Bolina v. AssureCare Adult Home LLC

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON JULY 9, 2026 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON JULY 9, 2026 SUPREME COURT CLERK IN THE SUPREME COURT OF THE STATE OF WASHINGTON JOCYLIN BOLINA; ADOLFO PAYAG; ) MADONNA OCAMPO; HONORINA ) No. 103519-5 ROBLES; HOLLEE CASTILLO; and ) REGINALD VILLALOBOS, ) ) Respondents, ) ) En Banc v. ) ) ASSURECARE ADULT HOME LLC, ) a Washington Corporation; ASSURECARE ) ADULT FAMILY HOME LLC, a ) Washington Corporation; ASSURECARE ) FAMILY HOME CARE LLC, a ) Filed: July 9, 2026 Washington Corporation; MARCELINA S. ) MACANDOG, an individual; and GERALD ) MACANDOG, an individual, ) ) Petitioners, ) ) AMAZING HOME ADULT FAMILY ) HOME LLC, a Washington Corporation; ) And REGAL HOME CARE LLC, a ) Washington Corporation, ) Defendants. ) ) ) No. 103519-5 MADSEN, J. ∗—The case concerns the constitutionality of former RCW 49.46.010(3)(j) (2013), 1 which exempts “live-in” workers from the Washington Minimum Wage Act (MWA), ch. 49.46 RCW. At issue is whether the trial court properly granted partial summary judgment to a class of caregivers at adult family homes in Washington: Jocylin Bolina, Adolfo Payag, Madonna Ocampo, Honorina Robles, Hollee Castillo, and Reginald Villalobos (collectively caregivers), who challenged the exemption under article I, section 12 of our state constitution. We affirm. BACKGROUND The caregivers lived and worked at different AssureCare adult family homes (AssureCare). These homes are owned and operated by Marcelina and Gerald Macandog. AssureCare employed both live-in and shift (non-live-in) caregivers. These caregivers had various duties, including assisting residents with activities of daily life such as bathing, dressing, eating, toileting, and walking. The caregivers also cooked meals, cleaned the homes, performed basic maintenance, did laundry, bought groceries, transported residents to appointments, and performed administrative work. Residents at the adult family homes had various physical and cognitive limitations or diseases and required different levels of care. ∗ Justice Barbara Madsen is serving as a justice pro tempore of the Supreme Court pursuant to Washington Constitution article IV, section 2(a). 1 The code reviser alphabetized the definitions in RCW 49.46.010. RCW 1.08.015(2)(k). Washington’s current legislative website lists the live-in exemption in subsection (4). The parties refer to subsection (3), which was in effect at the time, and for the sake of clarity, we also refer to subsection (3) for the exemption throughout. 2 No. 103519-5 Caregivers would assist residents whenever needed, including at night. During the night, one caregiver generally performed “rounds,” checking on patients, helping them to the bathroom, and repositioning them to prevent injuries. Clerk’s Papers (CP) at 83, para. 8 (Decl. of Adolfo Payag). The caregivers’ work schedules varied depending on the day and facility, but they typically started in the early morning (5:00 or 6:00 a.m.) and lasted until night (10:00 p.m. or midnight), when they went to sleep. Generally, two caregivers were on duty during the day and one at night. The caregivers’ sleep, rest, and meal breaks were often interrupted by resident needs. Some caregivers worked seven days a week. The caregivers received room and board at the adult family homes. They did not pay rent, utilities, Internet, or food costs, and they had access to a vehicle. The caregivers’ family members and significant others were also allowed to live in the homes without contributing to household expenses. The caregivers were paid a flat rate, regardless of the hours they worked. Their daily pay rate varied, ranging from $110 to $145. AssureCare did not keep employment documents or maintain records for meal periods, rest breaks, and sick or other personal leave taken. In 2023, the caregivers sued AssureCare for violating the MWA, among other things. Their amended complaint alleged that AssureCare failed to pay minimum wage for all hours worked and overtime, and did not provide meal breaks, rest breaks, or sick leave. The caregivers sought declaratory judgment that the live-in exemption, former RCW 49.46.010(3)(j), violates the privileges and immunities clause and the equal protection clause of our state constitution. WASH. CONST. art. I, § 12. 