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 |
| Appeal from Thurston County Superior Court | |
| 04-2-01990-4 | |
| Honorable Vicki L. Hogan | |
| Gerry L. Alexander | Signed Majority | |
| Charles W. Johnson | Signed Concurrence | |
| Barbara A. Madsen | Concurrence Author | |
| Richard B. Sanders | Signed Majority | |
| Tom Chambers | Signed Majority | |
| Susan Owens | Signed Majority | |
| Mary E. Fairhurst | Majority Author | |
| James M. Johnson | Signed Majority | |
| Debra L. Stephens | Did Not Participate | |
| Bobbe J. Bridge, Justice Pro Tem. | Signed Majority |
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.
3
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.
4
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.
5
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
6
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
7
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.
8
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).
9
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.
10
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.
11
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
12
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
13
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.
14
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.
15
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.
16
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.
17
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
18
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.
19
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)).
20
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.
21
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
22
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
23
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
24