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

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
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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
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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
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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 ....
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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
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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
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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