Piecemeal Employees

Piecemeal Employees entitled to paid rest breaks.

On July 16, 2016, the Washington State Supreme Court ruled employees paid on a piecemeal basis were entitled to paid rest periods under WAC 296-131-020(2).   This WAC provides:  “Every employee shall be allowed a rest period of at least ten minutes, on the employer's time, in each four-hour period of employment …”

In Demetrio v. Sakuma Bros. Farms, the Supreme Court was to decide if  Sakuma Bros. Farms violated Washington law when it failed to pay Ana Lopez Demetrio and others for rest periods.  Ms. Demetrio, and hundreds of others, had worked for Sukuma Bros. Farms picking berries in Skagit County.  Sukuma Bros. Farms paid its pickers by the pound or per the box.  It did not pay for rest periods.

Relying on what it found to be the plain language in the WAC, the Court ruled that “employer must pay employees for rest breaks separate and apart from the price rate.”  It found that all inclusive piece rate employment fails to compensates employees for rest breaks.  All inclusive piece rate employment deduced pay from employee wages when they were on break.  This practice stripped employees of pay that was to be “on the employer’s time”.

As for the amount to be paid for rest breaks, the Court found WAC 296-131-020(2) “entitles pieceworkers to their regular rate of pay for rest break time.” To calculate a pieceworker's regular rate, employers tally the total piece rate earnings and divide those earnings by the hours the pieceworker worked, but may exclude time spent resting. This results in the average rate of pay pieceworkers earn during active production (i.e., their regular rate) and prevents rest break time from being double counted. 

The Court’s ruling impacts any employer paying piecemeal.   Absent a legislative or agency change to the law, employers must continue to provide rest breaks for piecemeal employees and must pay piecemeal employees their average rate of pay for these break period. 

The Court’s decision also exposes employers who previously paid on a piecemeal basis to claims for unpaid wages if they failed to pay the average rate of pay for rest breaks.  These claims could expose employers civil liability for unpaid wages, double damages, and legal fees and costs under existing Washington law.  Employer may want to assess their exposure and decide if payments now for previously unpaid rest period is warranted.

Employers with piecemeal employees should also review the Court’s decision and evaluate their existing policies to ensure compliance with the Court’s interpretation of the WAC.  While a political or rulemaking change to the WAC is possible, any such change is unlikely in the near future and would like only come after debate and opposition. 

Brian A. Walker helps businesses and individuals in employment, business, and real estate related litigation and transactions from the Wenatchee office of Ogden Murphy Wallace PLLC. You can reach Brian at bwalker@omwlaw.com or at (509) 663-1954.