Roger A. Wingert, et al., Respondents, v. Yellow Freight Systems, Inc., Petitioner, 146 Wash. 2d 841

Ireland, J. — Yellow Freight Systems, Inc., seeks review of a Court of Appeals decision reversing the trial court’s

summary dismissal of its employees’ wage claims. The employees brought suit alleging Yellow Freight violated WAC 296-126-092(4) by failing to provide paid rest periods in accordance with the regulation’s standards. At issue is whether a private cause of action exists to pursue the claim, whether the rest break standard is superseded by the parties’ collective bargaining agreement, and whether the regulation is preempted by federal law.

We hold that the employees have a private right of action, that the collective bargaining agreement does not abrogate the minimum rest break requirement, and that the issue of preemption is not properly before the Court. We affirm the Court of Appeals decision that the order granting

summary judgment be reversed and remand the matter for trial on the merits. FACTS Yellow Freight Systems, Inc., has employed Roger Wingert and the other named respondents (employees) at its Seattle terminal in the following job classifications: (1) driver, (2) yard hostler, and (3) dockworker. Drivers deliver merchandise to, and pick up merchandise from, Yellow Freight customers. Hostlers stage trailers at the terminal. Dockworkers load and unload trailers and stage freight for shipment at the terminal.

All three classifications of employees are represented by the International Brotherhood of Teamsters, General Teamsters Local No. 174, AFL-CIO. They are covered by a national collective bargaining agreement between trucking companies, including Yellow Freight, and the union.

In accordance with the collective bargaining agreement, Yellow Freight’s employees are given a morning and an afternoon break and a lunch break during a regular workday as follows: A typical day for Dock Workers and Hostlers consists of two hours of work, followed by a fifteen minute paid break, followed by one and three-quarters hours of work, followed by a half-hour unpaid lunch break, followed by the same pattern again: two hours of work, a fifteen minute paid break, then one and three-quarters hours of work.

A typical day for Drivers is similar, except that the Drivers have more discretion as to when, during each shift, they take their fifteen-minute paid breaks. Clerk’s Papers (CP) at 12. Employees are commonly assigned to work longer than an eight-hour workday, for which they receive overtime compensation. The collective bargaining agreement requires a 15-minute break after two hours of an overtime assignment, so Yellow Freight allows employees who work more than two hours of overtime to take the break. However, no breaks are accorded employees who work two hours or less.

If employees “work two hours of overtime or less at the end of their regular shift, they receive no rest period from the time their regular afternoon break ends at 2:45 until they are excused for the day, often at 6:30, a period of nearly four hours of uninterrupted physical labor.” Wingert v. Yellow Freight Sys., 104 Wn. App. 583, 585-86, 13 P.3d 677 (2000). PROCEDURAL HISTORY Employees of Yellow Freight initially brought suit alleging that their employer violated WAC 296-126-092(4) by requiring them to work longer than three consecutive hours without a paid rest period.

They asserted that the administrative regulation requires they be granted a 10-minute paid break during the first two hours of an overtime assignment that follows a regular shift. The employees sought back wages for the rest periods during which they were required to work and an award of attorney fees and costs pursuant to RCW 49.52.070. Yellow Freight moved for

summary judgment, asserting that

chapter 49.12 RCW, the statute under which the administrative regulation was adopted, provides that it is not to interfere with collective bargaining concerning conditions of employment. In the alternative, Yellow Freight argued that

chapter 49.12 RCW does not create a civil cause of action for a breach of the administrative regulation. In response, the employees moved for partial

summary judgment on liability and for injunctive relief. On November 23, 1999, the King County Superior Court granted Yellow Freight’s motion and dismissed the employees’ complaint. The employees appealed. The Court of Appeals reversed the order granting

summary judgment to Yellow Freight and remanded the matter for trial on the issue of damages. Wingert, 104 Wn. App. at 597. This Court granted Yellow Freight’s petition for review of the Court of Appeals decision. Wingert v. Yellow Freight Sys., 144 Wn.2d 1009, 32 P.3d 284 (2001). ANALYSIS Standard of Review In reviewing an order granting

summary judgment, the appellate court engages in the same inquiry as the trial court. Young v. Key Pharms., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989).

