792097MAJ
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79209-7 - Champagne v. Thurston County File Date 02/14/2008
Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 79209-7
Title of Case: Champagne v. Thurston County
File Date: 02/14/2008
Oral Argument Date: 09/27/2007

SOURCE OF APPEAL
----------------
Appeal from Thurston County Superior Court
 04-2-01990-4
 Honorable Vicki L. Hogan

JUSTICES
--------
Gerry L. AlexanderSigned Majority
Charles W. JohnsonSigned Concurrence
Barbara A. MadsenConcurrence Author
Richard B. SandersSigned Majority
Tom ChambersSigned Majority
Susan OwensSigned Majority
Mary E. FairhurstMajority Author
James M. JohnsonSigned Majority
Debra L. StephensDid Not Participate
Bobbe J. Bridge,
Justice Pro Tem.
Signed Majority

COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
 William B Aitchison  
 Attorney at Law
 3021 Ne Broadway St
 Portland, OR, 97232-1810

 Hillary H Mcclure  
 Aitchison & Vick Inc
 5701 6th Ave S Ste 491a
 Seattle, WA, 98108-2527

 Mark A Crabtree  
 3021 N.e. Broadway
 Portland, OR, 97232

Counsel for Respondent(s)
 Jeffrey George Fancher  
 Attorney at Law
 2424 Evergreen Park Dr Sw Ste 102
 Olympia, WA, 98502-6041

 Michael Barr King  
 Talmadge Law Group PLLC
 18010 Southcenter Pkwy
 Tukwila, WA, 98188-4630

 Douglas Edward Smith  
 Littler Mendleson
 701 5th Ave Ste 6500
 Seattle, WA, 98104-7097

Amicus Curiae on behalf of Centro De Ayuda (casa)
 Nicholas Broten Straley  
 Columbia Legal Services
 101 Yesler Way Ste 300
 Seattle, WA, 98104-2528

 Daniel Ford  
 Columbia Legal Services
 101 Yesler Way Ste 300
 Seattle, WA, 98104-2528

Amicus Curiae on behalf of King County Bar
 Valerie Anne Carlson  
 King County Bar Association
 1200 5th Ave Ste 600
 Seattle, WA, 98101-1188

Amicus Curiae on behalf of National Employment Law Project
 Rebecca A. Smith  
 National Employment Law Project
 407 Adams St Se
 Olympia, WA, 98501-6917

Amicus Curiae on behalf of Washington Employment Lawyers Assoc
 Joseph Robert Shaeffer  
 MacDonald Hoague & Bayless
 705 2nd Ave Ste 1500
 Seattle, WA, 98104-1745

 Jeffrey Lowell Needle  
 Maynard Building
 119 1st Ave S Ste 200
 Seattle, WA, 98104-3450
			

IN THE SUPREME COURT OF THE STATE OF WASHINGTON                                                      

GENE CHAMPAGNE, CARY                           ) 
BROWN, ROLAND KNORR, and                       )
CHRISTOPHER SCANLON,                           )
individuals and as representatives of a        )    No.  79209-7
class of Thurston County overtime              )
eligible employees,                            )
                                               )    EN BANC
                      Petitioners,             )
v.                                             )
                                               )
THURSTON COUNTY, a political                   )
subdivision of the state of Washington,        )    FILED February 14, 2008
                                               )
                      Respondent.              )
________________________________               )

       FAIRHURST, J.  ?         Thurston County (County)           pays its employees for 

nonregular wages (e.g., overtime wages) at the close of the month subsequent to 

when the nonregular wages were earned.   Petitioners Gene Champagne, Cary 

Brown, Roland Knorr, and Christopher Scanlon (hereinafter collectively referred to 

as  Champagne) work as corrections officers for the Thurston County Sheriff?s 

Champagne v. Thurston County, No. 79209-7

Office.  Champagne challenges a published Court of Appeals decision that 

dismissed his claims under the  Washington  Minimum Wage Act, chapter 49.46 

RCW (MWA), wage payment act, chapter 49.48 RCW (WPA), and wage rebate 

act, chapter 49.52 RCW (WRA) since all wages owed Champagne were eventually 

paid.  He argues that (1) delayed payment of wages beyond the time frame set forth 

in  former  WAC 296-128-035 (1989) gives rise to employer liability under the 

aforementioned statutes and (2) such claims, being statutorily based, are not subject 

to the claim filing statutes applicable to counties.  

       We affirm the Court of Appeals but for different reasoning.  We hold (1) that 

delayed payment of wages beyond the timeframe set forth in former WAC 296-128-

035 gives rise to employer liability under the WRA but only where such delay is 

willful, and here it was not willful; (2) that delayed payment of wages does not give 

rise to employer liability under the MWA; and (3) that the WPA does not apply 

outside the termination context.  Since Champagne lacks a viable cause of action, 

we decline to reach the issue of whether claims made under the WRA, MWA, or 

WPA are subject to county claim filing statutes.

