141 Wash. 2d 517 | Wash. | 2000
Lead Opinion
— Petitioners Patrick S. Inniss, Sam R. Lopez and Adnan I. Haq seek review of a decision of the Court of Appeals, Division One, which affirmed an order of summary judgment by the King County Superior Court in favor of their employer, Respondent Tandy Corporation, in their action challenging calculation of their overtime compensation. The Court of Appeals concluded in an unpublished opinion the employment practice of a “fluctuating workweek” did not violate the Washington Minimum Wage Act, chapter 49.46 RCW, when calculating overtime compensation at “one and one-half times the regular rate” under RCW 49.46.130(1)
QUESTION PRESENTED
The question presented in this case is whether the employment practice of utilizing a “fluctuating workweek” violates the Washington Minimum Wage Act when calculating overtime compensation at “one and one-half times the regular rate” under RCW 49.46.130(1).
STATEMENT OF FACTS
The material facts are not in dispute.
B. Employment Relationship. This compensation plan is not an employment contract but only a method of calculating the manager’s total earnings and it is understood that the employment relationship with Radio Shack is an at will relationship.
C. Base Pay. The “V” Store Manager will be paid a base salary as straight time pay for all hours worked each workweek. The base salary shall be determined by the number of complete years of continuous service worked as a Radio Shack Retail Store Manager and shall be structured as shown in the chart below. The base salary will be paid on a weekly or bi-weekly basis as determined by state law.
Overtime will be paid at one-half the calculated regular rate (obtained by dividing the number of hours worked in the workweek into the weekly base salary amount) for all hours worked over forty (40) in any workweek.
Tenure Salary Weekly Examples of annual pay for 54 hour workweek
Less than 1 year $15,938 $306.50 $18,000
1 to 2 years $16,819 $323.45 $19,000
2 to 3 years $17,706 $340.50 $20,000
3 to 4 years $18,590 $357.50 $21,000
More than 4 years $ 19,479 $374.60 $22,000
Adjustments to the base pay for tenure shall be effective at the beginning of the first pay period beginning after the completion*521 of each full year of continuous service as a retail store manager.
L. Work Week, [sic] The manager will typically be scheduled to work 6 days per week.[6 ]
In 1993, the minimum hourly wage in the State of Washington for an employee “who [had] reached the age of eighteen years” was $3.85 per hour.
On October 9, 1996, Petitioners filed a complaint against Respondent in the King County Superior Court claiming they were not compensated “at a rate of one and one-half times their regular rate of pay for [their] overtime work”
On July 23, 1997, Petitioners filed a notice of appeal to the Court of Appeals, Division One.
Petitioners Inniss, Lopez and Haq petitioned this Court for review of the decision of the Court of Appeals. Review was granted on January 7, 2000.
DISCUSSION
Standard of Review
This Court reviews an order of summary judgment de novo.
Interpretation of a statute is a question of law.
Minimum rate of compensation for employment in excess of forty horn* work week [sic] — Exceptions. (1) Except as otherwise provided in this section, no employer shall employ any of his employees for a work week [sic] longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-halftimes the regular rate at which he is employed.
(Emphasis added.)
The Washington Minimum Wage Act
In 1975, the Legislature enacted RCW 49.46.130 to conform state minimum wage laws to the federal Fair Labor Standards Act of 1938.
*524 (a) Employees engaged in interstate commerce; additional applicability to employees pursuant to subsequent amendatory provisions.
(1) Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-halftimes the regular rate at which he is employed.
(Emphasis added.) The Fair Labor Standards Act of 1938
When construing provisions of the Washington Minimum Wage Act, this Court may consider interpretations of comparable provisions of the Fair Labor Standards Act of 1938 as persuasive authority.
In Walling v. A.H. Belo Corp., the United States Supreme Court recognized the complexity of employment relationships and declined to provide a rigid definition of “regular rate” under the Fair Labor Standards Act of 1938.