Summary judgment is properly granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993). The evidence and reasonable inferences therefrom are to be considered in the light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). “All questions of law are reviewed de novo.” Berger v. Sonneland, 144 Wn.2d 91, 103, 26 P.3d 257 (2001). Violation of Regulation Washington’s statutory provisions concerning industrial welfare are set out in

chapter 49.12 RCW. The director of the Department of Labor and Industries is charged with administering and enforcing “all laws respecting the employment and relating to the health, sanitary conditions, surroundings, hours of labor, and wages of employees employed in business and industry” in accordance with the provisions of the chapter. RCW 43.22.270(4). The provisions of

chapter 296-126 WAC, which contain labor standards for the protection of employees’ safety, health, and welfare, were adopted under the authority of

chapter 49.12 RCW. At issue in this case is the rest period provision of WAC 296-126-092, which states as follows: Employees shall be allowed a rest period of not less than 10 minutes, on the employer’s time, for each 4 hours of working time. Rest periods shall be scheduled as near as possible to the midpoint of the work period. No employee shall be required to work more than three hours without a rest period. WAC 296-126-092(4). WAC 296-126-092(4) does not distinguish between regular and overtime hours worked. Rather, the

chapter defines “hours worked” as “all hours during which the employee is authorized or required by the employer to be on duty.” WAC 296-126-002(8). Therefore, as the Court of Appeals correctly concluded, the regulation “clearly and unambiguously prohibits working employees for longer than three consecutive hours without a rest period” regardless of whether the hours worked are regular hours, overtime hours, or a combination of both. Wingert, 104 Wn. App. at 588.

Yellow Freight did not comply with WAC 296-126-092(4) when it failed to provide paid rest periods to employees who worked two hours or less of overtime following their regular shifts. Employees’ Cause of Action The Court of Appeals concluded that the employees could seek recovery for the failure to provide paid rest periods on two bases—a statutory claim for unpaid wages under RCW 49.52.070 and an implied cause of action under

chapter 49.12 RCW. Id. at 591. Statutory Claim The employees assert that they are entitled to recover monetary damages for violations of WAC 296-126-092 pursuant to RCW 49.52.070. RCW 49.52.050 makes it a misdemeanor for an employer to “[w]ilfully and with intent to deprive the employee of any part of his wages,. . . pay any employee a lower wage than the wage such employer is obligated to pay such employee by any statute, ordinance, or contract.” RCW 49.52.050(2).

Although WAC 296-126-092 is a regulation and not a statute, RCW 49.52.050(2) is applicable in this case because “ ‘properly promulgated, substantive agency regulations have the “force and effect of law.” ’ ” Manor v. Nestle Food Co., 131 Wn.2d 439, 445, 932 P.2d 628, 945 P.2d 1119 (1997) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 295, 99 S. Ct. 1705, 60 L. Ed. 2d 208 (1979)). This case does not present the usual situation where employees seek to recover wages for uncompensated work.

Yellow Freight argues that its employees have been paid for all the time they worked, so its failure to provide rest periods has not resulted in lost wages. Yellow Freight also contends that its employees do not have a statutory wage claim because RCW 49.12.005(5) defines rest break requirements as “conditions of labor” rather than wages. However, as this case exemplifies, a rest period violation can constitute both a condition of labor violation and a wage violation.

Employees who must work through their overtime break are, in effect, providing Yellow Freight with an additional 10 minutes of labor during the first two hours of their overtime assignments. When the employees are not provided with the mandated rest period, their workday is extended by 10 minutes. Taking the regulation into account, the employees are entitled to be compensated by Yellow Freight for two hours and 10 minutes of work. See Connors v. Consolidation Coal Co., 866 F.2d 599, 602-03 (3d Cir. 1989).

