Novoa v. Charter Communications, LLC

Filing 38

ORDER Granting in Part and Denying in Part Defendant's #17 Motion for Partial Summary Judgment, signed by District Judge Anthony W. Ishii on 4/21/2015. (Gaumnitz, R)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 LUIS NOVOA, individually, and on behalf of other members of the general public similarly situated, 12 13 14 15 1:13-cv-1302-AWI-BAM ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff, v. CHARTER COMMUNICATIONS, LLC, a Delaware limited liability company; and DOES 1 through 100, inclusive, 16 Defendants. __________________________________/ 17 18 I. Introduction 19 20 On May 20, 2014, Defendant Charter Communications, LLC (“Defendant”), filed a 21 motion for partial summary judgment. On June 16, 2014, Plaintiff Luis Novoa (“Plaintiff”), filed 22 his opposition. Defendant‟s reply was filed on June 23, 2014. 23 Defendant‟s seeks summary adjudication as to all of Plaintiff‟s claims that originated 24 prior to May 24, 2010, Plaintiff‟s commute time compensation claim, Plaintiff‟s meal period and 25 rest period denial claims, and Plaintiff‟s defective wage statement claim. 26 For the following reasons, Defendant‟s motion for summary judgment will be granted in 27 part and denied in part. 28 1 1 II. Background 2 Defendant is a video, internet, and telephone service provider to residential and business 3 customers in certain regions of California. As part of providing those services, Defendant must 4 employ broadband installers or broadband technicians to install, repair, or disconnect services. 5 Defendant also employs quality assurance inspectors and field auditors who review work 6 performed by broadband installers for compliance with Defendant‟s installation standards. 7 Plaintiff worked for Defendant as a broadband technician from 2005 until 2010. 8 Deposition of Luis Novoa (“Pltf. Dep.”) at 21:19-22:4. Plaintiff represents that his 9 responsibilities included handling service calls, sales, and quality assurance work at customer 10 locations in Southern California. Doc. 20 at 7. That description of Plaintiff‟s job duties roughly 11 tracks with the job description provided by Defendant: “perform basic to advanced 12 troubleshooting and repair for services from tap to [customer] for residential customers, and 13 occasionally for commercial customers. Completes disconnects, downgrades, upgrades, and all 14 installations as business needs dictate.” Declaration of Stacy Gannon, Doc. 17-3 at 9-12 15 (“Gannon Decl.”) at ¶ 3, Defendant‟s Exhibit B-1; Pltf. Dep. at 27:7-28:8. In 2010, Plaintiff‟s job 16 duties changed and he transitioned from the role of broadband technician to quality assurance 17 inspector. Pltf. Dep. at 22:1-24. As quality insurance inspector Plaintiff indicated that his 18 primary role was verifying that service installations were done according to Defendant‟s 19 standards. Pltf. Dep. at 23:1-10. That description also mirrors the job description proffered by 20 Defendant: “verify that the customer premise (sic) and wiring and services meet all company 21 installation and service specifications.” Gannon Decl. at ¶ 3, Exh. B-1; Pltf. Dep. at 31:7-15. 22 Defendant submits that while Plaintiff worked as a broadband technician, he was 23 instructed to drive his assigned company vehicle to his first appointment and to arrive at 8:00 24 a.m. Defendant‟s Statement of Undisputed Facts, Doc 17-2 (“Doc. 17-2”) at ¶10.1 Defendant 25 provided Plaintiff and the other broadband technicians the option to drive their work vehicles 26 27 28 1 That contention is largely undisputed. However, Plaintiff makes the reservation that he was required to report to the Charter facility before his first appointment when he served a dual role as a broadband tech and a quality assurance inspector. Plaintiff‟s Response to Defendant‟s Undisputed Facts, Doc. 24 (“Doc. 24”) at ¶ 10; Plft. Dep. at 46:2-7; 102:4-9. 2 1 home each night rather than leave them at one of Defendant‟s facilities. Declaration of Terri 2 Stephenson (“Stephenson Decl.”) at ¶ 5; Pltf. Dep 53:9-54:7; see Defendant‟s Exhibit B-7 3 (“Timekeeping Memo 2009”). During his time as a broadband technician, Plaintiff always 4 elected to keep his service vehicle at home. Pltf. Dep. at 33:2-19. 5 On November 9, 2009, Defendant issued a memorandum to Plaintiff and the other 6 broadband technicians detailing the requirements for timekeeping, providing alternative methods 7 for those who take their company vehicles home and those who do not. See Timekeeping Memo 8 2009. Defendant provided updates annually. See Defendant‟s Exhibits B-8 (“Timekeeping Memo 9 2010”), C (“Timekeeping Memo 2011”), and D (“Timekeeping Memo 2012”). When the 10 broadband technicians elected home-start (take their vehicles home with them) they were 11 required to bring a signal level meter, PDA, laptop, work orders, and any payments from 12 customers (“Daily Kit”), from the vehicle and to their home at the end of their shift and return it 13 to their vehicle at the beginning of their next shift. Timekeeping Memos 2009-2012. Broadband 14 technicians were then required to do a visual inspection of the exterior of the vehicle for any 15 obvious safety hazards. Id; Plaintiff‟s Exhibit N, Doc. 22 at 113-115. Once those two items were 16 completed, the broadband technicians were to turn on their PDA, receive their first assignment, 17 enter their status as “en route,” and proceed to their first service call. Timekeeping Memos 200918 2012; Pltf. Dep. at 51:1-3. They were not compensated for the time that it took to complete any 19 of those activities. 20 Office-start employees (those who elected not to take their company vehicles home with 21 them), were required to be at a company location at the start of their shift. Timekeeping Memos 22 2009 at 3, 2010 at 4, 2011 at 4, and 2012 at 4. Office-start employees did not engage in any of 23 the aforementioned preparatory activities (e.g. loading their Daily Kits, turning on their PDAs) 24 until they were on the clock. Id. 25 Defendant imposed a vehicle policy on all employees who drove one of Defendant‟s 26 vehicles. See Plaintiff‟s Exhibit D, Doc. 21 (“Vehicle Policy”) at 44-57. That policy restricted 27 use of a company vehicle to: performing job-related duties, transporting other employees while 28 driving for company purposes, and travelling between the driver‟s work assignment and 3 1 residence at the beginning and end of the work day. Vehicle Policy at 45, 51-52. Activities 2 prohibited by the policy included, in part: any personal uses or transporting any family member, 3 friend, or any other person. Vehicle Policy at 45, 52. Additionally, Plaintiff alleges that, while he 4 operated a company vehicle, he was required to remain in uniform, was not permitted to use his 5 personal cell phone, and “had to listed to the radio at a low volume and could only listen to 6 appropriate channels.” Pltf. Decl. at ¶ 7. 