Daisy Vasquez et al v. TWC Administration LLC et al
Filing
63
MINUTES OF Motion Hearing held before Judge Christina A. Snyder: Defendants are entitled to summary judgment on each of plaintiffs' three liability theories. Because none of these liability theories is viable, each of plaintiffs' claims for relief must be dismissed. Accordingly, defendants' Motion for Summary Judgment 36 is GRANTED in its entirety. (Made JS-6. Case Terminated.) Court Reporter: Laura Elias. (gk)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
JS-6
Case No.
2:14-cv-07621-CAS(FFMx)
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
Present: The Honorable
Date
‘O’
May 4, 2015
CHRISTINA A. SNYDER
Catherine Jeang
Deputy Clerk
Laura Elias
Court Reporter / Recorder
N/A
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Paul Haines
Jeffrey Williams
Joseph Ozmer
Michael Kabat
Proceedings:
I.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Dkt.
No. 36, filed April 6, 2015).
INTRODUCTION
On September 2, 2014, plaintiffs Daisy Vazquez and Bryan Joseph filed this
putative class action in Los Angeles County Superior Court. Defendants TWC
Administration LLC, Time Warner Cable Inc., and Time Warner Cable NY LLC
(collectively “defendants” or “Time Warner”) removed the action to federal court on
October 1, 2014. Dkt. No. 1. On February 2, 2015, plaintiffs filed the operative Second
Amended Complaint (“SAC’). Dkt. No. 23. The SAC asserts claims for (1) failure to
pay wages in violation of California Labor Code §§ 204, 510, 558, 1194, and 1198; (2)
failure to pay wages in violation of the federal Fair Labor Standards Act, 29 U.S.C. § 201
et seq.; (3) failure to provide accurate itemized statements in violation of California
Labor Code § 225, et seq.; (4) waiting time penalties under California Labor Code §§
201–03; (5) unfair competition in violation of California Business & Professions Code §
17200, et seq.; and (6) penalties pursuant to California Labor Code § 2698, et seq.1
On April 6, 2015, defendants filed a motion for summary judgment or, in the
alternative, partial summary judgment, attacking the legal sufficiency of plaintiffs’ claims
and plaintiffs’ standing to bring them. Dkt. No. 36. Plaintiffs opposed the motion on
April 13, 2015, and defendants filed a reply on April 20, 2015. Dkt. Nos. 41, 49. On
1
Unless otherwise stated, all subsequent references to the “Labor Code” denote
provisions of the California Labor Code.
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UNITED STATES DISTRICT COURT
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Case No.
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May 4, 2015
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
May 4, 2015, the Court held a hearing on the motion. For the reasons that follow, the
motion is GRANTED.
II.
BACKGROUND
The following facts are not in material dispute. Time Warner is in the business of
providing cable, internet, phone, and other digital and entertainment services in at least
twenty-nine states. SAC ¶ 3. Plaintiffs formerly worked for Time Warner in Los
Angeles, California, and were not exempt from relevant laws requiring the payment of
overtime wages. SAC ¶¶ 9–10; Defs.’ Statement of Undisputed Facts (“SUF”) ¶ 1; Pls.’
Statement of Genuine Issues (“SGI”) ¶ 1.
The Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a)(1), requires that
employers pay non-exempt employees one-and-a-half times the “regular rate” for time
worked in excess of forty hours in a workweek. California Labor Code § 510 requires
employers to pay overtime compensation to an employee for “any work in excess of eight
hours in one workday and any work in excess of 40 hours in any one work week . . . at
the rate of no less than one and one-half times the regular rate of pay for an employee.”
Courts and the California Department of Labor Standards Enforcement (“DLSE”) “look[]
to FLSA standards to interpret the ‘regular rate of pay’ under California law.”2 Alonzo v.
Maximus, Inc., 832 F. Supp. 2d 1122, 1129 (C.D. Cal. 2011) (citing Advanced-Tech Sec.
Servs., Inc. v. Superior Court, 163 Cal. App. 4th 700, 707 (2008)). Under both California
and federal law, “wages divided by hours equals regular rate.” Overnight Motor Transp.
Co. v. Missel, 316 U.S. 572, 580 n.16 (1942), superseded by statute in other respects as
stated in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985); see also Walling v.
Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945) (defining “regular rate”
as “the hourly rate actually paid the employee for the normal, non-overtime workweek
for which he is employed”).
At all relevant times, Time Warner counted for overtime calculation purposes both
the hours plaintiffs actually worked and paid time off (“PTO”) for vacation, holiday, or
personal reasons. SUF ¶ 2; SGI ¶ 2. Thus, even if plaintiffs did not actually work eight
2
For this reason, both parties and this order engage in little separate discussion of
regular rate calculation as mandated by California law as opposed to the FLSA.
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hours in a day or forty days in a workweek, they could still be paid premium overtime
compensation if they took in that workweek PTO that, when added to the hours worked,
caused their total hours to exceed eight in a day or forty in a week. SUF ¶ 3; SGI ¶ 3.3
Additionally, Time Warner included PTO in the number of total hours by which
defendants would divide a non-exempt employee’s non-overtime compensation to
compute that employee’s “regular rate” of pay. Plaintiffs do not contend that Time
Warner ever counted PTO hours for purposes of calculating their regular rates of pay
without also counting those hours in determining whether plaintiffs were entitled to
overtime compensation and, if so, for how many hours. SUF ¶ 9; SGI ¶ 9.
