whether an employer acts "[w]ilfully and with intent" is a question of fact reviewed under the substantial evidence standard
How later courts described this case
- whether an employer acts "[w]ilfully and with intent" is a question of fact reviewed under the substantial evidence standard
- conflict over incentive bonuses, dispute over actual amount owing—no double damages
- applying section 600 actual malice standard to employer communications qualified privilege
- applying § 600 actual malice standard to employer communications qualified privilege
Written by the judges who cited it.
The opinion
Dore, J.
(dissenting) — The majority holds that the plaintiff should not receive exemplary damages pursuant to *661 RCW 49.52.070 because Becton-Dickinson withheld Lillig's wages pursuant to a bona fide dispute. I disagree.
The majority correctly states that in order for the penalty provisions of RCW 49.52.070 1 to come into effect, there must not be a bona fide dispute as to the amount owing, and that the trier of fact should determine whether such a dispute existed. McAnulty v. Snohomish Sch. Dist. 201, 9 Wn. App. 834 , 515 P.2d 523 (1973); Ebling v. Gove's Cove, Inc., 34 Wn. App. 495 , 663 P.2d 132 (1983). As this case was heard before a jury, if a debatable question existed about whether Becton-Dickinson did or did not act in good faith, the trial judge would have had no choice but to let the jury decide the issue. Failure to give proper instructions to the jury is reversible error. Cooper's Mobile Homes, Inc. v. Simmons, 94 Wn.2d 321, 327 , 617 P.2d 415 (1980).
The majority holds:
The trial court found RCW 49.52.070 to be inapplicable because there had been a bona fide dispute prior to the summary judgment as to whether Krachenfels' written assurance constituted an enforceable contract. The court also noted that the amount of bonus due under the plan was subject to some discretion and the final amount owing to plaintiff remained subject to considerable dispute at trial. There is sufficient evidence in the record to show a bona fide dispute as to the actual amount owed. Our review is limited to this determination.
(Italics mine.) Majority opinion, at 660. This analysis is legally and factually flawed.
First, the majority states that the question of whether the dispute is or is not bona fide is a question of fact. The majority also holds that the judge's decision not to give a jury instruction is correct because sufficient evidence exists *662 which would show the dispute was bona fide. However, this clearly would be the jury's decision not the judge's. Unless the majority is willing to rule (which I believe it is not) that as a matter of law, a reasonable jury would find the dispute bona fide, the judge had no choice but to give the case to the jury.
To the contrary, the uncontroverted evidence and the $14,556 jury verdict indicate that the jury did not believe that Becton-Dickinson acted pursuant to a bona fide dispute. This verdict implies: (1) Lillig was paid $3,950 pursuant to the Incentive Compensation Plan (Clerk's Papers, at 217), (2) after a partial summary judgment order it was established that Lillig should receive his full bonus, (3) Becton-Dickinson did not pay him any additional funds despite its ability to do so, and (4) Becton-Dickinson, by its own repeated admissions at trial, owed Lillig at least $9,854. These facts would lead to the conclusion that after the partial summary judgment order, Becton-Dickinson acted in bad faith toward Lillig by refusing to pay the additional bonus.
Prior case law supports my position that even if only a part of the salary is in dispute, failure to pay the money owed which is not in dispute warrants exemplary damages. In Brandt v. Impero, 1 Wn. App. 678 , 463 P.2d 197 (1969), the Court of Appeals upheld an exemplary damage award under RCW 49.52.070 for wages withheld from a group of employees, even though there was a controversy about whether a smaller discreet part of the wage was owed. To do otherwise would allow a large company to use its economic clout to coerce its employees into accepting smaller settlements for disputed amounts by withholding undisputed salary. The clear purpose of RCW 49.52.070 would be defeated, and I am deeply dismayed that the majority countenances this result.
I would remand this case for a determination of whether the dispute was bona fide. Whatever the trier of fact finds was not withheld pursuant to a bona fide dispute would be subject to the exemplary damage provisions of RCW 49.52- *663 .070. Furthermore, if as I believe it will be, it is subsequently determined that any part of the unpaid salary was not withheld in good faith, then Lillig should also recover attorneys fees and costs at a new trial, as well as the exemplary damages.
Utter and Goodloe, JJ., concur with Dore, J.
Reconsideration denied September 3, 1986.
"Any employer and any officer, vice principal or agent of any employer who shall violate any of the provisions of subdivisions (1) and (2) of RCW 49.52.050 shall be liable in a civil action by the aggrieved employee or his assignee to judgment for twice the amount of the wages unlawfully rebated or withheld by way of exemplary damages, together with costs of suit and a reasonable sum for attorney's fees: Provided, however, That the benefits of this section shall not be available to any employee who has knowingly submitted to such violations."