Lawrence Hill, Adam Wise, And Robert Miller, Res. v. Garda Cl Northwest, Inc., App. ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LAWRENCE HILL, ADAM WISE, and )
ROBERT MILLER, on their own ) No. 74617-1-1 C")
behalves and on behalf of all persons
) c=1
C:;)
similarly situated, ) DIVISION ONE
)
Respondents, ) PUBLISHED OPINION ---
) rr,
v. )
)
GARDA CL NORTHWEST, INC., f/k/a ) CJ1
AT SYSTEMS NORTHWEST, INC., a ) T•s.)
Washington corporation, )
)
Appellant. ) FILED: March 27, 2017
TRICKEY, A.C.J. — In this 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 fee award.
Garda 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 actions.
No. 74617-1-1/2
Garda 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.
Garda 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.
Garda 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 violations.
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No. 74617-1-1 /3
Garda 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.
Finally, 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.
FACTS
Garda 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.
Garda 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.
Most 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.
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No. 74617-1-1 / 4
Each CBA had one of the following provisions regarding meal breaks:
• "[R]outes will be scheduled without a designated lunch break."[11
• "Employees hereto agree to an on-duty meal period."[2]
• "The Employees hereto waive any meal period(s) to which they would
otherwise be entitled."[3]
Garda 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.
In 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.
The 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
'Clerk's Papers(CP)at 390(2004-2009 Mount Vernon Labor Agreement); CP at 433(2006-2009
Pasco Labor Agreement); CP at 454 (2004-2008 Seattle Labor Agreement); CP at 497 (2007
Spokane Rules); CP at 536 (2005-2008 Tacoma Labor Agreement); CP at 578 (2006-2009
Wenatchee Labor Agreement); CP at 622(2006-2009 Yakima Labor Agreement).
2 CP at 413(2009-2012 Mount Vernon Labor Agreement); CP at 1140(2013-2016 Mount Vernon
Labor Agreement); CP at 478 (2008-2011 Seattle Labor Agreement); CP at 516 (2008-2011
Spokane Labor Agreement); CP at 558(2009-2012 Tacoma Labor Agreement).
3 CP at 1163 (2010-2013 Pasco Labor Agreement); CP at 601 (2010-2013 Wenatchee Labor
Agreement); CP at 646(2010-2013 Yakima Labor Agreement).
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No. 74617-1-1 /5
Supreme Court held that the arbitration procedures were unconscionable and remanded
the case back to the trial court in September 2013.4
Garda 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.
In 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.
The 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.
In June 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 multiplier.
Garda appeals.
ANALYSIS
Class Certification
Garda 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
4 Hill v. Garda CL Nw., Inc., 179 Wash. 2d 47, 50, 58, 308 P.3d 635(2013).
5
No. 74617-1-1/6
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 its discretion.
Civil Rule 23 governs class actions. Individuals "may sue or be sued" as
representatives of a class if
(1)the class is so numerous thatjoinder 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.
CR 23(a).
Additionally, 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 23(b)(3).5
"This court reviews a trial court's decision to certify a class for [an] abuse of
discretion." Miller v. Farmer Bros. Co., 115 Wash. 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 Wash. 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 Wash. App. 9, 19, 65 P.3d 1(2003). We review class decisions
"liberally" and will "err in favor of certifying a class." Miller, 115 Wash. App. at 820.
In Miller, the trial court certified the class but did not make any findings regarding
5CR 23(b)(1) and (2) offer other bases for maintaining a class action that are not relevant to this
appeal.
6
No. 74617-1-1 /7
whether joinder of the 29 individual plaintiffs would be impracticable. 115 Wash. 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 Wash. 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 Wash. 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 Wash. 2d at 467.
Here, the trial court granted class certification under CR 23(a) and CR 23(b)(3).6
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 superiorui
Garda 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
6 Garda does not appear to be challenging the trial court's findings related to CR 23(a).
7 CP at 933.
No. 74617-1-1 / 8
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.8 We conclude that the trial court's findings were
sufficient to show that a question common to the Plaintiffs predominated.
Additionally, 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.
The 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.8 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.
Garda 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
8CP at 932.
9 Garda argues that common questions do not predominate because the Plaintiffs' claims rely on
at least three different CBAs and the acts of individual Garda employees. As will be discussed in
more detail below, we do not need to interpret the various CBAs to resolve the Plaintiffs' claims.
Therefore, the differences in the CBAs do not make the Plaintiffs' claims less susceptible to class
adjudication.
8
No. 74617-1-1 /9
decision to deny Garda's motion.
In short, the trial court did not abuse its discretion by certifying the class and
declining to decertify the class.
Garda's Summary Judgment Motions on Preemption
Garda 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. We disagree.
Summary 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 Wash. 2d at 484.
FAAAA Preemption
Garda 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.
Whether 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 Wash. 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
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No. 74617-1-1 /10
action, or when there is an actual conflict between federal and state law. Common
Carriers, 111 Wash. 2d at 588. There is a strong presumption against federal preemption
when a state acts within its historic police powers. Common Carriers, 111 Wash. 2d at 588;
Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252, 114 S. Ct. 2239, 129 L. Ed. 2d 203
(1994).
Preemption 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 Wash. App. 848, 853, 10 P.3d 1079 (2000).
The 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, 1759).
Although "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 Wash. 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
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No. 74617-1-1 / 11
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.
In 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.
The 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.
Here, the Plaintiffs base their claims on Washington's meal period and rest break
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No. 74617-1-1 /12
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 rest period.
(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.
The employees must be free from work duties, including the duty to be "'vigilant,"
during these breaks. Pellino v. Brink's Inc., 164 Wash. App. 668, 685-86, 690, 267 P.3d
383(2011).
Washington's 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.
Due to the dangerous nature of their work, Garda employees must"remain on alert
for possible threats,"even when taking a break."1° They "cannot merely pull off the road
1° CP at 1376.
