Robertson v. Valley Commc'ns Ctr.

490 P.3d 230

Cathleen ROBERTSON, Scott Castonguay and Andrea Raker, for themselves, and for all others similarly situated, Appellants,

v.VALLEY COMMUNICATIONS CENTER, Respondent.

No. 80861-3-I

Court of Appeals of Washington, Division 1.

FILED June 28, 2021

Stephen Michael Hansen, Law Offices of Stephen M. Hansen PS, 1821 Dock St. Unit 103, Tacoma, WA, 98402-3201, Scott Nealey, 71 Stevenson Street #400, San Francisco, CA, 94105, for Appellants.

Shannon E. Phillips, Summit Law Group PLLC, 315 5th Ave. S Ste. 1000, Seattle, WA, 98104-2682, Mary Quinn Oppenheim, Summit Law Group, 315 5th Ave. S Ste. 1000, Seattle, WA, 98104-2682, for Respondent.

PUBLISHED OPINION

Appelwick, J.

¶1 Employees of the VCC brought suit under the Washington Minimum Wage Act¹ alleging the VCC regularly required them to perform nine tasks prior to the start of their shift without pay. The trial court granted summary judgment that six of these nine tasks were not compensable work tasks or were otherwise de minimis. The trial court excluded a survey of class members and corresponding expert testimony as fundamentally flawed. The employees conceded that without the survey, they would be unable to prove damages and could no longer sustain their suit. VCC brought a motion for summary judgment on that basis, which the trial court granted. We affirm.

FACTS

¶2 Valley Communications Center (VCC) is a regional 911 center that provides 24 hour emergency communication services to south King County. The appellants are a class of employees in two positions at VCC: call receivers and dispatchers. Call receivers and dispatchers both work in a 70 foot by 79 foot open floor plan room at VCC called the "Com Room."

¶3 Call receivers receive incoming 911 calls, collect information from the caller, and determine which, if any, agencies should respond to the event. They input information into the computer aided dispatch (CAD) system, where it can be accessed by dispatchers and responding units. In order to perform these functions, call receivers log into the CAD system and a separate phone system. They then plug their issued headset into a workstation and press a button on the computer screen that allows them to begin taking calls. Call receivers’ workstations are not assigned, they can sit at any open workstation.

¶4 Dispatchers use the information entered into the CAD system by call receivers to dispatch emergency services as needed. They use two way radios to communicate directly with units in the field. Dispatchers are assigned to specific consoles in the Com Room that dispatch for specific agencies (e.g., Auburn Fire Dispatch or Renton Police Dispatch). Each console must be continually staffed. So, outgoing dispatchers must brief incoming dispatchers on the activities open on the console. Incoming dispatchers can plug their headsets into the console while the outgoing dispatcher is still plugged in. Dispatchers must log in to the console and phone system. Because of the fluid nature of handoffs from one dispatcher to another, an incoming dispatcher could begin their shift utilizing the previous dispatcher's login and then switch to their own account after their shift starts.

¶5 VCC employees are paid hourly. But, their hours worked are tracked per shift, rather than per hour. Employees record their shift attendance by "hand punching" into the Com Room by placing their hand on a biometric reader and entering their employee code. At all times relevant to this litigation, the employees were allowed to hand punch in up to 30 minutes before the start of their shift and could hand punch out up to 15 minutes before the end of their shift. These periods are known as "gracing" periods. ²

Regardless of the precise time that an employee hand punches in or out during a gracing period, they are paid from their scheduled start time to their scheduled end time. If an employee is required to stay past their scheduled end time, they are paid based on a rounding rule to the nearest fifteen minute increment.

¶6 Employees are expected to be seated at their console and ready to begin work by one second past the top of the hour. In order to be ready at this time, employees may have to perform a variety of preparatory tasks. The employees allege that they are required to complete nine tasks prior to the start of the shift:

1. Gathering/assembling guidebooks/resource materials;

2. Signing up for breaks;

3. ‘Hand-punching’ into computerized attendance/payroll system;

4. (For Dispatchers): obtaining console assignment;

5. Locating ergonomic chair and ergonomic carpel board, and/or any ergonomic equipment;

6. Logging into phone and computer systems;

7. Plugging headset and headset jack into console;

8. Reviewing clearing messages from the CAD system; and

9. (For Dispatchers): receive briefing from the outgoing Dispatcher.

