Opinion
Case No. 5:22-cv-00836-AB-SP
2023-04-24
Severo John HERNANDEZ, et al., Plaintiffs, v. CHRISTENSEN BROTHERS GENERAL ENGINEERING, INC., et al., Defendants.
Daniel Johnson Brown, Ethan Capell Surls, Stansbury Brown Law, PC, Venice, CA, Sam K. Kim, Yoonis J. Han, Verum Law Group, APC, El Segundo, CA, for Plaintiffs Severo John Hernandez, Kristofer Barr. Sam K. Kim, Yoonis J. Han, Verum Law Group, APC, El Segundo, CA, for Plaintiff Umeet Nand. John T. Egley, Christopher C. Scheithauer, Call and Jensen APC, Newport Beach, CA, for Defendants Christensen Brothers General Engineering, Inc., Caleb Christensen.
Daniel Johnson Brown, Ethan Capell Surls, Stansbury Brown Law, PC, Venice, CA, Sam K. Kim, Yoonis J. Han, Verum Law Group, APC, El Segundo, CA, for Plaintiffs Severo John Hernandez, Kristofer Barr. Sam K. Kim, Yoonis J. Han, Verum Law Group, APC, El Segundo, CA, for Plaintiff Umeet Nand. John T. Egley, Christopher C. Scheithauer, Call and Jensen APC, Newport Beach, CA, for Defendants Christensen Brothers General Engineering, Inc., Caleb Christensen. ORDER DENYING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND CERTIFICATION OF FLSA COLLECTIVE ACTION ANDRÉ BIROTTE JR., UNITED STATES DISTRICT COURT JUDGE
Before the Court is Plaintiffs Severo John Hernandez, Umeet Nand, and Kristofer Barr's ("Plaintiffs") Motion for Class Certification Under Fed. R. Civ. P. 23, and for Conditional Certification of Collective Action and Dissemination of Notice Under 29 U.S.C. § 216(b) ("Motion," Dkt. No. 27). Defendants Christensen Brothers General Engineering, Inc., and Caleb Christensen ("Defendants") filed an opposition and Plaintiffs filed a reply. Both sides also filed voluminous evidence. The Court also heard oral argument on March 25, 2023. For the following reasons, the Motion is DENIED.
I. PLAINTIFFS' THIRD AMENDED COMPLAINT
Plaintiffs commenced this action for alleged wage and hour violations in state court, initially asserting only state law claims. Plaintiffs' Second Amended Complaint added a federal claim (for violation of the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.), triggering federal jurisdiction. Thereafter, Defendants removed the action to federal court. See Notice of Removal ("NOR," Dkt. No. 1) ¶ 1.
Plaintiffs' Third Amended Complaint ("3AC," Dkt. No. 23), which was filed pursuant to the parties' stipulation, is the operative complaint. Therein, Plaintiffs allege the following 11 counts: (1) Failure to Pay Overtime and Minimum Wage Under Fair Labor Standards Act 29 U.S.C. § 201 et seq.; (2) Failure to Pay All Wages in Violation of Cal. Labor Code §§ 200 et seq., 1194, and IWC Wage Order 16-2001; (3) Non-payment of Overtime Compensation in Violation of Cal. Labor Code §§ 510(a), 1194, and IWC Wage Order 16-2001; (4) Failure to Provide Proper Meal Breaks in Violation of Cal. Labor Code §§ 512, 226.7, and IWC Wage Order 16-2001; (5) Failure to Authorize and Permit Proper Rest Breaks in Violation of Cal. Labor Code § 226.7, and IWC Wage Order 16-2001; (6) Failure to Properly Maintain and Submit Itemized Wage Statements In Violation of Cal. Labor Code §§ 226, 1174, and IWC Wage Order 16-2001; (7) Violation of Cal. Labor Code §§ 201 and 202.7; (8) Violation of California Business & Professions Code § 17200 et seq.; (9) Violation of Prevailing Wage Law, Cal. Labor Code § 1771 et seq.; (10) Failure to Reimburse for Necessary Business Expenses in Violation of Cal. Labor Code § 2802; and (11) Violation of the Private Attorney General Act ("PAGA"), Cal. Labor Code § 2699 et seq. Plaintiffs bring this action on behalf of themselves, a class, 11 subclasses, and an "FLSA Class." Plaintiffs seek to recover general and compensatory damages, injunctive relief, restitution, costs, interests, liquidated damages, and PAGA penalties. See 3AC p. 46, Prayer for Relief.
Plaintiffs are Defendants' Field Employees, defined as "all of Defendants' non-exempt employees in the following positions: Foreman, Operator, Pipelayer, Laborer, Cement Mason, Teamster, Driver, and similarly titled positions." 3AC ¶ 4. Defendant Christensen Brothers General Engineering, Inc. ("CBGE") performs general contractor, highway and street construction business, and heavy construction. 3AC ¶ 19. Defendant Caleb Christensen ("Christensen") is the owner, president, or operator of Defendant CBGE. 3AC ¶ 10. Plaintiffs worked on construction projects for Defendants in this jurisdiction. 3AC ¶ 8.