                  I.     FACTUAL AND PROCEDURAL HISTORY

       The administration of the County payroll system  triggered  the present 

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Champagne v. Thurston County, No. 79209-7

controversy.  The County pays its employees once a month on the last business day 

of each month for the regular wages earned that month.  Employees who have 

earned additional compensation such as overtime pay, compensatory time, specialty 

pay, supervisor pay, or holiday pay (hereinafter collectively referred to as additional

pay)1 must submit a form to the County by the end of the month for processing.  The 

County pays additional pay at the end of the month subsequent to the month in 
which it is earned.2   This practice is memorialized in the governing collective 

       1The concurrence concludes that Champagne lacks a viable cause of action because the 
collective bargaining agreement provided for  delayed payment of overtime compensation and 
compensatory time.  Concurrence at 3.  However, this assessment does not address all of the 
wages at issue in this case.  Unlike overtime pay and compensatory time, the collective bargaining 
agreement did not provide for a delay in the payment of specialty pay, supervisor pay, or holiday 
pay.  The terms of the agreement  fails to resolve  this dispute with respect to  all forms of 
additional pay.
       We disagree with the concurrence?s contention that the collective bargaining agreement 
provision addressing overtime payment is ?broad enough? to establish a delayed pay date for all 
forms of payment at issue in this case.  Concurrence at 2 n.1.  With respect to overtime pay, the 
agreement provides that ?[a]ll employees shall be paid overtime at time and one-half for all hours 
worked in excess of their regularly scheduled eight (8) or nine (9) hour shift.?      CP at 12.  
Overtime pay is based upon the number of hours an employee works in excess of a regular shift.  
The other forms of payment at issue here are not awarded based upon the number of hours 
worked in excess of a regular shift, and therefore the agreement?s overtime pay provision does 
not properly encompass them.
       For example, supervisor pay and specialty pay refer to a temporary raise in the corrections 
officer?s regular rate of pay based upon specialized shift assignments.  CP at 23.  A corrections 
officer assigned to work as a shift supervisor earns an additional five percent per hour for that 
shift.   Id.  Similarly, a corrections officer earns an additional three percent for special duty 
assignments.  Unlike overtime pay, these wage adjustments are not contingent upon hours worked 
in excess of a regular shift.  Accordingly, we do not view the overtime provision as sufficiently 
broad to encompass these forms of payment.
       2The County?s payroll system provides for one regular payday on the last business day of 
the month.  Thus, the additional pay is paid on the next regular payday after the month in which 
the additional pay is earned.  

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Champagne v. Thurston County, No. 79209-7

bargaining agreement between  the  County and its employees with respect to 

compensatory  time and wages for overtime.3   Champagne is employed by the 

Thurston County Sheriff?s Office as a corrections officer and is eligible for 

additional pay.  Champagne asserts that the County?s practice of paying additional

pay the month after it is earned violates Washington?s wage statutes.

       On September 17, 2004, Champagne filed suit against the County in Thurston 

County Superior Court seeking class certification and claiming that the separate 

payday for additional pay violates the MWA, WPA, and WRA.  In his complaint, 

Champagne prayed for the following relief:  (1) twice the amount of additional pay 

pursuant to the WRA, (2) class certification, (3) attorney fees and costs under all 

three wage statutes, (4) prejudgment interest, and (5) any other equitable relief as 

the court deems just.   Prior to filing suit, Champagne did not file a claim for 

damages with the County.  

       The County moved for summary judgment arguing that Champagne failed to 

meet the ?condition precedent? of filing the claim with the County pursuant to RCW 

       3The 2003-2004 and 2005-2007 collective bargaining agreements between the County and 
Local 618-CD of the Washington State Council of County and City Employees and the American 
Federation of State, County, and Municipal Employees, AFL-CIO, provide  ?[a]t the time 
overtime is worked, the employee has the option to request either overtime compensation or 
compensatory time.  It shall normally be the practice to pay overtime in money during the pay 
period following the pay period in which overtime is worked.? Clerk?s Papers (CP) at 135 and 
188.  For example, overtime earned in March would be paid on the last business day in April.

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Champagne v. Thurston County, No. 79209-7

36.45.010 and chapter 4.96 RCW (hereinafter collectively referred to as nonclaim 

statutes).   Clerk?s Papers (CP) at 42.  Champagne countered that the nonclaim 

statutes do not apply to wage-and-hour claims.  Visiting Judge Hogan4 held that 

Champagne?s claims were subject to the nonclaim statutes, granted the County?s 

motion for summary judgment,             and dismissed the claim without prejudice.  

Champagne responded by filing a notice of appeal, submitting a claim for damages 
with the County, and filing a new lawsuit against the County.5  

       The Court of Appeals, Division Two, affirmed on alternative grounds and did 

not reach the issue of whether wage-and-hour claims are subject to the conditions 

set forth in the nonclaim statutes.  Champagne v. Thurston County, 134 Wn. App. 

515, 520 n.7, 141 P.3d 72 (2006).  Instead, Judge Hunt, writing for a unanimous 

panel, found that this court?s holding in  Seattle Professional Engineering 

Employees Association v. Boeing Co., 139 Wn.2d 824, 991 P.2d 1126, 1 P.3d 578

(2000) (SPEEA) precluded a cause of action for delayed payment of wages.  

              Correction Officers alleged in their complaint only that they 
       were entitled to double damages under RCW 49.52.070.  In so doing, 
       they failed to state an actionable claim because, under Washington?s 

       4The Thurston County Superior Court bench recused itself.
       5The new case is based upon the same facts and contains the same allegations as the 
original complaint filed in September 2004.  The suit prays for the same relief of double damages, 
prejudgment interest, costs, and attorney fees.  However, Champagne argues that refiling has the 
effect of denying him 13 months of potential double damages based on overtime pay and attorney 
fees through October 31, 2005.