3 No. 103519-5 The caregivers moved for partial summary judgment on the exemption’s constitutionality under the privileges and immunities clause as applied to live-in caregivers. They claimed that they often worked over 40 hours a week in highly dangerous conditions pursuant to article II, section 35. The motion was denied. The trial judge found that the caregivers had not proved that their occupation was dangerous. The caregivers submitted an expert report and again moved for partial summary judgment, seeking the same relief. Like the dairy workers in Martinez-Cuevas v. DeRuyter Bros. Dairy, 196 Wn.2d 506, 475 P.3d 164 (2020), the caregivers argued that they worked 24 hours a day, 7 days a week in a dangerous occupation and therefore they had a fundamental right to MWA protections. They argued that the MWA incorporated the Fair Labor Standard Act of 1938’s (FLSA) exclusion of domestic workers, like live-in caregivers, to prevent Black and female workers—who make up the majority of those providing domestic labor—from gaining political power. They further argued that no reasonable ground existed for exempting live-in workers. AssureCare opposed summary judgment. AssureCare disputed that the live-in exemption violated article I, section 12, arguing that the exemption does not involve a fundamental right. AssureCare also argued that article II, section 35 did not grant a specific right to workers in dangerous jobs and instead required only that the legislature enact health and safety laws. Even so, AssureCare contended that the caregivers failed to show their occupation was dangerous, pointing out that some of the caregivers’ evidence did not distinguish adult family homes from other long-term care facilities. AssureCare then argued that reasonable grounds existed for the exemption because it serves the 4 No. 103519-5 legislature’s stated goals: the regulations for adult family homes recognize the unique nature of adult family homes by requiring a live-in employee, and live-in caregivers receive other benefits such as room and board. Finally, if the court struck the exemption, AssureCare urged that conclusion be applied prospectively. The trial court granted the caregivers’ motion for partial summary judgment, concluding that the live-in exemption violated article I, section 12. The court applied Martinez-Cuevas to conclude that caregiving is a dangerous industry pursuant to article II, section 35 and requires MWA protections of minimum wage and overtime. The court relied on the caregivers’ expert testimony and research that the caregiving industry presents a high risk of injury, the plaintiffs were injured, they worked long hours, and they were sleep deprived. The court also concluded that no reasonable ground existed for the exemption, finding that in the absence of legislative justification for the exemption, it likely was rooted in the historically racist and misogynistic exclusion of domestic work. The court declined to decide prospectivity, noting it would need to consider the potential prejudice to the defendants among other things. In September 2024, the trial court certified its ruling as involving a controlling question of law for which there is a substantial ground for a difference of opinion. AssureCare sought discretionary review here and filed a statement of grounds in support. The caregivers’ complaint raised numerous issues, including whether the live-in exemption violates equal protection under article I, section 12. However, the only issue 5 No. 103519-5 currently before us is whether former RCW 49.46.010(3)(j) violates the privileges and immunities clause of our state constitution. 2 We received two amici curiae briefs in support of the caregivers from Washington Employment Lawyers Association (Amici Br. WELA) and the American Civil Liberties Union of Washington Foundation, Center for Civil Rights and Critical Justice, National Employment Law Project, National Women’s Law Center, National Domestic Workers Alliance, and Pilipino Workers Center. ANALYSIS We review a summary judgment order de novo, engaging in the same inquiry as the trial court. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008) (citing City of Sequim v. Malkasian, 157 Wn.2d 251, 261, 138 P.3d 943 (2006)). Summary judgment is proper if the record shows “‘there is no genuine issue as to any material fact’” and the moving party is entitled to judgment as a matter of law. Id. (internal quotation marks omitted) (quoting Locke v. City of Seattle, 162 Wn.2d 474, 483, 172 P.3d 705 (2007)); CR 56(c). We review a trial court’s conclusions of law, including its interpretations of statutes and constitutional provisions, de novo. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003). 2 Amici urge us to consider the claim under equal protection and decide it under either strict or heightened scrutiny. Amici Br. of Am. C.L. Union of Wash Found. et al. at 23-31. The trial court did not address that issue. It was not raised in the parties’ filings related to the statement of grounds nor did the parties argue it in their supplemental briefing in this court. We decline to address this issue since it is raised only by amici and remains a live issue in the trial court. 6 No. 103519-5 Article I, Section 12 Article I, section 12 of the Washington State Constitution provides, “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” We have recognized that article I, section 12 is more protective than its federal counterpart and requires a different analysis when a law implicates a “‘fundamental right[]’” of state citizenship. Schroeder v. Weighall, 179 Wn.2d 566, 572, 316 P.3d 482 (2014) (internal quotation marks omitted) (quoting Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 812-13, 83 P.3d 419 (2004)). In those situations, we have applied a two-step analysis: (1) we ask whether a challenged law grants a privilege or immunity for purposes of the state constitution and (2) if so, whether there is a reasonable ground for granting that privilege or immunity. Id. at 572-73. “Benefits triggering this analysis are only those implicating fundamental rights of state citizenship.” Martinez-Cuevas, 196 Wn.2d at 519 (emphasis added). Thus, our first inquiry is whether this case implicates a fundamental right of state citizenship. The caregivers contend they have such a right to legislative protection for jobs that are dangerous to life or deleterious to health under article II, section 35. We agree. 1. Fundamental Right of State Citizenship Article II, section 35 provides, “PROTECTION OF EMPLOYEES. The legislature shall pass necessary laws for the protection of persons working in mines, 7 No. 103519-5 factories and other employments dangerous to life or deleterious to health; and fix pains and penalties for the enforcement of the same.” The caregivers contend that the fundamental right in this case is the same as that in Martinez-Cuevas—caregiving, like dairy work, is a dangerous profession requiring article II, section 35’s protections. 196 Wn.2d at 520. In Martinez-Cuevas, milkers worked around the clock to service 3,000 dairy cows, resulting in a significant injury rate for Washington dairy workers. Id. Injuries included physical strains and diseases. Id. This court noted that overtime for dairy workers was particularly hazardous, resulting in increased injuries, illness, and even mortality. Id. Live-in caregiving at adult family homes, like the dairy workers in Martinez- Cuevas, constitutes dangerous work. See id. The caregivers have provided evidence of significant musculoskeletal injuries sustained by assisting residents with activities of daily life including moving, transporting, and lifting residents from beds, bathrooms, and wheelchairs. CP at 460 (“A high share (88.4%) of nursing assistants working in nursing homes report work-related musculoskeletal symptoms.”), 461 (“Caregivers at [residential care settings without skilled nursing (like an adult family home)] experienced 44.07 intentional injuries per 10,000 workers.”), 464-67 (reviewing plaintiff caregiver declarations indicating numerous physical injuries lifting and transferring patients). Caregivers were required to respond to resident needs day or night, resulting in shifts that exceeded 24 hours, with many of the caregivers working 7 days a week. The evidence presented demonstrates that caregivers who lived at AssureCare homes, working 24-hour shifts, did not get sufficient sleep and that research studies “link working the night shift to 8 No. 103519-5 sleep problems, overall poor health, depression, and increased risk for workplace injuries.” CP at 471. AssureCare argues that Martinez-Cuevas is distinguishable. AssureCare contends that a categorical exemption for agricultural workers denied the dairy workers their fundamental right in Martinez-Cuevas whereas the live-in exemption here applies only to adult family home caregivers who accept employment requiring them to live where they work. This exemption is, in AssureCare’s view, “essentially a book-keeping” function, allowing