Ledger Square Law Helps Dunk Unlawful Local Initiatives Sponsored by Save Tacoma Water

Clock Tower Tacoma

Seeking to influence the administration of water rights for future development,  a group of concerned Tacoma citizens (organized as “Save Tacoma Water” or STW) sought to place local initiatives on the ballot to amend Tacoma City Code and the Tacoma City Charter to require a public vote for any future water use application exceeding one million gallons per day (“STW Initiatives”).  Because the proposed STW Initiatives were facially invalid under established state law, Ledger Square Law attorney Jason Whalen, representing member investors of the Economic Development Board of Tacoma-Pierce County, teamed with attorneys representing the City of Tacoma, the Port of Tacoma, and the Tacoma-Pierce County Chamber of Commerce (collectively, as Plaintiffs), to score a significant legal victory which sustains the rule of law regarding appropriate, pre-ballot court review of local citizen initiatives.  Today’s ruling provides certainty for the Port of Tacoma, the EDB, and the Chamber over the City’s administration of water and water rights for prudent economic development in our community.   The ruling also saves the citizens of Tacoma thousands of dollars in unnecessary expense in placing unlawful measures on the ballot.

After significant briefing and lengthy oral argument, the Pierce County Superior Court Judge Jack Nevin granted Plaintiffs declaratory and permanent injunctive relief, finding that the STW Initiatives, as written, exceeded the permissible scope of local initiative power and were therefore invalid, as a matter of law.  By court order, the STW Initiatives are now precluded from placement on the November 2016 ballot—or any other ballot in the future, regardless of the signature validation by the County Auditor. 

The Court’s ruling properly relied upon the Washington Supreme Court’s recent decision in Spokane Entrepreneurial Center v. Spokane Moves to Amend Constitution, 185 Wn.2d 97 (2016), in holding the STW Initiatives legally invalid.

Please join Pierce County Washington Women Lawyers on August 26 for their annual J-Fab event!

JFab Flyer

Each year, the PCWWL honors a local woman who is just fabulous for who she is and all she does for the community. Honoree this year is Jessica Hogan, a teacher and artist with Hilltop Artists, a local organization dedicated to improving the lives of young people through art. 

The event will be held from 5:30-8pm on August 26 at Ledger Square Law at 710 Market Street. PCWWL will also be collecting school supplies for children at the YWCA at this time. 

No RSVP is necessary. We look forward to seeing you there!

On The Employer’s Time – Washington’s Supreme Court Rules on Paid Rest Breaks for Agricultural Employees Paid on a Piece Rate Basis.

On July 16, 2015, the Washington Supreme Court issued a ruling interpreting the statutory requirement for agricultural employees to receive paid breaks as applied to those paid solely on a piece rate basis.

By law, employees in Washington are entitled to short rest breaks “on the employer’s time.” In the case of hourly employees, that means employers must pay the employees their regular hourly rate during these breaks. In other words, hourly employees remain “on the clock” during these breaks.

Piece rate employees, however, are paid at a rate tied directly to their production, not time or hours worked. Thus, as the Court observed in Demetrio v. Sakuma Bros. Farms, Inc., 2015 Wash. LEXIS 807 (Wash. July 16, 2015), “the clock stops during periods of inactivity however brief.”

In Demetrio, seasonal agricultural workers employed to harvest crops on a berry farm in Skagit County brought an action against the farm for unpaid wages, specifically their rest breaks. While this action was in Federal District Court, and the parties settled without admission of wrongdoing, Washington’s Supreme Court was asked to answer two certified questions:

Whether a Washington agricultural employer has an obligation under WAC 296-131-020(2) and/or the Washington Minimum Wage Act to separately pay piece rate workers for the rest breaks to which they are entitled; and if so, how must Washington agricultural employers calculate the rate of pay for the rest break time to which piece rate workers are entitled?

WAC 296-131-020(2) applies to agricultural employees, and provides:

Every employee shall be allowed a rest period of at least ten minutes, on the employer’s time, in each four-hour period of employment. For purposes of computing the minimum wage on a piecework basis, the time allotted an employee for rest periods shall be included in the number of hours for which the minimum wage must be paid.

In its analysis, the Court examined the language “on the employer’s time” specifically. In doing so, it held that the only reasonable interpretation is that “on the employer’s time” requires pay separate from the piece rate. Since the piece rate is earned only while the employee is working (i.e., no pay accrues during rest breaks) the employees’ rest breaks cannot reasonably be said to be “on the employer’s time” if paid by the piece. As such, piece rate employees were effectively financing their own breaks, in that they were forfeiting pay in order to take them. The Court further concluded that the only way to give meaning to the phrase “on the employer’s time” in this context is to require compensation separate from the piece rate for rest breaks.

In answering in the affirmative to the first certified question, the Court then turned to the second question: how is this separate rate of pay calculated for these piece rate employees?

Based on previous case law and policy behind payment during rest breaks, the Court rejected the notion that this separate pay should be based solely on minimum wage. It reasoned that because all hours worked “on the employer’s time” are treated equally, the WAC entitles pieceworkers to their regular rate of pay for rest break time. This regular rate of pay is calculated by tallying the total piece rate earnings and dividing those earnings by the hours the pieceworkers worked, excluding the time spent resting. This formula yields the average rate of pay pieceworkers earn during active production—their regular rate. It also prevents rest break time from being double counted. This method of calculation is devised to prevent employers from paying rest breaks at a lower rate than production, thus providing an incentive to employees to miss breaks.

While this analysis applies directly to agricultural piece rate workers, this ruling is a reminder that prudent employers may wish to examine their operations closely for practices or policies that incentivize employees to ignore or disregard rest breaks or other benefits provided by statute to employees, and the importance of staying up to date on the latest in labor laws and regulations.

This opinion is the latest of developments in the employment law field, and comes on the heels of a number of wage and hour updates. In the past year, increased minimum wage laws, a trend towards mandatory paid sick leave, and the Department of Labor’s proposed rule updating FLSA coverage for employees exempt from overtime are just a few of the many issues employers should be aware of. The lawyers at Ledger Square Law are dedicated to protecting your interests. Give us a call to discuss your wage and hour issues before they result in protracted and expensive litigation.

Washington Supreme Court Issued Ruling For Lenders Right’s

On January 8, 2015, the Washington Supreme Court issued a ruling protecting lenders’ rights to pursue deficiency judgments against guarantors of commercial loans when the property securing such loans has been reacquired through foreclosure. In Washington Federal v. Harvey, Supreme Court Case No. 90078-7, the State Supreme Court held that guarantors in that case were not shielded from a deficiency judgment against them for two reasons. First, the guarantors had not secured their own guaranties by granting deeds of trust and second, even if they had, “the foreclosed properties are not protected from deficiency judgments under the DTA (Washington’s Deed of Trust Act).” Whether you are a lender, borrower, or guarantor of another borrower, the importance of clear documentation of the transaction cannot be understated. Our years of experience in banking law allows us to provide concise guidance to financial institutions, borrowers, or guarantors involved in almost any transaction. The cost of a short document review can pale in comparison to the financial problems that the parties discover in cases like Harvey. Lender, borrower, or guarantor, let us help you on the front end, saving you from headaches on the back end. Find more information about Ledger Square Law P.S. at www.ledersquarelaw.com