Port Of Tacoma, V. Joel Sacks, Dept. Of L & I

Filed
Washington State
Court of Appeals
Division Two
September 21, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
PORT OF TACOMA, No. 54498-9-II
Respondent,
v.
JOEL SACKS, DIRECTOR OF THE PUBLISHED OPINION
DEPARTMENT OF LABOR & INDUSTRIES,
STATE OF WASHINGTON; BRUCE KOCH;
DAX KOHO; GLENN JOSEPH BRAZIL; and
DONALD OLSEN,
Appellants.
VELJACIC, J. — The Department of Labor and Industries (Department) issued a citation to
the Port of Tacoma for wages owed. Four employees took out-of-town trips on behalf of the Port
and filed wage claims with the Department, seeking compensation for an unpaid portion of travel
time. Both the Office of Administrative Hearings and the Director of the Department reviewed
the citation on appeal. The Director upheld the citation. The Port appealed to the superior court,
arguing that the time spent traveling was not compensable under Department regulations. The
superior court granted summary judgment to the Port. The Department appeals.
The Department argues that the Port employees are entitled to compensation for all “hours
worked,” and the travel time meets the definition of “hours worked” under WAC 296–126–002(8).
The Port counters that the Department’s interpretation of “hours worked” is not entitled to the
deference normally accorded to agencies and should not be followed, but rather that the
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employees’ travel time does not meet the definition of “hours worked” under case law interpreting
WAC 296–126–002(8).
We conclude that prior cases interpreting “hours worked” in the context of commute time
are inapplicable to the travel time at issue here. We further conclude that the Department’s
interpretation of its own regulation is entitled to deference and hold that the employees’ travel time
is “hours worked” and is compensable. Accordingly, we reverse the superior court’s order
granting the Port’s motion for summary judgment, reinstate the Director’s order, and remand for
further proceedings.
FACTS1
I. EMPLOYEES TRAVEL FOR THE PORT
The Northwest Seaport Alliance (NWSA) decided to purchase new marine cranes to
employ at the Port from a manufacturer located in China. The Port is responsible for maintaining
cranes operated on its premises and employs crane maintenance mechanics for that purpose. In
2017, the Port invited interested mechanics to volunteer to be part of the quality inspection team
observing the manufacturing process in China. The Port intended that the mechanics observe the
manufacture of components that they would later repair. The Port arranged two trips to China to
observe manufacturing, and one trip to Houston to attend relevant training. The trips to China
were scheduled in coordination with the manufacturer and the Port’s consultants. The Port made
all of the arrangements for the trips, including air transportation.
1
The facts are drawn from the findings of fact contained in the Director’s order, most of which
were adopted from the Administrative Law Judge’s (ALJ’s) findings of fact. The Port does not
challenge the findings of fact in the Director’s order, including those adopted and incorporated in
the superior court’s order.
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On March 25, 2017, Dax Koho and Glenn Brazil left on the first of the two trips to China.
The Port instructed them to arrive at the airport three hours before their scheduled flight. During
the flight, both men spent some of their time reviewing materials regarding the inspection in which
they were going to participate, although the Port did not require them to do so. The rest of the
time they spent on activities unrelated to work. Koho and Brazil returned to SeaTac on April 2.
In May 2017, Bruce Koch flew to and from Houston to attend training regarding the drive
systems to be employed by the new cranes. He was compensated for his training time but not for
his flight time.
On June 16, Koho, Brazil, Koch, and Donald Olsen left SeaTac for the second and final
trip to China. The group returned to SeaTac on June 24.
The Port did not have a policy in place concerning compensation for this type of travel, so
it negotiated with the workers’ union to reach an agreement with the union for wages. They agreed
that the hourly employees would be paid a maximum of eight hours a day, straight time, for travel
to and from China and within China. The Port paid the employees for their travel time consistent
with the labor agreement and with the Port’s understanding of applicable federal law. As a result,
the Port did not pay the employees for all of their time spent traveling.
II. INVESTIGATION OF WAGE CLAIMS
Koho, Brazil, Koch, and Olsen each filed wage claims with the Department, seeking
compensation for the time they spent traveling for the Port. That travel time included all travel to
and from the airport, all time spent at the airport, and all time spent in flight. The Department’s
investigator consulted with a Department wage and hour technical specialist and with the
Department’s employment standards program manager.