II. PLAINTIFFS' MOTION
The 3AC alleges numerous factual bases for Plaintiffs' claims, but Plaintiffs' Motion relies specifically on the following factual bases.
First, Plaintiffs allege that Defendants fail to pay them for all hours worked and for overtime because Defendants require employees to (1) arrive at the yard site to perform off-the-clock work there before their shifts start at the job site; (2) drive from the job site back to the yard site after their shifts are over, to perform off-the-clock work at the yard site; and (3) work through their meal and rest periods, without compensation. Plaintiffs refer to items (1) and (2) as a "travel time practice," but that seems to be a misnomer, as the crux of these allegations is not that Defendants require class members to travel to and from the jobsite; rather the crux is that Defendants require class members to perform pre-shift and post-shift activities, or off-the-clock work, at the yard. Indeed, in prior complaints Plaintiffs did refer to this as pre-shift and post-shift work, or off-the-clock work. See, e.g., Original Compl. (Dkt. No. 1-4) ¶ 45, First Am. Compl. (Dkt. No. 1-12) ¶ 45. Thus, the Court puts "travel time" in quotes.
Second, Plaintiffs also allege that Defendants failed to pay them prevailing wages owed for their work on public works projects because Defendants (1) paid employees at their regular hourly rate instead of the higher prevailing wage rate they were entitled to; (2) intentionally misclassified the employees' job positions in an effort to pay the employees at a lower hourly prevailing wage rate; and (3) underreported the number of prevailing wage hours worked by the employees at the public works projects.
Third, Plaintiffs also allege that Defendants failed to reimburse them for necessary business expenses such as tools, equipment, and other items, and did not reimburse them for use of their personal cell phones. 3AC ¶ 130.
Finally, Plaintiffs also allege that Defendants did not provide accurate itemized wage statements. This claim appears to be partly derivative of the other alleged violations. See 3AC ¶¶ 55, 98. But Plaintiffs also allege independent bases for this count: the wage statements Defendants issued did not include the inclusive dates of the period for which the employee is paid, and did not include the name and address of the legal entity that is the employer. 3AC ¶¶ 56, 98. In particular, the wage statement did not include the first date of the pay period, and did not include the address of the employer. See Mot. 14:10-1.
A. Defendants' Alleged Unlawful "Practices"
The 3AC uses the above factual bases to define the following 7 unlawful "practices," each of which appears to correspond to a cause of action:
40. Plaintiffs and the Class were required to travel to the yard (before beginning their shift at the jobsite) to pick up materials, equipment, and other items without compensation. In addition, Plaintiffs and Aggrieved Employees were required to return back to the yard to drop off materials, equipment, and other items (after ending their shift at the jobsite) ("Travel Time Practice").
41. Plaintiffs and the Class were not compensated for all hours worked, specifically, the Employer would underreport the actual hours worked each shift. ("Underreporting Practice").
42. Plaintiffs and the Class were misclassified to avoid paying Plaintiffs and Aggrieved Employees at the higher rate of pay (i.e., Aggrieved Employees performing work as operators during a shift but being paid as a laborer; or alternatively, Aggrieved Employees performing work on a public work project during a shift but being paid as non-prevailing wage classification. ("Misclassifying Practice").
43. Plaintiffs and the Class were subject to the Travel Time Practice, the meal periods recorded at the fifth hour of work for the Employee and Aggrieved Employees were late. ("Late Meal Period Practice").
44. Plaintiffs and the Class were required to work through their meal periods due to work obligations, and/or were not provided with a duty-free 30-minute meal period (due to interruptions caused by work obligations) ("Meal Period Practice").See 3rd Am. Compl. (3AC) pp. 12-13 ¶¶ 40-46 (emphasis added).
45. Plaintiffs and the Class were required to work through their rest periods due to work obligations, and/or were not provided with a duty-free 10-minute meal period (due to interruptions caused by work obligations) ("Rest Period Practice").
46. The Employer has violated Labor Code §§ 2802 by not reimbursing Employee and Aggrieved Employees for all necessary business expenses, including but not limited to tools, materials, and other items purchased for the Employers. ("Reimbursement Practice").
Some of the 3AC's paragraphs are repeated in whole or in part, and some of the numbers are not correct, so the Court sometimes cites both the page and paragraph numbers.
B. Plaintiffs' Proposed Classes
Plaintiffs refer to the above 7 practices to define the 10 Subclassses they move to certify under Fed. R. Civ. P. 23(b)(3). Some classes incorporate several practices and/or violations. Plaintiffs also define a class for their proposed FLSA collective action for unpaid wages and overtime. Plaintiffs define the classes as follows:
The Class: All Field Employees employed by Defendant Christensen Brothers General Engineering, Inc. ("Defendant CBG") from November 18, 2016 up to and through the date of the order granting class certification." ("Class," and "Class Period").
a. Subclass I (Unpaid Wage Subclass): All Field Employees employed by Defendant CBG from November 18, 2016, up to and through the date of the order granting class certification, who were subject to the (1) Travel Time Practice, (2) Underreporting Practice, (3) Misclassifying Practice, and/or (4) Meal Period Practice.
