Pablo v. ServiceMaster Global Holdings, Inc. et al

Filing 346

ORDER RE: JURY INSTRUCTIONS (CLASSIFICATION INSTRUCTION) (SI, COURT STAFF) (Filed on 10/22/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RUBEN PABLO, BONNIE COURSEY, and
JOHN BAHR,

United States District Court
For the Northern District of California

ORDER RE: JURY INSTRUCTIONS
(CLASSIFICATION INSTRUCTION)

Plaintiffs,

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v.

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No. C 08-03894 SI

SERVICEMASTER GLOBAL HOLDINGS,
INC., et al.,

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Defendants.

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Both parties submitted proposed jury instructions on October 20, 2011. Plaintiffs also filed a

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letter asking the Court to immediately rule on certain proposed instructions prior to the start of trial on

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October 24, 2011. The two disputed categories of instructions in the letter are the “Classification of

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Work Activities & Activities Incidental to Sales” and “Drive Time.” Both issues go to the heart of the

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case, and are overlapping in their substance. Therefore, they will be considered together.

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I.

The Parties’ Competing Instructions
Defendants propose the following instructions:
Classification of Work Activities as Sales Related or Not: To determine whether
Plaintiffs were outside sales people, you should itemize the types of activities that you
consider to be sales related, and the approximate average times you find the Plaintiffs
spent on each of these activities.

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Activities Incidental to Sales: Selling or obtaining orders for services also includes
other related activities, such as preparation, travel time, and paperwork.

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Drive Time: If a salesperson must travel one hour to destination A in order to attempt

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a sale, then you must count the hour of travel time as time spent “selling.” But if an
employee travels to a destination to engage in both sales related and non-sales activities,
if any, the travel time must then be apportioned among the two types of activities, for
purposes of determining the total amount of time spent doing sales related and non-sales
work.

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Plaintiffs propose the following instructions:
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Classification 1: You must decide whether each activity that each Plaintiff customarily
and regularly performed during his or her work day was an outside sales activity or not.
In order to do this, you must look at each activity objectively and in isolation and
determine whether a person who performed only that activity would be a salesperson.
Then, for each activity, you must decide the number of minutes or hours Plaintiff
regularly and customarily spent during their workweek in the performance of that
activity.

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Classification 2 (Agreed): For a work activity to count as time spent performing outside
sales activities, the activity must occur away from the employer’s place of business.

United States District Court
For the Northern District of California

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Classification 3: In determining whether an activity is a sales activity, you must apply
the conventional meaning of the words that describe the activity.

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Classification 4: You may not classify intrinsically non-sales work as sales activity.

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Classification 5: In determining whether an activity is a sales or non-sales activity, the
subjective intent of the Plaintiff during the activity is not relevant.

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Drive Time: If an employee travels to a destination to engage in both sales and nonsales activities, if any, the travel time must be apportioned among the two types of
activities for purposes of determining the total amount of time spent doing sales and nonsales work.

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II.

The Court’s Instruction
The Court finds that neither party has captured the distinctions set out in Ramirez v. Yosemite

Water Co., Inc., 20 Cal. 4th 785, 801 (1999), the California Supreme Court case which apparently
governs this removed case.
The Court proposes to instruct as follows on the classification issues.

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Dated: October 22, 2011
__________________________
SUSAN ILLSTON
United States District Judge:

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STRUCTURAL PEST CONTROL FIELD REPRESENTATIVES
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Plaintiffs were licensed as “Structural pest control field representatives.” As such they were
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licensed to (1) secure structural pest control work, (2) identify infestations or infections, (3) make
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inspections, (4) apply pesticides, and (5) submit bids for or otherwise contract on behalf of a registered
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company.
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CLASSIFICATION OF WORK ACTIVITIES
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United States District Court
For the Northern District of California

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To determine whether an employee was an outside sales person, you must identify the types of
activities that employee customarily and regularly performed during his or her work day and then
determine whether each such activity was an outside sales activity, or not. You must then determine
the approximate average time you find the employee spent on each of these activities.
To determine whether an activity is an outside sales activity, you should consider the activity
in isolation and determine whether a person who performed only that activity would be considered a
salesperson. Related activity – such as preparation or paperwork – should be classified according to
whether the underlying primary activity was an outside sales activity or not.
For a work activity to count as time spent performing outside sales activities, the activity must
occur away from the employer’s place of business.
If an employee travels to a destination to engage in both sales and non-sales activities, the travel
time must be apportioned between the two types of activities for purposes of determining the total
amount of time spent doing sales and non-sales work.

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