IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

CHARLES PEIFFER,

 Respondent/Cross Appellant,

v.

PRO-CUT CONCRETE CUTTING 

AND BREAKING INC. (UBI No. 

602427891); and KELLY R. SILVERS 

and ERIN SILVERS, husband and wife 

and the marital community comprised 

thereof; 

Appellants/Cross Respondents,

MONTE SAINSBURY and SHELLY 

SAINSBURY, and the marital community 

comprised thereof,

 Defendants.

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No. 34715-0-III

PUBLISHED OPINION

SIDDOWAY, J. — An employer appeals and its employee cross appeals errors that 

allegedly occurred in the bench trial of the employee’s claim for unpaid wages and 

constructive discharge in violation of public policy. Each prevails in part. 

FILED

DECEMBER 18, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
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We affirm the trial court’s rulings that the statute of limitations for Charles

Peiffer’s wage claim was tolled during the period his wage complaint was under 

investigation by the Department of Labor and Industries, and that Mr. Peiffer was entitled 

to an award of his reasonable attorney fees and costs.

We reverse the trial court’s dismissal of Mr. Peiffer’s claim for constructive

wrongful termination in violation of public policy, reverse its award of an amount to 

compensate Mr. Peiffer for an increased tax liability, reverse its finding that Mr. Peiffer 

knowingly submitted to withholding of his wages, and reverse and remand the 

inadequately-explained attorney fee and cost award.

We remand for a new trial on the constructive wrongful termination claim, for 

reconsideration of the award of reasonable attorney fees and costs and the entry of 

sufficient findings, and with directions to enter a supplemental judgment that will afford 

Mr. Peiffer double damages for his wage claim less the $8,784 tax-related amount that 

was awarded in error.

FACTS AND PROCEDURAL BACKGROUND

Charles Peiffer worked at Pro-Cut Concrete Cutting and Breaking, Inc. 

intermittently over a period of 23 years. He began working at Pro-Cut in 1989 when he 

was 16, soon leaving its employ to attend trade school and participate in a Job Corps 

program. He resumed working at Pro-Cut when he was 18 or 19 and over time was 

trained as a slab saw operator. He left Pro-Cut’s employ for another job but returned in 
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2005, at Pro-Cut’s invitation. By the time of his return in 2005, Kelly Silvers and his 

wife had purchased the company. 

As a slab saw operator, Mr. Peiffer was required to pick up a company vehicle at 

Pro-Cut’s business location, which he would then drive to his assigned job site. Pursuant 

to a written travel policy, Pro-Cut’s employees were not paid for the first 30 minutes or 

last 30 minutes of drive time between Pro-Cut’s shop and a job site, the company’s 

reasoning being that it could not charge the customer for that time. The policy predated 

the Silvers’ ownership and was in place the entire time Peiffer worked at Pro-Cut. 

Mr. Peiffer submitted a time card each week for his hours worked. In 2008, Mr. 

Peiffer noticed that his time cards, which were reviewed by his supervisor, Monte 

Sainsbury, were being altered. Times recorded by Mr. Peiffer were sometimes “whited 

out” and new times were written in. Report of Proceedings (RP) at 213. It turned out 

that when Mr. Sainsbury believed employees had inflated their work time, he would alter 

their time cards to reflect what he believed was accurate time, including to remove time 

entered for the first and last half-hour of travel. Mr. Silvers was aware of Mr. 

Sainsbury’s action in changing time cards. 

Mr. Peiffer objected to Mr. Sainsbury’s alteration of his time cards. On one 

occasion, his objection led to a physical altercation between the two men. Mr. Peiffer 

was told that if he did not like the policy, he could quit. 
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Ultimately, Mr. Peiffer did quit. It was on June 8, 2012, after Mr. Sainsbury had 

again altered Mr. Peiffer’s time card. Mr. Peiffer later testified that when he saw how 

many lines of his time card were whited out “that was it.” RP at 221. He refused to 

return to work unless Pro-Cut paid him the full wages owed him. Mr. Peiffer’s last 

paycheck was in an amount that reflected a reduction of roughly 10 of the hours he had 

reported. At his prevailing wage at $28.78, that amounted to approximately $300 of 

withheld wages for the week. 

On July 3, 2012, Mr. Peiffer filed a wage complaint with the Department of Labor 

and Industries, which immediately opened an investigation. The Department’s 

investigation remained open for 14 months during which it never issued a citation or 

notice of assessment and no administrative action was begun. According to Anna 

Sanchez, the department investigator assigned to Mr. Peiffer’s claim, she was able to 

determine that “there were clearly some wage violations” but his claim was “extremely 

difficult.” RP at 176-77. Mr. Peiffer submitted records of invoices, time cards, and pay 

stubs to the Department, but he acknowledges that the records he provided were 

incomplete. 

Ms. Sanchez was aware that statutes under which the Department operates 

contemplate that an investigation will be completed in 60 days. By statute, the 

Department is required to provide advance written notice if it has good cause for taking 

longer to complete its investigation, and is required to specify the duration of the 
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extension. During the 14 months the Department’s investigation was pending, Ms. 

Sanchez sent a number of “60-day letters” to Mr. Peiffer, indicating that his claim 

required more time to investigate. RP at 175, 178. She did not send copies of the 60-day 

letters to Pro-Cut.

When questioned in the trial below, Ms. Sanchez explained that she was the only 

investigator for Benton, Franklin, Columbia, Walla Walla, and Spokane Counties and 

given her caseload and the volume of records delivered by Mr. Peiffer, it was difficult to 

create a calculation of Mr. Peiffer’s unpaid wages. She told him several times during the 

months the investigation was pending that he needed to provide a calculation of his 

unpaid wages. He responded several times that he had no calculation, and would go 

along with whatever the Department calculated his unpaid wages to be. 

Having reached this impasse, and having waited well over a year for department 

action on his claim, Mr. Peiffer retained a lawyer, Alicia Berry. She filed suit on his 

behalf against Pro-Cut, Mr. Silvers, Mr. Sainsbury and the men’s wives and marital 

communities on November 22, 2013. The complaint included nine causes of action. 

Among them were several causes of action seeking unpaid wages and prejudgment 

interest. The complaint also included a claim for constructive wrongful termination in 

violation of public policy. Mr. Peiffer alleged he had been unable to obtain work that 

paid as well as his former work as a slab saw operator, and he sought to recover back pay 

and front pay. 
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Upon learning of Mr. Peiffer’s lawsuit from Ms. Berry a few days after it was 

filed, Ms. Sanchez wrote what she described as a “closure letter” to Mr. Peiffer dated 

November 27, 2013. Although the letter is not in our record on appeal, she evidently

stated that in light of his lawsuit she was terminating her investigation. 

