By Erica Shelley Nelson and Jordan L. Jones
In Becerra Becerra v. Expert Janitorial, LLC, the Washington Supreme Court (WASC) held that a trial court improperly granted summary judgment to Fred Meyer on the issue of “joint employers” and remanded for further proceedings. The WASC stated that “[s]imply put, we find the trial court did not consider all the relevant factors at summary judgment or sufficiently identify why it deemed certain factors to be not relevant.”
In this case, the plaintiffs were night janitors who worked for subcontractor Expert Janitorial, LLC (Expert) at various Fred Meyer grocery stores. The plaintiffs alleged that they often worked more than 40 hours a week without overtime pay or minimum wage compensation in violation of Washington’s Minimum Wage Act (MWA). The plaintiffs also claimed that Expert and Fred Meyer were “joint employers” for purposes of liability under the MWA.
The trial court subsequently dismissed the plaintiffs’ claim that Expert and Fred Meyer were “joint employers” on summary judgment. The Court of Appeals reversed, “concluding that the trial court had erred in limiting its analysis to certain factors and “that material questions of fact remained to be resolved.”
The WASC noted that “we use an ‘economic reality’ test to determine whether a joint employment relationship exists under minimum wage statutes.” Some of those nonexclusive factors that were described in Torres-Lopez v. May, 111 F.3d 633 (9th Cir. 1997) were:
[1] . . . The nature and degree of control of the workers; . . . [2] The degree of supervision, direct or indirect, of the work . . . [3] The power to determine the pay rates or the methods of payment of the workers . . . [4] The right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers . . . [5] Preparation of payroll and the payment of wages. . . [6] whether the work was a “specialty job on the production line . . . [and 7] whether responsibility under the contracts between a labor contractor and an employer pass from one labor contractor to another without “material change,” . . . .
The WASC held that the trial court improperly granted summary judgment. The WASC stated that:
The trial judge’s written ruling granting Fred Meyer’s summary judgment did not identify any of the factors she considered . . . . Again, we believe it is unlikely summary judgment should have been granted on this record, but we leave it in the able hands of the trial court to reconsider the matter using the Torres-Lopez factors on remand.
Editor’s Note: The import of this decision is that in the event the trial court determines that both Fred Meyer and the subcontractor are “joint employers” for purposes of establishing liability, then both entities are responsible for plaintiffs’ damages under the MWA. In the case of an insolvent employer, the application of the “joint employer” doctrine to other, more financially sound “joint employers” is critical to the plaintiff’s ability to collect monetary damages under the Act.
