           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DAVID GEORGE ESSIG,                             )        No. 78014-0-I

                       Respondent,              )        DIVISION ONE

                  v.                            )        PUBLISHED OPINION

MICHAEL LAI AND VEENY VAN,                     )
individually and the marital community         )
comprise thereof; MICHAEL LAI dlbla ML         )
COMPANIES, INC., ML COMPANIES,                 )
LLC, a Washington limited liability            )
company; USASIA PACIFIC INC., a                )
Washington corporation ; PT HOLDING            )
LLC, a Washington limited liability            )
company; REALITY NETWORK TEAM,                 )
INC., a Washington corporation; SEATTLE        )
MODERIN LIVING, LLC, a Washington              )
limited liability company; SEATTLE             )
MODERN LIVING ON 35TH LLC, a                   )
Washington limited liability company; and      )
JOHN DOE COMPANIES, INC. 1-5,                  )
                Appellants.
___________________________________            )         FILED: July 8, 2019
       HAZELRIGG-HERNANDEZ, J.       —   This case requires us to decide whether the

 wage rebate act (WRA)1, authorizes exemplary damages against an employer who

 fails to pay wages pursuant to a contract when the employee has not performed

 the actual work. David G. Essig stopped working for Michael Lai when Lai failed

 to pay him as required in their employment contract.         Because the WRA is

 construed liberally to protect workers, the pay to which Essig was entitled under
       1   Chapter 49.52 RCW
No. 78014-0-1/2



the contract constituted wages. We hold Essig is entitled to exemplary damages.

Affirmed.

                                     FACTS

       David Essig began working for the Rainier Valley Community Development

Fund (CDF) in 2006. Essig managed the real estate investment portion of the fund

to create revolving loans and attract development and funds to the Rainier Valley.

Through his work with the CDF, Essig met Michael Lai. Lai managed a real estate

brokerage. Essig worked with Lai’s firm on two successful loan transactions. From

the first time they met, Lai periodically approached Essig about working for him.

Initially, Lai spoke to Essig about becoming a real estate agent, but Essig was not

interested.

       In the fall of 2014, Essig and Lai began to talk about Essig working for Lai

in a development capacity. Lai wanted to know if Essig would be willing to partner

with him on the developments, but Essig did not have the financial capacity to

partner on large scale developments. Lai then asked Essig to consider working as

a consultant or independent contractor, but Essig was not interested in working as

an independent contractor. Essig stated that his interest was in working as a key

employee to build the development organization.       Lai asked Essig to draft a

proposal for Essig to begin working for him.

       On May 29, 2015, Essig entered into an employment agreement with Lai

and a number of business entities under Lai’s control. Lal agreed to employ Essig

for a minimum of two years, with an annual salary of $1 14,000, health and dental

benefits for Essig and his spouse, an expense account, office space, office


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support, and a $5,000 signing bonus. Lai gave Essig a $5,000 check, which Essig

successfully deposited. Essig was to start work on July 13, 2015. He resigned

from the Rainier Valley Community Development Fund in reliance on the

employment agreement.

       Essig began performing his duties under the employment agreement on

July 13, 2015. Over several weeks, he worked in the field reviewing projects,

attending meetings and site visits with Lai, meeting with Lai, and engaging in

phone, email, and text message communication with Lai regarding the business.

At no point did Lai indicate that Essig was not employed by Lai.

       On July 30, Essig emailed Lai requesting medical insurance and benefits

for Essig and his wife, as provided in the employment agreement. On August 18,

Essig sent Lai a letter demanding payment of his wages and benefits to that date.

Essig continued to work for Lai until August 26.

       Throughout August, Lai suggested changes to the employment agreement,

but did not deny the existence of the employment agreement or employment

relationship.     Lai continued to involve Essig in meetings, phone calls, and

communications regarding the business.

       On August 27, Essig notified Lai that he considered Lai in breach, he was

stopping work on Lai’s behalf, and would seek other employment. Lal sent the

following text message on August 28: “I can take care $120,000.000 per year next

12 months. Then become employees after that.” Essig interpreted that message

as an offer to work as an independent contractor. Essig engaged in efforts to find




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No. 78014-0-1/4



comparable replacement employment, searching in Seattle, Oklahoma City, and

other locations nationwide. Essig filed suit.

       The court found Lai in breach of contract, and awarded Essig lost wages of

$228,000, exemplary damages of $228,000 under the WRA, $13,263 in medical

benefits, attorney fees of $85,890, and $708.28 in costs. Lai appeals the award of

exemplary damages and the court’s finding that Essig reasonably mitigated his

damages.

                                     DISCUSSION

       Lai is liable for exemplary damages under the WRA

       Under ROW 49.52.050 and .070, employers who pay any employee a lower

wage than the employer is obligated to pay, are liable for exemplary damages

equal to the unpaid wages. Hill v. Garda CL NW, Inc., 191 Wn.2d 553, 561, 424

P.3d 207 (201 8). The employer must withhold the wages willfully, intend to deprive

the employee of his or her wages, and the employee must not knowingly submit to

the violations. kI. at 561.

