IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CATHLEEN ROBERTSON, SCOTT 

CASTONGUAY and ANDREA RAKER,

for themselves, and for all others 

similarly situated, 

Appellants,

v.

VALLEY COMMUNICATIONS 

CENTER,

Respondent.

No. 80861-3-I

DIVISION ONE

PUBLISHED OPINION

APPELWICK, J. — Employees of the VCC brought suit under the Washington 

Minimum Wage Act1 alleging the VCC regularly required them to perform nine 

tasks prior to the start of their shift without pay. The trial court granted summary 

judgment that six of these nine tasks were not compensable work tasks or were 

otherwise de minimis. The trial court excluded a survey of class members and 

corresponding expert testimony as fundamentally flawed. The employees 

conceded that without the survey, they would be unable to prove damages and 

could no longer sustain their suit. VCC brought a motion for summary judgment 

on that basis, which the trial court granted. We affirm.

FACTS

Valley Communications Center (VCC) is a regional 911 center that provides 

24 hour emergency communication services to south King County. The appellants 

 

1 Chapter 49.46 RCW.
No. 80861-3-I/2

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are a class of employees in two positions at VCC: call receivers and dispatchers. 

Call receivers and dispatchers both work in a 70 foot by 79 foot open floor plan 

room at VCC called the “Com Room.” 

Call receivers receive incoming 911 calls, collect information from the caller, 

and determine which, if any, agencies should respond to the event. They input 

information into the computer aided dispatch (CAD) system, where it can be 

accessed by dispatchers and responding units. In order to perform these 

functions, call receivers log into the CAD system and a separate phone system. 

They then plug their issued headset into a workstation and press a button on the 

computer screen that allows them to begin taking calls. Call receivers’ 

workstations are not assigned, they can sit at any open workstation. 

Dispatchers use the information entered into the CAD system by call 

receivers to dispatch emergency services as needed. They use two way radios to 

communicate directly with units in the field. Dispatchers are assigned to specific 

consoles in the Com Room that dispatch for specific agencies (e.g., Auburn Fire 

Dispatch or Renton Police Dispatch). Each console must be continually staffed. 

So, outgoing dispatchers must brief incoming dispatchers on the activities open on 

the console. Incoming dispatchers can plug their headsets into the console while 

the outgoing dispatcher is still plugged in. Dispatchers must log in to the console 

and phone system. Because of the fluid nature of handoffs from one dispatcher to 

another, an incoming dispatcher could begin their shift utilizing the previous 

dispatcher’s login and then switch to their own account after their shift starts. 
No. 80861-3-I/3

3

VCC employees are paid hourly. But, their hours worked are tracked per 

shift, rather than per hour. Employees record their shift attendance by “hand 

punching” into the Com Room by placing their hand on a biometric reader and 

entering their employee code. At all times relevant to this litigation, the employees 

were allowed to hand punch in up to 30 minutes before the start of their shift and 

could hand punch out up to 15 minutes before the end of their shift. These periods 

are known as “gracing” periods.2 Regardless of the precise time that an employee 

hand punches in or out during a gracing period, they are paid from their scheduled 

start time to their scheduled end time. If an employee is required to stay past their 

scheduled end time, they are paid based on a rounding rule to the nearest fifteen 

minute increment. 

Employees are expected to be seated at their console and ready to begin 

work by one second past the top of the hour. In order to be ready at this time, 

employees may have to perform a variety of preparatory tasks. The employees 

allege that they are required to complete nine tasks prior to the start of the shift: 

1. Gathering/assembling guidebooks/resource materials;

2. Signing up for breaks;

3. ‘Hand-punching’ into computerized attendance/payroll system;

4. (For Dispatchers): obtaining console assignment;

5. Locating ergonomic chair and ergonomic carpel board, and/or 

any ergonomic equipment;

6. Logging into phone and computer systems;

 

2 The preshift gracing period was changed from 30 minutes to 5 minutes 

during the course of litigation. 
No. 80861-3-I/4

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7. Plugging headset and headset jack into console;

8. Reviewing clearing messages from the CAD system; and 

9. (For Dispatchers): receive briefing from the outgoing Dispatcher.