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No. 74617-1-1 / 13
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.
Garda 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
Industries (Department).
Washington 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 the safety of the valuables Garda employees transport. These bases would likely
qualify as good cause under the WAC provisions.12
At least one armored car company, Loomis, has already received a variance under
11 CP at 1376.
12 Garda argues that the state law regulation does not list "[a]voiding [FAAAA] preemption" as
"good cause" for a variance. Br. of Appellant at 15 n.69 (citing WAC 296-126-130(4)). First, the
regulation does not list any specific justifications. The entire definition of "good cause" is quoted
above. Second, Garda could apply for a variance based on the significant impact of the meal
period and rest break regulations on its opportunity to provide a safe working environment to its
employees, not the potentially preemptive effect of the FAAAA.
13
No. 74617-1-1 / 14
RCW 49.12.105 and accompanying state regulations.13 Under the variance, Loomis must
provide rest periods to its employees, during which the employees "shall be relieved of
all job duties and responsibilities, with the exception that during rest periods they shall
continue to (a) remain attentive and vigilant regarding their personal safety and their
immediate surroundings,(b) remain on call to respond to emergency circumstances,(c)
comply with all [rules related to carrying firearms], (d) wear any uniform required by
Loomis, and (e) carry any communication device required by Loomis."14 Garda has not
sought a similar variance.15 Garda does not address whether complying with Washington
law would have less of an impact on its operations if it received a variance.
Garda's FAAAA preemption argument assumes that the Plaintiffs' are correct that
the law entitles them to "completely 'vigilance free" rest breaks.16 It does not argue that
it would be impossible to provide appropriate breaks under the same type of variance
Loomis received. Since Garda could obtain a variance to satisfy its need for employee
vigilance, this case is nearly indistinguishable from Dilts.
Garda argues that "[t]he preemptive effect of[FAAAA] surely cannot be avoided
simply because an employer might be able to obtain a variance."17 Garda cites no
authority for this position. If Washington law creates a problem for Garda, it is logical to
13 Garda moved to strike the Plaintiffs' designated clerk's papers containing this variance. A
commissioner of this court denied that motion but invited Garda to address the argument in its
reply brief. Garda did not. We assume that the declarations and exhibits contained in those
pages are properly before this court.
14 CP at 4285.
15 In its briefing below, Garda argued that a variance was not available because it "sought a
variance as soon as it was suggested in the Pellino decision that armored car driver/messengers
needed to be provided with 'vigilance free' meal and rest breaks" but "was told at the time" by the
Department that "a variance likely would not be granted because there was ongoing litigation on
the issue." CP at 2697. But Garda did not actually apply for a variance. On appeal, Garda does
not argue that it sought a variance.
16 Br. of Appellant at 13.
17 Br. of Appellant at 15 n.69.
14
No. 74617-1-1 /15
look to Washington law for a solution before finding federal preemption.
Accordingly, we conclude that the FAAAA does not preempt applicable
Washington regulations governing meal periods and rest breaks. The impact of having
to schedule routes with adequate time for meal periods and rest breaks would have only
an indirect and remote impact on Garda's prices, routes, and services. As in Dilts, these
impacts are not significant enough to warrant preemption.
Garda attempts to distinguish Dilts on the ground that, unlike in Washington,
employers in California may simply pay extra money to avoid following the rule. That is
not a correct statement of California law and was not a basis for the court's decision in
Dilts. In fact, in Dilts, the court pointed out that employers did not have that option:
"[S]ection 226.7 does not give employers a lawful choice between providing either meal
and rest breaks or an additional hour of pay.... The failure to provide required meal and
rest breaks is what triggers a violation of section 226.7." 769 F.3d at 642 (alteration in
original)(quoting Kirby v. Immoos Fire Prot., Inc., 53 Cal. 4th 1244, 274 P.3d 1160, 1168
(2012)).
In short, the trial court did not err by holding that the FAAAA did not preempt the
Plaintiffs' claims.
Section 301 Preemption
Next, Garda argues that the trial court erred by holding that section 301 of the
LMRA did not preempt the Plaintiffs' claims because the claims are based on negotiable
rights and require interpretation of the CBAs. The Plaintiffs respond that section 301 does
not preempt their claims because they seek to enforce rights that exist independently from
their CBAs. We agree with the Plaintiffs.
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No. 74617-1-1/ 16
Through section 301 of the LMRA, Congress vested exclusive jurisdiction for
violations of CBAs in the federal courts, in an attempt to establish "interpretive uniformity
and predictability" in labor-contract disputes. Allis-Chalmers Corp. v. Lueck, 471 U.S.
202, 210-11, 105 S. Ct. 1904, 85 L. Ed 2d 206 (1985); Caterpillar Inc. v. Williams, 482
U.S. 386, 393-94, 107 S. Ct. 2425,96 L. Ed. 2d 318(1987); 29 U.S.C.§ 185(a). "Section
301 governs claims founded directly on rights created by [CBAs], and also claims
'substantially dependent on analysis of a [CBA]." Caterpillar, 482 U.S. at 394 (quoting
Intl Bros. of Electrical Workers v. Hechler, 481 U.S. 851, 859 n.3, 107 S. Ct. 2161, 95 L.
Ed. 2d 791 (1987)).
But section 301 preemption does not apply to every dispute between an employer
and a union employee. "Mt would be inconsistent with congressional intent under[section
301] to preempt state rules that proscribe conduct, or establish rights and obligations,
independent of a labor contract." 'Allis-Chalmers, 471 U.S. at 212. "If the claim is plainly
based on state law, [section] 301 preemption is not mandated simply because the
defendant refers to the CBA in mounting a defense." Cramer v. Consol. Freiohtways,
Inc., 255 F.3d 683, 691 (9th Cir. 2001)(en banc).
Section 301 does not "preempt nonnegotiable or independent negotiable claims."
