Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 44262-7-I
Title of Case: Michael J. Martini, Appellant
v.
Employment Securty Dept., et al., Respondents
File Date: 01/10/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 98-2-16241-4
Judgment or order under review
Date filed: 02/18/1999
Judge signing: Hon. William L. Downing
JUDGES
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Authored by William W. Baker
Concurring: Susan R. Agid
Faye C. Kennedy
COUNSEL OF RECORD
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Counsel for Appellant(s)
Patricia J. Arthur
Evergreen Legal Services
Ste 301
101 Yesler
Seattle, WA 98104
Pamela J. Crone
Box 354563
4045 Brooklyn Ave NE
Seattle, WA 98105
Counsel for Respondent(s)
Daphne J. Huang
900 4th Ave #2000
Seattle, WA 98164
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
MICHAEL J. MARTINI, )
) DIVISION ONE
Appellant, )
) NO. 44262-7-I
vs. )
) PUBLISHED OPINION
STATE OF WASHINGTON, )
EMPLOYMENT SECURITY DEPT., and ) FILED:
CREW SHUTTLE SERVICES, INC., )
)
Respondents. )
)
BAKER, J - Michael J. Martini voluntarily quit his job as a driver with a
transportation company whose compensation policies did not guarantee a
minimum wage and violated the Washington Minimum Wage Act. Because the
employer admittedly knew of the factual circumstances that gave rise to the
violation, and because there was a nexus between the employer's illegal
compensation policies and the employee's termination, Martini is entitled
to unemployment benefits.
I
Michael J. Martini was employed with Crew Shuttle Services (CSS) as a
'long haul driver.' In that position, Martini transported railroad work
crews to job-sites and was paid for each mile he drove. He was also paid
for some of the time he had to wait ('wait time') for the arrival of work
crews at the pick-up point of any given trip, and for work crew meal stops,
cigarette breaks, and restroom stops en route. Because CSS had
contractually agreed not to charge the railroads for the first 30 minutes
of wait time on any given trip, CSS did not compensate Martini for the
first 30 minutes of wait time. In addition, CSS did not compensate Martini
for time spent cleaning, fueling, inspecting, and maintaining the vehicle,
or for time spent waiting in traffic on any given trip.
When Martini started with CSS, he was paid $.15 per mile and $.09 for
each 'compensable minute' of wait time. Martini transferred to an hourly
position with CSS, but later transferred back to a position as a long haul
driver and was paid $.16 per mile and $.10 for each compensable minute of
wait time.
Under the CSS compensation scheme for long haul drivers, Martini could
earn up to $10.40 per hour, but only if the work crew was at the pick-up
point on time, if the drive from the pick-up point to the destination point
was at least one hour at a speed limit of 65 miles per hour, and if the
drive did not entail traffic delay.1 Martini could earn as little as $3.00
per hour if the work crew was not at the pick-up point on time and did not
arrive for at least an hour.2 Martini was not guaranteed a minimum hourly
wage.
Long haul drivers for CSS are required to have a pager so that they
can be contacted while driving or while awaiting dispatch to pick-up
points. When Martini commenced employment with CSS, a CSS manager provided
him with a pager and he was not required to pay for pager service.
Although other CSS long haul drivers were apparently required to provide
their own pager and to pay for pager service, Martini did not know of this
requirement when he began his employment with CSS. For an unknown reason,
Martini's pager service was terminated after he was employed with CSS for
over a year and a half. Martini asked his direct supervisor what had
happened and was told that he would have to buy his own pager and to pay
for his own pager service.
CSS never offered Martini alternative employment that did not require
a pager, nor did CSS offer Martini a loan or other financial assistance to
purchase a pager. Although Martini's supervisor offered to lend him a
pager for a couple of weeks until he could buy one, borrowing her pager
would have merely delayed Martini's inevitable obligation to pay for his
own pager and pager service. He repeatedly asked his supervisor to request
that CSS management authorize her to pay for the pager because this
expenditure was a change in CSS policy and a personal financial hardship.
She repeatedly declined.