The lawsuit filed by Ms. Berry put Pro-Cut on notice for the first time that Mr. 

Peiffer had filed a wage complaint with the Department.

After suit was filed, the jointly-represented defendants delivered a series of what 

their lawyer described as “stipulation[s] as to the amount owing” in an effort to avoid 

liability for Mr. Peiffer’s reasonable attorney fees under RCW 49.48.030.

1

 Clerk’s 

Papers (CP) at 46. In the final stipulation the defendants filed before trial, they admitted 

to wages owed of $31,631.69. As explained by the defendants’ lawyer, this was based on 

a letter from Ms. Berry dated May 3, 2016, that provided her calculation of the wages 

owed, although the defendants then adjusted Ms. Berry’s calculation downward. Ms. 

Berry’s calculation included unpaid wages owed beginning in June 2009, based on Mr. 

 

1 The statute provides:

In any action in which any person is successful in recovering judgment for 

wages or salary owed to him or her, reasonable attorney’s fees, in an 

amount to be determined by the court, shall be assessed against said 

employer or former employer: PROVIDED, HOWEVER, That this section 

shall not apply if the amount of recovery is less than or equal to the amount 

admitted by the employer to be owing for said wages or salary.
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Peiffer’s position that the statute of limitations on his wage claim was tolled during the 

Department’s investigation. The defendants reduced Ms. Berry’s calculation based on 

their position that the statute of limitations was not tolled. They limited the amount of 

their admitted liability to unpaid wages owed beginning in November 2010. 

The lawsuit proceeded to a bench trial. In addition to presenting evidence of the 

amount of unpaid wages, prejudgment interest, and reduced earnings, Mr. Peiffer 

presented evidence that he and his wife would pay additional federal income tax as a 

result of receiving his unpaid wages in a lump sum. The defendants presented no 

evidence on the tax issue. 

After Mr. Peiffer rested his case, the defendants moved the court for involuntary 

dismissal of a number of his claims under CR 41(b)(3). The trial court did not rule on the 

motion immediately, wanting to receive responsive briefing. When the motion was 

brought up the next day, the trial court stated that it would address the CR 41(b)(3) 

motion in closing and was “going to make [its] ruling all in one.” RP at 262.

At the conclusion of the bench trial, the court dismissed the claims against the 

Sainsburys and otherwise ruled as follows:

 It determined that by filing a claim with the Department, the statute of 

limitations on Mr. Peiffer’s claim was tolled and it awarded Mr. Peiffer 

withheld wages in the amount of $42,768.12;

 It awarded Mr. Peiffer prejudgment interest of $28,491.40;
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 It awarded Mr. Peiffer the amount of $8,784.00 to offset his increased tax 

liability on account of receiving his unpaid wages in a lump sum;

 It determined that Pro-Cut and the Silvers had been willful in withholding

wages but that Mr. Peiffer knowingly submitted to the withholding, so it 

denied Mr. Peiffer’s request for an award of double damages under RCW 

49.52.070; 

 It found that Mr. Peiffer was entitled to an award of his reasonable attorney 

fees and costs under RCW 49.48.030, having recovered more in wages than 

Pro-Cut had admitted was due; and 

 It granted the defendants’ CR 41(b)(3) motion for dismissal of Mr. Peiffer’s 

claims for breach of contract, violation of the Consumer Protection Act,

chapter 19.86 RCW, and constructive wrongful termination. 

The amount of reasonable attorney fees and costs to be awarded Mr. Peiffer was 

argued thereafter. Ms. Berry and her co-counsel, Brian Davis, submitted a declaration 

and affidavit, respectively, with attached time records, documenting a lodestar fee 

measure of $73,395.50. They had represented Mr. Peiffer under a contingent fee 

agreement and sought a multiplier based on risk associated with taking the case.

Mr. Peiffer sought $9,778.82 in costs, some of which were for reimbursement of 

Ms. Berry’s costs of traveling to Washington State for the trial. After taking the case 

while resident in Washington, Ms. Berry and her family moved to the east coast. While 

she associated Mr. Davis to handle pretrial court appearances, she traveled to Washington

State for trial, including on one occasion when the case was set for trial but was bumped 

by other cases.
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Although the court made three findings that courts sometimes view as supporting a 

multiplier, the trial court awarded attorney fees to Mr. Peiffer in the rounded amount of 

$50,000.00 without an explanation for the reduction from the lodestar figure other than 

that $50,000.00 was “a reasonable amount.” RP at 314. In its written findings, the court 

described its award as the “reasonable and necessary” amount. CP at 127. It awarded 

$5,503.13 in costs. The cost amount was also unexplained, although it is pointed out on 

appeal that the amount can be arrived at by subtracting Ms. Berry’s travel costs from Mr. 

Peiffer’s requested costs. 

Pro-Cut appeals. Mr. Peiffer cross appeals.

ANALYSIS

Appeal

Pro-Cut2 makes three assignments of error on appeal. It contends the trial court 

erred (1) in determining that Mr. Peiffer’s wage claim was tolled during the Department’s 

investigation, (2) in awarding Mr. Peiffer attorney fees and costs, and (3) in awarding

damages to compensate for an increased tax liability. We address the claimed errors in 

the order stated.

I. THE STATUTE OF LIMITATIONS FOR CIVIL ACTIONS IS TOLLED DURING A

DEPARTMENT INVESTIGATION WHETHER THE EMPLOYEE RESOLVES A CLAIM 

ADMINISTRATIVELY OR THROUGH A CIVIL ACTION

 

2

Judgment was entered jointly and severally against Pro-Cut and the Silvers and 

all of them appeal. For simplicity we refer to them collectively as “Pro-Cut.”
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The parties agree that the statute of limitations applicable to Mr. Peiffer’s wage 

claims is three years. RCW 4.16.080(3) (applicable to actions on implied contracts); 

Seattle Prof’l Eng’g Emps. Ass’n v. Boeing Co., 139 Wn.2d 824, 837-38, 991 P.2d 1126

(2000). Pro-Cut contends the trial court erred when it ruled that the statute of limitations 

was tolled when Mr. Peiffer filed his wage complaint with the Department and awarded

Mr. Peiffer unpaid wages going back to July 3, 2009.