Commodore v. Univ. Mech. Contractors, Inc., 120 Wash. 2d 120, 131, 839 P.2d 314(1992).
A state law claim is independent if it does not rely on a right created by a CBA.
Commodore, 120 Wash. 2d at 129. "A right is nonnegotiable if the state law does not permit
it to be waived, alienated, or altered by private agreement." Miller v. AT&T Network Sys.,
850 F.2d 543, 546 (9th Cir. 1988). A state law right may be nonnegotiable for certain
classes of employees, even if the state does not provide that right to all employees. See
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No. 74617-1-1/ 17
Valles v. Ivy Hill Corn., 410 F.3d 1071, 1081 (9th Cir. 2005).
In Miller, the Ninth Circuit set out a three-part test for determining whether section
301 preempts a claim:
In deciding whether a state law is preempted under section 301,
therefore, a court must consider:(1) whether the CBA contains provisions
that govern the actions giving rise to a state claim, and if so,(2) whether the
state has articulated a standard sufficiently clear that the state claim can be
evaluated without considering the overlapping provisions of the CBA, and
(3) whether the state has shown an intent not to allow its prohibition to be
altered or removed by private contract.
850 F.2d at 548 (footnote omitted). Section 301 preempts the state law claim "only if the
answer to the first question is ``yes,' and the answer to either the second or third is ``no."
Miller, 850 F.2d at 548.
For example, in Ervin v. Columbia Distributing, Inc., section 301 did not preempt
an employee's overtime claims, even though he was a party to a CBA with provisions
governing overtime. 84 Wn. App. 882,890,930 P.2d 947(1997). The court held that the
overtime provisions were nonnegotiable rights and that it would need to examine the CBA
only to determine the plaintiffs "regular rate of pay." Ervin, 84 Wash. App. at 890-91.
Here, the Plaintiffs alleged in their complaint that Garda's "policy and practice
under which Plaintiffs and the class do not receive meal and rest breaks violates[chapter]
49.12 [RCW] and WAC 296-126-092."18 Garda argues that the Plaintiffs' claims stem
from negotiable rights, which they have waived in their CBAs. The Plaintiffs argue that
Washington does not allow private employees in trades other than construction to waive
their rights to a meal period in a CBA, so any alleged waivers in the CBAs are irrelevant
18CP at 7. Garda does not argue on appeal that section 301 preempts the Plaintiffs' rest period
claims, presumably because employees may never waive those rights. But it did argue to the trial
court that section 301 preempted the Plaintiffs' rest period claims.
17
No. 74617-1-I / 18
to their claims.
Both parties argue that the Department's Administrative Policy No. ES.C.6 (the
Policy), issued to interpret WAC 296-126-092, supports their position.19 The Policy
explains that individual employees may waive their meal periods:
8. May an employee waive the meal period?
Employees may choose to waive the meal period requirements. The
regulation states employees "shall be allowed," and "no employee shall be
required to work more than five hours without a meal period." The
department interprets this to mean that an employer may not require more
than five consecutive hours of work and must allow a 30-minute meal period
when employees work five hours or longer.
If an employee wishes to waive that meal period, the employer may agree
to it. The employee may at any time request the meal period. While it is
not required, the department recommends obtaining a written request from
the employee(s) who chooses to waive the meal period.
If, at some later date, the employee(s) wishes to receive a meal period, any
agreement would no longer be in effect.P]
Although the Policy allows a CBA covering public employees or employees in the
construction trades to vary the rules regarding meal and rest periods, it does not extend
that option to other CBAs:
15. May a Collective Bargaining Agreement negotiate meal and rest
periods that are different from those required by WAC 296-126-092?
No. The requirements of RCW 49.12 and WAC 296-126-092, establish a
minimum standard for working conditions for covered employees.
Provisions of a collective bargaining agreement (CBA) covering specific
requirements for meal and rest periods must be [at] least equal to or more
favorable than the provisions of these standards, with the exception of
public employees and construction employees covered by a CBA.121]
19 The agency's interpretation of these statutes and regulations is entitled to deference. See
Pellino, 164 Wash. App. at 688.
2° Wash. Dep't of Labor & Indus., Administrative Policy ES.C.6,§ 8, at 4(rev. June 24, 2005); CP
at 1037.
21 Administrative Policy ES.C.6,§ 15, at 5; CP at 1038.
18
No. 74617-1-1 /19
Garda contends that WAC 296-126-092's "minimum standard" allows employees
to waive their meal periods. Therefore, the CBAs at issue here, which waive the meal
periods for all employees, meet the "minimum standard." Thus, employees can waive
their right to a meal period through a CBA.
We disagree. Garda's reading of the Policy is inconsistent with the emphasis the
Policy places on an individual employee's choice whether to waive meal periods. An
employee has the right to revoke a waiver at any time.22 Waiving all employees' meal
periods through a CBA would limit an individual employee's ability to revoke that waiver.
Or, even if the CBA allowed employees to revoke that waiver, having the remainder of
the workforce agree to a waiver could put pressure on individual employees not to revoke
their waivers.23
The "minimum standard" is a 30-minute meal period. A waiver of that meal period
is less than the standard. We hold that Washington does not allow most private
employees to waive their right to a meal period through a CBA.
Therefore, the Plaintiffs' state right to meal periods is both independent and
nonnegotiable, and there is no section 301 preemption. Washington law allows public
and construction employees to waive this right, but the Plaintiffs here do not fall within
those classes. We do not have to resolve the parties' disputes over the meaning of the
meal period provisions in the CBAs in order to determine whether Garda provided the
meal periods required under Washington law.
22 Administrative Policy ES.C.6,§ 8, at 4; CP at 1037.
23 This analysis applies to CBAs generally, and is not meant to address the specific CBAs between
the parties in this case. Those CBAs do allow employees to "request" meal periods from their
supervisors or "notify" their sup6rvisors that they want meal periods. See, e.o., CP at 390, 413,
433, 454, 478.
