Plaintiff worked for QFC. He filed a class action claiming the employer?s policy of rounding employees? clock-in time to nearest quarter hour unlawfully deprived them of wages due under Washington law. QFC claimed that the claims were subject to arbitration under the relevant collective bargaining agreement (?CBA?), even though there was no mention of the rounding policy in the CBA. The Superior Court denied QFC?s motion to compel arbitration.

Division I affirmed. The court first held that the claims at issue were statutory wage claims under both Washington and Oregon laws. The issue was not whether the rounding policy existed as a matter of fact but whether the policies had the impact of undercompensating the employees. ?[I]ntentionally manipulating a facially neutral rounding policy used to compute wages owed, resulting in underpayment, runs afoul of Washington?s and Oregon?s wage and hour statutes.?

The employer argued that a CBA provision stating ?All claims for back wages or overtime not paid must be presented through the Union to the Employer? amounted to a waiver of the right to file such claims in court. The panel held that this language was not a clear and unmistakable waiver of the right to a judicial forum.

Cox v. Kroger Co., — Wn. App. —, 409 P.3d 1191 (Div. I 2/5/2018) (Verellen, Spearman, Schindler)