b. Subclass II (Overtime Subclass): All Field Employees employed by Defendant CBG from November 18, 2016, up to and through the date of the order granting class certification, who were subject to the (1) Travel Time Practice, (2) Underreporting Practice, (3) Misclassifying Practice, and/or (4) Meal Period Practice and who were not paid at least 1.5 times their regular rate of pay for time worked in excess of eight (8) hours in a workday and/or forty (40) hours in a workweek.
c. Subclass III (Meal Period Subclass): All Field Employees employed by Defendant CBG from November 18, 2016, up to and through the date of the order granting class certification, who were not paid premium meal period wages for shifts for which they were subject to the (1) Meal Practice, (2) Late Meal Period Practice, and/or (3) worked shifts over 10.0 hours without receiving an uninterrupted 30-minute meal period prior to the start of the tenth hour of work.
d. Subclass IV (Rest Period Subclass): All Field Employees employed by Defendant CBG from November 18, 2016, up to and through the date of the order granting class certification, who were not paid premium rest period wages for shifts for which they were subject to the Rest Period Practice.
e. Subclass V (Prevailing Wage Subclass): All Field Employees employed by Defendant CBG from November 18, 2016, up to and through the date of the order granting class certification (1) who were subject to the Travel Time Practice and/or Underreporting Practice, and/or (2) who's job classification was misclassified by Defendant CBG while working on public works projects.See Not. Mot. pp. iii-vi; see also 3AC pp. 20-22, ¶¶ 60, 47 [sic].
f. Subclass VI (Itemized Wage Statement Subclass): All members of Subclass I, II, III, IV and/or V who meet the criteria for class membership for the time period from November 18, 2019, up to and through the date of the order granting class certification, and who also received a wage statement from Defendant CBG during this same time period.
g. Subclass VII (Facially Deficient Wage Statement Subclass): All Field Employees employed by Defendant CBG from November 18, 2019, up to and through the date of the order granting class certification, and who received a wage statement that (1) did not contain the address for the employer, and/or (2) did not contain the inclusive dates of the period for which the employee is paid.
h. Subclass VIII (Waiting Time Subclass): All members of Subclasses I, II, III, IV and/or V who separated their employment from Defendant CBG from November 18, 2017, up to and through the date of the order granting class certification.
i. Subclass IX (Reimbursement Class): All Field Employees employed by Defendant CBG from November 18, 2016, up to and through the date of the order granting class certification, who were not reimbursed for expenses that were necessary to carry out their duties, including (1) the use of their cellular phone for work purposes, (2) work boots, (3) safety vests, and/or (4) hard hats.
j. Subclass X (Unfair Competition Subclass): All Field Employees employed by Defendant CBG from November 18, 2016, up to and through the date of the order granting class certification, who were subjected to Defendants' unlawful, unfair, or fraudulent business acts or practices identified in Subclasses I, II, III, IV, V, VI, VII, VIII, and IX.
FLSA Class: All Field Employees who were employed by Defendant CBG and Defendant Caleb Christensen ("Defendant Christensen") from November 18, 2017, up to and through the date of the order granting collective action certification and who elect to opt-in to this action pursuant to FLSA, 29 U.S.C. § 216(b).
C. The Parties' Arguments
Plaintiffs seek certification of the subclasses under Fed. R. Civ. P. 23(b)(3), which requires "that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Plaintiffs also seek certification of an FLSA collective action, and, as discussed below, invite the Court to forego the first "conditional" certification stage and instead ask the Court to finally certify the FLSA action as a collective action. Plaintiffs represent that, based on Defendants' records, there are at least 283 putative Class Members. See Mot. 17:12-14.
Defendants oppose on multiple grounds. Defendants argue that Plaintiffs lack standing to bring the facially deficient wage statement claim, so that class should not be certified. As for the other classes, Defendants argue that Plaintiffs cannot satisfy Rule 23, or the standard for certifying an FLSA collective action.
The Court first considers Defendants' standing argument, then the motion to certify under Rule 23(b)(3), and then the motion to certify the FLSA collective action.
III. PLAINTIFFS LACK STANDING TO PURSUE THEIR STAND-ALONE WAGE STATEMENT CLAIMS
Defendants first argue that Plaintiffs lack standing to pursue their "facially invalid" or stand-alone wage statement claims because the alleged violations are mere technical violations that do not cause a concrete injury-in-fact.
A plaintiff in federal court "must demonstrate [Article III] standing for each claim [s]he seeks to press." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). Courts employ a two-step approach to assess whether a statutory violation causes a concrete injury sufficient to satisfy Article III. Patel v. Facebook, Inc., 932 F.3d 1264, 1270 (9th Cir. 2019). Courts ask "(1) whether the statutory provisions at issue were established to protect [the plaintiff's] concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests." Robins v. Spokeo, Inc., 867 F.3d 1108, 1113 (9th Cir. 2017). At the class certification stage, the analysis focuses solely on the class representative. Melendres v. Arpaio, 784 F.3d 1254, 1261-62 (9th Cir. 2015).
