Port of Tacoma v. Sacks
| Citation | 495 P.3d 866 |
| Decision Date | 21 September 2021 |
| Docket Number | No. 54498-9-II,54498-9-II |
| Parties | PORT OF TACOMA, Respondent, v. Joel SACKS, Director of the Department of Labor & Industries, State of Washington; Bruce Koch; Dax Koho; Glenn Joseph Brazil; and Donald Olsen, Appellants. |
| Court | Court of Appeals of Washington |
James P. Mills, Office of the Attorney General - Tacoma, P.O. Box 2317, Tacoma, WA, 98401-2317, for Appellants.
Warren Evans Martin, Gordon Thomas Honeywell LLP, 1201 Pacific Ave. Ste. 2100, Tacoma, WA, 98402-4314, for Respondent.
PUBLISHED OPINION
¶ 1 The Department of Labor and Industries (Department) issued a citation to the Port of Tacoma for wages owed. Four employees took out-of-town trips on behalf of the Port and filed wage claims with the Department, seeking compensation for an unpaid portion of travel time. Both the Office of Administrative Hearings and the Director of the Department reviewed the citation on appeal. The Director upheld the citation. The Port appealed to the superior court, arguing that the time spent traveling was not compensable under Department regulations. The superior court granted summary judgment to the Port. The Department appeals.
¶ 2 The Department argues that the Port employees are entitled to compensation for all "hours worked," and the travel time meets the definition of "hours worked" under WAC 296–126–002(8). The Port counters that the Department's interpretation of "hours worked" is not entitled to the deference normally accorded to agencies and should not be followed, but rather that the employees’ travel time does not meet the definition of "hours worked" under case law interpreting WAC 296–126–002(8).
¶ 3 We conclude that prior cases interpreting "hours worked" in the context of commute time are inapplicable to the travel time at issue here. We further conclude that the Department's interpretation of its own regulation is entitled to deference and hold that the employees’ travel time is "hours worked" and is compensable. Accordingly, we reverse the superior court's order granting the Port's motion for summary judgment, reinstate the Director's order, and remand for further proceedings.
¶ 4 The Northwest Seaport Alliance (NWSA) decided to purchase new marine cranes to employ at the Port from a manufacturer located in China. The Port is responsible for maintaining cranes operated on its premises and employs crane maintenance mechanics for that purpose. In 2017, the Port invited interested mechanics to volunteer to be part of the quality inspection team observing the manufacturing process in China. The Port intended that the mechanics observe the manufacture of components that they would later repair. The Port arranged two trips to China to observe manufacturing, and one trip to Houston to attend relevant training. The trips to China were scheduled in coordination with the manufacturer and the Port's consultants. The Port made all of the arrangements for the trips, including air transportation.
¶ 5 On March 25, 2017, Dax Koho and Glenn Brazil left on the first of the two trips to China. The Port instructed them to arrive at the airport three hours before their scheduled flight. During the flight, both men spent some of their time reviewing materials regarding the inspection in which they were going to participate, although the Port did not require them to do so. The rest of the time they spent on activities unrelated to work. Koho and Brazil returned to SeaTac on April 2.
¶ 6 In May 2017, Bruce Koch flew to and from Houston to attend training regarding the drive systems to be employed by the new cranes. He was compensated for his training time but not for his flight time.
¶ 7 On June 16, Koho, Brazil, Koch, and Donald Olsen left SeaTac for the second and final trip to China. The group returned to SeaTac on June 24.
¶ 8 The Port did not have a policy in place concerning compensation for this type of travel, so it negotiated with the workers’ union to reach an agreement with the union for wages. They agreed that the hourly employees would be paid a maximum of eight hours a day, straight time, for travel to and from China and within China. The Port paid the employees for their travel time consistent with the labor agreement and with the Port's understanding of applicable federal law. As a result, the Port did not pay the employees for all of their time spent traveling.
¶ 9 Koho, Brazil, Koch, and Olsen each filed wage claims with the Department, seeking compensation for the time they spent traveling for the Port. That travel time included all travel to and from the airport, all time spent at the airport, and all time spent in flight. The Department's investigator consulted with a Department wage and hour technical specialist and with the Department's employment standards program manager.
¶ 10 The investigator first looked to the Department's definition of "hours worked" based on WAC 296-126-002(8) : "all hours during which the employee is authorized or required, known or reasonably believed by the employer to be on duty on the employer's premises or at a prescribed work place." Clerk's Papers (CP) at 371. She then reviewed the Department's policy, ES.C.2, on "hours worked." Section 1 of the policy states: "The department's interpretation of ‘hours worked’ means all work requested, suffered, permitted or allowed and includes travel time, training and meeting time, wait time, on-call time, preparatory and concluding time, and may include meal periods." CP at 371. Section 2 of the policy relates to circumstances where an employee drives a company-provided vehicle. The introduction to section 2 states, in part:
The purpose of this policy statement is to update section two of Labor and Industries’ administrative policy ES.C.2 (section 2) pertaining to hours worked. Following the Stevens v. Brink's Home Security , [162 Wash.2d 42, 169 P.3d 473 (2007) ] decision, Labor and Industries committed to updating this section of the policy to reflect the Supreme Court decision in the [Stevens ] case and address ambiguity created by that case. ... This policy is not intended to address or cover all employee travel time issues. Instead, it is limited to the particular issues raised in the [Stevens ] case regarding whether time spent driving a company-provided vehicle between home and the first or last job site of the day constitutes compensable "hours worked."
¶ 11 The Department investigator determined that policy ES.C.2 did not address the travel at issue with the Port employees’ wage claims. At the direction of her supervisor, she reviewed the Department's Desk Aid, which provides that all travel time related to work is compensable. It reads:
CP at 769. The Desk Aid is not available to the public and Department investigators are not required to apply the provisions of the Desk Aid. The Department investigator recommended issuing a citation to the Port for wages owed, and the recommendation was adopted.
¶ 12 In October 2017, the Department issued the citation and notice of assessment. A month later, the Port filed an appeal with the Office of Administrative Hearings (OAH). Both the Department and the Port filed motions for summary judgment. The Department's position before the OAH was that "the wage claimants were on duty at the employer's prescribed work place while traveling because the employer had assigned them to travel." CP at 31 ( of Fact (FF) 4.45). The OAH granted the Port's motion for summary judgment, denied the Department's motion, and issued an order reversing the Department's citation and notice of assessment. Shortly thereafter, the Department filed a petition for review with the Director of the Department under RCW 49.48.084 and the Washington Administrative Procedure Act (WAPA), ch. 34.05 RCW.
¶ 13 The Director reversed the OAH's decision. The Director noted and considered the Department's policy ES.C.2 and the Desk Aid as evidence of its "longstanding interpretation" of the "hours worked" provision. CP at 18 (conclusion of law (CL) 9). He noted that federal law also distinguishes between regular work travel and "travel for an out-of-town assignment." CP at 17 (CL 7). He concluded that the Department's interpretation was entitled to deference and did not conflict with Washington case law, specifically, Stevens , 162 Wash.2d 42, 169 P.3d 473, and the case it relies on, Anderson v. Department of Social & Health Services , 115 Wash. App. 452, 63 P.3d 134 (2003) (). Specifically, he concluded that Stevens and Anderson were inapplicable because "[n]either case addresses the compensability of travel time for out-of-town work assignments." CP at 18 (CL 10).
¶ 14 The director further concluded:
Under WAC 296-126-002(8), "hours worked"...
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