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The investigator first looked to the Department’s definition of “hours worked” based on
WAC 296-126-002(8): “all hours during which the employee is authorized or required, known or
reasonably believed by the employer to be on duty on the employer’s premises or at a prescribed
work place.” Clerk’s Papers (CP) at 371. She then reviewed the Department’s policy, ES.C.2, on
“hours worked.” Section 1 of the policy states: “The department’s interpretation of ‘hours worked’
means all work requested, suffered, permitted or allowed and includes travel time, training and
meeting time, wait time, on-call time, preparatory and concluding time, and may include meal
periods.” CP at 371. Section 2 of the policy relates to circumstances where an employee drives a
company-provided vehicle. The introduction to section 2 states, in part:
The purpose of this policy statement is to update section two of Labor and
Industries’ administrative policy ES.C.2 (section 2) pertaining to hours worked.
Following the Stevens v. Brink’s Home Security, [162 Wn.2d 42, 169 P.3d 473(2007)] decision, Labor and Industries committed to updating this section of the
policy to reflect the Supreme Court decision in the [Stevens] case and address
ambiguity created by that case. . . . This policy is not intended to address or cover
all employee travel time issues. Instead, it is limited to the particular issues raised
in the [Stevens] case regarding whether time spent driving a company-provided
vehicle between home and the first or last job site of the day constitutes
compensable “hours worked.”
CP at 372.
The Department investigator determined that policy ES.C.2 did not address the travel at
issue with the Port employees’ wage claims. At the direction of her supervisor, she reviewed the
Department’s Desk Aid, which provides that all travel time related to work is compensable. It
reads:
Washington law is more favorable to employees than federal law. The
federal Portal to Portal Act limits compensability of out-of-town travel to travel that
takes place during the employee’s normal work hours. The federal law also dictates
that the trip to the airport or train station is considered a normal commute and is not
compensable. In Washington, all travel time related to work is compensable
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regardless of the hours when it takes place and includes the time to get to the airport
or train station.
If a person is required to travel to a training seminar in another city, the time
from when the employee leaves their home until they arrive at their hotel in the
other city is all compensable. Likewise, the time from when the employee leaves
the hotel (or training facility) in the remote city, until they arrive back at their home,
is also compensable. If, on the other hand, the employee is required to report to
work before they travel out of town, then the drive to work and home from work at
the end of the travel is considered normal commute time and is not compensable.
CP at 769. The Desk Aid is not available to the public and Department investigators are not
required to apply the provisions of the Desk Aid. The Department investigator recommended
issuing a citation to the Port for wages owed, and the recommendation was adopted.
III. CITATION AND APPEALS
In October 2017, the Department issued the citation and notice of assessment. A month
later, the Port filed an appeal with the Office of Administrative Hearings (OAH). Both the
Department and the Port filed motions for summary judgment. The Department’s position before
the OAH was that “the wage claimants were on duty at the employer’s prescribed work place while
traveling because the employer had assigned them to travel.” CP at 31 (Finding of Fact (FF) 4.45).
The OAH granted the Port’s motion for summary judgment, denied the Department’s motion, and
issued an order reversing the Department’s citation and notice of assessment. Shortly thereafter,
the Department filed a petition for review with the Director of the Department under RCW
49.48.084 and the Washington Administrative Procedure Act (WAPA), ch. 34.05 RCW.
The Director reversed the OAH’s decision. The Director noted and considered the
Department’s policy ES.C.2 and the Desk Aid as evidence of its “longstanding interpretation” of
the “hours worked” provision. CP at 18 (conclusion of law (CL) 9). He noted that federal law
also distinguishes between regular work travel and “travel for an out-of-town assignment.” CP at
17 (CL 7). He concluded that the Department’s interpretation was entitled to deference and did
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not conflict with Washington case law, specifically, Stevens, 162 Wn.2d 42, and the case it relies
on, Anderson v. Department of Social & Health Services, 115 Wn. App. 452, 63 P.3d 134 (2003)
(holding that employee time spent commuting on a government run ferry is not “hours worked”).
Specifically, he concluded that Stevens and Anderson were inapplicable because “[n]either case
addresses the compensability of travel time for out-of-town work assignments.” CP at 18 (CL 10).