7 Broadband technicians were compensated for their work at the beginning of their 8 scheduled shift. For a home-start employee, at the shift‟s start the technician is expected to be at 9 the first service call and is required to enter their status as “on job” in his or her PDA. 10 Timekeeping Memos 2009-2012; Pltf. Dep. at 51:4-8. Broadband technicians were instructed not 11 to “conduct any work or communicate with any customer, co-worker, supervisor, or dispatcher” 12 during their commute. Timekeeping Memos 2009 at 2, 2010 at 2, 2011 at 2, and 2013 at 2. The 13 memorandum also instructed technicians who arrived at the service location prior to their shift 14 start time not to “contact the customer, fill out paperwork or perform any other work before the 15 scheduled shift start time.” Id. The memorandum further instructed that employees were to 16 record all hours worked, even if the technician started work prior to his or her scheduled shift in 17 violation of policy. Id. 18 Each service call was scheduled within window of time. Defendant “set routes for 19 broadband techs, notifying them of which customers they were supposed to visit in [each] 20 window of time.” Doc. 24 at ¶ 11. The service windows were set such that nothing was 21 scheduled between 12:00 p.m. and 1:00 p.m. to provide a lunch break for the broadband 22 technicians. Doc. 17-2 at ¶ 14. Although Plaintiff does not dispute that he was scheduled a one23 hour meal period, he contends that the policy precluding him from “walk[ing] off the service call 24 to take a meal period” prevented him from taking a lunch break until after his fifth hour of work. 25 Doc. 24 at ¶ 14; Declaration of Luis Novoa (“Pltf. Decl.”) at ¶ 9. Defendant‟s employees were 26 instructed to record their meal breaks in Defendant‟s “eTime” system using the provided PDAs. 27 Pltf. Dep. at 116:13-117:13; Charter Memorandum: “Meal Periods and Rest Breaks for 28 California Employees,” Doc. 14-4 at 31 (“Dfdt. Meal and Rest Policy”) at 1; Employee 4 1 Transactions and Totals – CA Rest Meal Break Report, Doc. 17-4 at 17-24 (“Break Report”) at 2 1. When Plaintiff failed to record a lunch break in the eTime system he was compensated for an 3 hour of work. See Defendant‟s Exhibit B-24, Doc. 17-3 at 183; Gannon Decl. at ¶ 18. However, 4 when Plaintiff took meal periods later than five hours into his shift he was not paid any 5 additional compensation or penalty. See Plaintiff‟s Exhibit F, Doc. 22 at 2-31. 6 Defendant also had a policy that required employees to take two paid ten-minute breaks 7 per eight-hour shift. Pltf. Dep. at 80:8-23; see Break Report at 1. Defendant did not record and 8 did not require its employees to record rest breaks. See Break Report at 1. Plaintiff alleges that 9 the policy precluding him from leaving a service call and the time variations inherent in the time 10 estimation system prevented Plaintiff from taking rest breaks. Pltf. Decl. at ¶ 9; Pltf. Dep. at 11 80:8-23 (“there was not time in the day to take [rest breaks].). However, Plaintiff never made any 12 internal complaint related to working off-the-clock, meal period, rest periods or wage statements. 13 Pltf. Dep. at 159:3-14. 14 It is undisputed that Defendant used a point system for scheduling service calls. Doc. 24 15 at 15; Pltf. Dep. at 133:10-15; Stephenson Decl. at ¶ 19. Each point represented an estimated five 16 minutes of project time. Id. It is also undisputed that each tech was only assigned eighty to eighty 17 five points in one particular day. See Doc. 24 at 16 (disputing that Plaintiff was able to finish all 18 of the work Defendant required of him within 8 hours but not that 80-85 points were assigned 19 each day); Pltf. Dep. at 133:16-19. 20 Defendant‟s time keeping memorandum provides a procedure for home-start broadband 21 technicians to clock out after all service calls are completed. See Timekeeping Memos 200922 2012. The procedure provides that, after the last service call, the technician is to secure all 23 equipment in the vehicle, notify the dispatcher that all work has been completed, enter a logged 24 off status in the PDA, and record all hours worked on the timesheet. Id. at 3. After that procedure 25 has been completed, the employee receives no further compensation for activities in that work 26 day. Id. Once that procedure has been completed the employee is advised to “commute to [his or 27 her] residence,” and not to “conduct any work or communicate about work with any customer, 28 co-worker, supervisor, or dispatcher.” Id. Once the technician arrives at home, he or she is 5 1 required to set safety cones, lock the vehicle, and remove the Daily Kit from the vehicle to be 2 secured in the technician‟s home. Id. 3 4 III. Legal Standard The Federal Rules of Civil Procedure provide for summary judgment when “the movant 5 shows that there is no genuine dispute as to any material fact and the movant is entitled to 6 judgment as a matter of law.” Fed. R. Civ. P. 56(a). Early resolution of issues that present no 7 dispute genuine dispute of material fact serves a principal purpose of Rule 56 – disposing of 8 unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) 9 The party moving for summary judgment bears the initial burden of “informing the 10 district court of the basis for its motion, and identifying those portions of „the pleadings, 11 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 12 any,‟ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 13 477 U.S. at 323; see Fed. R. Civ. P. 56(c)(1)(A). “Where the non-moving party bears the burden 14 of proof at trial, the moving party need only prove that there is an absence of evidence to support 15 the non-moving party‟s case.” In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th 16 Cir. 2010) (citing Celotex, 477 U.S. at 325). If the moving party meets its initial burden, the 17 burden shifts to the non-moving party to present evidence establishing the existence of a genuine 18 dispute as to any material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 19 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party must demonstrate 20 a factual dispute that is both material, i.e., it affects the outcome of the claim under the governing 21 law, see Liberty Lobby, 477 U.S. at 248; T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 22 809 F.2d 626, 630 (9th Cir.1987), and genuine, i.e., the evidence is such that a reasonable jury 23 could return a verdict for the nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 24 1433, 1436 (9th Cir.1987). 25 In resolving the summary judgment motion, the court examines the pleadings, 26 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if 27 any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305–06 (9th Cir.1982). The court must 28 construe all facts and inferences in the light most favorable to the non-moving party. See Liberty 6 1 Lobby, 477 U.S. at 255. However, conclusory and speculative testimony does not raise a genuine 2 factual dispute and is insufficient to defeat summary judgment. See Thornhill Publ'g Co., Inc. v. 3 GTE Corp., 594 F.2d 730, 738–39 (9th Cir.1979). 4 IV. Discussion 5 A. Preclusive Effect of Classwide Release in Goodell v. Charter Communications. 