Sheepherders Exempt from Washington Minimum Wage Act (MWA) Because They Reside or Sleep at Work.

Two sheepherders (temporary foreign workers with work visas) sued their employer for failing to pay overtime wages.? Their employer argued the MWA explicitly exempted the plaintiffs because they live and sleep at work.? The MWA exempts from its definition of a protected ?employee? ?[a]ny individual whose duties require that he or she reside or sleep at the place of? his? or? her? employment? or? who? otherwise spends a substantial portion of his or her work time subject to call, and not engaged in the performance????? of????? active????? duties.??????? RCW 49.46.010(5)(j).??? According?? to?? the?? Supreme Court? opinion,? plaintiffs? contended? the exemption applied to them but only part of the time? –? during? hours? when? they? were? ?not engaged in the performance of active duties? (the exemption?s? final? clause)? which? depended? on facts in dispute precluding summary judgment. The Trial court categorically applied the exemption to the plaintiffs dismissing their claim on summary judgment.? Division III reversed, finding? the? language? of? the? exemption ambiguous and construing the MWA liberally in favor of employees.? The Washington Supreme Court reversed, holding the syntax of the exemption supported the employer?s interpretation,? ?that? ?the? ?Court? ?of?? Appeal?s statutory construction erroneously relied on the ?last antecedent rule,? and that the construction would ?mean ?the ?legislature? ?intended? the subsection (5)(j) exclusion to state nothing more than that workers are not entitled to be paid a minimum wage for those hours that they do not work.?? Noting this is not really an exclusion, the Court commented that strained or absurd results are to be avoided.? The Court remarked the plaintiff?s position would change their ?employee? status minute by minute creating ?myriad accounting and other practical difficulties.?? To reach? its result,? the? Court? had to? distinguish? its holding in Chelan County Deputy Sheriffs? Ass?n v. County of Chelan, 109 Wn.2d 282 (1987), which held that deputy sheriffs were ?entitled to compensation under the MWA for time spent on call.??? ?The? ?ruling? ?appeared?? to?? support?? the plaintiffs? argument that the exemption applied ?to activities, rather than categories of workers.? Rejecting this notion, the Court held that whether the exemption applies ?is a question of worker categorization? ? sleeping/residing at work or spends a substantial portion of work time subject to call ? ?rather than the compensability of any given hour in a worker?s day.?? The four dissenting Justices countered:? ?As the Court of Appeals correctly noted, RCW 49.46.010(5)(j) is a model of legislative inexactitude. Our job, however, is not to reword the statutory language to reach a preferred result. The statute may be reasonably interpreted as either the employers or Berrocal and Castillo propose?.? Importantly, the burden is on the employer to establish that an exemption applies to a particular individual. Since either interpretation is plausible, the sheepherders should prevail when we liberally interpret the MWA in favor of the worker.??? ?The?? dissent?? also?? noted?? that?? ?the majority’s conclusion that RCW 49.46.010(5)(j) exempts categories of workers and not activities runs counter to this court’s decision in Chelan County?.? ?Berrocal ?v. ?Fernandez, ?155 ?Wn.2d 585; 121 P.3d 82 (2005) (J. Owens for the majority with J. Johnson, Madsen, Bridge, and Sanders; Dissent by C. Johnson, Alexander, Chambers, and Fairhurst).