19
No. 74617-1-1/ 20
Garda argues that the Plaintiffs' interpretation of the regulation would violate the
employees' right to collectively bargain under RCW 49.12.187 and implicate the National
Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169, preemption, because it would
discourage collective bargaining.24 As the Plaintiffs point out, Garda is raising these
arguments for the first time on appeal. We decline to consider these arguments. See
RAP 2.5(a).
Plaintiffs' Summary Judgment Motions on Liability
Garda argues that the trial court erred by granting the Plaintiffs' motions for
summary judgment on liability because material questions of fact remained whether
individual Plaintiffs waived their meal periods and received adequate rest breaks. The
Plaintiffs argue that the trial court properly disregarded evidence of waiver related to the
CBAs and that Garda's state-wide policies show that it did not provide adequate rest
breaks. We agree with the Plaintiffs.
Meal Periods
Garda argues that the Plaintiffs' acknowledgments of their CBAs, which purported
to waive their rights to meal breaks, creates a genuine dispute of material fact whether
individual Plaintiffs waived those rights. Because the Plaintiffs cannot waive meal breaks
through their CBAs, evidence that the Plaintiffs acknowledged the CBAs or understood
that they would not receive meal breaks under the CBAs is not evidence that they
voluntarily waived this right. We affirm.
"A waiver is the intentional and voluntary relinquishment of a known right." Jones
24 Specifically, Garda argues that Garmon preemption, named after San Diego Building Trades
Council v. Garmon, 359 U.S. 236, 79 S. Ct. 773,3 L. Ed. 2d 775(1959), would bar the Plaintiffs'
interpretation, Br. of Appellant at 19-20.
20
No. 74617-1-1/21
v. Best, 134 Wash. 2d 232, 241, 950 P.2d 1(1998). Knowledge of the existence of the right
may be "actual or constructive." Bowman v. Webster, 44 Wash. 2d 667, 669, 269 P.2d 960
(1954). A waiver may be express or implied. Jones, 134 Wash. 2d at 241. But an implied
waiver must be based on "unequivocal acts or conduct evidencing an intent to waive;
waiver will not be inferred from doubtful or ambiguous factors." Jones, 134 Wash. 2d at 241.
The party asserting waiver bears the burden of proof. Jones, 134 Wash. 2d at 241-42.
Here, Garda argues that there is a question of fact whether the Plaintiffs
individually waived their right to meal periods under WAC 296-126-092(1)and (2). Garda
notes that several CBAs contained waivers and that many class members signed
acknowledgments of their CBA5.25 Also, all three named Plaintiffs confirmed that they
knew they had agreed to forego scheduled meal breaks through the CBAs.
A waiver in a CBA is not evidence of an individual plaintiff's choice. An individual
worker may "vote against representation; but the majority rules." J.I. Case Co. v. Nat'l
Labor Relations Bd., 321 U.S. 332, 339,64 S. Ct. 576,88 L. Ed. 2d 762(1944). Likewise,
in Ervin, the court held that an agreement with a plaintiff's union "cannot be viewed as an
agreement with [the plaintiff] individually." 84 Wash. App. at 893 (first emphasis added).
We conclude that the trial court did not err by refusing to treat the waivers
contained in the CBAs as evidence that individual Plaintiffs waived their rights. Garda
offers no evidence of waiver independent of the CBAs and does not object to the trial
court's decision to grant summary judgment on the subject of liability for meal periods on
any other grounds. Therefore, the trial court did not err by granting summary judgment
on this issue.
"The Employees hereto waive any meal period(s) to which they would otherwise be entitled."
25
CP at 1163, 601, 646.
21
No. 74617-1-1/ 22
Rest Breaks
Garda argues that the trial court erred by granting summary judgment on the issue
of liability for rest breaks on the basis that the written vigilance policy established that
Plaintiffs did not receive lawful rest breaks as a matter of law. The Plaintiffs respond that
summary judgment was proper because Garda's own policies and testimony show that it
did not provide legally sufficient rest breaks. We agree with the Plaintiffs.
A motion for summary judgment requires the court to view all evidence in the light
most favorable to the nonmoving party. Dowler, 172 VVn.2d at 484; CR 56. This means
the court will not weigh evidence or resolve issues of credibility. Barker v. Advanced
Silicon Materials, LLC, 131 Wash. App. 616, 624, 128 P.3d 633 (2006). But there is no
genuine issue of material fact where reasonable people could draw only one conclusion.
White v. Salvation Army, 118 Wash. App. 272, 284, 75 P.3d 990(2003).
Here, the Plaintiffs contend that the rest breaks they received were inadequate
because they were not given enough time and were not completely relieved of duties.
Washington requires employers to provide "a rest period of not less than ten minutes, on
the employer's time, for each four hours of working time. . . . 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." WAG 296-126-092(4),(5).
The Department clarified that "[t]he term 'rest period' means to stop work duties,
exertions, or activities for personal rest and relaxation."26
It is not enough for employers to allow employees to take breaks, rather
"employers must affirmatively promote meaningful break time." Demetrio v. Sakuma
26 Administrative Policy ES.C.6,§ 10, at 4; CP at 1037.
22
No. 74617-1-1 / 23
Bros. Farms, Inc., 183 Wash. 2d 649, 658, 355 P.3d 258 (2015). If a workplace culture
"encourages employees to skip breaks" it violates the regulation. Demetrio, 183 Wash. 2d
at 658. Courts must look at "the purposes rest breaks serve in light of how rest breaks
were used (or not) by the employees in context." Demetrio, 183 Wash. 2d at 658.
In Pellino, the court ruled that drivers and messengers of armored vehicles did not
receive "true breaks" because of their employer's "rules requiring constant guarding and
vigilance." 164 Wash. App. at 687, 690-91. The rules required employees to always "be
alert" and "look alert," to "continuously observe their surroundings," and be "'constantly
suspicious." Pellino, 164 Wash. App. at 674-75. The security rules explicitly applied to
employees' break periods. Pellino, 164 Wash. App. at 674. The employer also did not give
them sufficient time to take breaks. Pellino, 164 Wash. App. at 690-91, 94.
