¶ 1 Where an employee's duties consist principally of manual labor and individual retail sales, the employee's primary duty is not "promoting sales" pursuant to our state's minimum wage laws. Relatedly, such duties do not constitute administrative operations exempting the employee from the overtime wage protections of the Washington Minimum Wage Act
¶ 2 However, in granting to Fiore an award of attorney fees, the trial court improperly granted a .25 multiplier on the fee award. Because Fiore sought a trial de novo in the superior court following an unfavorable arbitration decision, he faced the risk of being required to pay PPG's attorney fees if he did not improve his position on the trial de novo. This risk, a public policy preference imposed by our legislature, does not provide a proper basis for the award of a multiplier. Moreover, the lodestar amount awarded here fully compensates Fiore's counsel for the time-consuming nature of the litigation. Thus, although we affirm in all other respects, we reverse the trial court's utilization of a multiplier in calculating Fiore's attorney fee award.
¶ 3 This overtime wage dispute arose from PPG's classification of certain of its employees as exempt from the protections of our state's minimum wage laws. These employees, who hold the position of "Territory Manager," are assigned responsibility for certain Lowe's "home improvement" retail stores within a designated geographical region. Lowe's stores sell Olympic brand paints and stains, which are PPG products, to their customers. Territory Managers are members of PPG's "Lowe's National Olympic Field Sales Team."
¶ 4 Andrew Fiore was employed by PPG as a Territory Manager for approximately 40 weeks from February until November 2009. Fiore was assigned to the "Northwest Region," where he was responsible for servicing nine Lowe's retail stores in Washington and two such stores in Oregon. PPG required him to service two stores each day, for four hours each, and to visit each store at least three times per month. In the course of his store visits, Fiore spent many hours driving to, from, and between his 11 assigned stores. However, he was not paid for his driving time. Following his store visits, Fiore was also required to review and respond to e-mail messages and voice mail directives from management and to submit various reports to his regional manager. PPG did not compensate Fiore for the time he spent engaged in these activities. Fiore was compensated on a salary basis.
¶ 5 PPG terminated Fiore's employment.
¶ 6 Fiore thereafter filed an overtime wage claim against PPG, contending that PPG had failed to pay him overtime wages in violation
¶ 7 The parties filed cross motions for summary judgment. Following a subsequent hearing, the superior court granted in part Fiore's motion for summary judgment, ruling that PPG could not sustain its burden of demonstrating that Fiore was an administrative — and, thus, exempt — employee pursuant to the MWA. The superior court additionally ruled that the fluctuating workweek method of calculating damages was not applicable. The court determined, however, that material issues of fact remained with regard to whether PPG willfully withheld the wages owed to Fiore and the number of overtime hours that Fiore had worked.
¶ 8 The parties thereafter jointly requested that the superior court determine whether PPG had willfully withheld the wages owed to Fiore and, thus, whether Fiore was entitled to double damages for his overtime claim. PPG asserted that a "bona fide" dispute existed with regard to whether it owed Fiore overtime wages and, thus, that it could not be found to have willfully withheld such wages. The superior court rejected PPG's argument. The parties thereafter stipulated to damages in the amount of $12,203.10. Due to its finding of willfulness, the superior court entered judgment against PPG in the principal amount of $24,406.20.
¶ 9 Pursuant to statutory authorization, Fiore requested an award of attorney fees and costs, including a .50 multiplier, which, he asserted, was warranted based upon the risk that he had faced in seeking a trial de novo. The superior court found that Fiore was "in the unfortunate situation of being the `test case'" due to similar lawsuits filed against PPG throughout the country. The court additionally found that PPG engaged in an "aggressive litigation strategy" and that Fiore's counsel, who were hired on a contingency fee basis, undertook an "extraordinary risk" that they might receive no fees at all. The superior court granted to Fiore an award of attorney fees and costs in the amount of $596,559.47, including a .25 multiplier.
¶ 10 PPG appeals.