The employees brought suit alleging the requirement violated the 

Washington wage payment and collection law (WPCL), chapter 49.48 RCW, and 

Washington Minimum Wage Act (MWA), chapter 49.46 RCW. 

Both sides moved for summary judgment. The employees sought a ruling 

that VCC had actual or constructive knowledge of their uncompensated work, and 

that VCC was liable for double damages because it willfully withheld their wages. 

VCC sought a ruling that the nine tasks were not compensable work, or, in the 

alternative, were not recoverable under the de minimis doctrine. It also sought a 

ruling that it was not liable for double damages. 

The trial court denied the employees’ motion for double damages. But, it 

found that VCC had knowledge of employees’ presence on campus prior to their 

shifts though the use of the hand punching system. It granted partial summary 

judgment for VCC, finding it was not liable for double damages, but otherwise 

denied VCC’s motion for summary judgment. 

VCC then moved to depose 33 employees regarding their preshift routines. 

The trial court granted the motion over the employees’ objection. During 

depositions, employees were questioned about their preshift routine as a whole, 

rather than the time it took to perform each individual task. At least one employee 

indicated it would not be possible to estimate the amount of time each task took as 

opposed to the whole preshift routine. 
No. 80861-3-I/5

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The employees moved for summary judgment that the nine preshift tasks 

were compensable work. VCC cross moved for summary judgment that the tasks 

were not compensable work. The trial court granted partial summary judgment for 

VCC and denied for the employees. It found that two of the tasks—signing up for 

breaks and locating ergonomic chairs and equipment—were not “work” because 

they were not in the control of or for the benefit of the employer. It ruled that six3

of the nine tasks were not compensable under the de minimis doctrine. The trial 

court denied summary judgment on the remaining three tasks: (1) gather/assemble 

guidebooks/resource materials, (2) review/clear messages from the CAD system, 

and (3) (for dispatchers) receive briefing from outgoing dispatcher. 

The employees enlisted an expert, Dr. Bernard Siskin. Siskin and his 

colleague Dr. Susanne Shay, developed a survey to be sent to class members to 

determine how much time they spent on the remaining preshift tasks. The survey 

begins by informing class members of its purpose:

This form is being sent to you to collect certain information needed 

for the lawsuit Robertson v. VCC, regarding tasks that you may 

perform prior to the start of your shift at VCC from March 17, 2013 to 

the present. You are receiving this form because you are a member 

of the Class.

 

3

(1) Signing up for breaks, (2) hand punching into the computerized 

attendance/payroll system, (3) (for dispatchers) obtaining a console assignment, 

(4) locating an ergonomic chair and an ergonomic carpel board, and/or any 

ergonomic equipment, (5) logging into the phone and computer systems, and (6) 

plugging the headset and headset jack into console. 
No. 80861-3-I/6

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The survey then asks two questions, one about the three remaining preshift tasks, 

and one about the dismissed six tasks:

Question 1: While your arrival times may have changed over your 

time employed at VCC, during the period from March 17, 2013 until 

the present, or if no longer employed at VCC - March 17, 2013 until 

the end of your employment date - looking back on your typical 

routine, what would you estimate has been the average total time

you spent per shift doing the following tasks:

1. Gathering/assembling guidebooks/resource materials;

2. Reviewing/clearing messages from [the] CAD system; and

3. (For Dispatchers): receive briefing from the out-going 

Dispatcher.

. . . .

Question 2: And what would you estimate the average total time per 

shift you have spent doing the following tasks.

1. Signing up for breaks; 

2. “Hand-Punching” into computerized attendance/payroll 

system;

3. (For Dispatchers): obtaining console assignment;

4. Locating ergonomic chair and ergonomic carpel board, 

and/or any ergonomic equipment;

5. Logging into phone and computer systems;

6. Plugging headset and headset jack into console.

(Emphasis in original.)

VCC enlisted its own expert, Dr. Robert Palmatier, who prepared a critique 

of the survey. He argued that the questions were significantly unclear because the 

questions ask for time spent “per shift” rather than “preshift.” He argued that some 

respondents would believe they were being asked to provide the amount of time 

spent on these tasks during their entire shift, rather than prior to the start of the 

shift only. In support of this theory, he pointed out that 18 percent of survey 

respondents had given time estimates for the amount of time they spent on preshift 
No. 80861-3-I/7

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tasks that exceeded the amount of time that they were in the building prior to their 

shift. 