The director further concluded:
Under WAC 296-126-002(8), “hours worked” includes travel time for out-of-town
work assignments. As in federal law, travel for an out-of-town work assignment is
not the same as ordinary home-to-work travel. It is performed for the employer’s
benefit and at its special request to meet the needs of the particular assignment. It
is an integral part of the principal activity that the employee was hired to perform.
This is true regardless of whether the employee engages in additional work during
the journey or whether the employer owns or controls the employee’s means of
transport. Because the travel itself is a duty of the work assignment, so long as the
employer approves the means of travel, the employee is on duty at a prescribed
work place throughout the travel time.
CP at 18 (CL 12) (footnote omitted).
The Port petitioned for judicial review of the Director’s order with the superior court
pursuant to RCW 49.48.084(4) and ch. 34.05 RCW. The Port argued that the Director erroneously
interpreted and applied the law. Specifically, the Director erred in according substantial weight to
the “Desk Aid,” in determining that Anderson and Stevens are inapplicable, and in determining
that the travel time met the definition of “hours worked.” Both parties again filed motions for
summary judgment. The superior court granted the Port’s motion and denied the Department’s.
The Department appeals.
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ANALYSIS
I. GENERAL LEGAL PRINCIPLES
Under the Minimum Wage Act (MWA), ch. 49.46 RCW, unless exempt, employees are
entitled to compensation for regular hours worked and for any overtime hours worked. See RCW
49.46.020, .130; Stevens, 162 Wn.2d at 47.
If an employee files a wage complaint, the Department must investigate. RCW
49.48.083(1). If the Department determines that the employer violated one or more wage payment
laws, the Department issues a citation and notice of assessment. RCW 49.48.083(2).
“Washington has a ‘long and proud history of being a pioneer in the protection of employee
rights.’” Hill v. Xerox Bus. Servs., LLC, 191 Wn.2d 751, 760, 426 P.3d 703 (2018) (internal
quotation marks omitted) (quoting Int’l Ass’n of Fire Fighters, Local 46 v. City of Everett, 146
Wn.2d 29, 35, 42 P.3d 1265 (2002)). The Industrial Welfare Act (IWA), ch. 49.12 RCW, and the
MWA are remedial statutes protecting employees’ rights. Pellino v. Brink, Inc., 164 Wn. App.
668, 684, 167 P.3d 383 (2010) (IWA); Carranza v. Dovex Fruit Co., 190 Wn.2d 612, 625, 416
P.3d 1205 (2018) (MWA). Remedial statutes, as well as the regulations promulgated thereunder,
must be liberally construed in favor of the worker. See Silverstreak, Inc. v. Dep't of Labor &
Indus., 159 Wn.2d 868, 882, 154 P.3d 891 (2007). “A liberal construction should carry into effect
the purpose of the statute.” Everett Concrete Prods., Inc. v. Dep't of Labor & Indus., 109 Wn.2d
819, 823, 748 P.2d 1112 (1988).
II. STANDARD OF REVIEW
The WAPA, codified at ch. 34.05 RCW, governs review of a final order by the director of
a department. RCW 49.48.084(4). Relevant here, a party will be afforded relief from an adverse
administrative decision when (1) the administrative decision is based on an error of law, (2) the
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decision is not based on substantial evidence, or (3) the decision is arbitrary or capricious. RCW
34.05.570(3). In reviewing an administrative decision, we sit in the same position as the superior
court, applying the WAPA standards directly to the record considered by the agency. Kittitas
County v. Kittitas County Conservation, 176 Wn. App. 38, 47, 308 P.3d 745 (2013); Silverstreak,
159 Wn.2d at 879-80.
“[W]here the original administrative decision was on summary judgment, the reviewing
court must overlay the [W]APA standard of review with the summary judgment standard.”
Verizon Nw., Inc. v. Employment Sec. Dep't, 164 Wn.2d 909, 916, 194 P.3d 255 (2008). Summary
judgment is appropriate only where the undisputed facts entitle the moving party to judgment as a
matter of law. Id. We evaluate the facts in the administrative record de novo and the law under
the “error of law” standard. Id. Under this standard, “this court gives a ‘high level of deference
to an agency’s interpretation of its regulations’ based on the agency’s expertise and insight gained
from administering the regulation.” Brady v. Autozone Stores, Inc., 188 Wn.2d 576, 581, 397 P.3d
120 (2017) (quoting Silverstreak, 159 Wn.2d at 885).
