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WPI 330.91 Employment Discrimination—Joint Employer Status (Minimum Wage Act)

6A WAPRAC WPI 330.91Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.91 (7th ed.)

Washington Practice Series TM

Washington Pattern Jury Instructions--Civil

April 2022 Update

Washington State Supreme Court Committee on Jury Instructions

Part XVI. Employment

Chapter 330. Employment Discrimination

WPI 330.91 Employment Discrimination—Joint Employer Status (Minimum Wage Act)

You must determine whether, as a matter of economic reality,(name of alleged employer)was a joint employer of(name of alleged employee).

(Name of alleged employer)was(name of alleged employee)'s joint employer if(alleged employee)was economically dependent upon or controlled by(alleged employer). You should consider the following factors in making this determination:

(1) the nature and degree of control of the workers by(name of alleged employer);

(2) the degree of supervision, direct or indirect, of the work by(name of alleged employer);

(3) (name of alleged employer)'s power to determine the pay rates or the methods of payment of the workers;

(4) (name of alleged employer)'s right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers;

(5) (name of alleged employer)'s preparation of payroll and the payment of wages;

(6) whether the work was similar to that of a specialty job in a production line [such as one small step in a sequence of steps];

(7) whether responsibility under the contracts between a labor contractor and(name of alleged employer)pass from one labor contractor to another without material changes;

(8) whether the premises and equipment of(name of alleged employer)are used for the work;

(9) whether(name of alleged employee)belonged to a business organization that could or did shift as a unit from one worksite to another;

(10) whether the work was “piecework” and not work that required initiative, judgment, or foresight;

(11) whether(name of alleged employee)had an opportunity for profit or loss depending on [his] [her] managerial skill;

(12) whether there was permanence in the working relationship; and

(13) whether the service rendered is an integral part of(name of alleged employer)'s business.

This list of factors is nonexclusive, and no single factor should control your decision. You should evaluate all the circumstances and you should give each factor whatever weight you deem appropriate. How the parties characterize their relationship is not determinative.

NOTE ON USE

Use this instruction when a party claims that another party was a joint employer under the Minimum Wage Act (MWA) and there is evidence to allow the jury to find joint-employer status. This instruction should be used with an instruction setting forth the elements of the Minimum Wage Act claim being asserted.

When there are multiple alleged joint employers, repeat the first paragraph of this section as necessary.

Insert the names of the parties where appropriate, especially when there are multiple alleged joint employers.

COMMENT

This instruction was modified for this edition to clarify that the factors are relevant to determine economic dependence.

In Becerra v. Expert Janitorial, LLC, 181 Wn.2d 186, 195–97, 332 P.3d 415 (2014), the Washington Supreme Court adopted the 13-factor economic-reality test articulated in Torres-Lopez v. May, 111 F.3d 633, 639–45 (9th Cir. 1997), and explained that additional factors are appropriate if supported by the evidence. For example, the Becerra court stated:

Here, our Court of Appeals properly found that these factors may include whether the putative joint employer knew of the wage and hour violation, whether it paid sufficient amounts to the subcontractors to allow for a lawful wage, and whether the subcontracting arrangement is a “‘subterfuge or sham.’”

Becerra, 181 Wn.2d at 198 (quoting Becerra v. Expert Janitorial, LLC, 176 Wn.App. 694, 719, 309 P.3d 711 (2011)).

Erroneously, the trial court in Becerra limited consideration to the first five factors based on its belief that factors six through eleven, the “Rutherford factors,” Rutherford Food Corp. v. McComb, 331 U.S. 722, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947), were not applicable outside a production line work setting such as the meat packing line at issue in Rutherford. In reversing that limitation, the Court of Appeals noted that because the work force is shifting away from a production line economy:

[i]f our courts were to limit their full examinations of potential joint employment relationships to “production line” jobs, employers in the fastest growing sectors of our economy would be insulated from complying with the requirements of the MWA [Minimum Wage Act] and FLSA [Fair Labor Standards Act]. This runs counter to the remedial purposes of both acts.

Becerra, 176 Wn.App. at 712–13.

[Current as of January 2021.]

End of Document