Coffee Delivery Drivers are Not Exempt Outside Salespersons; Not Abuse of Discretion to Award Attorneys? Fees at Historical Rather than Current Rates in Unpaid Wage Cases

Farmer Brothers manufactures, sells and delivers coffee products to customers. Route sales representatives deliver the coffee to regular customers. The representatives are also told to try to? increase? their? customers? ?purchase ?needs ?and find new customers, but spend no more than 20% of their time on these activities. The route sales representatives receive no overtime. They filed a class action for overtime under the Washington Minimum Wage Act. The superior court granted summary judgment to the employees and Division 1 affirmed. The court agreed that the route sales representatives were more appropriately viewed as non-exempt coffee delivery drivers rather than as exempt outside salespersons. The court rejected the employer?s argument ?making a sale? included restocking the customer?s pre-ordered supply of products. The court ruled that almost all deliveries would be treated as sales under this theory. The court? ?ruled?? that? ??making? ?a? ?sale?? ?requires persuading a customer to buy a product he has not already consented to buy. The appellate court also rejected the employer?s claim that it should have to classify its employees by the amount of time they spent? respectively? on? sales? and? deliveries.?? ?The court also considered the fact that the route sales representatives do not function like the traditional outside salespersons in that they do not choose when and to whom to make sales calls.? ?Even though no other Washington case dealt with the outside? sale? exemption? under? the? WMA,? the court held that it was not an abuse of discretion for the court to use historical rates rather than current ones. The court contrasted claims for unpaid wages under the Washington Minimum Wage ?Act ?with ?civil ?rights ?cases. ?Miller? v. Farmer Bros. Co., No. 56816-7 (1/16/07; Baker, Dwyer, Becker).