An employer who violates RCW 49.52.050(2) may be held liable in a civil action by the aggrieved employee to judgment for twice the amount of the wages unlawfully withheld, together with costs of suit and attorney fees. RCW 49.52.070. Nevertheless, the statute’s requirement that the employer act willfully and with intent presents a question of fact. Pope v. Univ. of Wash., 121 Wn.2d 479, 490, 825 P.2d 1055 (1993).

An employer’s nonpayment of wages is willful and made with intent “when it is the result of knowing and intentional action and not the result of a bona fide dispute as to the obligation of payment.” Chelan County Deputy Sheriffs’ Ass’n v. Chelan County, 109 Wn.2d 282, 300, 745 P.2d 1 (1987). Liability for damages under this statute would require substantial evidence that Yellow Freight acted willfully and with the intent to deprive its employees of their wages. Implied Cause of Action The Court of Appeals held that an implied cause of action exists under

chapter 49.12 RCW. A cause of action will be implied if (1) “the plaintiff is within the class for whose ‘especial’ benefit the statute was enacted”; (2) the “legislative intent, explicitly or implicitly, supports creating or denying a remedy”; and (3) “implying a remedy is consistent with the underlying purpose of the legislation.” Bennett v. Hardy, 113 Wn.2d 912, 920-21, 784 P.2d 1258 (1990) (citing In re Wash. Pub. Power Supply Sys. Sec. Litig., 823 F.2d 1349, 1353 (9th Cir. 1987)). The Bennett factors, first propounded in an age discrimination case, are also applicable to the case before us.

The first prong is satisfied because the workers’ status as employees makes them the persons for whom WAC 296-126-092 was promulgated. The Court of Appeals found the second prong is also met, stating that “we may rely on the assumption that the Department of Labor and Industries, through the delegated authority of the Legislature, would not create a right to regular, periodic rest periods if it did not intend for employees to be able to enforce that right.” Wingert, 104 Wn. App. at 591-92. Finally, it also appears that implying a remedy to ensure the health of Washington workers is consistent with the purpose of

chapter 49.12 RCW to protect employees “from conditions of labor which have a pernicious effect on their health.” RCW 49.12.010. There are additional grounds for implying a private cause of action. While

chapter 49.12 RCW provides that specifically named civil and criminal penalties “are exclusive remedies” for violations of child labor laws, no such limitations are stated for conditions of labor violations. RCW 49.12.420. Further, our courts have implied a private right of action against an employer who violates RCW 49.48.010 (unlawful to withhold or divert an employee’s wages) even though violation of the statute also constitutes a misdemeanor. See Cameron v. Neon Sky, Inc., 41 Wn. App. 219, 223, 703 P.2d 315 (1985); RCW 49.48.020.

Summary In sum, Yellow Freight’s employees have an implied cause of action for unpaid wages as well as a statutory claim under RCW 49.52.070. However, our holding differs from the Court of Appeals’ by requiring on remand of the statutory claim that the factual issue of willfulness be addressed in order to determine Yellow Freight’s liability. In addition, the issue of damages must be determined with respect to each claim. Collective Bargaining Agreement The employees allege that the terms of the parties’ collective bargaining agreement are inconsistent with the rest period requirements of WAC 296-126-092. Based on its

interpretation of RCW 49.12.187, Yellow Freight argues that the collective bargaining agreement supersedes the state regulation. The statute provides as follows: This

chapter shall not be construed to interfere with, impede, or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing concerning wages or standards or conditions of employment. RCW 49.12.187. Yellow Freight asserts that the statute permits employers and employees to freely modify regulation provisions. In other words,

chapter 49.12 RCW merely provides default standards. The employees maintain that the statute restricts the scope of bargaining to wages and employment conditions that meet or exceed the statutory minimum standards. Because the statute is susceptible to more than one reasonable

interpretation, it is to be construed as ambiguous. Shoreline Cmty. Coll. No. 7 v. Employment Sec. Dep’t, 120 Wn.2d 394, 405, 842 P.2d 938 (1992). “If the statute is ambiguous, the courts must construe the statute so as to effectuate the legislative intent.” Whatcom County v. City of Bellingham, 128 Wn.2d 537, 546, 909 P.2d 1303 (1996).