adult family homes to compensate live-in caregivers differently, which does not implicate a fundamental right. Br. of Pet’r at 21-22. But this argument does not address whether live-in caregiving is constitutionally dangerous as applied to those working in the industry. To that end, AssureCare asserts that caregiving is not dangerous based on the low rate of injury for workers at its adult family homes. The injury rate for specific workplaces is not the only consideration in an article I, section 12 claim based on a fundamental right to health and safety protections pursuant to article II, section 35. The caregivers modeled their case after that of the Martinez-Cuevas dairy workers, which this court understood to be an as-applied challenge. 196 Wn.2d at 525. In that case, our inquiry focused on the dairy industry as a whole while recognizing the hazardous nature of the job to individual plaintiffs. Id. at 520-21. AssureCare does not meaningfully 9 No. 103519-5 dispute the caregivers’ evidence that the industry requires live-in caregivers to work long hours, doing physically injurious work while routinely sleep deprived. 3 As workers engaged in a dangerous industry, the caregivers are entitled to health and safety protections. WASH. CONST. art. II, § 35. In Martinez-Cuevas, we held that this constitutional provision imposes a duty on the State to enact statutory protections for such workers. 196 Wn.2d at 520 (“[A]rticle II, section 35 requires the legislature to pass appropriate laws for the protection of workers.”). This type of constitutional duty is not unique. Article IX, section 9 imposes a similar duty in the context of public education for Washington children. McCleary v. State, 173 Wn.2d 477, 514, 269 P.3d 227 (2012); WASH. CONST. art. IX, § 1. 4 McCleary explored the roles played by different branches of government regarding this constitutional duty, noting that while it is the judiciary’s responsibility to “‘say what the law is,’” the legislature has the responsibility to implement the law as interpreted by this court. 173 Wn.2d at 514-15 (internal quotation marks omitted) (quoting Seattle Sch. Dist. No. 1 v. State, 90 Wn.2d 476, 496, 585 P.2d 71 (1978)). Specifically, the legislative branch is “‘uniquely constituted’” to carry out fact-finding and opinion gathering in addressing difficult policy questions, such as how to provide a constitutionally adequate education. Id. at 517 (quoting Seattle Sch. Dist., 90 Wn.2d at 551). In short, “‘the Legislature must act pursuant to the constitutional mandate to discharge its duty, [but] the 3 Nor does AssureCare dispute that the case is an as-applied constitutional claim. 4 “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.” 10 No. 103519-5 general authority to select the means of discharging that duty should be left to the Legislature.’” Id. (quoting Seattle Sch. Dist., 90 Wn.2d at 520). Respecting this division of responsibility, we accord the legislature full latitude to implement its constitutional mandate. See id. at 516-17. In Martinez-Cuevas, we recognized that the legislature complied with its article II, section 35 duty when it enacted one type of necessary worker protection “in the form of the Minimum Wage Act.” 196 Wn.2d at 521. We did not, however, conclude that workers in dangerous or injurious professions have a fundamental right to the MWA itself. 5 Like Martinez-Cuevas, the MWA is the only applicable legislative enactment on worker health and safety in this case. The caregivers do not argue otherwise. While the adult family home industry is, as AssureCare notes, heavily regulated, those regulations overwhelmingly concern the health and safety of residents—not live-in caregivers. E.g., RCW 70.128.007(1)-(2) (the purpose of regulating adult family homes is to ensure provision of a humane, safe, and residential home environment for persons with functional limitations and establishing regulations that adequately protect residents), .010(9), .130 (adult family home providers must promote health, safety, and well-being of residents), .100 (licenses can be suspended if conditions constitute an imminent danger to residents). 5 To the extent the caregivers and amici make this argument, we reject it. See Resp’ts’ Answering Br. at 35 (“the fundamental right to the protections of the MWA applies to workers in [dangerous] occupations”); Amici Br. WELA at 1 (arguing that caregivers “have a fundamental right to MWA protections”). 