6 On May 20, 2010, the United States District Court for the Western District of Wisconsin 7 granted preliminary approval to a classwide settlement for a settlement class defined as “any and 8 all persons who were employed by [Charter] in California … in a covered position2 at any time 9 during the period from August 25, 2005 through August 28, 2008….” Goodell v. Charter 10 Communications, LLC, W.D. Wis. Case No. 3:08-cv-00512, Doc. 95 (W.D. Wis. May, 20 2010), 11 lodged here as Doc. 17-4 at 198. The release section of the class settlement agreement provides 12 that all class members who failed to opt out of the settlement released any claim that they may 13 have had against Defendant up to and including the date of preliminary approval of the 14 settlement, May 20, 2010. Goodell v. Charter Communications, LLC, Doc. 72-1 at 22, lodged 15 here as Doc. 17-4 at 134. That settlement was made final on September 24, 2010. Goodell v. 16 Charter Communications, LLC, Doc. 115. Plaintiff did not oppose Defendant‟s motion for summary adjudication on that ground. 17 18 Accordingly, this Court finds that Defendant is entitled summary adjudication as to that issue. 19 All of Plaintiff‟s claims which purport to seek recovery for any alleged violations that occurred 20 prior to or occurring on May 24, 2010, are adjudicated in favor of Defendant.3 21 B. Uncompensated Hours Worked Claim As a preliminary matter, Defendant‟s motion as to this issue does not address whether the 22 23 pre-jobsite and post-jobsite activities – turning the PDA on to check assignments and remain on 24 call, loading and unloading the Daily Kit, placing and picking up safety cones, and performing a 25 safety check for any obvious obstructions – constitute compensable work. Doc. 17-1 at 15-19. 26 27 28 2 The settlement class included 31 different job classifications including, in part: multiple grades of broadband technicians, data service technicians, quality control technicians, service technicians, and system technicians. 3 Defendant notes that only Plaintiff‟s sixth cause of action for violation of the UCL purports to recover for violations in that time period. Doc. 17-1 at 15. Plaintiff has given no indication to the contrary. 7 1 Rather, Defendant focuses on the voluntary nature of its home-start program. Id. Plaintiff 2 contends that this failure results in the mischaracterization of his claim. Doc. 20 at 14. This Court 3 will address the commute time component of Plaintiff‟s first cause of action then then it will 4 consider the impact of the pre-jobsite and post-jobsite activities. 5 i. Commute Time 6 The dispositive question in determining whether an activity is compensable under 7 California law is whether it qualifies as “hours worked.” Cal. Code. Regs. tit. 8 § 11042(2)(K). 8 “Hours worked” is defined as “the time during which an employee is subject to the control of an 9 employer, and includes all the time the employee is suffered or permitted to work….” Id. In 10 general, the time an employee spends commuting is not compensable. Morillion v. Royal 11 Packing Co., 22 Cal.4th 575, 587-88 (2000). However, such time could be compensable if the 12 employer exercised sufficient control over the employee. Rutti v. Lojack Corp., Inc., 596 F.3d 13 1046, 1062 (9th Cir. 2010) (citing Morillion, 22 Cal.4th at 578). 14 The California Supreme Court has noted that “the level of the employer's control over its 15 employees, rather than the mere fact that the employer requires the employees' activity, is 16 determinative” of whether an activity is compensable. Morillion, 22 Cal.4th at 587 (citing, inter 17 alia, Bono Enterprises, Inc., v. Bradshaw, 32 Cal.App.4th 968, 975 (1995)). However, the 18 California Supreme Court in Morillion and the Ninth Circuit in Rutti both placed particular 19 emphasis on the mandatory nature of the commute in determining that the employer exercised 20 sufficient control for the activity to be compensable under California law. Rutti, 596 F.3d at 21 1061-1062; Morillion, 22 Cal.4th at 587. In Morillion, the employee plaintiffs were field workers 22 who were “required to travel” on the defendant‟s busses. Morillion, 22 Cal.4th at 580. The court 23 held that “[w]hen an employer requires its employees to meet at designated places to take its 24 buses to work and prohibits them from taking their own transportation, these employees are 25 „subject to the control of an employer,‟ and their time spent traveling on the buses is 26 compensable as „hours worked.‟” Id. at 587. It noted that Defendant controlled “when, where, 27 and how plaintiffs … travel[led]” and that the control exercised deprived the employees of their 28 ability to run errands before work, to leave early for personal appointments, and to “decide when 8 1 to leave, which route to take …, and which mode of transportation to use ….” Id. at 586-587. 2 However, the court was careful to make clear “that employers do not risk paying employees for 3 their travel time merely by providing them transportation. Time employees spend traveling on 4 transportation that an employer provides but does not require its employees to use may not be 5 compensable as „hours worked.‟” Id. at 588 (citation omitted). 6 In Rutti, the plaintiff sought to bring suit on behalf of a class of vehicle recovery system 7 technicians who were required to use company vehicles in the course of their employment. Rutti, 8 596 F.3d at 1049. The plaintiff was paid on an hourly basis, beginning when he arrived at his 9 first job location and ending when he completed his final job of the day. Id. The Rutti court noted 10 that under California law “it is the „level of the employer‟s control over its employees‟ that „is 11 determinative,‟ not whether the employee just so happens to depart from, or return to, his home 12 instead of some other location.” Id. at 1062 (citing Morillion, 22 Cal.4th at 587). However, the 13 Ninth Circuit gave special emphasis to the fact that, during the uncompensated commute, the 14 plaintiff “was required to drive the company vehicle….” Id. at 1061 (emphasis original). As a 15 result of the defendant‟s mandatory vehicle policy, the plaintiff “could not stop off for personal 16 errands, could not take passengers, was required to drive the vehicle directly from home to his 17 job and back, and could not use his cell phone while driving except that he had to keep his phone 18 on to answer calls from the company dispatcher.” Id. at 1061-1062 (emphasis original). 19 Several of the considerations articulated by the Mortillion and Rutti courts regarding 20 employer control pull in opposite directions in this case. Although Plaintiff was not required to 21 home-start, when he elected to do so Defendant‟s Vehicle Policy prevented him from effectively 22 using the time for his own purposes including using his cell phone, “drop[ping] of [his] children 23 at school, stop[ping] for breakfast before work, or run[ning] other errands requiring use of a car.” 24 Morillion, 22 Cal.4th at 587; Rutti, 596 F.3d at 1061-1062; see Vehicle Policy. Further, Plaintiff 25 was required to keep his company issued phone turned on and remain on call “to answer calls 26 27 28 9 1 from the company dispatcher.” Rutti, 596 F.3d at 1061-1062; See Timekeeping Memos 20092 2012.4 3 Although Mortillion and Rutti both focused on employer control, both gave heightened 4 consideration to the fact that the employer transportation was mandatory. Rutti, 596 F.3d at 5 1061-1062; Morillion, 22 Cal.4th at 587-588. Moreover, Plaintiff has directed this Court to no 6 case, and the Court‟s research has yielded no case, where an employee has been found to be 7 subject to an employer‟s control where the plaintiff voluntarily elected to commute in the 8 employer‟s vehicle. Cf. Campbell v. Best Buy Stores, L.P., 2013 WL 5302217, *7 (C.D. Cal. 9 2013) (denying Best Buy‟s motion for summary judgment due, in part, to a disputed issue of fact 10 as to whether a home-start was required); Alcantar v. Hobart Service, 2012 WL 6539547, *1, 3-4 11 (C.D. Cal. 2012) (holding that commute time in company vehicle – even where use of the 12 vehicle was restricted non-personal uses – was not compensable because it was optional); 13 Overton v. Walt Disney Co., 136 Cal.App.4th 263 (2006) (holding that time was not 14 compensable where the employer provided but did not require use of a shuttle). See also Armenta 15 v. Osmose, Inc., 135 Cal.App.4th 314, 317, 324 (2005) (holding that time was compensable 16 where “the crew was required to travel in [the employer‟s] vehicle to job sites”). 