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                                                           SUSAN L. CARLSON
                                                        SUPREME COURT CLERK




         IN THE SUPREME COURT OF THE STATE OF WASHINGTON

  CERTIFICATION FROM THE
  UNITED STATES DISTRICT                         No. 94229-3
  COURT FOR THE EASTERN
  DISTRICT OF WASHINGTON
                  IN                             En Banc


  MARIANO CARRANZA and
  ELISEO MARTINEZ,individually                   Filed: may I 0 2018
  and on behalf of all others similarly
  situated,

                          Plaintiffs,

           V.



  DOVEX FRUIT COMPANY,

                          Defendant.



           YU,J. — The Washington Minimum Wage Act(MWA),chapter 49.46

   ROW,requires employers to compensate employees for their work. This case asks

   us to apply that general principle to the specific context of agricultural workers

   who are paid on a piece-rate basis for piece-rate picking work by answering the
Carranza v. Dovex, No. 94229-3


following two questions, which were certified to us by Judge Mendoza ofthe

United States District Court for the Eastern District of Washington:

      A.     Does Washington law require agricultural employers to pay
      their pieceworkers for time spent performing activities outside of
      piece-rate picking work (e.g.,"Piece Rate Down Time" and similar
       work)?
      B.    If the answer to the above question is "yes", how must
      agricultural employers calculate the rate of pay for time spent
      performing activities outside of piece-rate picking work (e.g.,"Piece
      Rate Down Time" and similar work)?

Order Certifying Questions & R. to Wash. Supreme Ct. & Staying Deadlines &

Proceedings, Carranza v. Dovex Fruit Co., No. 2:16-cv-00054-SMJ at 2(E.D.

Wash. Mar. 3, 2017)(Order Certifying Questions).

      The answer to the first certified question is yes. The plain language ofthe

MWA requires employers to pay their adult workers "at a rate of not less than [the

applicable minimum wage]per hour.'" RCW 49.46.020(l)-(3)(emphasis added).

There is no exception, other statutory provision, or judicial or executive

interpretation that allows employers to evade this plain language in the context

presented. Therefore, agricultural workers may be paid on a piece-rate basis only

for the hours in which they are engaged in piece-rate picking work. Time spent

performing activities outside the scope of piece-rate picking work must be
Carranza v. Dovex, No. 94229-3


compensated on a separate hourly basis.' We thus reject Dovex Fruit Company's

argument that it need ensure only that each worker's average weekly compensation

is equal to at least minimum wage.

       The parties disagree about which, if any, tasks are outside the scope of

piece-rate picking work. See Pis.' Opening Br, on Certified Questions at 3-4; Def.

Dovex Fruit Co.'s Answering Br. at 2-3. Judge Mendoza described this category

of work as "not explicitly accounted for through piece-rate compensation." Order

regarding Certification Questions to Wash. Supreme Ct. at 7. We recognize that

what is accounted for by the piece rate is a factual dispute beyond the scope of the



       'Contrary to the dissent's assertion that we have "define[d] away the certified question"
and "recast[] all work except piece-rate picking work as hourly work," dissent(Stephens, J.) at 5,
4, Judge Mendoza explained the issue as follows:

               The Court is unpersuaded by Defendant's framing of the question here as a
       potential "double-payment" to piece-rate workers. The issue is not whether Plaintiffs
       seek to be paid twice for work that is allegedly already compensated through the
       "averaging framework." Rather, the question is how Washington law accounts for work
       performed by piece-rate workers that is not explicitly accounted for through piece-rate
       compensation (e.g.,"Piece rate Down Time" and similar work). As the Lopez Demetrio
       [v. Sakuma Bros. Farms, 183 Wn.2d 649, 355 P.3d 258(2015)] court found "[t]he piece
       rate is the only compensation the Workers receive." Lopez Demetrio, 355 P.3d at 261.
       Indeed, if the worker "is not picking . . ., the picker is not earning money." Id. (citing a
       representative for the defendant in that case). Moreover, it is not clear that the averaging
       framework govems in the agricultural context. Further, neither party points to authorities
       that definitively resolve the question of how non-piece-rate work (e.g.,"Piece rate Down
       Time" and similar work) is or should be calculated and paid to pieceworkers. Neither has
       this Court been able to find such legal authority. And whether the averaging framework,
       or another compensation scheme, applies to these workers is a question oflaw for the
       Washington Supreme Court to consider and answer.

       Order regarding Certification Questions to Wash. Supreme Ct. at 7-8 (citations and
footnote omitted).
Carranza v. Dovex, No. 94229-3


certified question presented. Discovery is ongoing, and we defer resolution of the

question to the district court.

       We answer the second certified question consistent with the parties'

position. The rate of pay for time spent performing activities outside of piece-rate

picking work must be calculated at the applicable minimum wage or the agreed

rate, whichever is greater.^

                                       BACKGROUND


       This case began in 2016 when the two named plaintiffs filed this putative

class action lawsuit against Dovex on behalf of Dovex's seasonal and migrant

agricultural employees. Each summer, Dovex employs hundreds of seasonal and

migrant workers, many of whom speak limited English, to harvest apples, pears,

and cherries in Dovex's orchards. The plaintiffs allege that Dovex violated state

and federal law by willfully refusing to pay wages and failing to "pay minimum

wage, provide paid rest breaks, maintain accurate and adequate time and wage

records, pay wages when due,[and] provide accurate statements of hours worked."

Order Certifying Questions at 1.




       ^ Prior to oral argument, the plaintiffs filed a motion to strike a portion of Dovex's
answer to amici that addresses for the first time whether this court's decision should be applied
retroactively. We passed the motion to the merits and now grant. The amici briefs do not raise
retroactivity, and RAP 10.3(f) provides that an "answer to a brief of amicus curiae should be
limited solely to the new matters raised in the brief of amicus euriae."
Carranza v. Dovex, No. 94229-3


      The only claim relevant to the certified questions presented here relates to

agricultural workers who are paid on a piece-rate basis, which is a specified

amount of money per bin of picked apples or pears, or per "lug" of picked cherries.

Pis.' Opening Br. on Certified Questions at 3. Such workers' rate of pay is based

on how many pieces of fruit are actually picked during a pay period.

      The plaintiffs allege that Washington law requires Dovex to compensate

them separately and in addition to the agreed upon piece rate for the time they

spend on tasks outside of piece-rate picking. They agree that the piece rate

compensates them for some tasks that are not strictly picking fruit, including going

up and down ladders, moving between trees, and emptying fruit bins. Pis.' Reply

Br. on Certified Questions at 2. However,they argue they have a right to separate

payment for time spent on other tasks such as transporting ladders to and from the

company trailer, traveling between orchards and orchard blocks, attending

mandatory meetings or trainings, and storing equipment and materials. Pis.'

Opening Br. on Certified Questions at 3.

      Dovex responds that the plaintiffs are already fully compensated by the

piece rate because all of the tasks they perform are part of piece-rate picking work.

Def. Dovex Fruit Co.'s Answering Br. at 14. Although Dovex admits that it now

pays its employees additional compensation for time spent on some nonpicking

activities, it is undisputed that during the relevant time period Dovex did not.
Carranza v. Dovex, No. 94229-3


Stipulation of Facts for Questions Certified to Wash. Supreme Ct., Carranza v.

Dovex Fruit Co., No. 2:16-cv-00054-SMJ at 3,4(E.D. Wash. Feb. 10, 2017).

       The certified questions present a narrow issue that limit our conclusion to

the context of agricultural workers.^ We must decide whether the pay structure

used by Dovex is prohibited by the MWA and, if so, the rate of pay at which the

workers' time spent on tasks outside of piece-rate picking work must be

compensated. We are not asked to decide which, if any, tasks are outside of piece-

rate picking work in this case, and we do not attempt to do so. The scope of piece-

rate picking is a question offact, not law, and is therefore appropriately left to the

district court.


                                           ISSUES


       1.     "Does Washington law require agricultural employers to pay their

pieceworkers for time spent performing activities outside of piece-rate picking

work (e.g.,'Piece Rate Down Time' and similar work)?" Order Certifying

Questions at 2.




       ^ The dissent rewrites the certified question to address a much broader issue than the one
before this court. The dissent frames the issue as "whether the MWA allows piece-rate pay to
subsume nonproduction work time." Dissent(Stephens, J.) at 14 n.5; see also id. at 2. We do
not opine on the legitimacy of a compensation structure similar to Dovex's when used outside
the context of agricultural work.
Carranza v. Dovex, No. 94229-3


       2.     "If the answer to the above question is 'yes', how must agricultural

employers calculate the rate of pay for time spent performing activities outside of

piece-rate picking work (e.g.,'Piece Rate Down Time' and similar work)?" Id.

                                        ANALYSIS


                                 First Certified Question

       The MWA "establish[es] minimum standards of employment within the

state of Washington," including setting the minimum wage. RCW 49.46.005(1).