After Martini was told for the fourth time that the company would not
pay for a pager, he quit his job with CSS and applied for unemployment
benefits. Martini stated that the main reason he quit was because CSS
required him to pay for employment related expenses that were paid by CSS
at the time he commenced employment. Martini was denied benefits. He
appealed, contending that he had good cause to quit because CSS imposed a
new condition of employment (the requirement that he pay for pager
expenses) and because the CSS compensation scheme violated the Washington
Minimum Wage Act.3 The administrative hearing examiner upheld the denial
of benefits and entered a conclusion of law that:
Because the claimant did not leave work based on the employer's violation
of the Washington State Minimum Wage Act, the undersigned need not address
the issue of whether the employer's compensation structure represents a per
se violation of the Washington State Minimum Wage Act.
The Commissioner of the Employment Security Department did not adopt that
conclusion, but agreed with the administrative hearing examiner's denial of
benefits and entered a finding of fact that:
The claimant did not voluntarily leave his employment because of a belief
that the employer's policy of not paying drivers for a thirty minute grace
period or for any time spent providing maintenance to their vans was in
violation of the Washington State Minimum Wage Act.
The superior court upheld the Commissioner's decision. Martini now appeals
to this court.
II
We review the decision of the superior court de novo, and apply the
standards of the Administrative Procedure Act directly to the record before
the agency.4 We review factual determinations from a final administrative
decision of the Commissioner under the 'substantial evidence' standard.5
Factual determinations must be supported by evidence that is substantial
when viewed in light of the whole record before the court.6 Legal
determinations of the Commissioner are reviewed de novo.7 However, we note
that the Commissioner has authority to designate certain unemployment
benefits decisions as precedents and to publish those precedents.8 Such
precedents are persuasive authority in this court.9
In general, unemployed workers are eligible for unemployment benefits
unless they are statutorily disqualified.10 Under RCW 50.20.050, a worker
may be disqualified from receiving unemployment benefits if he or she
voluntarily leaves work without good cause. Martini argues that his
employer's violation of the Washington Minimum Wage Act constitutes per se
good cause to voluntarily leave work. In addressing an employee's per se
good cause to voluntarily leave his or her employment due to an employer's
violation of a statute, the Commissioner has set forth a general rule that:
If unsuitable factors are found to exist concerning the job in question,
the individual has, prior to quitting, a responsibility to do everything in
his power to correct these conditions. One of the cardinal exceptions to
this rule is a condition of employment which is illegal or contrary to
public policy.{11}
The Commissioner in In re: Adams addressed a situation where an
employee voluntarily left his employment after he twice complained to his
employer that he did not receive overtime compensation as required by the
Washington Minimum Wage Act.12 The Commissioner cited the general rule that
a condition of employment which is illegal or contrary to public policy
constitutes per se good cause to voluntarily leave work, but clarified
that:
. . . even if the petitioner had not discussed with his employer his
dissatisfaction concerning his failure to receive premium pay for overtime,
the employment would be found as statutorily unsuitable, giving rise to
good cause for quitting within RCW 50.20.050. This type of case is
therefore removed from the rule . . . which holds that an employee must
make a reasonable effort to resolve any problems with his employer prior to
quitting, else good cause for leaving will not be found. . . . {However,}
this exception to the rule . . . is applicable only where a clear
statutory violation is established, and {only where} the employer has
knowledge of the factual circumstances which give rise to the violation.{13}
The Commissioner's approach in Adams is consistent with the decision
of the Court of Appeals of Minnesota in Miller v. International Express
Corp.14 That case concerned a driver of an airport shuttle van that claimed
to have quit his job because he was reassigned to a position that did not
guarantee a minimum rate of pay and potentially subjected him to a
violation of minimum wage laws.15 The administrative hearing examiner
denied the driver's application for unemployment benefits because he did
not file a grievance with his union or complain to his employer about the
allegedly illegal pay practices before he quit.16 Thus, the administrative
hearing examiner did not consider the employee's claim that the employer's
pay practices violated minimum wage laws or whether the employee had good
cause to quit due to reassignment to a position that potentially reduced
his wages without a guarantee of a minimum wage.17
The Miller court noted that unemployment compensation statutes are
remedial and humanitarian in nature.18 The court also noted that the
employer admitted its knowledge of factual circumstances that gave rise to
a violation of the minimum wage laws, and that the employee had raised a
colorable claim of a clear statutory violation which should have been
considered by the administrative hearing examiner.19 The court reversed and
remanded the decision to deny benefits for a specific factual finding as to
whether the employer had violated minimum wage laws, and held that an
employee has good cause to quit voluntarily when an employer does not pay
statutorily mandated wages.20
We are persuaded by the Commissioner's prior decisions and by the reasoning
of the Miller court that an employer's statutory violation may constitute
per se good cause to voluntarily leave work. We thus hold that an employee
has per se good cause to voluntarily leave work where: (1) there exists a
clear statutory violation; (2) the employer has knowledge of the factual
circumstances which give rise to the violation; and (3) the employee can
establish some nexus between the employer's policies that give rise to the
violation and the employee's termination. A sufficient nexus may be
established where the employee's stated reason for quitting is the
employer's illegal policy. However, whether the employee claims the
violation as the main reason he or she quit is not dispositive. The
employee may not even be aware that the employer's policies violate a legal
requirement. It is sufficient if those policies (e.g., compensation or
safety) are reasonably related to the termination.