For the purposes of calculating overtime compensation, Time Warner uses a
workweek that runs from Friday to Thursday. SUF ¶ 11; SGI ¶ 11. Time Warner utilized
two-week periods for paying regular wages and overtime premiums for overtime hours
worked during the workweeks in each pay period. SUF ¶ 12; SGI ¶ 12.
Plaintiffs were subject to various compensation plans that included, in addition to
their flat hourly wages, “Scorecard” compensation, which comprised commission and
other incentives. SUF ¶ 13; SGI ¶¶ 13, 21. Illustratively, Joseph’s commissions were
“based on the dollar amount paid per installed core product [and] determined based on
the total core products installed during a scorecard cycle.” SUF ¶ 14; SGI ¶ 14. This
Scorecard portion of Joseph’s compensation was calculated separately for each Scorecard
cycle based on his score on various performance benchmarks, such as productivity,
average “handle time,” and customer satisfaction. SUF ¶ 15; SGI ¶ 15. Per his
compensation plan, a higher number of Scorecard points meant a higher commission
level. SUF ¶ 16; SGI ¶ 16; Defs.’ Response to Pls.’ Statement of Genuine Issues
(“RSGI”) ¶ 16.
3
For example, during the workweek ending January 19, 2012, Vazquez worked five
days and accrued 40.5 hours of on-the-job time, but also received eight hours of holiday
pay for hours that she did not work, due to the Martin Luther King, Jr. Day holiday. SUF
¶ 4; SGI ¶ 4. Because Time Warner counts PTO in calculating overtime pay, Vazquez
was paid for 40 hours at her non-premium rate of pay, and 8.5 hours at a premium
overtime rate. SUF ¶ 5; SGI ¶ 5.
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Commissions were calculated after the completion of each Scorecard cycle, which
as relevant here ran from the 19th of one month to the 18th of the following month. SUF
¶¶ 17, 18; SGI ¶¶ 17, 18. Accordingly, these Scorecard cycles did not necessarily
coincide with defendants’ Friday through Thursday workweeks, and could start or end in
the middle of a workweek. SUF ¶¶ 19–20; SGI ¶¶ 19–20. At the end of each Scorecard
cycle, Time Warner calculated plaintiffs’ Scorecard compensation and supplemented
their overtime payments to account for that additional compensation, although plaintiffs
assert that defendants did so incorrectly. SUF ¶ 22; SGI ¶ 22. Specifically, Scorecard
incentive compensation for the fiscal month allocation period was divided evenly across
the workweeks chronologically closest to that period. SUF ¶ 23; SGI ¶¶ 23, 51; see Dkt.
No. 41-1 (DuMond Report) at 4. Defendants than paid plaintiffs the difference between
the original overtime premiums paid and the higher, restated overtime premiums (which
plaintiffs contend should have been still higher). SUF ¶ 25; SGI ¶ 25. Plaintiffs do not
contend that any incentive payments were not allocated and incorporated into their
regular rates in some fashion. SUF ¶ 26; SGI ¶ 26.
Ignoring the weeks in which plaintiffs were overpaid as a result of Time Warner’s
inclusion of PTO for determining hours worked, plaintiffs’ expert calculates that
including PTO hours in the regular rate calculation resulted in Vazquez being underpaid
by a total of $12.54 over the course of twenty-seven weeks in which she earned overtime
payments, and Joseph being underpaid by a total of $3.22 over the course of nine weeks
in which he worked overtime. DuMond Report at 10. Plaintiffs’ expert also calculates
that Time Warner’s method of allocating incentive pay across workweeks, compared to
the method plaintiffs contend would have been proper, cost Vazquez $46.98 over the
course of sixty-six weeks of economic loss, which was counterbalanced by a surplus of
$11.36 over the course of thirty-three weeks of economic surplus, resulting in a total loss
due to the alleged misallocation of $35.62. Running the same calculation for Joseph,
plaintiffs’ expert concludes that Joseph was underpaid $3.45 as a result of the purported
misallocation of incentive pay. Id. at 11.
Combining estimated losses from both complained-of policies and again excluding
the overpayment to plaintiffs as a result of receiving overtime when they would not have
under plaintiffs’ proposed methodology, DuMond estimates Vazquez’s “net loss” at
$46.70 over the statute of limitations period, and Joseph’s net loss at $6.26 over the same
period. Id. at 11. Plaintiffs do not dispute that these alleged overtime underpayments
were exceeded during the relevant period by the amount of overtime compensation
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plaintiffs received because of the inclusion of PTO hours in calculating for how many
hours, if any, the plaintiffs were owed overtime compensation.4
III.