Here, Plaintiffs assert that the wage statements facially violate Cal. Labor Code § 226 in two ways. First, while § 226(a)(6) requires employers to provide wage statements that show "the inclusive dates of the period for which the employee is paid," the wage statements CBGE provided only indicate the "ending" date of the pay period and omit the start date of the pay period. Second, while § 226(a)(8) requires the wage statements to show "the name and address of the legal entity that is the employer," the wage statements CBGE provided did not show the address.
As to the first step of the analysis, the Ninth Circuit has held that "§ 226(a) protects employees' concrete interest in receiving accurate information about their wages in their pay statements," and that an employer's failure to disclose statutorily required information on wage statements violates a concrete interest. Magadia v. Wal-Mart Associates, Inc., 999 F.3d 668, 679 (9th Cir. 2021). Indeed, Defendants do not challenge the first step of the standing analysis, and the Court finds its satisfied.
However, the second step of the analysis is not satisfied: the violations here do not cause real harm relative to the concrete interests § 226 is intended to safeguard. The Court reaches this conclusion based both on the 3AC and on the evidence.
First, accepting arguendo Plaintiffs' invitation to assess standing based solely on the allegations of the 3AC, the Court finds that the 3AC does not adequately allege an injury in fact caused by these violations. Plaintiffs' wage statement claim is alleged in count 6, and ¶ 98 therein includes all of the allegations of Defendants' wage statement violations and Plaintiffs' resulting injury. Paragraph 98 reads in full:
98. Defendants failed to properly maintain itemized wage statements in that, among other things, the wage statements provided do not set forth an accurate showing of actual hours worked, an accurate showing of wages, the meal periods
taken, the piece-rate formula, number of pieces completed, and other related information required by California law. Moreover, Defendants failed to timely submit upon request adequate itemized wage statements of Plaintiff as required by the above-referenced laws and regulations. Plaintiffs are informed and believe that said failure was knowing and intentional by Defendants as Defendants sought to deprive Plaintiffs and the Itemized Wage Statement Subclass members of their legitimate right to unpaid wages and/or commissions, and otherwise deprive them of overtime compensation. As a result of Defendants' intentional and knowing failure to maintain adequate itemized statements, Plaintiff and the members of the Itemized Wage Statement Subclass could not ascertain the actual amount of compensation they earned and/or were entitled to, and thereby suffered cognizable injury in the form of the accrual of unpaid wages, commissions, overtime, and interest. Moreover, Defendants failed to provide Plaintiffs and the Employer Address Wage Statement Subclass with wage statements that contained the correct, complete name and address of the legal entity that is the employer in violation of Labor Code § 226(a)(8).3AC ¶ 98 (emphasis added).
The Court first considers the missing pay period start date, which violates § 226(a)(6). Nowhere in ¶ 98 or anywhere else in the 3AC do Plaintiffs allege that Defendants actually committed this particular violation. Count 6 asserts various other violations of § 226(a)—specifically, violations derivative of other Labor Code violations, and a violation of § 226(a)(8) (employers' address)—but not the missing start date. See 3AC ¶ 98. From the fact that the 3AC does not allege that Defendants committed the missing start date violation, it necessarily follows that the 3AC does not allege any injury in fact caused by the missing start date.
The Court next turns to the missing address. While count 6 does allege that the wage statements did not show the complete name and address of the legal entity that is the employer, in violation of § 226(a)(8), Plaintiffs allege no injury deriving from that violation. See 3AC ¶ 98. This conclusion arises both from how ¶ 98 is structured and from the logic of the alleged injury. Structurally, ¶ 98 lists a number of wage statement violations that are derivative of other Labor Code violations, then pleads an injury, and then pleads, almost as an afterthought following the word "moreover," the missing address violation. This structure tends to undermine any potential inference that the missing address caused the alleged injury. Substantively, the injury alleged is that Plaintiffs "could not ascertain the actual amount of compensation they earned and/or were entitled to, and thereby suffered cognizable injury in the form of the accrual of unpaid wages, commissions, overtime, and interest," but these are injuries that might arise from the derivative wage statement violations enumerated earlier in the paragraph; these are not injuries that could plausibly arise from the missing employer address. It is not at all clear how an address missing from a wage statement would prevent Plaintiffs from ascertaining the amount of compensation they are due. Thus, the 3AC does not tie Plaintiffs' alleged injury (they could not ascertain the amount of compensation due them and thus were not properly compensated) to either the missing start date or the missing address. Accordingly, the 3AC does not allege facts sufficient to show any injury in fact deriving from violations of § 226(a)(6) or § 226(a)(8).
