IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON MARIA ESPINOZA and JUAN FRANCISCO HERNANDEZ TORRES, DIVISION ONE Appellants, No. 76752-6-I UNPUBLISHED OPINION V. MH JANITORIAL SERVICES LLC, EXPERT JANITORIAL, LLC, ALL AMERICAN JANITORIAL LLC, ESTEBAN HERNANDEZ, and RAUL CAMPOS, Defendants, FRED MEYER STORES, INC., FILED: November 4, 2019 Respondent. DWYER, J. —This appeal is a continuation of the long-running dispute between Fred Meyer Stores, Inc. and a group of janitors who cleaned Fred Meyer stores from September 16, 2011 through September 23, 2014. Fred Meyer contracted out its janitorial work to Expert Janitorial, LLC (Expert). Expert, in turn, subcontracted the work to All American Janitorial LLC (AAJ) and M. H. Janitorial LLC (MHJ), who directly employed the appellant janitors. No. 76752-6-1/2 The janitors brought suit against their direct employers and against Expert and Fred Meyer, alleging violations of Washington’s Minimum Wage Act (MWA), chapter 49.46 RCW. The janitors alleged that both Expert and Fred Meyer were their joint employers under the MWA and were liable for their unpaid wages. Employing the “economic reality” test adopted by our Supreme Court in Becerra Becerra v. Expert Janitorial, LLC, 181 Wn.2d 186, 332 P.3d 415 (2014), the trial court concluded that Expert, AAJ, and MHJ were liable to the janitors for violations of the MWA but that Fred Meyer was not the janitors’ joint employer and was, therefore, not liable. The janitors appeal, asserting that the trial court misapplied the “economic reality” test and made findings of fact that are unsupported by substantial evidence. Because the trial court properly applied the “economic reality” test and its factual findings are supported by substantial evidence, we affirm. Prior to 2004, Fred Meyer employed full time janitors to clean its stores at night. But in 2004, in an effort to reduce the time store managers had to spend focusing on building maintenance and to reduce costs, Fred Meyer decided to outsource its janitorial work. Fred Meyer contracted with a company eventually purchased by Expert to clean some of its retail stores in the Puget Sound area.1 From September 2011 through September 2014, Fred Meyer paid Expert approximately $4,000,000 annually for cleaning services. During that time period, Expert was a nationwide janitorial services 1Fred Meyer first contracted with Industrial Cleaning Management LLC, which later became Janitorial Management Services LLC, which was then acquired by Expert. 2 No. 76752-6-1/3 company that provided over 500,000 separate cleaning services a year to various clients. However, rather than directly perform cleaning services, Expert subcontracted 100 percent of its janitorial work. As part of its service to customers, Expert promised to monitor the quality of its subcontractors’ work as well as its subcontractors’ compliance with wage and hour and immigration laws. Under its contract with Fred Meyer,2 Expert was explicitly tasked with ensuring that its subcontractors complied with labor laws. The contract set forth a detailed scope of daily work, and, until May 2014, required Fred Meyer personnel to formally inspect and approve the janitors’ work each day. Starting in ...
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