Navigation Top
AGO Logo Graphic
AGO Header Image
File a Complaint
Contact the AGO
AGO 1959 No. 41 - May 27, 1959
AGO Opinion Header Image
John J. O'Connell | 1957-1968 | Attorney General of Washington

LABOR - DEFINITION OF "EMPLOYEE" WITHIN THE WASHINGTON MINIMUM WAGE AND HOUR ACT AS APPLIED TO COUNTIES.

The Washington minimum wage and hour act is applicable to and covers county employees.

                                                                  - - - - - - - - - - - - -

                                                                   May 27, 1959

Honorable John G. McCutcheon
Prosecuting Attorney
Pierce County
County City Building
Tacoma, Washington                                                                                      Cite as:  AGO 59-60 No. 41

Attention:  !ttMr. Keith D. McGoffin,Chief Civil Deputy

Dear Sir:

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

            Does Substitute Senate Bill No. 424, (chapter 294, Laws of 1959, effective June 11, 1959) establishing a minimum wage and hour act for "employees" in this state, apply to counties?

            We answer your question in the affirmative, as qualified, in our analysis.

                                                                     ANALYSIS

            The legislature during its regular 1959 session enacted Substitute Senate Bill No. 424 (chapter 294, Laws of 1959, effective June 11, 1959).  This act, known as the Washington minimum wage and hour act, prescribes wages and other conditions of employment for employees coming within its provisions.  In view of the length of the bill we will not set it forth herein in its entirety, but will refer only to the pertinent provisions thereof necessary for an understanding of the question stated above.

             [[Orig. Op. Page 2]]

            The general purpose or policy of this legislation is clearly stated in section 12 of the act 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 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 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.)

            From this all-inclusive language it is obvious that the legislature intended to bring each and every employee employed by an "employer" in this state within the purview of this act.

            The question presented here is simply whether a county employee is covered by the act, or to state it another way, is the state and its political subdivisions an "employer" within the meaning of that term as it is used in the act.

            In section 1 of the act "employer" is defined as follows:

            "(4) 'Employer' includes any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee;" (Emphasis supplied.)

            It is readily apparent that the United States, the State of Washington and the political subdivisions of this state are not specifically named in the above definition.

            However, our court has said that the primary rule in construing a statute is to ascertain and give effect to the intention of the legislature which enacted the statute.  Public Hospital District No. 2 v. Taxpayers, 44 Wn. (2d) 623, 269 P. (2d) 594;Graffell v. Honeysuckle, 30 Wn. (2d) 390, 191 P. (2d) 858;Lynch v. Dept. of Labor & Industries, et al, 19 Wn. (2d) 802, 145 P. (2d) 265; AGO 59-60 No. 28 [[to Prosecuting Attorney, Benton County on April 6, 1959]].  Another fundamental rule of construction is that in  [[Orig. Op. Page 3]] arriving at the intent of the legislative body the first resort of the courts is to the context and subject matter of the legislation because the intention of the lawmakers is to be deduced from what it said.  Hatzenbuhler v. Harrison, 49 Wn. (2d) 691, 306 P. (2d) 745; see alsoDriscoll v. City of Bremerton, 48 Wn. (2d) 95, 291 P. 642.  Legislative intent must be gleaned from a consideration of the whole act by giving effect to the entire statute and every part thereof.  SeeDeGrief v. Seattle, 50 Wn. (2d) 1, 297 P. (2d) 940;State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693.

            With these rules in mind we will proceed to discuss the "employees" expresslyexempted from the act by the legislature.  Section 1 (5) reads in pertinent part as follows:

            "'Employee' includes any individual employed by an employer but shall not include:

            " . . .

            "(d) any individual employed by the United States."  (Emphasis supplied.)

            Since it is well established that a statute should, if possible, be so construed so that no clause, sentence or word shall be held to be superfluous, void or insignificant (seePublic Hospital District No. 2 v. Taxpayers, supra; Group Health Cooperative of Puget Sound v. King County Medical Society, 39 Wn. (2d) 586, 237 P. (2d) 737) in order to give effect and meaning to the exclusion of federal employees from the act, the United States must, of necessity, be included within the definition of "employer."

            The term "employer" includes "any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee."

            InGeneral Casualty Company v. Seattle First National Bank, 42 Wn. (2d) 433, 442, 256 P. (2d) 287, our court said:

            ". . . In determining whether or not the term 'person' as used in a statute, includes a state or other unit of government, the purpose and subject matter of the statute, and the context in which the term is used, may be considered, along with other factors.  United States v. Cooper Corp., 312 U.S. 600, 85 L.Ed. 1071, 61 S.Ct. 742."