¶ 11 PPG first contends that Fiore was an administrative employee pursuant to the MWA and, thus, that he was not entitled to the overtime wage protections of the Act. In so doing, PPG attempts to characterize Fiore's primary duty as "promoting sales," which qualifies as an administrative operation exempt from the requirements of the MWA. But this is a mischaracterization of the work that Fiore performed, which principally entailed manual labor and individual retail sales. Because such duties do not constitute administrative operations, Fiore was not exempt from the protections of our state's overtime wage law.
¶ 12 We review de novo both questions of statutory interpretation and orders granting summary judgment. Cerrillo v. Esparza, 158 Wn.2d 194, 199, 142 P.3d 155 (2006). "Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Cerrillo, 158 Wash.2d at 200, 142 P.3d 155. Here, the superior court determined on summary judgment that Fiore was not an exempt administrative employee pursuant to RCW 49.46.010(5)(c) and, thus, that PPG violated the MWA by failing to pay Fiore overtime wages. Thus, we review the superior court's order de novo. See Cerrillo, 158 Wash.2d at 199, 142 P.3d 155.
¶ 13 The MWA requires employers, absent certain exceptions, to pay to their employees overtime wages at a rate of one and one-half times the employees' regular rate of pay for hours worked in excess of 40 hours per week. RCW 49.46.130(1). An employer can assert that its employee falls into one of these exemption categories and, therefore,
¶ 14 The MWA statutorily exempts from its overtime wage protections employees who work in a "bona fide ... administrative ... capacity." RCW 49.46.010(5)(c). "[A] multifactored definition of the duties of exempt administrative employees" is set forth in regulations interpreting the Act. Mitchell v. PEMCO Mut. Ins. Co., 134 Wn.App. 723, 731-32, 142 P.3d 623 (2006); see also WAC 296-128-520. As relevant here, an employee is administratively exempt where (1) he or she is compensated on a salary basis at a rate of not less than $250 per week, (2) his or her "primary duty consists of the performance of office or nonmanual work directly related to management policies or general business operations of his [or her] employer or his [or her] employer's customers," and (3) the employee's work "includes work requiring the exercise of discretion and independent judgment." WAC 296-128-520(4)(b)
¶ 15 First, in order to demonstrate that Fiore was an exempt administrative employee, PPG must show that Fiore's "primary duty consist[ed] of the performance of office or nonmanual field work directly related to management policies or general business operations." WAC 296-128-520(1). An employee's "primary duty" is determined based upon all of the facts in a particular case; although not always dispositve, basing the determination on that work performed by the employee for 50% of his or her time is a "good rule of thumb." Wash. Dep't of Labor & Indus., Administrative Policy ES.A.9.4, at 3 (issued Jun. 24, 2005).
¶ 16 An employee's primary duty is "directly related to management policies or general business operations," WAC 296-128-520(4)(b), where the employee's work consists primarily of "those types of activities relating to the administrative operations of a business as distinguished from production or sales work in a retail or service establishment." Administrative Policy, ES.A.9.4, at 4 (emphasis added). Moreover, the administrative exemption applies only to "persons who perform work of substantial importance to the management or operation of the business." Administrative Policy, ES.A.9.4, at 4. For example, an individual meets the administrative exemption where he or she "participate[s] in the formulation of management policies, or in the operation of the business as a whole" or where his or her work "affects
¶ 17 Here, Fiore spent the vast majority of his time performing manual labor at Lowe's stores and making individual retail sales to Lowe's customers and contractors. Fiore estimated that, in a typical four-hour store visit, he would spend approximately two hours managing the "chip rack," where paint color samples are displayed, and another hour "down-stocking" and "rotating stock," which essentially involved building displays of and stocking shelves with Olympic products. To assist Fiore in performing these manual duties, PPG provided him with knee pads, ear plugs, a mallet, a hammer, a crowbar, a wrench, and screwdrivers. While Fiore performed these manual service duties, "[c]ustomers would frequently ask [him] questions, assuming [he was] a Lowe's employee." PPG encouraged Fiore, who wore an Olympic shirt and badge during his store visits, to talk with customers, as part of his job was to "promote Olympic products to customers in the aisle." Fiore would also work at the contractor desk, assisting contractors in finding products. "[D]riving daily sales" was the "whole focus of the job" — in order to drive sales, Fiore ensured that the "displays looked good [and] racks were stocked [so that] they looked the way Lowe's wanted it to."