11 No. 103519-5 AssureCare states that it already provides basic worker protections like meal breaks and sick leave, as well as unique benefits of free room and board to live-in caregivers and their family members. But AssureCare is not bound by law to provide any of these protections. If these benefits and protections had been codified, the case before us may be different. As it stands, the record here does not demonstrate protections for worker health and safety. The caregivers describe substandard sleeping and living conditions. CP at 103, para. 7 (Decl. of Honorina Robles) (“[M]y sleeping area was a recliner in the TV room. I put cardboard in the sliding glass door so that people outside couldn’t see me sleeping.”), 83, para. 5 (Decl. of Adolfo Payag) (“I slept on a recliner or the floor in the common area of the home.”). AssureCare did not record rest and meal breaks or sick and vacation leave. Caregivers were required to respond to all resident needs whenever they occurred, routinely resulting in caregivers working 24 hours without meaningful opportunities for sleep, breaks, or meals. Thus, if we adopted AssureCare’s view, there would be no statutory or regulatory framework to ensure that workers in a dangerous industry receive basic (let alone unique), constitutionally mandated workplace safety protections. The caregiver plaintiffs have established that live-in caregiving at adult family homes constitutes a dangerous profession. Therefore, the caregivers have demonstrated a fundamental right to statutory safeguards as provided in the MWA. See Martinez- Cuevas, 196 Wn.2d at 521 (“Article II, section 35 creates the fundamental right of state citizenship to laws such as the [MWA] that protect the health and safety of dairy workers.”). 12 No. 103519-5 2. Privilege or Immunity Our next inquiry is whether the challenged law grants a privilege or immunity. Schroeder, 179 Wn.2d at 572. Because live-in caregiving at adult family homes is a dangerous profession requiring workplace safeguards in the form of the MWA, former RCW 49.46.010(3)(j)’s exemption grants adult family care homes immunity from otherwise mandatory labor standards and the privilege of paying lower labor costs. See Martinez-Cuevas, 196 Wn.2d at 522. 3. Reasonable Grounds The final inquiry in our article I, section 12 analysis asks whether reasonable grounds exist for granting the privilege or immunity. Schroeder, 179 Wn.2d at 573. Under the reasonable ground test, a court will not hypothesize facts justifying a legislative distinction. Id. at 574. Instead, a court will scrutinize the legislative distinction to determine whether it serves the legislature’s stated goals in fact and theory. Id. The heightened scrutiny of the reasonable ground test does not subject every legislative distinction to courtroom fact-finding. Bennett v. United States, 2 Wn.3d 430, 449, 539 P.3d 361 (2023) (quoting DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 147, 960 P.2d 919 (1998)). The MWA is a remedial law that “establish[es] minimum standards of employment within the state of Washington.” RCW 49.46.005(1). Its purpose is to protect the “health, safety and welfare of the people of this state.” Id. “This purpose underlies the entirety of the act, including the overtime pay protections and exemptions.” Martinez-Cuevas, 196 Wn.2d at 525. 13 No. 103519-5 This court has examined the live-in exemption and concluded that it concerns how an individual spends a substantial portion of their work time. Berrocal v. Fernandez, 155 Wn.2d 585, 592, 121 P.3d 82 (2005). We recognized the accounting and practical difficulties of calculating working time for individuals who reside where they work. Id. at 597-98 (holding sheepherders who live where they work are exempt); see also Strain v. W. Travel, Inc., 117 Wn. App. 251, 256-57, 70 P.3d 158 (2003) (same for overnight cruise ship workers). Therefore, we concluded that the exemption is a legislative recognition that the nature of certain occupations does not lend itself to the standard 40- hour work week and traditional compensation models. AssureCare echoes this explanation and warns that requiring minimum wage and overtime pay would destabilize the adult family homecare industry. But this reasoning does not address the dangerous nature of live-in caregiving at adult family homes. Dangerousness is the lodestar of the caregivers’ challenge to former RCW 49.46.010(3)(j), as well as this court’s constitutional analysis. WASH. CONST. art. I, § 12; art. II, § 35. Considering that danger and the legislative duty to protect workers in such an industry as we must, former RCW 49.46.010(3)(j) exempts employees who live on-site from the protections of the MWA. In short, the exemption denies basic health and safety protections to live-in caregivers. An accounting principle and the potential for negative financial consequences are not reasonable grounds for denying constitutionally required safeguards set out in the MWA. See Schroeder, 179 Wn.2d at 573. 