Washington law provides that the Department “shall investigate” a wage 

complaint filed with the Department. RCW 49.48.083(1). It “shall issue either a citation 

and notice of assessment or a determination of compliance” unless the wage complaint is 

“otherwise resolved.” Id. If the Department finds a violation, it issues a citation and 

notice of assessment that is served on the employer and employee. Id. An employer 

aggrieved by a citation and notice of assessment has 30 days within which to file a notice 

of appeal with the department director, failing which the citation and notice of assessment 

become final and binding. RCW 49.48.084(1). 

Having issued the citation and notice of assessment, the Department may order the 

employer to pay the complaining employee all wages owed for the three years preceding 

the filing of the wage complaint, including interest of one percent per month on the 

wages owed. RCW 49.48.083(2). Payment by the employer and acceptance by the 

employee of the wages and interest assessed by the Department bars the employee from 
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initiating and pursuing any court action based on the wage payment requirements 

addressed in the citation and notice of assessment. RCW 49.48.083(4).

A wage complainant who receives his or her copy of a citation and notice of 

assessment served by the Department on the employer is permitted by RCW 49.48.085(1) 

to terminate the Department’s administrative action by providing written notice to the 

Department within 10 business days. The statute goes on to provide in its subsection 

(3)(a) that “[n]othing in this section shall be construed to limit or affect . . . [t]he right of 

any employee to pursue any judicial, administrative, or other action available with respect 

to an employer.”

Zeroing in on the statutory language on which the tolling issue turns, RCW 

49.48.083(5) provides,

The applicable statute of limitations for civil actions is tolled during the 

department’s investigation of an employee’s wage complaint against an 

employer. 

It then more particularly identifies the beginning and end of the tolling period, as 

follows:

For the purposes of this subsection, the department’s investigation begins

on the date the employee files the wage complaint with the department and 

ends when: (a) The wage complaint is finally determined through a final 

and binding citation and notice of assessment or determination of 

compliance; or (b) the department notifies the employer and the employee 

in writing that the wage complaint has been otherwise resolved or that the 

employee has elected to terminate the department’s administrative action 

under RCW 49.48.085.
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Id. (emphasis added). 

Application of this provision presents a question of statutory interpretation that we 

review de novo. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004). We 

begin by looking at the plain meaning of the statute as expressed through the words 

themselves. Tesoro Ref. & Mktg. Co. v. Dep’t of Revenue, 164 Wn.2d 310, 317, 190 P.3d 

28 (2008). Where the meaning of the statute is plain and unambiguous, we give effect to 

that plain meaning. Overlake Hosp. Ass’n v. Dep’t of Health, 170 Wn.2d 43, 52, 239 

P.3d 1095 (2010). Only if the language is ambiguous do we look to aids of statutory 

construction, such as legislative history. State v. Armendariz, 160 Wn.2d 106, 110-11, 

156 P.3d 201 (2007).

Ms. Sanchez’s testimony in the trial below established that the Department had an 

open investigation of Mr. Peiffer’s wage complaint against Pro-Cut from July 3, 2012,

until she terminated the investigation on November 27, 2013. Applying the plain 

meaning of the first sentence of RCW 49.48.083(5), the applicable statute of limitations 

for civil actions was tolled during that time. Pro-Cut argues that the more particular 

identification of the beginning and end dates of the tolling period leads to a different 

result, however.

The parties agree that the Department’s investigation began on July 3, 2012. They 

agree that the subparagraph (a) end date of the tolling period does not apply, because Mr. 
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13

Peiffer’s wage complaint was never finally determined through a final and binding 

citation and notice of assessment or determination of compliance. 

They agree that one of the subparagraph (b) end dates—“that the employee has 

elected to terminate the Department’s administrative action under RCW 49.48.085”—

does not apply, because the 10-day postcitation right to terminate the Department’s 

investigation never arose and could never have been exercised by Mr. Peiffer.

That leaves the parties with three theories of how RCW 48.49.083(5) applies on 

these facts. Mr. Peiffer advances two arguments. One is that the remaining subparagraph 

(b) end date applies because Ms. Sanchez’s November 27 closing letter “notifie[d] the 

employer and the employee in writing that the wage complaint has been otherwise 

resolved.” There are two problems with this argument. One is that the wage complaint 

had not been “resolved” in the commonly-understood meaning of that word.

3

 The second 

is that the Department did not notify “the employer and employee in writing,” since its 

closing letter was sent only to Mr. Peiffer.

Mr. Peiffer’s second argument is that according to the plain language of RCW 

49.48.083(5), nothing happened to make the tolling period end, meaning that tolling 

 

3 Relevant definitions of “resolve” include “5 . . . c : to find an answer to : make 

clear or certain : SOLVE, UNRIDDLE (~ a problem) 6 a : to bring oneself or another to (as a 

course of action) : DECIDE <having resolved his fate> . . . b : to reach a decision about : 

SETTLE <determined to ~ all disputed points>.” WEBSTER’S THIRD NEW INTERNATIONAL 

DICTIONARY 1933 (1993).
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applies. Pro-Cut agrees that under the plain language of the provision nothing happened 

to make the tolling period end. But it argues,

[T]he question becomes, what did the legislature intend if the “end” of the 

tolling period is never triggered?

In its wisdom, the legislature designed the specificities of the tolling 

statute with the purpose of encouraging employees to see the Department’s 

investigation through to the end. Otherwise, employees could simply 

initiate the Department’s investigation, fail to meaningfully assist in the 

investigation, thereby artificially tolling the statute of limitations 

indefinitely. This result encourages employees to abuse the resources of 

the Department to their own strategic advantage, and deprives employers of 

the finality of a Department decision they can act upon to remedy their 

mistake.

Appellants/Cross-Resp’t’s Opening Br. at 12. “[B]ecause he did not allow the 

Department to reach a conclusion,” Pro-Cut contends, “Mr. Peiffer cannot . . . take 

advantage of the tolling of the statute of limitations.” Id. at 13. Unfortunately for ProCut, statutory language does not support its theory about the legislature’s intent.

We begin with Pro-Cut’s textual arguments. Its primary reliance is on RCW 

49.48.085(1), which states:

An employee who has filed a wage complaint with the department may 

elect to terminate the department’s administrative action, thereby 

preserving any private right of action, by providing written notice to the 

department within ten business days after the employee’s receipt of the 

department’s citation and notice of assessment.