By contrast, in White, the court held that employees who were "on call" during their
breaks still received adequate rest periods. 118 Wash. App. at 283-84. There, the
employees were able to "eat, rest, make personal telephone calls, attend to personal
business that would not take them away from the facility, and close the door to the office
in order to make themselves unavailable." White, 118 Wash. App. at 283-84.
Here, Garda's corporate witness, designated under CR 30(b)(6), conceded that
Garda could not provide vigilance-free breaks due to the nature of the job performed by
its employees. Two Garda publications, in use at all Washington branches, explain
Garda's vigilance requirement: Garda's "Employee Handbook For Driver/Messengers
and Vault Employees" and its "Operations Book Of Rules." In the handbook's section on
"Operations and Security," it instructs employees to "remain alert at all times for the
success of [Garda's] operations. Look alert and be alert. Don't take anything for
23
No. 74617-1-1 / 24
granted."27 "Be alert at all times."28 It warns crews not to "make route or schedule
changes or deviate from their scheduled routes for any reason without current
authorization from management."29
The handbook also prohibits employees from conducting personal business while
on duty. Employees may not bring any reading materials with them in the truck. The
handbook also instructs employees that "[c]ell phone, pager, and two-way transmission
devices are prohibited on all company armored vehicles or in company armored or money
room/case processing facilities" without "specific supervisor approval for very limited use
as to time and scope."3° The "Operations Book Of Rules" has similar prohibitions.31
Garda's corporate witness stated that employees routinely broke these policies,
but agreed that these policies remained in effect. Two Garda branch managers testified
that they did not discipline their employees for having their cell phones or personal reading
materials on the trucks. Those managers did not testify that they altered Garda's polices
or authorized their employees to have personal items with them.
We hold that Garda violated the rest period regulations because its official policies
do not promote opportunities for meaningful breaks. The Plaintiffs had to remain vigilant
and were not free to conduct personal business. Although Garda's rules are not as
extreme as those at issue in Pellino, Garda's requirement of vigilance is much more
involved than simply being on call, as the employees were in White. Garda conceded in
27 CP at 2776.
28 CP at 2777.
29 CP at 2777.
3° CP at 3031. On the same page of the handbook, Garda authorizes employees to use their cell
phones during breaks and meal periods, but the breaks at issue here would have had to occur
while the employees were in their trucks, and the rules are clear that Garda employees may not
bring their cell phones with them on the trucks.
31 CP at 2772-73.
24
No. 74617-1-1 / 25
its briefing below "that it cannot provide breaks completely free of any need to exercise
vigilance."32 Moreover, Garda's state-wide policies strongly restrict the Plaintiffs' ability
to relax or take care of personal business during their breaks.
Garda argues that the trial court erred by weighing the written policies more
strongly than other evidence. For example, Garda presented evidence that its managers
did not always enforce the rules and that many employees violated the rules.33 But, if
employees may take meaningful breaks only by violating the company's official policies,
Garda has still created a culture that discourages meaningful breaks.
Garda also does not contradict its own representative's concession that Garda did
not provide vigilance-free breaks. Therefore, the court did not have to weigh evidence
when it determined that Garda deprived the Plaintiffs of meaningful breaks. The trial court
did not err by granting the Plaintiffs' motion for summary judgment on rest periods.
On appeal, Garda also relies on its employees' declarations that they had
adequate rest breaks, during which they were able to "stop [their] work duties" and make
"personal choices about how [they] spend [their] time."34 We do not consider these
declarations because Garda did not call them to the trial court's attention for this motion.35
They were filed nearly five years earlier to support Garda's opposition to the Plaintiffs'
motion to certify the class.36 Because the appellate court engages in the same inquiry as
32 CP at 2994.
33 Individual class members testified they took breaks for smoking, using the restroom, getting
food, and sending text messages via their personal cell phones. Cell phone records and social
media records confirm that many class members used their cell phones while on the trucks.
34 CP at 768; see also CP at 771, 774, 777, 780, 783, 786, 817, 820, 823, 826, 829, 832, 835,
838.
35 CP at 2989-3008.
36 Garda filed its opposition to the Plaintiffs' motion for class certification in July 2010. Garda filed
its opposition to the Plaintiffs' motion for partial summary judgment in May 2015.
25
No. 74617-1-1 /26
the trial court, it "'will consider only evidence and issues called to the attention of the trial
court." Mithoug v. Apollo Radio of Spokane, 128 Wash. 2d 460, 462, 909 P.2d 291 (1996)
(emphasis omitted)(internal quotations marks omitted)(quoting RAP 9.12).
Double Damages
The trial court awarded the Plaintiffs double damages under RCW 49.52.070.
Garda argues that the trial court erred because it awarded double damages for Garda's
failure to provide meal periods, which is a labor violation, not a wage violation.37 Garda
also argues that its actions were not willful and that the Plaintiffs knowingly submitted to
Garda's meal period arrangement.
RCW 49.52.070 authorizes employees to recover double damages when their
employers have willfully withheld their wages:
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: PROVIDED, HOWEVER, That the benefits of this
section shall not be available to any employee who has knowingly submitted
to such violations.
We hold that violating the meal period requirement is a wage violation, but that
Garda did not willfully violate the requirement.
Wage Violations
First, Garda argues that, because the Plaintiffs were paid for all the time they
worked, a failure to provide them with meal periods is not a wage violation. The Plaintiffs
argue that Washington treats a failure to provide meal periods as withholding wages. We
37Garda does not challenge the trial court's award of double damages for its violation of the rest
break requirements.
26
No. 74617-1-1/ 27
agree with the Plaintiffs.
