Nelson v.
Cal. Gas
Filed 5/30/13 Nelson v. Southern Cal. Gas CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
ERIC L. NELSON et al.,
Plaintiffs and Appellants,
v.
SOUTHERN CALIFORNIA GAS
COMPANY,
Defendant and Respondent.
B238845
(Los Angeles
County
Super. Ct.
No. BC451310)
APPEAL from
an order of the Superior Court
of
County. Zaven V.
Sinanian, Judge. Affirmed in part,
reversed in part.
Marlin
& Saltzman, Louis M. Marlin, Kristen Marquis Fritz; Fitzgerald Lundberg
& Romig, Ken M. Fitzgerald and Barbrae Lundberg for Plaintiffs and
Appellants.
Paul
Hastings, Paul Grossman, Paul W. Cane, Jr., Leslie L. Abbott, Eric Stevens;
Young, Zinn & Bate, Linda Van Winkle Deacon and Harry A. Zinn for Defendant
and Respondent.
______________________________________
Plaintiffs
Eric Nelson, Juan Mejoredo, and Robert Dowling sought certification of a class
action against Southern California Gas Company (the Gas Company). The plaintiffs alleged the company failed to
provide meal and rest breaks in accordance with California law, and committed
overtime wage violations. The trial
court denied certification on the grounds that the plaintiffs failed to
establish common questions would predominate in the action or that class
treatment would be the superior means of resolving the litigation. We affirm the trial court order on class
certification but reverse the order to the extent it purported to deny
plaintiffs’ representative claim under the Labor Code Private Attorney Generals
Act of 2004 (Lab. Code, § 2698 et seq.; PAGA).
FACTUAL AND PROCEDURAL BACKGROUND
Named plaintiffs Nelson,
Mejoredo, and Dowling worked as “field operations†employees for the Gas
Company. Field operations employees work
in the “field,†away from a Gas Company facility, driving in company vehicles
in assigned geographic areas or at specific sites. In their class action lawsuit, plaintiffs
alleged the Gas Company violated California wage and hour laws by failing to
relieve class members of all duties during their meal and rest periods, and by
exerting control over class members during their meal and rest periods, such
that they were denied the meal and rest breaks required by law. Plaintiffs also alleged the Gas Company required
class members to perform work “off the clock,†such as donning and doffing
coveralls, and booting up or shutting down computers. Based on these factual allegations,
plaintiffs asserted seven causes of action in the operative
breaks in violation of Industrial Welfare Commission (IWC) Wage Order No. 4
(Wage Order No. 4), and Labor Code sections 200, 226.7, and 512;
(Wage Order No. 4; Lab. Code, §§ 200, 226, 226.7, 500, 510, 1194, 1197, 1198);
(3) failure to pay overtime compensation (Lab. Code, § 1194); (4) failure
to compensate for all hours worked (Wage Order No. 4; Lab. Code, §§ 200, 226,
226.7, 500, 510, 1194, 1197, 1198); (5) failure to furnish accurate wage
statements (Lab. Code, § 226); (6) failure to pay compensation upon discharge
(Lab. Code, §§ 201-203); and (7) violations of Business and Professions Code
section 17200 et seq. (UCL). Plaintiffs
also asserted a claim for remedies under PAGA.
The Gas
Company filed a motion for an order declaring the suit inappropriate for class
treatment and denying representative status for the PAGA claim. Plaintiffs subsequently filed a motion for
class certification. Plaintiffs sought certification
of a class defined as: “All individuals
who are currently employed, or formerly have been employed, as non-exempt Field
Operations employees for Southern California Gas Company during the Class
Period. Excluded from the Class are
Meter Readers and current and former employees who work only at a base location
(as opposed to in the field) including, but not limited to, Field
Planners.†Plaintiffs also sought
certification of two subclasses, one composed of class members whose employment
required them to wear employer-supplied coveralls and other protective gear,
and one composed of class members whose employment had been terminated.
In the certification motion,
plaintiffs argued the Gas Company had formal policies that were applied to all
field operations employees, and these policies established the Gas Company was
not providing lawful meal and rest breaks and required “off-the-clockâ€
work. They offered
support of the motion, which we summarize below.
Written
Policies
Plaintiffs provided copies of the
Gas Company’s written policies, including an Employee Conduct and
Responsibilities manual with an effective date of September 2006. On company vehicles, the manual provided that
company vehicles are “operated only in the performance of Company business by
authorized employees who are 18 years of age or over.†In a section on work assignments, the manual
indicated field employees are required to “retrieve and route their orders on
or after the start of their shift. . . .
[¶] . . . Employees are
expected to be in their assigned work area unless otherwise approved by a
supervisor. Travel between work areas is
by the most reasonably direct, and efficient route.â€
The manual
included a section on work schedules, coffee breaks, and lunch periods. The section provided that field employees are
entitled to take two 10-minute breaks and, when working more than six hours in
a given day, the employee is required to take a meal period before the end of
the fifth hour of work.
name="_ftnref2" title="">[2] This section also stated: “Field employees may carry coffee, tea, milk
etc., and take a rest period as work permits.
Coffee and other beverages are not prepared on the job. . . . [¶] .
. . Field employees are to avoid coincidental meetings of more than two persons
or more than one crew. Prearranged meetings
are prohibited.â€
In a
section of the manual titled “Conduct,†the document indicated company
coveralls and uniforms “are worn only in the performance of Company work or
Company-approved activities. Two-piece
uniforms may be worn to and from work.â€
The manual indicated employees are prohibited from consuming alcoholic
beverages during working hours, “whether on or off of Company premises.â€
Plaintiffs also offered
subsequently revised manuals containing similar provisions to those identified
above. A copy of the manual with a
February 2011 revision date indicated coveralls and two-piece uniforms could be
worn to and from work, and stated employees were allowed to take uniforms or
coveralls home if required to report to work with a uniform or coveralls. Plaintiffs’ evidence also included copies of
a provision from the collective bargaining agreement stating certain employees
would be provided coveralls, and employees would not take the coveralls home at
night except in specified circumstances.