Pro-Cut sometimes treats the language “thereby preserving any private right of action” as 

if it said “thereby preserving the benefit of tolling,” which is plainly not what it says. The 

provision does not speak to tolling at all. 
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Pro-Cut treats the language about electing to “terminate the department’s 

administrative action” as if it said “terminate the employee’s exclusive reliance on an 

administrative remedy,” but here again, that is plainly not what is said. RCW 

49.48.085(1) identifies the only circumstance in chapter 49.48 RCW under which an

employee can stop an investigation that the Department is otherwise obliged to pursue.

4

It says nothing about whether an employee can bring a civil action and allow the 

department investigation to proceed. Even a federal case cited by Pro-Cut, Jama v. GCA 

Services Group, Inc., finds no statutory prohibition against administrative action and 

litigation proceeding simultaneously. No. C16-0331RSL, 2017 WL 4758722 (W. D. 

Wash. Oct. 20, 2017) (court order). Jama involved a proposed class action, in which the 

defendant-employer argued that including employees who had filed wage complaints 

with the Department as members would deprive those employees of the administrative 

forum. The court disagreed:

No legal analysis is offered in support of this assertion. State law 

authorizes employees to file a wage complaint with Labor & Industries

[DLI] regarding any wage violations that occurred within the past three 

years. RCW 49.48.083(1). The filing of an administrative complaint tolls 

the statute of limitation and, if DLI assesses wages and interest against the 

employer and the employee accepts payment, the employee is barred from 

 

4 Before 2006, the Department could, but was not required to, investigate wage 

complaints. With the 2006 adoption of the Wage Payment Act, the Department is 

required to investigate such complaints. The history of the requirement is discussed in 

Washington Attorney General Opinion No. 6 (2010). 2010 Op. Att’y Gen. No. 6, 

https://www.atg.wa.gov/print/3194 [https://perma.cc/9MNS-6B3H].
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pursuing relief in court for that violation. RCW 49.48.083(4) and (5). The 

Court has not found, and defendants have not identified, any provision that 

would automatically terminate a pending administrative investigation upon 

the filing of a lawsuit. Although the statute specifically authorizes 

employees who have filed wage complaints with the DLI to terminate the 

administrative action in order to pursue litigation, it expressly states that the 

“right of any employee to pursue any judicial administrative, or other action 

available with respect to an employer” is not limited or affected. RCW 

49.48.085(1) and (3).

Id. at *5 (emphasis added). The Department might have the ability to suspend work on a 

file upon learning that a wage complainant is pursuing private litigation, but we find no 

statutory basis for the Department to terminate its investigation because litigation has 

been filed.5

Pro-Cut’s final textual argument refers us to legislative history from 2006, and a 

drafting change between original language in House Bill 3185 and revised language in 

Substitute House Bill 3185 that was later codified as RCW 49.48.085(1). Pro-Cut relies 

on the ultimately codified language that the employee may elect to terminate the 

Department’s investigation by providing notice “within ten business days after” receipt of 

the citation and notice of assessment—language that originally read “within five business 

days of” receipt of the citation and notice of assessment. Compare SUBSTITUTE H.B. 

3185, § 4, at 5, 59th Leg., Reg. Sess. (Wash. 2006), with H.B. 3185, § 4, at 4, 59th Leg., 

 

5 We say “might” because the Department’s duty or authority when litigation is 

filed while an investigation is pending has not been briefed and argued by the parties.
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Reg. Sess. (Wash. 2006). Pro-Cut contends that use of the word “after” “ensure[s]” that 

the Department must complete its investigation for the tolling provision to apply. 

Appellants/Cross-Resp’t’s Opening Br. at 14. But nowhere in RCW 49.48.085 is there 

any reference to “toll,” “tolling,” or even to “RCW 49.48.083.” The language on which 

Pro-Cut relies simply has nothing to do with tolling.6

We turn to Pro-Cut’s non-textual argument that the legislature’s objective was to 

“encourage[ ] employees to see the Department’s investigation through to the end”—an 

objective it argues is advanced by making tolling available to only those employees who 

wait for the Department to complete its investigation before electing to file a lawsuit. 

Pro-Cut argues that employees who do not wait “abuse the resources of the Department.” 

Appellants/Cross-Resp’t’s Opening Br. at at 12. 

Such employees “use” resources of the Department, but Pro-Cut does not explain 

how they “abuse” them. The legislature has charged the Department with investigating 

 

6 Pro-Cut overlooks reasons why the Department’s issuance of a citation is a valid 

point at which to require employees to decide whether to stop the Department’s 

investigation. At that point, the employee will know the amount of unpaid wages the 

Department is willing to fight for. With the citation and notice of assessment, things will 

start happening quickly. An employer who realizes there has been a violation might want 

to pay within 10 days to be entitled to a penalty waiver and avoid additional prejudgment 

interest. See RCW 49.48.083(2), (3)(c). Within 30 days, the employer will need to file 

any appeal, and in the event of an appeal, the hearing will be assigned to an 

administrative law judge, an initial order will issue, and an assistant attorney general will 

need to be appointed to represent the Department. RCW 49.48.084(1), (3). These things 

would, or could, prove pointless if the employee wishes to litigate.
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wage complaints. The objective is to assist employees whose wages have not been paid 

by an employer. If a wage complainant decides during a department investigation that 

retaining a lawyer and pursuing a claim in court will be faster or more likely to succeed, 

the decision both advances the interest of the employee and frees up department 

resources to assist others. Pro-Cut’s vision of a legislature that intends the Department to 

maintain a jealous grip on complaints it cannot timely resolve is unpersuasive.

We also reject Pro-Cut’s argument that permitting an employee to file a wage 

complaint with the Department and then shift to litigation “artificially” tolls the statute of 

limitations “indefinitely,” to the employee’s own “strategic advantage.” Id. The tolling 

will not be indefinite. It will not even be protracted if the Department completes its 

investigation within the 60 days contemplated by the legislature. And we do not view the 

employee as gaining a “strategic advantage” if tolling locks in the employee’s ability to 

collect all wages earned but unpaid during the prior three years. Going on record with a 

formal claim in a proper forum is a typical way to lock in the ability to collect damages 

that accrued during a limitations period.