¶ 18 Further indicating the significance of individual retail sales to Fiore's position is the fact that he, as a Territory Manager, was a member of the "Lowe's National Olympic Field Sales Team." The Sales Team consisted of a three-person management team, 12 regional sales managers, and 167 Territory Managers. The self-defined "mission" of the Sales Team was to "provide the Lowe's customer with complete customer service resulting in increased retail sales and profits for Lowe's and Olympic."
¶ 19 Moreover, as is clear from the deposition testimony of PPG's management, the work of Territory Managers is not "directly related to management policies or general
¶ 20 Thus, Fiore's "primary duty" for purposes of the MWA was not "office or nonmanual field work," as required in order to exempt him from the Act's overtime wage protections. WAC 296-128-520. Rather, the record clearly indicates that Fiore spent the vast majority of his time engaged in manual labor and retail sales to individual Lowe's customers.
¶ 21 Nevertheless, PPG contends that the primary duty of Territory Managers is "promoting sales" of Olympic products and, in turn, that "promoting sales" is an administrative operation that qualifies an employee as exempt. In support of this contention, PPG cites to Reich v. John Alden Life Ins. Co., 126 F.3d 1, 3 (1st Cir.1997), in which the First Circuit held that "marketing representatives" employed by an insurance company fell within the "`administrative employee' exemption" to the Fair Labor Standards Act of 1938
¶ 22 In so holding, the court contrasted the duties of John Alden marketing representatives with those of the electrical products salespersons described in Martin v. Cooper Electric Supply Co., 940 F.2d 896 (3d. Cir. 1991). There, the employees at issue were inside salespersons who spent the majority of their time making telephone sales of electrical products from their offices. Martin, 940
¶ 23 Similarly, the Second Circuit has held that an advertising salesperson for a magazine publisher did not "promote sales" for purposes of the administrative employee exemption. Reiseck v. Universal Commc'ns of Miami, Inc., 591 F.3d 101 (2d Cir.2010). In rejecting the employer's assertion that an advertising salesperson was as administrative employee because she "promoted sales," the court reasoned that
Reiseck, 591 F.3d at 106-07. Contrasting individual sales with the promotion of sales generally, the court provided as an example the application of those principles to a retail clothing store:
Reiseck, 591 F.3d at 107. Although the employee in Reiseck did "`develop new clients' with the goal of increasing sales generally," her primary duty was to sell specific advertising space to clients. 591 F.3d at 107. Thus, she was not an administrative employee for purposes of the FLSA. Reiseck, 591 F.3d at 107; accord Kuzinski v. Schering Corp., 801 F.Supp.2d 20 (D.Conn.2011); Gorey v. Manheim Servs. Corp., 788 F.Supp.2d 200 (S.D.N.Y.2011).
¶ 24 In asserting that Fiore's primary duty was to "promote sales," PPG both disregards the actual work performed by Fiore as a Territory Manager and misconstrues the phrase "promoting sales."
¶ 25 The fact that Fiore's primary duty did not involve office or nonmanual field work directly related to the business operations or management policies of PPG is dispositive — Fiore is not an administrative employee exempt from the overtime wage protections of the MWA. See WAC 296-128-520. However, we also note that PPG cannot meet its burden of demonstrating that Fiore's work "include[d] work requiring the exercise of discretion and independent judgment." WAC 296-128-520(4)(b). Such work involves "the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered." Administrative Policy, ES.A.9.4, at 5. Moreover, it "implies that the person has the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance." Administrative Policy, ES.A.9.4, at 5. Decisions regarding "significant matters" are "the kinds of decisions normally made by persons who formulate or participate in the formulation of policy within their spheres of responsibility or who exercise authority within a wide range to commit their employer in substantial respects financially or otherwise." Administrative Policy, ES.A.9.4, at 8.