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Champagne v. Thurston County, No. 79209-7

       wage-and-hour laws, employees are entitled to damages only where an 
       employer has paid no compensation to an employee.  Such is not the 
       case here, however, because, as Correction Officers acknowledge, the 
       County did pay them their due wages.  

Champagne, 134 Wn. App. at 519 (citation omitted). 

       This court granted Champagne?s petition for review.  Champagne v. Thurston 

County, 160 Wn.2d 1010, 161 P.3d 1026 (2007).

                                        II.     ISSUE

       Does the  WRA, MWA, or WPA provide a cause of action for delayed 
payment of wages?

                                     III.    ANALYSIS

       This court reviews questions of law de novo.  Wingert v. Yellow Freight Sys., 

Inc., 146 Wn.2d 841, 847, 50 P.3d 256 (2002).  ?In reviewing an order granting 

summary judgment, the appellate court engages in the same inquiry as the trial 

court.?  Id.   Summary judgment is appropriate when ?there is no genuine issue of 

material fact and the moving party is entitled to judgment as a matter of law.?  Id.;

CR 56(c).  The court will consider the evidence in the light most favorable to the 

nonmoving party drawing all reasonable inferences therefrom.  Wingert, 146 Wn.2d 

at 847.

       This court has described Washington as a ??pioneer?? in assuring payment of 

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Champagne v. Thurston County, No. 79209-7

wages due an employee.  Int?l Ass?n of Fire Fighters, Local 46 v. City of Everett, 

146 Wn.2d 29, 35, 42 P.3d 1265 (2002) (quoting Drinkwitz v. Alliant Techsystems, 

Inc., 140 Wn.2d 291, 300, 996 P.2d 582 (2000)).  Toward that end, three wage 

statutes penalize an employer who willfully withholds wages (WRA), fails to pay 

the statutory minimum wage (MWA), or fails to pay wages due upon termination of 

employment (WPA).  The court is tasked with construing these laws ??liberally?? in 

light of the strong public policy to protect workers? rights.   Id. at 35 (quoting 

Ellerman v. Centerpoint Prepress, Inc., 143 Wn.2d 514, 520, 22 P.3d 795 (2001)).  

A.     Does the amended version of WAC 296-128-035 apply retroactively?

       Pursuant to the MWA, WAC 296-128-035 designates the time by which an 

employer must pay all wages due.6  Champagne relies upon the rule as it existed at 

       6The concurrence maintains that Champagne?s overtime wages became due according to 
the timeline set forth in the governing collective bargaining agreement, and concludes that the 
County did not violate former WAC 296-128-035.  Concurrence at 2-3.  We decline to adopt this 
rationale for two reasons. First, as noted earlier, the collective bargaining agreement designates a 
delayed payment timeline for overtime pay and compensatory time but does not provide for a 
delay in the payment of specialty, supervisor, or holiday pay.  Second, former WAC 296-128-035 
specifies that all wages due must be paid at ?no longer than monthly intervals? and, contrary to 
the regulation in its current form, it does not provide that a collective bargaining agreement or 
other employment contract may supersede the regulation.  Therefore, the collective bargaining 
agreement conflicts with, and is subordinate to, the regulation.
       We agree with the concurrence that the governing statute, RCW 49.52.050(2), shows that 
a contract may establish an employer?s obligation to pay wages.  Concurrence at 3 n.3.  However, 
RCW 49.52.050(2) also establishes an employer?s obligation to pay wages in conformance with 
any statute or ordinance.  Further, we have recognized that an agency regulation may also provide 
a basis for payment under RCW 49.52.050(2) since agency regulations carry the force of law.  
White v. Salvation Army, 118 Wn. App. 272, 287-88, 75 P.3d 990 (2003) (citing Wingert, 146 
Wn.2d at 848).  In short, RCW 49.52.050(2) does not relieve an employer of abiding by agency 

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Champagne v. Thurston County, No. 79209-7

the time he filed his suit in September 2004.  In its entirety, former WAC 296-128-

035 provided: 

       All wages due shall be paid at no longer than monthly intervals to each 
       employee on established regular pay days.  To facilitate bookkeeping, 
       an employer may implement a regular payroll system in which wages 
       from up to seven days before pay day may be withheld from the pay 
       period covered and included in the next pay period.

Champagne maintains that the County violated former WAC 296-128-035 since the 

County paid additional pay the month after it was earned.  The County, however,

urges the court to apply the amended WAC retroactively.  

       Current  WAC 296-128-035 is similar to its former version but includes 

additional direction.  The current WAC provision states, ?[a]n employer shall pay 

all wages owed to an employee on an established regular pay day at no longer than 

monthly payment intervals.?         WAC 296-128-035(3).   The additional direction 

provides:

       An employer shall pay overtime wages owed to an employee on the 
       regular pay day for the pay period in which the overtime wages were 
       earned. If the correct amount of overtime wages cannot be determined 
       until after such regular pay day, the employer may establish a separate 
       pay day for overtime wages; provided, that the payment of overtime 
       wages may not be delayed for a period longer than that which is 
       reasonably necessary for the employer to compute and arrange for 
       payment of the amount due, and overtime wages must be paid by the 
       regular pay day following the next pay period.

regulation by drafting a conflicting contract provision. 