Plaintiffs attached a separate “gas
standard†for crew operations which set forth rest period criteria. The standard allowed for crew operations
employees to take rest periods or coffee breaks, with the “Lead Construction
Technician’s approval, when the entire time away from the job does not exceed
15 minutes nor more frequent than one morning and one evening break and: [¶] .
. . May be taken en route to the first job or to the base following the last
job, if the travel time exceeds 1-1/2 hours or,
[¶] . . . They drive by or stop
near a restaurant or store en route to their next job by a direct route,
provided parking space is available nearby and the stops are of short duration
or, [¶]
. . . When working within a reasonable walking distance of a restaurant
or store. One or two crew members at a
time may leave the job to obtain coffee or soft drinks. The crew truck is not left unattended nor
used for transportation in these cases or,
[¶] . . . A ‘coffee truck’ stops
at or nearby the job location.†The
policy further indicated an employee was permitted to carry a beverage and take
a short coffee break as the work permitted, but noted, “It is not intended,
however, that coffee or other hot or cold drinks be prepared on the job.â€
Declarations
of Named Plaintiffs and Arturo Frias
The named plaintiffs declared Gas
Company policy required them to be available at all times during their shifts
to respond to emergencies, including during meal and rest breaks. Plaintiffs further declared Gas Company
policy required that if field operations employees are contacted, including
during a meal or rest break, the employee is required to acknowledge the
contact to determine whether it is an emergency. Plaintiffs additionally declared Gas Company
policy required field operations employees to be in their assigned work area
unless they had supervisor approval to be out of the area; they were required
to always be “in route†during their work shifts; they were required to drive a
company vehicle but were not allowed to use the vehicle during meal and rest
periods; they could only take rest breaks as “work permitsâ€; and they were
prohibited from having prearranged or coincidental meetings of more than two
persons or more than one crew of workers.
Nelson declared he was disciplined in 2004 for being “out of route†and
using a Gas Company truck for transportation during a lunch break. Plaintiffs declared Gas Company policy
prohibited field operations employees from consuming alcoholic beverages during
working hours, and two of the named plaintiffs also declared that under Gas
Company policy they were not allowed to prepare coffee or other beverages on
the job site. According to plaintiffs,
they were prohibited from taking their coveralls home, but were also required
to wear them only when working. They
additionally declared they were required to perform work-related duties before
and after their scheduled shifts, and they were not paid for the time.
Plaintiffs’
evidence included the declaration of a union representative, Arturo Frias. Frias declared, based on his personal
knowledge and disciplinary records he had seen, that he was aware Gas Company
employees had been disciplined for being out of route, using company vehicles
during their meal and rest periods, having coincidental or prearranged meetings
during meal or rest periods, consuming alcoholic beverages during meal or rest
periods, taking coveralls home, and for not responding to calls from
supervisors or dispatch during a shift.
Supervisors
Plaintiffs
offered excerpts from the depositions of 13 Gas Company supervisors. The supervisors all testified that one of
their responsibilities was to enforce company policies, or to review the
company’s policies with the employees they supervised to ensure
compliance. Several supervisors
testified that the employees they supervised used company vehicles equipped
with a communication device or radio that allowed employees to be
contacted. Several confirmed that the
company trucks were equipped with a horn that could be remotely honked if the
radio was not answered. There was also
testimony that employees used mobile data terminals, a form of laptop
computer.
In the included excerpts, the
supervisors testified that employees had to be reachable at all times while “on
duty,†or available to be contacted by some method in case of an
emergency. One supervisor testified if
there was an emergency during work hours, one of two types of field employees
would respond, but there was no particular time frame because “all emergencies
are different.†Another testified if an employee
received a contact during a meal break, the employee would respond if it was an
emergency and, once the area is made safe, the employee would start the lunch
or break. Others testified if it was not
possible to restart the meal period, the employee would receive an extra hour
of pay.
Regarding
the policy that employees stay “in route,†10 of the supervisors testified this
meant going from one job to the next, and not going somewhere that was not on
the way, or not deviating from the most direct route to the job site, or taking
the “most efficient†route. One
supervisor testified that employees were told to stay “en route,†but not that
there was “a certain mileage you can go before we call you out of route.†Five supervisors testified they were aware an
employee could be disciplined for not staying in route.
Deposition
Testimony of Gas Company Person Most Knowledgeable Witness
Plaintiffs further supported their
motion with excerpts from the deposition of a person most knowledgeable (PMK)
witness for the Gas Company, Frank Ayala.
Ayala testified that employees were supposed to take a meal break in the
“general proximity of where their last order is or their next order.†Ayala indicated there was no written policy
defining in or out of route, or any set distance or mileage determining what is
“in route,†but the company relied on the employee’s “good judgment,†and
“coaching†from supervisors, who also used their judgment to determine
“reasonable proximity.†Ayala testified
employees were allowed to conduct personal business on meal and rest
breaks. He said when there was an
emergency call, employees were required to respond “as quickly as they can
safely respond when they are given the work.â€
He testified employees with various job titles were to be available at
all times to respond to emergencies during their shifts. Although the company tried to avoid
interrupting an employee’s meal or rest breaks, “if it is an emergency and they
are the closest person,†an employee taking a meal or rest break might be
interrupted by an emergency call, and could be subject to disciplinary action
for failing to respond.
The Gas Company contended class
treatment was inappropriate because some of the plaintiffs’ theories were
legally untenable, and their claims would require individualized proof.
Putative
Class Member Declarations
To support the motion seeking an
order declaring the action inappropriate for class treatment, and in opposition
to plaintiffs’ certification motion, the Gas Company submitted declarations
from 58 field operations employees. Some
declarations were short preprinted forms, with spaces for the employees to mark
responses by hand. The form declarations
addressed how frequently the employee wore coveralls, whether she or he was
permitted to take the coveralls home, and whether he or she was required to
change into coveralls at the base before clocking in for a shift, or required
to change out of coveralls at the base after clocking out for the day. Most declarants indicated they were permitted
to take their coveralls home. Some, but
not all, indicated they were required to change into coveralls at the base
before they were clocked in for the day.