LEGAL STANDARD
Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the initial burden of identifying relevant portions of the
record that demonstrate the absence of a fact or facts necessary for one or more essential
elements of each claim upon which the moving party seeks judgment. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the opposing party must then set out
specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c), (e). The
nonmoving party must not simply rely on the pleadings and must do more than make
“conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for
4
See Opp’n Br. at 18–19 (“Admittedly, [Time Warner] is not required to include
payments made for these non-working hours towards its employees’ overtime eligibility
. . . . [Time Warner] is correct in stating that over the course of the entire statute of
limitations period, the amount of overtime wages that it paid to Plaintiffs is more than
Plaintiffs would have received if [Time Warner] had not elected to include non-working
hours towards its employees’ overtime eligibility, but that point is irrelevant.” (emphasis
in original)). Because plaintiffs concede that the net effect of Time Warner’s policy was
to pay plaintiffs more than under the methodologies plaintiffs contend were required by
law, the Court need not resolve plaintiffs’ objections to the more precise calculations in
the declaration of J. Scott Carr. The Court notes, however, that plaintiffs do not cite any
authority for the proposition that relatively simply mathematical calculations such as
Carr’s can only be proffered by a qualified expert. See Vasserman v. Henry Mayo
Newhall Mem’l Hosp., No. CV 14-6425 MMM (PLAx), 2014 WL 6896033, at *9 (C.D.
Cal. Dec. 5, 2014) (rejecting evidentiary objection because simple calculations were not
“beyond the common knowledge of the average layman” and the objector did “not
explain why simple mathematical calculations constitute expert testimony”).
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the moving party if the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Id. at 322; see also Abromson v. Am. Pac. Corp., 114
F.3d 898, 902 (9th Cir. 1997).
In light of the evidence presented by the nonmoving party, along with any
undisputed facts, the Court must decide whether the moving party is entitled to judgment
as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d
626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the
inferences to be drawn from the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citation omitted); Valley Nat’l Bank of Ariz. v. A.E.
Rouse & Co., 121 F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving
party is proper when a rational trier of fact would not be able to find for the nonmoving
party on the claims at issue. See Matsushita, 475 U.S. at 587.
IV.
ANALYSIS
A.
Plaintiffs’ “Hours Worked” Overtime Theory
1.
Explanation of the Theory
The first issue on which defendants seek summary judgment is plaintiffs’ “hours
worked” theory, in which plaintiffs contend that Time Warner miscalculated their
overtime rates by including PTO hours in the denominator of regular rate calculations
despite “regulations that clearly state the denominator must only include ‘hours actually
worked.’ ” Opp’n Br. at 1. This theory is based on a federal regulation providing in
relevant part: “The regular hourly rate of pay of an employee is determined by dividing
his total remuneration for employment (except statutory exclusions) in any workweek by
the total number of hours actually worked by him in that workweek for which such
compensation was paid.” 29 C.F.R. § 778.109 (emphasis added). Plaintiffs reason that
the plain meaning of the emphasized language prohibits including PTO hours—which are
not “actually worked”—from the regular rate calculation. They assert that Time
Warner’s inclusion of PTO hours reduced their regular rates for weeks in which they (1)
took paid time off, (2) worked overtime, and (3) received Scorecard and commission
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payments that were factored into their regular rates, by increasing the number of hours
over which incentive payments were divided.
Defendants respond that section 778.109 must be read in conjunction with another
FLSA regulation, which provides in relevant part:
Payments which are made for occasional periods when the
employee is not at work due to vacation, holiday, illness, failure
of the employer to provide sufficient work, or other similar
cause, where the payments are in amounts approximately
equivalent to the employee's normal earnings for a similar
period of time, are not made as compensation for his hours of
employment. Therefore, such payments may be excluded from
the regular rate of pay under section 7(e)(2) of the Act and, for
the same reason, no part of such payments may be credited
toward overtime compensation due under the Act.
29 C.F.R. § 778.218(a) (emphasis added). Defendants argue that the word “may”
indicates that exclusion of PTO hours from the regular rate of pay calculation exclusion is
permissive, not mandatory. Defendants further contend that when read in conjunction
with section 218(a), “it is clear that the intent of section 778.109 was only to prohibit an
employer from including PTO in ‘hours actually worked in the event that the employer
has elected to exclude PTO from ‘total remuneration’ under section 778.218.” Mot. Br.
at 11 (emphasis in original). Defendants reason that section 778.109 is intended to
prevent an employer from “exclud[ing] PTO payments from ‘total remuneration’ yet, at
the same time, includ[ing] PTO hours in ‘hours actually worked’ ”—and not to proscribe
“the consistent, fair and highly beneficial treatment of PTO as ‘hours worked’ that
[defendants have] implemented.” Id. at 11–12. Because their policy included PTO hours
not just in the regular rate calculation, but also in determining whether plaintiffs received
overtime for “working” more than 8 hours in a day or 40 hours in a week, defendants
contend that the method was consistent with the FLSA and applicable regulations. Id. at
9.
Plaintiffs respond that in conjunction, sections 778.109 and 778.218 allow an
employer to exclude PTO payments “from the numerator in the regular rate calculation,”
but do not permit the employer to include PTO hours “in the divisor” of that calculation.
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Plaintiffs assert that this “one-way permission prevents an employer from manipulating
the calculation to the employees’ detriment, by artificially reducing the regular rate of
pay.” Opp’n Br. at 8.
2.