            Section 1, chapter 23, Laws of 1891 (cf. RCW 1.16.080), an act relating to the construction of statutes, reads, in part, as follows:

            "The following provisions relative to the construction of statutes shall be rules of construction and shall constitute a part of the code of procedure of this state: . . .

             [[Orig. Op. Page 4]]

            The term 'person' may be construed to include the United States, this state, or any state or territory,or any public or privatecorporation, as well as an individual. . . ." (Emphasis supplied.)

            This statute is cited in a footnote in 3 Sutherland, Statutory Construction, section 6303, p. 196.  The text writer notes that a large minority of the states have similar interpretive provisions, but he goes on to say:

            ". . . Unfortunately, these provisions have not been given effect due to oversight, or, more likely perhaps, judicial reluctance to trench upon the rule of strict interpretation."

            In this instance, resort to the legislature's definition of "person" so as to bring the United States, the State of Washington and the political subdivisions of this state within the provision of the act here being considered would not do violence to the rule of strict interpretation.  On the contrary, by so interpreting the word "person" each clause, sentence and word thereof can be given meaning and effect and the act, when thus read and considered in its entirety, is then plain, free from ambiguity, and devoid of uncertainty leaving no room for construction.  SeeState v. Houck, supra; State ex rel. Washington Bank v. Bellingham, 8 Wn. (2d) 233, 111 P. (2d) 781; 2 Sutherland, Statutory Construction, § 4701, p. 333; AGO 59-60 No. 18 [[to Dale Nordquist, State Senator on February 27, 1959]]; see alsoParkhurst v. Everett, 51 Wn. (2d) 292, 318 P. (2d) 327.

            Furthermore, this interpretation would clearly be consistent with, and give full force and effect to the end sought to be accomplished by the legislature by the passage of this act.  As previously stated, the general policy or scheme of this legislation is to establish a "minimum standard for wages, hours, and working conditions of all employees in this state, unless exempted [t]herefrom."  Section 12,supra.

            Therefore, it is our opinion after considering the purpose and subject matter of the act, the legislative intent derived from a reading of the act as a whole and giving effect to each word, phrase and section thereof, that this act must be construed as a general law providing for a minimum wage for all employees in this state, including employees of the State of Washington and its subordinate units of government.

            We are aware that this conclusion appears contrary: (1) to the general rule that statutes relating to minimum hours in private employment do not apply to public employees, see Rhyne, Municipal Law, p. 151, sec. 8-16; and (2) to the following statement made by our court in The Port of Seattle v. International Longshoremen's and Warehousemen's Union, 52 Wn. (2d) 317, 321, 324 P. (2d) 1099:

            ". . . it is a well-established rule of statutory construction that general legislation is inapplicable to the  [[Orig. Op. Page 5]] state or its political subdivisions, unless the statute expressly applies to them, or unless they must be included by necessary implication. . . ."

            In respect to the former, the general rule is not applicable in this instance in view of the peculiar wording of the act here being considered and the interpretation which we have hereinbefore placed upon it.  The latter is simply a statement of the general rule that statutes in derogation of sovereignty will not be construed to include the sovereign in the absence of express provision or necessary implication.  See 3 Sutherland, Statutory Construction, § 6301, p. 183.  The purpose of this rule is "founded on the policy of preserving government from the injurious consequences of a statute."  3 Sutherland,supra, § 6302, p. 191.

            The injurious consequence or encroachment upon the affairs of government which would follow from our interpretation of chapter 294, Laws of 1959, if it can be called injurious, would be to insure to employees of the sovereign and its subordinate units of government the minimum wages and working conditions of others similarly engaged in private employment.  Since we believe that our conclusion stated above is in accord with the legislative intent revealed on the face of the act, the possible serious consequences that may result thereby must be considered as immaterial and should not affect in any way the interpretation of the act.  The wisdom of legislation is a question solely within the province of the legislature.  Port of Tacoma v. Parosa, 52 Wn. (2d) 181, 324 P. (2d) 438.

            We have not overlooked the legislative history of this act in our consideration of the question submitted.  However, having concluded that the legislative intent may be gleaned from a consideration of the whole act and effect given the entire statute and every part thereof by giving the term "person" the permissive meaning as provided in section 1, chapter 23, Laws of 1891 (cf. RCW 1.16.080) supra, there is no need to proceed behind the face of the act in order to arrive at the intent of the legislature.  Legislative history should not be used in order to create an ambiguity that does not otherwise exist when the act is considered in its entirety.  A clear statement of this rule is found in 25 RCL 957, under the title "Statutes" as follows:

