Tiffany Hill, individually and on behalf of all others similarly situated, Plaintiff-Appellee,
Xerox Business Services, LLC; Livebridge Inc., an Oregon Corporation; Affiliated Computer Services Inc., a Delaware Corporation; Affiliated Computer Services LLC, a Delaware Limited Liability Company, Defendants-Appellants.
L. Nunn and Patrick M. Madden, K&L Gates LLP, Seattle,
Washington, for Defendants-Appellants.
C. Cote and Toby J. Marshall, Terrell Marshall Daudt &
Willie PLLC, Seattle, Washington; Jon W. MacLeod, MacLeod
LLC, Seattle, Washington; Daniel F. Johnson, Breskin Johnson
& Townsend PLLC, Seattle, Washington; for
Before: Richard A. Paez and Consuelo M. Callahan, Circuit
Judges, and Morrison C. England, [*] District Judge.
TO WASHINGTON SUPREME COURT
panel certified to the Washington Supreme Court the following
Whether an employer's compensation plan, which includes
as a metric an employee's "production minutes,
" qualifies as a piecework plan under Wash. Admin. Code
R. Thomas Chief Judge.
case arises from a dispute between Tiffany Hill
("Hill") and Xerox Business Services, LLC and its
predecessor companies (collectively, "Xerox"), over
the method by which Xerox calculated wages owed to Hill and
others similarly situated. Hill brought a statewide class
action lawsuit against Xerox for unpaid wages under the
Washington Minimum Wage Act ("MWA"), Wash. Rev.
Code § 49.46 et seq., and the Washington
Consumer Protection Act, Wash. Rev. Code § 19.86 et
seq. This interlocutory appeal involves only Hill's
claims under the MWA.
Washington law, when an employee is paid on a piecework
basis, as opposed to an hourly basis, it is permissible for
an employer to determine whether the employee's
compensation complies with the MWA on the basis of a
work-week period. See Wash. Admin. Code §
296-126-021; Dept. of Labor and Indus. Admin. Policy ES.A.3.
In other words, as long as the total wages paid for a given
week, divided by the total hours worked that week, averages
to at least the applicable minimum wage, an employee's
compensation complies with Washington law. On the other hand,
if an employee is an hourly employee, he "retain[s] a
per-hour right to minimum wage under Washington law, "
and weekly averaging is not permitted. Alvarez v. IBP,
Inc., 339 F.3d 894, 912 (9th Cir. 2003); see
also Wash. Rev. Code § 49.46.020.
parties do not dispute the applicability of Washington's
framework for determining whether an employer's
compensation plan complies with Washington's minimum wage
law. Rather, they dispute whether Hill was an hourly employee
or a piecework employee. Hill claims that she was an hourly
employee and therefore Xerox violated the MWA by determining
her hourly wage based on a work-week, as opposed to a
per-hour, calculation. Xerox, in contrast, contends that Hill
was a piecework employee and therefore its work-week
calculations were sanctioned by Washington Administration
Code Section 296-126-021. In the district court, Xerox moved
for partial summary judgment on this issue, which the
district court denied, stating that Xerox was not paying its
employees on a piecework basis, and therefore summary
judgment was inappropriate. After denying a motion to
reconsider, the district court certified Xerox's request
for an immediate interlocutory appeal of its denial of
partial summary judgment. We granted Xerox's request, and
this appeal followed. We have jurisdiction pursuant to 28
U.S.C. § 1292(b).
order certifies to the Washington Supreme Court the
dispositive question of state law before us-namely, whether
an employer's payment plan, which includes as a metric an
employee's "production minutes, " qualifies as
a piecework ...