¶ 26 PPG asserts that Territory Managers exercise discretion and independent judgment because they are not "scripted" in their interactions with customers or Lowe's employees, because they "develop their own strategies" to promote sales, and because they determine how to best allocate their time. But PPG admits that Territory Managers do not develop the company's promotional messaging and are not permitted to vary promotional materials. It further admits that Territory Managers do not have the authority to formulate policy or operating procedures. Moreover, Territory Managers do not have the authority to negotiate on behalf of or bind PPG on significant matters. These admitted facts clearly demonstrate that Territory Managers do not "exercise discretion and independent judgment" as required in order to meet the administrative employee exemption to the MWA. See In re Novartis Wage & Hour Litig., 611 F.3d 141, 156-57 (2d Cir.2010) (holding that pharmaceutical representatives are not administrative employees for purposes of the FLSA because they had no authority to formulate or affect company policy, negotiate and bind the company on significant matters, or deviate from company policies or procedures without prior approval), abrogated on other grounds by Christopher v. SmithKline Beecham Corp., No. 11-204, 2012 WL 2196779 (U.S. Jun. 18, 2012).
¶ 27 PPG bears the burden of demonstrating that the work performed by Fiore as a Territory Manager plainly and unmistakably constitutes administrative work exempt from the requirements of the MWA. PPG has not met its burden. Accordingly, the trial court did not err by granting Fiore's motion for summary judgment.
¶ 28 PPG next contends that the trial court erred in calculating the value of Fiore's overtime wage claim. First, PPG asserts that the trial court should not have utilized the "time-and-a-half" calculation method. Second, PPG asserts that the trial court erroneously determined that PPG willfully withheld Fiore's wages and, thus, that Fiore was entitled to an award of double damages. On both accounts, we disagree.
¶ 29 An employee entitled to overtime wages pursuant to the MWA is entitled to compensation "at a rate not less than one and one-half times the regular rate at which he or she is employed" for hours worked over 40 hours per week. RCW 49.46.130(1). The "regular rate" of pay is the "hourly rate at which the employee is being paid" and "may
¶ 30 Our Supreme Court has determined that an employer's practice of paying overtime wages to salaried employees based upon a "fluctuating workweek" did not violate the MWA. Inniss v. Tandy Corp., 141 Wn.2d 517, 519, 7 P.3d 807 (2000). There, Radio Shack compensated its store managers with a fixed salary "as straight time pay for all hours worked each workweek" and paid overtime wages at one-half of the "calculated regular rate," which was obtained by dividing the fixed salary by the number of hours worked in any given workweek. Inniss, 141 Wash.2d at 520, 7 P.3d 807. The court considered as persuasive authority a federal regulation permitting employees to be paid a fixed salary for fluctuating workweeks so long as (1) the hourly rate of pay is not less than the applicable minimum wage and (2) the employee "`receives extra compensation, in addition to such salary, for all overtime hours worked at a rate not less than one-half his regular rate of pay.'" Inniss, 141 Wash.2d at 525-26, 7 P.3d 807 (emphasis omitted) (quoting 29 C.F.R. § 778.114(a)). The court thus determined that Radio Shack's compensation policy did not violate the overtime wage provision of the MWA. Inniss, 141 Wash.2d at 533-34, 7 P.3d 807.
¶ 31 A local federal court thereafter considered whether an employer who had failed to pay overtime wages in violation of the MWA was "entitled to the employer-friendly flexible work week method of calculating overtime pay under Washington state law." Monahan v. Emerald Performance Materials, LLC, 705 F.Supp.2d 1206, 1215 (W.D.Wash.2010). The court relied upon the same federal regulation, 29 C.F.R. § 778.114(a), which provides in part:
Monahan, 705 F.Supp.2d at 1215 (quoting 29 C.F.R. § 778.114(a)). The court determined that, although the MWA authorizes the use of the flexible workweek methodology, the regulation contained prerequisites not met in that case. Monahan, 705 F.Supp.2d at 1217.
