PUBLISHED OPINION
¶ 1 The Department of Labor and Industries (Department) issued a citation to the Port of Tacoma (Port) for wages owed. Four employees took out-of-town trips on behalf of the Port and filed wage claims with the Department, seeking compensation for an unpaid portion of travel time. Both the Office of Administrative Hearings and the director of the Department reviewed the citation on appeal. The director upheld the citation. The Port appealed to the superior court, arguing that the time spent traveling was not compensable under Department regulations. The superior court granted summary judgment to the Port. The Department appeals.
¶ 2 The Department argues that the Port employees are entitled to compensation for all “hours worked,” and the travel time meets the definition of “hours worked” under WAC 296–126–002(8). The Port counters that the Departments interpretation of “hours worked” is not entitled to the deference normally accorded to agencies and should not be followed, but rather that the employees’ travel time does not meet the definition of “hours worked” under case law interpreting WAC 296–126–002(8).
¶ 3 We conclude that prior cases interpreting “hours worked” in the context of commute time are inapplicable to the travel time at issue here. We further conclude that the Departments interpretation of its own regulation is entitled to deference and hold that the employees’ travel time is “hours worked” and is compensable. Accordingly, we reverse the superior courts order granting the Ports motion for summary judgment, reinstate the directors order, and remand for further proceedings.
FACTS 1
I. Employees Travel for the Port
¶ 4 The Northwest Seaport Alliance decided to purchase new marine cranes to employ at the Port from a manufacturer located in China. The Port is responsible for maintaining cranes operated on its premises and employs crane maintenance mechanics for that purpose. In 2017, the Port invited interested mechanics to volunteer to be part of the quality inspection team observing the manufacturing process in China. The Port intended that the mechanics observe the manufacture of components that they would later repair. The Port arranged two trips to China to observe manufacturing and one trip to Houston to attend relevant training. The trips to China were scheduled in coordination with the manufacturer and the Ports consultants. The Port made all of the arrangements for the trips, including air transportation.
¶ 5 On March 25, 2017, Dax Koho and Glenn Brazil left on the first of the two trips to China. The Port instructed them to arrive at the airport three hours before their scheduled flight. During the flight, both men spent some of their time reviewing materials regarding the inspection in which they were going to participate, although the Port did not require them to do so. The rest of the time they spent on activities unrelated to work. Koho and Brazil returned to SeaTac on April 2.
¶ 6 In May 2017, Bruce Koch flew to and from Houston to attend training regarding the drive systems to be employed by the new cranes. He was compensated for his training time but not for his flight time.
¶ 7 On June 16, Koho, Brazil, Koch, and Donald Olsen left SeaTac for the second and final trip to China. The group returned to SeaTac on June 24.
¶ 8 The Port did not have a policy in place concerning compensation for this type of travel, so it negotiated with the workers’ union to reach an agreement with the union for wages. They agreed that the hourly employees would be paid a maximum of eight hours a day, straight time, for travel to and from China and within China. The Port paid the employees for their travel time consistent with the labor agreement and with the Ports understanding of applicable federal law. As a result, the Port did not pay the employees for all of their time spent traveling.
II. Investigation of Wage Claims
¶ 9 Koho, Brazil, Koch, and Olsen each filed wage claims with the Department, seeking compensation for the time they spent traveling for the Port. That travel time included all travel to and from the airport, all time spent at the airport, and all time spent in flight. The Departments investigator consulted with a Department wage and hour technical specialist and with the Departments employment standards program manager.