14 No. 103519-5 The caregivers contend the historical exclusion of domestic workers from federal labor protections suggests the live-in exemption’s true basis is rooted in discrimination. It is unclear whether the caregivers’ argument is relevant to their equal protection challenge, which is still pending in the trial court, or whether the argument is advanced to demonstrate that there is no reasonable basis for the exemption under a privileges and immunities analysis. WASH. CONST. art. I, § 12; Martinez-Cuevas, 196 Wn.2d at 515 (recognizing article I, section 12 is consistent with the federal equal protection clause). As noted, the caregiver’s equal protection claim is not before us today. We are asked only whether the live-in exemption violates article I, section 12’s privileges and immunities clause, implicating a fundamental right of state citizenship pursuant to article II, section 35’s protections for inherently dangerous occupations. We must consider reasonable grounds in that context. To that end, we conclude that former RCW 49.46.010(3)(j) exempts live-in caregivers from constitutionally mandated worker safeguards on the basis of an accounting principle. This is not a reasonable ground for the exemption. 6 6 The caregivers correctly note that the former exclusion of domestic workers in the definition of “employee” under both the FLSA and Washington’s MWA demonstrates a disturbing history of racism and sexism. E.g., Juan F. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act, 72 OHIO ST. L.J. 95, 100, 114-121 (2011). As the caregivers correctly point out, the MWA was patterned after the FLSA and initially excluded domestic workers. See Martinez-Cuevas, 196 Wn.2d at 512-13 (citing Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 281 P.3d 289 (2012) (recognizing the MWA definition of “employee” was based on the FLSA)); LAWS OF 1959, ch. 294, § 1(5)(b); 29 U.S.C. § 152(3) (excluding from “‘employee’ . . . any individual employed . . . in the domestic service of any family or person at his home”). However, we need not decide whether the live-in exemption reflects a similar racial or sexist motivation given our resolution of the issue presented. 15 No. 103519-5 For the reasons discussed above, we affirm the trial court’s ruling granting partial summary judgment. The caregivers demonstrated a fundamental right to health and safety protections enshrined in article II, section 35 in the form of the MWA. Former RCW 49.46.010(3)(j) granted an immunity to adult family homes from complying with otherwise mandatory labor standards and the privilege of paying lower labor costs. The only basis for this exemption is an accounting function for compensating nontraditional workers. For nondangerous occupations, this bookkeeping function is reasonable. For live-in caregiving at adult family homes, however, it is not a reasonable ground justifying the denial of basic worker safeguards. Accordingly, we hold that former RCW 49.46.010(3)(j) violates article I, section 12 as applied to live-in caregivers. Prospective Application The parties also disagree whether today’s decision should apply prospectively or retroactively. AssureCare urges us to apply the decision only prospectively, while the caregivers contend the issue is not properly before the court. We agree with the caregivers. As a preliminary matter, AssureCare did not argue that prospectivity meets any of the criteria for this court’s review outlined in RAP 2.3 or 4.2. RAP 2.3(a) provides that “a party may seek discretionary review of any act of the superior court not appealable as a matter of right.” Discretionary review is accepted “only” in certain circumstances. RAP 2.3(b). Relevant here, the superior court certified, and the parties stipulated, that the order involves a controlling question to which there is a substantial ground for a 16 No. 103519-5 difference of opinion and immediate review advances