Newway Forming Inc., V. City Of Seattle

• Court: Court of Appeals of Washington
• Decided: October 13, 2025
• Docket: 86791-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

NEWWAY FORMING, INC. No. 86791-1-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION CITY OF SEATTLE,

Respondent.

DÍAZ, J. — The City of Seattle’s Office of Labor Standards (OLS) determined

that Newway Forming, Inc., (Newway) violated numerous workers’ rights

protections guaranteed under the Seattle Municipal Code and ordered Newway,

among others, to pay a fine exceeding two million dollars. After the Office of the

Seattle Hearing Examiner (examiner) affirmed OLS’s order, Newway petitioned the

superior court under RCW 7.16.040 for a statutory writ of review, which it denied.

Newway now asks us to reverse that ruling, asserting the court should have

granted the writ because the examiner acted “illegally.” We disagree and affirm.

I. BACKGROUND

In 2018, Newway, a concrete-forming company, orally sub-contracted with

Baja Concrete USA Corp. (Baja) to service its projects at several Seattle

construction worksites. In 2020, the OLS investigated Newway—along with Baja No. 86791-1-I/2

and a site superintendent and manager from each company—for violating

municipal workers’ rights ordinances at sites where Newway operated from 2018-

2020.

After interviewing some of Newway and Baja’s employees, OLS found

Newway liable as a joint employer with Baja for numerous ordinance violations,

including for non-payment of overtime, paid sick leave, meal and rest breaks, and

the statutory minimum wage, as well as non-compliance with wage theft and

recordkeeping ordinances. OLS ordered inter alia Newway to compensate the

affected workers and to pay a “complete financial remedy” exceeding two million

dollars.

Newway appealed the OLS order to the examiner, which conducted a 14-

day hearing, including taking supplemental testimony from affected workers. The

examiner considered the evidence in the record de novo and the briefing and

arguments from counsel, in deciding whether OLS had made its case by a

preponderance of the evidence. The examiner made detailed factual findings and

conclusions of law, and ultimately affirmed OLS’s order as to Newway. In relevant

part, it concluded that Newway and Baja were joint employers of the affected

workers, each liable for the unpaid wages, interest, liquidated damages, and civil

penalties OLS had ordered.

Newway appealed the examiner’s decision by filing an application to the

superior court for a statutory writ of review. The court denied the writ and

dismissed it with prejudice, concluding it “f[ound] no errors of law in the record

below.” Newway timely appeals.

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II. ANALYSIS

A. “Illegality” Under RCW 7.16.040

Newway argues the court erred in denying its writ because the examiner

acted “illegally” when it concluded it was a joint employer of the affected workers.

Newway contends that conclusion was “contrary to Washington law . . . [a]s a

matter of law.” (Emphasis added.) We disagree.

There are two classes of writs: a constitutional writ and a statutory writ. Fed.

Way Sch. Dist. No. 210 v. Vinson, 172 Wn.2d 756, 767, 261 P.3d 145 (2011). As

to the latter, RCW 7.16.040 provides:

[a] writ of review shall be granted by any court, except a municipal or district court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.

(Emphasis added.) In pertinent part, the petitioner must show an inferior tribunal

exercising judicial functions exceeded its jurisdiction or acted illegally and there is

no adequate remedy at law. Wash. Pub. Emps. Ass’n v. Wash. Pers. Res. Bd., 91

Wn. App. 640, 646, 959 P.2d 143 (1998); City of Seattle v. Holifield, 170 Wn.2d

230, 240, 240 P.3d 1162 (2010) (noting a superior court may only grant a statutory

writ pursuant to RCW 7.16.040 when “an inferior tribunal has (1) exceeded its

authority or acted illegally, and (2) no appeal nor any plain, speedy, and adequate

remedy at law exists.”) If any of these elements is absent, there is no basis for

superior court review. Clark County PUD No. 1 v. Wilkinson, 139 Wn.2d 840, 845,

991 P.2d 1161 (2000).

3 No. 86791-1-I/4

In Holifield, our Supreme Court refined the meaning of the term “acting

illegally.” 170 Wn.2d at 241-46. It held that an inferior tribunal, board, or officer

exercising judicial functions “acts illegally” when it:

(1) has committed an obvious error that would render further proceedings useless; (2) has committed probable error and the decision substantially alters the status quo or substantially limits the freedom of a party to act; or (3) has so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of revisory jurisdiction by an appellate court.