¶ 10 The investigator first looked to the Departments definition of “hours worked” based on WAC 296-126-002(8): “all hours during which the employee is authorized or required, known or reasonably believed by the employer to be on duty on the employers premises or at a prescribed work place.” Clerks Papers (CP) at 371. She then reviewed the Departments policy, ES.C.2 (rev. Sept. 2, 2008), on “hours worked.” Section 1 of the policy states, “The departments interpretation of ‘hours worked’ means all work requested, suffered, permitted or allowed and includes travel time, training and meeting time, wait time, on-call time, preparatory and concluding time, and may include meal periods.” CP at 371. Section 2 of the policy relates to circumstances where an employee drives a company-provided vehicle. The introduction to section 2 states, in part:
The purpose of this policy statement is to update section two of Labor and Industries’ administrative policy ES.C.2 (section 2) pertaining to hours worked. Following the Stevens v. Brinks Home Security[, Inc., 162 Wash.2d 42, 169 P.3d 473 (2007),] decision, Labor and Industries committed to updating this section of the policy to reflect the Supreme Court decision in the [Stevens] case and address ambiguity created by that case. ․ This policy is not intended to address or cover all employee travel time issues. Instead, it is limited to the particular issues raised in the [Stevens] case regarding whether time spent driving a company-provided vehicle between home and the first or last job site of the day constitutes compensable “hours worked.”
CP at 372 (citation omitted).
¶ 11 The Department investigator determined that policy ES.C.2 did not address the travel at issue with the Port employees’ wage claims. At the direction of her supervisor, she reviewed the Departments “Desk Aid,” which provides that all travel time related to work is compensable. It reads:
Washington law is more favorable to employees than federal law. The federal Portal to Portal Act limits compensability of out-of-town travel to travel that takes place during the employees normal work hours. The federal law also dictates that the trip to the airport or train station is considered a normal commute and is not compensable. In Washington, all travel time related to work is compensable regardless of the hours when it takes place and includes the time to get to the airport or train station.
If a person is required to travel to a training seminar in another city, the time from when the employee leaves their home until they arrive at their hotel in the other city is all compensable. Likewise, the time from when the employee leaves the hotel (or training facility) in the remote city, until they arrive back at their home, is also compensable. If, on the other hand, the employee is required to report to work before they travel out of town, then the drive to work and home from work at the end of the travel is considered normal commute time and is not compensable.
CP at 769. The Desk Aid is not available to the public, and Department investigators are not required to apply the provisions of the Desk Aid. The Department investigator recommended issuing a citation to the Port for wages owed, and the recommendation was adopted.
III. Citation and Appeals
¶ 12 In October 2017, the Department issued the citation and notice of assessment. A month later, the Port filed an appeal with the Office of Administrative Hearings (OAH). Both the Department and the Port filed motions for summary judgment. The Departments position before the OAH was that “the wage claimants were on duty at the employers prescribed work place while traveling because the employer had assigned them to travel.” CP at 31 (Finding of Fact 4.45). The OAH granted the Ports motion for summary judgment, denied the Departments motion, and issued an order reversing the Departments citation and notice of assessment. Shortly thereafter, the Department filed a petition for review with the director of the Department under RCW 49.48.084 and the Washington Administrative Procedure Act (WAPA), ch. 34.05 RCW.
¶ 13 The director reversed the OAHs decision. The director noted and considered the Departments policy ES.C.2 and the Desk Aid as evidence of its “longstanding interpretation” of the “hours worked” provision. CP at 18 (conclusion of law (CL) 9). He noted that federal law also distinguishes between regular work travel and “travel for an out-of-town assignment.” CP at 17 (CL 7). He concluded that the Departments interpretation was entitled to deference and did not conflict with Washington case law, specifically, Stevens, 162 Wash.2d 42, 169 P.3d 473, and the case it relies on, Anderson v. Department of Social & Health Services, 115 Wash. App. 452, 63 P.3d 134 (2003) (holding that employee time spent commuting on a government run ferry is not “hours worked”). Specifically, he concluded that Stevens and Anderson were inapplicable because “[n]either case addresses the compensability of travel time for out-of-town work assignments.” CP at 18 (CL 10).
¶ 14 The director further concluded:
Under WAC 296-126-002(8), “hours worked” includes travel time for out-of-town work assignments. As in federal law, travel for an out-of-town work assignment is not the same as ordinary home-to-work travel. It is performed for the employers benefit and at its special request to meet the needs of the particular assignment. It is an integral part of the principal activity that the employee was hired to perform. This is true regardless of whether the employee engages in additional work during the journey or whether the employer owns or controls the employees means of transport. Because the travel itself is a duty of the work assignment, so long as the employer approves the means of travel, the employee is on duty at a prescribed work place throughout the travel time.
CP at 18 (CL 12).
