     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STEPHEN MYNATT and ANITA                                                          C__
                                                                                  cr
ELAINE MYNATT, on their own behalf              No. 71060-5-1                     i—

And on behalf of all others similarly
situated,                                                                               -•-""-opi
                                                                                  35»
                     Appellants/Cross-
                     Respondents,
                                                                                  CO
                                                                                  vo
                                                DIVISION ONE                            "~^Z



GORDON TRUCKING, INC., a                        UNPUBLISHED OPINION
Washington corporation,

                    Respondent/Cross-
                    Appellant.           )      FILED: July 14, 2014

      Spearman, C.J. — The issue in this appeal is whether a trucking

company's pay plan included pay for interstate drivers that is "reasonably

equivalent" to overtime, as required by RCW 49.46.130(2)(f). Stephen and Anita

Mynatt, a married couple, are team long-haul truck drivers employed by Gordon
                                                                                        S0;TA E :OFourt
Trucking, Inc. (GTI). The Mynatts brought claims against GTI for failure to pay

overtime and three other claims predicated on the overtime claims. While the

lawsuit was pending, the Washington Department of Labor and Industries (L&l)

issued a determination letter that the Mynatts' pay plan included the reasonable
No. 71060-5-1/2


equivalent to overtime. The trial court dismissed the Mynatts' claims on summary

judgment. We affirm.

                                           FACTS


       GTI is a motor carrier headquartered in Pacific, Washington. The Mynatts

have been employed by GTI as Washington-based team long-haul drivers since

2004 and are dispatched out of its Pacific terminal. The Mynatts are subject to

the Federal Motor Carrier Act, 49 U.S.C. § 3101.

       Since 1989, Washington state has authorized motor carriers to

compensate drivers with pay that is "reasonably equivalent" to overtime (REOT)

through non-hourly, piece-rate compensation plans. WAC 296-128-012 (1989);
see also Westberrv v. Interstate Distrib. Co., 164 Wn. App. 196, 200, 263 P.3d

1251 (2011). Prior to 2007, L&l interpreted Washington's overtime laws as

applying only to drivers' work performed within the state, id.; former WAC 296-
128-011 (1989). Accordingly, GTI's understanding before 2007 was that it was

not required to pay overtime for out-of-state work, and it told the Mynatts after
they were hired that they would not receive overtime pay as long-haul, interstate
drivers.1 The Mynatts were paid under GTI's PLUSS plan, a mileage-based plan
that pays a certain number of cents per dispatched mile associated with each
load. Clerk's Papers (CP) at 144. The miles are computer-generated and reflect
"practical miles" from city center to city center, not odometer miles. CP at 64. The


       1The terms "long haul drivers" and "interstate drivers" are used interchangeably by the
parties and aredistinguished from "intrastate drivers" that are compensated under a mileage-
based pay plan and "local drivers" that are compensated hourly.
No. 71060-5-1/3


PLUSS plan also pays flat-rate "accessorial pay" for certain non-driving activities

(e.g., loading and unloading). CP at 147, 165, 1309. For short hauls (less than

125 miles), the PLUSS plan pays mileage pay plus an additional $10 to $30.

       In March 2007, the Washington Supreme Court held that RCW

49.46.130(1) requires that Washington-based drivers receive overtime pay for all

hours worked over 40 per week, whether those hours are performed in or out of

the state. Bostain v. Food Express, Inc., 159 Wn.2d 700, 710-21, 153 P.3d 846

(2007). L&l amended its regulations to comport with Bostain. Westberrv, 164 Wn.
App. at 201. With respect to pay plans in place before March 1, 2007, L&l gave
employers of drivers who worked over 40 hours a week, consisting of both in
state and out-of-state hours, the opportunity to request formal determinations of

whether the plans included "overtime that was at least reasonably equivalent to

that required by RCW 49.46.130." WAC 296-128-012(3).
        On January 16, 2009, GTI submitted to L&l a request for a determination
that the PLUSS plan satisfied the REOT requirement under RCW 49.46.130.2
GTI followed L&l's Administrative Policy ES.A.8.3 (10/24/08), submitting

estimates of hours worked, compensation, miles driven, and average speed

information for 30 randomly selected drivers (including both of the Mynatts) over

a 26-week period. GTI wrote to L&l:

        Gordon Trucking pays its [long] haul drivers an alternative
        mileage based pay on a weekly basis. Notice to drivers of this
        pay policy is attached hereto as Exhibit A — Reasonably


        2GTI also submitted five other pay plans for approval. Only the PLUSS plan is at issue in
this appeal.
 No. 71060-5-1/4


        Equivalent Pay Policy, which was mailed to drivers and
        published internally. The effective date was January 1, 1998.