Thirty years after its enactment, the MWA was expanded to apply to agricultural

workers by the will of the people pursuant to their initiative power.'^ Laws OF

1959, ch. 294, § l(5)(a); Laws of 1989, ch. 1, § l(5)(a).

       The MWA states that "every employer shall pay to each of his or her

employees who has reached the age of eighteen years wages at a rate of not less

than [the applicable minimum wage]per hour.'" RCW 49.46.020(l)-(3)(emphasis

added). The central issue here is our interpretation ofthe phrase "at a rate of not

less than [the applicable minimum wage] per hour" and its narrow application to

agricultural workers who are paid on a piece-rate basis.

       The parties correctly agree that the MWA requires payment of at least

minimum wage for all hours worked and that the time Dovex's employees spend



          While the MWA now applies to agricultural workers, they are expressly excluded from
the regulation governing minimum wage compensation for other workers paid on a commission
or piece-rate basis. WAC 296-126-00l(2)(c), -021.
Carranza v. Dovex, No. 94229-3


on the tasks allegedly outside of piece-rate picking work are hours worked. But, as

reflected in the certified questions,,they dispute what an employer must do to

comply with its duty to pay its workers at least minimum wage per hour.

      The plaintiffs contend that the MWA requires compensation for each hour

actually worked, such that time spent on activities outside of piece-rate picking

work must be compensated on a separate hourly basis. Dovex, meanwhile,

contends that its duty is limited to ensuring that when a worker's total weekly

compensation is averaged across all hours worked on all tasks in a week, the

resulting average hourly rate is at least equal to minimum wage. Dovex's

approach is referred to as "workweek averaging."

      As always in cases of statutory interpretation, we look first to the plain

language of the statute to discern the legislature's intent. Dep 't ofEcology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4(2002). In this case, the

MWA's plain language unambiguously supports the plaintiffs' view. The statute

does not restrict employers to a specific compensation structure, but it does require

an employer to pay its employees at least minimum wage "per hour." RCW

49.46.020(l)-(3). The legislature's choice of the words "per hour" evinces an

intent to create a right to compensation for each individual hour worked, not

merely a right to workweek averaging.
Carranza v. Dovex, No. 94229-3


       This conclusion is well illustrated by a comparison ofthe plain language of

the MWA and the federal Fair Labor Standards Act of 1938(FLSA),29 U.S.C. §§

201-219, on which the MWA is largely based. Anfinson v. FedEx Ground

Package Sys., Inc., 174 Wn.2d 851, 868, 281 P.3d 289(2012). The FLSA provides

that "[ejvery employer shall pay to each of his employees ... in any workweek...

wages at" not less than minimum wage. 29 U.S.C. § 206(a)(emphasis added).

Some federal courts have held that this provision allows workweek averaging.

See, e.g., Douglas v. Xerox Bus. Servs., LLC, 875 F.3d 884(9th Cir. 2017);

Hensley v. MacMillan Bloedel Containers, Inc., 786 F.2d 353, 357(8th Cir. 1986);

Dove V. Coupe, 759 F.2d 167, 172(D.C. Cir. 1985); United States v. Klinghoffer

Bros. Realty Corp., 285 F.2d 487,490(2d Cir. 1960). These holdings cannot

apply to the MWA because our legislation states "per hour," rather than "in any

workweek."^ Therefore, the MWA's plain language requires us to conclude that

employees have a per hour right to minimum wage.

       In addition to the statute itself, analogous case law further supports the

plaintiffs' view. We agree with Dovex that our decision in Lopez Demetrio v.


       ^ The dissent rests its analysis on the mistaken assumption that we are bound by
interpretations ofthe FLSA. Dissent(Stephens, J.) at 10. We are not. Drinkwitz v. Alliant
Techsystems, Inc., 140 Wn.2d 291, 298, 996 P.2d 582(2000). The dissent then dismisses the
importance of the phrase "in any workweek," found in the FLSA and not the MWA,but we must
give effect to every word when engaging in statutory interpretation. City ofSpokane v.
Taxpayers ofCity ofSpokane, 111 Wn.2d 91, 102, 758 P.2d 480(1988). The dissent's approach
amounts to a novel way of interpreting the plain language of the MWA without any citation to
authority. Dissent(Stephens, J.) at 14.
Carranza v. Dovex, No. 94229-3


Sakuma Bros. Farms, 183 Wn.2d 649, 355 P.3d 258 (2015), did not directly

address the specific issue of whether and how workers paid on a piece-rate basis

should be paid for time spent on activities outside of piece-rate picking work. Def.

Dovex Fruit Co.'s Answering Br. at 8-13. However, precedent from comparable

situations has established that pursuant to "the MWA,employees are entitled to

compensation for regular hours worked.''^ Stevens v. Brink's Home Sec., Inc., 162

Wn.2d 42, 47, 169 P.3d 473 (2007)(emphasis added). Without an applicable

exception, time spent on job duties that are not otherwise compensated must be

compensated on a per hour basis. These principles apply here.

      For instance, similar to the plaintiffs' claim in this case that they are not paid

for time spent traveling between orchards, the plaintiffs in Stevens were

technicians who were not compensated "for time they spent driving company

trucks from their homes to the first jobsite and back from the last jobsite." Id. at

44. We concluded that this time must be compensated as hours worked in

accordance with the MWA. Id. at 49-50.


       Also similar to the plaintiffs' claim in this case that they are not paid for

time spent at mandatory meetings and trainings is the claim of the plaintiffs in

Seattle ProfI Eng'g Emps. Ass'n v. Boeing Co., that they were required to attend

"a 'pre-employment orientation' session" without compensation. 139 Wn.2d 824,

827, 991 P.2d 1126, 1 P.3d 578(2000){SPEEA). We accepted "Boeing's



                                           10
Carranza v. Dovex, No. 94229-3


concession that its mandatory pre-employment orientation sessions constituted

work" and focused principally on "the remedy available under Washington law"

because the workers were entitled to compensation. Id. at 829.

       The Ninth Circuit has similarly concluded that the MWA provides a per

hour right to minimum wage. In Alvarez v. IBP, Inc., hourly workers at IBP Inc.'s

city ofPasco meat processing plant sought compensation for the time it took to

perform tasks, including "gather[ing] their assigned equipment, don[ning] that

equipment in one ofthe Pasco plant's four locker rooms, and prepar[ing] work-

related tools before venturing to the slaughter or processing floors," and then

repeating the process in reverse at the end ofthe workday. 339 F.3d 894, 898 (9th

Cir. 2003). The court compared the MWA and the FLSA and considered this

court's case law as well as the Department of Labor and Industries'(DLI)

interpretations and regulations. M at 912-13. It specifically rejected using

workweek averaging to measure compliance with the MWA and instead held that

the workers' time was compensable because the MWA provides a per hour right to

compensation for hourly employees.^ Id. at 913.



       ^ The dissent is mistaken when it states Alvarez supports its position that workweek
averaging is permissible for workers paid by the piece because it dismisses the role of WAC 296-
126-021 in the court's analysis. Dissent(Stephens, J.) at 19-20. The Ninth Circuit noted that
DLI regulations "permit use ofthe work-week measure only for particular employment
categories." Alvarez, 339 F.3d at 912. As discussed in greater detail, infra pp. 14-15,just as in
Alvarez, there is no relevant regulation that allows for workweek averaging for agricultural
workers paid by the piece.


                                               11
Carranza v. Dovex, No. 94229-3


      Dovex nevertheless argues that its pay structure is permissible because each

week, a worker's total piece-rate compensation divided by his or her total hours

worked equals at least the applicable minimum wage. Def. Dovex Fruit Co.'s

Answering Br. at 21-41. This argument misses the point. As we noted in Lopez

Demetrio, a case that considered an analogous piece-rate compensation structure,

"'[I]f the picker is not picking .. .,the picker is not earning money.'" 183 Wn.2d

at 653 (alterations in original). Workweek averaging ignores the per hour right to

compensation that the MWA imposes by making it possible to conceal the fact that

an employer is not compensating its employees for all hours worked because

payment for some hours of piece-rate picking work is spread across all hours

worked. This interpretation places few limitations on an employer. Despite

protestations from the dissent, nothing would prevent an employer from ordering

its workers to clean the toilets without further pay after completing their piece-rate

picking work for the day. Dissent(Stephens, J.) at 5. However, no applicable

interpretive case law or regulations justify allowing workweek averaging in this

context.


      To support its right to structure a flexible compensation system, Dovex

looks to Inniss v. Tandy Corp., 141 Wn.2d 517, 531, 7 P.3d 807(2000). Def.

