¶ 5 The Appellants appeal the superior courts order granting summary judgment and dismissing their disparate impact and minimum wage claims.
ANALYSIS
A. LEGAL PRINCIPLES
¶ 6 We review the superior courts order granting summary judgment de novo. Bavand v. OneWest Bank , 196 Wash.App. 813, 825, 385 P.3d 233 (2016). Summary judgment is appropriate when the pleadings, affidavits, depositions, and admissions on file show the absence of any genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. CR 56(c). We may affirm the superior courts order granting summary judgment on any basis supported by the record. Bavand , 196 Wash.App. at 825, 385 P.3d 233.
B. DISPARATE IMPACT
¶ 7 The Appellants argue that the superior court erred by granting summary judgment in favor of King County on the disparate impact claim because RCW 2.36.080(3) allows for a disparate impact claim based on economic status. We hold that the superior court properly granted summary judgment on the Appellants disparate impact claim.
1. Disparate Impact Claim Based on Economic Status
¶ 8 There are two types of disparate impact claims: disparate impact under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, and disparate impact under constitutional equal protection principles. The Appellants may not bring a disparate impact claim under the WLAD because the WLAD does not include economic status as a protected class for the purposes of WLAD claims, and the Appellants did not bring an equal protection claim.
¶ 9 Economic status is not recognized as a protected class under the WLAD. RCW 49.60.030(1). WLAD only protects the right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability. RCW 49.60.030(1). Protection from discrimination based on economic status is not enumerated in the WLAD. Therefore, as a matter of law, Appellants cannot bring a disparate impact claim based on economic status under the WLAD.
¶ 10 Disparate impact claims may be brought under the equal protection clauses of the Fourteenth Amendment to the United States Constitution and article I, section 12 of the Washington Constitution. State v. Johnson , 194 Wash.App. 304, 307-08, 374 P.3d 1206 (2016). The Appellants did not plead a disparate impact claim under the equal protection clause in the superior court nor do they argue a constitutional disparate impact claim on appeal. Instead, the Appellants merely cite to a voting case addressing a constitutional equal protection claim. Therefore, we decline to address whether the Appellants established a constitutional disparate impact claim. RAP 10.3(a)(6) ; Cowiche Canyon Conservancy v. Bosley , 118 Wash.2d 801, 809, 828 P.2d 549 (1992).
¶ 11 Thus, as a matter of law, the Appellants have failed to show they can bring a disparate impact claim based on economic status under the WLAD or as an equal protection claim.
2. Implied Disparate Impact Cause of Action under RCW 2.36.080(3)
¶ 12 Appellants argue that the amount jurors are paid under the jury pay statute ( RCW 2.36.150 ) creates a disparate impact based on economic status and violates the no juror exclusion statute ( RCW 2.36.080(3) ). But Appellants did not bring a disparate impact claim under the juror pay statute. Instead, Appellants disparate impact claim seems to be rooted in the no juror exclusion statute.
¶ 13 The underlying premise of the Appellants argument is that the amount jurors are paid causes jurors of lower economic status to not be able to serve, and, therefore, the amount jurors are paid has a disparate impact on people of lower economic status. This premise is not disputed. But this premise does not give rise to an implied disparate impact claim under RCW 2.36.080(3).
¶ 14 RCW 2.36.080(3) provides, A citizen shall not be excluded from jury service in this state on account of ... economic status. However, RCW 2.36.080 does not provide a remedy for alleged violations of this provision. Therefore, the Appellants must show that RCW 2.36.080(3) creates an implied cause of action under the test set out by the Supreme Court in Bennett v. Hardy , 113 Wash.2d 912, 784 P.2d 1258 (1990).
¶ 15 A cause of action may be implied when a statute provides protection to a specified class of persons but creates no remedy. Bennett , 113 Wash.2d at 920, 784 P.2d 1258. To determine if an implied cause of action exists, we engage in a three-part inquiry,
first, whether the plaintiff is within the class for whose especial benefit the statute was enacted; second, whether legislative intent, explicitly or implicitly, supports creating or denying a remedy; and third, whether implying a remedy is consistent with the underlying purpose of the legislation.