In Missel, an employee worked irregular hours for a fixed
No problem is presented in assimilating the computation of overtime for employees under contract for a fixed weekly wage for regular contract hours which are the actual hours worked, to similar computations for employees on hourly rates. Where the employment contract is for a weekly wage with variable or fluctuating hours the same method of computation produces the regular rate for each week. As that rate is on an hourly basis, it is regular in the statutory sense, inasmuch as the rate per hour does not vary for the entire week, though week by week the regular rate varies with the number of horns worked.[34 ]
This Court may also consider the Code of Federal Regulations (C.F.R.) as persuasive authority.
§ 778.114 Fixed salary for fluctuating hours.
(a) An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working 40 hours or some other fixed weekly work period, such a salary arrangement is permitted by the Act if the amount of the salary is sufficient to provide compensation to the employee at a rate*526 not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours he works is greatest, and if he receives extra compensation, in addition to such salary, for all overtime hours worked at a rate not less than one-half his regular rate of pay. Since the salary in such a situation is intended to compensate the employee at straight time rates for whatever hours are worked in the workweek, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable hourly rate for the week. Payment for overtime hours at one-half such rate in addition to the salary satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate, under the salary arrangement.
(b) The application of the principles above stated may be illustrated by the case of an employee whose hours of work do not customarily follow a regular schedule but vary from week to week, whose overtime work is never in excess of 50 hours in a workweek, and whose salary of $250 a week is paid with the understanding that it constitutes his compensation, except for overtime premiums, for whatever hours are worked in the workweek. If during the course of 4 weeks this employee works 40, 44, 50, and 48 hours, his regular hourly rate of pay in each of these weeks is approximately $6.25, $5.68, $5, and $5.21, respectively. Since the employee has already received straight-time compensation on a salary basis for all hours worked, only additional half-time pay is due. For the first week the employee is entitled to be paid $250; for the second week $261.36 ($250 plus 4 hours at $2.84, or 40 hours at $5.68 plus 4 hours at $8.52); for the third week $275 ($250 plus 10 hours at $2.50, or 40 hours at $5 plus 10 hours at $7.50); for the fourth week approximately $270.88 ($250 plus 8 hours at $2.61 or 40 hours at $5.21 plus 8 hours at $7.82).
(c) The “fluctuating workweek” method of overtime payment may not be used unless the salary is sufficiently large to assure that no workweek will be worked in which the employee’s average hourly earnings from the salary fall below the minimum hourly wage rate applicable under the Act, and unless the employee clearly understands that the salary covers whatever hours the job may demand in a particular workweek and the*527 employer pays the salary even though the workweek is one in which a full schedule of hours is not worked. Typically, such salaries are paid to employees who do not customarily work a regular schedule of hours and are in amounts agreed on by the parties as adequate straight-time compensation for long workweeks as well as short ones, under the circumstances of the employment as a whole. Where all the legal prerequisites for use of the “fluctuating workweek” method of overtime payment are present, the Act, in requiring that “not less than” the prescribed premium of 50 percent for overtime hours worked be paid, does not prohibit paying more. On the other hand, where all the facts indicate that an employee is being paid for his overtime hours at a rate no greater than that which he receives for nonovertime hours, compliance with the Act cannot be rested on any application of the fluctuating workweek overtime formula.
(Emphasis added.)
As illustrated under 29 C.F.R. § 778.114(b), the employment practice of a “fluctuating workweek” requires an employee to work hours which vary from week to week. There are two components necessary for determining the total weekly compensation for an employee under a fixed salary with fluctuating hours.
The first component is compensation for “straight time” or a normal 40-hour workweek. Straight time pay is calculated at the “regular rate” based upon a ratio of weekly base salary to total hours worked in the workweek, including overtime hours.