Dovex Fruit Co.'s Answering Br. at 17-18. The general principle that flexible

compensation structures are permissible is not in question. However,Inniss



                                          12
Carmnza v. Dovex, No. 94229-3


considered only the legality of an employer's method of calculating a specific

payment structure for overtime hours pursuant to RCW 49.46.130(1). 141 Wn.2d

at 523. It thus interpreted a different provision ofthe MWA that is not at issue in

this case, and it did so by relying on comparable provisions and regulations ofthe

FLSA, which are also inapplicable here. Id. at 523-29. And as noted above,

relying on the FLSA in this case is inappropriate because the MWA and FLSA

provisions at issue here clearly differ in their plain language.

      Dovex and the dissent also mischaracterize our precedent when they argue

that Lopez Demetrio already endorsed using workweek averaging to measure

compliance with the MWA. Def. Dovex Fruit Co.'s Answering Br. at 23, 39-41;

dissent(Stephens, J.) at 22-24. In Lopez Demetrio, we were asked the limited

question of whether WAC 296-131-020(2) requires an agricultural employer to pay

its workers compensated on a piece-rate basis separately for their mandatory rest

breaks. 183 Wn.2d at 654. We answered yes and noted that workweek averaging

is an acceptable method of calculating an employee's rate of pay for rest break

periods. Id. at 660-61. However, unlike in Lopez Demetrio, this case asks us to

evaluate MWA compliance in the context of hours worked, not rest breaks. It is

undisputed that time spent on work outside the scope of piece-rate picking is work

and, pursuant to the MWA,is hourly work. Lopez Demetrio does not undercut the




                                          13
Carranza v, Dovex, No. 94229-3


MWA's plain requirement that agricultural workers are entitled to hourly

compensation for hourly work.

      Dovex and Justice Stephens' dissent further argue that their statutory

interpretation is supported by administrative regulations and policies. The dissent

erroneously asserts that"DLI has consistently interpreted RCW 49.46.020(1)to

allow for workweek averaging to determine minimum wage compliance under

piece-rate compensation plans." Dissent(Stephens, J.) at 15. As correctly pointed

out in the amicus brief of the Washington State Attorney General, DLI has not

interpreted the MWA as it applies to agricultural workers paid by the piece.

Amicus Br. of Att'y Gen, of Wash, at 8.

      There is no regulation that allows workweek averaging in the context of

agricultural workers paid by the piece. Instead, Dovex and Justice Stephens'

dissent give great deference to DLLs interpretation ofthe MWA that does not

apply to agricultural workers. WAG 296-126-021 arguably allows workweek

averaging when an employer pays its workers on a piece-rate basis. However,that

regulation has no role here because agricultural workers are expressly exempt, as

Dovex and the dissent admit. WAG 296-126-00l(2)(c); Def. Dovex Fruit Go.'s

Answering Br. at 37(noting that the regulation applies "in the non-agricultural

piece rate context"); dissent(Stephens, J.) at 15 n.6. The dissent buries in a

footnote its acknowledgement that agricultural workers are exempt, and then



                                          14
Carranza v. Dovex, No. 94229-3


illogically concludes the court should still adhere to the interpretation. Dissent

(Stephens, J.) at 15 n.6. Agricultural workers are regulated by different

regulations, chapter 296-131 WAC,which do not include any regulation allowing

for compensation calculated by workweek averaging for adult agricultural

workers.^

       Not only is there no applicable regulation, but there also is no applicable

administrative policy.^ Dovex and the dissent attempt to rely on a nonbinding DLI

policy that arguably endorses workweek averaging. Def. Dovex Fruit Co.'s

Answering Br. at 36-37 (quoting Administrative Policy ES.A.3, at 2(effective July

15, 2014)); dissent(Stephens, J.) at 15. But the portion ofthe policy relevant to

workers paid by the piece purports to interpret WAC 296-126-021, which, again,

expressly exempts agricultural workers. WAC 296-126-00l(2)(c). Furthermore,

even if it were applicable to agricultural workers paid by the piece, administrative

policies "[have] no force or effect as a law or regulation.'''' Stevens, 162 Wn.2d at

54(Madsen, J., concurring)(emphasis added). While the level of deference owed

to regulations is an issue of ongoing debate, administrative policies do not even



     'The dissent places great emphasis on a regulation relating to minimum wage
compliance for agricultural workers paid by the piece who are minors, WAC 296-131-117(1).
Dissent(Stephens, J.) at 15 n.6. The certified questions do not concern minor agricultural
workers.
       ^ Dovex also claims a DLI handout is interpretative guidance in support of its position,
but the handout was removed from the agency's website years ago. Dovex Fruit Co.'s Statement
of Additional Auths. at 1.


                                               15
Carranza v. Dovex, No. 94229-3


have the force of regulations, and deference to such policies is inappropriate

because "[t]his court has the ultimate authority to interpret a statute." Bostain v.

Food Express, Inc., 159 Wn.2d 700, 716, 153 P.3d 846(2007).

      Finally, "'[sjtatutes should be interpreted to further, not fhistrate, their

intended purpose.'" Id. at 712(alteration in original)(quoting Burnside v. Simpson

Paper Co., 123 Wn.2d 93, 99, 864 P.2d 937(1994)). Remedial legislation like the

MWA "is given a liberal construction" in accordance with the legislature's intent

of protecting employees. Anfinson, 174 Wn,2d at 870. Liberally construing the

MWA favors interpreting its minimum wage mandate as providing employees with

a right to hourly compensation for hourly work. The dissent erroneously claims

that "[t]his is not a case about unpaid workers or unpaid time" but its approach is at

odds with the purpose ofthe MWA and is a clear admission that its interpretation

favors employers over workers. Dissent(Stephens, J.) at 19.

      Dovex and Justice Stephens' dissent's suggested approach of using

workweek averaging to measure compliance with the MWA is also inconsistent

with Washington's "long and proud history of being a pioneer in the protection of

employee rights." Drinkwitz, 140 Wn.2d at 300. It is unquestionable that no

legislation has attempted to refute this history or this state's commitment to it.

However, Dovex and the dissent's interpretation risks doing just that for seasonal

and migrant agricultural workers, a group that is historically comprised of



                                           16
Carranza v. Dovex, No. 94229-3


vulnerable workers who often face language barriers, have limited education, and

endure difficult working conditions, and for whom employment protections have

been hard fought. See generally Br. of Amicus Curiae Familias Unidas por la

Justicia et al.; Amicus Curiae Br. of United Farm Workers of Am.& Migrant

Clinicians Network.


      In closing, we note that the dissent contends we have relied on California

courts' interpretation oftheir state minimum wage act in order to interpret the

MWA. Dissent(Stephens, J.) at 26-31. We do not cite, rely on, or adopt

California law in reaching our conclusion.

      We therefore hold that agricultural workers who are paid on a piece-rate

basis are entitled to separate hourly compensation for the time they spend

performing tasks outside of piece-rate picking work. Despite the dissent's effort to

paint this holding as "extend[ing] far beyond this case" and "seriously

undermin[ing] the piece-rate payment system as a viable compensation plan," our

decision today is limited, as it must be, to agricultural workers. Id. at 24-25. The

answer to the first certified question is yes.

                                 Second Certified Question

      Because we answer the first certified question in the affirmative, we must

determine how an employer must calculate the rate of pay for the time its

agricultural employees who are compensated on a piece-rate basis spend



                                            17
Carranza v. Dovex, No. 94229-3


performing tasks outside of piece-rate picking work. We answer the second

certified question consistent with the answer requested by the parties. It is

undisputed that the employees are entitled to at least minimum wage because

"[t]he MWA 'sets the floor below which the agreed rate cannot fall without

violating the statute.'" Lopez Demetrio, 183 Wn.2d at 660(quoting SPEEA, 139

Wn.2d at 835). It is also undisputed that an employer can enter into a contractual

agreement to pay its workers at a different rate that is above minimum wage.

Therefore, an employer must pay its workers minimum wage or a contractually

agreed upon rate, whichever is higher, for time spent on activities outside the scope

of piece-rate picking.

                                  CONCLUSION


      The answer to the first certified question is yes. The MWA provides that an

agricultural worker who is paid on a piece-rate basis for piece-rate picking work

must be paid separate hourly compensation for the time he or she spends

performing tasks outside of piece-rate picking work. The answer to the second

question is that the separate rate of pay must be at least minimum wage or the

agreed upon rate, whichever is higher.




                                          18
Carranza v. Dovex, No. 94229-3




WE CONCUR:




                                      iez.




                                 19
Carranza v. DovexFruit Co., No. 94229-3
Fairhurst, C.J.(dissenting)




                                     No. 94229-3


       FAIRHURST, C.J. (dissenting)—I disagree with the majority because I

believe the answer to the first certified question is no. I agree with Justice Stephens'

interpretation ofthe plain language ofRCW 49.46.020 and join Sections LB and I.D

of her opinion.

       I am not signing on to the other sections in Justice Stephens' opinion for a

handful of reasons, summarized here. In Section LA, Justice Stephens believes we

must "understand[] what is meant by 'activities outside ofpiece-rate picking work.'"