Chapter 49.12 RCW contains emphatic language regarding the protection of workers: “The welfare of the state of Washington demands that all employees be protected from conditions of labor which have a pernicious effect on their health.” RCW 49.12.010.

In addition, a broad provision addresses conditions of employment and wages: It shall be unlawful to employ any person in any industry or occupation within the state of Washington under conditions of labor detrimental to their health; and it shall be unlawful to employ workers in any industry within the state of Washington at wages which are not adequate for their maintenance. RCW 49.12.020. This statutory language evidences a strong legislative intent that employees be afforded healthy working conditions and adequate wages.

Allowing a collective bargaining agreement to decrease the frequency of workers’ rest periods, especially without complying with RCW 49.12.105 in seeking a variance from the regulation’s standards, would thwart that fundamental purpose. The Court of Appeals correctly concluded as follows: Washington’s manifest policy of protecting the health and welfare of its employees by requiring periodic rest periods may not be abrogated by collective bargaining agreements. So long as the provisions of

chapter 49.12 RCW operate as a base, parties may contract through collective bargaining for any terms that enhance or exceed those minimum standards. Wingert, 104 Wn. App. at 596. Federal Preemption In its answer and affirmative defenses, Yellow Freight alleges that its employees’ claims “are matters subject for collective bargaining pursuant to the National Labor Relations Act” and that the claims “are preempted by § 301 of the Labor Management Relations Act.” CP at 9. However, these defenses were not pursued before the trial court. Yellow Freight’s motion for

summary judgment explicitly limits the issues for consideration to the following two queries: A. Does Washington law provide for a civil action for non-wage violations, i.e., for claims that employees were not paid for time for which they were not required to work? B. Does Washington law require an employer to pay overtime compensation equal to ten (10) minutes’ work, to employees who work up to two (2) hours overtime without having a ten (10) minute break during those two hours? CP at 74-75. The parties and amici present federal preemption analyses for the first time before this Court. Yellow Freight asserts that 49 U.S.C. § 14501(

c) preempts WAC 296-126--092. Pet. for Review at 2. However, “[a]rguments not raised in the trial court generally will not be considered on appeal.” State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993). In addition, RAP 2.5(

a) states: The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right. A party or the court may raise at any time the question of appellate court jurisdiction.

A party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground. A party may raise a claim of error which was not raised by the party in the trial court if another party on the same side of the case has raised the claim of error in the trial court. The preemptive effect of federal law is not an issue that satisfies any of the exceptions to the general rule. Yellow Freight’s status as a motor carrier and the extent of its employees’ involvement in interstate commerce are unclear.

The record before us does not provide sufficient facts to adjudicate claims that federal statutes are applicable or that the state regulation is preempted by federal law. Therefore, without prejudice, we decline to reach this issue. CONCLUSION We affirm the Court of Appeals decision that the order granting

summary judgment be reversed, and we remand the matter for trial on the merits. Smith, Madsen, Bridge, Chambers, and Owens, JJ., concur. On appeal, Yellow Freight presented Department of Labor and Industries Interpretive Guideline No. ES-026, which “interprets the rest and meal period requirements of that regulation [WAC 296-126-092] not to apply when those subjects are covered in a collective bargaining agreement.” Mot. for Recons. at 3.

The employees submitted the Declaration of Greg Mowat, a former employee of the Department of Labor and Industries, who stated that “[i]t is the Department’s position that a collective bargaining agreement cannot undercut application of the state meal and rest break provisions of RCW

chapter 49.12 and WAC § 296-126--092 individuals whose employment is subject to the collective bargaining agreement.” Appellants’ Statement of Additional Auth., Suppl. Auth. A at 2. Neither the guideline nor the declaration was submitted to the trial court. The guideline does not constitute a published agency rule under RCW 34.05.210; the declaration does not fall within the items of which the Court may take judicial notice under ER 201(b). Therefore, we decline to consider the documents.