CP at 147. Exhibit A, the Reasonably Equivalent Pay Policy (REP Policy), is titled

"Description of Driver Compensation for work performed within the State of

Washington," with an effective date of January 1, 1998. It states:

        Mileage Runs:

        Drivers working mileage runs receive mileage pay at their
        applicable mileage pay rate, plus accessorial pay (i.e. loading,
        unloading, making doubles or breaking doubles), if applicable. The
        combination of mileage pay and accessorial pay rates include a
        20% factor for anticipated overtime up to a workweek of 65 hours.
        As a result, drivers are paid the reasonable equivalent of overtime,
        which is already figured into the rate from the first hour worked.

 CPat152.

        The Mynatts filed suit against GTI on June 2, 2010, alleging, in pertinent

 part, claims for (1) failure to pay overtime; (2) failure to pay all wages due; (3)

 willful failure to pay all wages due; and (4) violations of Washington's Consumer

 Protection Act (the three last claims are the "predicate claims"). They sought

 recovery for the period March 30, 2007 through the date of trial.

        On December 16, 2010, L&l issued a determination that the PLUSS plan

 paid REOT under RCW 49.46.130(2)(f) dating back to July 1, 2005. On January

 13, 2012, GTI moved for summary judgment on the Mynatts' overtime and

 predicate claims. The trial court denied the motion. The Mynatts then moved for
 summary judgment on their overtime claims and GTI moved for reconsideration

 of the court's denial of GTI's motion for summary judgment. On April 16, 2012,

 the trial court entered an order granting GTI's motion for reconsideration and
No. 71060-5-1/5


GTI's motion for summary judgment, and denying the Mynatt's cross-motion for

summary judgment. The Mynatts appeal.3

                                         DISCUSSION

       This court reviews summary judgment de novo, engaging in the same

inquiry as the trial court. Hiqhline Sch. Dist. No. 401. King County v. Port of

Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976). Summary judgment is proper

only if there is no genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. Bostain, 159 Wn.2d at 850. Facts and

reasonable inferences therefrom are viewed most favorably to the nonmoving

party. Id. Summary judgment is proper if reasonable minds could reach but one

conclusion from the evidence presented, id,

        L&l "has the authority to supervise, administer, and enforce all laws

pertaining to employment, including wage and hour laws." Schneider v. Snyder's

Foods. Inc., 116 Wn. App. 706, 717, 66 P.3d 640 (2003) (citing RCW 43.22.270).

Where L&l determines that a compensation plan contains REOT, courts give due

deference to its specialized knowledge and expertise, unless its actions are

"arbitrary, capricious, and contrary to law." id. at 716. An agency action is



        3On April 2, 2012, GTI moved to strike the Mynatts' expert's report, which they had
submitted in support of theiropposition to GTI's motion for summary judgment. The Mynatts had
engaged William Brandt, a forensic economist and accountant, to estimate the amount of unpaid
overtime to which they were entitled. The trial court denied GTI's motion on April 16. GTI cross-
appeals the denial of its motion to strike, but given our disposition ofthis appeal we do not reach
the issue presented in its cross-appeal. GTI does not seek affirmative relief on cross-appeal.
Rather, its cross-appeal presents an alternative ground for affirming. GTI argues that Brandt's
expert testimony was the only evidence on which they relied to establish the elements of their
overtime claims and that such evidence was inadmissible; thus, their claims failed even if L&l's
finding was arbitrary and capricious.
No. 71060-5-1/6


arbitrary and capricious if it is "'willful and unreasoning, and taken without regard

to the attending facts or circumstances.'" id. (quoting ITT Ravonier, Inc. v.

Dalman, 122 Wn.2d 801, 809, 863 P.2d 64 (1993)). "Where there is room for two

opinions, action is not arbitrary and capricious even though one may believe an

erroneous conclusion has been reached." id. at 717 (internal quotation marks

and citation omitted). An agency's interpretation will be upheld if it is a "plausible

construction of the statute or rule" at issue, id. at 716 (citing Seatoma

Convalescent Ctr. v. Dep't of Soc. & Health Servs.. 82 Wn. App. 495, 518, 919

P.2d 602 (1996)). Courts, however, have the ultimate authority to interpret a

statute, and no deference is due to an agency's interpretation if it conflicts with a

statutory mandate. Bostain. 159 Wn.2d at 716-17.

