Doty v. Department of Labor and Industries of State

• Decision Date: 17 February 2015
• Docket Number: 72021-0-I
• Court: Washington Court of Appeals
• Parties: JUDE I. DOTY, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON and JUDY SCHURKE, in her capacity as Deputy Director, Respondent.

JUDE I. DOTY, Appellant,
v.
DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON and JUDY SCHURKE, in her capacity as Deputy Director, Respondent.

No. 72021-0-I

Court of Appeals of Washington, Division 1

February 17, 2015

UNPUBLISHED OPINION

Leach, J.

Jude Doty appeals the superior court order affirming an order of the director of the Department of Labor and Industries (Department). The director's order upheld citations the Department issued to Doty for violating child labor laws by employing his sons, ages 11 and 13, in Doty's construction business. Because the Department did not exceed its rule-making authority when it defined the word "employ, " substantial evidence supports the director's findings, and those findings support the conclusions that Doty employed his sons and committed serious violations of child labor laws, we affirm.

FACTS

Jude Doty owned and operated a construction and house-moving business in which he employed workers. Doty and his wife homeschool their children, and as part of "vocational training, " Doty involved his sons Zachary, 13, and Stephen, 11, in the business. For one project, he moved several houses from a hospital property to different sites in the city of Yakima. Zachary worked on the project from April 2002 through January 2003, and Stephen from November 2002 through January 2003.

Both Zachary and Stephen worked at the construction sites, working near and operating heavy equipment such as backhoes, bulldozers, and tractors. At times, Doty was not nearby supervising their use of the heavy equipment. The boys performed many construction-related tasks, including jobs also performed by adult subcontractors. This work benefited the business.

More than once, Zachary rode on the rooftop of one of the relocated houses as a truck towed it down a public arterial at "approximately walking speed." A videotape shows Zachary moving around on the roof, lifting overhead wires and cables as a "spotter" to ensure the safe passage of the house down the street. The roof of the house was approximately 22 feet above the ground. Zachary did not wear a harness or other safety equipment. According to Doty, he profited from using a spotter on top of the house because he has to pay if he damages wires in transit. Zachary did not fall from the roof or suffer any injury.

At other times, both Zachary and Stephen acted as spotters by walking alongside or in front of a moving house, making sure it did not hit signs, cars, or other obstacles. On one occasion, a Department investigator observed Zachary jumping on and off the moving truck as he directed his father. The investigator also saw Zachary walking only a few feet from a reversing backhoe.

On January 28, 2003, the Department cited Doty for 11 violations of child labor laws under WAC 296-125. The citations assessed penalties of $6, 500^[1] and classified 5 of the violations as "serious." The Department also issued an order of immediate restraint, prohibiting Doty from allowing his sons to work at construction sites or in the proximity of heavy equipment.

Over the next two days, Doty continued to have both boys perform construction work. On January 30, 2003, while Zachary operated a backhoe on soft dirt, it tipped onto its side. According to an adult worker at the site, Zachary operated the backhoe too fast for the conditions. He was not wearing a seatbelt or harness. Doty was not nearby supervising him. Zachary crawled out from under this machine, uninjured. Later, Doty had Zachary use a bulldozer to pull the backhoe upright.

On January 31, 2003, the Department cited Doty for 20 additional violations, imposing $20, 000 in penalties. The Department classified all 20 violations as "serious-imminent danger-repeat" and issued another order of immediate restraint.

Doty appealed, and the administrative law judge affirmed. Doty appealed to the director, who affirmed the citations on August 31, 2004. The director found that Doty had employed his sons in his house-moving business in violation of child labor laws and that by permitting them to perform construction-related activities, he exposed them to the risk of serious physical harm or death. Doty appealed to the superior court, which affirmed the director, holding that the Department may define "employ" for purposes of child labor laws and that these laws are constitutional as applied to Doty.

Doty appeals.

STANDARD OF REVIEW

When reviewing an agency's decision under the Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW, this court sits in the same position as the superior court^[2] and applies the review standards of the WAPA directly to the administrative record.^[3] An appellate court reviews the final decision of the director.^[4] The party asserting the invalidity of an agency action has the burden to demonstrate that invalidity.^[5] This court will grant relief from an agency order only if it determines that the agency erroneously interpreted or applied the law, substantial evidence does not support the order, or the order is arbitrary or capricious.^[6] Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the matter asserted.^[7] If this court determines that substantial evidence supports the director's findings, it then decides if those findings support the director's conclusions of law.^[8]

This court reviews an agency's interpretation of a statute or regulation de novo, under an error of law standard.^[9] In interpreting agency regulations, regulatory definitions apply, and courts give undefined words their ordinary dictionary definitions.^[10] This court gives "substantial weight" to the agency's interpretation of regulations within its area of expertise and will uphold that interpretation if "'it reflects a plausible construction of the language of the statute and is not contrary to the legislative intent.'"^[11]

ANALYSIS

Child Labor in the Industrial Welfare Act

In the industrial welfare act, chapter 49.12 RCW, the Washington legislature declared, "The welfare of the state of Washington demands that all employees be protected from conditions of labor which have a pernicious effect on their health."^[12] The act contains provisions governing child labor. It states that the Department "may adopt special rules for the protection of the safety, health, and welfare of minor employees."^[13] Courts construe remedial statutes like this one liberally and its exceptions narrowly.^[14]

The industrial welfare act defines "employee" as one "who is employed in the business of the employee's employer whether by way of manual labor or otherwise."^[15] The statute defines "employer" as "any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or activity in this state and employs one or more employees."^[16] Statutory provisions and WACs about the employment of minors define "employ" as "to engage, suffer, or permit to work."^[17]

Chapter 296-125 WAC prohibits all minors from engaging in many occupations and activities. These activities include working as an outside helper or flagger on any public road or highway;^[18] operating or working in proximity to heavy equipment such as earth-moving machines, backhoes, bulldozers, or tractors;^[19] and working more than 10 feet above ground or floor level.^[20]Additionally, minors under 16 years old may not work in the construction industry at all unless their work is limited to office duties.^[21]

Washington statutes and regulations provide limited exemptions from the child labor laws. The general definition of "employ" in the WAC excludes certain limited types of work:

The term "employ" does not include newspaper vendors or carriers, the use of domestic or casual labor in or about private residences, agricultural labor as defined by RCW 50.04.150, or the use of voluntary or donated services performed for an educational, charitable, religious, or nonprofit organization and without expectation or contemplation of compensation for the services performed.^[22]

The house-to-house sales provision contains the statute's only express exemption for parent employers.^[23]

WAC 296-125-043 provides an exemption from state minimum wage laws

when a minor student is in a work place to carry out an occupational training experience assignment directly supervised on the premises by a school official or an employer under contract with a school and when no appreciable benefit is rendered to the employer by the presence of the minor student.^[24]

To be exempt as occupational training, a minor's work must meet six criteria:

4.1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school; and

4.2.The training is for the benefit of the trainee; and

4.3. The trainees do not displace regular employees, but work under their close observation; and

4.4. The business that provides the training derives no immediate advantage from the activities of the trainees, and may in fact be impeded; and

4.5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and

4.6. The trainees understand they are not entitled to wages for the time spent in the training.^[25]

Department's Authority To Define "Employ"

Doty contends that the Department exceeded its authority when it "redefine[d] the meaning of employment." He asserts that the legislature granted the Department only a narrow authority to adopt "special" rules, not broad general authority.

We disagree. The legislature intended that the industrial welfare act protect "all employees" from unhealthy work environments.^[26] The "special rules" of RCW 49.12.121(1) are rules for the protection of minor employees in particular. As early as...