A Simple Guide to Suing to Collect Wages

By Jeffrey Herman
Washington State has a good toolbox for any litigator seeking to recover wrongfully-withheld wages for a client, if you know where to look.

There are two partially-overlapping wage statutes in RCW 49.48 and RCW 49.52. their combination is powerful. RCW 49.48.010 provides when any employee ceases to work for an employer, whether the employee resigns or is terminated, the employer must pay all wages owing at the end of the employment. The statute provides that any employer-whether a person, firm, or corporation that violates RCW 49.48.010 is “guilty of a misdemeanor.”

There are two separate statutory provisions giving plaintiffs the right to recover attorneys’ fees in wage collection actions. RCW 49.48.030 provides: “In any action in which any person is successful in recovering judgment for wages and salary owed to him,” the court “shall” assess attorneys’ fees against the employer. This provision only grants fees to the prevailing plaintiff, not the prevailing defendant. Also the word “shall” is mandatory, so the court has discretion only to determine the amount of fees. However fees cannot be recovered if the recovery is as much or less than the employer admitted was owing.

RCW 49.52.050 provides that an employer who “willfully and with intent to deprive” pays the employee less than the employer is obligated to pay by statute or contract “shall be guilty of a misdemeanor.” Note that underpayment in breach of contract is a crime according to this statute, but willful withholding must be shown. Under the rule in Ebling v. Gove’s Cove, 34 Wn.App. 495, 663 P.2d 132 (1983), a salesperson’s commissions are recoverable under this statute. Naturally, litigation has often centered around whether withholding was “willful,” and most courts recently have been holding that such withholding was not “willful.”

Also, RCW 49.52.070 provides that “any employer and any officer, vice principal or agent” that underpays an employee in breach of statute or contract, is liable for “twice the amount of wages unlawfully rebated or withheld by way of exemplary damages, together with costs of suit and a reasonable sum for attorneys’ fees.” RCW 49.52.070. This statute has real teeth. It allows the employee to pursue not just a possibly-defunct corporation, but also to pursue officers or agents of the corporation personally, and renders them potentially criminally liable.

These statutes can be used synergistically, and the litigator should always request all remedies authorized under RCW 49.48 and 49.52 for withholding of wages.

First, serve the defendants with Requests for Admission showing the deficient pay stubs. Second, serve the defendant with a CR 43 (f) notice, requiring the personal appearance of the defendant, and then have the judge or arbitrator give such a defendant a Fifth Amendment warning. The defendant will then likely refuse to testify. The plaintiff will then be entitled to a directed verdict at the close of his or her case, because only the plaintiff’s evidence regarding wages due will be before the court. The plaintiff can then argue that such withholding was willful because there is no evidence of innocent intent before the court. I’ve never gotten a chance to try this out, but I bet it would be a lot of fun.

Generally Washington litigators can recover punitive damages only if they are asserting the rights of big businesses with friends in the Legislature: for trade secrets violations (think Boeing), for copyright infringement (think Micro-soft), or for timber trespass (think Weyerhaueser, Plum Creek, Simpson, et al.). On this Labor Day it’s reassuring to think that ordinary employees who have been shortchanged by their employers have a right to get punitive damages and attorneys’ fees as well, and employers who oppose their claims run the risk of incriminating themselves. Don’t forget that commissioned salespersons and independent contractors working under a contract have all of the same rights. Happy Labor Day!