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Champagne v. Thurston County, No. 79209-7

WAC 296-128-035(6).  Furthermore, the rule may be ?superseded by a collective 

bargaining agreement? subject to certain conditions.7 WAC 296-128-035(8).  

       Champagne concedes that he lacks a cause of action under current WAC 296-

128-035 given that sections six and eight  would  permit the month delay for 

additional pay.  Therefore, the court must determine whether the former or current 

WAC provisions apply.  In other words, is the amended language retroactive?

       Generally,     we    presume prospective application of newly amended 

administrative regulations, particularly where the amendments change substantive 

rights.  In re Pers. Restraint of Shepard, 127 Wn.2d 185, 193, 898 P.2d 828 (1995).  

However, courts may apply an amendment retroactively if either (1) the agency

       7These rules may be superseded by a collective bargaining agreement negotiated 
       under the National Labor Relations Act, 29 U.S.C. [ 151-169], the Public 
       Employees? Bargaining Act, RCW 41.56.010 [-.900], or the Personnel System 
       Reform Act [of 2002, ch. 41.80 RCW], if the terms of, or recognized custom and 
       practice under, the collective bargaining agreement prescribe specific payment 
       interval requirements for employees covered by the collective bargaining 
       agreement; provided, that:
              (a)     All regular wages (whether paid on an hourly, salary, commission, 
       piece rate, or other basis) shall be paid to employees covered by the collective 
       bargaining agreement (?covered employees?) at no longer than monthly intervals;
              (b)     All other wages (including overtime, bonus pay,         and other 
       categories of specialty pay in addition to regular wages) are paid in accordance 
       with the payment interval requirements applicable to covered employees under the 
       terms of, or recognized custom and practice under, the collective bargaining 
       agreement; and
              (c)     The employer pays regular wages to covered employees at no less 
       than the applicable minimum wage rate.
WAC 296-128-035(8).

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Champagne v. Thurston County, No. 79209-7

intended the amendment to apply retroactively, (2) the effect of the amendment is 

remedial or curative, or (3) the amendment serves to clarify the purpose of the 

existing rule.  Magula v. Benton Franklin Title Co., 131 Wn.2d 171, 181-82, 930 

P.2d 307 (1997); see also Letourneau v. Dep?t of Licensing, 131 Wn. App. 657, 

665-66, 128 P.3d 647 (2006) (applying the above guidelines to determine whether a 

WAC rule should apply retroactively).

       Both parties acknowledge that ?[a] regulation may be given retroactive effect 

where its purpose is to clarify rather than change the law.? Reply in Support of Pet. 

for Rev. at 11; Suppl. Br. of Resp?t at 4 n.2 (citing Magula, 131 Wn.2d at 182).  

However, Champagne urges the court to apply the amendments prospectively,

arguing only that the amendments affect a ?substantive or vested right.?              Reply in 

Support of Pet. for Rev. at 11 (citing Letourneau, 131 Wn. App. at 665).

       Thus, the issue is whether the rule revision affects a substantive or vested 

right.  The proposed rule statement put forth by the Department of Labor and 

Industries suggests that the changes were intended to ?clarify rule language without 

changing its effect? pursuant to RCW 34.05.310(4)(d).  Wash. St. Reg. 06-17-136.  

At first blush, this would seem to fit under the exception carved out in Magula.  

However, the actual effects of the amendments go beyond mere clarification.  

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Champagne v. Thurston County, No. 79209-7

Current WAC 296-128-035(6) permits the payment of additional pay in intervals 

longer than one month.  This practice would have violated the plain language of the 

previous rule and, thus, denotes a change in substantive rights.8          Further, the effect 

of the amendment is not remedial, which  similarly militates against retroactive 

application.    Accordingly, we hold that amended WAC 296-128-035 applies 

prospectively only, and we will apply former WAC 296-128-035 as it existed when 

the complaint was filed in 2004.

B.     Does the WRA provide a remedy for wages untimely paid in violation of 
       former WAC 296-128-035?

       Champagne claims that the County?s practice of paying additional pay at the 

end of the month subsequent to when it was earned violates the WRA.  The WRA 

states, ?[a]ny employer . . .  who . . . [w]ilfully and with intent to deprive the 

employee of any part of his wages, shall pay any employee a lower wage than the 

wage such employer is obligated to pay such employee by any statute, ordinance, or 

       8The revisions to  former  WAC 296-128-035 were inspired by incorporating existing 
agency policy into rule.  Wash. St. Reg. 06-17-136.  An agency may put forth policy statements
to inform the public of its ?current approach . . . to implementation of a statute or other provision 
of law.?   RCW 34.05.010(15).  Such a statement is  ?advisory only,?         and an agency is 
?encouraged to convert long-standing interpretive and policy statements into rules.?      RCW 
34.05.230(1).  This court likewise held that, ?[u]nlike administrative rules and other formally 
promulgated agency regulations, internal policies and directives generally do not create law.?
Joyce v. Dep?t of Corrs., 155 Wn.2d 306, 323, 119 P.3d 825 (2005) (citing Melville v. State, 115 
Wn.2d 34, 793 P.2d 952 (1990)).  Therefore, prior to their incorporation into the WAC, the 
agency guidelines from the policy statement were advisory only.