Discussion
At the outset, the Court notes the paucity of authority bearing on this issue. The
parties appear to agree that an employer can voluntarily include pay for hours not actually
worked in the regular rate of pay numerator, and case law supports that proposition. See
O’Brien v. Town of Agawam, 482 F. Supp. 2d 115, 117 (D. Mass. 2007) (“[N]othing in
the FLSA prevents an employer from voluntarily adding non-work pay to the regular
rate.” (citing Wheeler v. Hampton Twp., 399 F.3d 238, 244 (3d Cir. 2005))). But neither
party has cited—and the Court has not found—any case law squarely addressing the issue
of whether an employer may also include PTO hours in the divisor of the regular rate
calculation for hourly employees.
In fact, plaintiffs do not cite any case law in support of their “hours worked”
theory, relying solely on section 778.109.5 Part 778 of the FLSA regulations is an
“interpretive bulletin” that “constitutes the official interpretation of the Department of
Labor with respect to the meaning and application of the maximum hours and overtime
pay requirements contained in section 7 of the Act.” 29 C.F.R. § 778.1. The rules
contained therein do not have the force of law, but are entitled to “respect” as the DOL’s
“long-standing interpretation of the FLSA.” Russell v. Wells Fargo & Co., 672 F. Supp.
2d 1008, 1011 n.1 (N.D. Cal. 2009); see Howard v. City of Springfield, 274 F.3d 1141,
1146 (7th Cir. 2001) (explaining that regulations in Part 778 are “not entitled to
5
Plaintiffs also cite to the California DLSE’s 2002 Enforcement Policies and
Interpretations Manual [hereinafter “DLSE Manual 2002"] which provides: “The regular
bonus rate is found by dividing the bonus by the total hours worked during the period to
which the bonus applies.” DLSE Manual 2002 § 49.2.4. This provision, however, by its
terms applies to bonuses that “can be computed and paid with the wages for the pay
period to which the bonus is applicable,” which is not the case with the deferred incentive
compensation at issue here. Even if it were applicable, this regulation lacks the force of
law. Marin v. Costco Wholesale Corp., 169 Cal. App. 4th 804, 815 (2008).
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deference, although courts may rely on [them] as persuasive evidence of Congress’s
legislative and the Secretary’s regulatory intent.”).
Defendants cite two cases in support of their position that, while not directly on
point, arguably provide some interpretive guidance. Defendants first cite Aaron v. City
of Wichita, 54 F.3d 652 (10th Cir. 1995), in which salaried, non-exempt firefighters
argued that paid days off could not be included in the divisor of their regular rate
calculations. The court held that those days “were simply another form of paid vacation”
and—pursuant to the collectively bargained salaries the parties agreed should form the
basis of the regular rate numerator—were “properly included in hours to be compensated
by the regular bi-weekly salary.” Id. at 654, 656. Aaron is arguably distinguishable
because it applied a DOL regulation applicable only to salaried employees and providing
that “the regular hourly rate of pay is computed by dividing the salary by the number of
hours which the salary is intended to compensate.” Id. at 655–56 (emphasis added)
(quoting 29 C.F.R. § 778.113). Here, unlike in Aaron, the employer and employees never
negotiated a fixed salary that could be “intended to compensate” certain types of nonworking hours, and section 778.113 is not applicable. Still, section 778.109's articulation
of the general regular rate formula does not limit itself to hourly workers or exclude
salaried workers; rather, it states that section 778.113 is an “example” of the “proper
method of determining the regular rate of pay in [a] particular instance[].” 29 C.F.R. §
778.109. At the very least, Aaron belies the argument that non-working hours cannot be
included in the divisor of a regular rate calculation under any circumstances.
Defendants also cite Duplesse v. County of Los Angeles, in which firefighters
received a salary for scheduled hours, but hourly pay for fluctuating “unscheduled
hours.” 714 F. Supp. 2d 1045, 1047, 1049 (C.D. Cal. 2010). In calculating the regular
rate to be used to determine overtime pay for hours worked in excess of 192 per twentyfour day “work period,” the defendants summed “all of the employee’s non-overtime
earnings (including vacation pay, holiday pay and other pay for time not worked)” for
that work period and divided that sum by “the number of hours ‘worked’ (as that term
[was] defined in the [applicable memorandum of understanding])” in that same period.
Id. at 1050. This divisor included time paid but not actually worked, such as sick leave
and holiday shifts. Id. The court determined that this method of calculation did not
violate section 778.109, and in doing so implicitly accepted the proposition that an
employer may include in the regular rate denominator hours compensating the employee
for time not actually at work, while also including the compensation for those non-work
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hours in the numerator. See id. at 1055–56. However, unlike in this case, the Duplesse
plaintiffs did not argue that the defendant’s overtime calculations violated section
778.109 because of the inclusion of these non-work hours in the denominator.6 In fact,
because those non-work hours were paid at the higher of two hourly rates the plaintiffs
received, id. at 1049–50, and the plaintiffs did not receive commission or bonus pay, such
an argument would have made no sense because including the non-work pay and hours in
the regular rate calculation could not decrease the regular rate for any work period.