       The statute at issue in this case is RCW 49.46.130, which provides, in

relevant part:

          (1) Except as otherwise provided in this section, no employer
       shall employ any of his or her employees for a work week longer
       than forty hours unless such employee receives compensation for
       his or her employment in excess of the hours above specified at a
       rate not less than one and one-half times the regular rate at which
       he or she is employed.
           (2) This section does not apply to:

           (f) An individual employed as a truck or bus driver who is
           subject to the provisions of the Federal Motor CarrierAct (49
           U.S.C. Sec. 3101 et seq. and 49 U.S.C. Sec. 10101 et seq.), jf
           the compensation system under which the truck or bus driver is
           paid includes overtime pay, reasonably equivalent to that
           required bv this subsection, for working longer than forty hours
           per weekf.l
No. 71060-5-1/7


(Emphasis added.) L&l promulgated rules to implement RCW 49.46.130 — in

pertinent part, WAC 296-128-011 and WAC 296-128-012. The latter states that,

to meet the "reasonably equivalent" requirement of RCW 49.46.130(2)(f),

       ... an employer may, with notice to a truck or bus driver subject to
       the provisions of the Federal Motor Carrier Act, establish a rate of
       pay that is not on an hourly basis and that includes in the rate of
       pay compensation for overtime. An employer shall substantiate any
       deviation from payment on an hourly basis to the satisfaction of the
       department by using the following formula or an alternative formula
       that, at a minimum, compensates hours worked in excess of forty
       hours per week at an overtime rate of pay and distributes the
        projected overtime pay over the average number of hours projected
        to be worked.

WAC 296-128-012(1)(a). The rule sets forth a recommended formula "for

establishing a uniform rate of pay to compensate work that is not paid on an

hourly basis and for which compensation for overtime is included."4 WAC 296-

128-012(1 )(b) provides,

           In using a formula to determine a rate of pay, the average
        number of hours projected to be worked and the average number of
        work units accomplished per week shall reflect the actual number of
        hours worked and work units projected to be accomplished by
        persons performing the same type of work over a representative
        time period within the past two years consisting of at least twenty-
        six consecutive weeks.

        4 The formula first requires a defined work unit (e.g., miles), then takes the average
number of work units accomplished per week and divides it by the average number of hours
projected to be worked perweek, resulting in a figure that is the average number ofwork units
accomplished in an hour. The "weekly base rate" is the number of units per hour, multiplied by 40
(hours), multiplied by the "base rate of pay." The "weekly overtime rate" is the number of units per
hour multiplied by the number of hours over 40, multiplied bythe "overtime rate of pay." The "total
weekly pay" is the weekly base rate plus the weekly overtime rate. Finally, to determine the
"uniform rate of pay" (that is, the rate for which compensation for overtime is included), the total
weekly pay is divided by the total weekly work units.
       WAC 296-128-012 provides an example of a uniform mileage rate, in which a driver
working 45 hours per week receives a composite rate of 21.1 cents per mile, of which 20 cents
per mile (the "base rate") is meantto compensate the driver for 40 and under hours worked in a
week and the remaining 1.1 cents per mile is allocated to compensate the driver for hours worked
over 40 spread across all hours worked.
No. 71060-5-1/8


      Under the "special recordkeeping requirements" provision of WAC 296-

128-011,

      (1). . . employers who employ individuals as truck or bus
      drivers subject to the provisions of the Federal Motor Carrier
      Act shall maintain records indicating the base rate of pay, the
      overtime rate of pay, the hours worked by each employee for
      each type of work, and the formulas and projected work hours
      used to substantiate any deviation from payment on an hourly
      basis pursuant to WAC 296-128-012. The records shall
      indicate the period of time for which the base rate of pay and
      the overtime rate of pay are in effect.

         For the purposes of this section and WAC 296-128-012,
      "base rate of pay" means the amount of compensation paid per
      hour or per unit of work in a workweek of forty hours or less. A
      base rate of pay shall be established in advance of the work
      performed and may be based on hours or work units such as
      mileage, performance of specified duties, or a specified
      percentage of the gross proceeds charged for specified work. A
      base rate of pay shall not be established that will result in
      compensation at less than the minimum wage prescribed in
      RCW 49.46.020. "Overtime rate of pay" means the amount of
      compensation paid for hours worked in excess of forty hours
      per week and shall be at least one and one-half times the base
      rate of pay.