¶ 32 First, the court determined, the regulation requires "payment of the mandatory 50% overtime premium contemporaneously with payment of the employee's regular straight time pay." Monahan, 705 F.Supp.2d at 1217; see 29 C.F.R. § 778.114(c) ("[W]here all the facts indicate that an employee is being paid for his overtime hours at a rate no greater than that which he receives for nonovertime hours, compliance with the Act cannot be rested on any application of the fluctuating workweek overtime formula."). Thus, the court held that "the flexible work week method cannot be used to calculate overtime retroactively (where it has not been paid contemporaneously with the overtime work) for the purposes of determining damages under Washington State law." Monahan, 705 F.Supp.2d
¶ 33 Here, PPG contends that the trial court erroneously determined that Fiore was entitled to be paid overtime wages at one and one-half times his regular rate of pay; instead, PPG asserts, those damages should be limited to one-half times the regular rate.
¶ 34 PPG further asserts that the trial court erred by determining that PPG had willfully withheld wages owed to Fiore and, therefore, that Fiore was entitled to an award of double damages. Any employer who "[w]ilfully and with intent to deprive [an] employee of any part of his or her wages," pays to the employee a lower wage than that to which the employee is entitled is liable to the employee "for twice the amount of the wages unlawfully rebated or withheld by way of exemplary damages." RCW 49.52.050(2),.070. This statute, which provides "an effective mechanism for recovery even where wage amounts wrongfully withheld may be small," "must be liberally construed to advance the Legislature's intent to protect employee wages and assure payment." Schilling v. Radio Holdings, Inc., 136 Wn.2d 152, 159, 961 P.2d 371 (1998).
¶ 35 Our Supreme Court has noted that the test for "willful" failure to pay is not stringent — the employer's failure to pay
¶ 36 PPG asserts that Fiore must demonstrate that PPG did not have a genuine belief that it had properly classified Fiore as an administrative employee.
¶ 37 The trial court denied PPG's assertion that a "bona fide" dispute exists with regard to whether Fiore was properly classified as an exempt employee, noting that PPG "declined to put forward the facts it considered when consulting on the issue [of the exemption] with counsel."
¶ 38 PPG finally contends that the trial court abused its discretion in calculating Fiore's award of attorney fees and costs. Contrary to PPG's contention, the trial court properly calculated the lodestar amount in determining the fee award. Accordingly, we affirm the trial court's determination of the lodestar amount.
¶ 40 Following PPG's removal of this matter to federal court, Fiore asserted in the District Court that the total award in a "typical wage claim case" would be less than $75,000, including attorney fees. Following remand to the superior court and Fiore's successful motion for summary judgment, the trial court awarded to Fiore attorney fees in the amount of $579,947. However, circumstances changed between the time of the federal court hearing and the time that fees were awarded in superior court. As the trial court found, this case became a "test case" for PPG, as numerous similar cases against PPG were pending throughout the country. Indeed, PPG admitted that this case had "national implications." The disparity between the predicted amount of fees and the actual amount of fees resulted from a change in circumstances, not from the assertion of inconsistent positions. The trial court acted within its discretion in not applying the doctrine of judicial estoppel to limit Fiore's award of attorney fees.
¶ 41 PPG next contends that the trial court, in various respects, improperly evaluated Fiore's fee petition. "[I]t is the trial judge who watches a case unfold and who is in the best position to determine the proper lodestar amount." Morgan v. Kingen, 141 Wn.App. 143, 163, 169 P.3d 487 (2007). Accordingly, "[f]ee decisions are entrusted to the discretion of the trial court." Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632, 966 P.2d 305 (1998). We will reverse an attorney fee award only where the trial court exercised its discretion on untenable grounds or for untenable reasons. Chuong Van Pham v. Seattle City Light, 159 Wn.2d 527, 538, 151 P.3d 976 (2007).