Most reported they were not required to change out of coveralls at the
base after clocking out for the day.
The form also addressed meal
periods, allowing the declarants to indicate how frequently they were able to
take a “duty-free 30-minute meal period within 5 hours of starting work,†and
whether or how often they were allowed to leave the job site for a meal
period. With respect to occasions when
the employee took a meal period at the job site, the declarations asked
employees to assess the percentage of time that was the employee’s free choice,
because a member of management said the employee had to remain at the site,
because of an emergency, or for another reason.
There was a range of responses.
One declarant reported only being able to take a duty-free meal period
45 percent of the days he worked. Some
declarants indicated they were able to leave the job site for a meal on only 5
percent of the days they worked.
However, others reported being able to take duty-free meal periods 100
percent of the days they worked, and they were able to leave the job site 100 percent
of the time.
The Gas Company’s declarations also
included longer prose-style declarations addressing meal and rest periods. These declarations contained text indicating
the Gas Company had never pressured the employee to skip meal or rest periods,
and the employee was allowed to place active orders on hold to take a meal
period. The declarations included
language indicating how often the employee had the opportunity to take an
“off-duty meal period of at least 30 minutes,†whether the employee always
decided when and where to take meal and rest periods, and whether the employee
understood the Gas Company expected the employee to accurately record meal
period start and stop times. Some
declarants recounted receiving premium pay on occasions when they were unable
to start a meal period within 5 hours of starting work. One individualized paragraph described how
the employee usually spent his or her meal and rest periods, most included the
sentence: “I am allowed to leave my work
vehicle unattended during meal and rest periods as long as I lock it.†Some employees stated they brought lunch from
home and sat in the truck or in a park to take the meal break. Others described buying a meal and taking a
meal break outside of the truck, or taking a “reasonable detour†between orders
to take a break. Several declared they
usually took rest breaks at fast food restaurants or stores.
Some of the longer declarations
also described a process by which the employee could keep track of an
interrupted meal period so as to be paid for the time. Several included a paragraph indicating that
when the declarant received a message during a meal period to respond to an
emergency call, he or she interrupted the meal, recorded the interruption, and
responded to the emergency. Numerous
declarants also stated if the interruption was not for a particular type of
emergency (an “A-1 leak orderâ€), they could ignore the message and respond
after the meal break, or tell the dispatcher they were on lunch and they would
not be disturbed.
title="">[3] Some included a paragraph stating they would
send a message to the dispatcher notifying him or her that they were starting a
meal period so they would not be contacted during that time. A few declarants noted they did not always
carry a communications device with them when they were on meal or rest breaks.
The declarations further discussed
the policy regarding Gas Company uniforms; most indicated they were allowed to
take their uniforms home and had the option to change in and out of uniform at
home. Many declarants in these longer declarations
indicated no Gas Company management had ever told them they needed to change
into or out of a uniform or coveralls at the base before or after their
shift. With respect to coveralls, many
declared they did not always wear coveralls and changed into and out of them on
paid working time.
Gas
Company Supervisor Declarations
The Gas Company additionally
provided declarations from 12 supervisors who worked at different bases, all of
whom plaintiffs had deposed. These
declarations suggested supervisors at different bases had different
expectations about what communication devices employees were required to carry,
if any.
Many of these supervisors declared
they had rarely or never called employees on their cell phones or paged
employees during meal or rest breaks to have the employee respond to an
emergency. Eleven of the twelve declared
that when they called employees, they always asked if they were available, and,
if the employee was on a meal or rest break, they told the employee they could
return the contact after the break was finished. All declared they had never disciplined an
employee for failing to respond to a call or a page.
(personally, or through dispatch) contacted an employee about an emergency,
they made known whether it was an emergency that required an immediate response
or one that could be handled after a break or ongoing order.
The supervisors further explained
the customary practices at their bases regarding the definition of “in route,â€
the personal use of company vehicles during meal and rest breaks, the
prohibition on preparing coffee, and the prohibition on meetings of two or more
employees. Some supervisors interpreted
“in route†as allowing employees to use a company vehicle to drive “a few
minutes†or “a few blocks†out of “the most direct route between two orders,â€
or to take a “reasonable detour,†or to take a “a reasonable
detour . . . as long as they are heading in the same direction
as their next order.†Several of the
supervisors indicated employees could take their breaks anywhere they wanted
“within the break timeframe.†Two
indicated their employees were allowed to drive company vehicles “farther out
of the most direct route . . . during breaks if that is how they choose to
spend their time.â€
All of the supervisors declared
employees “routinely†used company vehicles between work orders to drive to
locations such as restaurants, convenience stores, or “other locations,†to
take their meal or rest breaks. All
declared they had never disciplined an employee for using a company vehicle to
drive to a location in their assigned geographic area to take a meal or rest
period.
Most, but not all, of the
supervisors declared there was no prohibition on coffee preparation at their
bases during meal or rest periods.
name="_ftnref5" title="">[5] All noted that the issue had never come up
because employees “prefer to stop at a local coffee shop or bring beverages
from home,†or in some cases took coffee provided at the base. All of the supervisors acknowledged the
company’s prohibition on prearranged or coincidental meetings.
All but one of the supervisors
declared the requirement that company attire only be worn when performing work
did not apply to employees during meal and rest breaks, and employees were allowed
to wear uniforms or coveralls during those times. All but one further declared employees were
free to wear their coveralls and uniforms to and from work. All but one of the supervisors declared that
employees often returned to the base to shower and change out of their work
clothes while on the clock, assuming they were able to finish in the field
before the scheduled end of their shifts.