Id. at 920-21, 784 P.2d 1258.
¶ 16 With regard to the first part of the inquiry, the plain language of the statute protects people from being excluded from jury service based on economic status.
Therefore, the plaintiffs would be within the class for whose benefit RCW 2.36.080(3) was enacted. Accordingly, the first part of the Bennett inquiry is satisfied.
¶ 17 As to the second part of the inquiry, the legislative intent expressed in RCW 2.36.080(1) and RCW 2.36.080(2) shows that implying a remedy based on juror pay is not consistent with legislative intent. RCW 2.36.080(1) protects the opportunity and obligation for jury service:
It is the policy of this state that all persons selected for jury service be selected at random from a fair cross section of the population of the area served by the court, and that all qualified citizens have the opportunity ... to be considered for jury service in this state and have an obligation to serve as jurors when summoned for that purpose.
(emphasis added). RCW 2.36.080(1) demonstrates that the legislature intended to protect the opportunity to be considered for jury service and to impose the obligation to serve as a juror when summoned, not guarantee the right to actually serve on a jury when summoned.
¶ 18 And RCW 2.36.080(2) specifically expresses the legislatures intent to minimize the burden of jury service-notably without reference to financial considerations. RCW 2.36.080(2) provides,
It is the policy of this state to maximize the availability of residents of the state for jury service. It also is the policy of this state to minimize the burden on the prospective jurors, their families, and employers resulting from jury service. The jury term and jury service should be set at as brief an interval as is practical given the size of the jury source list for the judicial district. The optimal jury term is one week or less. Optimal jury service is one day or one trial, whichever is longer.
RCW 2.36.080(2) demonstrates the legislatures intent to minimize the burden to jurors by limiting the length of jury service, not by focusing on compensating jurors for potential financial burdens.
¶ 19 Read together, the legislatures intent is to ensure that state residents have the opportunity to be considered for jury service, that state residents have an obligation to serve as a juror when summoned, and that any burden is minimized by limiting the amount of time that must be spent in jury service. The legislature did not intend to guarantee jurors be able to serve by providing adequate financial compensation. Therefore, it would be inconsistent with the legislative intent to imply a remedy based on jurors financial compensation for alleged violations of RCW 2.36.080(3). The second part of the Bennett inquiry is not satisfied.
¶ 20 As to the third part of the inquiry under Bennett , the underlying purpose of the legislation relied on by Appellants is to ensure that state residents have the opportunity to be considered for jury service and the obligation to serve when summoned for jury service. The implied cause of action and remedy sought here-increase in juror pay-is not consistent with the underlying purpose of RCW 2.36.080(3). It is undisputed that the Appellants were included in the master jury pool and continue to be eligible to be summoned for jury service. Therefore, the third part of the Bennett inquiry is not satisfied.
¶ 21 Because an implied cause of action and remedy of increased juror pay is not consistent with the legislative intent or the underlying purpose of the statute, the Appellants have failed to demonstrate that RCW 2.36.080(3) creates an implied disparate impact cause of action based on jury pay. Moreover, RCW 2.36.080(3) prohibits conduct that excludes persons from the opportunity to be considered for jury service based on economic status. Therefore, even if RCW 2.36.080(3) allows for an implied cause of action, which we hold it does not, the Appellants must establish some conduct by King County that excluded them from the opportunity to be considered for jury service based on their economic status.
¶ 22 Here, the Appellants assert that King Countys jury pay caused them to ask for an economic hardship excusal, which the court granted. But economic hardship excusals are not exclusions for the purpose of the protections provided by RCW 2.36.080(3). As discussed above, RCW 2.36.080(1) clarifies that the legislature intended to protect the opportunity for people to be considered for jury service and to impose the obligation to serve as a juror when summoned. It is undisputed that the Appellants were, and continue to be, included in the master jury list, and, therefore, the Appellants continue to have the opportunity to be considered for jury service. Because economic hardship excusals do not prevent potential jurors from being summonsed for jury duty or from being included in the master jury list, they are not exclusions for the purposes of RCW 2.36.080(3).