Deference to the Department’s interpretation of its own properly promulgated regulations
is appropriate “‘absent a compelling indication that the agency’s regulatory interpretation conflicts
with legislative intent or is in excess of the agency’s authority.’” Litchfield v. KPMG, LLP, 170
Wn. App. 431, 441, 285 P.3d 172 (2012) (internal quotation omitted) (quoting Silverstreak, 159
Wn.2d at 884); see also Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wn.2d 611, 627, 444
P.3d 606 (2019). However, we are not bound by the agency’s interpretation because the courts
have “the ultimate authority to interpret a statute [or regulation].” Bostain v. Food Express, Inc.,
159 Wn.2d 700, 716, 153 P.3d 846 (2007). To interpret agency regulations, we apply the same
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principles used to interpret statutes. Puget Soundkeeper All. v. Pollution Control Hr’gs Bd., 189
Wn. App. 127, 136, 356 P.3d 753 (2015).
Generally, to be entitled to deference the agency must show it adopted its interpretation as
a “matter of agency policy.” Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 815, 828
P.2d 549 (1992). “While the construction does not have to be memorialized as a formal rule, it
cannot merely ‘bootstrap a legal argument into the place of agency interpretation,’ but must prove
an established practice of enforcement.” Sleasman v. City of Lacey, 159 Wn.2d 639, 646, 151 P.3d
990 (2007) (quoting Cowiche Canyon, 118 Wn.2d at 815).
III. ANALYSIS
We conclude that the travel time for out-of-town travel is “hours worked” under the
regulation for three reasons. First, Anderson and Stevens are distinguishable. Second, the
Department’s interpretation of its own regulation is entitled to deference. Third, the Department’s
interpretation is consistent with the plain meaning of the regulation and the mandate that we
liberally construe it in favor of the worker.
A. Applicability of Anderson and Stevens
The legislature has not defined “hours worked,” or addressed the compensability of
employee travel time. The Department defines “hours worked” as “all hours during which the
employee is authorized or required by the employer to be on duty on the employer’s premises or
at a prescribed work place.” WAC 296–126–002(8).2
2
WAC 296-126-002 was promulgated pursuant to the Industrial Welfare Act but is also applicable
to the MWA. See Stevens, 115 Wn. App. at 454.
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In Anderson, this court addressed a claim by Department of Social and Health Services
employees, who sought compensation for the time they spent riding the employer provided ferry
to and from the Special Commitment Center on McNeil Island. 115 Wn. App. at 454. The ferry
was the only way to reach the island. Id. This court determined that the claims failed because the
employees were not “on duty” during the ferry rides. Id. at 456. This court did not define “on
duty,” but found it significant that during the ferry ride the workers “engage[d] in various personal
activities, such as reading, conversing, knitting, playing cards, playing hand-held video games,
listening to CD (compact disc) players and radios, and napping.” Id. at 454. This court concluded
that this daily commute was not “hours worked.” Id. at 456. It also relied on a rule applicable
only to state civil service employees that clearly defined when travel time was considered “hours
worked.”3 Id. at 456-57.
Relying on this court’s analysis of “on duty” in Anderson, the Supreme Court later
addressed the definition of “hours worked” under WAC 296–126–002(8) in Stevens, 162 Wn.2d
42. In that case, Brink’s employees sued their employer, seeking wages for the time spent driving
their employer-provided trucks from home to their first work site and from their last work site to
home. Id. at 45. The employees already received compensation for the time spent driving between
work sites. Id.3
WAC 356-15-040 stated that travel time was considered time worked when: (1) It occurs during
the employee’s normal hours of work and is from one work site to another; or (2) The employee
has a regularly assigned work site, and the travel is to carry out a work assignment at a different
location than the regularly assigned work site, to the extent that it exceeds normal home-to-work
travel time, is outside of normal working hours, and does not exceed the shortest reasonable means
for the employee to reach and return from the location. We note that the regulation used the term
“time worked,” not “hours worked,” though this is insignificant for our analysis. The regulation
was also repealed on July 1, 2005. See WSR 05-12-066 (2005). Because WAC 356-15-040
applied only to civil service employees, and because it is no longer effective, it does not apply in
this case.