The only other arguably relevant case law the Court has found is Marin v. Costco
Wholesale Corp., 169 Cal. App. 4th 804 (2008), in which the California Court of Appeal
held under California law and the FLSA that vacation hours “paid but not worked, as well
as total hours worked, can properly be included in the divisor when setting the regular
rate” with regard to a productivity bonus based on hours compensated because such hours
“contributed to the bonus.” Id. at 817, 820. In that case, however, the bonus to be
divided was based on hours paid, so that the vacation hours directly contributed to its
amount. Here, PTO hours contributed to plaintiffs’ eligibility for overtime, but did not
factor into the amount of the incentive pay to be included in plaintiffs’ regular rate of
pay. Still, viewed as a whole, what little case law there is bolsters defendants’ contention
that it is permissible to include compensated non-work hours in the regular rate
calculation, so long as the pay tied to those hours is also incorporated into that
calculation.
Additional (albeit similarly attenuated) support for this position can be found in an
opinion letter issued by the Department of Labor. In that letter, the DOL considered a
collective bargaining agreement providing “that certain vacation leave hours shall be
considered hours actually worked in determining the overtime to be paid under the
[collective bargaining agreement].” Dep’t of Labor Opinion Letter of May 30, 1986,
1986 WL 1171134, at *1. The agency wrote:
Where it is a custom or practice to pay employees for hours
during which no work is performed due to vacation, holiday,
illness, failure of the employer to provide sufficient work, or
6
Rather, they argued that the defendants were required to include additional
bonuses in their regular rates.
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other similar cause, as those terms are explained in section
778.218 . . . it is permissible (but not required) for the employer
to count those hours as hours worked in determining whether
overtime pay is due.
Id. at *2 (emphasis added). Admittedly, this opinion letter states that non-work hours can
be counted “as hours worked” for “determining whether overtime pay is due,” not for
calculating the regular rate. Still, it casts further doubt on plaintiffs’ contention that
“hours actually worked” must be given plaintiffs’ controlling meaning. Moreover,
informing the party that had requested the opinion letter that their system appeared to
comply with the FLSA, the DOL did not caution that an employer including non-work
hours in the overtime must not also include those hours in the regular rate calculation.
Defendants also persuasively argue that section 778.109 should not be read to
proscribe the challenged policy because including PTO hours in the numerator and
denominator of regular rate calculations can only reduce an employee’s compensation for
a workweek in which she receives overtime pay for working longer than eight hours in a
day (which triggers overtime compensation under California law), and not when she
receives overtime pay for “working” longer than forty hours in a workweek (which
triggers overtime compensation under both federal and California law). Defendants
highlight that for every workweek plaintiffs’ expert identifies as underpaid due to the
“hours worked” policy, that underpayment related to daily, not weekly, overtime. See
Reply at 6 (citing DuMond Report Ex. B). This is because under defendants’ system, the
inclusion of PTO can only reduce an employee’s overtime compensation in weeks that
she (1) earns incentive compensation, (2) takes PTO, (3) accrues daily overtime, and (4)
does not accrue additional weekly overtime as a result of the inclusion of PTO as “hours
worked.” Id. at 5–6. Given that plaintiffs’ theory relies exclusively on a DOL regulation
interpreting the FLSA, that the practice they challenge can only lead to underpayment
under state law dramatically weakens plaintiffs’ theory. Moreover, although plaintiffs are
correct that overtime must be calculated and paid on a workweek-by-workweek basis, the
undisputed fact that defendants’ policy has resulted in a net overpayment of overtime for
both plaintiffs further weighs against the persuasive force of plaintiffs’ interpretation.
Because plaintiffs cite no authority in support of their “hours worked” liability
theory other than a non-binding interpretive regulation that appears unlikely to have been
issued with the challenged practice in mind, and because what little case law there is on
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CIVIL MINUTES - GENERAL
Page 11 of 20
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
‘O’
JS-6
Case No.
2:14-cv-07621-CAS(FFMx)
May 4, 2015
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
related issues appears to cut against plaintiff’s interpretation, the Court concludes that
defendants cannot be held liable under the FLSA or California law incorporating FLSA
standards for their practice of counting PTO hours in both the numerator and
denominator of regular rate calculations. Accordingly, the Court GRANTS summary
judgment on each of plaintiffs’ claims insofar as they are premised on this theory.
B.
Plaintiffs’ “Misallocation” Overtime Theory
Plaintiffs’ second theory proceeds from the facts that plaintiffs worked varying
hours during Time Warner’s defined Friday-through-Thursday workweeks, and received
Scorecard incentive payments determined for periods running from the 19th of one month
to the 18th of the next, so that these “Scorecard cycles” often began and ended in the
middle of defined workweeks. Plaintiffs argue that because the Scorecard cycles did not
coincide with plaintiffs’ workweeks, defendants were required “to first calculate, and
allocate, the bonus and commission to the actual working hours within that Scorecard
Cycle before calculating the regular rate for the workweek”—rather than allocating the
incentive compensation evenly across the five workweeks chronologically closest to the
Scorecard Cycle. Opp’n at 4. Plaintiffs contend that defendants’ equal allocation across
workweeks had the effect of shifting some incentive pay earned during weeks in which
the plaintiffs worked overtime to weeks in which the plaintiffs did not work overtime.
See DuMond Report at 7–9. Therefore, they contend, the regular rate was artificially
lowered for workweeks in which plaintiffs (1) worked overtime and (2) worked more
hours than in the average of the workweeks covered by the applicable Scorecard Cycle.