Dissent(Stephens, J.) at 2.1 agree with Justice Yu's reasoning that this "is a factual

dispute beyond the scope ofthe certified question." Majority at 3.

       In Section I.C, Justice Stephens supports her plain meaning interpretation with

administrative policies and guides from the Department of Labor and Industries

(DLI). But since the plain language of the statute is unambiguous, our interpretive

inquiry is at an end. State v. Armendariz, 160 Wn.2d 106, 110-11, 156 P.3d 201

(2007); see also Quinaiilt Indian Nation v. Imperhim Terminal Servs., LLC, 187
Carranza v. Dovex Fruit Co., No. 94229-3
Fairhurst, C.J.(dissenting)


Wn.2d 460, 474, 387 P.3d 670 (2017) ("If a statute is ambiguous, an agency's

promulgated rules help our interpretation."). Because consideration ofthese sources

is unnecessary, I refrain from making a conclusive determination about DLFs

position. Lastly, in Part II, Justice Stephens argues that the majority radically

changes Washington law, silently embraces the California Labor Code, and creates

urmecessary legal tasks for DLI and the legislature. While I agree that the majority

incorrectly interpreted RCW 49.46.020, I refrain from               making these

characterizations about the opinion or its potential impacts.
Carranza v. Dovex Fruit Co., No. 94229-3
Fairhurst, C.J. (dissenting)




                                           ^   . QC
Carranza v. Dovex Fruit Co.
(Stephens, J., dissenting)




                                  No. 94229-3




      STEPHENS, J. (dissenting)—^Washington's Minimum Wage Act (MWA),

oh. 49.46 RCW,was never intended to restrict the type of compensation system an

employer may use, whether it be an hourly,salary, commission,or piece-rate system.

Rather, the statute's mandate is clear: every employer must pay each employee a

minimum wage rate of pay for every hour worked. Ignoring the statutory term

"rate," the majority creates a "per hour" right to separate compensation under the

MWA for the time agricultural pieceworkers spend performing tasks outside of

piece-rate picking work.      This holding disregards the fact that piece-rate

compensation is calibrated to account for the so-called "down time" necessarily

involved in piecework. Nothing in the MWA disallows workweek averaging of

piece-rate pay to subsume both production and nonproduction time. Because the

majority's erroneous interpretation ofthe MWA departs from its plain language and
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



from years of consistent interpretation by the agency charged with enforcing the

statute, I respectfiilly dissent.

 1.    The MWA Does Not Mandate Separate Hourly Compensation for Time Spent
       on "Activities outside ofPiece-Rate Picking Work"

       This case requires us to decide if the MWA mandates that agricultural

employers pay their pieceworkers separate hourly compensation "for time spent

performing activities outside of piece-rate picking work (e.g., 'Piece Rate Down

Time' and similar work)." Order Certifying Questions & R. to Wash. Supreme Ct.

& Staying Deadlines & Proceedings, Carranza v. Dovex Fruit Co., No. 2:16-cv-

00054-SMJ at 2(E.D. Wash. Mar. 3, 2017)(Order Certifying Questions). Stated

differently, the question is whether the MWA allows for piecework compensation

plans to subsume production as well as nonproduction work time, so long as the

average hourly wage in each week meets the statutory minimum.

       A. Piece-Rate Work Is Not Synonymous with Piece-Rate Picking Work

       The starting point to answering the first certified question seems obvious—

understanding what is meant by "activities outside of piece-rate picking work." It

seems only logical that we would want to know the subject matter of the certified

questions before proceeding to answer them. The district court drew a line between

piece-rate picking work and nonproduction activities outside of picking work based

on Dovex Fruit Co.'s compensation plan. See Order Certifying Questions at 2


                                          -2-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



(describing "activities outside of piece-rate picking work (e.g., 'Piece Rate Down

Time' and similar work)"). The term "Piece Rate Down Time" is described in the

record as including "[mjoving [1]adders, moving from block to block, weather down

time, waiting for bins." Stipulation of Facts for Questions Certified to Wash.

Supreme Ct. at 5 (E.D. Wash. Mar. 3, 2017)(Stipulation of Facts). "Piece Rate

Down Time" activities are also described to include transporting ladders from a

company trailer to the areas where workers pick fruit, transporting ladders from

where they were used to pick fruit back to the company trailer, and traveling between

orchard blocks (by foot or vehicle). Stipulation of Facts at 3-4. Although the

pieceworker is not picking during "Piece Rate Down Time" activities, these

nonpicking activities are described as integral and indispensable to the principal

activity for which the workers are employed, i.e., harvesting the fruit.

      Viewed in this context, when Judge Mendoza in the first certified question

uses the phrase ""and similar work,'''' he is presumably referring to other nonpicking

activities that are similarly geared toward the ultimate goal of fruit production.

Order Certifying Questions at 2(emphasis added). "Similar" nonpicking activities

would include waiting for equipment and materials necessary for picking fruit(e.g.,

bags and ladders), receiving instructions before picking, storing equipment and

materials after picking is complete, and waiting in one orchard block before traveling



                                          -3-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



to the next block. These activities are associated with the harvesting task on which

the piece rate is based.^ Whether Dovex or other employers may decide to pay

hourly wages for some or all of the activities outside of piece-rate picking work is

irrelevant; the question is whether the MWA categorically prohibits subsuming the

pay for these tasks into the piece-rate compensation structure.

      The majority essentially equates piece-rate work with piece-rate picking work.,

on the premise that "'[i]f the picker is not picking . . . , the picker is not earning

money.'" Majority at 12{qpotmgLopezDernetrio v. Sakuma Bros. Farms,Inc., 183

Wn.2d 649,653,355 P.3d 258(2015)(second alteration in original)). It thus recasts

all work except piece-rate picking work as hourly work, claiming that "[i]t is

undisputed that time spent on work outside the scope of piece-rate picking ... is

hourly work." Id. at 13. In fact, the parties do dispute whether the type of

nonpicking work described in the record as "Piece Rate Down Time and similar

work" is hourly work or is instead nonproduction work subsumed in the piece rate.

The majority seeks to reframe the certified questions by redefining the relevant




       ^ Dovex notes that agricultural employers vary the piece rate paid throughout the
season to account for increased nonproduction time during certain periods. See Dovex
Fruit Co.'s Answering Br. at 16 ("The reason Dovex must vary its piece rate is for the
obvious purpose of taking into account all of the various non-picking tasks that affect the
number of pieces a piece rate employee can pick per day. As time required to perform
these non-picking tasks goes up, so too does the piece rate to attract and maintain the piece
rate employee.").

                                            -4-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



terms. It suggests, for example,that because the plaintiffs do not dispute that piece-

rate pay may subsume certain nonpicking work, such as moving ladders within

orchard blocks or emptying fruit bins, such work falls outside the certified question.

Id. at 4-5 & n.2. At the same time, the majority attempts to sweep into the ambit of

"Piece Rate Down Time and similar work"tasks that nobody suggests are subsumed

into piece-rate pay, such as cleaning toilets. Id. at 12. The majority's approach

defines away the certified question, leaving it to conclude that employees have "a

right to hourly compensation for hourly work." Id. at 16. Ofcourse they do, but the

question is whether the work at issue in this case is hourly work.

      We should answer the first certified question as it is presented—

distinguishing between piece-rate picking work(i.e., production time)and piece-rate

down time and similar work (i.e., nonproduction time). See Pis.' Resp. to Def.'s Br.

Regarding Certification to Wash. Supreme Ct. at 5 (noting certified question should

be framed based on "the undisputed fact that Dovex does not separately pay for work

performed outside of active production work that is paid on a piece-rate basis"

(emphasis added)). Understanding that these are the relevant categories of piece-

rate work at issue, nothing in the MWA requires payment for piece-rate down time

and similar work on an hourly basis. In holding that the MWA requires per hour

compensation for such work, the majority misreads the plain language of ROW



                                          -5-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



49.46.020 and mistakenly distances the MWA from the federal Fair Labor Standards

Act of 1938(FLSA),29 U.S.C. §§ 201-219, on which it was modeled. The majority

further relies on inapposite cases that address hourly(not piece-rate) compensation,

and brushes aside years of clear regulatory policy and guidance by the Washington

Department ofLabor & Industries(DLI), which is charged with enforcing the MWA.

Finally, the majority erroneously interprets our recent decision in Lopez Demetrio

as supporting its view, when in fact that case reinforces that the MWA allows

workweek averaging of piece-rate compensation as a permissible measure of

minimum wage compliance.