17 As noted, in the instant case, Defendant did not require Plaintiff to home-start. Doc. 24 at 18 ¶22. Plaintiff was given the option to either use his own vehicle to commute to one of 19 Defendant‟s facilities to retrieve a company vehicle or keep a company vehicle at home each 20 night. Id. As a result of Plaintiff‟s election to keep a company vehicle at his home he was 21 required to comply with Defendant‟s Vehicle Policy. Despite the restrictions that Defendant 22 placed on Plaintiff‟s use of the company vehicle, its use to commute directly to the first job 23 assignment was voluntary. Thus, the use of the vehicle to commute to and from home was not 24 compensable. Morillion, 22 Cal.4th at 587-588; see Alcantar, 2012 WL 6539547 at *4 25 (“Plaintiff's argument that he was under the control of Defendants' during his commute is … 26 unavailing because … Plaintiff was not required to subject himself to Defendants' control.”) 27 28 4 Plaintiff never actually made or received any business related phone calls during his commute. Pltf. Dep. at 58:1959:2. See Stevens v. GCS Service, Inc., 281 Fed.App‟x 670, 673 (9th Cir. 2008) (noting that, under California law, engaging in brief work related calls during a commute could be de minimis, thus not compensable). 10 1 Defendant‟s motion for summary judgment will be granted on this ground. 2 ii. Uncompensated Off-the-Clock Work Activities 3 It is undisputed that Plaintiff and other home-start employees were required to engage in 4 uncompensated pre-jobsite and post-jobsite activities. Those activities include: turning the PDA 5 on to check assignments and remain on call, loading and unloading the Daily Kit, placing and 6 picking up safety cones, and performing a safety check for any obvious obstructions. Plaintiff‟s 7 complaint also sets out claims for uncompensated work time based on the following activities: 8 being placed “on-call” to answer customer calls without compensation (First Amended 9 Complaint, Doc. 11 (“FAC”) at ¶¶ 23, 42), testing equipment (FAC at ¶¶ 22, 41), conducting 10 routine company vehicle maintenance and recording the results (FAC at ¶¶ 21, 40), Plaintiff 11 contends that those activities constitute compensable work. Defendant has not moved for 12 summary judgment as to the compensability of those activities. See Doc. 27 at 10, n. 6. 13 Accordingly, this Court makes no ruling on those claims. 14 C. Meal and Rest Period Non-Compliance Claim 15 California Labor Code Section 512 prohibits any requirement that employees work for 16 extensive periods of time without a meal period. Generally, an employee is entitled to a half-hour 17 meal period if the employee works five hours in a day and two half-hour meal periods if the 18 employee works for more than ten hours in a day. See Cal. Labor Code § 512(a); Cal. Code 19 Regs., tit. 8 § 11040 (11)(A). The first required meal period must be permitted no later than the 20 end of an employee‟s fifth hour of work and the second meal period no later than the end of the 21 employee‟s tenth hour of work. Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 22 1041 (2012). California law also mandates that employers “authorize and permit all employees to 23 take [paid] rest periods” for a minimum of ten minutes per four hours worked. Cal. Code Regs., 24 tit. 8 § 11040 (12)(A). 25 Section 226.7(b) prohibits an employer from requiring an employee to work during a 26 meal or rest or recovery period. Cal. Labor Code § 226.7(b). If an employer fails to provide a 27 meal or rest or recovery period that complies with California law it must pay the employee one 28 11 1 additional hour of pay at the employee‟s regular rate of compensation (“premium wages”). Cal. 2 Labor Code § 226.7(c); see Cal. Code Regs., tit. 8 §§ 11040 (11)(A-B), (12)(A-B). 3 Defendant is correct that the California Supreme Court in Brinker Restaurant Corp. v. 4 Superior Court, 53 Cal.4th at 1040, held that an employer is compliant with the requirement that 5 it provide a meal break if the employer “relieves its employees of all duty, relinquishes control 6 over their activities and permits them a reasonable opportunity to take an uninterrupted 30– 7 minute break, and does not impede or discourage them from doing so.” “[T]he employer need 8 not ensure that the employee does no work.” Brinker, 53 Cal.4th at 1034. In fact, imposing an 9 obligation on an employer to ensure that no work is done might actually be inconsistent with the 10 requirement that the employer relinquish control over the employee. Id. at 1038-1039. However, 11 an employer will not avoid liability for premium wages if it “undermine[s] a formal policy of 12 providing meal breaks by pressuring employees to perform their duties in ways that omit 13 breaks.” Id. at 1040. In similar fashion, an employer cannot supplant a formal policy of 14 providing meal or rest breaks by imposing conflicting policies that impede or discourage an 15 employee from taking compliant breaks. See Id.; Ricaldai v. U.S. Investigations Services, LLC, 16 878 F.Supp.2d 1038, 1042 (C.D. Cal. 2012) (collecting cases holding that meal period violations 17 were present in instances when an employer pressured employees to skip meal periods). 18 There is no genuine dispute that Defendant assigned service calls between 8:00 a.m. and 19 12:00 p.m., scheduled nothing between 12:00 p.m. and 1:00 p.m., then assigned service calls 20 between 1:00 p.m. and 5:00 p.m.. Pltf. Dep. at 135:9-19. Similarly, it is undisputed that the 21 unscheduled hour was provided for the purpose of providing Plaintiff a lunch break and that 22 Defendant‟s written policy required Plaintiff to take a lunch break. Doc. 24 at ¶ 51. Despite the 23 fact that an hour meal break was scheduled at the end of the 4th hour of work, Plaintiff contends 24 that “there were occasions that [he] was not able to take [a] meal period until after his 5th hour of 25 work.” Pltf. Decl. at ¶ 9; Pltf. Dep. at 48:4-11, 20-23. Plaintiff explains that this was the case 26 because, after beginning a service call, he was not permitted to leave the call to take a meal 27 break. Id. However, Plaintiff does not explain why he believes that he was not permitted to take a 28 meal break during a service call nor does he point this Court to any evidence that would tend to 12 1 indicate that Defendant precluded Plaintiff from taking a break during a service call. In fact, 2 Plaintiff‟s deposition testimony tends to indicate Defendant never preluded Plaintiff from taking 3 a break during a service call and that Plaintiff never asked to do so. See Pltf. Dep. at 135:94 136:10. Furthermore, it is undisputed that Plaintiff was not required to finish all of the calls 5 assigned to him before he took a break; if his assignments took longer than expected he was 6 permitted to call a dispatcher to get the overage of assignments reassigned to other broadband 7 technicians. Pltf. Dep. at 129:15-130:1; Defendant‟s Exhibit G at 1 (“Whenever you believe that 8 you will have difficulty taking meal periods or rest breaks, you must promptly inform you 9 supervisor so that the Company can assist you with setting aside time for meals and breaks.”) 