LABOR - COVERAGE OF MINIMUM WAGE AND HOUR ACT AS APPLICABLE TO REGULAR RATE RATHER THAN MINIMUM RATE

LABOR - COVERAGE OF MINIMUM WAGE AND HOUR ACT AS APPLICABLE TO REGULAR RATE RATHER THAN MINIMUM RATE.

The Washington Minimum Wage and Hour Act requires an employer covered by the act to pay his employees who work longer than eight hours a day or forty hours a week overtime at the rate of at least one and one half times their regular rate per hour even though said regular rate is in excess of the minimum rate established by the act.

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                                                                   May 27, 1959

Honorable Karl V. Herrmann
State Senator, Fourth District
No. 3315 Dale Road
Spokane, Washington                                                                                               Cite as:  AGO 59-60 No. 40

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office on a question which we paraphrase as follows:

            Does section 3 (1), chapter 294, Laws of 1959 (Washington Minimum Wage and Hour Act) require an employer, coming within the provisions thereof, to pay his employees, who work longer than eight hours a day or forty hours a week, overtime at the rate of at least one and one half times their "regular rate" per hour, irrespective of whether the "regular rate" is in excess of the minimum rate provided in the act?

            We answer this question in the affirmative.

                                                                     ANALYSIS

            The Washington Minimum Wage and Hour Act (chapter 294, Laws of 1959) passed by the legislature during its regular 1959 session requires every employer subject to the act to pay his employees "wages at a rate of not less than one dollar per hour."  The act also contains the following provision relative to "overtime" payment of employees coming within the purview thereof:

             [[Orig. Op. Page 2]]

            "Sec. 3.  (1) Except as otherwise provided in this section, no employer shall employ any of his employees for a workday longer than eight hours or for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one half times the regular rate at which he is employed.  Every employee is entitled to have his overtime computed on both a daily and weekly basis each week and shall be paid either his daily or weekly overtime whichever is greater."  (Emphasis supplied.)

            This provision for "overtime" payment is substantially the same as one found in the Fair Labor Standards Act upon which our act was patterned.  29 U.S.C.A. § 207, page 683, reads, in pertinent part, as follows:

            "(a) Except as otherwise provided in this section, no employer shall employ any of his employees who is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specifiedat a rate not less than one and one half times the regular rate at which he is employed."  (Emphasis supplied.)

            In both acts "regular rate" is defined as follows:

            "(3) (d) As used in this section the 'regular rate' at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, but shall not be deemed to include -[Exceptions omitted.]"  [Section 3 (3), chapter 297, Laws of 1959; 29 U.S.C.A. § 207 (d)]

            The case ofOvernight Motor Transportation Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682, 1687, rehearing denied 317 U.S. 706, 63 S.Ct. 76, 87 L.Ed. 563 (1942), in which the supreme court of the United States construed the above quoted provision of the Federal Act, is determinative of the question presented.  In that case the court said:

            ". . . We agree that the purpose of the act was not limited to a scheme to raise substandard wages  [[Orig. Op. Page 3]] first by a minimum wage and then by increased pay for overtime work.  Of course, this was one effect of the time and a half provision, but another and an intended effect was to require extra pay for overtime work by those covered by the acteven though their hourly wages exceeded the statutory minimum.  The provision of § 7 (a) requiring this extra pay for overtime is clear and unambiguous.  It calls for 150% of the regular, not the minimum, wage. . . ."  (Emphasis supplied.)

            InMitchell v. Agricultural Aluminum Products, Inc., D.C. S.C., 161 F.Supp. 22, 24 (1958), the court cited the above case as authority for the following conclusion of law:

            "2. That during the period from January 28, 1955, to April 6, 1956, Billy V. Clark should have been paid overtime compensation for the hours worked in excess of 40 hours each workweek at the rate of one and one half time his regular rate, which regular rate of pay equals the total compensation paid each week divided by the total number of hours worked each week.  Overnight Motor Transportation Co., Inc., v. Missell, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682."

            Accordingly, it is our opinion that an employee who is receiving an hourly "regular rate" of payin excess of the minimum rate of one dollar (required by section 2 of the act) is entitled to, and must be paid, one and one half times his "regular rate" (actual pay per hour) for work in excess of eight hours per day or forty hours per week unless such employment is specifically exempted therefrom, or unless section 12 thereof is applicable.  This section reads as follows:

            "This act establishes a minimum standard for wages, hours, and working conditions ofall employees in this state, unless exempted herefrom, and is in addition to and supplementary to any other federal, state, or local law or ordinance, or any rule or regulation issued thereunder.  Any standards relating to wages, hours, or any other working conditions established by any applicable federal, state, or local law or ordinance, or any rule or regulation issued thereunder, which are more favorable to employees  [[Orig. Op. Page 4]] than the minimum standards applicable under this act, or any rule or regulation issued hereunder, shall not be affected by this act and such other laws, or rules or regulations, shall be in full force and effect and may be enforced as provided by law: PROVIDED, That as to any employer and employment which is subject to the federal fair labor standards act, compliance with such act shall be deemed likewise to constitute compliance with section 1 (5) (c), section 3, section 5 and section 7 of this act."  (Emphasis supplied.)

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT J. DORAN
Assistant Attorney General