Plaintiffs maintain that because Time Warner tracks the number of hours worked on a
daily basis, defendants could have and should have determined the number of hours
worked during each Scorecard Cycle and allocated incentive pay evenly among those
hours for overtime calculation purposes.7
7
Defendants argue that plaintiffs changed their misallocation theory on the eve of
summary judgment, and that the Court should not consider their characterization of it
under Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000) (affirming
dismissal of liability theory not pled or otherwise raised before summary judgment).
Although plaintiffs’ interrogatory responses arguably failed to paint a clear picture of the
methodology plaintiffs now contend should have been used, defendants were
indisputably put on notice of the methodology plaintiffs advance in their opposition
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Page 12 of 20
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
‘O’
JS-6
Case No.
2:14-cv-07621-CAS(FFMx)
May 4, 2015
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
According to plaintiffs’ retained expert, defendants’ improper allocation
methodology “affects any workweek in which the employee worked overtime and earned
Incentive Pay, where the workweek does not coincide exactly with” a Scorecard cycle,
which occurred in approximately two-thirds of plaintiffs’ workweeks during the relevant
time period. DuMond Report at 10. DuMond admits that Time Warner’s method does
not result in a lower regular rate calculation as compared to plaintiffs’ methodology in
every week; in fact, it resulted in a higher regular rate for Vazquez in thirty-three weeks
(compared to sixty-six weeks with a lower rate), and for a higher rate for Joseph in twelve
weeks (compared to eighteen weeks with a lower rate). Id. at 10–11. Still, DuMond
contends that Time Warner’s allocation system “systematically understates Plaintiffs’
overtime pay compared to an allocation method that is based on actual work hours, since
the number of overtime hours is positively and statistically significantly correlated with
work hours.” Id. at 10. As stated above, plaintiffs estimate that their proposed method
would have resulted in Vazquez being paid $35.62 more, and Joseph being paid $3.45
more, over the relevant time period. Id. at 11.
Plaintiffs cite no case law in support of their misallocation theory, but instead rely
again on their reading of the DOL’s interpretive regulations. The Court analyzes
plaintiffs’ theory separately with regard to commission compensation and other
Scorecard incentive payments that plaintiff terms “bonus” compensation.
1.
Commission Payments
Under some compensation plans, commission is paid on a weekly basis, and can be
added to the employer’s other earnings when the employee is paid for that workweek.
See 29 C.F.R. § 778.118. However,
If the calculation and payment of the commission cannot be
completed until sometime after the regular pay day for the
workweek, the employer may disregard the commission in
computing the regular hourly rate until the amount of
before defendants filed their motion for summary judgment. For this reason, the Court
considers the merits of plaintiffs’ opposition on the misallocation theory rather than
holding plaintiffs to defendants’ interpretation of plaintiffs’ prior discovery responses.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
‘O’
JS-6
Case No.
2:14-cv-07621-CAS(FFMx)
May 4, 2015
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
commission can be ascertained. . . . When the commission can
be computed and paid, additional overtime compensation due
by reason of the inclusion of the commission in the employee's
regular rate must also be paid. To compute this additional
overtime compensation, it is necessary, as a general rule, that
the commission be apportioned back over the workweeks of the
period during which it was earned. The employee must then
receive additional overtime compensation for each week during
the period in which he worked in excess of the applicable
maximum hours standard.
Id. § 778.119. The DOL’s regulation on “deferred commission payments not identifiable
as earned in particular workweeks” provides that “[i]f it is not possible or practicable to
allocate the commission among the workweeks of the period in proportion to the amount
of omission actually earned or reasonably presumed to be earned in each week, some
other reasonable and equitable method must be adopted.” Id. § 778.120. The same
regulation approves the following methods:
(a) Allocation of equal amounts to each week. Assume that the
employee earned an equal amount of commission in each week
of the commission computation period and compute any
additional overtime compensation due on this amount.
....
(b) Allocation of equal amounts to each hour worked.
Sometimes, there are facts which make it inappropriate to
assume equal commission earnings for each workweek. For
example, the number of hours worked each week may vary
significantly. In such cases, rather than following the method
outlined in paragraph (a) of this section, it is reasonable to
assume that the employee earned an equal amount of
commission in each hour that he worked during the commission
computation period. The amount of the commission payment
should be divided by the number of hours worked in the period
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Page 14 of 20
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
‘O’
JS-6
Case No.
2:14-cv-07621-CAS(FFMx)
May 4, 2015
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
in order to determine the amount of the increase in the regular
rate allocable to the commission payment.
Id.