¶ 42 The trial court determines the proper amount of an attorney fee award using the lodestar method, "calculated by multiplying the reasonable hourly rate by the reasonable number of hours incurred in obtaining the successful result." Mahler, 135 Wash.2d at 434, 957 P.2d 632, 966 P.2d 305. The court must determine "that counsel expended a reasonable number of hours in securing a successful recovery for the client" and that counsel's hourly rate was reasonable. Mahler, 135 Wash.2d at 434, 957 P.2d 632, 966 P.2d 305. In order to provide an adequate record for review, the trial court must enter findings of fact and conclusions of law in support of its fee award. Mahler, 135 Wash.2d at 435, 957 P.2d 632, 966 P.2d 305.
¶ 43 PPG first asserts that the trial court erred by rejecting considerations of proportionality between the damages award and the attorney fee award without explaining the reasonableness of its decision.
¶ 44 PPG additionally asserts that the trial court erroneously awarded to Fiore fees based upon "unsuccessful work" in litigating a protective order and the arbitration. In determining the number of hours reasonably expended, the court "should discount hours spent on unsuccessful claims, duplicated or wasted effort, or otherwise unproductive time." Chuong Van Pham, 159 Wash.2d at 538, 151 P.3d 976. However, where "`the plaintiff's claims for relief ... involve a common core of facts or [are] based on related legal theories,'" a lawsuit cannot be "`viewed as a series of discrete claims'" and, thus, the claims should not be segregated in determining an award of fees. Brand v. Dep't of Labor & Indust., 139 Wn.2d 659, 672-73, 989 P.2d 1111 (1999) (quoting Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Here, Fiore brought only one claim — an overtime wage claim pursuant to the MWA; accordingly, case law discussing segregation between successful and unsuccessful claims is inapposite. See Brand, 139 Wash.2d at 673, 989 P.2d 1111 (holding that workers' compensation claims are not "discrete, unrelated claims" but, rather, "deal with one set of facts and related legal issues"). Moreover, that PPG moved to arbitrate the case resulted in the work performed by Fiore's attorneys in the arbitration proceedings. It was necessary for them to engage in that process. Thus, the work was not unnecessary. Neither was it "unsuccessful," given the ultimate resolution of the merits of the claim.
¶ 45 PPG also contends that the trial court should not have awarded fees (1) related to the motion to remand to state court, (2) for "duplicative efforts" where multiple attorneys attended various court proceedings, and (3) for work performed by partners that PPG believes should have been performed by associates or paralegals. PPG additionally asserts that the fees awarded for summary judgment preparation were "excessive." However, PPG provides no support for its assertion that the trial court erroneously awarded to Fiore fees incurred in obtaining remand to state court. Similarly, Fiore does not demonstrate that "duplicative effort" occurred because more than one attorney attended various court proceedings or that the fee was excessive because work performed by partners might have been performed by associates or paralegals. Moreover, PPG does not convincingly argue that the fees on summary judgment were excessive. The trial court listed several reasons for the reasonableness of Fiore's fees, including that his counsel has a "high degree of skill," that the action presented an "unusually high risk" for counsel, and because "the results were excellent." The trial court did not abuse its discretion in determining the reasonableness of the fees.
¶ 46 Nevertheless, PPG further asserts that the trial court erroneously considered an "impermissible factor" in assessing the reasonableness of Fiore's fee petition. PPG contends that an opposing party's attorney fees are not relevant to determining the reasonableness of its adversary's attorney fee request. Thus, PPG asserts, the trial court erroneously made an "adverse inference" against PPG because it had not submitted a record of its own expended fees.