¶ 23 Therefore, King County was entitled to judgment as a matter of law and the superior court properly granted King Countys motion for summary judgment dismissing the Appellants disparate impact claim.
C. MINIMUM WAGE
¶ 24 The Appellants also argue that the superior court erred by granting summary judgment on their claim that King County violated the Washington Minimum Wage Act (MWA), chapter 49.46 RCW. We disagree.
¶ 25 The MWA requires employers to pay certain minimum amounts of compensation to their employees.
RCW 49.46.020. An [e]mployee includes any individual employed by an employer. RCW 49.46.010(3). And [e]mploy includes to permit to work. RCW 49.46.010(2). Taken together, these statutes establish that, under the MWA, an employee includes any individual permitted to work by an employer. Anfinson v. FedEx Ground Package Sys. Inc. , 174 Wash.2d 851, 867, 281 P.3d 289 (2012).
¶ 26 Our Supreme Court has held that the MWA definition of employee incorporates the economic-dependence test to determine whether a worker is an employee. Id. at 871, 281 P.3d 289. Under the economic-dependence (also referred to as the economic realities) test, the relevant inquiry is whether, as a matter of economic reality, the worker is economically dependent upon the alleged employer or is instead in business for himself. Id. (quoting Hopkins v. Cornerstone America , 545 F.3d 338, 343 (5th Cir. 2008), cert. denied , 556 U.S. 1129, 129 S.Ct. 1635, 173 L.Ed.2d 998 (2009) ). Although there are 13 nonexclusive factors that are considered when applying the economic-dependence test, [t]he determination of the relationship does not depend on such isolated factors but rather upon the circumstances of the whole activity. Becerra Becerra v. Expert Janitorial, LLC , 181 Wash.2d 186, 198, 332 P.3d 415 (2014) (quoting Rutherford Food Corp. v. McComb , 331 U.S. 722, 730, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947) ) (alteration in original).
¶ 27 Here, the Appellants focus on the degree of control the King County exercises over jurors during jury service, as well as other specific aspects of jury service. However, the Appellants fail to address the fundamental nature of jury service.
¶ 28 Jury service is service performed as a civic duty. Thiel v. Southern Pac. Co. , 328 U.S. 217, 224, 66 S.Ct. 984, 90 L.Ed. 1181 (1946) (Jury service is a duty as well as a privilege of citizenship; it is a duty that cannot be shirked on a plea of inconvenience or decreased earning power.). As such, jurors are not entitled to compensation for their service. State ex rel. Hastie v. Lamping , 25 Wash. 278, 282, 65 P. 537 (1901). Instead, jurors are entitled only to what compensation is granted to them by statute. Id. The MWA definition of employee, even considering the economic-dependence test, does not transform the fundamental nature of jury service as a civic duty. Thus, jurors are not employees under the MWA.
¶ 29 The Appellants also rely on the holding in Bolin v. Kitsap County , 114 Wash.2d 70, 785 P.2d 805 (1990), which established jurors as employees for the purposes of workers compensation under the Industrial Insurance Act (IIA), Title 51 RCW. However, Bolin interpreted the status of jurors as employees under the IIA, not the MWA, and is inapplicable.
¶ 30 In Bolin , the holding that jurors are covered under the IIA as employees was based primarily on the fact that the IIA did not exclude jury service from the act. Bolin , 114 Wash.2d at 72, 785 P.2d 805. The Bolin court explained,
The liberality of Washingtons workers compensation statute forces the conclusion that jury service is employment under the act.
Unlike many states which list or define employments included , our act lists only employments excluded . See RCW 51.12.020. Jury service is not within the list of those employments excluded.
Id . The Bolin court did not apply the economic-dependence test to determine whether jurors were employees under the IIA. Because Bolin addressed the treatment of jurors under the IIA and did not apply the economic-dependence test, its holding does not determine whether jurors are employees under the MWA.