VCC moved exclude the survey and Siskin’s conclusion drawn therefrom, 

or, in the alternative, to conduct a Frye4 hearing. It also moved to allow Palmatier 

to testify at the Frye hearing and, if necessary, at trial. The trial court granted the 

motion to exclude the survey and Siskin’s opinions. It found that the survey was 

so fundamentally flawed that any testimony derived from it would be misleading 

and confusing to the jury. It based its decision on the use of “per shift” rather than 

“preshift” language in the questions, and the fact that some respondents had 

provided answers in excess of the total amount of time they were in the building 

prior to their shift. The court also denied VCC’s motion to allow Palmatier to testify 

as moot in light of the exclusion of Siskin’s testimony. 

The employees conceded to the trial court that, without the survey, they 

would be unable to prove class wide damages on the remaining three preshift 

tasks. They conceded this was so because the witnesses on their witness list were 

not representative of the class, and those who were deposed were asked only to 

provide an estimate of all nine tasks, rather than just three of the nine. Based on 

these concessions, VCC moved for summary judgment to dismiss claims based

on the remaining three tasks. The trial court granted the motion. 

The employees appeal. VCC cross appealed, but later withdrew that 

appeal. 

 

4 Frye v. United States, 293 F. 1031 (D.C. Cir. 1923).
No. 80861-3-I/8

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DISCUSSION

The employees assign three errors. First, they argue the trial court erred in 

granting partial summary judgment that six of the nine preshift tasks are not 

compensable work or are de minimis. Second, they argue that the trial court 

abused its discretion in excluding Siskin’s survey and his opinions drawn 

therefrom. Last, they assert that the trial court erred in granting summary judgment 

that VCC was not liable for double damages under RCW 49.52.070(2). 

I. Dismissal of Six Preshift Tasks

The employees argue that the trial court erred in granting partial summary 

judgment dismissing six of the nine preshift tasks. The trial court determined that 

two of those six—signing up for breaks and locating ergonomic chairs and 

equipment—were not “work” because they were not within the control of or for the 

benefit of the employer. It further found that all six tasks were not compensable 

under the de minimis doctrine. 

Summary judgment is appropriate where there are no genuine issues of 

material fact and the moving party is entitled to judgment as a matter of law. CR 

56(c). All facts and reasonable inferences must be viewed in the light most 

favorable to the nonmoving party. Stevens v. Brink’s Home Sec., Inc., 162 Wn.2d 

42, 46-47, 169 P.3d 473 (2007). The moving party bears the initial burden of 

showing an absence of an issue of material fact. Young v. Key Pharm., Inc., 112 

Wn.2d 216, 225, 770 P.2d 182 (1989). The nonmoving party must then set forth 

specific facts showing that there is a genuine issue of fact for trial. Id. at 225-26. 
No. 80861-3-I/9

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We review summary judgment decisions de novo, engaging in the same inquiry as 

the trial court. Volk v. DeMeerleer, 187 Wn.2d 241, 254, 386 P.3d 254 (2016).

A. Tasks That do not Meet the Definition of “Work”

The trial court found that two of the nine preshift tasks were not “work” within 

the meaning of the MWA: signing up for breaks and locating ergonomic 

chairs/equipment. 

The MWA requires employees to be compensated for all hours worked. 

RCW 49.46.020, .130. Hours worked includes any time an employee is 

“authorized or required by the employer to be on duty on the employers premises 

or at a prescribed work place.” WAC 296-126-002(8). Time spent conducting 

preparatory tasks is considered hours worked. WASH. DEP’T OF LABOR & INDUS.,

ADMIN. POLICY ES.C.2, at 8 (rev. Sept. 2, 2008).

5 Compensable preparatory tasks 

are those which are “integral or necessary to the performance of the job.”6 Id. 

When an employee does not have control over when and where preparatory 

activities can be made, the activities are considered hours worked. Id. 

VCC provides ergonomic equipment to employees. Employees and 

supervisors describe the selection of chairs and use of ergonomic equipment as a 

matter of preference. Employees point to no specific facts that establish the use 

of ergonomic equipment was “integral or necessary” to the completion of the job. 