The second component is compensation for overtime work. Overtime pay is based upon hours in excess of 40 hours per
Combining the two components results in an employee’s total weekly compensation, which may thus be expressed in a mathematical formula as:
40 hours x r "N Weekly Base Salary 40 hours+ overtime hours V J +Overtime Hours x 1.5 x Weekly Base Salary 40 hours + overtime hours Total weekly compensation
The formula assumes an employee has a workweek of at least 40 hours for “straight time pay.” But even if thé employee works less than 40 hours, an employer and employee may operate under a clear mutual understanding that the weekly base salary is straight time “compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number. . . .”
An employee’s total weekly compensation may then be expressed as:
Weekly Base Salary r + Overtime Hours V. X 0.5 x r y'' Weekly Base Salary 40 hours + overtime hours _ J _ Total Weekly Compensation
Under this formula, 0.5 x (weekly base salary 4 (40 hours
The regressive reduction of hourly rate with a corresponding increase in overtime hours is illustrated on this chart:
[[Image here]]
The Washington State Department of Labor and Industries, following the approach utilized under 29 C.F.R. § 778.114, permits “the regular rate of pay. . . [to] be determined by dividing the amount of compensation received per week by the total number of hours worked during that week.”
“It is true that the longer the hours, the less the rate and the pay per hour. This is not an argument, however, against [the fluctuating workweek] method of determining the regular rate of employment for the week in question.”
In this case, Respondent’s compensation plan (which declares it is “not an employment contract”) defines “regular rate” by “dividing the number of hours worked in the workweek into the weekly base salary amount.” It provides a chart in which a weekly base salary of $306.50 results in annual pay of $18,000.00 for a 54-hour workweek. Respondent is following the approach adopted by the United States Department of Labor and the Washington State Department of Labor and Industries. The total weekly compensation for a 54-hour workweek is calculated under the following formula:
14 hours C$306-50 ~j _ Total Weekly + overtime x 1-5 x I 54 hours J Compensation 40 hours $306.50 54 hours
In simpler form, application of the formula results in the following determination of total weekly compensation:
Straight time pay
40 hours x $5.68 $227,20
Overtime pay
14 hours x 1.5 x $5.68 119.28
Total weekly compensation $346.48
With 52 weeks in a year, annual pay under this formula would total $18,016.96.
As stated in Missel, expressing the regular rate on an hourly basis per week still produces regularity “in the statutory sense, inasmuch as the rate per hour does not vary for the entire week. . . .”
Petitioners served as managers for Respondent from 1993 to 1996. In 1993, the minimum wage was $3.85 per hour, and effective from January 1, 1994 to December 31, 1998 it was increased to $4.90 per hour. The Court of Appeals correctly stated that because Petitioners’ wages never fell below the statutory minimum, Respondent complied with the requirements of the Washington Minimum Wage Act. The statutory minimum has two components based upon the minimum hourly wage under RCW 49.46.-020: one for straight time pay and one for overtime pay. Straight time pay is calculated by multiplying the 40 hours in a normal workweek by the minimum hourly wage under RCW 49.46.020. Overtime pay is calculated by multiplying the number of overtime hours at a rate of one and
If the total weekly compensation for any of the Petitioners were less than the statutory minimum for that week, Respondent would have violated the Washington Minimum Wage Act. This is not the case, however. Petitioners “concede that if all of [Petitioners’] commissions, [special incentive bonuses] and bonuses (including annual bonuses) are included in determining [Petitioners’] regular rate of pay, [Petitioners] received at least [the statutory minimum hourly wage].”
