash. 2d 152
    , 
    961 P.2d 371
    (1998);
    State v. Carter, 
    18 Wash. 2d 590
    , 
    140 P.2d 298
    , 
    142 P.2d 403
    (1943).
    In Rekhter, we held that "in order to prevail on a wage claim, the employee
    must show that the party withholding the wages was both an agent and had control
    over the payment of wages." 
    Rekhter, 180 Wash. 2d at 123
    (citing Ellerman v.
    Centerpoint Prepress, Inc., 
    143 Wash. 2d 514
    , 522-23, 
    22 P.3d 795
    (2001)). We had no
    occasion to consider whether the same principle applied to wage rebate claims
    because no unlawful rebate claims were presented. Nor should we reach that theory
    without proper briefing from meaningfully adverse parties.
    Next, I disagree with the majority that we can tell from this record whether
    "CamWest and the LLC were separate legal entities engaged in mutually beneficial
    transactions." Majority at 11. The majority directs us to almost nothing in the record
    that supports that characterization, and facts alleged in LaCoursiere's complaint and in
    declarations attached to CamWest's summary judgment motion certainly suggest that
    characterization is inapt. The president of CamWest was also the manager of the
    LLC. Clerk's Papers (CP) at 5, 159-60. Membership in the LLC is limited to
    management employees of CamWest, who on separation from CamWest must sell
    their shares back to the LLC, CamWest, or the remaining members. 
    Id. at 160.
    The
    president of CamWest personally guaranteed the loans made by the LLC to CamWest.
    
    Id. at 5.
    The amount of the employee's bonus paid into the LLC is decided by the
    man who is both the president of CamWest and the manager of the LLC. 
    Id. at 160.
    3
    LaCoursiere v. Cam West Development~ Inc., No. 88298-3
    (Gonzalez, J. concurring in part and dissenting in part)
    It may well be that, as the majority says, "Cam West and the LLC were separate legal
    entities engaged in mutually beneficial transactions," majority at 11, but the record
    creates at least a material question of fact as to whether that is so. 1
    The harder question in this case is whether the structured buyout of a
    terminated employee's interest in the allied LLC was a rebate under the act.
    Certainly, if LaCoursiere received more than he had paid in, no cognizable claim that
    wages had been rebated could be maintained. It may well be that this is one of those
    situations where investments were made and investments failed. This was not
    uncommon in the construction industry starting in 2008. But the fact is the worker's
    wages were paid into a fund controlled by the corporation and, when the worker was
    terminated, not returned in full.
    In my view, LaCoursiere has pleaded a cognizable claim that Cam West
    unlawfully "rebated" a portion of his wages when it declined to reimburse him for all
    of the bonus money paid into the LLC. While I would not grant him summary
    1
    Additionally, I am troubled by the majority's statement that under the LLC agreement, "it [is]
    impossible to predict where [LaCoursiere's LLC membership] units would end up .... The
    unvested portion may be purchased by Cam West, but it may also be purchased by Campbell or
    the other LLC members. This uncertainty makes it impossible to label the forfeiture of the
    unvested portion of LaCoursiere's investment a 'rebate."' Majority at 12. Whatever uncertainty
    there is does not support granting summary judgment to the employer. CamWest's declaration
    states that his units were purchased under the LLC agreement. CP at 165. Under the LLC
    Agreement, units can be purchased only by Eric Campbell (who has the first right to purchase),
    by CamWest (which has the second), and only then by the other members of the LLC. !d. at
    194. The LLC also provides that "[i]fall ofthe selling Member's Units are not so purchased, the
    Company shall be dissolved." !d.
    4
    LaCoursiere v. Cam West Development; Inc., No. 88298-3
    (Gonzalez, J. concurring in part and dissenting in part)
    judgment on this record, neither would I grant summary judgment to CamWest.
    Instead, I would remand for trial.
    I respectfully concur in part and dissent in part.
    5
    LaCoursiere v. Cam West Development, Inc., No. 88298-3
    (Gonzalez, J. concurring in part and dissenting in part)
    6