¶ 15 The Port petitioned for judicial review of the directors order with the superior court pursuant to RCW 49.48.084(4) and ch. 34.05 RCW. The Port argued that the director erroneously interpreted and applied the law. Specifically, the director erred in according substantial weight to the Desk Aid, in determining that Anderson and Stevens are inapplicable, and in determining that the travel time met the definition of “hours worked.” Both parties again filed motions for summary judgment. The superior court granted the Ports motion and denied the Departments. The Department appeals.
ANALYSIS
I. General Legal Principles
¶ 16 Under the Washington Minimum Wage Act (MWA), ch. 49.46 RCW, unless exempt, employees are entitled to compensation for regular hours worked and for any overtime hours worked. See RCW 49.46.020, .130; Stevens, 162 Wash.2d at 47, 169 P.3d 473.
¶ 17 If an employee files a wage complaint, the Department must investigate. RCW 49.48.083(1). If the Department determines that the employer violated one or more wage payment laws, the Department issues a citation and notice of assessment. RCW 49.48.083(2).
¶ 18 “Washington has a ‘long and proud history of being a pioneer in the protection of employee rights.’ ” Hill v. Xerox Bus. Servs., LLC, 191 Wash.2d 751, 760, 426 P.3d 703 (2018) (internal quotation marks omitted) (quoting Intl Assn of Fire Fighters, Local 46 v. City of Everett, 146 Wash.2d 29, 35, 42 P.3d 1265 (2002)). The Industrial Welfare Act (IWA), ch. 49.12 RCW, and the MWA are remedial statutes protecting employees’ rights. Pellino v. Brinks, Inc., 164 Wash. App. 668, 684, 267 P.3d 383 (2011) (IWA); Carranza v. Dovex Fruit Co., 190 Wash.2d 612, 625, 416 P.3d 1205 (2018) (MWA). Remedial statutes, as well as the regulations promulgated thereunder, must be liberally construed in favor of the worker. See Silverstreak, Inc. v. Dept of Labor & Indus., 159 Wash.2d 868, 882, 154 P.3d 891 (2007) (plurality opinion). “A liberal construction should carry into effect the purpose of the statute.” Everett Concrete Prods., Inc. v. Dept of Labor & Indus., 109 Wash.2d 819, 823, 748 P.2d 1112 (1988).
II. Standard of Review
¶ 19 The WAPA, codified at ch. 34.05 RCW, governs review of a final order by the director of a department. RCW 49.48.084(4). Relevant here, a party will be afforded relief from an adverse administrative decision when (1) the administrative decision is based on an error of law, (2) the decision is not based on substantial evidence, or (3) the decision is arbitrary or capricious. RCW 34.05.570(3). In reviewing an administrative decision, we sit in the same position as the superior court, applying the WAPA standards directly to the record considered by the agency. Kittitas County v. Kittitas County Conserv. Coal., 176 Wash. App. 38, 47, 308 P.3d 745 (2013); Silverstreak, 159 Wash.2d at 879-80, 154 P.3d 891.
¶ 20 “[W]here the original administrative decision was on summary judgment, the reviewing court must overlay the [W]APA standard of review with the summary judgment standard.” Verizon Nw., Inc. v. Empt Sec. Dept, 164 Wash.2d 909, 916, 194 P.3d 255 (2008). Summary judgment is appropriate only where the undisputed facts entitle the moving party to judgment as a matter of law. Id. We evaluate the facts in the administrative record de novo and the law under the “error of law” standard. Id. Under this standard, “this court gives a ‘high level of deference to an agencys interpretation of its regulations’ based on the agencys expertise and insight gained from administering the regulation.” Brady v. Autozone Stores, Inc., 188 Wash.2d 576, 581, 397 P.3d 120 (2017) (quoting Silverstreak, 159 Wash.2d at 885, 154 P.3d 891).