10 Additionally, Plaintiff has articulated no reason why he could not have taken a lunch break prior 11 to a service call that might run over his fifth hour of work. 12 Defendant points the Court to Reece v. Unitrin Auto & Home Ins. Co., 2013 WL 245452, 13 *5-6 (N.D. Cal. 2013), where the court rejected the plaintiff‟s theory the he was denied rest and 14 meal breaks because “[d]efendant „structured [p]lanitff‟s schedule so that it was … impossible 15 for plaintiff to take meal breaks.” The court held, despite the plaintiff‟s allegations that the 16 defendant prevented the taking of meal and rest breaks, that the plaintiff‟s failure to provide 17 evidence to support his allegations was fatal to his claim. Reece, 2013 WL 245452, at *6. The 18 evidence in this case is strikingly similar to that in Reece: 19 20 21 When asked, “Did you ever see anything or hear anything during your employment that led you to believe you were not allowed to take a meal period?” Plaintiff responded, “No, no.” (citation) Plaintiff has also admitted that he never complained about not being able to take such breaks. 22 Id. at *6. Plaintiff was never told that he couldn‟t take a meal period or rest period. As noted, 23 Defendant‟s written policy required him do so. Plaintiff never complained that he was unable to 24 take meal period or rest period. Pltf. Dep. at 80:19-81:2, 159:6-11. In fact, on occasions when 25 Plaintiff failed to record meal periods, his supervisor reminded him of the requirement to take at 26 least a half hour lunch period. Doc. 17-3 at 174-181. 27 Plaintiff has not provided evidence from which a reasonable jury could conclude that 28 Defendant failed to make meal periods available to Plaintiff before the end of the fifth hour of 13 1 work. Plaintiff has similarly failed to provide evidence of denial of rest breaks. Furthermore, an 2 employee‟s voluntary delay of meal breaks past the fifth hour of work (even if known to an 3 employer) does not render an employer liable for premium pay. Brinker, 42 Cal.4th at 1040; 4 Klune v. Ashley Furniture Industries Inc., 2015 WL 1540906, *6 (C.D. Cal. 2015) (noting that an 5 employer satisfied the requirement that it provide a meal period within five hours of work where 6 the employer knew and reprimanded an employee who – in violation of company policy – 7 regularly clocked out after the fifth hour by choice to complete sales); Carrasco v. C.H. 8 Robinson Wordwide, Inc., 2013 WL 6198944, *9 (E.D. Cal. 2013) (holding that an employer did 9 not undermine a formal policy of providing meal and rest periods where the employee alleged 10 that she forewent meal and rest periods “to be able to timely complete the tasks assigned” by her 11 employer); Plaisted v. Dress Barn, Inc., 2013 WL 300913, *3-4 (C.D. Cal. 2013) (same). 12 Plaintiff has provided evidence tending to show, at most, that he delayed his meal breaks 13 beyond the fifth hour of work by choice – in violation of company policy.5 Plaintiff was 14 permitted to seek coverage for assignments that he could not complete but elected not to do so. 15 Defendant‟s policy complied with the requirement that it provide Plaintiff the opportunity to take 16 the required meal and rest breaks. Plaintiff has not submitted sufficient evidence for a jury to 17 determine that Defendant‟s practice inhibited its stated policy of providing (and in fact requiring) 18 meal periods. Plaintiff‟s rest break denial claim fails on the same basis. 19 20 21 22 23 24 25 26 27 28 5 Although Defendant relinquished control over plaintiff to take a meal break, Plaintiff did not always take a meal break. See Plaintiff‟s Exhibit F. Where an employee works through an off duty meal period and the employer knew or should have known that the employee‟s work did not cease, the employer is liable for straight pay. Brinker, 53 Cal.4th at 1039-1040, n.19 (citing, inter alia, Morillion, 22 Cal.4th at 585). Plaintiff admits that Defendant “did attempt to pay for its non-compliant meal periods, but [he does] not think the [he] received all meal period premium wages owed. Plft. Decl. at ¶ 11. Plaintiff‟s decision to work through his lunch break and take a break after his fifth hour of work does not create liability for premium wages. Plaintiff‟s belief that he did not receive all of the premium wages owed is based on his erroneous understanding that he is entitled to premium wages when he voluntarily took meal periods after his fifth hour of work. See Brinker, 53 Cal.4th at 1040, n.19. On the occasions when Plaintiff took no meal break, he was compensated for the additional hour of work and paid overtime for the hours worked in excess of eight hours of work in one day. See, e.g., Doc. 22 at 10-12 (compensating Plaintiff for the missed meal period at his regular rate of compensation and paying compensating at overtime rate for hours worked in excess of eight hours). Accordingly, the evidence submitted all tends to indicate that Defendant complied with California law regarding meal and rest periods and appropriately paid overtime when Plaintiff voluntarily worked through his meal break in violation of company policy. 14 Accordingly, Defendant‟s motion for summary judgment will be granted as to Plaintiff‟s 1 2 meal and rest period denial claims. 3 D. Wage Statement Claim 4 i. Limitations Period 5 Plaintiff contends that Defendant‟s wage statements are not compliant with California 6 law because they fail to accurately record hours worked, the appropriate hourly rate, and the 7 applicable pay period. Plaintiff therefore seeks relief pursuant to California Labor Code Section 8 226(e).6 As a preliminary matter, Defendant argues that whether the alleged failures took place is 9 irrelevant to his claim because only Plaintiff‟s final wage statement – when he worked as a 10 quality assurance inspector and did not home-start – falls within the one-year limitations period. 