279 P.3d 972
Wash. Ct. App.2012Background
- Fiore worked as a Territory Manager for PPG at Lowe’s, performing largely manual labor and individual retail sales in Washington and Oregon stores.
- He was salaried and not paid for driving time or for post-visit management communications.
- PPG classified Fiore as an administrative employee exempt from the Washington Minimum Wage Act (MWA) overtime protections.
- Fiore alleged overtime wage violations under the MWA; the superior court granted summary judgment in Fiore’s favor deeming Fiore non-exempt.
- The trial court later awarded Fiore attorney fees with a .25 multiplier, which the court of appeals partially reversed.
- The central issues were Fiore’s exemption status, how overtime damages were calculated, and whether the fee multiplier was appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Fiore exempt as an administrative employee under the MWA? | Fiore was not primarily performing office/nonmanual work; manual labor and retail sales dominated. | Fiore’s duties included promoting sales, an administrative operation. | No; Fiore’s primary duties were manual/retail and not administrative work. |
| How should Fiore’s overtime be calculated (fluctuating workweek vs. time-and-a-half)? | The fluctuating workweek method should apply. | A 40-hour baseline with fluctuating compensation should be used only if prerequisites are met. | Time-and-a-half applied; fluctuating workweek prerequisites were not met. |
| Whether the attorney-fee multiplier (.25) was appropriate in light of risk and policy concerns | Multiplier justified by case risk and trial-de novo exposure. | Multiplier was improper because risk was already accounted for in the lodestar and public policy discourages appeals from arbitration. | Multiplier reversed; lodestar-based fee upheld. |
| Did willful withholding support double damages under RCW 49.52.070? | PPG willfully withheld wages; double damages are proper. | There was a bona fide dispute or inadvertence; not willful. | Fiore entitled to double damages; trial court’s finding of willfulness affirmed. |
| Is the award of fees and costs on appeal proper under RCW 49.52.070? | Fiore should recover appellate fees as willful wage violations. | Fees on appeal should be limited. | Appeal fees appropriate; remanded for appropriate order. |
Key Cases Cited
- Reich v. John Alden Life Ins. Co., 126 F.3d 1 (1st Cir. 1997) (marketing representatives not always administrative employees; focus on promoting sales generally vs. specific transactions)
- Martin v. Cooper Electric Supply Co., 940 F.2d 896 (3d Cir. 1991) (promoting sales requires general marketing activity, not routine sales work)
- Reiseck v. Universal Commc’ns of Miami, Inc., 591 F.3d 101 (2d Cir. 2010) (advertising salesperson not an administrative employee; retail promotion distinctions matter)
- Inniss v. Tandy Corp., 141 Wn.2d 517 (2000) (fluctuating workweek method upheld in certain salary-based overtime contexts under policy)
- Monahan v. Emerald Performance Materials, LLC, 705 F. Supp. 2d 1206 (W.D. Wash. 2010) (flexible workweek prerequisites not met; contemporaneous payment issue)
- Chuong Van Pham v. Seattle City Light, 159 Wn.2d 527 (2007) (risk multiplier adjustments limited; lodestar appropriateness emphasized)