¶ 21 Deference to the Departments interpretation of its own properly promulgated regulations is appropriate “ ‘absent a compelling indication that the agencys regulatory interpretation conflicts with legislative intent or is in excess of the agencys authority.’ ” Litchfield v. KPMG, LLP, 170 Wash. App. 431, 441, 285 P.3d 172 (2012) (internal quotation marks omitted) (quoting Silverstreak, 159 Wash.2d at 884, 154 P.3d 891); see also Taylor v. Burlington N. R.R. Holdings, Inc., 193 Wash.2d 611, 627, 444 P.3d 606 (2019). However, we are not bound by the agencys interpretation because the courts have “the ultimate authority to interpret a statute [or regulation].” Bostain v. Food Express, Inc., 159 Wash.2d 700, 716, 153 P.3d 846 (2007). To interpret agency regulations, we apply the same principles used to interpret statutes. Puget Soundkeeper All. v. Pollution Control Hrgs Bd., 189 Wash. App. 127, 136, 356 P.3d 753 (2015).
¶ 22 Generally, to be entitled to deference the agency must show it adopted its interpretation as a “matter of agency policy.” Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 815, 828 P.2d 549 (1992). “While the construction does not have to be memorialized as a formal rule, it cannot merely ‘bootstrap a legal argument into the place of agency interpretation,’ but must prove an established practice of enforcement.” Sleasman v. City of Lacey, 159 Wash.2d 639, 646, 151 P.3d 990 (2007) (quoting Cowiche Canyon, 118 Wash.2d at 815, 828 P.2d 549).
III. Analysis
¶ 23 We conclude that the travel time for out-of-town travel is “hours worked” under the regulation for three reasons. First, Anderson and Stevens are distinguishable. Second, the Departments interpretation of its own regulation is entitled to deference. Third, the Departments interpretation is consistent with the plain meaning of the regulation and the mandate that we liberally construe it in favor of the worker.
A. Applicability of Anderson and Stevens
¶ 24 The legislature has not defined “hours worked,” or addressed the compensability of employee travel time. The Department defines “hours worked” as “all hours during which the employee is authorized or required by the employer to be on duty on the employers premises or at a prescribed work place.” WAC 296–126–002(8).
2
¶ 25 In Anderson, this court addressed a claim by Department of Social and Health Services employees, who sought compensation for the time they spent riding the employer provided ferry to and from the Special Commitment Center on McNeil Island. 115 Wash. App. at 454, 63 P.3d 134. The ferry was the only way to reach the island. Id. This court determined that the claims failed because the employees were not “on duty” during the ferry rides. Id. at 456, 63 P.3d 134. This court did not define “on duty,” but found it significant that during the ferry ride the workers “engage[d] in various personal activities, such as reading, conversing, knitting, playing cards, playing hand-held video games, listening to CD (compact disc) players and radios, and napping.” Id. at 454, 63 P.3d 134. This court concluded that this daily commute was not “hours worked.” Id. at 456, 63 P.3d 134. It also relied on a rule applicable only to state civil service employees that clearly defined when travel time was considered “hours worked.”
3
Id. at 456-57, 63 P.3d 134.
¶ 26 Relying on this courts analysis of “on duty” in Anderson, the Supreme Court later addressed the definition of “hours worked” under WAC 296–126–002(8) in Stevens, 162 Wash.2d 42, 169 P.3d 473. In that case, Brinks employees sued their employer, seeking wages for the time spent driving their employer-provided trucks from home to their first work site and from their last work site to home. Id. at 45, 169 P.3d 473. The employees already received compensation for the time spent driving between work sites. Id.
¶ 27 The court distinguished the facts in Anderson but relied on its analysis to “evaluate the extent to which Brinks restricts Technicians’ personal activities and controls Technicians’ time.” Id. at 48, 169 P.3d 473. In agreeing with the workers, the court identified factors that weighed in favor of classifying the time spent driving to the first call and driving home from the last call as time spent “on duty.” See Id. at 48-49. First, the drivers took the trucks home with them every day and infrequently went to a Brinks office. Id. Second, the workers received their assignments from home and were always on call while driving. Id. Third, Brinks had detailed policies limiting how employees used the trucks, which included prohibitions on running personal errands in the trucks. Id.