¶7 The employees brought suit alleging the requirement violated the Washington wage payment and collection law (WPCL), chapter 49.48 RCW, and Washington Minimum Wage Act (MWA), chapter 49.46 RCW.

¶8 Both sides moved for summary judgment. The employees sought a ruling that VCC had actual or constructive knowledge of their uncompensated work, and that VCC was liable for double damages because it willfully withheld their wages. VCC sought a ruling that the nine tasks were not compensable work, or, in the alternative, were not recoverable under the de minimis doctrine. It also sought a ruling that it was not liable for double damages.

¶9 The trial court denied the employees’ motion for double damages. But, it found that VCC had knowledge of employees’ presence on campus prior to their shifts though the use of the hand punching system. It granted partial summary judgment for VCC, finding it was not liable for double damages, but otherwise denied VCC's motion for summary judgment.

¶10 VCC then moved to depose 33 employees regarding their preshift routines. The trial court granted the motion over the employees’ objection. During depositions, employees were questioned about their preshift routine as a whole, rather than the time it took to perform each individual task. At least one employee indicated it would not be possible to estimate the amount of time each task took as opposed to the whole preshift routine.

¶11 The employees moved for summary judgment that the nine preshift tasks were compensable work. VCC cross moved for summary judgment that the tasks were not compensable work. The trial court granted partial summary judgment for VCC and denied for the employees. It found that two of the tasks—signing up for breaks and locating ergonomic chairs and equipment—were not "work" because they were not in the control of or for the benefit of the employer. It ruled that six³ of the nine tasks were not compensable under the de minimis doctrine. The trial court denied summary judgment on the remaining three tasks: (1) gather/assemble guidebooks/resource materials, (2) review/clear messages from the CAD system, and (3) (for dispatchers) receive briefing from outgoing dispatcher.

¶12 The employees enlisted an expert, Dr. Bernard Siskin. Siskin and his colleague Dr. Susanne Shay, developed a survey to be sent to class members to determine how much time they spent on the remaining preshift tasks. The survey begins by informing class members of its purpose:

This form is being sent to you to collect certain information needed for the lawsuit Robertson v. VCC, regarding tasks that you may perform prior to the start of your shift at VCC from March 17, 2013 to the present. You are receiving this form because you are a member of the Class.

The survey then asks two questions, one about the three remaining preshift tasks, and one about the dismissed six tasks:

Question 1: While your arrival times may have changed over your time employed at VCC, during the period from March 17, 2013 until the present, or if no longer employed at VCC - March 17, 2013 until the end of your employment date - looking back on your typical routine, what would you estimate has been the average total time you spent per shift doing the following tasks:

1. Gathering/assembling guidebooks/resource materials;

2. Reviewing/clearing messages from [the] CAD system; and

3. (For Dispatchers): receive briefing from the out-going Dispatcher.

....

Question 2: And what would you estimate the average total time per shift you have spent doing the following tasks.

1. Signing up for breaks;

2. "Hand-Punching" into computerized attendance/payroll system;

3. (For Dispatchers): obtaining console assignment;

4. Locating ergonomic chair and ergonomic carpel board, and/or any ergonomic equipment;

5. Logging into phone and computer systems;

6. Plugging headset and headset jack into console.

(Emphasis in original.)

¶13 VCC enlisted its own expert, Dr. Robert Palmatier, who prepared a critique of the survey. He argued that the questions were significantly unclear because the questions ask for time spent "per shift" rather than "preshift." He argued that some respondents would believe they were being asked to provide the amount of time spent on these tasks during their entire shift, rather than prior to the start of the shift only. In support of this theory, he pointed out that 18 percent of survey respondents had given time estimates for the amount of time they spent on preshift tasks that exceeded the amount of time that they were in the building prior to their shift.

¶14 VCC moved exclude the survey and Siskin's conclusion drawn therefrom, or, in the alternative, to conduct a Frye ⁴ hearing. It also moved to allow Palmatier to testify at the Frye hearing and, if necessary, at trial. The trial court granted the motion to exclude the survey and Siskin's opinions. It found that the survey was so fundamentally flawed that any testimony derived from it would be misleading and confusing to the jury. It based its decision on the use of "per shift" rather than "preshift" language in the questions, and the fact that some respondents had provided answers in excess of the total amount...