Any employer who "[Millfully and with intent to deprive the employee of any part of
his or her wages, shall pay any employee a lower wage than the wage such employer is
obligated to pay such employee by any statute, ordinance, or contract" has committed a
wage violation under RCW 49.52.050(2). The statute does not define "wage," but
"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."
LaCoursiere v. Camwest Dev., Inc., 181 Wash. 2d 734, 742, 339 P.3d 963(2014)(quoting
RCW 49.46.010(7)). This court construes the statute liberally in order to "protect
employee wages and assure payment." Schilling v. Radio Holdings, Inc., 136 Wash. 2d 152,
159, 961 P.2d 371 (1998).
In Wingert v. Yellow Freight Systems, Inc., the court held that an employer's failure
to provide its employees with rest periods was a wage violation. 104 Wash. App. 583, 588,
13 P.3d 677 (2000). There, an employer failed to provide its employees with sufficient
rest periods when they worked overtime. Wingert, 104 Wash. App. at 586, 588. The court
held that the employees could recover payment for the breaks they should have received,
even though the employer paid its workers for every minute they worked. Wingert, 104
Wash. App. at 588-90.
The court rejected the employer's argument that "failure to allow rest periods
results in lost rest time, not lost wages." Wingert, 104 Wash. App. at 589. It held that a
contrary holding would leave the "employees with no remedy for their employer's violation
of WAC 296-126-092(4)" and would "unjustly enrich[]" the employer, who would have
received extra work from its employees. Wingert, 104 Wash. App. at 590-91.
27
No. 74617-1-1/ 28
Here, Garda's failure to provide meal breaks violated WAC 296-126-092(1) and
(2). Unlike rest breaks, which must always be on the employer's time, not all meal periods
are paid. WAC 296-126-092(1), (4). Garda argues that, because the law does not
guarantee a paid meal period, the failure to provide a meal period is a labor violation, not
a wage violation. It claims that the court made this distinction in Iverson v. Snohomish
County, 117 Wn. App. 618,623, 72 P.3d 772(2003). But, there, the court did not award
damages because it concluded that the plaintiff did not prove his employer had violated
WAC 296-126-092. Iverson, 117 Wash. App. at 623. The court did not address what
remedy would have been appropriate if there had been a violation.
We hold that treating violations of meal period requirements as wage violations is
consistent with Wingert. The Plaintiffs here were paid for every minute they worked, but
they were deprived of opportunities to rest. If this court does not treat this as a wage
violation, it is unclear what recourse the Plaintiffs would have.38 Moreover, Garda
undoubtedly benefitted from the lack of meal periods. For example, Garda's crews would
be able to finish routes more quickly. For those reasons, and given that the court must
construe the statute liberally, we conclude that Garda's failure to provide meal periods is
a wage violation.
Willfulness
Garda argues that, if its conduct amounts to a wage violation, it was not willful
because there was a bona fide dispute over whether it was obligated to provide the
38Garda acknowledges that, in Pellino, the court awarded the employees "the equivalent of 30-
minutes of pay as damages for the meal period violation." Br. of Appellant at 39, n.175; see
Pellino, 164 Wash. App. at 689, 699. Garda characterizes this as damages for a labor violation.
The appellate decision in Pellino does not specify what compensation the employees received or
how the court characterized the violation.
28
No. 74617-1-1/ 29
Plaintiffs with meal periods. We agree.
A failure to pay owed wages is not willful when there is a bona fide dispute over
whether the employer owes the wages. Schilling, 136 Wash. 2d at 160. The employer bears
the burden of showing that a bona fide dispute exists. Wash. State Nurses Ass'n v.
Sacred Heart Med. Ctr., 175 Wash. 2d 822, 834, 287 P.3d 516 (2012). "Generally, an
employer who follows the provisions of a CBA 'with respect to overtime wages and
compensatory time' does not willfully deprive employees of wages or salary." Sacred
Heart, 175 Wash. 2d at 835 (quoting Champagne v. Thurston County, 163 Wash. 2d 69, 82,
178 P.3d 936 (2008)).
"Determining willfulness is a question of fact reviewed for substantial evidence."
Backman v. Nw. Publ'g Ctr., 147 Wash. App. 791, 796, 197 P.3d 1187(2008). "Substantial
evidence is a sufficient quantum of evidence to persuade a fair-minded person of the truth
of the declared premise." Chelius v. Questar Microsystems, Inc., 107 Wn. App.678,682,
27 P.3d 681 (2001).
Here, the trial court awarded double damages for the period between November
20, 2011, and February 7, 2015. Garda assigns error to the trial court's findings of fact
on whether Garda's withholding was willful. The trial court held that, after the appellate
decision in Pellino, "Garda knew or should have known that requiring constant alertness
by its armored truck crews and failure to provide sufficient time for breaks violated the
Washington Industrial Welfare Act and its implementing regulations."39
The court also found that Garda's affirmative defenses did not create bona fide
disputes:
Garda's affirmative defenses to double damages did not create a "bona fide
39 CP at 3811.
29
No. 74617-1-1/ 30
dispute" over its liability for failing to provide lawful breaks after Pellino.
Garda did not show that it considered and "genuinely believed" in the
FAAAA defense to [P]laintiffs' claims prior to fall 2014. By that time the law
was clear that the FAAAA did not preempt state meal and rest break rules.
The law was clear that meal breaks could not be waived in a Collective
Bargaining Agreement (CBA) outside of public employment and
construction trades, and the law was clear that statutory wage claims were
not preempted by the LMRA.M
We conclude that Garda's waiver-related affirmative defenses are unavailing, but
the law is not as clear on these issues as the trial court suggested. We review the legal
conclusions in this finding of fact de novo. See Willener v. Sweetinq, 107 Wash. 2d 388,
394, 730 P.2d 45 (1986).