Respondent’s calculation of overtime compensation under a fluctuating workweek does not violate RCW 49.46.130(1) under the Washington Minimum Wage Act. The Court of Appeals correctly observed that persuasive authorities interpreting a comparable provision under the Fair Labor Standards Act of 1938 support Respondent’s Statutory Minimum Minimum Hourly Wage Under RCW 49.46.020 Overtime Hours Minimum Hourly Wage Under RCW 49.46.020 definition of “regular rate” as a ratio of weekly base salary to the total number of hours worked in a workweek. Similarly, interpretation of the term “regular rate” under RCW 49.46.130(1) is sufficiently broad and flexible to permit Respondent to calculate overtime compensation under a fluctuating workweek. In doing that, Respondent does not violate a stated purpose of the Washington Minimum Wage Act because the actual weekly compensation for each Petitioner was never less than the
SUMMARY AND CONCLUSION
This Court reviews an order of summary judgment de novo and will affirm an order if the moving party is entitled to judgment as a matter of law. Interpretation of a statute is a question of law. At issue in this case is interpretation of RCW 49.46.130(1) of the Washington Minimum Wage Act, which requires employers to compensate their employees for overtime hours “at a rate not less than one and one-half times the regular rate . . . .” The term “regular rate” is not defined in the statute.
In the absence of a definition, this Court may consider United States Department of Labor interpretations of “regular rate” under 29 U.S.C. § 207 (a)(1) of the Fair Labor Standards Act of 1938 as persuasive authority. Those authorities permit “regular rate” to be interpreted broadly and flexibly as a ratio of weekly base salary to the total number of hours worked in a workweek even if the hours fluctuate from week to week. By distinguishing between “hourly rate” and “regular rate” and by modeling RCW 49.46.130(1) after 29 U.S.C. § 207 (a)(1), the Legislature allowed a broad and flexible interpretation of the term “regular rate” under RCW 49.46.130(1) so long as the purposes of the Washington Minimum Wage Act are satisfied. One of those purposes is to establish a minimum for employee compensation.
In this case, the material facts are not in dispute. Each Petitioner worked at least 40 hours a week, the exact number of hours fluctuating from week to week. Under its compensation plan, Respondent defined “regular rate” as a ratio of the weekly base salary to the total number of hours worked in a workweek. Although the ratio decreases as the total number of hours increases, Respondent’s definition is a permissible interpretation of the term “regular rate” under RCW 49.46.130(1) because the term is subject to a broad and flexible interpretation unless Respondent vio
As a matter of law, Respondent’s calculation of Petitioners’ overtime compensation under a fluctuating workweek as specified in Respondent’s compensation plan did not violate RCW 49.46.130(1) under the Washington Minimum Wage Act.
We affirm the decision of the Court of Appeals, Division One, which affirmed the order of summary judgment by the King County Superior Court in favor of Respondent Tandy Corporation.
Guy, C.J., and Madsen, Sanders, and Bridge, JJ., concur.
Inniss v. Tandy Corp., 95 Wn. App. 1049, 1999 WL 325439, 1999 Wash. App. LEXIS 920, review granted, 139 Wn.2d 1021, 994 P.2d 850 (2000).
Id. at *1; Br. of Resp’t at 4; see also Clerk’s Papers 20-22, 152-56.
Clerk’s Papers at 2, Complaint filed Oct. 9, 1996.
Petitioner Inniss was employed by Respondent Tandy Corporation from May 4, 1994 to April 30, 1996. Clerk’s Papers at 51. Petitioner Lopez was employed from November 8, 1993 to May 1996. Id. at 78; Br. of Appellants at 2 n.l. Petitioner Haq was employed from January 27, 1993 to March 29, 1996. Clerk’s Papers at 115, 118.
Clerk’s Papers at 55, 67, 80, 116.
See, e.g., Clerk’s Papers at 93-100. From 1993 to 1996, Respondent had a new compensation plan for each year. Id. at 70-73, 86-92, 93-Í00, 130-37. There were no changes, however, in the material provisions concerning base pay and overtime compensation.
Laws op 1993, ch. 309, § 1. See former RCW 49.46.020 (1992).
RCW 49.46.020(1).
Clerk’s Papers at 209 n.l, Pis.’ Supplemental Mem.
Clerk’s Papers at 3.
See chapter 49.46 RCW.