Second, Plaintiffs' evidence does not establish standing either. Plaintiff Barr's declaration does not mention wage statements at all, so he lacks standing. See Barr Decl. (Pls' Ex. 62). In their declarations, Plaintiffs Hernandez and Nand do mention wage statements in almost identical paragraphs, but they simply describe the wage statements as missing CBGE's address and as missing the start (and end) dates of the pay period. See Hernandez Decl. (Pls' Ex. 60) ¶ 19, Nand Decl. (Pls' Ex. 61) ¶ 19. However, neither Hernandez nor Nand claim to have been harmed in any way from this missing information. As the Supreme Court recently reiterated in TransUnion LLC v. Ramirez, an "asserted informational injury that causes no adverse effects cannot satisfy Article III." 594 U.S. 413, 141 S.Ct. 2190, 2214, 210 L.Ed.2d 568 (2021) (citation omitted); see also Metcalf v. TransPerfect Translations International, Inc., 2022 WL 4661926, at *16 fn. 8 (S.D.N.Y., 2022) (stating that TransUnion "clarified that an informational injury, without some downstream consequences, is insufficient for standing").
The wage statements do include the end dates; they are missing only the start dates.
Furthermore, Plaintiffs filed wage statements with paychecks attached thereto showing that the attached paychecks themselves included CBGE's full address. See, e.g., Hernandez Decl. Ex. A (Mr. Hernandez's wage statements and checks). And, the wage statements do include the end dates of the pay period, so even without the start dates, determining the workweek is a straightforward exercise of counting back to the beginning of the week. For these reasons, even assuming CBGE's wage statements do violate § 226(a)(6) and § 226(a)(8), CBGE nevertheless provided, with and/or on the wage statements, the information sufficient for Plaintiffs to understand their wages.
The Court therefore concludes that the 3AC does not allege facts sufficient to confer standing for the facially deficient wage statement claims: the 3AC does not actually allege a violation of § 226(a)(6), let alone harm resulting therefrom, and while the 3AC does allege a violation of § 226(a)(8), the only harm it alleges is tied to other wage statement violations and has no connection to § 226(a)(8). Nor have Plaintiffs put forth evidence of any concrete injury: Barr does not attest to this violation, and while Hernandez and Nand do attest to the violation they don't claim any injury. Accordingly, Plaintiffs facially-deficient wage statements claim asserts only technical or informational violations that Plaintiffs lack standing to bring.
IV. PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
A. Legal Standard for Rule 23 Class Certification
To attain class certification, Plaintiffs must satisfy the threshold requirements of Federal Rule of Civil Procedure ("Rule") 23(a), and demonstrate that the action is one of the "types of class action" defined in Rule 23(b). Mazza v. Am. Honda Motor Co., 666 F.3d 581, 588 (9th Cir. 2012). Only those types of cases described by Rule 23(b) are susceptible to adjudication on a class-wide basis and thus eligible for certification.
Rule 23(a) provides that a case may be certified as a class action if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.Fed. R. Civ. P. 23(a). These requirements are referred to as numerosity, commonality, typicality, and adequacy, respectively. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
Plaintiffs contend that this action is of the type described by Rule 23(b)(3), which requires "that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy."
"Rule 23 does not set forth a mere pleading standard." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) ("Dukes"). "[A] party must not only be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a)," but "also satisfy through evidentiary proof at least one of the provisions of Rule 23(b)." Comcast v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013).
"[S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question," and certification is proper only if "the trial court is satisfied, after a rigorous analysis, [that Rule 23 has] been satisfied," Dukes, 564 U.S. at 350-51, 131 S.Ct. 2541 (citing General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160-161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). "Frequently that 'rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped. '[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.' " Dukes, 564 U.S. at 352, 131 S.Ct. 2541 (citations omitted).
B. Discussion
Plaintiffs seek to certify one over-arching class and 10 subclasses. As discussed above, Plaintiffs do not have standing to pursue the facially-deficient wage statement claims, so the corresponding class will not be certified. Plaintiffs define the remaining subclasses by reference to the 7 "practices." Some of the subclasses incorporate more than one practice, so the definitions of some of the subclasses overlap. It would thus be impracticable to analyze the subclasses independently. Indeed, Plaintiffs' papers discuss a hodgepodge of claims and practices, seldom addressing the certifiability of each subclass as such. Accordingly, to determine whether certification of the class and subclasses is appropriate, the Court considers whether the practices upon which all of the classes are based satisfy Rule 23.
Plaintiffs' definition of the Reimbursement Subclass does not refer to any practice, but the Court views this as an error because the Plaintiffs do define a reimbursement practice that is relevant only to a Reimbursement Subclass.
The main focus of the parties' papers—and the dispositive issue—is whether Plaintiffs have established commonality under Rule 23(a)(2). Plaintiffs' central premise for all of their subclasses is that they satisfy commonality (and predominance) because they "identify several undisputed uniform practices that operate to deny employees of all wages due and owing to them." Mot. 1:28-2:2. Accordingly, establishing these "uniform practices" is essential to Plaintiffs' theory of commonality. Defendants respond that commonality is not satisfied because Plaintiffs have not shown that CBGE engages in any of the alleged "uniform practices" and that therefore a classwide proceeding would not generate common answers apt to drive the resolution of the litigation. The Court has reviewed all of the parties' memoranda and evidence, and finds that Plaintiffs have not established any of the uniform practices they assert, so they have not satisfied commonality.