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The court distinguished the facts in Anderson but relied on its analysis to “evaluate the
extent to which Brink’s restricts Technicians’ personal activities and controls Technicians’ time.”
Id. at 48. In agreeing with the workers, the court identified factors that weighed in favor of
classifying the time spent driving to the first call and driving home from the last call as time spent
“on duty.” See Id. at 48-49. First, the drivers took the trucks home with them every day and
infrequently went to a Brink’s office. Id. Second, the workers received their assignments from
home and were always on call while driving. Id. Third, Brink’s had detailed policies limiting how
employees used the trucks, which included prohibitions on running personal errands in the trucks.
Id.The court then determined that the trucks could be classified as the “employer’s premises”
or “prescribed work place.” Id. at 49. The court reasoned that driving the trucks was an integral
part of the employer’s business. Id. Workers also had to carry all necessary tools and equipment
in the trucks, had to do their paperwork in the truck or at the customer’s home, and formal policies
required the workers to keep the trucks clean and serviced. Id. The court concluded that Brink’s
vehicles were essentially mobile offices for the employees. Id.Anderson and Stevens interpret the meaning of “hours worked” within the context of a daily
commute. In contrast, this case deals with out-of-town travel. Both Anderson and Stevens are
inapplicable here.4 We conclude that Stevens and Anderson do not control the analysis of “hours
worked” as that term relates to out-of-town travel.
4
Federal law, most state law, the Department’s policy ES.C.2, and the Desk Aid distinguish
between out-of-town travel, at issue here, and daily commutes, as in Anderson and Stevens.
The United States Department of Labor, Wage and Hour Division’s Fact Sheet #22: Hours Worked
under the Fair Labor Standards Act (FLSA) provides:
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B. Deference Due
The Port argues that we do not owe deference to the Department’s interpretation. The Port
argues that the applicable regulations and case law provide the applicable standard, and the
Department’s interpretation is not entitled to deference because it comes in the form of an
unpublished Desk Aid. We disagree.
To support its argument that the Department’s interpretation, specifically the Desk Aid, is
not entitled to deference, the Port relies on a quote from Carranza v. Dovex Fruit Co., 190 Wn.2d
612, 416 P.3d 1205 (2018).
Travel Away from Home Community: Travel that keeps an employee away from
home overnight is travel away from home. Travel away from home is clearly work
time when it cuts across the employee's workday. The time is not only hours
worked on regular working days during normal working hours but also during
corresponding hours on nonworking days. As an enforcement policy the Division
will not consider as work time that time spent in travel away from home outside of
regular working hours as a passenger on an airplane, train, boat, bus, or automobile.
U.S. DEP’T OF LABOR, Fact Sheet #22: Hours Worked under the Fair Labor Standards Act (FSLA)
at 2 https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs22.pdf.
The Oregon Revised Statute (ORS) 839-020-0045(5) defines “[t]ravel away from home
community” and thereby acknowledges differing treatment from ordinary travel as part of a daily
commute.
The Connecticut General Statutes Annotated (CGSA) 31-60-10 provides:
‘travel time’ means that time during which a worker is required or permitted to
travel for purposes incidental to the performance of his employment but does not
include time spent in traveling from home to his usual place of employment or
return to home, except as hereinafter provided in this regulation. (b) When an
employee, in the course of his employment, is required or permitted to travel for
purposes which inure to the benefit of the employer, such travel time shall be
considered to be working time and shall be paid for as such.
(Emphasis added.)
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In Carranza, the court interpreted the MWA’s provision requiring employers to pay their
employees at least minimum wage per hour worked. Id. at 619. At issue was interpretation of the
phrase “‘at a rate of not less than [the applicable minimum wage] per hour,’” Id. at 614-15 (quoting
RCW 49.46.020(1)-(3)), and whether it required Dovex to compensate non-picking work on an
hourly basis when done by fruit pickers who are paid on a piece-rate basis. Id. at 618-20. Dovex
argued in part that administrative regulations and policies supported an interpretation that allowed
a pay structure where each week a worker’s total piece-rate compensation divided by their total
hours worked equaled at least the applicable minimum wage. Id. at 623. The court rejected this
argument because the Department policy cited by Dovex interpreted a regulation that specifically
did not apply to agricultural workers. Id. at 624.