In this case, the Commissioner found that Martini was unpaid for at
least 30 minutes of wait time on over 90 percent of his trips, and the
hearing testimony established that Martini was not compensated in any way
for time spent cleaning, fueling, inspecting, and maintaining the vehicle.
CSS admitted that Martini was not guaranteed a minimum hourly wage. The
facts of this case thus present a clear violation of the Washington Minimum
Wage Act and an employer's knowledge of factual circumstances that gave
rise to the violation.
We therefore examine whether Martini established the necessary nexus
between the employer's policies that give rise to the violation and his
termination. Martini's take home pay varied between $600 and $700 per
month. Although Martini did not specifically articulate a Washington
Minimum Wage Act violation as the main reason for his termination, he
clearly stated that his financial situation made it impossible for him to
suffer the additional financial burden of the pager that CSS required. It
does not matter whether that financial burden was the proverbial 'straw
that broke the camel's back' or whether Martini could have continued
working under conditions that violated the Washington Minimum Wage Act (as
he had done for a protracted period of time).21 The inference of
impecuniousness in this case is clear - the compensation policies of CSS
violated the Washington Minimum Wage Act and were reasonably related to
Martini's termination. Because of that nexus, Martini is entitled to
benefits.
Although we hold that Martini is entitled to benefits, we remand for
further consideration by the Commissioner as to Martini's eligibility for
Commissioner approved training, an issue that was not resolved by the
administrative hearing officer. Because we have reversed the decision of
the Commissioner, we grant Martini's request for attorney fees under RCW
50.32.160.
REVERSED.
WE CONCUR:
1 $.16 per mile X 65 miles per hour (maximum allowable speed under
Department of Transportation regulations).
2 $.10 per minute X 30 minutes (60 minutes total wait time - 30 minutes
uncompensated wait time). In theory, Martini might earn less than $3.00
per hour, e.g., $1.60 per hour if traffic was flowing at only 10 miles per
hour because he was not paid for time spent waiting due to traffic delays.
Washington's relevant minimum wage in effect at the time of Martini's
employment was $4.90 per hour. RCW 49.46.020 (1993).
3 RCW 49.46.
4 Tapper v. Employment Security Department, 122 Wn.2d 397, 402, 858 P.2d
494 (1993).
5 Terry v. Employment Security Department, 82 Wn. App. 745, 748, 919 P.2d
111 (1996).
6 Terry, 82 Wn. App. at 749.
7 Terry, 82 Wn. App. at 748.
8 RCW 50.32.095.
9 See Ronald M. Levin, Identifying Questions of Law in Administrative Law,
74 Geo. L.J. 1, 56 (1985).
10 Terry, 82 Wn. App. at 749.
11 In re: Conner, Comm. Dec. No. 759 (1968); accord In re: Pope, Comm. Dec.
No. 949 (1973).
12 In re: Adams, Comm. Dec.2d No. 344 (1977).
13 In re: Adams, Comm. Dec.2d No. 344 (1977).
14 495 N.W.2d 616 (1993).
15 Miller, 495 N.W.2d at 617.
16 Miller, 495 N.W.2d at 617.
17 Miller, 495 N.W.2d at 617-619.
18 Miller, 495 N.W.2d at 618.
19 Miller, 495 N.W.2d at 618.
20 Miller, 495 N.W.2d at 618-619.
21 See In re: Conner, Comm. Dec. No. 759.