In addition, they all declared that employees were not required to boot
up computers before the start of a shift; all but one further declared
employees were not required to omit the time it takes to shut down the computer
from their time sheets.
The Gas Company’s evidence also
included an excerpt from the PMK deposition, in which Ayala testified: “I am not aware of specific restrictions [on
what employees can do during their meal and rest break times] other than they
are not supposed to be traveling long distance on a route. They are supposed to take an uninterrupted
meal break in the general proximity of where their either last order is or
their next order. [¶] . . .
[¶] . . . They get a certain
number of orders in a certain geographic area.
And they are expected to stay in that geographic area and take their
meals within a reasonable proximity of those orders.†The Gas Company also included excerpts from
several supervisor depositions, in which the supervisors testified they were
unaware of the collective bargaining provision prohibiting employees from
taking coveralls home.
Trial Court Ruling
The trial court denied the motion
for class certification. Although it
concluded plaintiffs had established the proposed class was ascertainable and
sufficiently numerous, and that the named plaintiffs would be adequate representatives,
the court determined common questions would not predominate in the litigation
of the class claims. The court found the
evidence demonstrated the Gas Company’s policy was for field employees to
receive messages, even during breaks.
However, the court explained there was no set time in which employees
were required to respond, and some employees did not respond during their meal
breaks. The court therefore concluded
“whether a class member actually responded to a message during their meal break
is a question that cannot be determined on a classwide basis because of
variations in practice.†The court
dismissed plaintiffs’ arguments regarding the prohibition on alcohol
consumption and preparation of hot beverages as irrelevant.
As to the “in route†restriction,
the court concluded the Gas Company policy involved no specific geographic
limitation and each supervisor was able to determine what was reasonable. As a result, the court concluded “[w]hether
the requirement that the class members stay ‘en route’ amounts to such a
restriction that Defendant remains in control of their meal breaks, cannot be
determined for the entire class and would require individualized analysis. In other words, there are differences in how
the rule is applied by supervisors that would create individualized questions
for putative class members.â€
The court determined plaintiffs did
not provide evidence that a rule against conducting personal business during
meal breaks was uniformly applied to the class.
Similarly, the court concluded the plaintiffs had not established a rule
prohibiting meetings of more than two persons or more than one crew was applied
to the class because the plaintiffs provided only their own declarations as
evidence. The court concluded these three
issues—whether class members’ meal breaks were interrupted by messages to which
they responded or did not respond to; the application of a rule against
personal business; and the application of the rule against class members
meeting—presented numerous individualized inquires.
On the off-the-clock work claim,
the court concluded there was no evidence any rule prohibiting putative class
members from taking coveralls home was applied uniformly to the class. Likewise, the court determined plaintiffs
provided no evidence the time employees spent booting up or turning off
computers was required to be performed off the clock.
The court found individual
questions were likely to arise in the litigation rather than common ones, thus
class treatment would not be superior or substantially beneficial to the
litigants or the court. The court
further held plaintiffs could not bring their PAGA claim as a representative
action because individual issues would predominate and a representative action
would not be manageable. The court
sustained several evidentiary objections to the Frias declaration, and also
concluded plaintiffs’ cocounsel Ken M. Fitzgerald was not qualified to act as
class counsel.
title="">[6]
Plaintiffs’ appeal timely followed.
I. Legal Principles of Class Certification
As both sides acknowledge, the
California Supreme Court recently considered issues surrounding the
certification of class action claims for meal and rest break violations in
Court (2012) 53 Cal.4th 1004 (Brinker). The court summarized the general requirements
for certification of a class: “The party
advocating class treatment must demonstrate the existence of an ascertainable
and sufficiently numerous class, a well-defined community of interest, and
substantial benefits from certification that render proceeding as a class
superior to the alternatives. (Code Civ.
Proc., § 382; [citations].) ‘In turn,
the “community of interest requirement embodies three factors: (1) predominant common questions of law or
fact; (2) class representatives with claims or defenses typical of the class;
and (3) class representatives who can adequately represent the class.†’ [Citation.]â€
(Id. at p. 1021.)
As in Brinker, the disputed issue in this case is whether individual or
common questions would predominate in any classwide litigation. The Brinker
court explained “[t]he ‘ultimate question’ the element of predominance
presents is whether ‘the issues which may be jointly tried, when compared with
those requiring separate adjudication, are so numerous or substantial that the
maintenance of a class action would be advantageous to the judicial process and
to the litigants.’ [Citations.] The answer hinges on ‘whether the
theory of recovery advanced by the proponents of certification is, as an
analytical matter, likely to prove amenable to class treatment.’ [Citation.]
A court must examine the allegations of the complaint and supporting
declarations [citation] and consider whether the legal and factual issues they
present are such that their resolution in a single class proceeding would be
both desirable and feasible. ‘As a general rule if the defendant’s
liability can be determined by facts common to all members of the class, a
class will be certified even if the members must individually prove their
damages.’ [Citations.]†(Brinker,
omitted.)
The Brinker court further explained the task of the reviewing
court: “On review of a class
certification order, an appellate court’s inquiry is narrowly circumscribed. ‘The decision to certify a class rests
squarely within the discretion of the trial court, and we afford that decision
great deference on appeal, reversing only for a manifest abuse of discretion: “Because trial courts are ideally situated to
evaluate the efficiencies and practicalities of permitting group action, they
are afforded great discretion in granting or denying certification.†[Citation.]
A certification order generally will not be disturbed unless (1) it is
unsupported by substantial evidence, (2) it rests on improper criteria, or
(3) it rests on erroneous legal assumptions. [Citations.]’
[Citations.] Predominance is a factual
question; accordingly, the trial court’s finding that common issues predominate
generally is reviewed for substantial evidence.
[Citation.] We must ‘[p]resum[e]
in favor of the certification order . . . the existence of every fact the trial
court could reasonably deduce from the record. . . .’ †(Brinker,
supra, 53 Cal.4th at p. 1022, citing Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319,
328-329 (Sav-On).)