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Champagne v. Thurston County, No. 79209-7

contract . . . [s]hall be guilty of a misdemeanor.?          RCW 49.52.050(2).  A WAC 

provision may also provide the basis for a WRA action since agency regulations 

carry the force of law.  White v. Salvation Army, 118 Wn. App. 272, 287-88, 75 

P.3d 990 (2003) (citing Wingert, 146 Wn.2d at 848).9  Pursuant to the WRA, an 

employer?s violation of an agency rule must be willful and with the intent to deprive 

its employee of wages.  

       A willful withholding  under RCW 49.52.050(2) is a basis for  exemplary 

damages in a civil action of ?twice the amount of the wages unlawfully rebated or 

withheld . . . together with costs of suit and a reasonable sum for attorney?s fees.?  

RCW 49.52.070.10        This court defines a willful withholding as  ??the result of 

       9In Wingert, we held that double damages under the WRA were appropriate based upon a 
WAC rule violation since ??properly promulgated, substantive agency regulations have the force 
and effect of law.??  146 Wn.2d at 848 (internal quotation marks omitted) (quoting Manor v. 
Nestle Food Co., 131 Wn.2d 439, 445, 932 P.2d 628, 945 P.2d 1119 (1997)).  Accordingly, we 
determined that a violation of WAC 296-126-092 relating to rest periods constituted a basis to 
award damages under the WRA.  However, the WRA is not included as statutory authority for 
WAC 296-126-092.  Instead, authority for the rule is found in chapter 49.12 RCW.  WAC 296-
126-001.  Similarly, the WRA is not listed as statutory authority for the rule Champagne cites, 
former WAC 296-128-035.  Instead, former WAC 296-128-035 lists the following statutes as its 
authority:  RCW 43.22.270,  49.12.020, 49.12.091, 49.12.050, 49.46.020, and 49.46.070.  
Following the reasoning in  Wingert, we find that former WAC 296-128-035 was properly 
promulgated and therefore carries the force of law.  Violations of the rule may trigger the 
remedies available under the WRA even though the WRA is not listed among the statutory 
authority for WAC 296-128-035.
       10The statute continues, ?PROVIDED, HOWEVER, That the benefits of this section shall 
not be available to any employee who has knowingly submitted to such violations.?          RCW 
49.52.070.  One might argue that the collective bargaining agreement governing the terms and 
conditions of Champagne?s employment with the County constitutes a knowing submission to an 
alleged willful withholding.  However, no Washington court has found that a plaintiff knowingly 

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Champagne v. Thurston County, No. 79209-7

knowing and intentional action and not the result of a bona fide dispute as to the 

obligation of payment.?? Wingert, 146 Wn.2d at 849 (quoting  Chelan County 

Deputy Sheriffs? Ass?n v.  County of Chelan, 109 Wn.2d 282, 300, 745 P.2d 1 

(1987)).  A bona fide dispute is a  ??fairly debatable? dispute over whether an 

employment relationship exists, or whether all or a portion of the wages must be 

paid.?  Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 161-62, 961 P.2d 371 

(1998) (citing Cannon v. City of Moses Lake, 35 Wn. App. 120, 125, 663 P.2d 865 

(1983);  Moran v. Stowell, 45 Wn. App. 70, 81, 724 P.2d 396 (1986);  Chelan 

County Deputy Sheriffs? Ass?n, 109 Wn.2d at 301).  

       Determining willfulness is a question of fact reviewed under the substantial 

evidence standard.   Pope v. Univ. of Wash., 121 Wn.2d 479, 490, 852 P.2d 1055, 

871 P.2d 590 (1993) (citing Lillig v. Becton-Dickinson, 105 Wn.2d 653, 660, 717 

P.2d 1371 (1986)).  However, where no dispute exists as to the material facts, the 

court may dispose of such questions on review of summary judgment.  Schilling, 

136 Wn.2d at 160; CR 56(c).11  

submitted to a willful violation of the WRA based upon the existence of a collective bargaining 
agreement.
       11The concurrence departs from the established analysis for determining willfulness under 
the WRA and concludes that the collective bargaining agreement which provides for delayed 
payment of overtime compensation singularly negates a finding that the County acted with ?intent 
to deprive.?  Concurrence at 3; RCW 49.52.050(2).  We think it is premature to adopt this 
position given the procedural posture of this case.  The trial court granted the County?s motion 
for summary judgment based upon issues unrelated to those before the court at present.  It 

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Champagne v. Thurston County, No. 79209-7

       In the present case, neither party disputes the material facts.  The County?s 

regular practice is to pay its employees  additional pay at the end of the month 

subsequent to the month in which it is earned.  The lag time violated former WAC 

296-128-035, which required an employer to pay its employee at no longer than 

monthly intervals.   However, this system complies with the provisions in the 

governing collective bargaining agreement with respect to overtime wages and 

compensatory time.  Further, Champagne does not allege that bad faith or animus

motivated the creation or administration of the additional pay system.  Accordingly, 

the record lacks the requisite substantial evidence that gives rise to a finding of 

willful withholding on the part of  the  County.  This is more likely a bona fide 

dispute over whether the wages were due by a certain time.  

