Although RCW ¤ 49.46.100(2), a section of the Minimum Wage Act, prohibits retaliation against those who complain about wage-and-hour violations1 and has been on the books for 47 years, there is very little case law discussing it. What there is, however, has helped shape the legal parameters of a wage-and-hour retaliation claim and demonstrates that the elements involved in presenting or defending claims brought under the statute are no different than those of other claims based upon a recognized public policy exception to the employment-at-will doctrine, including other sections of Chapter 49.46.2
In any public policy case, the initial burden is on the plaintiff to present a prima facie case that his or her discharge contravened a clear mandate of public policy.3 In Gardner v. Loomis Armored, Inc.,4 the Washington Supreme Court adopted a four-part test for analyzing wrongful discharge claims involving violations of public policy.
- The plaintiffs must prove the existence of a clear public policy (the clarity element).
- The plaintiffs must prove that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element).
- The plaintiffs must prove that the public-policy-linked conduct caused the dismissal (the causation element).5
- The defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element).6
Once a plaintiff makes out his prima facie case, the burden shifts to the employer - in standard McDonnell Douglas fashion - to prove the dismissal was for reasons other than those alleged by the employee, i.e., a legitimate, non-pretextual, non-retaliatory reason. The plaintiff must show that his protected activity was a "substantial factor" in the employer's discharge decision.7
RCW ¤ 49.46.100(2) applies to retaliation for any wage-related complaint, not just minimum wage situations, and provides the public policy basis for a retaliatory discharge civil action. "RCW 49.46.100 prohibits employer retaliation against employees who assert wage claims, and we have held employers who engage in such retaliation liable in tort for violation of public policy under this provision."8
Hume, however, only scratched the surface of this particular cause of action. The four plaintiffs in Hume filed claims, among others, asserting constructive discharge based upon their complaints regarding their former employer's overtime compensation policies and their resulting treatment. The plaintiffs invoked the statute and sought damages for "harassment and constructive discharge ... suffered as retaliation for requesting overtime pay from their former employers."9 The jury found for three of them. But the Supreme Court merely held that the verdicts were supported by substantial evidence without parsing the requisite elements of a claim asserted under the statute.
Since Hume was decided in 1994, only three other cases have substantively addressed claims brought under RCW ¤ 49.46.100(2). In Lavin v. Bon Appetit Management Co.,10 the court held that the statute does not apply to employers other than the one against which the wage claim is filed.
Lavin claimed that he was the victim of unlawful retaliation by two of his former employees, Marriott and Bon Appetit. Judge Carolyn Dimmick dismissed the claim against Marriott, finding that the statute did not apply to Marriott where it had discharged Lavin after finding out that he had filed a claim against Bon Appetit, his former employer, with the Department of Labor and Industries for unpaid overtime wages.11
In a case of first impression, Judge Dimmick found that references in RCW ¤ 49.46.100(2) to "any employer" and "his employer" to be "somewhat ambiguous" with respect to which employer or employers it refers. In finding against Lavin, Judge Dimmick rejected his argument "that the purpose of the statute is to enable employees to file wage claims without fear of suffering reprisals" and that this purpose "would be undermined if all future employers could punish the claimant for asserting his rights."12 Judge Dimmick found:
Washington courts would not recognize a retaliation claim against a subsequent employer. Such a reading of the law would enable a claimant to sue any employer that treated him adversely, by claiming retaliation for the original claim. It appears more likely that the statute was intended to protect employees who wished to make a claim against their contemporaneous employer but feared retaliation from that employer for doing so.13
In Jaffe v. Kinko's, Inc.,14 the Washington Court of Appeals held that RCW ¤ 49.46.100(2) does not apply to claims that do not implicate the broader public policy underlying the statute, but only aim to further personal issues. One of Jaffe's claims "seem[ed] to be based," the court said, on an assertion that Kinko's failed to pay him commissions because he opposed the discriminatory termination of a co-worker.15
Applying the standard burden-shifting analysis, the court found that Jaffe's complaints about Kinko's commission policy were not sufficient to meet his prima facie burden because they "were not made to further any public good." Rather, they were made to further his own "private and proprietary interests."16 In effect, the court found that Jaffe believed he was personally being underpaid, rather than not being paid what he was legally entitled to. Alternatively, the court held that Jaffe had not overcome Kinko's "overriding justification for (his) dismissal,"17 thereby bringing the burden-shifting analysis full circle.
Finally, in a case decided by Division Two in April,18 the Court of Appeals - in reversing dismissal of the plaintiff's wrongful discharge claim under various statutes, including RCW ¤ 49.46.100(2) - affirmed the "clear mandate of public policy" underlying the statute.