1. Defendants' Alleged Lack of Written Wage and Hour Policies
Although it is not one of the 7 policies referenced in the 3AC, Plaintiffs begin their Motion with the blanket assertion that commonality is met because Defendants lack a uniform wage and hour policy. (This is different from alleging that Defendants have a uniform unlawful policy.) The factual premise of this argument is that Defendants did not produce an employee handbook prior to the 2022 Employee Handbook. From this lack of evidence, Plaintiffs extrapolate that Defendants lacked a wage and hour policy before 2022. But CBGE's employee Valarie Christensen credibly testified that CBGE did have an employee handbook before 2022, but that CBGE could produce only the most recent version because when they update it, they simply save over the existing file and do not keep old versions. See Valarie Christensen Depo. pp. 14-20 (Evidence Packet 336-341). Thus, the only version available to produce was the most recent one, from 2022, which Defendants filed as Exhibit G. See 2022 Employee Handbook (Dkt. No. 33-1, Ex. G). Furthermore, several class members did mention receiving or being aware of handbooks in years before 2022. Thus, the Court is not persuaded that, before 2022, CBGE lacked an employee handbook and thus lacked a uniform wage and hour policy. Accordingly, Plaintiffs cannot establish commonality through the absence of a policy.
2. "Travel Time" Practice
Plaintiffs allege that CBGE has a uniform "travel time" practice of requiring its employees to work at the yard (a location near the jobsite where materials are stored) before their shifts started and after their shifts ended to handle materials and equipment and perform other preparatory or clean-up work. Plaintiffs allege that they were not paid for this off-the-clock work, and were paid only for time spent at the actual jobsite, typically from 7:00 a.m. to 3 or 3:30 p.m. Plaintiffs point to 18 declarations from putative class members stating that they were not paid for such pre-shift and post-shift work, and that some were told by Caleb Christensen, CBGE employee Seth Christensen, and/or CBGE foreman Tony Sampson that the compensable shift hours start at the jobsite and "not when employees arrived at the yard." Mot. 7:13-16.
However, Defendants filed substantial contrary evidence. First, Caleb Christensen attests in his declaration as to CBGE's policies and practices regarding timekeeping and hours worked. See Christensen Decl. (Dkt. No. 33-1, pp. 8-27) ¶¶ 21-41. In summary, he states that CBGE's policy is to pay for all hours worked, that there are no pre-shift or post-shift duties, that an employee's shift starts for timekeeping purposes once work is commenced, and if work needs to be done at the yard before or after the work at the jobsite, that work is performed after the reporting time, typically 7:00 a.m. When work is required before the typical 7:00 a.m. start time, then the hours are recorded at that earlier start time. He also stated that he never required or permitted employees to perform work off-the-clock, or encouraged Foremen—who are responsible for timekeeping—to inaccurately record time. In addition, Christensen points to the 2022 Employee Handbook, which provides CBGE's timekeeping and overtime policies—none of which Plaintiffs suggest are unlawful. Second, Christensen's assertions are substantiated by 18 declarations from current and former CBGE employees attesting that they were never required to do pre-shift or post-shift work, and that they were paid for all hours worked. In addition, some explained that they sometimes did arrive at the yard earlier than the designated start time, but that this was not required and they did so for their own reasons—e.g., to beat traffic, or to be ready by the 7:00 a.m. start time—and they spent that pre-shift time doing things other than work such as socializing with other employees or resting in their cars. In addition, some of Plaintiffs' declarants testified in deposition to the effect that they did not perform pre-shift or post-shift duties. For example, Nicholas Donatelli, who worked as a truck driver and as a laborer, stated in his declaration that he "was not paid for all hours (or at the proper rate of pay) that I performed work for Defendants, including overtime . . ." Donatelli Decl. (Dkt. No. 27-2, 369-372) ¶ 5. However, at deposition, Mr. Donatelli testified to the effect that when he was a laborer, he arrived at the yard early (at 6:30 a.m.) not to work but to beat traffic, and he did not testify that he worked at the yard but simply "jump[ed] in the dump truck and take material to the job site," which was "right next to" the yard, only 30 seconds away. Donatelli Depo. 28:18-29-25. Mr. Donatelli also testified that he recorded his own time and did so accurately, and did not lie. Furthermore, while the alleged "travel time" practice, by its terms, is tied to work performed at the yard, some class members did not report to the yard, and therefore could not have been required to do pre-shift or post-shift work there. For example, Plaintiff Barr's testimony seems to be that when he worked as a driver, which was his primary position, he did not have a specific jobsite, did not work at the yard, and recorded his own time, which he did accurately. Thus, even a named Plaintiff, when he worked as a driver, could not have engaged in pre-shift or post-shift work at the yard because he did not report to the yard before his shift, or return there afterwards. Similarly, some employees were flagmen who simply reported directly to the jobsite and not to the yard, so they could not have performed pre-shift or post-shift work at the yard. In another variation, Mr. Donatelli testified that his work as a truck driver did involve reporting to the Apple Valley Yard, yet he did not perform work before or after his shift. Donatelli Depo. 26:1-24.