The court continued: “even if it were applicable to agricultural workers paid by the piece,
administrative policies ‘[have] no force or effect as a law or regulation.’” Id. at 624 (quoting
Stevens, 162 Wn.2d at 54 (Madsen, J., concurring)). The court concluded that “[w]hile the level
of deference owed to regulations is an issue of ongoing debate, administrative policies do not even
have the force of regulations, and deference to such policies is inappropriate because ‘[t]his court
has the ultimate authority to interpret a statute.’” Id. at 624-25 (quoting Bostain, 159 Wn.2d at
716).
The Port appears to argue that in Carranza, the Supreme Court determined that courts
should not give deference to the agency’s interpretation that comes in the form of unpublished
policies. Therefore, it argues, we should not defer to the Department’s interpretation enumerated
in its unpublished Desk Aid.
Carranza is distinguishable. In interpreting a statute, the court rejected an employer’s
reliance on an agency policy primarily because that policy interpreted a regulation that expressly
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did not apply to the workers at issue in the case. Here, the Department is asking us to defer to its
interpretation and application of “hours worked” under WAC 296–126–002(8), which clearly
applies to the workers at issue. Furthermore, nothing in Carranza indicates the Supreme Court’s
intention to no longer defer to any agency’s interpretation of its own regulation. In fact, recently
the Supreme Court again stated that it “accords substantial weight to an agency’s interpretation
within its area of expertise and upholds that interpretation if it reflects a plausible construction of
the regulation and is not contrary to legislative intent.” State v. Numrich, 197 Wn.2d 1, 18-19, 480
P.3d 376 (2021).
We therefore accord deference to the Department’s interpretation if it reflects a plausible
construction and is not contrary to legislative intent. Id.Additionally, the Department’s policy is not a recent development and appears to apply
here. Although it does not specifically discuss a special out-of-town work assignment, the
Department’s policy ES.C.2 defines “hours worked” as “all work requested, suffered, permitted or
allowed and includes travel time, training and meeting time, wait time, on-call time, preparatory
and concluding time, and may include meal periods.” CP at 371 (emphasis added). More
importantly, section 2 recognizes the limited application of the Stevens opinion, stating: “This
policy is not intended to address or cover all employee travel time issues. Instead, it is limited to
the particular issues raised in the [Stevens’s] case regarding whether time spent driving a company
provided vehicle between home and the first or last job site of the day constitutes compensable
‘hours worked.’” CP at 372. This indicates, independently of the unpublished Desk Aid, that it
has been the Department’s policy to treat the commute travel time at issue in Stevens differently
than other types of travel time. This is not a case of “bootstrap[ping] a legal argument into the
place of agency interpretation.” Cowiche Canyon, 118 Wn.2d at 815.
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In light of the Department’s longstanding policy of treating travel time as compensable
“hours worked” under WAC 296-126-002(8) and ES.C.2, this is clearly not a case of
bootstrapping; the Port’s argument to deter us from affording deference to the Department’s
interpretation fails.
C. Plain Meaning and State Policy Protecting Employees
The Department argues that the MWA requires an employer to compensate travel on out-
of-town assignments because unlike a commute, the travel itself is a duty of the work assignment
performed at an employer-approved location. The Department asserts that the employees were on
duty at a prescribed workplace because the travel was necessary to facilitate inspection, and planes
and cars are Port-approved instrumentalities of travel.
Again, WAC 296-126-002(8) defines “hours worked" as “all hours during which the
employee is authorized or required by the employer to be on duty on the employer’s premises or
at a prescribed work place.” Neither party disputes that the disputed hours were “authorized or
required” by the Port, thereby establishing the first factor required by WAC 296-126-002(8). At
issue is whether the Port employees were both on duty and at a prescribed workplace, as further
required by WAC 296-126-002(8).
1. The Department’s interpretation of WAC 296-126-002(8) is consistent with
the plain meaning of the regulation.
In determining the ordinary meaning of an undefined statutory term, we may look to the
dictionary definition. Lockner v. Pierce County, 190 Wn.2d 526, 537, 415 P.3d 246 (2018); Am.