Garda has clearly relied throughout on the purported meal period waivers in the
CBAs. The trial court concluded that the law was clear that private employees outside
the construction trades could not waive Their meal periods through a CBA. While we
agree that the Plaintiffs cannot waive their meal periods via a CBA, the state of the law
was not clear. No case cited by either party squarely addressed the issue. Garda's
interpretation of the Policy on this point was not unreasonable. We conclude that there
was a bona fide dispute as to whether the Plaintiffs could waive their meal periods through
the CBAs, and, therefore, that Garda did not willfully withhold wages for meal periods.
We do not take the further step, taken by the trial court, to determine whether the
purported waivers were actually waivers. The trial court concluded that the CBAs "did not
generally waive meal breaks but instead provided for 'on-duty' meal breaks, which are
still meal breaks requiring complete relief from active work under Washington law."41 We
do not attempt to determine whether the CBAs contained waivers. Garda's reliance on
40 CP at 3811.
41 CP at 3818.
30
No. 74617-1-1 / 31
the purported waivers is sufficient to show its withholding was not willful.
Because we conclude that a bona fide dispute existed about the requirement to
provide meal periods, we do not need to determine whether Garda's FAAAA defense
created a bona fide dispute or whether the Plaintiffs knowingly submitted to Garda's
practice.
Prejudgment Interest
Garda contends that the trial court erred by awarding both double damages and
prejudgment interest because both compensate the Plaintiffs for harm due to a delayed
payment. The Plaintiffs argue that the purposes of the awards are different enough to
support both. We agree with Garda.
Courts consider judgments for back wages to be liquidated and thus will award
prejudgment interest for back wages. Stevens v. Brink's Home Sec., Inc., 162 Wash. 2d 42,
50-51, 169 P.3d 473 (2007). But courts will not allow prejudgment interest when the
plaintiff seeks damages under a punitive statute. Ventoza v. Anderson, 14 Wash. App. 882,
897, 545 P.2d 1219 (1976). If a plaintiff sues under a punitive statute, the court will not
grant interest on "either the compensatory or the punitive portion of the award." Ventoza,
14 Wash. App. at 897.
Washington's wage violation statutes are silent on the issue of prejudgment
interest. Title 49 RCW. But case law shows that double damages are punitive in nature.
Moroan v Kinoen, 141 Wash. App. 143, 161-62, 169 P.3d 487(2007)(holding that damages
under the statute are "intended to punish and deter blameworthy conduct"), aff'd, 166
Wn.2d 526,210 P.3d 995(2009). Thus, under Ventoza, an award of prejudgment interest
31
No. 74617-1-1 / 32
is inappropriate when the court awards double damages.42
It does not appear that any published Washington cases have examined whether
plaintiffs can recover both double damages and prejudgment interest under Washington's
wage laws. Garda says prejudgment interest should not be available, relying on the fact
that plaintiffs who recover under the Fair Labor Standards Act of 1938(FLSA),29 U.S.C.
§§ 201-219, may not recover prejudgment interest. Brooklyn Say. Bank v. O'Neil, 324
U.S. 697, 715, 6 S. Ct. 895, 89 L. Ed. 1296 (1945). But the Plaintiffs point out that the
FLSA, although similarly allowing double damages, is distinguishable because it does not
require a finding of willfulness. See Starceski v. Westinghouse Elec. Corp., 54 F.3d
1089, 1103 (3d Cir. 1995)(holding that both double damages and prejudgment interest
are appropriate under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634,
and distinguishing the FLSA on the basis that it does not have a willfulness component).
We conclude that, on this issue, cases interpreting the FLSA and other federal labor and
employment laws do not shed much light. Accordingly, we rely on this court's opinion in
Ventoza. Although the underlying cause of action in that case related to trespass to
timber, rather than employment, the court's holding that "[i]nterest is generally disallowed
when recourse upon a punitive statute is sought" was not limited to timber claims.
Ventoza, 14 Wash. App. at 897.
42 Arguably, under Ventoza, an award of prejudgment interest is inappropriate when a plaintiff
seeks an award of double damages under the statute, regardless of whether the court in fact
awards double damages. But, since Ventoza, our Supreme 'Court has allowed prejudgment
interest for an award based on failure to pay wages when a party unsuccessfully sought double
damages for that same award. Bostain v. Food Exp., Inc., 159 Wash. 2d 700, 723, 153 P.3d 846
(2007). Moreover, Garda does not appear to be arguing that the Plaintiffs may not recover any
prejudgment interest because they sought double damages. For example, when arguing that the
trial court allowed the Plaintiffs a "double recovery" by awarding them prejudgment interest "on
top of punitive damages," Garda said, "If no double damages are awarded, then prejudgment
interest is appropriate only on any award that is affirmed." Br. of Appellant at 3, 45.
32
No. 74617-1-I / 33
We conclude that the trial court erred by awarding prejudgment interest when the
Plaintiffs had recovered double damages under RCW 49.52.070.
Attorney Fees at Trial
The trial court awarded attorney fees at trial pursuant to Washington's wage laws,
RCW 49.46.090, RCW 49.48.030, and RCW 49.52.070.43 The trial court also applied a
1.5 lodestar multiplier to the Plaintiffs' attorney fee award.
Garda argues that the trial court abused its discretion by granting the Plaintiffs'
request for a lodestar multiplier because the case was insufficiently risky to warrant one.
We hold that the contingent nature of the case and the uncertain chance of success, as
determined at the outset of litigation, justify the multiplier. The trial court did not err.
Trial courts use the lodestar method to calculate the proper attorney fee award in
wage violation cases. Fiore v. PPG Indus., Inc., 169 Wash. App. 325, 351, 279 P.3d 972
(2012). To determine the lodestar, the court multiplies the number of hours reasonably
spent on the case by a reasonable hourly rate. Bowers v Transamerica Title Ins. Co.,
100 Wash. 2d 581, 593-94, 675 P.2d 193 (1983). The court will sometimes adjust the
lodestar to reflect factors that are not taken into account when calculating the lodestar,
such as the contingent nature of the work or the skill of the legal representation. Bowers,
100 Wash. 2d at 593-94. These adjustments are called multipliers. See Bowers, 100 Wash. 2d
at 583.