II. The
Trial Court Did Not Abuse Its Discretion in Denying Certification
Plaintiffs contend the trial court
erred in concluding individual questions would predominate in the
litigation. Specifically, plaintiffs
argue the evidence showed specific Gas Company policies were applicable to all
putative class members. Based on those
policies, plaintiffs assert the Gas Company failed to provide class members with
legally compliant meal and rest breaks, and caused employees to work off the
clock. We separately consider the
meal/rest break claim and the off-the-clock claim.
A. Meal/Rest Breaks
1.
Relevant Legal Background
We first briefly consider the
underlying legal principles applicable to plaintiffs’ claims. Under Wage Order No. 4, “No employer shall
employ any person for a work period of more than five (5) hours without a
meal period of not less than 30 minutes . . . . Unless the
employee is relieved of all duty during a 30 minute meal period, the meal
period shall be considered an ‘on duty’ meal period and counted as time
worked.†(Cal. Code Regs., tit. 8, §
11040, subd. 11(A).) “An employer also
has a duty to authorize and permit rest breaks; the number of breaks depends on
the length of the shift. (Cal. Code
Regs, tit. 8, § 11040, subd. 12; Brinker,
supra, 53 Cal.4th at pp.
1028-1031.)†(Bradley v. Networkers International, LLC (2012) 211 Cal.App.4th
1129, 1149 (Bradley).)
Plaintiffs’ legal theory hinges on
whether the field operations employees were “relieved of all duties,†and
whether Gas Company restrictions on employee conduct converted meal periods
into “hours worked.â€
name="_ftnref8" title="">[8] Plaintiffs rely on cases such as
of Madera (1984) 36 Cal.3d 403 (Madera),
in which the California Supreme Court concluded the “substantial limitationsâ€
placed on the plaintiff police officers during their noncompensated meal
periods “converted that time into hours worked.†(Id.
at p. 409.) The court adopted a two-step
analysis that considered “whether the restrictions on off-duty time are
primarily directed toward the fulfillment of the employer’s requirements and
policies,†and “whether the employee’s off-duty time is so substantially
restricted that they are unable to engage in private pursuits.†(Ibid.) Madera
did not involve state wage and overtime laws.
But courts have since applied a similar analysis to workers in other
industries governed by state Labor Code provisions and wage orders, largely in
“on-call†contexts other than meal periods.
Thus, for example, in
to spend on the employer’s shuttle bus taking them to the fields was
compensable. (Morillion, supra, 22 Cal.4th at p. 595.) During this travel time, the plaintiff workers
were “foreclosed from numerous activities in which they might otherwise engage
if they were permitted to travel to the fields by their own transportation,â€
such as running errands requiring the use of a car or stopping for
breakfast. (Id. at p. 586.) The employer
thus prohibited the workers from “effectively using their travel time for their
own purposes.†(Ibid.) The court explained
in part, the “level of the employer’s control over its employees, rather than
the mere fact that the employer requires the employees’ activity, is
determinative . . . . [¶] . . .
[¶] . . . by requiring employees
to take certain transportation to a work site, employers thereby subject those
employees to its control by determining when, where, and how they are to
travel. Under the definition of ‘hours
worked,’ that travel time is compensable.â€
(Id. at pp. 587-588, citations
omitted; see also Seymore v. Metson
Marine, Inc. (2011) 194 Cal.App.4th 361, 373-376 (Seymore) [workers on oil spill recovery vessels; standby time
during two-week work periods]; Ghazaryan
v. Diva Limousine, Ltd. (2008) 169 Cal.App.4th 1524, 1535 (
set forth by Ninth Circuit in Berry v.
County of Sonoma (9th Cir. 1994) 30 F.3d 1174, and adopted in Department of
Labor Standards Enforcement (DLSE) opinion letter of Dec. 28, 1998].)
Similarly, in Bono
Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968 (
(1996) 14 Cal.4th 557, 574, the court concluded a DLSE decision requiring an
employer to pay employees for meal periods if the employees are required to
remain at the worksite, was consistent with the IWC wage order definition of
“hours worked†and the requirement of a duty-free meal period. (Bono,
at pp. 974-975.) The court
explained: “When an employer directs,
commands or restrains an employee from leaving the work place during his or her
lunch hour and thus prevents the employee from using the time effectively for
his or her own purposes, that employee remains subject to the employer’s
control. According to [the definition of
hours worked], that employee must be paid.â€
(Id. at p. 975; see
A 1992 DLSE opinion letter
specifically addresses the issue of whether an employee who is required to wear
a pager during a meal period is entitled to compensation for that meal period.
Madera “is not so responsive to
situations involving such use during scheduled meal periods because of the
specific requirement that meal periods be ‘duty free.’†(DLSE Opn. Ltr. No. 1992.01.28, pp.
2-3.) The DLSE then articulated the
following policy:
“If the employee is simply required
to wear a pager or respond to an in-house pager during the meal period there is
no presumption that the employee is under the direction or control of the
employer so long as no other condition is put upon the employee’s conduct
during the meal period. If, on the other
hand, the employer requires the employee to not only wear the pager or listen
for the in-house paging system, but also to remain within a certain distance of
a telephone or otherwise limits the employee’s activities, such control would
require that all of the meal period time be compensated. [¶] So
long as the employee who is simply required to wear the pager is not called
upon during the meal period to respond, there is no requirement that the meal
period be paid for. On the other hand,
if the employee responds, as required, to a pager call during the meal period,
the whole of the meal period must be compensated.†(DLSE Opn. Letter No. 1992.01.28, p. 3.)
And, more recently, in
fundamental employer obligation associated with a meal break is “to relieve the
employee of all duty and relinquish any employer control over the employee and
how he or she spends the time.†(
duty with respect to meal breaks as satisfied if the employer “relieves its
employees of all duty, relinquishes control over their activities and permits
them a reasonable opportunity to take an uninterrupted 30-minute break, and
does not impede or discourage them from doing so.†(Id.
at p. 1039.)