Cont'l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004). “On duty” is defined as
“assigned to a task or duty [or] engaged in or responsible for some specific performance.”
WEBSTER’S THIRD INTERNATIONAL DICTIONARY 705 (3d ed. 1961). The travel is at the behest and
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for the benefit of the employer and is a necessary part of the assigned task. The time spent traveling
is time that employees would otherwise have been engaged in their own non-work activities.
Here, the Port’s employees were, in fact, on duty. They engaged in an assigned task—the
travel—at the behest of their employer, in order to effectuate their assigned duty to inspect the
crane manufacturing process.
“Prescribed” is defined as “dictate[d] or direct[ed].” WEBSTER’S THIRD INTERNATIONAL
DICTIONARY 1792 (3d ed. 1961). The instrumentality of travel is the place dictated by the
employer where the assigned task or duty occurs. Here, the Port approved the means of travel and
purchased the plane tickets, thereby dictating, i.e. prescribing, the workplace.
The Department’s interpretation of out-of-town travel as “on duty at a prescribed work
place,” CP at 18 (CL 12), is thus consistent with the plain meaning of the regulation.
2. The Department’s interpretation is consistent with longstanding policy of
protecting employees.
The Department also argues that the interpretation advocated by the Port is contrary to
Washington’s policy to protect employees. We agree.
We must “give great deference to an agency’s interpretation of its own properly
promulgated regulations, ‘absent a compelling indication’ that the agency’s regulatory
interpretation conflicts with legislative intent.” Silverstreak, 159 Wn.2d at 884–85 (quoting
Marquis v. City of Spokane, 130 Wn.2d 97, 111, 922 P.2d 43 (1996)).
Here, the Department’s interpretation is not only consistent with the plain meaning of the
regulation, but it is also consistent with the directive that this court liberally construe a regulation
promulgated under remedial statutes, the IWA and MWA, in favor of the beneficiaries of those
acts. The interpretation is thus in line with Washington’s “‘long and proud history of being a
pioneer in the protection of employee rights.’” Xerox Bus. Servs., LLC, 191 Wn.2d at 760 (internal
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quotation marks omitted) (quoting Int’l Ass’n of Fire Fighters, Local 46, 146 Wn.2d at 35). The
interpretation proffered by the Port is, in fact, contrary to a liberal interpretation because absent
the union agreement, and under the Port’s reading of the regulation, the employees would not be
compensated for any of the time spent traveling.
We conclude that the Director’s order did not erroneously interpret or apply the law and
was not arbitrary and capricious. Therefore, we reverse the superior court’s grant of summary
judgment to the Port.
III. FACTUAL BASIS FOR WAGE CALCULATIONS
In a footnote, the Department appears to argue that the Port cannot challenge the factual
basis for the Director’s wage calculations because the Port failed to preserve the issue. The Port
responds that it properly preserved the factual dispute regarding the wage calculations pending
final determination of the compensability of the worker’s travel time.
The factual basis for and validity of the Director’s wage calculations are not before us on
appeal. The issue of calculations was not addressed by the superior court, and the Port stated at
oral argument before us that the calculations were not at issue on appeal. Wash. Court of Appeals,
Port of Tacoma v. Joel Sacks, Dep’t of Labor & Indus., No. 54498-9-II (May 14, 2021), at 19 min.,
47 sec. through 20 min., 53 sec. (on file with court). Accordingly, we decline to reach this
argument. RAP 10.3(g).
However, on remand, the Port is permitted to contest the factual basis and validity of the
wage calculations in the Director’s order. RCW 34.05.554(1) provides that issues that were not
raised before the administrative agency cannot be raised on appeal. But the Port did raise the issue
of wage calculations during the administrative review process. And in its petition for judicial
review, the Port requested the superior court to “dismiss the wage claims in their entirety” or
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“[g]rant such other relief as the Court deems just and equitable.” CP at 11. Based on this record,
the issue of wage calculation was properly preserved.
Accordingly, we reverse the superior court’s order granting the Port’s motion for summary
judgment, reinstate the Director’s order, and remand for further proceedings. On remand, the Port
is permitted to contest the factual basis and validity of the wage calculations.
Veljacic, J.
We concur:
Sutton, J.
Glasgow, A.C.J.
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