            "A statute is not to be read as if open to construction as a matter of course.  It is only in the case ofambiguous statutes of uncertain meaning that the rules of construction can have any application.  Where the language of a statute is plain and unambiguous and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.  When the meaning of a law is evident, to go elsewhere in search of conjecture in order to restrict or extend the act would be an attempt to elude it, a method which, if once admitted, would be exceedingly dangerous,  [[Orig. Op. Page 6]] for there would be no law, however definite and precise in its language, which might not by interpretation be rendered useless.  In such a case arguments from the reason, spirit, or purpose of the legislation, from the mischief it was intended to remedy,from history or analogy for the purpose of searching out and justifying the interpolation into the statute of new terms, and for the accomplishment of purposes which the lawmaking power did not express,are worse than futile.  They serve only to raise doubt and uncertainty where none exist, to confuse and mislead the judgment, and to pervert the statute.  Affirmative discussion in such circumstances is not unlike argument in support of a self-evident truth.  The logic may mislead or confuse.  It cannot strengthen the pre existing conviction. . . ."  (Emphasis supplied.)

            However, recognizing the seriousness of the problem of statutory construction involved herein, we will proceed to discuss the legislative history of the act for the purpose of completely advising you on this matter.

            As previously stated, we have held that there is no need to proceed beyond the four corners of the act in order to give full effect to the act in question.  However, should the court determine that an ambiguity exists, then resort will unquestionably be made to the legislative history.  SeeState ex rel. Blume v. Yelle, 52 Wn. (2d) 158, 324 P. (2d) 247 (1958).

            In the original bill introduced in the senate (S.B. 424) the term "employer" was defined as follows:

            "(4) 'Employer' includes any individual, partnership, association, corporation, business trust,governmental entity, or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee;"  (Emphasis supplied.)

            Since the substitute bill, finally enacted, omitted "governmental entity" from the definition, an argument could be advanced that, based on this one aspect of the legislative history of the enactment, the legislature thereby indicated its intent that the act should not operate so as to affectany governmental agencies.  This we concede to be a persuasive argument.  However, by attributing such intent to the legislature and thus limiting the definition of employer, what is the effect on the remainder of the act?

            The legislature in both the original and substitute bills excluded from the act "any individual employed by the United States" and provided further than "This act establishes a minimum standard for wages, hours, and working  [[Orig. Op. Page 7]] conditions of all employees in this state, unless exempted herefrom, . . ."

            It would therefore appear that, even considering the legislative history, if the employees of Federal government (which, it should be noted again, is not specifically included within the definition of employer in the act as passed), the State of Washington and political subdivisions of this state do not come within the purview of the act, the very basic rule of statutory construction, hereinbefore stated, that a statute should be so constructed so that no clause, sentence or word shall be held to be superfluous, void, or insignificant, would be unnecessarily violated.  The exclusion granted to federal employees would be renderedsuperfluous by the construction arrived at by resort to legislative history.

            Furthermore, it should be pointed out that the legislature, being advised of the laws which it enacted (section 1, chapter 23, Laws of 1891 (cf. RCW 1.16.080)supra),  could have concluded that there was no requirement that the United States, the State of Washington, and its subordinate units of governments (governmental entities) be specifically mentioned in the definition of employer.

            In this connection, it is interesting to note that in chapter 39.12 of the Revised Code of Washington, an act relating to "prevailing wages on public works contracts," the legislature expressly excluded certain employees of the state, and any county, municipality, or political subdivisions of this state from the operation of that act.

            RCW 39.12.020 provides as follows:

            ". . .This chapter shall not apply to workmen or other persons regularly employed on monthly or per diem salary by the state, or any county, municipality, or political subdivision created by its laws."  (Emphasis supplied.)

            Since chapter 39.12 RCW and chapter 294, Laws of 1959, both concern wages, we believe it is significant that in the former some public employees were expressly exempted; in the latter, public employees were not mentioned at all and the legislature therein stated the act was to apply to all employees unless "exempted [t]herefrom."  We readily admit that this reasoning alone would not be conclusive.  However, we feel it unquestionably fortifies our conclusion that, in general, public employees come within the provisions of the new act.  SeeState ex rel. Becker v. Wiley, 16 Wn. (2d) 340, 133 P. (2d) 507.

            In passing, we should like to point out that we have made no attempt herein to rule upon what particular public employees are covered by the act.  Needless to say, such a broad ruling at this time would not, as a practical matter, be feasible.

             [[Orig. Op. Page 8]]

            In view of the fact that we recognize the courts, if presented with this problem, could, by considering the legislative history of the act as hereinbefore discussed, arrive at a conclusion contrary to that stated herein (which is based on the language of the act itself) we recommend that, because of the state wide question involved in this matter, steps be taken as soon as possible to initiate such action as you may deem appropriate to have the courts finally pass upon the effect of chapter 294, Laws of 1959, upon public employees.

            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

Content Bottom Graphic
AGO Logo