         (2) The records required by this section shall be made
      available by the employer at the request of the department.
      Any current or past employee may obtain copies of the formula,
      the base rate of pay, the overtime rate of pay, and that
      employee's records. Job applicants seeking employment by the
      employer as truck or bus drivers subject to the provisions of the
      Federal Motor Carrier Act, may obtain copies of the formula,
      the base rate of pay, and the overtime rate of pay.

      The Mynatts do not dispute that GTI's mileage-based plans, including the

PLUSS plan under which they were paid, were administered uniformly across the




                                        8
No. 71060-5-1/9


nation.5 They also acknowledge that certain aspects of the REP Policy were

applicable to them. For example, they agree they were paid a mileage rate, i.e., a

certain number of cents per mile based on years of experience. They also agree

that, like all other mileage-based drivers, they were paid "accessorial" pay for

non-driving work related activities, id. The point of dispute, however, is whether,

the combination of mileage pay and accessorial pay rates for long haul drivers

included a 20 percent factor for anticipated overtime that resulted in them

receiving REOT.

       The Mynatts first argue that their compensation did not include REOT

because GTI failed to comply with the requirements of WAC 296-128-011 or-

012. The former defines "base rate of pay" as "the amount of compensation paid

per hour or per unit of work in a workweek of forty hours or less" and requires

that the "base rate of pay shall be established in advance of the work performed

. . . ." The latter provides that "an employer may, with notice to a truck or bus

driver... establish a rate of pay that is not on an hourly basis and that includes in

the rate of pay compensation for overtime." In addition, WAC 296-128-012 also

recommends a formula "for establishing a uniform rate of pay to compensate

work that is not paid on an hourly basis and for which compensation for overtime

is included."6 The Mynatts contend that GTI failed to establish a base rate of pay

       5GTI's Director of Payroll Susan Geving testified that, since at least 1994, GTI's pay
plans do not pay Washington-based drivers separate rates for work done interstate and work
done intrastate. GTI's Chief Operating Officer (COO) Gordon testified that he believes GTI pays
all drivers REOT "[b]ecause our drivers are generally paid the same all across the network...
CP at 2389. This testimony was uncontradicted.

        6 See note 4, supra.
No. 71060-5-1/10


in advance of the work performed and failed to provide advance notice that their

non-hourly compensation, i.e. the mileage rate, included compensation for

overtime.7 As a result, they argue, the mileage rate at which they were

compensated is actually the base rate upon which the overtime rate should be

calculated.

       But neither RCW 49.46.130 nor the regulations promulgated to implement

that statute dictate such a result. First, GTI does not claim that it established a

base rate. Rather, its position, in essence, is that the mileage rates were the

drivers' "uniform rate of pay" as used in WAC 296-128-012(1 )(a). In other words,

the drivers' mileage rates had built-in overtime. The Mynatts dispute this claim

because GTI failed to follow the recommended formula set forth in that section to

establish a uniform rate of pay by first establishing a base rate of pay. But the

recommended formula is just that, a recommendation; it is not the exclusive

method for establishing a uniform rate of pay.8 The Mynatts do not identify any

statute, regulation, or rule that prohibits GTI from establishing a uniform rate of

pay in the manner that it did.


         7The Mynatts also point out that COO Gordon testified that drivers' base rate ofpay is
their mileage rate and that GTI recruiter Patty Schmidt testified thatshe advised applicants that
their base rate is their mileage rate. But neither Gordon nor Schmidt were asked whether their
understanding of the term "base rate" was the definition ofthat term as it is defined in WAC 296-
128-011(1).

        8 WAC 296-128-011(1 )(a) provides in part:

        An employer shall substantiate any deviation from payment on an hourly
        basis to the satisfaction of the department by using the following formula or
        an alternative formula that, at minimum, compensates hours worked in
        excess of forty hours per week at an overtime rate of pay and distributes
        the projected overtime pay over the average number of hours projected to
        be worked. (Emphasis added.)



