Tiffany Hill v. Xerox Business Services
868 F.3d 758
| 9th Cir. | 2017Background
- Tiffany Hill sued Xerox Business Services, LLC (and predecessors) as a statewide class action under the Washington Minimum Wage Act (MWA) alleging unpaid wages based on Xerox’s pay calculations.
- Xerox paid call-center agents under an Achievement Based Compensation (ABC) Plan comprised of: ABC Pay (incentive pay based on “production minutes”), Additional Pay (hourly for certain tasks), and Subsidy Pay (weekly top-up to minimum wage if needed).
- "Production minutes" were logged minutes spent on incoming calls, on-hold during calls, or after-call work; employees were paid a per-minute rate (varying by performance metrics) for those minutes.
- Washington law permits weekly averaging of wages for piecework employees (Wash. Admin. Code § 296-126-021), but hourly employees retain a per-hour minimum-wage right (no weekly averaging). The status (piecework vs hourly) is dispositive for Hill’s MWA claim.
- The district court denied Xerox’s partial summary judgment, concluding Xerox’s plan was not piecework; Xerox appealed and the Ninth Circuit certified to the Washington Supreme Court the question whether a plan using "production minutes" qualifies as piecework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a compensation plan that uses "production minutes" is a piecework plan under Wash. Admin. Code § 296-126-021 | Hill: The ABC Plan is effectively hourly/per-minute pay designed to circumvent hourly-minimum protections; minutes are units of time so plan is not legitimate piecework | Xerox: ‘‘Production minutes’’ function as units of production sold to the client (Verizon); the per-minute pay operates like a piece-rate system and thus permits weekly averaging | The Ninth Circuit certified the question to the Washington Supreme Court as a controlling unsettled state-law issue; further proceedings stayed pending the state court’s answer |
Key Cases Cited
- Alvarez v. IBP, Inc., 339 F.3d 894 (9th Cir. 2003) (hourly employees retain a per-hour right to minimum wage)
- Kremen v. Cohen, 325 F.3d 1035 (9th Cir. 2003) (criteria for certifying state-law questions to state supreme court)
- Broad v. Mannesmann Anlagenbau AG, 196 F.3d 1075 (9th Cir. 1999) (state court may reformulate certified question)