The plaintiff, who was a resident of Georgia, was employed ?as? a long haul? truck? driver.??? He was compensated on a per-mile basis for miles driven, a flat rate for each load/unload performed, and a per diem substance rate.? ?He drove an average of 60 ?to ?70 ?hours ?per ?week, ?both ?in ?and ?out ?of Washington.? ?He filed a class action lawsuit claiming that the defendant failed to pay time and a half under the Washington Minimum Wage Act (MWA). By way of background, the Court reviewed that the Supreme Court has ruled that the MWA required overtime compensation for hours over 40 worked per week for interstate driving, including hours spent working outside of Washington. Under former WAC 296-128-012 (1989), L&I reviewed alternative rate of pay systems used by employers to determine whether the systems resulted in a driver receiving compensation reasonably equivalent to one and one-half ?times ?the? base ?rate? of ?pay for ?actual hours worked in excess of 40 hours per week. The defendant sought a determination from L&I that its mileage based pay structure for interstate truck drivers [was] reasonably equivalent to the hourly rate, including overtime, paid to its local drivers, and L&I approved the defendant?s compensation? ?system.???? ?After?? the?? litigation started, the defendant?s resubmitted its pre- Bostain compensation system for review under a ?safe ?harbor? ?provision ?under ?WAC ?296-128 012(3).

The employer moved to dismiss Plaintiff?s claim under CR 12(b)(6) or, alternatively, for summary judgment under CR 56.?? The employer argued that? Bostain? applied only to? Washington resident-employees or, alternatively, even if Bostain applied to Plaintiff, their compensation system complied with the MWA under the safe harbor provision.??? ?The plaintiff argued that Bostain was not limited to Washington residents and that the court was not bound by L&I?s inadmissible ex parte approval of the defendant?s compensation system.?? ?The Superior Court granted summary judgment to the employer on the basis of the ?safe harbor provision.? ?The Court of Appeals affirmed.

The Court found that L&I?s approval was not an adjudicative procedure, and therefore was not an ex parte communication.? ?In addition, L&I?s approval of the defendant?s compensation system was not a product of an L&I employee?s subjective opinion that the employer was in compliance with the MWA.? ?Rather, L&I ?has the authority to supervise, administer, and enforce all laws pertaining to employment including wage and hour laws.??? The department may also determine if an alternative compensation scheme is reasonably equivalent to the hourly statutory overtime requirements. WAC 296-128-012(1)(c).?? ?Such determinations are within L&I?s specialized expertise.?? ??We hold that L&I?s retroactive approval under the WAC 296-128-012(3) ?safe harbor? provision is entitled to substantial weight and should be upheld as plausible construction of the statute, and not arbitrary, capricious, and contrary to the law.

Westberry v. Interstate Distributor Co., — Wn. App. —, — P.3d —, (Div. II 10/4/11; Quinn- Brintnall, Hunt, Penoyar)