Clerk’s Papers at 20-26.
Id. at 151-67.
Id. at 240-43.
Id. at 242.
Id. at 244-46.
Inniss v. Tandy Corp., 1999 WL 325439, at *1, 1999 Wash. App. LEXIS 920, at *1.
Id.
Order Granting Discretionary Review.
Fell v. Spokane Transit Auth., 128 Wn.2d 618, 625, 911 P.2d 1319 (1996).
Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998).
Barnes v. McLendon, 128 Wn.2d 563, 569, 910 P.2d 469 (1996); see CR 56(c).
Millay v. Cam, 135 Wn.2d 193, 198, 955 P.2d 791 (1998).
Chapter 49.46 RCW.
See RCW 49.46.010, which provides statutory definitions only for “[d]irector,” “[w]age,” “[e]mploy,” “[e]mployer,” “[e]mployee,” “[o]ccupation” and “[r]etail or service establishment.”
Br. of Appellants at 5-12.
Senate Journal, 44th Leg. (Wash. 1975) at 462, 555, 659, 1342, 1357, 1364, 1367, 1377, 2084, 2193 (concerning Engrossed Substitute H.B. 32).
29 U.S.C. §§ 201-219.
See 29 U.S.C. § 203, which provides statutory definitions only for “[p]erson,” “Mommerce,” “State,” “[ejmployer,” “employee,” “[algriculture,” “[ejmploy,” “[i]ndustry,” “[gjoods,” “[pjroduced,” “[sjale” or “sell,” “[ojppressive child labor,” “[wjage,” “[rjesale,” “[hjours [wjorked,” “American vessel,” “Secretary,” “[ejnterprise,” “[ejnterprise engaged in commerce or in the production of goods for commerce,” “[flipped employee,” “[m]an-day,” “Mlementary school,” “[sjecondary school,” “[plublic agency” and “[elmployee in fire protection activities.”
Weeks v. Chief of Wash. State Patrol, 96 Wn.2d 893, 897, 639 P.2d 732 (1982); Chelan County Deputy Sheriffs’ Ass’n v. County of Chelan, 109 Wn.2d 282, 291-92 n.3, 745 P.2d 1 (1987).
316 U.S. 624, 634-35, 62 S. Ct. 1223, 86 L. Ed. 1716 (1942).
316 U.S. 572, 579-80, 62 S. Ct. 1216, 86 L. Ed. 1682 (1942).
Id. at 574.
Id. at 580 (footnote omitted).
Tift v. Professional Nursing Servs., Inc., 76 Wn. App. 577, 583 n.6, 886 P.2d 1158, review denied, 127 Wn.2d 1007, 898 P.2d 309 (1995).
r “N Weekly Base Salary Straight time pay = 40 hours x 40 hours + overtime hours v J
_ .. Weekly Base Salary Overtime pay = Overtime x 1.5 x - Hours 40 hours + overtime hours v J
29 C.F.R. § 778.114(a) (emphasis added).
Id.
Weekly Base Salary 40 hours + overtime hours v J Overtime Hours x 0.5 x = Overtime pay
0.5 x ($250 ÷ 41 hours) = $3.05 per hour.
0.5 x ($250 ÷ 168 hours) = $0.74 per hour.
WAC 296-128-550 (emphasis added). See also Department of Labor and Industries Interpretive Guideline ES-032 at 3. This guideline provides in part:
*530 “Salary — Fluctuating Hours: When an employee is employed on a fixed salary and it is understood that the hours will fluctuate from week to week, and it is clearly understood that the fixed salary constitutes straight time pay for all hours of work, whatever the number. The regular rate is obtained for each week by dividing the salary by the number of hours worked in the week. Since it was understood that all hours would constitute straight time, all hours worked have already been paid at straight time compensation; however, the employee is still entitled to receive additional overtime compensation for each hour over 40 in the week at not less than one-half the regular rate.