       We now turn to the disposition of the claim by the Court of Appeals and the 

County?s argument.  The  Court of Appeals held, and  the  County argues, that 

Champagne may not assert  claims under the WRA since the wages due were

eventually paid.  The Court of Appeals determined that Champagne lacked a viable 

action under the WRA based upon this court?s language in SPEEA.  In SPEEA, we

described the differing functions of the WRA, MWA,                   and WPA.  We then 

granted summary judgment to the County due to Champagne?s failure to comply with the 
nonclaim statutes.  As a result, the parties lacked an opportunity to conduct discovery on the issue 
of whether the County acted ?with intent to deprive? Champagne of wages due.

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Champagne v. Thurston County, No. 79209-7

proceeded to discuss the implications of the MWA.             ?The import of this statutory 

scheme is that in circumstances where an employer paid no compensation 

whatsoever to an employee, the employee, if not otherwise exempt under the 

[MWA], could recover wages representing the difference between the statutory 

minimum wage and what was actually paid.?  SPEEA, 139 Wn.2d at 831 (citing 

RCW 49.46.090(1)).  The Court of Appeals seized upon this language in dismissing 

Champagne?s wage claim.  

       The Court of Appeals erred in two respects.  First, it took the language from 

SPEEA out of context.  The SPEEA court recognized that a plaintiff could recover 

WRA damages in addition to the unpaid wages recoverable under the MWA.12 139 

Wn.2d at 831.  However, the court addressed only the extent of recovery available 

under the MWA, not the WRA, because the plaintiffs had not pursued remedies 

under the WRA.  Id.  Conversely, since Champagne has pursued remedies under the 

WRA, the Court of Appeals should have limited its application of  SPEEA to 

Champagne?s MWA claim and not his WRA claim.

       Second, the Court of Appeals erred by concluding that a violation of former 

       12This observation is supported by the variant language of the MWA and WRA.  The 
MWA contains language that mitigates an employer?s liability for the wages ?actually paid? to the 
employee.  RCW 49.46.090(1).  The WRA, however, does not provide for a lessening of liability 
based upon wages eventually paid but instead assigns exemplary damages based upon the 
employer?s willful withholding.  RCW 49.52.070.  

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Champagne v. Thurston County, No. 79209-7

WAC 296-128-035 triggers the remedies available in the MWA (chapter 49.46 

RCW) but not the WRA (chapter 49.52 RCW) or WPA (chapter 49.48 RCW).  

Champagne, 134 Wn. App. at 520 n.5 (former WAC 296-128-035 ?applies only to 

violations of minimum wage laws under chapter 49.46 RCW, not chapters 49.48 

and 49.52 RCW?).        This conclusion is inconsistent with the plain language of the 

WRA, which penalizes an employer who willfully withholds wages due under ?any 

statute, ordinance, or contract,? RCW 49.52.050(2), including substantive agency 

regulations.  White, 118 Wn. App. at 287-88.  Accordingly, the Court of Appeals 

misapplied the reasoning in SPEEA to dismiss Champagne?s WRA claim.  

       Therefore, we affirm the Court of Appeals on different grounds.13              We hold 

that  former  WAC 296-128-035 provides a basis for liability if the undisputed 

material facts support a finding that the violation was willful.  Here, we find that the 

County did not act willfully since the disagreement over payment of wages is a bona 

fide dispute.

C.     Does Champagne?s prayer for relief limit review to the WRA?  

       13We agree with Champagne that the Court of Appeals decision would allow an employer 
to ?indefinitely delay paying its employees the wages that the employees have earned? as long as 
the wages are eventually paid.  Suppl. Br. of Pet?rs at 10.  While we are not faced with such a 
situation at present, our holding does not foreclose the availability of damages under the WRA 
where an employer eventually pays its employees but  a court  determines that  the employer 
withheld the wages willfully and with the intent to deprive the employees of the wages due.

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Champagne v. Thurston County, No. 79209-7

       Washington follows notice  pleading rules and simply requires a  ?concise 

statement of the claim and the relief sought.?  Pac. Nw. Shooting Park Ass?n v. City 

of Sequim, 158 Wn.2d 342, 352, 144 P.3d 276 (2006); CR 8(a).  A complaint fails 

to meet this standard if it neglects to give the opposing party ?fair notice.?  Pac. Nw. 

Shooting Park, 158 Wn.2d at 352 (citing Dewey v. Tacoma Sch. Dist. No. 10, 95 

Wn. App. 18, 26, 974 P.2d 847 (1999) (finding that a party may not later insert an 

argument into its briefs that was not first pleaded)).  

       The Court of Appeals excluded Champagne?s claims under the MWA 

(chapter 49.46 RCW) and WPA (chapter 49.48 RCW) for failure to properly plead 

them in the complaint.  ?Although Correction Officers also alleged violations of 

chapters 49.46 and 49.48 RCW, they failed to request any form of relief under these 

other wage  statutes that differs substantively from chapter 49.52 RCW relief.?  

Champagne, 134 Wn. App. at 520 n.5 (citing SPEEA, 139 Wn.2d at 831, 835).  

Again, SPEEA is factually distinct from the  present  case.  In  SPEEA, the court 

concluded that appellants had limited the scope of review to the MWA since they 

?abandoned chapter 49.52 RCW and instead focused on the [MWA] and various 

common law theories of recovery.?         139 Wn.2d at 831 n.3.  Here, Champagne has 

preserved his claims under all three wage statutes.  

