Unpaid Wages, part 2
In Part 1, I warned that financial inability to pay an employee’s wages is insufficient to avoid a finding of willfulness and double damages. But what is sufficient? Washington courts have, so far, acknowledged only two instances when an employer’s wage withholding was not willful, resulting in only single damages:
When the employer was careless or erred in failing to pay, or
When a bona fide dispute existed between the employer and employee regarding the payment of wages.
Morgan v. Kingen, 166 Wash.2d 526, 534 (2009). The typical case of carelessness or error is an inadvertent bookkeeping mistake. In the case of a bona fide dispute, there must be a fairly debatable dispute over whether an employment relationship exists, or whether all or a portion of the wages must be paid. Schilling v. Radio Holdings, Inc., 136 Wash. 2d 152, 161 (1998). These exceptions are of no use to the employer who did not pay wages simply because there were insufficient funds to do so.
There is another route for avoiding double damages. Double damages are not available to any employee who «knowingly submits» to the wage withholding. RCW 49.52.070. But, again, this is a narrow exception. «A person knowingly submits to withholding of wages when he or she intentionally defers to his or her employer the decision as to whether, if ever, he or she will be paid.» Durand v. HIMC Corp., 151 Wn. App. 818, 836-37 (2009) (citing Chelius v. Questar Microsystems, Inc., 107 Wn. App. 678 (2001)). In Durand, the court noted that staying on the job after the employer fails to pay does not constitute knowing submission. The court also emphasized that the employee only agreed to temporary non-payment and always expected to be paid the full amount he had earned when the employer was financially able. In other words, if an employer fails to pay its employees on time, but convinces them to continue working by making assurances that they will be paid in full later, the employees are not knowingly submitting to the withholding and the employer may still be liable for double damages.
Last updated: September 2, 2010
This article and information contained herein are intended for information purposes only; they are not intended as legal advice and should not be used as such. Any use of material contained herein is at your own risk. Your use of and access to this article do not create any attorney-client relationship between you and Rebecca E. Ary. You should consult an attorney in your state or jurisdiction who can provide advice appropriate to your particular situation. Rebecca E. Ary is licensed to practice only in Washington. The Law Office of Rebecca E. Ary may be reached at 1037 NE 65th St. #161, Seattle, WA 98115.
For Rebecca E. Ary, employment law is a high-stakes, highly personal area of law that holds the power to turn the fortunes of both individuals and businesses. The sense of betrayal, anger, powerlessness and loss of trust associated with failed employee/employer relationships can overwhelm even the most level-headed and seasoned professionals. Which is why hiring a skilled professional like Ms. Ary is so critically important. With a deep desire to help her clients and in-depth knowledge of employment law, Ms. Ary practices her craft with exceptional skill and attention to detail. She takes a balanced, analytical, strategic approach that allows the strength and fairness of the law to prevail. Ms. Ary’s talent for listening and her ability to develop a persuasive and creative strategy positions her clients for more positive outcomes. A skilled negotiator and litigator, Ms. Ary is well-respected by her peers and known throughout the legal community as a powerful advocate for her clients.
Ms. Ary received her Juris Doctorate degree from University of Washington School of Law and her Bachelor of Arts in Philosophy from University of California, San Diego. She was recently included in Super Lawyers 2010 – Rising Stars Edition, a national professional lawyer’s listing that recognizes a small percentage of all Washington state lawyers and identifies outstanding individuals who have attained a high degree of peer recognition and professional achievement in their field. Ms. Ary is a member of the Washington State Bar Association, the King County Bar Association, the Washington Employment Lawyers Association and American Mensa.
In her free time, Rebecca has served as a volunteer for NAMI (The National Alliance on Mental Illness), and Literacy Source, an organization dedicated to helping adults learn to read. She is an avid reader who also enjoys hiking, and spending quality time with Elaine, her cat.
Find More Мейзу М2 Articles