Our only agreement with Pro-Cut on this issue is that it was disadvantaged by 

being unaware of Mr. Peiffer’s wage complaint earlier. Upon learning of the wage 

complaint, Pro-Cut quickly realized that it should admit the amount of wages owed in 

order to avoid liability for attorney fees. But the lack of notice to Pro-Cut was the fault 

of the Department, not Mr. Peiffer. Pro-Cut should have received the first 60-day letter 
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that Ms. Sanchez sent to Mr. Peiffer, whether or not she had communicated with Pro-Cut 

earlier. RCW 49.48.083(1) provides that if the Department is unable to complete its 

investigation within 60 days of receiving a wage complaint, it “may extend the time 

period by providing advance written notice to the employee and the employer setting 

forth good cause for an extension of the time period and specifying the duration of the 

extension.” (Emphasis added.)

We are not at all sympathetic to Pro-Cut’s complaint that it incurred the cost of

additional prejudgment interest because of the time it took Ms. Berry to deliver a final 

calculation of Mr. Peiffer’s wages. The difficulty in accounting for the unpaid wages was 

entirely attributable to Pro-Cut’s practice of altering time cards and failing to keep a 

record of the amount of time originally reported by the employee.7 The duty to keep 

accurate time records is the employer’s, not the employee’s. WAC 296-128-010. If ProCut wanted a quicker calculation, it could have engaged in any needed discovery and 

worked on preparing one itself.

If an employee files a wage complaint with the Department and then files a civil 

action while the investigation is pending, RCW 49.48.083(5), reasonably construed, tolls 

 

7 Because Pro-Cut stipulated to Mr. Peiffer’s final wage calculation, no evidence 

was presented at trial about the challenges in preparing the calculation. Arguments of 

counsel during the bench trial referred to the difficulty of calculating the wage amount

and the extensive document discovery required. See, e.g., RP at 96-98. It is clear that 

information in both sides’ possession was ultimately required to arrive at a calculation.
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the statute of limitations until the Department resolves the complaint or the civil action is

completed, at which point the Department can send notice that the matter has been 

“otherwise resolved.” The trial court correctly ruled that the tolling provision applied to 

Mr. Peiffer. 

II. HAVING DETERMINED THAT THE STATUTE OF LIMITATIONS WAS TOLLED, MR.

PEIFFER WAS ENTITLED TO AN AWARD OF REASONABLE ATTORNEY FEES AND 

COSTS

Washington statutes authorize trial courts to award attorney fees to successful 

wage claimants, but RCW 49.48.030 takes that authority away “if the amount of recovery 

is less than or equal to the amount admitted by the employer to be owing for said wages 

or salary.” Pro-Cut’s assignment of error to the attorney fees and costs awarded to Mr. 

Peiffer depended on successfully arguing that his claim was not tolled during the 

Department’s investigation, in which case his recovery would have been equal to the 

amount Pro-Cut admitted was owing. 

Because the statute was tolled, Mr. Peiffer was entitled to recovery of unpaid 

wages going back to July 2009, an amount that exceeded the amount admitted by Pro-Cut 

to be owing. There was no error in concluding that Mr. Peiffer was entitled to recover 

reasonable attorney fees and costs.

III. THE TRIAL COURT ERRED IN CONCLUDING THAT MR. PEIFFER WAS ENTITLED TO 

RECOVER AN AMOUNT EQUAL TO HIS INCREASED TAX LIABILITY ARISING FROM THE 

LUMP SUM PAYMENT OF HIS PREVIOUSLY UNPAID WAGES
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21

Pro-Cut argues the trial court erred in awarding Mr. Peiffer $8,784 to offset tax 

consequences because the trial court had no statutory authority to make the award. We 

agree. 

In Blaney v. International Ass’n of Machinists & Aerospace Workers, District No.

160, 151 Wn.2d 203, 87 P.3d 757 (2004), our Supreme Court held that in an action for 

discrimination under the Washington Law Against Discrimination (WLAD), chapter 

49.60 RCW, a successful plaintiff can recover an amount offsetting the federal income 

tax consequences of a damage award. It based its decision on language unique to the 

WLAD.

RCW 49.60.030(2) provides that a person injured by a violation of the WLAD 

shall have a civil action

to enjoin further violations, or to recover the actual damages sustained by 

the person, or both, together with the cost of suit including reasonable 

attorneys’ fees or any other appropriate remedy authorized by this chapter 

or the United States Civil Rights Act of 1964 as amended, or the Federal 

Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).

(Emphasis added.) 

In Blaney, the court construed the “any other appropriate remedy” clause as 

standing on its own as a remedy provision—different from, and additional to injunctive 

relief, actual damages, and costs of suit. 151 Wn.2d at 214. It observed that “a number 

of federal courts” in Title VII suits had used the equitable powers bestowed on them by 

Title VII to allow offsets for the federal tax consequences of damage awards. Id. at 215.
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22

For that reason, and “[b]ecause WLAD incorporates remedies authorized by the federal 

civil rights act,” it concluded that “WLAD allows offsets for additional federal income 

tax consequences.” Id. at 215-16.

The court did not end its analysis with the holding that the offset was permitted by 

WLAD’s “any other appropriate remedy” clause. It went on to hold that the offset was 

not allowable as actual damages or as a cost. It refused to characterize an offset for 

federal income tax consequences as actual damages “because the proximate cause of the 

additional tax consequences is not the unlawful discrimination, but rather the additional 

tax liability is a direct result of the tax laws.” Id. at 216. “[It] is too attenuated from the 

unlawful discrimination to be deemed actual damages.” Id. 

It refused to characterize an offset for the tax liability as a cost of suit “because tax 

liability is incurred after, not during, litigation.” Id. at 217.

Blaney is controlling authority that an offset for tax consequences is not actual 

damages or a cost. Mr. Peiffer argues, however, that the term “wages” in Title 49 RCW 

is broadly interpreted to effectuate the legislature’s purpose of deterring employers from 

withholding wages and has been construed to include back pay, front pay, sick leave 

reimbursement, vacation pay, and commissions. Br. of Resp’t/Cross Appellants at 21 

(citing Lietz v. Hansen Law Offices, PSC, 166 Wn. App. 571, 595, 271 P.3d 899 (2012)). 

He urges us to decide as a matter of first impression that “wages,” broadly construed, can 

include an offset for adverse tax consequences.
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Pay for work (back and front), sick leave reimbursement, vacation pay, and 

commissions all fall within the commonly understood meaning of “wage,” which has 

been defined to mean

1 a : a pledge or payment of usu. monetary remuneration by an employer 

esp. for labor or services usu. according to contract and on an hourly, daily,

or piecework basis and often including bonuses, commissions, and amounts 

paid by the employer for insurance, pension, hospitalization, and other 

benefits.

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2568 (1993); see also RCW 

49.46.010(7) (defining “wage” in relevant part as “compensation due to an employee by 

reason of employment”). The increased tax liability that Mr. Peiffer incurred as a result 

of recovering his unpaid wages as a lump sum has none of the salient characteristics of a 

wage. The trial court erred in making an award of $8,784 to offset Mr. Peiffer’s

increased tax liability. 

Cross Appeal

Mr. Peiffer makes four assignments of error in his cross appeal. He contends the 

trial court erred (1) in dismissing, as a matter of law, his claim for constructive wrongful 

termination in violation of public policy, (2) in denying his claim for double damages, (3) 

in denying Mr. Peiffer all of his attorney fees and failing to apply a multiplier, and (4) in 

denying Mr. Peiffer all of his costs. Again, we address the claimed errors in the order 

stated, combining our discussion of Mr. Peiffer’s challenges to the fee and cost awards.
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IV. THE TRIAL COURT DISMISSED THE CONSTRUCTIVE WRONGFUL DISCHARGE CLAIM 

AS A MATTER OF LAW, WHICH WAS ERROR

A. THE CLAIM WAS DISMISSED AS A MATTER OF LAW

Under CR 41(b)(3), a defendant in a bench trial can move for involuntary 

dismissal after the plaintiff rests his or her case on the ground that “upon the facts and the 

law the plaintiff has shown no right to relief.” The court “as trier of the facts” may then 

determine the facts and render judgment against the plaintiff, or may decline to render 

any judgment until the close of all the evidence. Id. 

The trial court may grant a motion under CR 41(b)(3) as a matter of law or fact. 

Roy v. Goerz, 26 Wn. App. 807, 809, 614 P.2d 1308 (1980), overruled on other grounds 

by Chaplin v. Sanders, 100 Wn.2d 853, 859, 676 P.2d 431 (1984). When there is doubt 

as to how the trial court ruled, the reviewing court will look to the trial court’s oral or 

written opinion. N. Fiorito Co. v. State, 69 Wn.2d 616, 620, 419 P.2d 586 (1966). 

Although the basis on which Pro-Cut moved for the dismissal is not clear, there is 

no doubt that the trial court granted it as a matter of law. Its judgment reflects its 

understanding that Pro-Cut moved during trial for dismissal “as a matter of law,” CP at 

126, a motion that it granted. CP at 128. The court entered no findings of fact as 

provided in CR 52(a), which it was required to do if rendering judgment on the merits. 

CR 41(b)(3). Because the trial court dismissed the claim as a matter of law, “review is de 

novo and the question on appeal is whether the plaintiff presented a prima facie case, 
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25

viewing the evidence in the light most favorable to the plaintiff.” In re Dependency of 

Schermer, 161 Wn.2d 927, 939-40, 169 P.3d 452 (2007). 

B. MR. PEIFFER PRESENTED SUFFICIENT EVIDENCE TO REQUIRE A DECISION ON

THE MERITS

“The tort for wrongful discharge in violation of public policy is a narrow 

exception to the at-will doctrine” that is recognized “as a means of encouraging 

employees to follow the law and preventing employers from using the at-will doctrine to 

subvert those efforts to promote public policy.” Becker v. Cmty. Health Sys., Inc., 184 

Wn.2d 252, 258, 359 P.3d 746 (2015). In order to succeed on a claim for wrongful 

discharge in violation of public policy, a “plaintiff must plead and prove that his or her 

termination was motivated by reasons that contravene an important mandate of public 

policy.” Id.

“A cause of action for wrongful discharge in violation of public policy may be 

based on ‘either express or constructive’ discharge.” Wahl v. Dash Point Family Dental 

Clinic, Inc., 144 Wn. App. 34, 43, 181 P.3d 864 (2008) (quoting Snyder v. Med. Serv. 

Corp. of E. Wash., 145 Wn.2d 233, 238, 35 P.3d 1158 (2001)). In appellate decisions 

reviewing claims for constructive wrongful termination in violation of public policy, 

courts commonly examine separately the elements of the tort and the elements of 

constructive discharge. E.g., see id. at 41-45. 
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26

The elements of a claim for wrongful termination in violation of public policy are 

that (1) the employee’s discharge may have been motivated by reasons that contravene a 

clear mandate of public policy, and (2) the public-policy-linked conduct was a significant 

factor in the decision to discharge the worker. Martin v. Gonzaga Univ., Wn.2d , 

425 P.3d 837, 844 (2018). The first element encompasses clarity and jeopardy 

components. Id. at 843 (citing Becker, 184 Wn.2d at 258-59; Rose v. Anderson Hay & 

Grain Co., 184 Wn.2d 268, 277-78, 287, 358 P.3d 1139 (2015)). If a claim does not fall 

within one of the four recognized categories of wrongful discharge in violation of public 

policy, the more refined Perritt8analysis may be required. Id. In determining the second 

factor, a burden-shifting procedure applies under which the employer may defeat the 

claim by proving that the termination was justified by an overriding consideration. 

Id. at 844.

The elements of a claim of constructive discharge are that (1) the employer 

deliberately made working conditions intolerable, (2) a reasonable person in the 

employee’s position would be forced to resign, (3) the employee resigned because of the 

intolerable condition and not for any other reason, and (4) the employee suffered 

 

8 So-called because it was based on a treatise by Henry H. Perritt Jr., Workplace 

Torts: Rights and Liabilities (1991).
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27

damages as a result of being forced to resign. Barnett v. Sequim Valley Ranch, LLC, 174 

Wn. App. 475, 489, 302 P.3d 500 (2013).

When the hybrid claim is asserted, the elements of a constructive discharge claim 

supplant the second element of the wrongful termination in violation of a public policy 

claim.9 The first element of the tort claim applies, although it is modified to address 

whether the intolerable condition that led the employee to resign contravened a clear 

mandate of public policy. All four elements of a constructive discharge claim apply.