¶ 28 The court then determined that the trucks could be classified as the “employers premises” or “prescribed work place.” Id. at 49, 169 P.3d 473. The court reasoned that driving the trucks was an integral part of the employers business. Id. Workers also had to carry all necessary tools and equipment in the trucks, had to do their paperwork in the truck or at the customers home, and formal policies required the workers to keep the trucks clean and serviced. Id. The court concluded that Brinks vehicles were essentially mobile offices for the employees. Id.
¶ 29 Anderson and Stevens interpret the meaning of “hours worked” within the context of a daily commute. In contrast, this case deals with out-of-town travel. Both Anderson and Stevens are inapplicable here.
4
We conclude that Stevens and Anderson do not control the analysis of “hours worked” as that term relates to out-of-town travel.
B. Deference Due
¶ 30 The Port argues that we do not owe deference to the Departments interpretation. The Port argues that the applicable regulations and case law provide the applicable standard, and the Departments interpretation is not entitled to deference because it comes in the form of an unpublished Desk Aid. We disagree.
¶ 31 To support its argument that the Departments interpretation, specifically the Desk Aid, is not entitled to deference, the Port relies on a quote from Carranza, 190 Wash.2d 612.
¶ 32 In Carranza, the court interpreted the MWAs provision requiring employers to pay their employees at least minimum wage per hour worked. Id. at 619. At issue was interpretation of the phrase “ ‘at a rate of not less than [the applicable minimum wage] per hour,’ ” id. at 614-15 (quoting RCW 49.46.020(1)-(3)), and whether it required Dovex to compensate nonpicking work on an hourly basis when done by fruit pickers who are paid on a piece-rate basis. Id. at 618-20, 416 P.3d 1205. Dovex argued in part that administrative regulations and policies supported an interpretation that allowed a pay structure where each week a workers total piece-rate compensation divided by their total hours worked equaled at least the applicable minimum wage. Id. at 623, 416 P.3d 1205. The court rejected this argument because the Department policy cited by Dovex interpreted a regulation that specifically did not apply to agricultural workers. Id. at 624, 416 P.3d 1205.
¶ 33 The court continued, “[E]ven if it were applicable to agricultural workers paid by the piece, administrative policies ‘[have] no force or effect as a law or regulation.’ ” Id. (emphasis omitted) (second alteration in original) (quoting Stevens, 162 Wash.2d at 54, 169 P.3d 473 (Madsen, J., concurring)). The court concluded that “[w]hile the level of deference owed to regulations is an issue of ongoing debate, administrative policies do not even have the force of regulations, and deference to such policies is inappropriate because ‘[t]his court has the ultimate authority to interpret a statute.’ ” Id. at 624-25 (alteration in original) (quoting Bostain, 159 Wash.2d at 716).
¶ 34 The Port appears to argue that in Carranza, the Supreme Court determined that courts should not give deference to the agencys interpretation that comes in the form of unpublished policies. Therefore, it argues, we should not defer to the Departments interpretation enumerated in its unpublished Desk Aid.
¶ 35 Carranza is distinguishable. In interpreting a statute, the court rejected an employers reliance on an agency policy primarily because that policy interpreted a regulation that expressly did not apply to the workers at issue in the case. Here, the Department is asking us to defer to its interpretation and application of “hours worked” under WAC 296–126–002(8), which clearly applies to the workers at issue. Furthermore, nothing in Carranza indicates the Supreme Courts intention to no longer defer to any agencys interpretation of its own regulation. In fact, recently the Supreme Court again stated that it “accords substantial weight to an agencys interpretation within its area of expertise and upholds that interpretation if it reflects a plausible construction of the regulation and is not contrary to legislative intent.” State v. Numrich, 197 Wash.2d 1, 18-19, 480 P.3d 376 (2021).
¶ 36 We therefore accord deference to the Departments interpretation if it reflects a plausible construction and is not contrary to legislative intent. Id.