Given this conflict in evidence, Plaintiffs have not shown that there is a uniform practice by which CBGE permits or requires class members to perform work off-the-clock before or after their shifts. Therefore, the question of whether any particular class member did such off-the-clock work can only be resolved on an individual basis. The Court therefore finds that Plaintiffs have not established their theory of commonality, which is premised on the existence of a uniform "travel time" practice. Therefore, claims based on this "travel time" practice are not amenable to treatment as a class action.
3. Underreporting Practice
Plaintiffs have not established the alleged underreporting practice. Plaintiffs attempt to establish the existence of this "practice" with the following: "Numerous putative class members confirmed that: 1) the hours worked were transferred to other days to reduce overtime hours; or 2) the hours worked each shift were reduced; or 3) paid in cash, but not in the appropriate amount (in addition to those putative class members who confirmed the Travel Time Practice which results in the underreporting of hours). Plaintiffs also confirmed Defendants misclassified them during their employment." Mot. 9:17-22. Plaintiffs cite some of the class member declarations as attesting to the foregoing experiences.
However, even as defined by the Plaintiffs, this "practice" is, at best, a mash-up of several (3, 4, or more) different alleged "sub-practices" that do not yield a common question apt to be resolved by a common answer. Furthermore, it is not clear what each of these sub-practices means. For example, is sub-practice 2—the assertion that "the hours worked each shift were reduced"—redundant to the alleged "travel time" practice (unpaid pre-shift and post-shift work), or it is something else? If the former, then the theory fails as discussed above; if the latter, then it is undefined and uncertifiable. As another example, the memorandum refers to employees being "misclassified," but does not explain what that means: does this mean (1) misclassifying employees as exempt versus non-exempt, or (2) misclassifying an employee under a lower-paid job title and thus paying them at the wrong, lower hourly rate, or (3) misclassifying their projects as regular projects instead of public works projects paid at the higher prevailing rate? If it's either (1) or (2), then plaintiffs have not shown that this is a "practice," and if it's (3), then it's redundant to the standalone misclassifying practice (discussed next) and it's not clear why it would be included in the underreporting practice. Either way, a sub-practice so ill-defined cannot supply the common question required by Rule 23(a).
Furthermore, the named Plaintiffs do not attest to an "underreporting practice" in their declaration. None of the named plaintiffs states that their hours were transferred to different days to avoid triggering overtime (sub-practice 1), or that they were paid the wrong amount and in cash (sub-practice 3). Nand and Barr describe missing overtime (Nand Decl. ¶ 13, Barr Decl. ¶ 9), but based on their factual assertions, this missing overtime arises out of alleged uncompensated pre-shift and post-shift work, and is thus captured by the alleged "travel time" practice and is not tied to any distinct "underreporting" practice. And while Plaintiff attest to "misclassification," this is clearly the alleged misclassification to avoid paying public works prevailing rates that is already captured by the alleged misclassification practice. For all of these reasons, Plaintiffs' alleged "underreporting practice" does not establish a common question that is susceptible to common resolution on a classwide basis. The Court also notes that because none of the named Plaintiffs attests to being subject to a distinct underreporting practice, they are not typical of the subclass that would assert the resulting claims, and they lack standing to bring them. For these reasons, Plaintiffs have not satisfied Rule 23(a) for the underreporting practice.
Finally, in their Reply, Plaintiffs do not attempt to rebut Defendants' arguments opposing certification based on the underreporting practice, and thus they appear to concede that certification of any subclass based on this practice is not appropriate.
4. Misclassifying Practice
Plaintiffs assert that pursuant to a misclassifying practice, CBGE misclassified employees to avoid paying them at the higher rate of pay, either by "1) paying them at a lower rate despite performing work in a higher paying job classification during a shift; or 2) working on a public work project but being paid a non-prevailing wage for the shift." Mot. 9:6-9. Plaintiffs point to their own declarations and to putative class member declarations asserting that they were either misclassified by job title, or were not paid the prevailing rate for public works projects, or both.
But once again, Defendants have filed substantial conflicting evidence tending to show that CBGE's policy is to correctly classify its employees and pay them accordingly. First, Caleb Christensen explained CBGE's policies for complying with prevailing wage rate rules. See Christensen Decl. ¶¶ 9-20. He states, "[w]hen Christensen Brothers is working on a public works project, it is our policy to pay no less than the prevailing wage rate set by the DIR for each employee work classification for work performed on a public work project." Christensen Decl. ¶ 11. He also explained that CBGE submits its certified payroll records to the California Labor Commissioner so the Commissioner can validate compliance with prevailing wage rate requirements. Id. ¶ 13. Christensen also explained that most employees work in a single classification, but that those few employees who are cross-trained for several different classifications are paid the prevailing wage corresponding to each classification for the amount of time they worked in that classification. Id. ¶¶17-19. He also presented the payroll records for an employee who worked at 3 different prevailing wage rate classifications, and those corresponding paystubs show that that employee's pay corresponded to what CBGE reported to the Commissioner. Id. ¶ 19. Second, again, CBGE filed employee declarations attesting that CBGE correctly classified their public works projects, and paid them at the correct job classifications. And finally, Defendants rebut several of the examples of alleged misclassification (of position classification and/or public works project versus private project classification), showing that the particular putative class members were in fact properly classified and paid accordingly. See Opp'n. pp. 11 (discussing complaints of "Cesar A" and "Robert C") Relatedly, Defendants respond to other complaints, showing that they are highly nuanced and require examination of specific pay records and project records, and that their merits can only be resolved by highly individualized inquiries and not on a classwide basis. See Opp'n 10:17-11:15 (responding to misclassification complaints of named Plaintiffs Hernandez and Barr). And as with the alleged underreporting practice, in their Reply, Plaintiffs do not defend or otherwise reinforce their position on the misclassification practice.