Plaintiff argues that defendants violated these regulations because “a true
proportional workweek allocation is required unless the employer can prove that it is ‘not
possible or practicable’ to do so.” Opp’n Br. at 15. Plaintiffs also point out that the
method they assert should have been used—dividing commissions across the hours
within a Scorecard cycle, rather than the workweeks that fell within or overlapped with
the Scorecard cycle—is approved by section 778.120(b). Id. at 15–16.8 But in
conjunction, these arguments are puzzling. Section 778.120 approves dividing
commission equally across hours worked within a commission calculation period as one
of two “reasonable and equitable method[s]” that might be appropriate if “it is not
possible or practicable to allocate the commission among the workweeks of the period in
proportion to the amount of omission actually earned or reasonably presumed to be
earned in each week.” The method Time Warner used instead—dividing the
commissions evenly across workweeks—is approved by section 778.120(a) as another
exemplar of what might be a reasonable and equitable method in a situation in which
commissions cannot practicably be apportioned to the actual workweeks in which they
were earned. Therefore, if defendants’ method for allocating commissions is
impermissible because it was in fact “practicable” to allocate those commissions across
8
Plaintiffs characterize their methodology as “allocat[ing] bonus and commissions
to the actual working hours it was earned.” Opp’n Br. at 15. But their method does not
actually do so; rather, it assumes that the commissions were earned evenly across all
hours worked in the Scorecard cycle. See id. at 5 (“To comply with the law, [defendants]
needed to simply total all Scorecard bonus and commissions during a Scorecard Cycle,
divide it by the hours actually worked in that same cycle, and allocate the amount of
bonus/commission earned to each of those hours. For example, if one of the plaintiffs
earned $300 in ‘Scorecard’ bonus and commissions by only working thirty hours during
that Scorecard Cycle, the plaintiff would have $10.00 in commissions/bonuses allocated
to each hour of work . . . .”). This may be a more precise method of estimation, but it is
not a method for allocating incentive payments to the “actual working hours” in which
such payments were earned.
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Page 15 of 20
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
‘O’
JS-6
Case No.
2:14-cv-07621-CAS(FFMx)
May 4, 2015
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
the weeks in which they were actually earned, plaintiffs’ proposed method would be
impermissible as well. Moreover, defendants offer an unrebutted explanation for why
commissions could not practicably be assigned to the workweek in which they were
actually earned: commissions are earned on the installation date, which can be separated
from the sale date by weeks and can occur while employees are not working, and cannot
be calculated until the end of the fiscal month cycle because of the Scorecard system.
Plaintiffs also argue that their methodology was required because it was
unreasonable to assume that plaintiffs earned equal commission amounts in each
workweek “due to the variance in working hours, amounts earned, and the overlap
between Scorecard cycles and workweeks.” Opp’n Br. at 17. In support, they point to
their expert’s calculation that, while employed by defendants, Vazquez worked an
average of 36.25 hours per week, with a standard deviation in weekly hours of 8.01, and
Joseph worked an average of 38.73 hours, with a standard deviation of 5.89 hours. See
DuMond Report at 12 & Ex. B. Plaintiffs’ expert also calculated that Vazquez’s monthly
incentive pay averaged $405.73 during her employment, with a standard deviation of
$283.06, and Joseph’s monthly incentive pay averaged $537.69, with a standard
deviation of $344.76. See id. Plaintiffs argue that because of this variation, an hoursbased method of allocating commission had to be used.
Defendants respond that their method was reasonable and equitable, and therefore
lawful. In support, they cite a DOL opinion letter stating:
section 778.120 of 29 CFR Part 778 permits a choice of
allocating equal amounts of commission either to each
workweek or to each hour worked. Once the choice has been
made, the method of allocation may not be changed in a way
which has the intent or effect of evading the regular rate
requirements of section 7(i).
Dep’t of Labor, Opinion Letter of July 13, 1982, 1982 WL 213487, at *1 (emphasis
added); see also Ming W. Chin, et al., Rutter California Practice Guide: Employment
Litigation § 11:961 (“Where commissions cannot be apportioned to particular workweeks
in which [they were] earned, the commissions are apportioned on an average basis to the
total period of weeks in which [they were] earned to yield an average weekly
commission.” (citing 29 C.F.R. § 778.120)). Defendants contend that their methodology
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Page 16 of 20
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
‘O’
JS-6
Case No.
2:14-cv-07621-CAS(FFMx)
May 4, 2015
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
was reasonable and equitable because it is endorsed by section 778.120, and that they are
not required to show that it is more reasonable or equitable than plaintiffs’ proposed
methodology. Further, defendants argue that their method is simpler to administer than
plaintiffs’, and that assuming incentive pay was earned evenly across the workweeks in
each Scorecard cycle was reasonable because plaintiffs generally worked approximately
eight hours a day and forty hours a week, and much of the variation in working hours to
which plaintiffs point comes from taking paid time off or working limited overtime.
Defendants argue that such variation “cannot be the deciding factor because all types of
non-exempt employees take time off and work overtime.” Reply Br. at 15–16 (emphasis
in original).
Defendants have the better of the argument. For the reasons stated above, by
arguing for equal division across hours, plaintiffs effectively concede that commissions
could not practicably be allocated to the workweeks in which the commissions were
“actually” earned. Therefore, plaintiffs’ argument boils down to the proposition that
defendants’ method, expressly approved by section 778.120 and described as a
permissible “choice” in a DOL opinion letter, was unlawful in this instance because the
other example given by section 778.120 would have resulted in plaintiffs being paid a
few dollars more per year. Plaintiffs cite no authority in support of this argument.
Simply put, where commission cannot be precisely allocated to the workweeks in which
it was earned, the regulation on which plaintiffs rely does not require that an employer
use the best possible estimation method from an employees’ perspective, but rather one
that is reasonable and equitable. On the undisputed facts, the Court concludes that there
is no triable issue of fact as to whether defendant’s allocation methodology was
reasonable and equitable. Accordingly, the Court GRANTS defendants’ motion for
summary judgment on plaintiffs’ misallocation theory as it pertains to commissions.
2.