“Example: An employee is hired at a fixed salary of $1,500.00 per month, with the understanding that this salary represents compensation regardless of the number of hours worked each week. The salary is converted to its weekly equivalent ($1,500.00 x 12 = 52). The weekly salary ($346.15) is then divided by the number of hours worked that week. During the course of three weeks the employee works 45, 48 and 50 hours. The regular hourly rate of pay in each of these weeks, respectively, is: $7.69, 7.21 and 6.92; straight time pay for all hours worked has already been paid at these regular rates, and only an additional half-time pay is due for each hour over 40. In addition to receiving the weekly salary of $346.15 for each week, the first week an additional payment of $19.25 (5.0 x $3.85) is due, second week $28.88 (8 x $3.61), and the third week $34.60 (10 hrs x $3.46).”
633 P.2d 998 (Alaska 1981).
Br. of Appellants at 11; Supplemental Br. of Pet’rs’ at 1, 3.
Missel, 316 U.S. at 580.
Dresser Indus., 633 P.2d at 1000.
Missel, 316 U.S. at 580.
RCW 49.46.130(3)(a), (4)(a).
RCW 49.46.130(3)(a) provides: “(3) No employer shall be deemed to have violated subsection (1) of this section by employing any employee of a retail or service establishment for a work week [sic] in excess of the applicable work week [sic] specified in subsection (1) of this section if: (a) The regular rate of pay of the employee is in excess of one and one-half times the minimum hourly rate required under RCW 49.46.020; and”
RCW 49.46.130(4)(a) provides: “No employer of commissioned salespeople primarily engaged in the business of selling automobiles, trucks, recreational vessels, recreational vessel trailers, recreational vehicle trailers, recreational campers, manufactured housing, or farm implements to ultimate purchasers shall violate subsection (1) of this section with respect to such commissioned salespeople if the commissioned salespeople are paid the greater of: (a) Compensation at the hourly rate, which may not be less than the rate required under RCW 49.46.020, for each hour worked up to forty hours per week, and compensation of one and one-half times that hourly rate for all hours worked over forty hours in one week; or”
RCW 49.46.005.
f 40 hours x v Minimum Hourly Wage Under RCW 49.46.020 J Overtime x j 5 x Hours v Minimum Hourly Statutory Wage Under = Minimum RCW 49.46.020 J
Clerk’s Papers at 209 n.1, Pls’ Supplemental Mem.
Dissenting Opinion
(dissenting) — Under the Washington Minimum Wage Act, chapter 49.46 RCW, a person is entitled to overtime compensation paid at one and one-half times their regular rate of pay if that person works more than 40 hours in a week. RCW 49.46.130(1)
The majority has accurately described the facts of this case. The plaintiffs are managers for Radio Shack who possess Master of Business Administration degrees and are paid a base pay plus certain commissions, bonuses, and incentive bonuses. These managers were expected to work in excess of 40 hours per week, but were paid not as exempt managerial staff (see RCW 49.46.010(5)(c); WAC 296-128-510 (executive exemption)) but on a so-called fluctuating workweek basis. Yet, the managers’ fluctuating workweek never really fluctuated; they always' worked more than 40 hours per week.
Without getting into the mathematical calculation of wages in this case, there is no question the managers paid under Radio Shack’s formula worked in excess of 40 hours per week; but for each hour of work beyond 40, they were effectively paid less remuneration as their workweek lengthened in duration. Rather than offering an incentive to employers to spread employment and hire additional workers, an employer like Radio Shack would have an actual incentive to work employees, like their managers, an ever increasing number of hours because the effective rate
The majority interprets RCW 49.46.130(1), which provides for time-and-a-half compensation for overtime, consistently with the FLSA because the Washington statute does not define the term “regular rate.” The majority adopts the concept of a fluctuating workweek from federal law as a part of the definition of “regular rate” in RCW 49.46.130(1). See, e.g., Walling v. A.H. Belo Corp., 316 U.S. 624, 62 S. Ct. 1223, 86 L. Ed. 1716 (1942) and Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 62 S. Ct. 1216, 86 L. Ed. 1682 (1942). The majority also notes a specific federal regulation provides for a fluctuating workweek as part of the FLSA definition of an employee’s regular rate for purposes of overtime compensation. See 29 C.F.R. § 778.114. The majority believes our Department of Labor and Industries has followed the approach articulated in 29 C.F.R. § 778.114 with the adoption of WAC 296-128-550 and the Department’s Interpretive Guideline ES-032 at 3 (July 1992); Clerk’s Papers at 29.