11 Defendant is only partially correct. While California Code of Civil Procedure Section 340 12 prescribes a one-year limitations period for “[a]n action upon a statute for a penalty or 13 forfeiture,” California Code Civil Procedure Section 338 sets a three-year period for “[a]n action 14 upon a liability created by statute, other than a penalty or forfeiture.” The plain language of 15 California Labor Code Section 226 provides for both actual damages and penalties. Cal. Labor 16 Code § 226(e)(1) (providing that an employee suffering injury as a result of a knowing and 17 intentional failure to provide an accurate wage statement is entitled to the greater of (1) “actual 18 damages” or (2) specified penalties not to exceed $4,000.00). District courts that have recently 19 confronted the issue have come to the same conclusion. See Sarkisov v. StoneMor Partners, L.P., 20 2014 WL 1340762, *2 (N.D. Cal. 2014) (recognizing that two limitations periods could apply to 21 a claim under Section 226 because it authorizes damages and penalties); Mouchati v. Bonnie 22 Plaints, Inc., 2014 WL 1661245, *8-9 (C.D. Cal. 2014) (same); Taylor v. West Marine Products, 23 Inc., 2014 WL 4683926, *7 (N.D. Cal. 2014) (following Sarkisov); Singer v. Becton, Dickenson 24 & Co., 2008 WL 2899825, *4-5 (S.D. Cal. 2008). But see Werstiuk v. Jacobs Engineering 25 Group, Inc., 2014 WL 2621674, *5 (Cal.Ct.App. 2014) (finding that the one-year limitations 26 period of Section 340 applies to claims under Section 226(e)(1) based on Murphy v. Kenneth 27 28 6 Discussed in Section IV(D)(ii), infra. 15 1 Cole Productions, Inc., 40 Cal.4th 1094, 1108 (2007) where the California Supreme Court 2 referred to Section 226 as imposing a penalty). 3 Where courts have found that the one-year limitations period of California Civil Code 4 Section 338(a) applies it has been in reliance on a passing reference by the California Supreme 5 Court to Section 226 as imposing a penalty. Werstiuk, 2014 WL 2621674, *5 (citing Murphy, 40 6 Cal. 4th at 1108). In referring to Section 226 as imposing a penalty, the California Supreme 7 Court only referred to the $50 and $100 figures recoverable under subdivision (e).7 Murphy, 40 8 Cal.4th at 1108. Courts that have recognized that two limitations periods apply to Section 226 9 have uniformly found that the $50 and $100 figures recoverable under Section 226(e)(1) are 10 penalties, subject to a one-year limitation period. Taylor, 2014 WL 4683926 at *7; Sarkisov, 11 2014 WL 1340762 at *2; Mouchati, 2014 WL 1661245 at *8-9; Singer, 2008 WL 2899825, *412 5. Furthermore, those cases have noted that Section 226(e)(1) allows recovery for lost wages 13 which are a measure of damages, not a penalty. Id. This Court is convinced that Section 226 14 provides for both damages and penalties. Therefore, depending on the relief sought, a claim 15 pursuant to Section 226(e)(1) could be subject to a one-year or a three-year limitations period. A reading of Plaintiff‟s complaint makes clear that Plaintiff seeks “the greater of … 16 17 actual damages … or an aggregate penalty….” Doc. 1-1 at p. 16, ¶ 80. To the extent that Plaintiff 18 has suffered damages as a result of Defendant‟s failure provide accurate paystubs because it 19 failed to compensate Plaintiff for pre-jobsite and post-jobsite hours worked (i.e. lost wages), a 20 three-year limitations period applies. To the extent that Plaintiff‟s wage statement claim seeks to 21 recover penalties, it is restricted by a one-year limitations period. 22 ii. Merits 23 California Labor Code Section 226 requires employers to provide wage statements 24 showing, inter alia: gross wages earned, the inclusive dates of the period for which the employee 25 is paid, and all applicable hourly rates in effect during the pay period and the corresponding 26 number of hours worked at each hourly rate by the employee. Cal. Labor Code § 226(a) subds. 27 (1), (6), & (9). Plaintiff alleges that Defendant failed on all three accounts. Section 226(e) 28 7 Now renumbered as subdivision (e)(1). 16 1 provides a remedy for employees injured by an employer‟s failure to comply with those 2 requirements.8 An action pursuant to Section 226(e) requires proof of three elements: (1) 3 violation of Section 226(a); (2) that is “knowing and intentional”; and (3) a resulting injury. 4 Derum v. Saks & Co., --- F.Supp.3d ----, 2015 WL 1396651, *5 (S.D. Cal. 2015) (citing Willner 5 v. Manpower, Inc., 35 F.Supp.3d 1116, 1128 (N.D. Cal. 2014)). 6 1. Violation of Section 226(a) First, Plaintiff alleges that Defendant‟s wage statements are in violation of Section 7 8 226(a)(1) because Defendant failed to compensate for the pre-jobsite and post-jobsite activities, 9 (discussed but not adjudicated in Section IV(B)(ii), supra) thus those hours are not reflected on 10 the wage statement, rendering the gross wages inaccurate. Other than the argument that the 11 limitation period forecloses Plaintiff from bringing this claim – which this Court has rejected – 12 Defendant does not address this claim. Failure to reflect wages earned for compensable time 13 violates subdivision (a)(1). Because Defendant has not moved for summary judgment as to 14 Plaintiff‟s pre-jobsite and post-jobsite activities the Court does not resolve whether those hours 15 are compensable. 16 Second, Plaintiff claims that Defendant failed to comply with the requirements of Section 17 226(a)(6) because the wage statements failed to include the date range of the pay period. Rather, 18 Defendant provided only the end date. It is undisputed that Plaintiff was aware that his pay 19 period was “every two weeks.” Pltf. Dep. at 119:12-20. Labor Code Section 226(a)(6) requires an employer to provide “the inclusive dates of the 20 21 period for which the employee is paid.” Defendant has argued only that it “is not aware of any 22 authority that support‟s Plaintiff‟s argument that showing a period ending date in a situation 23 where wage statements are issued every two weeks” violates the requirement of Section 24 226(a)(6). Such authority exists. A line of caselaw has developed at the district court level 25 26 27 28 8 Specifically, Section 226(e)(1) provides: An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees. 17 1 holding that an employer must provide a wage statement bearing an end date and beginning date 2 to be in compliance with subdivision (a)(6). Willner v. Manpower, Inc., 35 F.Supp.3d 1116, 3 1128-1129 (N.D. Cal. 2014); McKenzie v. Federal Exp. Corp., 765 F.Supp.2d 1222, 1229 (C.D. 4 Cal. 2011); Lopez v. G.A.T. Airline Ground Support, Inc., 2010 WL 2839417, *5-6 (S.D. Cal. 5 2010).9 That line has reasoned that including a beginning date on the wage statement is required 6 because the “inclusive dates” language of subdivision (a)(6) contemplates a range of dates with a 7 definite beginning and end. Willner, 35 F.Supp.3d at 1128-1129; McKenzie, 765 F.Supp.2d at 8 1229; Lopez, 2010 WL 2839417 at *5-6; see Gleming v. Covidien, Inc., 2011 WL 7563047, *2 9 (C.D. Cal. 2011). But cf., Derum v. Saks & Co., 2015 WL 1396651 at *4-5 (holding that failure 10 to list a beginning date of a pay period on a pay stub was not a violation of Section 226(a)(6) 11 when the employer provided an electronic wage statement that did include the beginning date of 12 the pay period). This Court has been provided with no reason to depart from the holding or 13 reasoning of those opinions. Failure to list a beginning date of a pay period on wage statement 14 violates subdivision (a)(6). 