the conclusion of litigation. RAP 2.3(b)(4). Similarly, RAP 4.2 allows discretionary review of a superior court’s order “only” for enumerated reasons, such as when a trial court invalidates a statute as unconstitutional. RAP 4.2(a)(2). As noted, the superior court’s summary judgment ruling did not consider prospectivity; thus, it was not part of the ruling certified to this court. Nor does the constitutionality of the live-in exemption require resolution of that issue. While prospectivity may satisfy other grounds for this court’s review, AssureCare argued only RAP 2.3(b)(4) and RAP 4.2(a)(2)—neither of which references or contemplates prospective application of a court’s ruling. Further, the central question before this court is on the merits of the constitutionality of the live-in exemption. As stated above, the issue came before us on the trial court’s grant of summary judgment. The trial court did not, however, reach prospectivity. The parties stipulated that the ruling be certified to this court for immediate review. While AssureCare raised prospectivity in its briefing here, the fact remains that the trial court did not consider it. Further, prospectivity relates to the scope of remedy rather than the merits. This procedural question therefore remains a live issue in the trial court, and it is premature for us to weigh in. CONCLUSION The live-in exemption in former RCW 49.46.010(3)(j) violates article I, section 12 of the Washington State Constitution as applied to live-in caregivers at adult family homes. We affirm partial summary judgment and remand to the trial court for further proceedings consistent with this opinion. 17 No. 103519-5 ___________________________________ Madsen, J.P.T. WE CONCUR: _______________________________ ________________________________ _______________________________ ________________________________ _______________________________ ________________________________ _______________________________ ________________________________ <X-37 18 Bolina v. AssureCare Adult Home LLC No. 103519-5 MUNGIA, J. (concurring)—Life was harsh for workers before the federal and state governments enacted minimum wage laws. Workers routinely worked 60 hours or more per week, 6 days a week, with no scheduled breaks, and no paid sick leave. These conditions were detrimental to workers’ health, and in some occupations, the work posed a danger to their lives. In 1959, the Washington Legislature addressed these conditions by enacting the Washington Minimum Wage Act (MWA), ch. 49.46 RCW. The purpose of the act was to protect the health, safety, and welfare of workers by establishing minimum employment standards. Those standards include fair wages, a 40-hour work week, overtime pay, and paid sick leave. RCW 49.46.020. Excluded from the MWA’s protections, however, are people who work as live-in employees in adult family homes (AFHs). AFHs do not need to employ live-in caregivers. There are AFH workers that come into work, complete their shift, and then go home. They do the same work as live-in caregivers. However, despite doing the same work, AFH shift workers receive MWA protections while live-in caregivers do not. This disparity is due to the MWA’s live-in worker exemption. Bolina v. AssureCare Adult Home LLC (Mungia, J., concurring) The plaintiff caregivers here are AFH live-in caregivers employed by AssureCare Adult Home LLC. Without the MWA’s protections, the caregivers in this case routinely worked more than 40 hours a week, were not paid overtime, and were not given uninterrupted breaks while working these excessive hours. Indeed, these workers were required to work up to six to seven days a week, from at least 6:00 a.m. to 10:00 p.m. Even during their sleeping hours, they were required to wake up to respond to residents’ needs. These were not simply allegations; instead, they were undisputed facts. These working conditions, that are common to AFH live-in caregivers, resulted in their occupation being deleterious to their health. Article II, section 35 of the Washington Constitution requires the legislature to pass laws to protect people working in jobs that are dangerous to their lives or deleterious to their health. While the majority discusses the former, it does not address the latter. Workers whose jobs do not put their lives in danger but are deleterious to their health are still protected under article II, section 35. The caregivers argue that by exempting AFH live-in workers from the MWA, the legislature has provided a privilege to the AFH industry that violates article I, section 12 of the Washington Constitution—the privileges and immunities clause. The trial court found that undisputed evidence demonstrated such a violation. The trial court’s ruling was correct. I would affirm. 