¶ 37 Additionally, the Departments policy is not a recent development and appears to apply here. Although it does not specifically discuss a special out-of-town work assignment, the Departments policy ES.C.2 defines “hours worked” as “all work requested, suffered, permitted or allowed and includes travel time, training and meeting time, wait time, on-call time, preparatory and concluding time, and may include meal periods.” CP at 371 (emphasis added). More importantly, section 2 recognizes the limited application of the Stevens opinion, stating, “This policy is not intended to address or cover all employee travel time issues. Instead, it is limited to the particular issues raised in the [Stevens] case regarding whether time spent driving a company provided vehicle between home and the first or last job site of the day constitutes compensable ‘hours worked.’ ” CP at 372. This indicates, independently of the unpublished Desk Aid, that it has been the Departments policy to treat the commute travel time at issue in Stevens differently than other types of travel time. This is not a case of “bootstrap[ping] a legal argument into the place of agency interpretation.” Cowiche Canyon, 118 Wash.2d at 815, 828 P.2d 549.
¶ 38 In light of the Departments long-standing policy of treating travel time as compensable “hours worked” under WAC 296-126-002(8) and ES.C.2, this is clearly not a case of bootstrapping; the Ports argument to deter us from affording deference to the Departments interpretation fails.
C. Plain Meaning and State Policy Protecting Employees
¶ 39 The Department argues that the MWA requires an employer to compensate travel on out-of-town assignments because unlike a commute, the travel itself is a duty of the work assignment performed at an employer-approved location. The Department asserts that the employees were on duty at a prescribed workplace because the travel was necessary to facilitate inspection, and planes and cars are Port-approved instrumentalities of travel.
¶ 40 Again, WAC 296-126-002(8) defines “hours worked” as “all hours during which the employee is authorized or required by the employer to be on duty on the employers premises or at a prescribed work place.” Neither party disputes that the disputed hours were “authorized or required” by the Port, thereby establishing the first factor required by WAC 296-126-002(8). At issue is whether the Port employees were both on duty and at a prescribed workplace, as further required by WAC 296-126-002(8).
1. The Departments interpretation of WAC 296-126-002(8) is consistent with the plain meaning of the regulation.
¶ 41 In determining the ordinary meaning of an undefined statutory term, we may look to the dictionary definition. Lockner v. Pierce County, 190 Wash.2d 526, 537, 415 P.3d 246 (2018); Am. Contl Ins. Co. v. Steen, 151 Wash.2d 512, 518, 91 P.3d 864 (2004) (plurality opinion). “On duty” is defined as “assigned to a task or duty [or] engaged in or responsible for some specific performance.” Websters Third New International Dictionary 705 (1961). The travel is at the behest and for the benefit of the employer and is a necessary part of the assigned task. The time spent traveling is time that employees would otherwise have been engaged in their own nonwork activities.
¶ 42 Here, the Ports employees were, in fact, on duty. They engaged in an assigned task—the travel—at the behest of their employer, in order to effectuate their assigned duty to inspect the crane manufacturing process.
¶ 43 “Prescribed” is defined as “dictate[d] or direct[ed].” Websters Third New International Dictionary at 1792 (1961 capitalization omitted). The instrumentality of travel is the place dictated by the employer where the assigned task or duty occurs. Here, the Port approved the means of travel and purchased the plane tickets, thereby dictating, i.e., prescribing, the workplace.
¶ 44 The Departments interpretation of out-of-town travel as “on duty at a prescribed work place,” CP at 18 (CL 12), is thus consistent with the plain meaning of the regulation.
2. The Departments interpretation is consistent with long-standing policy of protecting employees.
¶ 45 The Department also argues that the interpretation advocated by the Port is contrary to Washingtons policy to protect employees. We agree.
¶ 46 We must “give great deference to an agencys interpretation of its own properly promulgated regulations, ‘absent a compelling indication’ that the agencys regulatory interpretation conflicts with legislative intent.” Silverstreak, 159 Wash.2d at 884–85, 154 P.3d 891 (quoting Marquis v. City of Spokane, 130 Wash.2d 97, 111, 922 P.2d 43 (1996)).
¶ 47 Here, the Departments interpretation is not only consistent with the plain meaning of the regulation but it is also consistent with the directive that this court liberally construe a regulation promulgated under remedial statutes, the IWA and MWA, in favor of the beneficiaries of those acts. The interpretation is thus in line with Washingtons “ ‘long and proud history of being a pioneer in the protection of employee rights.’ ” Hill, 191 Wash.2d at 760 (internal quotation marks omitted) (quoting Intl Assn of Fire Fighters, Local 46, 146 Wash.2d at 35). The interpretation proffered by the Port is, in fact, contrary to a liberal interpretation because absent the union agreement, and under the Ports reading of the regulation, the employees would not be compensated for any of the time spent traveling.