2. Analysis
Plaintiffs contend their meal/rest
break claim is based on the theory that field operations employees were never
relieved of all duties during breaks, even if they never were called upon to
perform any work-related duties.
Plaintiffs argue that Gas Company policy required field operations
employees to be available to respond to emergency contacts during their meal
and rest breaks. They further contend
the Gas Company uniformly applied other restrictions to putative class members
on break periods, such that the breaks were transformed into “on-dutyâ€
periods.
The Gas Company argues there is no
evidence of a uniform companywide policy regarding putative class members’
conduct except that they must respond to certain rare emergency calls, and that
policy alone is an insufficient basis of liability. It contends that to the extent there were
other conditions placed on some employees, these were not companywide policies,
thus class treatment is inappropriate because individual questions would
predominate in any determination of what those limitations were, or how
restrictive they were. To the extent
there were other companywide policies, the Gas Company contends plaintiffs’
theories based on these restrictions cannot support liability.
The issue before the trial court,
and before us, is class certification only.
“ ‘The certification question is “essentially a procedural one that does
not ask whether an action is legally or factually meritorious.†’ [Citations.]â€
(Brinker, supra, 53 Cal.4th at
p. 1023.) Whether plaintiffs’
theories of liability are ultimately valid or invalid, in considering the
predominance element, the trial court’s task was to determine “ ‘whether the
theory of recovery advanced by the proponents of certification is, as an
analytical matter, likely to prove amenable to class treatment.’ [Citation.]â€
at p. 1021.) And, Brinker instructs that “[c]laims alleging that a
group of employees is in violation of the wage and hour laws are of the sort
routinely, and properly, found suitable for class treatment.†(Id.
at p. 1033, italics added.)
In this case, then, the question
was whether plaintiffs presented substantial evidence of a systematic company
policy or policies that allegedly rendered break periods compensable as hours
worked. (See Brinker, supra, 53 Cal.4th at p. 1051 [class treatment
inappropriate where plaintiff did not present substantial evidence of
systematic company policy to require off-the-clock work].) Plaintiffs allege the failure to relieve of
duties is demonstrated by several of the Gas Company’s companywide policies
that are applicable to all putative class members. But the trial court concluded the evidence did
not demonstrate these policies were in fact uniformly applied to all putative
class members, thus requiring individualized questions as to the degree of
restraint the company imposed on individual members during their meal and rest
breaks.
We are mindful of the standard of
review: “[I]n the absence of other
error, a trial court ruling supported by substantial evidence generally will
not be disturbed ‘unless (1) improper criteria were used [citation]; or
(2) erroneous legal assumptions were made [Citation.]’ [citation].
Under this standard, an order based upon improper criteria or incorrect
assumptions calls for reversal ‘ “even though there may be substantial evidence
to support the court’s order.†’
[Citations.] Accordingly, we must
examine the trial court’s reasons for denying class certification. ‘Any valid pertinent reason stated will be
sufficient to uphold the order.’
[Citation.]†(
pp. 435-436.)
We turn first to one of the
plaintiffs’ critical allegations, that the Gas Company policies prevented
putative class members from engaging in personal business during their
breaks. Substantial evidence supported
the trial court determination that plaintiffs did not establish the existence
of a uniform, consistently applied policy, restricting employees from
conducting personal activities during their meal and rest breaks.
Initially, we note there was no
evidence that Gas Company had any policy, whether formal or informal,
explicitly prohibiting employees from conducting personal business during meal
breaks. Indeed, plaintiffs’ evidence
included deposition testimony from a Gas Company PMK witness who testified that
field operations employees are allowed to conduct personal business during
their breaks. Even the named plaintiffs
did not declare they were explicitly prohibited from conducting personal
business during breaks. However,
plaintiffs alleged a written policy prohibiting the personal use of company
vehicles and the requirement that employees stay “in route†severely limited
putative class members’ ability to engage in any personal activities. Yet, despite the written policy prohibiting
the personal use of company vehicles, there was substantial evidence before the
trial court indicating this was not a uniform prohibition consistently applied
across the company disallowing personal use of vehicles during breaks. Gas Company evidence included declarations
from multiple supervisors indicating employees under their supervision were
allowed to drive company vehicles to fast food restaurants, convenience stores,
or “other locations,†to take their meal or rest breaks. Several declared their supervisees were
allowed to take their breaks anywhere they wanted, limited only by the amount
of time they had for the break. The Gas
Company further provided evidence indicating putative class members were free
to go anywhere they wished on foot, after parking and locking the company
vehicle.
The trial court could reasonably
conclude plaintiffs did not present evidence establishing the prohibition
against personal use of company vehicles was a uniform policy consistently
applied to putative class members, particularly as it related to an alleged
restriction on conducting personal business during breaks, such that it would
be amenable to a common method of proof.
(Sav-On, supra, 34 Cal.4th at
p. 328 [“ ‘[W]here a certification order turns on inferences to be drawn
from the facts, “ ‘the reviewing court has no authority to substitute
its decision for that of the trial court.’ †’ â€].)
Similarly, there was evidence
establishing a companywide policy of requiring employees to stay “in route,â€
but there was also evidence indicating there was no uniform definition of the
term, and variations among supervisors as to their interpretation of the
requirement. While some supervisors
declared employees were given leeway during breaks so long as they were heading
in the same direction as their next order, others considered it acceptable for
employees to drive a few minutes or a few blocks out of the route during a
break; some indicated they told employees they could drive even farther afield
if that is how they wished to spend their break time.
This issue is: was there a uniformly applied companywide
policy that would allow for a common method of proof? Was there substantial evidence to support the
trial court’s finding that plaintiffs did not make a factual showing that the
policies they alleged could be established by common evidence? Given that plaintiffs’ theory of liability
depends on the level of restriction and control exercised over putative class
members during their meal breaks, substantial evidence supported the trial
court’s determination that individual questions would predominate on the issue
of whether the prohibition on personal use of company vehicles applied during
meal breaks, and the “in route†requirement, constituted a level of control
that turned the breaks into compensable time.