The plaintiff, Steven L. Winter, alleged that he was fired because he had complained that Toyota of Vancouver had deducted earned wages from his pay without consent and he had threatened to report Toyota to the Department of Labor and Industries.19 The court found that Winter's wage-based claims fell within one of four categories where the Washington Supreme Court "has recognized a tort action for wrongful discharge[:] É where the termination resulted from an employee's É exercise of a legal right or privilege."20
Citing RCW ¤ 49.46.100(2) and other sections of Chapter 49.46, the court held:
Clearly, employers who retaliate against employees for asserting wage claims under chapter 49.46 RCW are liable for the tort of wrongful discharge in violation of public policy.21 Thus, an employee's right to receive wages due, in compliance with chapter 49.46 RCW, is among the legal rights protected by the tort of wrongful discharge in violation of public policy.22
Under those principles and applying the Wilmot standard, the court found that Winter had presented a prima facie case sufficient to withstand Toyota's motion to dismiss.
He alleged that Toyota unlawfully deducted earned wages from his and other employee paychecks without their consent and then fired him because he complained about it and threatened to report the unlawful conduct to L&I, thereby informing Toyota of his intent to exercise his statutory rights.23
But the court also noted that, on remand, Winter would be required to overcome Toyota's assertions of non-discriminatory reasons for his discharge.24
Gene Barton is the editor of the Bar Bulletin and a shareholder with Karr Tuttle Campbell in Seattle. His practice focuses on commercial litigation, insurance defense and coverage, and appellate practice. He can be reached at 206-224-8030 or gbarton@karrtuttle.com. Johanna Ogdon is a summer associate at Karr Tuttle Campbell and will be a 3L at the Seattle University School of Law this fall.
1 RCW ¤ 49.46.100(2) provides:
Any employer who discharges or in any other manner discriminates against any employee because such employee has made any complaint to his employer, to the director [of labor and industries], or [the director's] authorized representatives that he has not been paid wages in accordance with the provisions of this chapter, or that the employer has violated any provision of this chapter, or because such employee has caused to be instituted or is about to cause to be instituted any proceeding under or related to this chapter, or because such employee has testified or is about to testify in any such proceeding shall be deemed in violation of this chapter and shall, upon conviction therefor, be guilty of a gross misdemeanor.
2 See Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984).
3 See Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 953 (1996) (Madsen, J., dissenting) ("[I]t is significant that most Washington cases finding a public policy violation have identified a single statute that clearly sets forth the relevant policy.") (citing Hayes v. Trulock, 51 Wn. App. 795, 755 P.2d 830, rev. denied, 111 Wn.2d 1015 (1988)). An employer's violation of a statute contravenes a clear mandate of public policy. See Bravo v. Dolsen Cos., 125 Wn.2d 745, 757Ð58, 888 P.2d 147 (1995).
4 128 Wn.2d 931, 936, 913 P.2d 377 (1996).
5 See also Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 176, 876 P.2d 435 (1994) (holding that the public policy exception to the terminable-at-will doctrine does not apply absent a nexus between the discharge and the claimed violation of public policy).
6 See also Hibbert v. Centennial Villas, Inc., 56 Wn. App. 889, 894, 786 P.2d 309 (1990).
7 See Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 70, 73, 821 P.2d 18 (1991) (establishing standard in public policy wrongful discharge case based upon exercise of workers' compensation rights).
8 Hume v. American Disposal Co., 124 Wn.2d 656, 662, 880 P.2d 988 (1994). Hume, an overtime case, cites Thompson for this proposition. Thompson, however, did not involve retaliatory discharge for asserting a wage-and-hour claim or complaint. But it does mention RCW ¤ 49.46.100 as one of several statutes that limit an employer's right to discharge. 102 Wn.2d at 226.
9 124 Wn.2d at 662.
10 29 F. Supp. 2d 1194 (W.D. Wash. 1998).
11 Id. at 1195.
12 Id. at 1196.
13 Id.
14 No. 47443-0-I, 2002 Wash. App. LEXIS 1042 (Div. 1, May 13, 2002).
15 Id. at *29.
16 Id.
17 Id. at *30.
18 Winter v. Toyota of Vancouver USA, Inc., No. 33361-9-II, 2006 Wash. App. LEXIS 639 (Div. Two, April 11, 2006).
19 Id. at *1Ð2.
20 Id. at *8.
21 Citing Hume, 124 Wn.2d 656.
22 2006 Wash. App. LEXIS 639 at *11 (citing Young v. Ferrellgas, L.P., 106 Wn. App. 524, 531, 21 P.3d 334 (2001) (overtime case under RCW ¤ 49.46.130(1)); 2006 Wash. App. LEXIS 1561 at *1 (on motion for reconsideration).
23 2006 Wash. App. LEXIS 639 at *12.
24 Id. at *14.