¶ 48 We conclude that the directors order did not erroneously interpret or apply the law and was not arbitrary and capricious. Therefore, we reverse the superior courts grant of summary judgment to the Port.
IV. Factual Basis for Wage Calculations
¶ 49 In a footnote, the Department appears to argue that the Port cannot challenge the factual basis for the directors wage calculations because the Port failed to preserve the issue. The Port responds that it properly preserved the factual dispute regarding the wage calculations pending final determination of the compensability of the workers’ travel time.
¶ 50 The factual basis for and validity of the directors wage calculations are not before us on appeal. The issue of calculations was not addressed by the superior court, and the Port stated at oral argument before us that the calculations were not at issue on appeal. Wash. Court of Appeals oral argument, Port of Tacoma v. Sacks, No. 54498-9-II, ––– Wash.App.2d ––––, ––– P.3d ––––, 2021 WL 4271356 (May 14, 2021), at 19 min., 47 sec. through 20 min., 53 sec. (on file with court). Accordingly, we decline to reach this argument. RAP 10.3(g).
¶ 51 However, on remand, the Port is permitted to contest the factual basis and validity of the wage calculations in the directors order. RCW 34.05.554(1) provides that issues that were not raised before the administrative agency cannot be raised on appeal. But the Port did raise the issue of wage calculations during the administrative review process. And in its petition for judicial review, the Port requested the superior court to “dismiss the wage claims in their entirety” or “[g]rant such other relief as the Court deems just and equitable.” CP at 11. Based on this record, the issue of wage calculation was properly preserved.
¶ 52 Accordingly, we reverse the superior courts order granting the Ports motion for summary judgment, reinstate the directors order, and remand for further proceedings. On remand, the Port is permitted to contest the factual basis and validity of the wage calculations.
FOOTNOTES
2
. WAC 296-126-002 was promulgated pursuant to the IWA but is also applicable to the MWA. See Stevens, 162 Wash.2d at 47 & n.1, 169 P.3d 473.
3
. WAC 356-15-040 stated that travel time was considered time worked when (1) it occurs during the employees normal hours of work and is from one work site to another or (2) the employee has a regularly assigned work site, and the travel is to carry out a work assignment at a different location than the regularly assigned work site, to the extent that it exceeds normal home-to-work travel time, is outside of normal working hours, and does not exceed the shortest reasonable means for the employee to reach and return from the location. We note that the regulation used the term “time worked,” not “hours worked,” though this is insignificant for our analysis. The regulation was also repealed on July 1, 2005. See Wash. St. Reg. 05-12-066 (2005). Because WAC 356-15-040 applied only to civil service employees, and because it is no longer effective, it does not apply in this case.
4
. Federal law, most state law, the Departments policy ES.C.2, and the Desk Aid distinguish between out-of-town travel, at issue here, and daily commutes, as in Anderson and Stevens.The United States Department of Labor, Wage and Hour Divisions Fact Sheet #22: Hours Worked under the Fair Labor Standards Act (FLSA) provides:Travel Away from Home Community: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employees workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.U.S. Dept of Labor, Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FSLA) 2 (July 2008) (boldface omitted), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs22.pdf.Oregon Administrative Rule 839-020-0045(5) defines “[t]ravel away from the home community” and thereby acknowledges differing treatment from ordinary travel as part of a daily commute.Connecticut Agencies Regulation § 31-60-10 provides:(a) ․ “travel time” means that time during which a worker is required or permitted to travel for purposes incidental to the performance of his employment but does not include time spent in traveling from home to his usual place of employment or return to home, except as hereinafter provided in this regulation. (b) When an employee, in the course of his employment, is required or permitted to travel for purposes which inure to the benefit of the employer, such travel time shall be considered to be working time and shall be paid for as such.(Emphasis added.)
Veljacic, J.
Glasgow, A.C.J., and Sutton, J., concur.