       The trial court found for Essig on each factor. Lai does not challenge those

findings of fact. Instead, Lai challenges whether the money owed to Essig counts

as a wage under the statute, and whether he proved a bona fide dispute regarding

his obligation to pay those wages.

       A.         Money owed under an employment contract is wage for purposes

                  of the WRA

       Questions of statutory interpretation are reviewed de novo. kI. at 573. The

goal of statutory interpretation is to give effect to the legislature’s intent. Columbia


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Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421, 435, 395 P.3d 1031

(2017). We begin with the plain meaning of the statute, which includes the text of

the provision, the context of the statute, related provisions, and the statutory

scheme as a whole. ki. at 435.

       The purpose of the WRA is to “protect the wages of an employee against

any diminution or deduction.” Schilling v. Radio Holdings, Inc., 136 Wn.2d 152,

159, 961 P.2d 371 (1998) (quoting State v. Carter, 18 Wn.2d 590, 621, 140 P.2d

298 (1943)) (emphasis omitted). The WRA must be liberally construed to protect

employee wages and assure payment. ki. at 159.

       The WRA does not define wage, but a related statute, the Washington

Minimum Wage Act (MWA)2, defines wage as “‘compensation due to an employee

by reason of employment.” LaCoursiere v. Camwest Dev. Inc., 181 Wn.2d 734,

742, 399 P.3d 963 (2014) (quoting RCW 49.46.010(7)). The plain language of

RCW 49.52.050, authorizes liability against an employer that pays less than the

“employer is obligated to pay.   .   .   by any statute, ordinance or contract[.j”

       The trial court found an employment contract between Essig and Lai. That

contract entitled Essig to payment. Lai argues that those payments are not wages

under the statute because Essig did not actually perform work to earn the wages.

He relies on LaCoursiere, where the court held that bonuses paid for “work

performed” constituted wages. ki. at 741. LaCoursiere, the plaintiff, received a

discretionary bonus based on work performance criteria, some of which was

distributed to an LLC owned by the plaintiff and his employer. .[ç[. at 738-39. In

       2   Chapter 49.46 RCW


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No. 78014-0-1/6



order to determine whether or not the money distributed to the LLC was an unlawful

rebate, the court first had to determine whether the bonuses were wages. ki. at

741. The court considered the definition of wage used in the MWA, “compensation

due to an employee by reason of employment,” and the definition found in

Webster’s, “a pledge or payment of usu. monetary remuneration by an employer

esp. for labor or services.   .   .   often including bonuses.” ki. at 741-42 (quoting RCW

49.46;   WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY            2568 (2002)). After also

considering cases where bonuses were paid for reasons other than employment

and cases where future bonuses were promised, the court determined that the

bonuses paid to the plaintiff “were due by reason of employment” and therefore

wages. j~ at 743.

         Lai argues that because LaCoursiere held that bonuses paid for work

performed were wages, it suggests that payments unrelated to work performed are

not wages.        But LaCoursiere did not consider that question, and Lai’s reading

contradicts the “by reason of employment” language used to describe wages in

LaCoursiere.         at 742. It also contradicts the plain language of the statute: the

WRA refers to the employer’s obligation to pay, not the employee’s obligation to

work.    The salary Lai was obligated to pay to Essig was by reason of his

employment.

         In Gaglidari v. Denny’s Restaurants, Inc., our Supreme Court rejected a

similar argument regarding the meaning of the term wages in a related statute,

RCW 49.48.030. 117 Wn.2d 426, 448, 815 P.2d 1362 (1991). RCW 49.48.030

provides for a plaintiff’s recovery of attorney fees in a successful action to recover


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No. 78014-0-1/7



wages or salary. The court held Gaglidari was employed based on a contract. k~.

at 433. Gaglidari alleged that she was terminated in breach of her employment

contract. ki. at 430. While the court remanded the case for resolution, it held that

Gaglidari could recover attorney fees if she recovered back pay from the time she

was terminated. ki. at 451. Denny’s argued that “back wages” were not “wages

owed” because they were not for work actually performed. kL at 448-49. The court

held that “[host wages damages [were] in lieu of compensation for services[,]” the

statute included not only wages for work actually performed but also “money due

by reason of employment[,j” and attorney fees were recoverable under the statute

in actions for breach of employment contracts.       at 449-50.

       Lai attempts to distinguish Gaghidari’s interpretation of ROW 49.48.030. Lai

argues that ROW 49.48.030 is a remedial statute. On the other hand, because

ROW 49.52.050 could result in a misdemeanor charge, he argues the WRA is a

punitive statute, and should be construed more narrowly. The Supreme Oourt has

held that ROW 49.48.030 is a remedial statute, meant to be construed liberally for

the purpose of protecting employees’ rights. Arnold v. Oity of Seattle, 185 Wn.2d

510, 521, 374 P.3d 111 (2016) (citing Int’l Ass’n of Fire Fighters, Local 46 v. Oity

of Everett, 146 Wn.2d 29, 34, 42 P.3d 1265 (2002) (collecting cases)). But the

court has also held that the WRA must be liberally construed to protect employee

wages and assure payment. Schilling, 136 Wn.2d at 159. Because both statutes

must be construed liberally and share essentially the same purpose, there is no

reason to define wage differently in each statute.