 

5 http://www.lni.wa.gov/workers-rights/_docs/esc2.pdf 

6 Both parties rely on this policy to determine whether preparatory tasks are 

compensable. An agency policy can be useful in determining the meaning of 

statutory terms. See generally Stahl v. Delicor of Puget Sound, Inc., 148 Wn.2d 

876, 886-87, 64 P.3d 10 (2003); Richardson v. Dep’t of Labor and Indus., 6 Wn. 

App. 2d 896, 909, 432 P.3d 841 (2018), review denied, 193 Wn.2d 1009, 439 P.3d 

1069 (2019). 
No. 80861-3-I/10

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The employees point to no evidence that VCC required employees to use this 

ergonomic equipment or that an employees were ever disciplined for not using 

ergonomic equipment. 

The employees instead point to the VCC standard operating procedures, 

policy no. 300, which requires employees to be fully prepared to start their shift at 

one second past the start of their shift. But, that policy does not set out specific 

requirements for what preparations must occur. It does not require the use of 

ergonomic equipment. The employees also point to negative employee 

evaluations they received if they did not arrive at the facility with enough time to 

complete preshift tasks and be ready to begin work at their scheduled time. But,

the negative comments the employees point to do not reference the inability to 

secure ergonomic equipment, rather they reference the inability to promptly begin 

work at the scheduled time. None of these comments indicates that utilizing 

ergonomic equipment is a job requirement. 

But, at least one of those negative reviews specifically references the 

inability to sign up for breaks prior to the start of a shift. And, positive evaluations 

specifically praise employees for arriving with enough time prior to their shift to sign 

up for breaks. Additionally, a 2007 memorandum from VCC supervisors to 

employees confirms that employees are expected to sign up for breaks “before 

[the employee] sit[s] down or at the next earliest convenience.” At least one 

employee indicated that if he did not sign up for a break slot prior to his shift, he 

would ask a supervisor to assign him a break slot. Some supervisors and 
No. 80861-3-I/11

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employees indicated that employees are able to sign up for breaks after the start 

of their shift. But, at least one trainer indicated that employees are not permitted 

to sign up for breaks after the start of their shift. The record supports that training 

officers trained employees to sign up for breaks as a part of a preshift routine. 

The employees adduced specific facts that showed that employees were 

trained to sign up for breaks prior to their shift and received negative performance 

reviews if they failed to do so. This created a reasonable inference that VCC 

exercised control over when signing up for breaks occurred. As the nonmoving 

party to VCC’s motion for summary judgment, the employees are entitled to that 

inference. See Stevens, 162 Wn.2d at 46-47. VCC controls where this task must 

take place: employees sign up for breaks on a “break board” on VCC’s campus. It 

cannot be reasonably contested that signing up for breaks is necessary or integral 

to completion of the job. Breaks are required by WAC 296-126-092.

Viewing the facts in the light most favorable to the employees, there remains 

a genuine issue of material fact that signing up for breaks is integral or necessary 

for the completion of the employees’ jobs, and that VCC controls where and when 

the task must occur. 

While there is some evidence in the record that VCC did not require 

employees to sign up for breaks prior to the start of their shift, this fact is not 

dispositive. Employers are required to compensate employees for any time 

“authorized or required” not just the work it requires. RCW 49.46.020, .130; WAC 

296-126-002(8). This includes “all work requested, suffered, permitted, or 
No. 80861-3-I/12

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allowed.” ADMIN. POLICY ES.C.2, at 1. The employees’ evidence that they were 

trained to sign up for breaks prior to their shift creates a reasonable inference that 

they were authorized to do so.

Viewing the facts and reasonable inferences in the light most favorable to 

the employees, a genuine issue of fact exists as to whether time employees spent 

signing up for breaks was “hours worked.” The trial court erred in granting VCC’s 

motion for summary judgment on that issue. But, the employees did not succeed 

in creating an issue of material fact regarding whether time spent gathering 

ergonomic equipment was “hours worked.” Employees adduced no specific facts 

that the use of such equipment was integral or necessary to the performance of 

their jobs. The trial court correctly granted summary judgment on that issue.