Scorecard Bonus Payments
Similarly, bonus payments considered part of an employee’s regular rate are
sometimes not calculated until after other workweek compensation is paid. In this
situation:
the employer may disregard the bonus in computing the regular
hourly rate until such time as the amount of the bonus can be
ascertained. Until that is done he may pay compensation for
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Page 17 of 20
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
‘O’
JS-6
Case No.
2:14-cv-07621-CAS(FFMx)
May 4, 2015
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
overtime at one and one-half times the hourly rate paid by the
employee, exclusive of the bonus. When the amount of the
bonus can be ascertained, it must be apportioned back over the
workweeks of the period during which it may be said to have
been earned. The employee must then receive an additional
amount of compensation for each workweek that he worked
overtime during the period equal to one-half of the hourly rate
of pay allocable to the bonus for that week multiplied by the
number of statutory overtime hours worked during the week.
29 C.F.R. § 778.209(a). DOL regulations also speak to the “[a]llocation of bonus where
bonus earnings cannot be identified with particular workweeks”:
If it is impossible to allocate the bonus among the workweeks
of the period in proportion to the amount of the bonus actually
earned each week, some other reasonable and equitable method
of allocation must be adopted. For example, it may be
reasonable and equitable to assume that the employee earned an
equal amount of bonus each week of the period to which the
bonus relates, and if the facts support this assumption additional
compensation for each overtime week of the period may be
computed and paid in an amount equal to one-half of the
average hourly increase in pay resulting from bonus allocated to
the week, multiplied by the number of statutory overtime hours
worked in that week. Or, if there are facts which make it
inappropriate to assume equal bonus earnings for each
workweek, it may be reasonable and equitable to assume that
the employee earned an equal amount of bonus each hour of the
pay period and the resultant hourly increase may be determined
by dividing the total bonus by the number of hours worked by
the employee during the period for which it is paid.
Id. § 778.209(b).
Although plaintiffs stress that the DOL issued separate interpretive regulations for
commissions and bonus, plaintiffs’ theory fails with regard to bonuses for essentially the
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Page 18 of 20
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
‘O’
JS-6
Case No.
2:14-cv-07621-CAS(FFMx)
May 4, 2015
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
same reasons it fails with regard to commissions. Although plaintiffs argue that it was
not “impossible to allocate the bonus among the workweeks of the period in proportion to
the amount of the bonus actually earned each week,” the method plaintiffs insist should
have been used (equal division across hours) is one of two methods the applicable
regulation approves when such an actual allocation cannot be made. The applicable
regulation also expressly states that defendants’ chosen method of dividing bonus equally
among workweeks “may be reasonable and equitable,” and the Court is not persuaded
that such a method was unreasonable in this circumstance merely because plaintiffs
sometimes worked slightly more or less than forty hours per week, or took paid time off.
Indeed, that the regulation on which plaintiff relies is an overtime regulation and
contemplates bonuses being impossible to precisely allocate presumes some level of
variation in both hours work and compensation received. Moreover, plaintiffs cite no
relevant legal authority in support of their position aside from 778.209 itself, which uses
conditional and permissive language. See id. (“[I]f there are facts which make it
inappropriate to assume equal bonus earnings for each workweek, it may be reasonable
and equitable to assume that the employee earned an equal amount of bonus each hour of
the pay period and the resultant hourly increase may be determined by dividing the total
bonus by the number of hours worked by the employee during the period for which it is
paid.” (emphasis added)).9 For these reasons, plaintiffs’ argument that defendants were
legally required to divide bonus incentives on an hourly basis fails, and the Court
GRANTS summary judgment on each of plaintiffs’ claims to the extent they are
premised on this theory.
C.
Plaintiffs’ “Piece-Rate” Theory
In addition to their overtime-related theories, the SAC asserts that Time Warner
was required to, and failed to, provide wage statements that itemized the transactions for
which plaintiffs earned commissions. The SAC alleges that the “ ‘commissions’ are in
fact piece-rate wages, since their value is set according to a predetermined per-unit
schedule, and not the total value” of sales. SAC ¶¶ 16. It also alleges that Time Warner
“fail[ed] to list the number of piece-rate units and respective piece-rates sold for the
mislabeled ‘commissions.’ ” Id. ¶ 21(d). Defendants moved for summary adjudication
9
As indicated in note 5, supra, the passage from the 2002 DLSE Manual that
plaintiffs cite is inapposite.
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Page 19 of 20
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date
‘O’
JS-6
Case No.
2:14-cv-07621-CAS(FFMx)
May 4, 2015
Title
DAISY VAZQUEZ, ET AL. v. TWC ADMINISTRATION LLC, ET AL.
of this theory. Mot. at 18–20. In their opposition brief, plaintiffs concede that this theory
“may be dismissed.” Opp’n at 23. Accordingly, the Court GRANTS defendants’ motion
insofar as it seeks to dismiss the piece-rate theory of liability.
V.
CONCLUSION
As set forth above, defendants are entitled to summary judgment on each of
plaintiffs’ three liability theories. Because none of these liability theories is viable, each
of plaintiffs’ claims for relief must be dismissed. Accordingly, defendants’ motion for
summary judgment is GRANTED in its entirety.
IT IS SO ORDERED.
00
Initials of Preparer
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:
08
CMJ
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