¶ 47 Contrary to PPG's assertion, however, "[a] comparison of hours and rates charged by opposing counsel is probative of the reasonableness of a request for attorney fees by prevailing counsel." Heng v. Rotech Med. Corp., 720 N.W.2d 54, 65 (N.D.2006). See also McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805 (9th Cir.1994); Citgo Petroleum Corp. v. Krystal Gas Mktg. Co., Inc., 466 F.Supp.2d 1263 (N.D.Okla.2006); Blowers v. Lawyers Coop. Publ'g Co., 526 F.Supp. 1324 (W.D.N.Y.1981); Naismith v. Prof'l Golfers Ass'n, 85 F.R.D. 552 (N.D.Ga. 1979); Stastny v. S. Bell Tel. & Tel. Co., 77 F.R.D. 662 (W.D.N.C.1978). Where a defendant, challenging a plaintiff's attorney fee petition, contends that the request includes unnecessary or excessive charges, the amount of time expended by defense counsel in performing the same task "may well be the best measure of what amount of time is reasonable for this task." Davis v. Fid. Techs. Corp., 180 F.R.D. 329, 332 (W.D.Tenn. 1998). Thus, the defendant's expenditures in completing various litigation tasks "are relevant and probative." Davis, 180 F.R.D. at 332. See also Stastny, 77 F.R.D. at 663 ("In a contest over what time was reasonably and necessarily spent in the preparation of a case, it is obvious that the time that the opposition found necessary to prepare its case would be probative.").
¶ 48 Here, PPG contested the reasonableness of Fiore's attorney fee petition, asserting, among other challenges, that the petition contained fees for duplicative effort and improperly included work performed at partner rates that, PPG asserts, should have been performed by associates or paralegals. Moreover, PPG contends that the hours expended were excessive because the case was resolved on summary judgment. But, as explained above, PPG cites no basis for these contentions. The trial court thus properly recognized that evidence of PPG's own attorney fees, which PPG did not provide, would have served as a useful comparison in determining the reasonableness of Fiore's fee petition. The court did not err by so doing.
¶ 49 Finally, PPG contends that the trial court erred by awarding to Fiore a .25 multiplier on the attorney fee award. Because the extensive, time-consuming nature of the litigation was encompassed within the lodestar amount, and because the policies cited by the trial court as justification for the multiplier do not support such an award, the trial court erred by awarding the multiplier. Thus, although we affirm the trial court's award of attorney fees and costs in all other respects, we reverse the trial court's award of the multiplier.
¶ 50 Although it is "presume[d] that the lodestar represents a reasonable fee, occasionally a risk multiplier will be warranted because the lodestar figure does not adequately account for the high risk nature of a case." Chuong Van Pham, 159 Wash.2d at 542, 151 P.3d 976. Such an adjustment to the lodestar "is based on the notion that attorneys generally will not take high risk contingency cases, for which they risk no recovery at all for their services, unless they can receive a premium for taking that risk." Chuong Van Pham, 159 Wash.2d at 541, 151 P.3d 976. However, "to the extent, if any, that the hourly rate underlying the lodestar fee comprehends an allowance for the contingent nature of the availability of fees, no further adjustment duplicating that allowance should be made." Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 598, 675 P.2d 193 (1983). A trial court abuses its discretion in granting a multiplier "when it takes irrelevant factors into account." Chuong Van Pham, 159 Wash.2d at 543, 151 P.3d 976.
¶ 51 Here, the trial court awarded to Fiore a .25 multiplier, concluding that
Thus, the trial court provided, in essence, two justifications for its award of a multiplier — (1) that Fiore's attorneys would not be paid unless they prevailed and they would be opposed by skilled, aggressive litigators and (2) that, pursuant to statute and court rule, Fiore would be required to pay PPG's attorney fees and costs in the event that his position was not improved on the trial de novo.