Id. at 244-45.

The Court further held that its three-standard definition for “acting illegally”

was not “so lax [as to mean] that the writ applies” simply “to correct mere errors of

law.” Id. at 245 (emphasis added). The Supreme Court went on to hold that “these

are very demanding standards,” State v. Chelan County Dist. Ct, 189 Wn.2d 625,

631, 404 P.3d 1153 (2017) (emphasis added), because a statutory writ is an

“extraordinary remedy” which should be used “sparingly.” Holifield, 170 Wn.2d at

239-40 (internal quotations and citation omitted). This court has also cautioned

against “broaden[ing] the scope of the statutory writ so as to be generally available

rather than to be an extraordinary remedy as consistently held.” Dep’t of Lab. &

Indus. v. Bd. of Indus. Ins. Appeals, 186 Wn. App. 240, 247, 347 P.3d 63 (2015).

Here, Neway’s argument fails for three reasons.

First, it is undisputed that the examiner availed itself of the test courts have

adopted for analyzing whether a joint employment relationship exists. Namely, the

court applied the “fact-intensive” test announced in Becerra Becerra v. Expert

Janitorial, 181 Wn.2d 186, 194, 196, 332 P.3d 415 (2014), which incorporated a

similar test under the federal Fair Labor Standards Act, 29 US §§ 201-219, and

4 No. 86791-1-I/5

Washington’s Minimum Wage Act, chapter 49.46 RCW. Known as the “economic

reality” test, it involves the consideration of 13 nonexclusive factors. Id. at 196-

97. 1

In its briefing, Newway does not argue the court used the incorrect legal test

and, at oral argument, Newway acknowledged the examiner used the right test.

Wash. Ct. of Appeals oral argument, Newway Forming Inc. v. City of Seattle, No.

86791-1-I (Sept. 10, 2025), at 1 min., 56 sec. through 2 min., 1 sec. video recording

by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-

1-court-of-appeals-2025091140/?eventID=2025091140. Moreover, Newway

clarified it did not claim that the court applied some additional incorrect legal

standard either. Id. at 2 min., 1 sec. through 2 min., 21 sec.

Thus, Newway effectively concedes that the examiner did not commit any

error of law—which is a necessary but not sufficient condition for obtaining a

statutory writ of review under RCW 7.16.040—and at most committed an improper

application of the right law to the facts here. Holifield, 170 Wn.2d at 240.

1 Specifically: (1) the nature and degree of control of the workers; (2) the degree

of supervision, direct or indirect, of the work; (3) the power to determine the pay rates or the methods of payment of the workers; (4) the right, directly or indirectly, to hire, fire, or modify the employment conditions of the workers; (5) preparation of payroll and the payment of wages; (6) whether the work was a specialty job on the production line; (7) whether responsibility under the contracts between a labor contractor and an employer pass from one labor contractor to another without material changes; (8) whether the premises and equipment of the employer are used for the work; (9) whether the employees had a business organization that could or did shift as a unit from one worksite to another; (10) whether the work was piecework and not work that required initiative, judgment or foresight; (11) whether the employee had an opportunity for profit or loss depending upon the alleged employee's managerial skill; (12) whether there was permanence in the working relationship; and (13) whether the service rendered is an integral part of the alleged employer's business. See Becerra, 181 Wn.2d at 196-97. 5 No. 86791-1-I/6

Second, Newway fails to even argue that the court’s error meets any one of

the three more “demanding” applicable standards for an illegal act. Id. at 244-45;

Chelan County Dist. Ct., 189 Wn.2d at 631. Nowhere in its briefing does Newway

acknowledge our Supreme Court’s tri-part definition for what it means to act

“illegally” under RCW 7.16.040, let alone attempt to explain why its claim fits one

of its three standards. Id.

Instead, Newway misstates the holding of Holifield by citing to one of

several prior competing interpretations of the term “acting illegally.” 170 Wn.2d at

244-45. Newway claims the opinion held that “correcting errors of law is within the

scope of acting illegally and that writs of review shall be issued in order to correct

errors of law.” (Citing Holifield, 170 Wn.2d at 241-43.) In fact, the Court in Holifield

held precisely the contrary, holding that its three definitions were not “so lax” that

the writ applied “to correct mere errors of law.” Id. at 245. For the first time at oral

argument, Newway agreed it must show more than mere legal error. See Wash.