15 Third, Plaintiff alleges that Defendant violated the requirement of Section 226(a)(9) that 16 an employer provide all applicable hourly rates in effect during the pay period and the 17 corresponding number of hours worked at each hourly rate by the employee because the wage 18 statements failed to reflect the pre-jobsite and post-jobsite activities and failed to display 19 premium wages for meal period violations at the appropriate rate. It is undisputed that Defendant 20 did not include on wage statements the pre-jobsite and post-jobsite activities of home-start 21 employees as hours worked, did not display an applicable hourly rate, and did not compensate 22 for those activities. If Plaintiff is correct that the pre-jobsite and post-jobsite activities are 23 considered hours worked, it would follow that Defendant‟s failure to report them on the wage 24 statement would be in violation of subdivision (a)(9). Again, because Defendant has not moved 25 for summary judgment as to that issue, this Court will not resolve it. 26 27 28 9 Moreover, Plaintiff‟s knowledge of the pay period is not relevant for purposes of determining whether Section 226(a) was violated. Section 226(a) deals only with what must be displayed on a wage statement. That the pay period was every two weeks would only be relevant for purposes of determining whether a violation of Section 226(a) took place if it were noted on the statement itself. It is not. See Doc. 22 at 33-42. 18 1 As to Plaintiff‟s claim that Defendant failed to display premium wages for meal periods 2 at the appropriate rate, this Court has already determined that Defendant did not violate Section 3 226.7. As such Defendant was not liable to Plaintiff for premium wages. Nevertheless, some of 4 Plaintiff‟s wage statements reflect that he was paid for “CA Rest/Meal Bk.” See, e.g., Doc, 22 at 5 12, 26, 33-42. All of the hours recorded thereunder were paid at Plaintiff‟s regular rate. Id. Such 6 payments are consistent with California law which requires only that Plaintiff be paid “straight 7 pay” for the time that he worked during his meal breaks if Defendant knew or should have 8 known. Brinker, 53 Cal.4th at 1039-1040, n.19. Accordingly, Defendant did not violate Section 9 226(a)(9) for failure to accurately display meal period compensation rates or hours. 10 11 2. Knowing and Intentional Section 226(e)(1) requires that an employer‟s failure to comply with Section 226(a) be 12 “knowing and intentional” to be actionable. Section 226(e)(3) explains that “a „knowing and 13 intentional failure‟ does not include an isolated and unintentional payroll error due to a clerical 14 or inadvertent mistake.” It further notes that in determining compliance, a factfinder may 15 consider whether the employer had adopted a set of policies in compliance. See Cal. Labor Code 16 § 226(e)(3). Subdivision (e)(3) makes clear the legislative intent to exclude inadvertent clerical 17 errors that depart from an otherwise compliant wage statement policy from the permissible scope 18 of an action pursuant to that section. Plaintiff contends that Defendant‟s wage statements were 19 consistently incorrect. There is no dispute that the two remaining factual predicates for violation 20 of Section 226(a) – that Defendant did not compensate for required pre-jobsite and post-jobsite 21 activities and that Defendant did not include the beginning date for the pay period on the wage 22 statements – permeated Defendant‟s wage statement policies; they were not inadvertent clerical 23 errors. 24 Recognizing that to be the case, Defendant contends that Plaintiff cannot demonstrate 25 that any of Defendant‟s violations of Section 226(a) were knowing and intentional because 26 Plaintiff cannot show that Defendant “lacked a good faith belief that it complied with the 27 statute.” Doc. 27 at 19. Defendant directs this Court to Guifoyle v. Dollar Tree Stores, Inc., 2014 28 WL 66740, *7 (E.D. Cal. 2014), for the proposition that an employer‟s good faith in believing 19 1 that it did not violate Section 226(a) – i.e. that it believe that it had provided an accurate wage 2 statement – is enough to show that its violation was not knowing and intentional. The Guifoyle 3 court is not alone in that view. See Apodaca v. Costco Wholesale Corp., 2014 WL 2533427, *3 4 (C.D. Cal. 2014) (citing, inter alia, Wright v. Adventures Rolling Cross Country, Inc., 2013 WL 5 1758815, *9 (N.D. Cal. 2013)); Rieve v. Coventry Health Care, Inc., 870 F.Supp.2d 856, 8766 877 (C.D. Cal. 2012); Lopez v. United Parcel Service, Inc., 2010 WL 728205, *9 (N.D. Cal. 7 2010). However, a different line of district court cases have found that “[w]hether the employer 8 knew it was violating section 226(a) is irrelevant.” Derum v. Saks & Co., 2015 WL 1396651 at 9 *7. Instead, that line frames the relevant inquiry as whether the employer was aware of the 10 factual predicate underlying the violation; e.g., whether the defendant knew that the wage 11 statement contained only the end date of the pay period. Id.; Contreras v. Performance Food 12 Group, Inc., 2014 WL 6481365, *4 (N.D. Cal 2014); Willner v. Manpower Inc., 35 F.Supp.3d at 13 1131-1132; see Perez v. Safety-Kleen Systems, Inc., 2007 WL 1848037, *9 (N.D. Cal. 2007) 14 (finding that ignorance of the requirement that an employer record the number of hours worked 15 did not render the violation of Section 226(a) unknowing or unintentional when the employer 16 knew that the wage statements contained an incorrect representation of hours worked); Cornn v. 17 United Parcel Service, Inc., 2006 WL 449138, *2-3 (N.D. Cal. 2006) (holding that Section 226 18 requires an employer to report all hours worked; not reporting hours disputed – regardless of 19 good faith – does not meet that standard). 20 Of the cases that have identified that “good faith” by an employer could impact a Section 21 226(e)(1) claim, few have affirmatively held that a finding of good faith precludes a finding that 22 the violation was knowing and intentional. Compare Apodaca, 2014 WL 2533427 at *3 (“Where 23 an employer has a good faith belief that it is not in violation of Section 226, any violation is not 24 knowing and intentional.”); with Wright, 2013 WL1758815 at *10 (discussing good faith in 25 relation to Section 226(e)(1) and holding only that the court “cannot say, as a matter of law, that 26 [the] good faith defense isn‟t viable.”). Regardless of each court‟s willingness to recognize a 27 good faith defense, no court has granted summary judgment to an employer, finding that it acted 28 in good faith when it violated Section 226(a); such a determination is “generally a question for 20 1 the factfinder to resolve at trial.” Guifoyle, 2014 WL 66740 at *7 (citing Ricaldi v. U.S. 2 Investigations Servs., LLC, 878 F.Supp.2d 1038, 1047 (C.D. Cal. 2012) (collecting cases)); see 3 Lopez v. United Parcel Service, Inc. 2010 WL 728205, *9; Rieve, 870 F.Supp.2d at 876-877. But 4 see, Hurst v. Buczek Enterprises, LLC, 870 F.Supp.2d 810, 829 (N.D. Cal. 2012) (granting an 5 unopposed motion for summary judgment where the employer believed in good faith that the 6 employee was an independent contractor, thus not subject to the provisions of 226(a)). 7 This Court would note that the courts that allowed a good faith defense have done so 8 without explicitly identifying that it is a mistake of law defense. Such a defense stands contrary 9 to the often repeated legal maxim: “ignorance of the law will not excuse any person, either 10 civilly or criminally.