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No. 78014-0-118



        Finally, in Allstot v. Edwards, Division Ill of this court considered a similar

question regarding the meaning of wages in RCW 49.52.050. 114 Wn. App. 625,

60 P.3d 601 (2002).         In that case, after a police officer had been wrongfully

terminated from his job and reinstated, the town failed to pay him for the time he

was terminated. k1. at 629-30. The trial court ruled that exemplary damages under

the WRA did not apply to back pay because the officer did not actually perform

work while he was wrongfully terminated. k~. at 632-33. Division Ill held that wages

included back pay because the language of RCW 49.52.050 did not contain any

such limit on wages, the statute must be construed to protect employee wages,

and other cases, including Gaglidari, had construed wages to include back pay. Id.

at 633. Lai’s argument is similarly based on the fact that Essig did not perform the

work. We reject his argument on the same basis.

       Essig’s circumstances are analogous to the wrongful termination in Allstot.

Essig had a right to employment and pay under the contract. Lai failed to pay him.

Based on the language of ROW 49.52.050, the purpose of the statute, the

definition of wage in the MWA, and the above precedents, we hold that pay under

an employment contract constitute wages for the purpose of the WRA and affirm

the award of exemplary damages.

       B.         Lai failed to establish the statutory bona fide dispute defense.

       An employer can defeat a showing of willfulness by demonstrating a bona

fide dispute regarding whether the wages were due. Hill, 191 Wn.2d at 561 (citing

Schilling, 136 Wn.2d at 160). The employer bears the burden of proof regarding

the bona fide dispute. Id. at 562.


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No. 78014-0-1/9



       The bona fide dispute defense requires the employer to have a genuine

belief in the dispute and for the dispute to be objectively reasonable. ki. at 562.

The subjective, genuine belief component is a question of fact, reviewed for

substantial evidence. ki. at 562. The objective reasonableness of the argument is

a legal question reviewed de novo. ki. at 562.

       We affirm because Lai failed to show a subjective belief in a genuine

dispute. The absence of a finding of fact is equivalent to a finding of its absence.

Garcia v. Henley, 190 Wn.2d 539, 545, 415 P.3d 241 (2018). While the trial court

does not explicitly find that Lai lacked a subjective belief in the dispute, the court

found Lai failed to meet his burden of proof and lacked credibility. Lai understood

that the contract obligated him to pay Essig wages. While Lai testified that he

signed the contract under the influence of alcohol and under pressure from Essig,

the trial court did not find him credible. Given the findings, the absence of an

affirmative finding that Lai had a subjective belief in the dispute, and Lai’s burden

of proof, we affirm the trial court’s implicit finding that Lai failed to establish a

subjective belief in the dispute.

II.    Lai did not demonstrate that Essig failed to take reasonable steps to

       mitigate his damages

       The burden of proving a failure to mitigate damages is on the defendant.

Kloss v. Honeywell, Inc., 77 Wn. App. 294, 301, 890 P.2d 480 (1995) (quoting

Burnside v. Simpson Paper Co., 66 Wn. App. 510, 529-30, 832 P.2d 537 (1992)).

Where an employee has been unlawfully discharged he must be “reasonably

diligent in seeking and accepting   .   .   .   substantially equivalent [employment].” ki. at


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No. 78014-0-1/10


302 (quoting Brady v. Thurston Motor Lines, Inc., 753 F.2d 1269, 1273-78 (4th Cir.

1985)). Essig testified that on August 28, 2015, Lai offered for him to work for Lai

as an independent contractor for one year at a salary of $120,000. Lai argues that

Essig was obligated to accept his offer and because Essig did not accept that offer,

Essig failed to mitigate his damages by $120,000. The actual text of the message

from Lai read 1 can take care $120,000.000 per year next 12 months. Then

become employees after that.” The trial court did not find Lai credible at trial, and

the oral ruling suggests that the court did not find his offer to be credible, either.

The trial court found Essig was not offered employment between August 27, 2015

and June 30, 2017. To the extent that Lai’s message constituted an offer, we do

not find it comparable to the position described in the contract, and affirm the

judgment of the trial court.

       This court may affirm the judgment of the trial court on any theory

established by the pleadings and supported by the proof. State v. Smith, 177

Wn.2d 533, 540-41, 303 P.3d 1047 (201 3). Here, substantial evidence shows that

the new position was not equivalent to the position Lai and Essig agreed to in the

previous contract. While Lai argues that $120,000 per year is roughly equivalent

to $1 14,000 per year plus benefits, he ignores the difference between status as an

independent contractor and status as an employee. We can see how important

that distinction was to Essig, because significant testimony shows that he

bargained for employee status, even though Lai attempted multiple times to hire

him as an independent contractor. It also ignores factors like providing Essig with




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No. 78014-0-I/il



office space, office support, expenses, vacation, or an opportunity for bonuses, all

of which were present in the original agreement.

       Because substantial evidence shows the offer was not a similar position,

Lai did not demonstrate that Essig failed to mitigate his damages.

       Affirmed.




WE CONCUR:



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