¶ 52 We agree that "the high risk nature of a case" may justify the award of a risk multiplier. Chuong Van Pham, 159 Wash.2d at 543, 151 P.3d 976. In Chuong Van Pham v. Seattle City Light, we determined that such an adjustment was justified based upon the difficulties of proof presented in that employment discrimination case. 124 Wn.App. 716, 722, 103 P.3d 827 (2004), rev. on other grounds, 159 Wn.2d 527, 151 P.3d 976. There, because the plaintiffs were "`unable to explain their claims,'" their attorney pursued "a high-risk litigation strategy of proving the case through cross-examination and the testimony of adverse witnesses." Chuong Van Pham, 124 Wash.App. at 722, 103 P.3d 827. The attorney called nine adverse witnesses before calling his first "`friendly witness.'" Chuong Van Pham, 124 Wash.App. at 722, 103 P.3d 827. Based upon the risk of taking an employment discrimination case in which the plaintiffs had "`difficultly in articulating the nature of the claims of discrimination against them,'" we determined that a multiplier was warranted. Chuong Van Pham, 124 Wash.App. at 722-23, 103 P.3d 827.
¶ 53 In contrast, here, the litigation was not "high risk." It did not require the pursuit of risky trial strategies or present novel problems of proof. Instead, this is a straightforward wage and hour case — indeed, one properly resolved on summary judgment — made difficult by the "test case" nature of the case and PPG's "aggressive litigation tactics." In essence, this litigation was made complicated only by the amount of time and skill that it required — a consideration already accounted for in the lodestar amount. See Chuong Van Pham, 159 Wash.2d at 541, 151 P.3d 976 ("The difficulty of establishing the merits of the case is ... already reflected in the lodestar amount because the more difficult a case is, the more hours an attorney will have to prepare and the more skilled an attorney will have to be to succeed." (citing City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992))). Because the time expended and the hourly rates underlying the lodestar amount account for the difficulties presented by this case, such grounds cannot justify the award of a risk multiplier.
¶ 54 Moreover, in awarding the multiplier, the trial court improperly considered Fiore's risk in pursuing a trial de novo following the unfavorable arbitration decision. As noted above, in seeking the trial de novo, Fiore faced the risk of being required to pay PPG's attorney fees and costs in the event that his
¶ 55 Because, here, the trial court's award of a multiplier was based upon considerations already accounted for by the lodestar amount and the risk legislatively imposed for seeking a trial de novo, we reverse that aspect of the award. We affirm the trial court's award of attorney fees and costs in all other respects.
¶ 56 Fiore requests an award of attorney fees on appeal pursuant to RCW 49.52.070, which provides for an award of attorney fees where an employer willfully fails to pay an employee wages to which he or she is entitled. Such is the case here. Upon proper application, a commissioner of this court will enter an appropriate order awarding to Fiore attorney fees for this appeal.
¶ 57 Affirmed in part, reversed in part, and remanded.
We concur: APPELWICK and LAU, JJ.
Although a job title is not determinative of whether an employee is an administrative employee, see Administrative Policy, ES.A.9.4, at 3, the former title for Territory Managers suggests that such employees were engaged in individual retail sales — not operations deemed "administrative" for purposes of the MWA exemption. In addition, as discussed later in this opinion, the fact that PPG changed the title of the position from Retail Sales Representative to Territory Manager tends to prove that PPG sought to evade statutory overtime wage requirements.
Here, however, the parties do not dispute the facts regarding those job duties Fiore actually performed. Indeed, both parties filed motions for summary judgment on the question of whether Fiore was an administrative employee exempt from the MWA's overtime wage protections. Rather, PPG simply attempts to portray Fiore's duties as "promoting sales." The question here is not what job duties Fiore primarily performed; instead, the question is whether those duties constitute "promoting sales," thus rendering Fiore an administrative employee exempt from the Act's protections.
However, in Bao Yi Yang, the Ninth Circuit was interpreting federal and California wage and hour laws. Washington interpretive policy states, to the contrary, that "[i]f the employer fails to establish a specified number of hours per week for which the salary is intended to compensate the worker, it will be assumed that the salary is based upon a 40-hour workweek, and thus, 1-½ times the worker's regular rate will be due for all hours worked in excess of 40 in each workweek." Administrative Policy, ES. A.8.2, at 2. We will not employ a cursory statement made in an unpublished decision interpreting another state's law to subvert a properly promulgated Washington declaration of administrative policy.