                                                10
No. 71060-5-1/11


       Second, to the extent it is necessary to establish a base rate of pay under

WAC 296-128-011, utilizing the hourly rates for local drivers as the base rate of

pay for interstate drivers is not contrary to RCW 49.48.030(1 )(2). Under L&l's

construction of that statute prior to Bostain, GTI was not required to calculate a

base rate of pay in advance for interstate drivers. After Bostain, L&l amended its

regulations to permit employers to submit pay plans in place before March 1,

2007 to L&l for a determination whether the pay plans included REOT. It stands

to reason that these pay plans would not include a base rate of pay established

in advance of the work to be performed as required by WAC 296-128-011 (1) or

provide notice to the employee of the uniform rate of pay as required by WAC

296-128-012(1 )(a). Instead, establishing a base rate of pay may be determined

retrospectively, and one method of doing so, adopted by L&l, is utilizing the

hourly rates paid to local drivers as the base rates for interstate drivers.9
       Lastly, the Mynatts do not dispute that intrastate mileage-based drivers,

whose pay was configured pursuant to the same formula, received REOT. If the



       9 Administrative Policy ES.A.8.3(B)(3)(c)(iii)) provides:

       Ifthe company employs truck drivers who are paid under traditional
       overtime as well as truck drivers who are or will be paid under a
       compensation system that the company proposes as reasonably
       equivalent to traditional overtime, then comparison calculations should be
       based on similarly situated drivers at the company under both payment
       methods. For example, a company employs both local drivers who are paid
       hourly under traditional overtime and line haul drivers who are paid on a
       mileage basis. For purposes of calculations submitted to L&l, the company
       should compare for each workweek what each line haul driver's gross pay
       was relative to what the gross pay would have been if each line haul driver
       was paid hourly, as if a local driver.

CPat318.




                                                 11
No. 71060-5-1/12


failure to establish a base rate of pay in advance of the work performed for

intrastate mileage-based drivers did not preclude them from being paid REOT,

then neither does it preclude interstate mileage-based drivers such as the

Mynatts from being paid REOT.

       Next, the Mynatts contend that GTI executives testified that the REP

Policy did not apply to work outside Washington and they were unaware mileage

rates included REOT until L&l determined they did. Viewing this testimony in a

light most favorable to the Mynatts, GTI executives testified that they were

unaware long-haul drivers were entitled to overtime and that the Mynatts, in

particular, were told they would not receive overtime compensation. The

executives also testified that GTI did not advise its long-haul drivers that the

mileage rates included REOT and did not advertise that its compensation for
long-haul drivers included REOT. The issue is whether this testimony creates a

genuine issue ofmaterial fact regarding whether the Mynatts, in fact, received
REOT. We conclude that it does not.

       The Mynatts do not dispute that the REP Policy applied to mileage-based
intrastate drivers compensated under the PLUSS pay plan and that those drivers

received REOT. GTI executives testified that all mileage-based drivers are

generally paid the same all across the network and that GTI does not pay
separate rates for interstate and intrastate work. The Mynatts have produced no




                                          12
No. 71060-5-1/13


evidence to the contrary.10 They contend only that, because GTI failed to

establish a base rate of pay in advance of the work performed, there must be a

separate and distinct pay plan for interstate drivers. But, as noted above, GTI

also did not establish a base rate of pay in advance for intrastate drivers and yet

the Mynatts do not dispute that intrastate drivers received REOT. In light of the

uncontested evidence that the same pay plan applied to both interstate and

intrastate mileage-based drivers and that intrastate drivers received REOT, the

inescapable conclusion is that interstate drivers did as well. GTI executives'

beliefs to the contrary do not create a genuine issue of material fact.

       L&l's determination that GTI's pay plans for interstate mileage-based

drivers included REOT is further support for this conclusion. Using the 26 weeks

of sample data submitted by GTI, and applying Administrative Policy

ES.A.8.3(B)(3)(c)(iii), L&l determined that the PLUSS plan paid REOT under
RCW 49.46.130(2)(f) and WAC 296-128-012. Its determination letter stated that

the results of GTI's study

       showed that the interstate truck drivers in the samples earned
       more in compensation over the six month period under the
       compensation system in place than they would have earned by

        10 The following exchange occurred below at oral argument on GTI's motion to reconsider
the denial of its summary judgment motion and the Mynatts' motion for summary judgment:
            THE COURT: But [the interstate drivers] were not compensated
       differently than what's in the 1998 letter. At least we don't have anything
       that says they were compensated differently as to the mileage they drove,
        on a mileage basis.
            [Counsel for the Mynatts]: Well, that is correct. But we also don't have
        information that goes all the way back to 1998, which is many, many years
        outside the liability period, more than ten years outside the liability period.