Ct. of Appeals oral argument, supra at 2 min., 50 sec. through 3 min., 15 sec.

Thus, Newway’s claim fails as it has not provided substantive argument that its

alleged error surpasses a mere obvious or probable error of law.

Third, even reaching the merits of Newway’s argument that the court erred

in applying the economic reality test, we hold its claim fails for two additional

reasons.

Newway cites to no binding authority. Save one, each contention it

proceeds to make about the Becerra factors either lacks any citation to legal

6 No. 86791-1-I/7

authority or cites to non-Washington case law. 2

Finally, there is substantial evidence for its findings applying the Becerra

factors, in support of its ultimate conclusion.

We use two standards of review to assess Newway’s appeal. Overall, we

review a superior court’s decision denying a statutory writ of review de novo.

Holifield, 170 Wn.2d at 240. But a more deferential standard applies to the specific

error Newway alleges, which is that the examiner “misapplied the facts” in

determining whether Newway was a joint employer. Wash. Ct. of Appeals oral

argument, supra at 3 min., 14 sec. through 3 min., 44 sec. In other words, although

the ultimate determination of a joint employment relationship is a conclusion of law,

“the existence and degree of each factor is a matter of fact within the court’s

discretion.” Becerra Becerra v. Expert Janitorial, LLC, 176 Wn. App. 694, 705-06,

309 P.3d 711 (2013), aff’d 181 Wn.2d at 200. Thus, we review such findings of

fact under a substantial evidence standard, which asks whether the record

contains “a quantum of evidence sufficient to persuade a rational fair-minded

person the premise is true.” Sunnyside Vly Irrig. Dist. v. Dickie, 149 Wn.2d 873,

879, 73 P.3d 369 (2003). If this standard is satisfied, we do not substitute our

judgment even if we might have resolved a factual question differently. Id. at 879-

80.

In determining Newway was a joint employer, the examiner made findings

2 The single Washington case Newway cites—concerning just one of the Becerra

factors—does not examine the economic reality test for joint employment determinations. (Citing Bozung v. Condo. Builders, Inc., 42 Wn. App. 442, 711 P.2d 1090 (1985).) 7 No. 86791-1-I/8

as to each one of the 13 Becerra factors. 3 It found that eight factors favored the

conclusion Newway was a joint employer. We hold there is substantial evidence

for the examiner’s findings.

As to factor 1, the nature and degree of control Newway had over the

workers, the examiner noted the hearing testimony established Newway

determined the order and scope of the work that would be done at its worksites.

As to factor 2, the degree of supervision, it found Newway supervised the

workers because the evidence established they received work assignments from

Newway foremen and superintendents, that Newway representatives answered

questions asked by workers and corrected their mistakes, and Newway foremen

engaged in daily oversight of the workers and sometimes reassigned them. At oral

argument, the City of Seattle similarly mentioned the workers’ testimony indicated

it was the Newway foremen on site each day who mostly answered the workers’

questions, rather than a Baja supervisor who dropped them off and picked them

up. Wash. Ct. of Appeals oral argument, supra at 10 min., 27 sec. through 10 min.,

3 As Newway acknowledged at oral argument there is no transcription in the record

before us of the underlying hearing testimony which the examiner’s findings rely upon. Wash. Ct. of Appeals oral argument, supra at 7 min., 15 sec. through 7 min., 30 sec. It is Newway who “bears the burden of perfecting the record on appeal so as to ensure that the reviewing court is apprised of all necessary evidence to decide the issues presented” as the appellant. Tacoma S. Hosp., LLC v. Nat’l Gen. Ins. Co., 19 Wn. App. 2d 210, 220, 494 P.3d 450 (2021); RAP 9.2(b); see also State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942 (2012) (“The party presenting an issue for review has the burden of providing an adequate record to establish such error[.]”). We nonetheless proceed to review the examiner’s factual findings for substantial evidence because, with a minor exception, Newway does not actually contest the existence or veracity of the evidence the examiner referred and alluded to in its findings and we may thus treat such unchallenged findings of fact as verities on appeal. Zunino v. Rajewski, 140 Wn. App. 215, 220, 165 P.3d 57 (2007). 8 No. 86791-1-I/9

47 sec. The examiner also noted Newway required workers to attend weekly

events which it sponsored and controlled.