2 Bolina v. AssureCare Adult Home LLC (Mungia, J., concurring) I. THE UNDISPUTED EVIDENCE DEMONSTRATED THAT THE LIVE-IN CAREGIVERS’ WORKING CONDITIONS WERE DELETERIOUS TO THEIR HEALTH The following facts were undisputed by AssureCare on summary judgment. A. The Caregivers’ Evidence 1. Individual Caregiver Declarations a. Long Working Hours and Sleep Deprivation One of the caregivers’ main duties was to provide around-the-clock care to medically fragile and elderly patients at the AFHs. The caregivers would frequently be scheduled for 24-hour shifts, multiple days a week. They would begin daily tasks around 6:00 a.m. and not get to bed until 10:00 p.m. or later. Any breaks they tried taking during their shifts were often interrupted. One caregiver shared: I rarely had downtime when I worked for AssureCare. I often ate meals really quickly or on the go because I didn’t have time to sit down. During waking hours I almost never had an opportunity to sit down because I had to be aware of what my patients were doing. Clerk’s Papers (CP) at 139. This was a common experience. After the day’s work, the caregivers would put the patients to bed and spend the rest of the evening tending to the house’s upkeep. When the caregivers could finally go to bed around 10:00 p.m. or later, they rarely got uninterrupted sleep. They were required to be on call and to respond to residents’ needs throughout the night. During the night, residents would frequently call for help, wander or fall out of bed, or otherwise need immediate assistance. There were several patients with dementia who experienced “sundowning” at times, requiring a caregiver to be with them throughout the night. 3 Bolina v. AssureCare Adult Home LLC (Mungia, J., concurring) The live-in caregivers only had a few hours of continuous sleep at night. One caregiver shared: Even when I was sleeping, I was not able to fully relax into my sleep because I had to remain constantly vigilant in case a patient had an emergency or a need arose. If myself or the other caregiver didn’t respond to those needs, we knew that it could have potentially life threatening consequences to the individuals in our care. CP at 100. The caregivers’ routine lack of sleep contributed to health issues such as insomnia, stress headaches, blurred vision, stomachaches, mental health issues, and constant fatigue. One caregiver explained: I was often so tired that I had to fight my body’s natural urge to completely shut down. There were times when I was working that I would fall asleep in the middle of a task because my body gave me no choice but to switch off. My body would just shut down. CP at 100. Another caregiver also testified to the toll that the sleep deprivation took on him and his work: There was something particularly challenging about the lack of sleep and knowing that I had no choice but to push through because nobody was coming to relieve me. At times it made me really cranky and caused me to have anxiety. I could feel the physical toll on my body as well. Without sleep the tasks felt physically more challenging. One of my fears was driving while tired, I was asked to drive between locations when I was so tired and it was scary. CP at 142. Working 16 hours a day, 5 or more days a week, with no uninterrupted sleep is deleterious to anyone’s health. 4 Bolina v. AssureCare Adult Home LLC (Mungia, J., concurring) b. Musculoskeletal Injuries The caregivers also suffered injuries from frequently lifting and transferring residents. Most of the patients weighed over 200 pounds, some weighing over 300 pounds. Even with a lifting machine or another caregiver’s assistance, transferring residents was strenuous. There were also many times caregivers would have to lift a resident without equipment or another caregiver, placing even more stress on their bodies. It was especially difficult to lift residents if they unexpectedly fell or were resistant to assistance. Altogether, the caregivers reported persistent back, shoulder, and knee injuries from lifting. One caregiver noted that “[m]y muscles often felt stiff or sore and I frequently experienced discomforts in my body.” CP at 142. Anot