      B. The Plain Language ofRCW 49.46.020 Is Clear: Employers Must Pay
         Employees Wages at a Rate Not Less Than the Minimum Wage per Hour
         of Work

      The MWA was enacted to "establish[] a minimum standard for wages and

working conditions of all employees in this state." RCW 49.46.120. To accomplish

this purpose,the MWA regulates minimum wage rates and directs employers to pay

their employees not less than the minimum hourly wage, mandating that "every

employer shall pay to each of his or her employees who has reached the age of

eighteen years wages at a rate ofnot less than [minimum wage'] per hour." RCW

49.46.020(1) (emphasis added). At issue here is a question of pure statutory

interpretation—^whether the latter portion ofthis sentence requires separate hour-by-



                                          -6-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



hour compensation for activities outside of piece-rate picking work, such as

transporting ladders to and from fields, waiting for equipment, or receiving

instructions before picking.

      The majority concludes that the MWA's plain language unambiguously

provides employees a right to compensation for each individual hour worked.

Majority at 8. The majority's plain language analysis begins and ends with the last

two words in RCW 49.46.020(1)—"per hour."               Relying exclusively on this

language, the majority concludes that "[t]he legislature's choice of the words 'per

hour' evinces an intent to create a right to compensation for each individual hour

worked, not merely a right to the workweek averaging." Id. However,the majority

neglects to consider, and effectively reads out of RCW 49.46.020(1), an equally

important term that appears earlier in the same sentence—^the word "rate." In this

regard, the majority's reading of RCW 49.46.020(1) violates the principle that a

reviewing court is duty-bound to give meaning to every word in a statute and to

avoid rendering any language superfluous. City ofSeattle v. Williams, 128 Wn.2d

341, 349,908 P.2d 359(1995).

      The MWA prescribes a minimum wage rate per hour, which is not the same

as a minimum wage that must be paid per hour. See Seattle ProfI Eng'g Emps.

Ass'n V. Boeing Co., 139 Wn.2d 824, 834 n.4, 991 P.2d 1126 (2000) {SPEEA)




                                          -7-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



("Minimum wage rates are regulated by RCW 49.46.020, which requires an

employer to 'pay to each ofhis or her employees who has reached the age ofeighteen

years wages at a rate of not less than [minimum wage] per hour.'"). The MWA

defines "wage" as "compensation due to an employee by reason of employment...

." RCW 49.46.010(7). "Rate" is commonly understood as "[pjroportional or

relative value; the proportion by which quantity or value is adjusted." Black'S Law

Dictionary 1452(10th ed. 2014). Viewing the "per hour" language in context,the

MWA's minimum wage provision measures the relative value, i.e., rate, ofthe wage

on an hourly basis. It does not impose a right to compensation on a per hour basis,

as the majority maintains.

      The plain language of RCW 49.46.020 simply requires employers to pay

employees the equivalent ofthe minimum wage rate for each hour of work. Nothing

in the MWA restricts the type of compensation system an employer may use,

whether it be an hourly,salary, commission,or piece-rate system. The MWA neither

distinguishes between different types of work activities nor mandates separate

hourly compensation for specific categories of work. Rather, as it applies here, the

relevant MWA mandate is that whatever compensation scheme is agreed on, it must

result in a wage that is at least the equivalent of the minimum hourly wage rate for

all hours worked. As this court has previously recognized, the MWA "merely sets



                                          -8-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



the floor below which the agreed rate cannot fall without violating the statute."

SPEEA, 139 Wn.2d at 835 (citing RCW 49.46.020(1)).

      A comparison of the plain language of the MWA with comparable language

in the FLSA supports this view. It is well established that the MWA is based on the

FLSA. Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 868, 281

P.3d 289 (2012)("We have repeatedly recognized that the 'MWA is based on the

[FLSA]."); E>rinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 298, 996 P.2d

582 (2000)("Because the MWA is based upon the FLSA, federal authority under

the FLSA often provides helpful guidance.");Inniss v. Tandy Corp.,141 Wn.2d 517,

524,7 P.3d 807(2000)("When construing provisions ofthe[MWA],this Court may

consider interpretations of comparable provisions of the [FLSA] as persuasive

authority,"); Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 862 n.6, 93 P.3d

108 (2004)("The FLSA is persuasive authority because the MWA is based on the

FLSA."); see also Clawson v. Grays Harbor Coll. Dist. No. 2, 109 Wn. App. 379,

35 P.3d 1176 (2001), ajf'd, 148 Wn.2d 528, 61 P.3d 1130 (2003); lift v. Prof'I

NursingServs., Inc., 76 Wn. App. 577,886 P.2d 1158(1995). "At least where there

is no contrary legislative intent, when a state statute is 'taken "substantially

verbatim" from [a]federal statute, it carries the same construction as the federal law

and the same interpretation as federal case law.'" Anfinson, 174 Wn.2d at 868



                                          -9-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



(alteration in original)(quoting State v. Bobic, 140 Wn.2d 250, 264, 996 P.2d 610

(2000)(quoting State v. Carroll, 81 Wn.2d 95, 109, 500 P.2d 115 (1972))).2

       The majority contends that it is inappropriate to rely on the FLSA for guidance

in this case because the FLSA minimum wage provision contains the term

"workweek," while the MWA does not include similar language. Majority at 8-9.

In the majority's view, the MWA is therefore distinguishable from the federal

minimum wage provision "because our legislation states 'per hour,' rather than 'in

any workweek.'" Id. at 9. A closer reading of the FLSA's plain language and the

legislative history for both statutes exposes several flaws in this argument.

       First, the MWA and FLSA provisions at issue do not differ in their relevant

language. Though the forepart of the federal minimum wage provision uses the

phrase "in any workweek," the operative portion of the statute requires wages at

'^rates . . . not less than [minimum wage] an hour.'''' 29 U.S.C. § 206(a)(emphasis

added);see Douglas v. Xerox Bus. Servs., LLC,875 F.3d 884,886 n.l (9th Cir. 2017)

(noting "'in any workweek'" is part of a prefatory clause and not a measure of

minimum wage compliance). The FLSA states in relevant part:


       ^ The majority asserts that "[t]he dissent rests its analysis on the mistaken
assumption that we are bound by interpretations of the FLSA." Majority at 9 n.5. To the
contrary, at no point do I assume to be bound by the FLSA. Instead, as this court has done
many times before, I simply "consider interpretations of comparable provisions of the
[FLSA] as persuasive authority" when construing provisions of the MWA. Inniss, 141
Wn.2d at 524.


                                          -10-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



           Every employer shall pay to each of his employees who in any
      workweek is engaged in commerce or in the production of goods for
      commerce ... wages at the following rates:
           (1) Except as otherwise provided in this section, not less than—
                (A) [minimum wage] an hour.

29 U.S.C. § 206(a) (emphasis added). Similar to the MWA, which requires

employers to pay employees "wages at a rate of not less than [minimum wage]per

hour," RCW 49.46.020(1)(emphasis added), the focus of the FLSA is also on the

minimum rate ofpay. Although recognizing that"we must give effect to every word

when engaging in statutory interpretation," majority at 9 n.5, the majority

nonetheless ignores this key term—"rate"—in its plain language analysis.

      The majority's focus on the absence of the term "workweek" is further

undermined by the legislative history of both statutes. It is doubtful that our

legislature intentionally diverged from the FLSA by not including the phrase "in any

workweek." This is unlikely because the "in any workweek" language did not

appear in the FLSA until after the MWA was enacted. When the FLSA was passed

in 1938,the original version ofthe minimum wage provision read:

      (a) Every employer shall pay to each of his employees who is engaged in
          eommerce or in the produetion of goods for eommerce wages at the
           following rates—
              (1) ... not less than 25 eents an hour.




                                         -11-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



FairLaborStandards Actof 1938,Pub.L. No.75-718,§ 6(a)(1),52 Stat. 1060,1062.

The MWA was adopted in 1959 with a minimum wage provision that looked almost

identical to the original version ofthe federal minimum wage provision:

      Every employer shall pay to each of his employees wages at a rate ofnot less
      than one dollar per hour except as may be otherwise provided under this act.

Laws of 1959, ch. 294, § 2. The similarities between the 1938 federal minimum

wage provision and the MWA's 1959 minimum wage provision are undeniable.

Both provisions use the terms "wages," "rate," and "hour," without any mention of

"workweek."


      It was not until 1961, two years after the MWA was adopted, that Congress

modified the introductory phrase of the federal minimum wage provision to add a

reference to the workweek. See Act ofMay 5,1961,Pub.L.No.87-30,§ 5(a)(l)-(2),

75 Stat. 65, 67 (amending the FLSA of 1938—inserting the "in any workweek"

language). This amendment was merely clarifying. Prior to 1961, the federal

Department of Labor had consistently adhered to the workweek-averaging measure

of minimum wage compliance, which is evidenced by Department of Labor policy

statements and guidance. Dove v. Coupe, 245 U.S. App. D.C. 147, 759 F.2d 167,




                                          -12-
Carrama v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



171 (1985)(the Department of Labor "established the workweek as the measuring

rod for compliance at a very early date").^

       Notably, based on the Department ofLabor's express adoption and persistent

adherence to workweek averaging, the Ninth Circuit recently interpreted the 1961

amendment as providing "an even stronger foundation to read the minimum-wage

provision to preserve, not upset, the entrenched per-workweek measure." Douglas,

875 F.3d at 889."^ As it relates to the MWA, at the time Washington adopted the

MWA the workweek measure of minimum wage compliance was already well

established and widely accepted.

       In sum, the plain language of the MWA does not impose a per-hour right to

minimum wage compensation, nor does it prohibit the per-workweek measure of


       ^ For example, in 1940, just over a year and a half after FLSA was passed, the
Department ofLabor issued a policy statement providing that "[f]or enforcement purposes,
the Wage and Hour Division is at present adopting the workweek as the standard period of
time over which wages may be averaged to determine whether the employer has paid the
equivalent of[the minimum wage]." The Bureau OF Nat'l Affairs, Inc., Wage and
Hour Manual 185 (1942).
          The plaintiffs in Douglas made the same argument about the FLSA that the
plaintiffs (and the majority) make here about the MWA. They argued that the FLSA
measures minimum wage compliance on an hour-by-hour basis and does not allow
averaging because "FLSA's plain language 'speaks only of an hourly wage'" and "[t]he
'statute's text is explicit that, with respect to the minimum wage,the only metric Congress
envisioned was the hour, with each hour having its own discrete importance.'" Appellant's
Opening Br., Douglas v. Xerox Bus. Servs., LLC, No. 16-35425, at 23 (9th Cir. Sept. 28,
2016)(quoting Norceide v. Cambridge Health All, 814 F. Supp. 2d 17, 23 (D. Mass.
2011)). The Ninth Circuit correctly rejected this view, though in doing so it did not find
the "workweek" language in the prefatory clause to be significant. Douglas, 875 F.3d at
886-87 &n.l.



                                           -13-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



minimum wage compliance, as the majority holds. To the contrary, like the FLSA

on which it was modeled, the MWA requires employers to pay employees the

equivalent ofthe minimum wage rate for every hour worked. While the MWA does

not expressly address the issue of whether separate pay is required for piece rate

down time and similar work,it contemplates a single minimum wage calculation for

all piece-rate work. The MWA neither distinguishes between different categories of

work activities nor mandates separate compensation. Quite simply, the act requires

employers to compensate employees a rate of not less than the minimum wage and

to pay employees for each hour worked.^




       ^ The first certified question presents a narrow issue—^whether the MWA allows
piece-rate pay to subsume nonproduction work time. At times, the briefing goes beyond
this question. For example, the workers allege that Dovex's compensation plan enables
employers to "require an employee to perform five hours of piece-rate work and 35 hours
of other work activities in a week and refuse to pay the employee for the 35 hours of non-
piece-rate work so long as the employee receives at least minimum wage" under the
workweek averaging calculation. Pis.' Opening Br. on Certified Questions at 31. Whether
Dovex willfully deprived the workers of a meaningful opportunity to cam their piece-rate
pay is an important, but separate, issue that is not before us. If Dovex did in fact deprive
the workers of any part of their wages, Dovex admits that the workers would have claims
under the wage rebate act, RCW 49.52.050, and also potentially breach of contract claims.
Def.'s Answering Br. at 20. Notably, the workers have asserted wage rebate act claims
elsewhere in the litigation. Compl. at 15-16.

                                           -14-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



      C. DLI Has Consistently Interpreted the MWA as Allowing Workweek
         Averaging for Pieceworkers, and Courts Should Defer to the Agency's
         Interpretation

      While the proper interpretation ofthe MWA in this case begins and ends with

the statute's plain language, it should give us pause that the majority's interpretation

is at odds with the long-standing view ofthe agency charged with administering the

MWA. DLI has consistently interpreted RCW 49.46.020(1)to allow for workweek

averaging to determine minimum wage compliance under piece-rate compensation

plans. The majority swiftly dismisses DLLs interpretation as nonbinding and

undeserving of any deference because '"[tjhis court has the ultimate authority to

interpret a statute.'" Majority at 14-15 (alteration in original)(quoting Bostain v.

Food Express, Inc., 159 Wn.2d 700, 716, 153 P.3d 846 (2007)). However, under

Washington law, deference is owed to an agency's interpretation of a state statute

"ifthe law being interpreted is within [that] agency's expertise." Budget Rent A Car

Corp. V. Dep't ofLicensing, 144 Wn.2d 889, 901,31 P.3d 1174(2001).

      DLI regulations and policies recognize that the MWA allows for workweek

averaging under piece-rate compensation plans. See, e.g., WAC 296-129-021; WAC

296-131-117(1).^ Administrative policy ES.A.3 describes the standards DLI uses to


      ^ The majority correctly notes that the specific regulation addressing workweek
averaging for pieceworkers appears in a chapter of the administrative code that does not
apply to agricultural workers. See WAC 296-126-021; majority at 13-14. The later-added


                                         -15-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



determine whether an employee has been paid the statutory minimum hourly wage

when compensated on a nonhourly basis, as in piece-rate work. Administrative

Policy ES.A.3 (revised July 15, 2014), http;//www.lni.wa.gov/WorkplaceRights/

files/policies/esaS.pdf[https://perma.cc/3JKA-GLQJ]. The following section ofthe

policy is persuasive as to DLLs approval of weekly averaging as a measure of

minimum wage compliance for pieceworkers:

       For employees paid on commission or piecework basis, wholly or in part...
       the commission or piecework eamings earned in each workweek are credited
       toward the total wage for the pay period. The total wage for that period is
       determined by dividing the total eamings by the total hours worked;the result
       must be at least the applicable minimum wage for each hour worked. See
       WAC 296-126-021.


Id. at 2.


       Additionally, following this court's decision in Lopez Demetrio,DLI issued a

revised administrative policy on meal and rest periods for agricultural workers.

Administrative Policy ES.C.6.2 (revised Aug. 11, 2016), http://www.hii.wa.gov/



chapter that pertains to agricultural employment, ch. 296-131 WAC,contains no specific
workweek averaging provision. However, a provision identical to WAC 296-126-021 is
contained in the chapter applicable to minor workers, including agricultural workers. See
WAC 296-131-117(1). The majority makes no attempt to explain why DLI would interpret
RCW 49.46.020 differently for adult and minor agricultural workers, stating simply,"The
certified questions do not concem minor agricultural workers." Id. at 14 n.5. I believe,
however, that the omission of adult agricultural workers from the otherwise universal mle
ofworkweek averaging under RCW 49.46.020 does not reflect a conscious policy decision.
I say this because, as discussed in the main text, DLI has consistently included adult
agricultural workers in its published policies explaining the workweek averaging
regulation, WAC 296-126-021.


                                           -16-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



WorkplaceRights/files/policies/esc62.pdf [https://perma.cc/AKX8-RP5F].                 This

policy explains how employers should calculate a worker's "regular rate of pay" in

order to compute the amount owed for rest periods: "This is done by dividing the

total compensation earned in a workweek by the total active hours of work(the "total

active hours of work" does not include the break time). The result is the regular rate

of pay for the week." Id. at 2. The policy gives some examples of how employers

should calculate the rate of pay to ensure it is equal to or greater than the minimum

wage:


      First, add up the worker's total piece-rate earnings for the workweek. Even
      ifthe worker earns different piece rates during the workweek, total all piece-
      rate earnings for the week. Next, divide those earnings by the worker's active
      hours of work (exclude rest period time). This amount is the worker's
      "regular rate" of pay.

Id. This new policy is just one more piece of evidence confirming that workweek

averaging is firmly established as a method for determining minimum wage

compliance for pieceworkers under the MWA.^ The majority's novel view that the

MWA requires hourly compensation for pieceworkers' is out of step with long

standing agency interpretation of the law.




      ^ As explained below, this new policy also confirms that our decision in Lopez
Demetrio provides no support for the majority's "per hour" interpretation of the MWA.

                                          -17-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



      D. The Majority's "per Hour"Interpretation ofthe MWA Finds No Support
          in Case Law Interpreting the Statute

      The majority relies on "precedent from comparable situations" to support its

holding that the MWA provides a right to hour-by-hour compensation for piece rate

down time and similar work. Majority at 9-11 (discussing Stevens v. Brink's Home

Securities, Inc., 162 Wn.2d 42, 47, 169 P.3d 473 (2007); SPEEA, 139 Wn.2d 824;

and Alvarez v. IBP, Inc., 339 F.3d 894, 898 (9th Cir. 2003)). These cases are not at

all comparable to the present case, as they involved workers who were contractually

required to donate time to their employers.

      In each ofthe cited cases,the employer contractually refused to pay any wage

for certain required work activities. See Stevens, 162 Wn.2d at 47-50 (employer

violated MWA by refusing to compensate technicians for time spent driving

company vehicle to first jobsite and back home from last jobsite); SPEEA, 139

Wn.2d at 827, 835 n.6, 838 (employer violated MWA by refusing to compensate

employees for time spent attending preemployment orientation sessions); Alvarez,

339 F.3d at 913-14 (employer violated MWA by refusing to compensate factory

workers for time spent donning and doffing protective work gear). Here,in contrast,

Dovex records each employee's daily work time and the applicable piece rate, and

its compensation system guarantees that employees receive at least the minimum




                                          -18-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



wage for every hour worked in a week. This is not a case about unpaid workers or

unpaid time. Thus,Stevens,SPEEA, and Alvarez are factually inapposite.

      The second flaw in the majority's case law analysis is more nuanced. While

the majority says Alvarez "specifically rejected using workweek averaging to

measure compliance with the MWA," majority at 11, the reasoning in that case in

fact undermines the majority's position. In Alvarez, the Ninth Circuit considered

whether the MWA required an employer to compensate hourly employees for the

time it took them to change into required specialized protective clothing and safety

gear. While the Alvarez court concluded that employees retain a right to be paid

minimum wage for every hour worked under Washington law, it adopted the "per-

hour" measure of minimum wage compliance only for one particular employment

category—hourly employees. See, e.g., Alvarez,339 F.3d at 912("Washington state

courts have yet to determine whether hourly-employees, like plaintiffs, have a per-

hour or a work-week right to minimum wage."(emphasis added)), 913(holding that

"the Washington Supreme Court would construe the WMWA as using a per-hour

standard for hourly employees'"(emphasis added)).

      Significantly, in reasoning that hourly employees retain a per-hour right to

minimum wage under the MWA, the Alvarez court found it important that DLI

regulations "permit use of the work-week measure only for particular employment



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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



categories," including pieceworkers. Id. at 912-13 (citing, inter alia, WAC 296-126-

021, expressly allowing for workweek averaging for pieceworkers). The court aptly

observed, "Were the Washington legislature disposed to apply the workweek

measure to hourly employees, it could have done so as expressly as it did vis-a-vis

other employment types." Id. Thus, unless we entertain the majority's fiction that

pieceworkers are actually hourly workers when engaged in activities outside of

piece-rate picking work, Alvarez undermines rather than supports the majority's

position.

      The last case the majority leans on is LopezDemetrio,quoting our observation

that "'[i]f the picker is not picking . . . , the picker is not earning money.'" 183

Wn.2d at 653(second alteration in original); see majority at 12. The majority reads

this statement of a simple truth as signaling our rejection of workweek averaging

under the MWA. But, a closer look at the analysis in Lopez Demetrio reveals why

this reading is wrong. The court in Lopez Demetrio fully recognized that one reason

the workers in that case were left to "finance their own rest breaks" was because the


MWA allows for piece-rate compensation to be measured on a workweek basis.

Lopez Demetrio, 183 Wn.2d at 653. Thus, when the employer in Lopez Demetrio

divided the employees' piece-rate earnings by their total hours worked, rest breaks




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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



were left uncompensated by the employer. Id. This violated the clear mandate of

WAC 296-131-020(2)that rest breaks must be paid "on the employer's time."

      The court in Lopez Demetrio made clear that "a pieceworker's right to

separate pay for rest breaks springs notfrom the MWA but rather from WAC 296-

131-020(2)'s mandate that rest breaks be paid 'on the employer's time.'" Id. at 661

(emphasis added). While the first certified question in Lopez Demetrio asked

whether separate pay was required "under WAC 296-131-020(2) and/or the

[MWA]," we answered the question based solely on the regulation, not the MWA.

Id. at 654. In fact, our analysis of the separate compensation issue contained not a

single reference to the MWA. It was WAC 296-131-020, not the MWA, that

mandated separate compensation for the "periods of inactivity," i.e., the rest breaks

at issue in that case. Id. at 652, 656. Here, the workers rely solely on RCW

49.46.020 of the MWA as the statutory anchor for their claim. There is no

comparable regulation. As we explained in Lopez Demetrio, the MWA itself does

not prohibit workweek averaging or impose a requirement of hourly compensation

for nonproduction time in a piece-rate compensation system.

      While the piece-rate compensation plans at issue in Lopez Demetrio and this

case may be similar, rest breaks are simply not analogous to "activities outside of

piece-rate picking work (e.g., 'Piece Rate Down Time' and similar work)." Order



                                          -21-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



Certifying Question at 2. Unlike the nonpicking work tasks at issue in this case (e.g.,

traveling between orchards, waiting for weather to clear, transporting ladders to or

from a company trailer, attending work meetings), the rest break requirement in

WAG 296-131-020 refers to periods of inactivity during which no work can be

performed. Accordingly, when we used the phrase "periods of inactivity" in Lopez

Demetrio, we were referring to mandated periods of what might better be described

as nonwork—^time spent sitting, cooling down, rehydrating, and physically

recuperating from picking activities. 183 Wn.2d at 652,656(distinguishing between

the two periods of separately compensable time—^working or resting—^we used the

phrasing,"the piece rate is earned only while the employee is working (i.e., no pay

accrues during rest breaks)"). This category ofnonwork is "critical to the health and

effectiveness of employees, especially those working long hours outside." Id. at

658. We recognized that folding rest breaks into piece-rate compensation would

"incentivize missed rest breaks at the expense ofthe employee's health." Id. at 659.

The policies at issue in Lopez Demetrio, specifically addressed in WAG 296-131-

020, are not at issue in the certified questions in this case.

      Our answer to the second certified question in Lopez Demetrio confirms that

workweek averaging of piece-rate earnings does not violate the MWA. Having

decided in Lopez Demetrio that rest breaks must be paid "on the employer's time"



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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



under the specific regulation, our further task was to determine the proper rate ofpay

required for the break periods. Id. at 659-60. Without expressly using the term, we

described workweek averaging as an acceptable measure ofcompliance. Id. at 660-

61 (calculating a pieceworker's "defacto hourly rate" as "the quotient of an

employee's piece rate earnings by the number of hours he or she worked"). We

provided a detailed example to demonstrate the averaging minimum wage

calculation in practice, casting away any remaining doubt as to whether workweek

averaging is appropriate for agricultural pieceworkers:

      Suppose an employee is paid 50 cents per pound of fruit picked (the piece
      rate). The employee works 5 8-hour days and takes 20 minutes ofrest breaks
      each day, as provided by WAC 296-131-020(2). The employee has spent
      38.6 hours producing and 1.4 hours on breaks, for 40 hours oftotal work. If
      the employee produces 750 pounds of fruit, he or she eams $375.00 that
      week.


Id. at 661 n.3. In order to ensure rest breaks are paid "on the employer's time," as

required by WAC 296-131-020 (but not the MWA itself), we directed that the total

earnings in this example($375)must be divided by all hours worked, with only time

spent resting excluded (38.6 hours). Id. at 662 & n.4. In our example, we did not

instruct employers to separately track work activities outside of piece-rate picking

work, such as moving ladders or waiting for work materials. Nor did we require

employers to provide separate compensation for those nonpicking activities, because

they are not like rest breaks. Instead, as the majority must concede, our decision in



                                         -23-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



Lopez Demetrio allowed for workweek averaging as an acceptable method of

calculating a pieceworker's rate of pay. See majority at 12.^

      In sum, the majority finds no support in our precedent for its ambitious

reimagining of the MWA as a guarantor of "per hour" compensation.                 The

recognition in Stevens,SPEEA,and Alvarez that hourly workers must be paid for all

hours worked does not undercut the long-standing practice of allowing workweek

averaging to determine minimum wage compliance for pieceworkers. Nor does the

holding in Lopez Demetrio—^that a specific regulation required rest breaks to be paid

separately from hours worked—support the majority's view that RCW 49.46.020

disallows workweek averaging to determine minimum wage compliance.

      At the end of the day, the majority has simply rewritten the MWA. It has

abruptly departed from prior precedent aligning the MWA with its federal

counterpart, the FLSA.       And, it has rejected out of hand the long-standing

interpretation of the MWA by the agency charged with enforcing it.                The

consequences of today's holding extend far beyond this case. The statute the

majority has rewritten, RCW 49.46.020, broadly applies to all nonhourly employees



      ^ As noted above, DLI subsequently read our decision in Lopez Demetrio this same
way and issued a revised administrative policy that specifically instructs agricultural
employers to calculate piece-rate workers' wages using workweek averaging (excluding
rest breaks) in order to determine if the rate of pay complies with the minimum wage.
Administrative Policy ES.C.6.2, at 2;supra note 5.

                                         -24-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



covered under the MWA,including nonagricultural pieceworkers and commission-

based employees.        Reading it to require hour-by-hour compensation for

nonproduction time will seriously undermine the piece-rate payment system as a

viable compensation plan in many settings.

II.   The Majority's "per Hour" Interpretation of the MWA Radically Changes
      Washington Law and Undermines Piece-Rate Compensation Plans

      Do not believe the majority's promise that today's decision is a narrow

holding. The majority claims to be interpreting the MWA only in the limited context

of adult agricultural pieceworkers. Majority at 13-14. However, the majority's

holding that the MWA provides employees a right to minimum wage compensation

for each individual hour of work is based on its reading of RCW 49.46.020, which

applies equally to nonagricultural pieceworkers and commission-based employees.

Majority at 9("the MWA's plain language requires us to conclude that employees

have a per hour right to minimum wage").

      The practical effect of the majority's holding is to accept the plaintiffs' plea

to transform the MWA into California minimum wage law, despite the fact that

federal courts have recently rejected arguments to do so. See Helde v. Knight

Transp., Inc., No. C12-0904RSL, 2016 WL 1687961, *2 (W.D. Wash. Apr. 26,

2016)(holding that "Plaintiffs' underlying assumption is faulty: the MWA does not

require payment on an hourly basis"); Mendis v. Schneider Nat'I Carriers Inc., No.


                                         -25-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



C15-0144-JCC, 2016 WL 6650992, *3 (W.D. Wash. Nov. 10, 2016)("This Court

reiterates ... that 'Plaintiffs' underlying assumption is faulty'"(quoting T/e/Je, WL

1687961, at *2)); Hill v. Xerox Bus. Servs. LLC, 868 F.3d 758, 761 (9th Cir. 2017)

("Piecework employees ... are entitled to a minimum wage based on a work-week

period.").^ The majority ushers in its transformation silently, without a single

reference to the California Labor Code or California case law. Yet the appeal to

California law appears consistently throughout the briefing and was mentioned

several times at oral argument. The plaintiffs argue that "California's minimum

wage law has language that is essentially the same as the MWA's language" and

thus "case law from California on the issue of minimum wage compliance is

persuasive." Pis.' Opening Br. on Certified Questions at 23. At oral argument, when

plaintiffs' counsel was asked to clarify whether he was asking the court to interpret

our minimum wage act to mirror the California statute and require hourly

compensation to the exclusion of workweek averaging, plaintiffs' counsel

responded:



       ^ Notably, in Hill v. Xerox Business Services, LLC, currently before this court on
certified questions from a class action filed in federal court, plaintiffs make the exact same
per-hour argument raised here on behalf of agricultural workers, but there in the context of
nonagricultural pieceworkers. Appellee's (Hill) Answering Br., Hill v. Xerox Bus. Servs.,
LLC, No. 94860-7, at 27 (Wash. Nov. 6, 2017) ("when pieceworkers are required to
perform non-production work during which they cannot earn piece rates—as the call center
workers here have—they are entitled to be paid for each hour of that work time at the
minimum wage or higher").


                                            -26-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



      That's right. . . . And so in California there is a series of cases under a
      minimum wage law with similar language to our minimum wage law and the
      courts have consistently found that you have to separately pay for this work
      time—^work time during which employees are unable to earn a piece rate
      because they're required to do other things.

Wash. Supreme Court oral argument, Carranza v. Dovex Fruit Co., No. 94229-3

(September 14, 2017), at 8 min., 18 sec. through 9 min., 32 sec., video recording by

TVW, Washington State's Public Affairs Network, https://www.tvw.org; see also

id. at 10 min., 31 sec. through 10 min., 48 sec. (plaintiffs' counsel stating that the

MWA contains language "that is much more like California's language which says

you have to pay per hour for all hours worked"). While the majority is careful not

to directly cite or rely on California law, its interpretation of the MWA fully

embraces the plaintiffs' analogy. Majority at 16.

      This attempt to equate the Washington MWA with California's Labor Code

and related case law is untenable. First, contrary to the plaintiffs' argument, the

language of California's minimum wage is not "essentially the same as the MWA's

language." Pis.' Opening Br. on Certified Questions at 23. A California wage order

states that "[ejvery employer shall pay to each employee wages not less than

[minimum wage] per hourfor all hours worked."" Cal. Indus. Welfare Comm'n,

Order 14-2001 § 4(A)(revised July 2014)(Regulating Wages, Hours and Working

Conditions in the Agricultural Occupations) (emphasis added), http://www.dir.

ca.gov/iwc/iwcarticlel4.pdf [https://perma.cc/BRK5-LGH2]. Unlike the MWA's


                                         -27-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



minimum wage provision(or the FLSA,on which the MWA was modeled),the word

"rate" does not appear anywhere in the California statute. Instead, the California

law requires payment of a minimum wage, not a wage rate, per hour "for all hours

worked." California courts have interpreted the "for all hours worked" language as

entitling employees to an hourly minimum wage for each hour worked, therefore

prohibiting workweek averaging as a measure of minimum wage compliance. See

Armenia v. Osmose, Inc., 135 Cal. App. 4th 314, 323, 37 Cal. Rptr. 3d 460(2005)

(holding that "for all hours worked" language "expresses the intent to ensure that

employees be compensated at the minimum wage for each hour worked"); Gonzalez

V. Downtown LA Motors, LP, 215 Cal. App. 4th 36, 155 Cal. Rptr. 3d 18 (2013)

(extending the Armenia decision to piece-rate workers).

      Furthermore, whereas the MWA is expressly based on the FLSA, California

courts have consistently held that "the minimum wage provisions ofthe FLSA differ

significantly fi-om California's minimum wage law." Armenia, 135 Cal. App.4th at

323. Whereas the FLSA permits workweek averaging as an acceptable measure of

minimum wage compliance, California courts have interpreted the "for all hours

worked" language in the California wage order as ensuring minimum wage

compensation for each hour worked. Id. And, under California law, workweek

averaging is impermissible for all types of nonhourly employment, including



                                          -28-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



nonagricultural piecework and commission-based employment in addition to

agricultural piecework.

      Finally, it is worth noting that California courts have interpreted the different

language of that state's minimum wage law in a way that is consistent with its

enforcing agency's view of the statute—something today's majority refuses to do.

Several years before the first California court even considered the issue of workweek

averaging, California's Division ofLabor Standards Enforcement(DLSE)issued an

opinion letter expressly requiring payment ofthe minimum wage for"each and every

separate hour worked." Letter from Aime Stevason, Acting ChiefCounsel ofDLSE,

to William J. Flynn & Susan Itelson 10 (Jan. 29, 2002), https://www.

dir.ca.gov/dlse/opinions/2002-0l-29.pdf [https://perma.cc/STE3-CCHB].           In its

opinion letter, the DLSE acknowledged that the minimum wage law was susceptible

to two divergent interpretations—^the obligation to pay minimum wage either

"attaches to each and every separate hour worked" or extends to "the total number

of hours worked in the pay period," without consideration of any hour in isolation.

Id. The DLSE endorsed the former interpretation and expressly rejected the

averaging formula for all employment types, separating California's minimum wage

act from the FLSA.




                                          -29-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



      As noted, Washington's DLI has read our different statutory language

differently and has consistently endorsed the use of workweek averaging for all

nonhourly employees, as evidenced by DLI's regulations, administrative policies,

and guidance. In contrast to the DLSE's explicit rejection of workweek averaging

under California law, DLI has steadily assured Washington employers and

employees that workweek averaging is acceptable under the MWA. That the DLSE

and our DLI would take opposite positions as to workweek averaging makes perfect

sense given our distinguishable statutory frameworks.             Whereas California's

minimum wage law establishes a minimum wage per hour "for all hours worked,"

Washington's MWA,like the FESA, establishes a minimum rate of pay per hour,

permitting the relative value of an employee's wage to be measured per hour (i.e.,

weekly earnings divided by hours worked). This entire history of different statutory

language and different agency interpretations is absent from the majority opinion,

which ushers in a radical change in the MWA with very little analysis.

      The majority's reinterpretation of RCW 49.46.020 charts an entirely new

direction for minimum wage compliance in Washington. Everyone, including DLI,

will have to revise years of policy and practice, and the legislature will have to

further consider whether statutory provisions that interact with RCW 49.46.020 need

to be amended. See, e.g., RCW 49.46.130(1)(requiring payment of overtime at one



                                          -30-
Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)



and one-half times the employee's "regular rate"); WAC 296-128-550 (allowing

overtime pay based on either the piecework rate during the overtime period or the

"regular rate of pay" determined by workweek averaging). All of this is so

unnecessary because the MWA does not require it. Washington's minimum wage

law fully allows for piece-rate compensation schemes that rely on workweek

averaging, so long as pieceworkers are paid at least the minimum wage rate for every

hour worked.


                                   CONCLUSION


      Piece-rate compensation plans are wholly consistent with the MWA, and

piece-rate pay may subsume both production and nonproduction time for agricultural

workers. Nothing in the text, purpose, or history of the MWA requires employers

to pay a separate "per hour" wage for the time employees spend on "Piece Rate

Down Time and similar activities." I would answer no to the first certified question

and, therefore, not address the second question.




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Carranza v. Dovex Fruit Co., 94229-3 (Stephens, J., dissenting)




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