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 11 581 (2010) (“Our law is therefore no stranger to the possibility that an act may be „intentional‟ 12 for purposes of civil liability, even if the actor lacked actual knowledge that her conduct violated 13 the law.”) Further, refusal to recognize the judicially-created good faith defense is more 14 consistent with Section 226(e)(3). If an employer‟s belief that it is in compliance with Section 15 226(a) were adequate to render any violation not knowing and not intentional, whether an 16 employer had actually “adopted … a set of policies … that fully comply with” Section 226 – 17 which subdivision (e)(3) advises a factfinder to consider – would be irrelevant. Additionally, it 18 would be equally meaningless for subdivision (e)(3) to note that an “isolated and unintentional 19 payroll error due to a clerical or inadvertent mistake” is not knowing and intentional because a 20 good faith belief that the employer complied with Section 226(a) would likely envelop all 21 inadvertent mistakes. Accordingly, though some district courts in the circuit have read a good 22 faith defense into to Section 226(e), this Court declines to do so. In other words, this Court holds 23 that a mistake of law – even when made in good faith – does not prevent Defendant‟s conduct 24 from knowingly and intentionally failing to comply with subdivision (a). 25 It is undisputed that Defendant knew that Plaintiff was performing pre-jobsite and post- 26 jobsite activities that it did not compensate for and it knew that it did not include in the wage 27 statement of all inclusive dates in the pay period. Because this Court does not apply a good faith 28 defense to Section 226(e), Defendant‟s failure to include the unpaid pre-jobsite and post-jobsite 21 1 hours in the wage statement was a knowing violation of Section 226 subdivisions (a)(1) and 2 (a)(9). Correspondingly, Defendant‟s failure to give beginning dates for the pay period in 3 violation of Section 226 subdivision (a)(6) were equally knowing and intentional. 4 5 3. Resulting Injury As a threshold matter, effective January 1, 2013, subdivision (e) was amended to add 6 explanations of when an employee is deemed to have suffered an injury for purposes of Section 7 226. 2012 Cal. Legis. Serv. Ch. 844 (A.B.1744) (West). That amendment explained that the 8 employee suffers injury when an employer fails to provide accurate and complete information as 9 required by subdivision (a) and “the employee cannot promptly and easily determine” – among 10 other things – “the amount of gross wages … paid to the employee during the pay period or any 11 of the other information required … pursuant to items … (6) and (9) of subdivision (a).” Cal. 12 Labor Code § 226(e)(2)(B)(i). Defendant contends that because Plaintiff‟s claims all relate to a 13 time period before the effective date of the amendments that they do not apply to his claims. The 14 Court would note that the 2013 Amendment does not represent a substantive shift in Section 226 15 (with the possible exception of Section 226(e)(1)(2)(A) – not at issue here). See Price v. 16 Starbucks Corp., 192 Cal.App.4th 1136, 1143 (2011) (recognizing that an injury exits where 17 “inaccurate or incomplete wage statements … require[] … plaintiffs to engage in discovery and 18 mathematical computations to reconstruct time records and determine if they were correctly 19 paid”); Torchia v. W.W. Grainger, Inc., 304 F.R.D. 256, 274 (E.D. Cal. 2014) (noting that the 20 2013 Amendment simply clarified that the injury requirement is minimal); Fields v. West Marine 21 Products, Inc., 2014 WL 547502, *8 (N.D. Cal. 2014) (same); see also Wright v. Menzies 22 Aviation, Inc., 2013 WL 5978628, *10 (Cal. Ct. App. 2013) (unpublished). Rather, the 2013 23 Amendment is best understood as clarifying that the Section 226 injury requirement hinges on 24 whether an employee can “promptly and easily determine” from the wage statement, standing 25 alone, the information needed to know whether he or she is being underpaid. Wright, 2013 WL 26 5978628 at *10. 27 28 22 1 That said, regardless of whether the Court applies the 2013 Amendment additions to the 2 injury requirement of subdivision (e), the injury requirement is minimal.10 The wage statement at 3 issue here (1) omitted potentially compensable hours and the appropriate rate of pay for those 4 hour and (2) omitted the date range for the pay period. Both of those failures require Plaintiff to 5 engage in mathematical computations to reconstruct time records and determine if he was 6 correctly paid. 7 iv. Conclusion 8 Defendant‟s motion for summary judgment as to Plaintiff‟s wage statement claim will be 9 granted insofar as it is derivative of his meal break and rest break claims and commute time 10 claim. Defendant‟s motion will be denied as it relates to Defendant‟s wage statements‟ failure to 11 display gross wages earned and applicable hourly rates for uncompensated pre-jobsite and post12 jobsite activity and failure to display inclusive dates of each pay period. 13 V. ORDER Based on the foregoing, IT IS HEREBY ORDERED that Defendant‟s motion for partial 14 15 summary judgment is GRANTED IN PART and DENIED IN PART as follows; 1. All of Plaintiff‟s claims which purport to seek recovery for any alleged violations that 16 17 occurred prior to or occurring on May 24, 2010, are adjudicated in favor of Defendant; 2. Plaintiff‟s first cause of action for failure to pay wages is adjudicated in favor of 18 19 Defendant insofar as it seeks to recover based on commute time in Defendant‟s company 20 vehicle; 3. As to the remainder of Plaintiff‟s first cause of action, Defendant‟s motion for partial 21 22 summary judgment is DENIED; 4. Plaintiff‟s second and third causes of action for failure to provide meal and rest periods 23 24 are adjudicated in favor of Defendant; 25 26 27 28 10 Defendant argues that Plaintiff‟s reliance on Willner v. Manpower, Inc., 35 F.Supp.3d at 1135-1136 (where the court applied the 2013 Amendment in determining injury) is misplaced. Doc. 27 at 18. The Court would note that the Willner court applied the additions of the 2013 Amendment to claims that arose before the effective date of that amendment. The Willner court‟s application of the 2013 Amendment to pre-2013 violations of Section 226 is consistent with this Court‟s finding that the 2013 Amendment merely clarified the law rather than creating new law. 23 1 5. Plaintiff‟s fifth cause of action for non-compliant wage statements is adjudicate in favor 2 of Defendant insofar as it seeks recovery for penalties beyond the one year limitations 3 period or damages beyond the three year limitations period; 4 6. Plaintiff‟s fifth cause of action is also adjudicated in favor defendant to the extent that it 5 is derivative of his meal and wage period claims or would require a finding that Plaintiff 6 is entitled to premium wages for meal or rest period denial; 7 8 7. As to the remainder of Plaintiff‟s fifth cause of action, Defendant‟s motion for partial summary judgment is DENIED. 9 10 IT IS SO ORDERED. 11 Dated: April 21, 2015 SENIOR DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24

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