As to factor 3, the power to determine pay rates or methods of payment, the

examiner noted Newway required workers to sign in and out every day using a

timeclock it provided so that it could verify the accuracy of Baja’s submitted

invoices. At oral argument, the City of Seattle noted that Newway did not require

any of its other subcontractors, aside from the workers provided by Baja, to sign in

with that timeclock. Wash. Ct. of Appeals oral argument, supra at 12 min., 26 sec.

through 12 min., 42 sec. The examiner also found Newway was in control of

whether Baja could pay the workers because the evidence established it was the

source of Baja’s payments and approved Baja’s invoices and timesheets.

As to factor 4, the right—indirectly or directly—to hire, fire, or modify

employment conditions, the examiner found Newway determined Baja’s hiring

needs by conveying the number of workers which it needed. It noted that, although

it was not clear whether Newway had direct firing power, the testimony established

Newway did have the power to deny the laborers work, by directing Baja not to

bring them to the worksite.

As to factor 5, the preparation of payroll and payment of wages, the

examiner noted that, while a different entity was paid to process the workers’

payroll, the hearing testimony had established Newway actively reviewed

timesheet submissions prior to the payroll processing and was responsible for

paying Baja for invoiced labor.

As to factor 8, premises and equipment, the examiner found Newway

9 No. 86791-1-I/10

controlled the premises based on evidence it had two trailers on site, one of which

housed the timeclock it provided to the workers and required them to use. It also

found Newway owned much of the tools the workers handled at the site, given

evidence that they used numerous pieces of Newway’s larger, powered

equipment.

As to factor 9, whether employees had a business organization that shifted

as a unit from one worksite to another, the examiner noted that all the workers

testified they worked exclusively at one or more of Newway job sites during the

time period covered by the investigation. It also noted evidence indicating Baja

had registered in Washington to provide Newway with workers.

As to factor 13, whether service rendered was an integral part of the alleged

employer’s business, it found the workers’ cement-finishing labor was critical for

Newway to fulfill its own duties as a contractor because the evidence established

their absence would have impeded its capacity to perform the jobs it was hired to

complete, and the services the workers actually rendered were integral to its

business. It noted it was clear the workers were necessary for Newway, given

evidence that its own workers also performed the same tasks, but Newway still

sought to acquire them as additional laborers from Baja.

All of this unchallenged evidence would suffice to persuade a rational, fair-

minded person that eight of the factors indeed reflected the existence of a joint

employment relationship. Sunnyside, 149 Wn.2d at 879-80. In turn, the court did

not err in its ultimate conclusion that Newway was a joint employer. Becerra, 176

Wn. App. at 705-06.

10 No. 86791-1-I/11

In contending otherwise, Newway misconstrues the flexible nature of the

joint employment test and our standard for assessing substantial evidence.

Newway argues that some of the factors did not favor the conclusion it was a joint

employer, and that the examiner held there was not sufficient evidence in the

record for it to make a finding on several of the factors one way or the other. In

other words, Newway appears to be basing many of its arguments on the idea that

the examiner did not tally up enough of the factors sufficient to support its ultimate

conclusion. Such reasoning fails to recognize that the Supreme Court held the

Becerra factors should not be applied mechanically or in a particular order. 181

Wn.2d at 198. What’s more, the Court held the determination of a joint

employment relationship “‘does not depend on’” isolated factors but rather, is

based “‘upon the circumstances of the whole activity.’” Id. (quoting Rutherford

Food Corp. v. McComb, 331 U.S. 722, 730, 67 S. Ct. 1473, 91 L. Ed. 1772 (1947))

(emphasis added). The examiner was not required, let alone permitted, to treat

any particular factor or number of factors to be determinative. Becerra, 181 Wn.2d

at 198.

Newway’s similar assertions that the examiner “ignored” certain evidence

in its findings on a particular factor are equally unavailing because the question is

whether there was substantial evidence for what the examiner did find, even if

some evidence existed which could have supported a contrary result. See Bowers

v. Pollution Control Hr'gs Bd., 103 Wn. App. 587, 602 n.15, 13 P.3d 1076 (2000)

(holding that the mere assertion some evidence may support an inconsistent

conclusion does not render a finding unsupported by substantial evidence).

11 No. 86791-1-I/12

For the foregoing reasons, the superior court did not err in denying its

petition for a statutory writ of review.

III. CONCLUSION

We affirm.

WE CONCUR: