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Washington State Law Update

Presented by Richard P. Lentini

Supreme Court Cases
Morgan v. Kingen, 166 Wn.2d 526, 210 P.3d 995 (2009)
Personal liability for unpaid wages for an officer or agent of the employer with authority over the payment of wages who acts “willfully and with the intent to deprive the employee of any part of his wages . . . .” RCW 49.52.070.

The “willfully” element is only defeated by a clerical error or a bona fide dispute as to the amount or whether wages are owed at all. In ability to pay is not an excuse.

A mini-casino in SeaTac filed bankruptcy under Chapter 11, reorganization. The business continued to operate, but the defendant operators and owners would not inject new capital.

The bankruptcy was eventually converted to Chapter 7 liquidation, but not until unpaid wages of almost $200,000 had accrued. The bankruptcy trustee had cash, but did not apply that to wages.

The two owner/officers were held individually liable for the unpaid wages (perhaps double, plus interest and attorney’s fees). Prior to the conversion to Chapter 7, they had controlled which debts would be paid and refused to inject additional capital to pay the wages owing. Willfulness was established.

Briggs v. Nova Services, 166 Wn.2d 794, 213 P.3d 910 (2009)

Employers may not discriminate against employees for participating in “concerted activity.” RCW 49.32.020.

Six management and two subordinate employees did not like the management style of the Executive Director of a Spokane non-profit. Two managers wrote their complaints directly to the Board, in violation of company policy. The Board hired and investigator and determined the Executive Director had not committed unlawful acts. The E.D. then fired the two complaining managers and another who stated she could be loyal to the company but not to the E.D.

Other employees wrote the Board demanding the E.D.’s termination and the reinstatement of the discharged employees. The threatened and did “walk out” on their jobs until their demands were met.

Plaintiff’s claims dismissed on summary judgment. RCW 49.32.020’s concerted activity theory was not raised until briefing before the Court of Appeals.

A split court: three justices found the employees who walked out were not terminated. Also, though “concerted activity” applies to attempts to improve the terms and conditions of employment, this does not include “managerial decisions which lie at the core of entrepreneurial control.” Employees may have been just trying to push out someone they considered a “bad boss.”

Kitsap County Deputy Sheriff’s Guild v. Kitsap County, 167 Wn.2d 428, 219 P.3d 675 (2009)

An employer may not discharge an employee if such action jeopardizes a clearly stated public policy. But what about when retaining an employee jeopardizes a public policy?

A deputy sheriff assigned to the child pornography task force became obsessive about the cases and was removed from the task force and reassigned.

He failed to return equipment and case files and failed to secure a firearm. Ultimately he was discharged for 29 documented incidents. In arbitration, the arbitrator determined the county established the deputy had been untruthful. Nevertheless, the arbitrator ordered reinstatement.

The majority of the Court adopted the “public policy” exception to enforcement of an arbitration award, limiting this exception to public policies which are explicit and well defined, not just based upon general public interest. The Court upheld the arbitration award, finding insufficient explicit expression of public policy requiring honest and truthful law enforcement officers.

The dissent would have found a public policy derived from “obvious ethical or moral standards” and RCW 41.14 (adopted by initiative), which provides deputy sheriffs have tenure “only during good behavior” and may be dismissed for “dishonesty” and other grounds.

Court of Appeals Cases

Corey v. Pierce County, 154 Wn. App. 752, 225 P.3d 367 (2010)

A defamation claim deals with damage to reputation. The elements of proof are falsity; an unprivileged communication; fault (negligence or malice); and damages.

A false light claim provides compensation for mental suffering, rather than reputation. The elements are characterizing the person in a false light; which would be highly offensive to a reasonable person; and the publisher knew or recklessly disregarding the falsity and the false light in which the other would be placed (malice).

Pierce county deputy prosecutor was promoted out of the bargaining unit, losing protection of discharge only for just cause. She claimed she accepted the position only upon the promise she would be discharged only for just cause.

Plaintiff was fired for differences with the Prosecutor. In her desk was found money to be used as a donation for a colleague with an ill child. An investigation found no evidence of wrongdoing.

The prosecutor’s office leaked to a newspaper an internal investigation on missing funds involving plaintiff. The Prosecutor made a statement to the effect plaintiff was untrustworthy. An article stated the Prosecutor stated plaintiff was under criminal investigation. Plaintiff thus became unemployable.






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