In a 5-4 split decision, the Washington Supreme Court on Thursday ruled that agricultural employers must pay piece-rate workers separately with an hourly wage for time spent not directly picking or pruning.

The opinion stems from a 2016 class action lawsuit against Dovex Fruit Company of Wenatchee filed by orchard workers complaining they were not being paid for so-called “down time,” such as waiting for ladders, traveling from one orchard to another or training. Dovex had argued that’s the way piece-rate works; all time is factored into the per-bin or per-tree rate negotiated at the time of hire because all of it is necessary for production.

The five judges siding with the workers were Mary Yu, Barbara Madsen, Charles Wiggins, Steven Gonzalez and Sheryl McCloud. “Time spent performing activities outside the scope of piece-rate picking must be compensated on a separate hourly basis,” Yu wrote in the majority opinion. Dissenting were Debra Stephens, Charles Johnson, Susan Owens and Chief Justice Mary Fairhurst.

The ruling will apply to all Washington agricultural employers.

The decision does not determine which chores fall under this requirement. That detail will be left to the U.S. District Court, where the lawsuit was originally filed, and it will only affect Dovex employees, said Sara Wixson, a Yakima attorney who wrote a brief on behalf of the Washington State Tree Fruit Association supporting Dovex. Other employers will have to make up their own minds on what tasks to pay at an hourly rate based on the outcome of that case.

In 2017, a federal court asked the Washington State Supreme Court to decide only if down time must be paid by an hourly rate separate from piece rate, and if so, how much. In answer to the latter question, the court ruled workers must receive a minimum wage or an agreed upon hourly rate.

Dovex employees Mariano Carranza and Eliseo Martinez were named as plaintiffs in the suit and represented a class that their attorney estimated could include up to 800 workers. They were represented by Seattle attorney Marc Cote. Dovex was represented by Wenatchee attorney Clay Gatens.

The ruling comes more than two years after the same court decided piece-rate workers must be paid a separate hourly wage during their state-mandated rest breaks in a lawsuit against a Skagit County berry farm.

In the wake of that decision, and in the tight labor market, Wixson and her colleagues had already been advising their clients to pay an hourly rate for many “down time” periods cited as examples in the District Court case, she said.

—by Ross Courtney