Mr. Peiffer presented substantial evidence that the allegedly intolerable condition 

that led him to resign contravened a clear mandate of public policy. The four scenarios 

recognized as supporting a claim of wrongful discharge in violation of public policy are

“‘(1) where employees are fired for refusing to commit an illegal act; (2) where 

employees are fired for performing a public duty or obligation, such as serving jury duty; 

(3) where employees are fired for exercising a legal right or privilege, such as filing 

workers' compensation claims; and (4) where employees are fired in retaliation for 

 

9

In Wahl, the court analyzed whether the employer had an overriding justification 

for discharging the employee, even though the employee had proved that she quit (she 

was not fired) because of intolerable sexual harassment. The Washington Supreme 

Court’s recent Martin decision holds that the after-acquired-evidence doctrine does not 

apply to wrongful discharge claims, meaning that an employer’s overriding justification 

is irrelevant unless it motivated a firing. Since there is no firing in a constructive 

discharge case, we are satisfied that in such cases, it is unnecessary to analyze an 

overriding justification element.
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28

reporting employer misconduct, i.e., whistle-blowing.’” Martin, 425 P.3d at 843

(quoting Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996)). 

The intolerable condition that led Mr. Peiffer to quit was Pro-Cut’s continuing failure to 

pay the full amount of wages he was owed, in contravention of his rights under chapters 

49.48 and 49.52 RCW. Those laws “indicate[ ] a strong legislative intent to assure 

payment to employees of wages they have earned.” Schilling v. Radio Holdings, Inc., 

136 Wn.2d 152, 159, 961 P.2d 371 (1998).

Mr. Peiffer presented substantial evidence that Pro-Cut deliberately made working 

conditions intolerable. The trial court made unchallenged findings that Mr. Peiffer 

objected to the changing of his time cards on several occasions to both Mr. Sainsbury and 

Mr. Silvers, and entered an unchallenged conclusion that Pro-Cut “willfully” withheld 

$42,768.12 in wages owed to Mr. Peiffer. CP at 126. Mr. Peiffer presented evidence of 

even more frequent objections that were “weekly to daily,” and that were daily in the last 

three months of his employment. RP at 220.

Mr. Peiffer presented substantial evidence from which a trier of fact could find 

that a reasonable person in his position would have been forced to quit. Continuing 

complaints got him nowhere. He testified that Pro-Cut’s response was almost always, 

“[I]f you don’t like it you can quit.” Id. 
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29

Mr. Peiffer’s testimony was that the only reason he resigned his position at ProCut was because of the time card alterations and wage withholding—sufficient evidence 

to establish the third element of his claim.

Finally, Mr. Peiffer presented evidence that he had difficulty finding work after

resigning his position at Pro-Cut and that he made far less money in his employment at 

the time of trial than he had made as a slab saw operator for Pro-Cut. His wife testified 

that he had gone from making $40,000 to $50,000 a year to making $20,000 to $25,000 a 

year. 

The evidence presented a prima facie case of constructive discharge in violation of 

public policy. It was error to dismiss the claim as a matter of law. Mr. Peiffer is entitled 

to a new trial.

V. THE TRIAL COURT’S CONCLUSION OF LAW THAT “MR. PEIFFER KNOWINGLY 

SUBMITTED TO THE WITHHOLDING OF HIS WAGES” IS NOT SUPPORTED BY THE

COURT’S FINDINGS OF FACT

One of the claims on which Mr. Peiffer prevailed was a claim for a wage

withholding violation under RCW 49.52.050(2) (willfully paying a lower wage than 

obligated by contract). RCW 49.52.070 provides that any employer and any officer, vice 

principal or agent of an employer who violates RCW 49.52.050(1) or (2) shall be liable in 

a civil action for twice the amount of the wages unlawfully withheld, “PROVIDED, 

HOWEVER, That the benefits of this section shall not be available to any employee who 

has knowingly submitted to such violations.” 
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The trial court entered the following unchallenged findings of fact relevant to the 

wage withholding violation claim:

12. Mr. Peiffer objected to Mr. Sainsbury’s changing of his time card on 

several occasions, one of which resulted in a physical altercation 

between him and Mr. Sainsbury.

13. On several occasions, Mr. Peiffer also objected to Mr. Silvers regarding 

the changing of his time card.

14. Ultimately, Mr. Peiffer quit on June 8, 2012 after Mr. Sainsbury had 

again altered his time card. Mr. Peiffer refused to return to work until 

Pro-Cut paid him the full wages owed to him for the time period.

CP at 124. Based on its findings, the trial court concluded that Pro-Cut willfully withheld 

Mr. Peiffer’s unpaid wages. But it also concluded that Mr. Peiffer knowingly submitted 

to the withholding of his wages. 

Mr. Peiffer contends the trial court’s conclusion that he knowingly submitted to 

Pro-Cut’s violations is not supported by its findings. We review de novo whether a

court’s findings of fact support its conclusions of law. In re Parental Rights to K.M.M., 

186 Wn.2d 466, 477, 379 P.3d 75 (2016).

Two decisions of this court establish that to “knowingly submit” to the unlawful 

withholding of wages, “the employee[ ] must have deliberately and intentionally deferred 

to [the employer] the decision of whether they would ever be paid.” Chelius v. Questar 

Microsystems, Inc., 107 Wn. App. 678, 682, 27 P.3d 681 (2001), accord Durand v. 

HIMC Corp., 151 Wn. App. 818, 836-37, 214 P.3d 189 (2009). In both Chelius and 
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Durand, the employee had agreed to a deferral of wages but the courts found the 

employees to have agreed to only temporary deferral; neither employee agreed to no 

payment at all. Pro-Cut persuaded the trial court that this case is different because Mr. 

Peiffer never agreed to any deferral—he complained pointedly enough to be told that if 

he didn’t like what was happening, he could quit.

This is a valid distinction between the facts of case and those presented in Chelius 

and Durand, but one that makes it clearer that Mr. Peiffer did not knowingly submit to 

the withholding of his wages. One “submits” when one “bow[s] to the will or authority 

of another : YIELD[S]” or “become[s] resigned : acquiesce[s] uncritically.” WEBSTER’S 

supra, at 2277. As a matter of law, the trial court’s unchallenged findings that Mr. 

Peiffer made clear and continuing objections to the withholding support the conclusion,

and only the conclusion, that he did not knowingly submit to the withholding. On 

remand, the trial court is directed to award Mr. Peiffer double damages.