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Champagne v. Thurston County, No. 79209-7

       The  County argues that Champagne?s prayer for relief seeking damages 

solely under the WRA effectively excludes the MWA and WPA from the scope of 

this court?s review.  The County reminds the court that notice pleading standards 

have limits as defined in  Berge v. Gorton,  88 Wn.2d 756, 762, 567 P.2d 187 

(1977), which states, ?[e]ven our liberal rules of pleading require a complaint to 

contain direct allegations sufficient to give notice to the court and the opponent of 

the nature of the plaintiff?s claim.?  The County also argues that this court should 

honor Champagne?s  ?intentional? omission of a request for  damages under the 

MWA and WPA.  Suppl. Br. of Resp?t at 8.

       Champagne argues that the totality of his complaint meets the notice pleading 

rules.  He argues that the reference to relief contained within each separate cause of 

action puts the County on notice of his MWA and WPA claims.14 He also contends 

       14The complaint asserts the following causes of action: 
              4.2     Defendant Thurston County?s action in failing to pay the due and 
       payable wage payments violates the Minimum Wage Act as interpreted by WAC 
       296-128-035 which provides, inter alia, that all wages due shall be paid at no 
       longer than monthly intervals to each employee on established regular pay days. 
              4.3     Defendant Thurston County?s action in failing to pay the due and 
       payable wage payments on a timely basis entitles the Plaintiffs to their costs and 
       reasonable attorneys? fees under RCW 49.46.090 and applicable law. 
              . . . .  
              5.3     Defendant Thurston County?s action in failing to pay the due and 
       payable wage payments entitles the Plaintiffs to their reasonable attorneys? fees 
       under RCW 49.48.030 and applicable law.
              . . . . 
              6.4     Defendant Thurston County?s action in willfully failing to pay the 
       due and payable wage payments entitles each of the Plaintiffs to judgment for 

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Champagne v. Thurston County, No. 79209-7

that the concluding phrase of his prayer for relief (?[f]or such other relief as the 

Court deems just and equitable?15) sufficiently apprises the County of his request for 

relief under the MWA and WPA.  Reply in Support of Pet. for Rev. at 5.  

       Champagne?s complaint does not transgress the liberal bounds of the notice 

pleading standard.  The County argues persuasively that a generic prayer for relief 

does not provide adequate notice to the opposing party of a particular remedy.  

However, the entirety of Champagne?s complaint supplies direct allegations 

sufficient to give notice to both the court and the County that Champagne sought 

relief under the MWA, WPA,              and WRA.   See         CP at 6-7.  Furthermore, 

Champagne?s  allegedly intentional omission of a particular prayer for relief is 

       twice the amount of wages wrongfully withheld from them, together with their 
       joint costs of suit and reasonable attorneys? fees under RCW 49.52.070 and 
       applicable law.
CP at 6-7.  
       15The prayer for relief provides in full:  
       WHEREFORE, Plaintiffs pray to this Court for the following relief: 
       1.     For the award of twice the amount of the wages payments wrongfully 
              withheld, pursuant to RCW 49.52.070; 
       2.     For an order confirming that Thurston County overtime eligible employees 
              be treated as a class for the purposes of CR 23 in these proceedings; 
       3.     For an order confirming that Gene Champagne, Cary Brown, Roland 
              Knorr, and Christopher Scanlon are qualified and shall act as 
              representatives of the certified class; 
       4.     For the Plaintiffs attorneys? fees and costs under applicable law, RCW 
              49.46.090, 49.48.030, 49.52.070 as well as under the Court?s equitable 
              power; 
       5.     For an award of prejudgment interest as allowed by law; and 
       6.     For such other relief as the Court deems just and equitable. 
CP at 7-8.  

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Champagne v. Thurston County, No. 79209-7

immaterial.  This court has found that the pleader?s intention when drafting the 

complaint does not control the court?s scope of review.  Berge, 88 Wn.2d at 763.16

       We hold that the totality of Champagne?s complaint comports with notice 

pleading rules and that review of the causes of action under the MWA and WPA in 

addition to the WRA is appropriate.  

D.     Does delayed payment of wages provide a cause of action under the MWA?

       The MWA provides in pertinent part:

       (1)    Any employer who pays any employee less than wages to which 
       such employee is entitled under or by virtue of this chapter, shall be 
       liable to such employee affected for the full amount of such wage rate, 
       less any amount actually paid to such employee by the employer, and 
       for costs and such reasonable attorney?s fees as may be allowed by the 
       court.  Any agreement between such employee and the employer to 
       work for less than such wage rate shall be no defense to such action.  

RCW 49.46.090.  

       Champagne encourages the court to consider by analogy federal 

interpretations of section 207 of the Fair Labor Standards Act of 1938, 29 U.S.C. 

201-219 (FLSA), since the FLSA provided the model for the MWA.  Champagne 

       16?[T]he complaint, and other relief-claiming pleadings need not state with 
       precision all elements that give rise to a legal basis for recovery as long as fair 
       notice of the nature of the action is provided.  However, the complaint must 
       contain . . . direct allegations on every material point necessary to sustain a 
       recovery on any legal theory, even though it may not be the theory suggested or 
       intended by the pleader.?
Berge, 88 Wn.2d at 763 (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice and 
Procedure  1216, at 120 (1969)).