As we clearly indicated in Drinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 298, 996 P.2d 582 (2000), chapter 49.46 RCW and the FLSA are not identical; thus, we are not bound by such federal authority. Nonetheless, the FLSA may be a helpful guide when interpreting Washington’s wage and hour laws. Id.
But, I cannot justify importing into Washington law this federal fluctuating workweek policy when the employee’s workweek does not truly fluctuate. If the managers’ workweek actually fluctuated above or below 40 hours per week, it is conceivable the policy may have some fairness for both employers and employees. But in cases such as this one, where the employer uses this policy as a justification to work employees far beyond 40 hours per week for wage rates that effectively diminish with the more hours worked, we should not enforce such a policy. Instead of carrying out the ostensible policy of overtime compensation laws — to pay employees more for work beyond 40 hours per week and to
The purpose of overtime wage laws is to encourage employers to spread employment by hiring additional workers rather than paying overtime. See, e.g., Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 460, 68 S. Ct. 1186, 92 L. Ed. 1502 (1948). In fact, some courts across the United States have held the fluctuating workweek concept defeats the very purpose of overtime wage statutes. The Alaska Supreme Court reached this conclusion regarding its minimum wage law in Dresser Industries, Inc. v. Alaska Department of Labor, 633 P.2d 998 (Alaska 1981). In that case, the Alaska Supreme Court held the use of the fluctuating workweek allows employers to decrease the workers’ average hourly wage as the workers’ overtime increases, which “contravenes the policies of requiring increased overtime compensation and promoting the spreading of employment.” Id. at 1006. See also Skyline Homes, Inc. v. Department of Industrial Relations, 165 Cal. App. 3d 239, 211 Cal. Rptr. 792 (1985). These states are correct. A fluctuating workweek concept, as practiced here, is inconsistent with RCW 49.46.130(1).
Although we have determined the fluctuating workweek concept may not be applied in this case, we have not resolved all the issues in this case. The calculation of an employee’s base rate of pay includes salary, commissions, and certain bonuses. See WAC 356-05-353. The trial court here made no explicit findings with respect to the managers’ base rate of pay for purposes of overtime wage compensation. I would remand the case to the trial court for
Johnson, Alexander, and Ireland, JJ., concur with Talmadge, J.
Reconsideration denied October 18, 2000.
RCW 49.46.130(1) states:
Except as otherwise provided in this section, no employer shall employ any of his employees for a work week longer than forty hours unless such employee*536 receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.
Radio Shack argues the managers did not expressly attack the propriety of WAC 296-128-550 as against RCW 49.46.130(1). The entire focus of the managers’ complaint here is the impropriety of the fluctuating workweek under our overtime compensation law. Clerk’s Papers 13A at 3. The issue is sufficiently preserved for judicial review. See generally State v. Barker, 98 Wn. App. 439, 446 n.26, 990 P.2d 438 (1999) (stating a Washington appellate court has the authority to waive the rules of appellate procedure when necessary “to serve the ends of justice”) (citing RAP 1.2(c)); see Sutton v. Hirvonen, 113 Wn.2d 1, 8, 775 P.2d 448 (1989) (stating a reviewing court may consider an issue not raised in the trial court if justice demands) (citing RAP 1.2(a), (c)).