VI. THE AWARD OF ATTORNEY FEES AND COSTS IS INADEQUATELY EXPLAINED AND 

MUST BE REMANDED FOR RECONSIDERATION AND THE ENTRY OF FINDINGS

“[T]he trial court must provide sufficient information concerning its fee 

determination to enable meaningful appellate review.” Progressive Animal Welfare 

Soc’y v. Univ. of Wash., 54 Wn. App. 180, 186, 773 P.2d 114 (1989) (PAWS ), rev’d on 

other grounds, 114 Wn.2d 677, 790 P.2d 604 (1990). “[T]he absence of an adequate 

record upon which to review a fee award will result in a remand of the award to the trial 
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32

court to develop such a record.” Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 

(1998). Specifically, “[a]n award of substantially less than the amount requested should 

indicate at least approximately how the court arrived at the final numbers, and explain 

why discounts were applied.” Absher Constr. Co. v. Kent Sch. Dist. No. 415, 79 Wn. 

App. 841, 848, 917 P.2d 1086 (1995). 

The trial court was presented with a lodestar calculation of $73,395.50 in attorney 

fees incurred for the services of Ms. Berry and Mr. Davis. Washington courts apply the 

lodestar method to determine the starting point for reasonable attorney fees. McGreevy v. 

Oregon Mut. Ins. Co., 90 Wn. App. 283, 291, 951 P.2d 798 (1998). “‘The lodestar 

award is arrived at by multiplying a reasonable hourly rate by the number of hours 

reasonably expended on the matter.’” Id. (emphasis omitted) (quoting Scott Fetzer Co. v. 

Weeks, 122 Wn.2d 141, 149-50, 859 P.2d 1210 (1993)). The trial court evaluates

whether to adjust that amount up or down, id., but it must be a reasoned evaluation. 

Since “[t]he court must limit the lodestar to hours reasonably expended, [it] should 

therefore discount hours spent on unsuccessful claims, duplicated effort, or otherwise 

unproductive time.” Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 

P.2d 193 (1983). 

When a trial court awards significantly less attorney fees than requested, “it should 

at least indicate what part of the lawyer’s work the court discounted as unnecessary or 

unreasonable, how much of the lawyer’s hourly fee the court found excessive, or the 
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33

manner by which the court reduced.” PAWS, 54 Wn. App. at 187. This generally does 

not mean the trial court must include an “explicit hour-by-hour analysis of each lawyer’s 

time sheets.” Id.

The trial court’s reduction of the lodestar figure without explanation other than 

that it found $50,000 to be a reasonable amount requires remand. We recognize that the 

judge who presided at trial has retired, and if he is unavailable to reconsider and enter 

findings in support of a new award,10 the task of reviewing the record and making the 

award will fall to another judge. Any new judge should consider the trial court’s relevant 

findings, including the trial court’s finding that the facts presented at trial were relevant 

to all the claims asserted in the matter. 

Mr. Peiffer asks that as part of our remand of the attorney fee award, we direct the 

trial court to apply a multiplier of 1.5. Br. of Resp’t/Cross Appellant at 50. That we will 

not do. “In Washington, adjustments to the lodestar product are reserved for ‘rare’ 

occasions.” Berryman v. Metcalf, 177 Wn. App. 644, 665, 312 P.3d 745 (2013) (quoting 

Sanders v. State, 169 Wn.2d 827, 869, 240 P.3d 120 (2010)).

[O]ccasionally a trial court will be justified in making an upward 

adjustment to account for risk, particularly in cases brought to enforce 

important public policies that government agencies lack the time, money, or 

ability to pursue. Presumptively, however, the lodestar represents a 

 

10 See RCW 2.08.180. To serve as a judge pro tempore, a retired judge must have 

retained his or her membership in the bar. See id. 
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reasonable fee. A party who seeks an upward adjustment bears the burden 

of proving it is warranted by arguments rooted in the record.

Id. at 678. 

Because the refusal to apply a multiplier is unexplained, preventing us from 

reviewing for any abuse of discretion, Mr. Peiffer may renew his argument for a 

multiplier on remand. He is entitled to argue from the trial court’s findings 27, 28, and 

29. 

Finally, the trial court failed to explain why it refused to award all the costs 

requested by Mr. Peiffer. That, too, is remanded for reconsideration and the entry of 

findings. While the trial court was not required to award travel expenses, they are a cost 

that can be allowed by the court in a wage case. McConnell v. Mothers Work, Inc., 131 

Wn. App. 525, 531-32, 128 P.3d 128 (2006) (RCW 49.46.090 authorizes expanded costs 

“as may be allowed by the court.”).

Fees on Appeal

Mr. Peiffer requests an award of reasonable attorney fees on appeal. RAP 18.1 

permits recovery of reasonable attorney fees or expenses on review if applicable law 

grants that right. Mr. Peiffer relies on RCW 49.46.090, RCW 49.48.030, and RCW 

49.52.070 for his request. RCW 49.46.090 provides that an employer who pays an 

employee less than wages entitled to shall be liable to the employee for full amount of 

wage rate, costs, and attorney fees. RCW 49.48.030 provides for reasonable attorney fees 
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when a person successfully recovers wages owed to him or her. Additionally, RCW 

49.52.070 provides civil liability for double damages in wage withholding cases along 

with reasonable attorney fees and costs. 

Mr. Peiffer has prevailed on appeal on every issue other than (1) Pro-Cut’s 

challenge to the amount awarded to offset his increased tax liability and (2) his request 

that we direct the trial court to apply a multiplier to his fee award. We award him 

reasonable attorney fees and costs on appeal subject to his compliance with RAP 18.1(d).

We affirm the trial court’s rulings that the statute of limitations for Charles 

Peiffer’s wage claim was tolled during the period his wage complaint was under 

investigation by the Department of Labor and Industries and that Mr. Peiffer was entitled 

to an award of his reasonable attorney fees and costs.

We reverse the trial court’s dismissal of Mr. Peiffer’s claim for constructive 

wrongful termination in violation of public policy, reverse its award of an amount to 

compensate Mr. Peiffer for an increased tax liability, reverse its finding that Mr. Peiffer 

knowingly submitted to withholding of his wages, and reverse and remand the 

inadequately-explained attorney fee and cost award.

We remand for a new trial on the constructive wrongful termination claim, for 

reconsideration of the award of reasonable attorney fees and costs and the entry of 

sufficient findings, and with directions to enter a supplemental judgment that will afford 
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Peiffer v. Pro-Cut Concrete, et al. 

Mr. Peiffer double damages for his wage claim less the $8,784 tax-related amount that 

was awarded in error. 

WE CONCUR: 

Lawrence-Berrey, C.J. 

36