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Champagne v. Thurston County, No. 79209-7

cites several district and circuit court cases for the proposition that a delay in 

payment is tantamount to a failure to pay.  However, this analogy is misleading 

given that federal courts have distinguished the treatment of additional pay from 

regular pay under the FLSA because the FLSA permits an employer to  ?delay?

payment of overtime to allow for processing.17  See O?Brien v. Town of Agawam, 

350 F.3d 279, 298 (1st Cir. 2003) (noting that the Secretary of Labor has interpreted 

the FLSA to allow delayed payment of overtime wages to allow for processing).  

Similarly, the Court of Appeals, Division Two, in Clark v. City of Kent, 136 Wn. 

App. 668, 150 P.3d 161 (2007), surveyed federal case law and found that ?[f]ederal 

law allows for some ?reasonable? amount of processing or lag time under the FLSA 

for irregular pay such as overtime.?  Id. at 677 (distinguishing Biggs v. Wilson, 1 

F.3d 1537 (9th Cir. 1993), which held that delayed payment of regular wages 

violated the FLSA) (citing 29 C.F.R.  778.106).  Thus, Champagne?s reliance upon 

federal law construing the FLSA is misplaced.

       The  County argues and the Court of Appeals concluded that  SPEEA

       17When the correct amount of overtime compensation cannot be determined until 
       some time after the regular pay period, however, the requirements of the Act will 
       be satisfied if the employer pays the excess overtime compensation as soon after 
       the regular pay period as is practicable. Payment may not be delayed for a period 
       longer than is reasonably necessary for the employer to compute and arrange for 
       payment of the amount due and in no event may payment be delayed beyond the 
       next payday after such computation can be made.
29 C.F.R.  778.106.  

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Champagne v. Thurston County, No. 79209-7

addressed this issue and determined that since the additional pay was eventually 

paid, no liability exists under the MWA.   In  SPEEA, the court held that  ?in 

circumstances where an employer paid no compensation whatsoever to an 

employee, the employee, if not otherwise exempt under the [MWA], could recover 

wages representing the difference between the statutory minimum wage and what 

was actually paid.?  139 Wn.2d at 831. 

       Consistent with  our holding in  SPEEA,  we hold that the MWA does not 

provide a cause of action where the employer has actually paid all wages due an 

employee.  Champagne was paid all due regular and additional pay and, thus, does 

not have a cause of action under the MWA.  

E.     Does delayed payment of wages give rise to liability under the WPA?  

       In pertinent part, the WPA provides that an employer may not withhold 

wages due an employee at the termination of employment unless required by law, by 

agreement between the employer and employee, or for medical services.  RCW 

49.48.010.  The WPA also contains a proviso that renders a governing and contrary 

?labor-management agreement? controlling authority on the issue of payment.  Id.  

       Champagne focuses on the following language of the WPA to establish his 

claim: ?It shall be unlawful for any employer to withhold or divert any portion of an

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Champagne v. Thurston County, No. 79209-7

employee?s wages.?  Pet. for Rev. at 13-14; RCW 49.48.010.  He further argues 

that ?employees who have had their wages unlawfully withheld in violation of RCW 

49.48.010 have a private right of action against the employer.?  Pet. for Rev. at 14 

(citing Wingert, 146 Wn.2d at 850).  

       The County notes that the WPA is limited in its application.  As its language 

suggests, RCW 49.48.010 applies in the context of termination.  Further,  RCW 

49.48.010 has not been applied to nontermination cases.  Pope, 121 Wn.2d at 489 

(holding that the trial court erred in granting summary judgment where the plaintiffs 

had not pleaded that the employer defendant made ?improper deductions? at the end

of the employment relationship).        Like the employees in Pope, Champagne is not 

claiming that  the  County made improper deductions at the time of termination.  

Champagne is a current employee of the County and, therefore, his claim is beyond 

the scope of RCW 49.48.010.

       Furthermore, a labor-management agreement may trump the provisions of the 

WPA.  RCW 49.48.010.             Here, the governing collective bargaining agreement 

allows for a delay in payment of overtime wages and compensatory time.  CP at 

135, 188.  Therefore, even if RCW 49.48.010 applied (which it does not because 

Champagne is a current employee), the statute would bar its application to damages 

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Champagne v. Thurston County, No. 79209-7

arising from delayed payment of overtime wages and compensatory time.  

                                   IV.    CONCLUSION

       We affirm the Court of Appeals but on different grounds.  First, we hold that 

?delayed? payment of wages beyond the timeframe set forth in former WAC 296-128-

035 does give rise to employer liability under the WRA but only where such delay is 

?willful,? and here it was not willful.  Second, we hold that ?delayed? payment of 

wages does not give rise to employer liability under the MWA.            Finally, we hold that 

the WPA does not apply outside the termination context.

AUTHOR:
       Justice Mary E. Fairhurst

WE CONCUR:
       Chief Justice Gerry L. Alexander                 Justice Susan Owens

                                                        Justice James M. Johnson

       Justice Richard B. Sanders                       Bobbe J. Bridge, Justice Pro Tem.

       Justice Tom Chambers

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