B. The De Minimis Doctrine

The employees argue that the trial court erred in dismissing six tasks under 

the federal de minimis doctrine. They argue this is so both because Washington 

courts have not adopted the de minimis doctrine and because the court incorrectly 

applied the doctrine to the facts of this case. We need not reach the way in which 

the trial court applied the de minimis doctrine because we are not persuaded the 

Washington courts have adopted the de minimis standard for MWA claims. 

The MWA requires employees to be compensated for all hours worked. 

RCW 49.46.020; .130. Its federal counterpart, the Fair Labor Standards Act 

(FLSA) contains a similar requirement. 29 U.S.C. § 206. But, federal courts have 

adopted the de minimis rule, which makes otherwise compensable work time 
No. 80861-3-I/13

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outside of a scheduled shift noncompensable. Lindow v. United States, 738 F.2d 

1057, 1062 (9th Cir. 1984). To determine when the doctrine applies, courts 

consider (1) the practical administrative difficulty of recording the additional time; 

(2) the aggregate amount of compensable time; and (3) the regularity of additional 

work. Id. at 1063. 

VCC has cited to no substantive state authority that adopts the de minimis

doctrine to the MWA.7 We are aware of one instance where this court has been 

asked to so apply the de minimis doctrine. We declined the invitation: “[W]e are 

aware of no state authority that applies the de minimis rule, and the State has 

shown no compelling reason to apply such a rule.” Davis v. Dept. of Transp., 138 

Wn. App. 811, 820, 159 P.3d 427 (2007).

VCC argues that Administrative Policy ES.C.2, at 4 “applie[s] or endorse[s]” 

the de minimis doctrine for Washington wage claims. It does not. The policy uses 

the words de minimis once, as an adjective in a description of a hypothetical 

situation where an employee would be entitled to compensation for drive time 

between their home and a first drive site. Id. That alone does not substantively or 

 

7 VCC cites to three Washington cases that it purports to apply an “equitable 

de minimis doctrine as part of common law.” None of these cases concern either 

the MWA, FLSA, or unpaid wages. See In re Bartel v. Em’t Sec. Dep’t, 60 Wn.2d 

709, 712, 714, 375 P.2d 154 (1962) (referring to de minimis rule to assist in defining 

“self-employed” for purposes of RCW 50.20.080, Employment Security Act); Lang 

v. Dep’t. of Labor & Indus., 35 Wn. App. 259, 262-63, 665 P.2d 1386 (1983) (using 

“de minimis” adjective to describe the benefit an employer receives from an 

employee leaving work early while interpreting the Industrial Insurance Act, Title 

51 RCW); Reynolds v. Hancock, 53 Wn.2d 682, 684, 335 P.2d 817 (1959) 

(describing damages in a contract case as “de minimus non curat lex”).
No. 80861-3-I/14

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impliedly adopt, endorse, or apply the federal de minimis doctrine to Washington 

wage claims. 

Nor has VCC cited state authority for the standard that they purport governs 

applicability of FLSA case law to interpretation of the MWA: that FLSA case law 

should be applied unless the MWA “expressly differs.” VCC’s citation to Drinkwitz 

v. Alliant Techsystems, Inc. reveals the correct standard: “Because the MWA is 

based upon the FLSA, federal authority under the FLSA often provides helpful 

guidance. However, the MWA and FLSA are not identical and we are not bound 

by such authority.” 140 Wn.2d 291, 298, 996 P.2d 582 (2000). The MWA is to be 

liberally construed in favor of employees to effectuate the legislative intent to 

protect wages and assure payment. Int’l Ass’n of Fire Fighters, Local 46 v. City of 

Everett, 146 Wn.2d 29, 35, 42 P.3d 1265 (2002). If federal case law does not 

advance this intent, there is no requirement to apply that case law simply because 

the MWA does not “expressly” differ. See Drinkwitz, 140 Wn.2d at 298 

(Washington courts are not bound by FLSA case law when interpreting the MWA). 

Adoption of the de minimis doctrine, which allows otherwise compensable work to 

be uncompensated, would not advance the legislature’s intent to protect employee 

wages and assure payment. We decline to do so.

Summary judgment that time spent locating ergonomic equipment was not 

“hours worked” was proper, because the employees have not adduced specific 

facts showing that this was integral or necessary to the completion of their jobs. 