Plaintiffs alleged other Gas
Company policies demonstrated it exerted control over putative class members
during their meal breaks, and that these were also companywide policies. However, we need not consider each policy
individually. Plaintiffs’ theory of
liability is that the Gas Company did not provide putative class members
duty-free meal/rest periods because it did not relinquish control over
them. The legal authorities upon which
plaintiffs rely indicate the central issues are the level of control, and whether employees may use the break time for
their own purposes. (See, e.g.,
586-587; Bono, supra, 32 Cal.App.4th
at p. 975.)
For example, in
on-call time was compensable considered factors such as excessive geographical
restrictions on employee’s movements, the frequency of calls while the
employees were on call, “ ‘ “whether a fixed time limit for response was unduly
restrictive,†’ †and “ ‘ “whether the employee had actually engaged in personal
activities during call-in time.†’ †(
374; Gomez, at p. 523.) Assuming without deciding that the reasoning
of these cases would be persuasive in a case involving meal or rest breaks
rather than “standby†or “on call†time, the cases explain that the extent to
which plaintiffs are able to use the challenged time for personal activities is
a critical factor. (Seymore, at p. 374; Gomez,
at pp. 523-524.)
Here, there was substantial
evidence the Gas Company did not have a companywide policy consistently applied
to putative class members relating to the personal use of company vehicles, or
uniform geographic restrictions, that directly or indirectly limited field
operations employees’ ability to use their break time for personal
activities. (Brinker, supra, 53 Cal.4th at pp. 1033, 1051; Sav-On, supra, 34 Cal.4th at p. 338; Arenas v. El Torito Restaurants, Inc. (2010) 183 Cal.App.4th 723,
733.) Given the centrality of this
allegation to plaintiffs’ theory of liability, the trial court could reasonably
conclude individual questions would predominate in any litigation of their
claims, even if there was also evidence of some
companywide policies governing employee availability for emergencies or
restraints on employee conduct during breaks.
Two cases reaching different
results on certification illustrate the point.
In Ghazaryan, supra, 169
Cal.App.4th 1524, a limousine driver sought certification of a class action on
behalf of similarly situated drivers.
The action alleged the employer violated wage and hour laws by failing
to compensate drivers for on-call time between assignments. The Court of Appeal concluded that on the
community of interest factor, the trial court erred in denying certification
because it incorrectly focused on the difficulty of evaluating the validity of
the employer’s compensation policy in light of variations in how drivers spent
their on-call time, rather than on the reasonableness of the employer’s
policies as applied to its drivers as a whole.
(Id. at pp. 1527-1528,
1534.) The court noted the record
revealed the employer dictated to a large extent how the drivers used their
time, in part through a handbook distributed to all drivers which set forth
various policies governing drivers’ conduct and activities during the on-call
periods. The limitations described in
the handbook applied “across the board†to all drivers who had on-call
time. (Id. at p. 1536.) Although
the employer offered evidence suggesting some drivers used their on-call time
for their own purposes, the court concluded this evidence did not change the
fundamental legal question presented by the suit. The court explained: “Although individual testimony may be
relevant to determine whether these policies unduly restrict the ability of
drivers as a whole to utilize their on-call time for personal purposes, the
legal question to be resolved is not an individual one. To the contrary, the common legal question
remains the overall impact of [the employer’s] policies on its drivers, not whether
any one driver, through the incidental convenience of having a home or gym
nearby to spend his or her gap time, successfully finds a way to utilize that
time for his or her own purposes.†(
In Soderstedt v. CBIZ Southern California, LLC (2011) 197 Cal.App.4th
133 (Soderstedt), the court reached a
different result. The plaintiffs were
accountants seeking certification of a class to prosecute wage and hour claims
resulting largely from misclassification.
The plaintiffs argued their claims were subject to common proof because
the classification question could be resolved by evaluating the employer’s
policies and procedures. (
that even where an alleged misclassification involves application of a uniform
policy, individualized inquiry may be necessary “because the policy may
properly classify some employees as exempt but not others.†(Id.
at p. 153.) Although the employer
“maintained uniform internal policies,†the “evidence showed that the manner in
which those policies and standards were implemented as to each [putative class
member] varied depending on multiple factors.â€
(Id. at p. 154.) The court thus concluded substantial evidence
supported the trial court’s determination that common issues did not
predominate. (Ibid.)
We find this case to be more
similar to Soderstedt than
may be used to prove their claim that putative class members were denied
duty-free meal/rest periods, there was substantial evidence that several of
these policies were not in fact uniform or consistently applied. In Ghazarayan,
the record established, with apparently undisputed evidence, that the employer
dictated how putative class members were to use their standby time. Here, the Gas Company disputes the uniformity
and consistency of application of the critical policies plaintiffs rely upon to
support their claims. Individualized
evidence would be required to resolve simply the existence of these alleged
uniform policies, and the extent to which they were in fact applied.
Two cases decided after
contrast. In Morgan v. Wet Seal, Inc. (2012) 210 Cal.App.4th 1341 (
a trial court order denying class certification. The plaintiffs were sales employees at the
defendant’s clothing stores. They
alleged they were required to wear defendant’s merchandise, but were not
reimbursed for the merchandise they purchased to wear, and that they were not
reimbursed for mileage for their work-related travel. (Id.
at p. 1350.) Plaintiffs’ legal theory
was that the defendant’s unlawful practices were reflected in written company
policies which applied to all members of the putative class. (Id.
at p. 1346.) The trial court denied
certification, concluding individual questions would predominate as the
defendant’s company policies did not provide a common method of classwide proof
on central liability questions. (
The Court of Appeal agreed. Although the plaintiffs purported to base
their claims on the defendant’s company policies, the written policies did not
on their face support the plaintiffs’ claims.