To determine whether the prevailing party deserves a multiplier based on the
contingent nature of the work, the court "must assess the likelihood of success at the
43Garda again argues that the Plaintiffs are not entitled to attorney fees under these statutes for
the meal period violations because they are not wage violations. As discussed earlier in this
opinion, the meal period violations are wage violations. Accordingly, the Plaintiffs may recover
attorney fees incurred pursuing their meal period claims.
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outset of litigation." Bowers, 100 Wash. 2d at 598. Contingent-fee multipliers are only
appropriate when attorneys are working on a contingency fee basis, because otherwise
the attorneys will be entitled to fees regardless of the outcome of the litigation. Bowers,
100 Wash. 2d at 598-99.
The Court of Appeals, Division One, reversed the grant of a multiplier on an
attorney fee award in Fiore after it determined that the trial court had relied on an irrelevant
factor. 169 Wash. App. at 330-31. There, the plaintiff sought a trial de novo after an
unfavorable arbitration decision. Fiore, 169 Wash. App. at 332. By statute, a party who
seeks a trial de novo after mandatory arbitration and does not improve their position has
to pay the opposing party's reasonable attorney fees. Fiore 169 Wash. App. at 356 n.1
(quoting MAR 7.3). The plaintiff prevailed at the trial de novo, and the trial court awarded
a multiplier based on the contingent nature of the plaintiff's attorney fees, the fact that the
opposing party had hired very skilled attorneys from firms across the country, and the risk
that the plaintiff might have had to pay the opposing party's attorney fees. Fiore, 169 Wn.
App. at 356.
The Court of Appeals reversed the multiplier. Fiore, 169 Wash. App. at 357. It held
the case was "a straightforward wage and hour case" and not high risk because it "did not
require the pursuit of risky trial strategies or present novel problems of proof." Fiore, 169
Wash. App. at 357. It also held that, even though the attorneys' payment was on a
contingency basis, it was the "least risky" type of contingent fee cases because liability
and damages were resolved on summary judgment, the plaintiff sought damages under
a statute that provided for attorney fees, and the defendant was "a large, solvent
'corporation." Fiore, 169 Wash. App. at 358 n.20. It concluded that the lodestar already
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No. 74617-1-1 /35
reflected the difficult nature of the case because it was based on how many hours the
attorneys would have to work. Fiore, 169 Wash. App. at 357-58.
The court also held that the risk of paying the opposing party's attorney fees after
a trial de novo reflected a legislative preference for discouraging appeals from arbitration
decisions. Fiore, 169 Wash. App. at 358. Applying a multiplier based on the risk of having
to pay the opposing party's fees might actually encourage parties who lost at arbitration
to seek a trial de novo, the opposite of the legislature's intent. Fiore, 169 Wash. App. at
358. Accordingly, the court held it was not a valid basis for an award of attorney fees.
Fiore, 169 Wash. App. at 358.
An appellate court reviews a trial court's decision to award a multiplier for an abuse
of discretion. Bowers, 100 Wash. 2d at 599. A trial court abuses its discretion when it takes
irrelevant factors into account in making a lodestar adjustment. Chuonq Van Pham v.
Seattle City Light, 159 Wash. 2d 527, 543, 151 P.3d 976(2007).
Here, the trial court found that a 1.5 multiplier was appropriate because the
Plaintiffs' attorneys were working on a contingency basis and the case presented a high
level of risk. This is the type of risk contemplated in both Bowers and Pham and
distinguishable from Fiore. First, the trial court here relied exclusively on the risk that the
Plaintiffs' attorneys undertook. It did not consider the skill of opposing counsel or
irrelevant factors like the plaintiffs risk in a trial de novo. Second, this was not a
straightforward case. It presented novel issues about the character of legally-sufficient
rest breaks, not merely whether breaks were provided. Finally, success was very risky
at the outset of litigation, because neither DiIts nor Pellino had been decided. The trial
court did not abuse its discretion.
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No. 74617-1-1/ 36
Garda relies on Morgan v. Kingen for its argument that the court's lodestar
multiplier was unreasonable. 166 Wn.2d 526,539-40, 210 P.3d 995(2009), as corrected
(Nov. 9, 2009). That case is distinguishable. There, the Supreme Court held that a trial
court had not abused its discretion by denying successful plaintiffs a multiplier. Morgan,
166 Wash. 2d at 539-40. For reasons similar to those considered by the Court of Appeals
in Fiore, the trial court determined that the risk did not warrant a multiplier. Morgan, 166
Wash. 2d at 539. The Supreme Court held that the trial court had clearly considered the risk
at the outset of litigation and had not abused its discretion. Morgan, 166 Wash. 2d at 540.
But a determination that the trial court did not abuse its discretion when it denied a request
for a multiplier is not equal to a determination that the trial court would have abused its
discretion if it had granted the request. Morgan is not controlling.
In sum,the trial court did not abuse its dihcretion by applying a multiplier based on
the specific risks presented at the outset of this case.
Attorney Fees on Appeal
The Plaintiffs request attorney fees on appeal pursuant to RCW 49.48.030, RCW
49.52.070, and RCW 49.46.090(1). These statutes provide for an award of attorney fees
for employees who successfully recover wages owed to them. The Plaintiffs have
prevailed on this appeal and, therefore, are entitled to attorney fees on the same basis
for which they received attorney fees below.
CONCLUSION
We affirm the trial court's class certification and summary judgment decisions, but
reverse its award of double damages on meal period violations. We also reverse the
award of prejudgment interest on the rest break damages, but not on the meal period
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No. 74617-1-1/ 37
violations. We remand for a new calculation of damages.
,A,zA7 cs
/
WE CONCUR:
37