Summary judgment that time spent signing up for breaks is not “hours worked” 
No. 80861-3-I/15

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was improper, because genuine issues of material fact remain as to the extent to 

which VCC controlled when and where this task took place. Summary judgment 

that all other tasks were not compensable was improper, because Washington has 

not adopted the federal de minimis standard for claims under the MWA.

II. Damages Survey

Employees argue that the trial court abused its discretion in excluding 

Siskin’s survey and opinions drawn therefrom. The trial court concluded that the 

surveys were inadmissible under ER 403 and ER 702. ER 403 allows the trial 

court to exclude evidence if its probative value is substantially outweighed by the 

danger of unfair prejudice, confusion of issues, or misleading the jury. ER 702 

governs expert opinion testimony. It allows admission of expert testimony if it will 

assist the trier of fact to understand the evidence or to determine a fact in issue. 

Id.

We review the trial court’s exclusion of expert testimony for an abuse of 

discretion. Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939 (2004). An 

abuse of discretion exists if the decision is manifestly unreasonable or based on 

untenable grounds or reasons. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 

132 P.3d 115 (2006). 

The trial court’s decision rested on its view that the survey and Siskin’s 

opinions from it were not helpful to the jury and would confuse them because “he 

asked the wrong question.” This is not manifestly unreasonable. The distinction 

between “preshift” and “per shift” is a central issue in this case: employees cannot 
No. 80861-3-I/16

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recover for tasks performed during their shift because they have already been 

compensated for that time. 

The employees argue that VCC presented no evidence that the survey was 

confusing to respondents. But, VCC submitted expert analysis showing that 18 

percent of survey respondents gave impossible answers to the survey (i.e., that 

they spent more time on the nine tasks than they spent in the building prior to their 

shift). This is strong evidence that a sizable number of respondents believed that 

they were being asked about time they spent on the tasks during the entirety of 

their shift, rather than before their shift. This called into question the reliability of 

the survey instrument.

The employees argue that the wording of the questions goes to weight 

rather than admissibility. They argue that because surveys are a well-established 

scientific technique, the trial court should have allowed the jury to weigh questions 

about the quality of the survey. They concede that Washington courts have not 

developed a specific jurisprudence on how admissibility of surveys are to be 

addressed. They argue that the trial court should have adopted federal 

jurisprudence on the issue. They cite to cases from the Ninth Circuit standing for 

the proposition that “[t]echnical inadequacies in [a] survey, including the format of 

the questions or the manner in which it was taken, bear on the weight of the 

evidence, not its admissibility.” Keith v. Volpe, 858 F.2d 467, 480 (9th Cir. 1988); 

Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgm’t, Inc., 618 F.3d 

1025, 1037-38 (9th Cir. 2010)). 
No. 80861-3-I/17

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Where, as here, Washington evidence rules mirror their federal 

counterparts, courts may look to federal case law interpreting federal rules as 

persuasive authority in interpreting our own rules. In re Det. of Pouncy, 168 Wn.2d 

382, 392 n.9, 229 P.3d 678 (2010). The trial court was therefore free to rely on 

these cases as persuasive authority, but was not required to. 

Even so, the trial court’s determination was not that there was a minor 

technical issue with the survey. Instead, the trial court found that the wording of 

the question was so flawed that the survey would be of no help to the jury. That 

decision is not manifestly unreasonable given the significant distinction between 

preshift and per shift time to the facts of this case. 

Expert testimony is admissible only if it is helpful to the jury. ER 702. And,

any evidence may be excluded if its probative value is outweighed by the 

substantial risk of confusing the jury. ER 403. Having determined the survey to 

be flawed to this level, the trial court’s decision to exclude it and Siskin’s 

corresponding testimony was not an abuse of discretion. 

III. Dismissal was Proper

The trial court did not abuse its discretion in ruling to exclude Dr. Siskin’s 

survey of class members or his conclusions drawn therefrom. The employee’s 

conceded below that they would be unable to prove damages on anything less 

than the full nine preshift tasks. Because the trial court did not err in dismissing 

one of the nine preshift tasks—locating ergonomic equipment—the employees’
No. 80861-3-I/18

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concession applies to the remaining eight tasks. The trial court did not err in 

dismissing the case.8 

We affirm.

WE CONCUR:

 

8 Because we find dismissal of the case is appropriate, we need not address 

whether the trial court erred in finding VCC was not liable for double damages.