The dress code policy did not require employees to wear defendant’s
merchandise, and the plaintiffs’ other evidence—consisting mainly of
declarations from putative class members—did not demonstrate any common dress
code practices. (Wet Seal, supra, 210 Cal.App.4th at pp. 1356-1357.) Similarly, the defendant’s written travel reimbursement
policy did not support plaintiffs’ allegations, and plaintiffs themselves
categorized the policy in practice as “hit or miss.†(Id.
at p. 1357.) Thus, the Court of Appeal
concluded the plaintiffs did not produce substantial evidence of a companywide
policy which could be used to establish classwide liability. The written policies alone did not constitute
substantial evidence that defendant engaged in unlawful practices, and the
plaintiffs’ other evidence reinforced the conclusion that liability would have
to be decided on an individualized basis.
(Id. at pp. 1362, 1364,
1368.) The employer disputed that any
unlawful policies existed, and the plaintiffs failed to establish there was any
classwide method of proof for resolving that liability question. (Id.
at pp. 1362-1363.)
In contrast, in
the appellate court applied Brinker
and reversed a trial court order denying certification to a class of allegedly
misclassified employees who were also denied meal and rest breaks. The court noted there was
defendant had “consistent companywide policies applicable to all employees
regarding work scheduling, payments, and work requirement.†(Bradley,
at p. 1147.) Irrespective of the merits
of the misclassification claim, the court explained “[t]he critical fact is
that the evidence likely to be relied upon by the parties would be largely
uniform throughout the class.†(
With respect to the meal and rest break claims, the court noted the
defendant did not present any evidence showing it had a formal or informal
policy of permitting legally required breaks, that any worker believed he or
she was entitled to take legally required breaks, that some or all workers took
the breaks, or evidence that its “meal or break policies (or the failure to
institute such policies) were different
with respect to each worker.†(
The court thus concluded,
“plaintiffs’ theory of recovery is based on [the defendant’s] (uniform) lack
of a rest and meal break policy and its (uniform) failure to
authorize employees to take statutorily required rest and meal breaks. The lack of a meal/rest break policy and the
uniform failure to authorize such breaks are matters of common proof. Although
an employer could potentially defend these claims by arguing that it did have
an informal or unwritten meal or rest break policy, this defense is also a
matter of common proof.†(
1150.) The defendant argued the issue of
which employees missed breaks, how many breaks were missed, and the reasons
employees missed breaks was highly individualized. The court acknowledged this was true, but
concluded that, under Brinker, “when
an employer has not authorized and not provided legally required meal and/or
rest breaks, the employer has violated the law and the fact that an employee may
have actually taken a break or was able to eat food during the workday does
not show that individual issues will predominate in the litigation.†(Bradley,
at p. 1151.)
Here, as in
Wet Seal, plaintiffs have alleged
they can prove their claims using evidence of companywide policies, but the Gas
Company disputes the uniformity of those policies, and plaintiffs have not
established the dispute may be resolved with common proof rather than
individualized showings. And, in
contrast to Bradley, there is no
undisputed evidence showing consistent companywide policies that uniformly
restricted putative class members’ use of company vehicles for personal use or
their movement during breaks.
We find no trial court abuse of
discretion with respect to the meal/rest break claim.
Off-the-clock Claims:
Donning/Doffing Uniforms and Computer Use
Substantial evidence also supported
the trial court finding that individual questions would predominate in
litigation of plaintiffs’ off-the-clock work claims. Plaintiffs alleged Gas Company policies
required putative class members to be dressed in a uniform or coveralls at the
start of their shift, but they were prohibited from taking their work attire
home, and were limited to wearing work attire only in the performance of work,
thus they were forced to spend uncompensated time before their shifts getting
dressed in work attire. However,
plaintiffs offered no evidence of a companywide policy prohibiting employees
from getting dressed in work clothing on the clock at the beginning of their
shifts.
that a collective bargaining agreement provision indicated workers were not to
take coveralls home with them in most cases, the Gas Company offered evidence
indicating it had waived that provision, and it was not widely known within the
company. In addition, the Gas Company
offered evidence that in practice employees were allowed to take coveralls and
uniforms home with them, and did so.
Indeed, the only evidence plaintiffs offered on this claim were their
own declarations, the collective bargaining agreement provision, and Frias’s
declaration. No substantial evidence
pointed to a uniform, consistently applied companywide policy requiring
employees to don and doff uniforms during uncompensated time, or prohibiting
class members from wearing work attire to and from their base.
Similarly, no substantial evidence
pointed to a uniformly applied, companywide policy requiring employees to boot
up or shut down their mobile computers while they were off the clock. Plaintiffs offered no evidence of any policy
relating to the booting up or shutting down of computers, and no evidence that
any employees were required by company policy or practice to engage in these
activities in off-the-clock time. Even
the named plaintiffs’ own declarations stated only that they were required to
engage in work activities before and after their shifts, without providing any
specifics. To the extent the named
plaintiffs were required to perform off-the-clock work, their evidence
indicates only that their claims arose from the individual actions of
particular supervisors. As such, the
trial court could reasonably conclude based on the evidence that individual
questions would predominate in any litigation of these claims. (Bradley,
supra, 211 Cal.App.4th at p. 1156.)
The trial court did not abuse its
discretion in denying certification of a class based on the off-the-clock
claim
| Description | Plaintiffs Eric Nelson, Juan Mejoredo, and Robert Dowling sought certification of a class action against Southern California Gas Company (the Gas Company). The plaintiffs alleged the company failed to provide meal and rest breaks in accordance with California law, and committed overtime wage violations. The trial court denied certification on the grounds that the plaintiffs failed to establish common questions would predominate in the action or that class treatment would be the superior means of resolving the litigation. We affirm the trial court order on class certification but reverse the order to the extent it purported to deny plaintiffs’ representative claim under the Labor Code Private Attorney Generals Act of 2004 (Lab. Code, § 2698 et seq.; PAGA). |
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