¶ 31 Because jurors are not employees under the MWA, King County was entitled to judgment as a matter of law. Therefore, the superior court properly granted summary judgment dismissing Appellants MWA claim.
D. STANDING UNDER THE DECLARATORY JUDGMENT ACT
¶ 32 King County argues that the Appellants do not have standing to seek declaratory judgment. We agree.
¶ 33 To establish standing under the declaratory judgment act, chapter. 7.24 RCW, the plaintiff must meet a two part test. Grant Cy. Fire Prot. Dist. No. 5 v. City of Moses Lake , 150 Wash.2d 791, 802, 83 P.3d 419 (2004). First, the plaintiffs interest must be within the zone of interest protected by the statute in question. Id . Second, the plaintiff must show an injury in fact resulting from the challenged action. Id .
¶ 34 The Appellants are seeking a declaratory judgment under both RCW 2.36.080(3) and the MWA. The Appellants lack standing to seek declaratory judgment under both statutes.
¶ 35 Here, it is undisputed that the Appellants are on the master jury service list and may be summoned for jury duty. If they are selected to serve, they will be paid the statutory jury service fee. However, if they seek to be excused from jury duty due to economic hardship, they will have been excused from jury service due to their request, not because of King Countys actions. Thus, Appellants cannot show injury in fact resulting from King Countys actions.
¶ 36 And, as explained above, jury service is not employment and jurors are not employees for the purposes of the MWA. Therefore, the Appellants interests are not within the zone of interests protected by the MWA.
¶ 37 Accordingly, we hold that the Appellants lack standing to seek a declaratory judgment.
CONCLUSION
¶ 38 Appellants disparate impact claim based on economic status under RCW 2.36.080(3) fails. Because jury service is a civic duty and not employment, jurors are not employees under the MWA, and Appellants MWA claim fails as well. Also, Appellants lack standing to seek a declaratory judgment under both RCW 2.36.080(3) and the MWA. Therefore, we affirm the superior courts order dismissing Appellants claims.
I concur:
Sutton, J.
Jurors are not entitled to compensation for their service. State ex rel. Hastie v. Lamping , 25 Wash. 278, 282, 65 P. 537 (1901). Instead, jurors are entitled only to what compensation is granted to them by statute. Id. The legislature has established an amount jurors may be paid under RCW 2.36.150, which states:
Jurors shall receive for each days attendance, besides mileage at the rate determined under RCW 43.03.060, the following expense payments:
(1) Grand jurors may receive up to twenty-five dollars but in no case less than ten dollars;
(2) Petit jurors may receive up to twenty-five dollars but in no case less than ten dollars;
(3) Coroners jurors may receive up to twenty-five dollars but in no case less than ten dollars;
(4) District court jurors may receive up to twenty-five dollars but in no case less than ten dollars.
RCW 2.36.150 applies to grand and petit juries empaneled in superior courts. RCW 2.36.010(5), (6).
In fact, Selin actually served on a jury and Bednarczyk did not serve on any jury because she requested that the court excuse her from jury service.
We note that, even if we accepted the Appellants premise that economic hardship excusals should be characterized as exclusions that violate RCW 2.36.080(3), the appropriate remedy would be to prohibit economic hardship excusals-it would not be to increase the rate of juror pay. But prohibiting the superior court from exercising its discretion to grant economic hardship excusals is not consistent with legislative intent or sound policy. See RCW 2.36.100(1) (allowing persons to be excused from jury service based on undue hardship, extreme inconvenience, public necessity, or any reason deemed sufficient by the court.).
The 13 nonexclusive factors are: (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; (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 have a business organization that shifts 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 employees opportunity for profit or loss resulted from the employees managerial skills; (12) whether there was permanence in the working relationship; and (13) whether the service rendered is an integral part of the employers business. Becerra Becerra v. Expert Janitorial, LLC , 181 Wash.2d 186, 196-97, 332 P.3d 415 (2014).