VRP (4/13/2012) at 83.



                                                  13
No. 71060-5-1/14


       being paid time and one-half the base rate for hours worked in
       excess of 40 per week, using a base hourly rate of between
       $12.50 and $16.50 per hour the same rates paid to the
       company's local drivers of similar experience levels.[11]

CP at 144.


       The Mynatts do not challenge the accuracy of GTI's calculations or offer

evidence of a higher hourly rate to which their work should have been compared.

Instead, they contend we should disregard L&l's determination because, in their

view, the determination is based on an administrative rule that is contrary to

RCW 49.46.130.

       An agency's rule is invalid if it is not reasonably consistent with the statute

being implemented. Bostain, 159 Wn.2d at 715. The Mynatts argue that

Administrative Policy ES.A.8.3(B)(3)(c) violates RCW 49.46.130(2)(f) because it

permits L&l to compare the sample drivers' wages to local delivery drivers' hourly
wages. They contend this violates the statute because, instead of requiring

companies to substantiate their REOT claims based on drivers' "regular rate of

pay" (which they contend was their mileage rate), as required under RCW
49.46.130(1), it allows L&l to use the rate of pay of a "similarly situated"
comparator. And here, the Mynatts contend, the comparison was unfair because


        11 With regard to the Mynatts, GTI's data showed that Stephen earned an effective hourly
rate of between $20.83 and $26.79 for the first 40 hours of work. For the same pay periods, the
data showed that he earned a corresponding effective overtime rate of between $31.25 and
$40.19. These effective hourly rates were higher than the hourly rate ($14.25), including overtime
($21.37), that GTI paid its hourly drivers with his level ofexperience. Similarly, the data showed
that Anita earned an effective hourly rate of between $20.41 and $26.25 for the first 40 hours of
work. Forthe same pay periods, the data showed that she earned a corresponding effective
overtime rate of between $30.61 and $39.38. These effective hourly rates were higher than the
hourly rate ($13.75), including overtime ($20.62), that GTI paid hourly drivers with herlevel of
experience.



                                                14
No. 71060-5-1/15


long-haul drivers' pay was compared with the lower rates of local delivery drivers.

The Mynatts note that long-haul drivers are generally paid more than local

delivery drivers because they are away from their homes for periods of 7 to 28

days before returning home for two to three days off, whereas local drivers return

home every night after making short hauls (and are home every weekend. They

point out that GTI executives admitted that long-haul drivers receive greater pay

and that the greater pay is demonstrated by GTI's pay matrices.

       GTI does not dispute that long-haul drivers are generally paid more than

local delivery drivers. But RCW 49.46.130(2)(f), which requires compensation

systems for truck drivers to include overtime reasonably equivalent to that

required by that subsection (i.e., "one and one-half times the regular rate at

which" an employee is employed, see RCW 49.46.130(1)), does not specify how

a piece-meal compensation system might be determined to contain REOT. It
does not preclude L&l from comparing sample drivers' wages to local delivery

drivers' hourly wages, as L&l did under Administrative Policy ES.A.8.3(B)(3)(c).

Furthermore, there is no evidence in the record to indicate what portion of the

difference in the pay of long-haul drivers versus that of local delivery drivers is

attributable to market factors rather than the overtime component in the long-haul

drivers' mileage-based plans. The Mynatts assume that the entire difference is
attributable to market factors, but offer no evidence to support that assumption.

       A recent decision from the United States District Court for the Western

District of Washington, Helde v. Knight Transportation, Inc., 982 F. Supp.2d




                                          15
No. 71060-5-1/16


1189, 1201 (2013) is instructive. There, the defendant motor carrier provided

evidence that its mileage-plus compensation system generally resulted in drivers

being paid more than they would have received under an hourly rate plus time-

and-a-half system, id. The plaintiff truck drivers argued that the carrier could not

show it paid REOT because "there was no pre-established 'base rate of pay' to

give meaning to defendant's calculations and/or because defendant failed to

account for the higher hourly rates paid to more experienced drivers." id. As

here, L&l was "willing to accept the hourly rate trucking companies pay their local

or short-haul drivers as the 'base rate of pay' for purposes of evaluating the

reasonable equivalence of a proposed alternative compensation system." id. The

evidence showed that the carrier paid its Washington drivers $12.00 per hour.

The federal district court explained that in the absence of evidence that an

alternative "base rate" was appropriate, the $12.00 rate was an appropriate

starting point for the WAC 296-128-012 calculation. \± It concluded that "[g]iven

the calculations presented and [L&l's] willingness to accept similar compensation

structures as reasonably equivalent under RCW 49.46.130," the drivers failed to

raise a genuine issue of fact regarding their overtime claims, id.

       The Mynatts also argue that L&l's determination was arbitrary and

capricious because it ignored GTI's failure to maintain records of actual hours

worked by interstate drivers, in violation of L&l's special recordkeeping

requirements. They contend that GTI's submissions were not accurate because

GTI uses practical miles, which they assert are on average five percent less than




                                         16
No. 71060-5-1/17


actual miles,12 and did not include time spent on certain non-driving activities. We

disagree. Under WAC 296-128-011, employers must maintain records of, among

other things, the hours worked by each employee. WAC 296-128-011(1). They

are required to make such records available to L&l upon request. WAC 296-128-

011(2). Administrative Policy ES.A.8.3(B)(3)(d) states:

        Certification of accuracy and validity. An authorized
        representative of the company must certify under penalty of
        perjury under the laws of the State of Washington that the
        data and calculations provided to L&l for review are
        accurate, and are either complete or are reflective of the
        actual number of hours worked and work units projected to
        be accomplished by persons performing the same type of
        work over the time period for which records are submitted.

Here, GTI apparently did not maintain records of actual hours worked; rather, it

maintained records of practical miles driven and average truck speeds, and the

number of hours worked by drivers was calculated using those records. But GTI

certified that the 26 weeks of data it submitted were accurate, valid, and

"reflective of the actual number of hours worked." RCW 49.46.130 does not set

forth recordkeeping requirements, so there is no obvious conflict with legislative

intent. Nor does Administrative Policy ES.A.8.3(B)(3)(d) conflict with WAC 296-

128-011 by requiring a certified statement of accuracy in satisfaction of the rule.

        The Mynatts next contend L&l's determination is arbitrary and capricious

because it is based on erroneous factual support. They contend GTI made a

material misrepresentation when it directed L&l to the REP Policy as evidence


       12 The Mynatts tracked their odometer miles and compared them to their "practical miles."
They assert that, according to their calculations "practical miles" are on average five percent less
than odometer miles.




                                                17
No. 71060-5-1/18


that long-haul drivers' per-unit rate of pay included an overtime component,

because the REP Policy, as the policy itself stated, did not apply to long-haul

drivers. We reject this argument. First, despite the REP Policy's statement that it

applied to work within the state, the Mynatts do not show that there was a

different pay plan or scale applicable to mileage-based work outside of the state

of which L&l should have been aware. Second, as GTI points out, L&l received

the REP Policy and was able to review it.

       Finally, the Mynatts argue that L&l's determination was arbitrary and

capricious because, even if the REP Policy applied to out-of-state work, GTI still

failed to pay them REOT for hours worked over 65 a week where the REP Policy

stated that "[t]he combination of mileage pay and accessorial pay rates include a

20% factor for anticipated overtime up to a workweek of 65 hours." CP at 1930.

They point out that in approximately 15% of the weeks during the sample period,

they and other drivers worked over 65 hours a week. We disagree. Under WAC

298-128-012, an employer may use a pay formula that distributes projected

overtime pay "over the average number of hours projected to be worked." While

the evidence submitted to L&l showed that there are weeks in which GTI drivers

work more than 65 hours a week, it also showed that there are weeks in which

drivers work less than 65 or even 40 hours a week. There is no apparent

inconsistency with WAC 298-128-012 if an employer's pay formula accounts for

the projected number of hours to be worked, and the Mynatts do not contend that

WAC 298-128-012 is contrary to RCW 49.46.130(2)(f). Here, the Mynatts were




                                         18
No. 71060-5-1/19


paid for every hour they worked at their mileage rate, including hours worked

above 65 in a week.


      In sum, because the Mynatts failed to raise a genuine issue of material

fact regarding whether they were paid REOT, the trial court properly granted

GTI's motion for summary judgment. There was no error.




                                             WaM<^c>y.
WE CONCUR:




      jL-^o^.                                      tax, J-




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