In light of the conflicting evidence, Plaintiffs have not shown that CBGE has a uniform misclassification practice, so their theory of commonality fails. The Court therefore finds that Plaintiffs cannot satisfy the commonality requirement of Rule 23(a) for any subclass based on the alleged misclassification practice.
5. Late Meal Period Practice, Meal Period Practice
California law requires an employer provide a meal period to any employee who works in excess of five hours in a workday, and a second meal period to any employee who works in excess of ten hours in a workday. Cal. Labor Code §§ 226.7, 512(a). The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities, permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1040, 139 Cal.Rptr.3d 315, 273 P.3d 513 (2012) ("Brinker"). An employer's meal period obligations are not satisfied unless the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period. Id. at 1036, 139 Cal.Rptr.3d 315, 273 P.3d 513.
Plaintiffs argue that Defendants engage in two practices that violate these laws.
a) Late Meal Period Practice
First, Plaintiffs argue that Defendants have a "late meal period practice" that is reflected in two ways. First, they assert that CBGE's payroll data shows that for 2,774 shifts out of 34,103 shifts, meal periods were recorded after 5.02 hours of work, which is late. Second, Plaintiffs argue that for 17,948 shifts reflecting meal breaks at the start of the sixth hour of work, those meal breaks are late if those shifts were also subject to the "travel time" practice, because those employees worked more than 5 hours before taking a meal break. See Mot. 11:2-25.
However, Plaintiffs have not established a late meal period practice. First, regarding the facially late meal periods allegedly reflected in the payroll records, Plaintiffs have not explained how their evidence reflects a practice, as opposed to occasional, ad hoc late meal breaks. The records show that out of 34,103 shifts, only 2,774 shifts reflected late meal breaks. This is a violation rate of 8.13%, a low rate that falls short of establishing some kind of uniform practice. Furthermore, Plaintiffs point to no evidence in their supporting declarations attesting to late meal periods. It does not even appear that the named Plaintiffs contend that they received late meal periods at all, let alone with sufficient regularity to substantiate the existence of a practice. Second, as discussed above, Plaintiffs have not established that the "travel time" practice gives rise to common questions, so the late meal period practice, insofar as it is based on the "travel time" practice, likewise fails to yield common questions warranting class certification. For these reasons, Plaintiffs have simply failed to establish any substantial basis for finding that CGBE had a uniform practice of late meal periods. Therefore, the commonality requirement is not satisfied for claims based on the alleged late meal periods practice and the corresponding subclasses cannot be certified.
b) Missed Meal Periods Practice
Second, Plaintiffs argue that Defendants have a "missed meal periods practice." Based on the payroll data, no meal breaks were recorded for 2,597 shifts out of 34,104 shifts that exceeded 5 hours. And, a second timely meal period was recorded for only 1 shift out of 2,597 shifts that exceeded 10 hours. Plaintiffs also contend that the payroll data shows that CBGE did not pay meal period premiums for missed meal periods. Plaintiffs also argue that there were certainly more violations than what are reflected in the payroll records because Foremen were required to indicate on their daily reports that meal periods were taken even when they weren't. Putative class members attest to not being able to take uninterrupted first or second meal periods and not receiving extra pay or premiums.
However, as with all of the other practices, Defendants present substantial contradictory evidence. First, CBGE's 2022 Employee Handbook includes a meal period policy that is facially compliant: it requires employees who work more than 5 hours in a workday to take a 30 minute break, and states that those who work 10 hours are entitled to a second meal break. See Handbook p. 25. The Handbook advises that these breaks may be waived under some circumstances, and advises that "[y]ou must not perform any work during your meal period, and you must stop working for at least 30 full, consecutive minutes." Id. This policy appears to be facially compliant, and Plaintiffs do not argue otherwise. Second, Caleb Christensen also testified as to this policy, and states that Foremen were trained to provide employees the required uninterrupted meal breaks. See Christensen Decl. ¶¶ 45-53. Third, the employee declarations Defendants filed all attest to being permitted and/or required to take their uninterrupted meal breaks, and that if they missed meal breaks, it was because they waived them to be able to leave work earlier. See, e.g., Clay Decl. ¶ 19 ("I believe I properly received all required uninterrupted meal and rest periods . . . I saw other crews taking meal and rest breaks on a daily basis during my employment with Christensen Brothers"); Aurelio Decl. ¶ 27 (Ex. 4) ("On several occasions, our Foreman has informed us that our hours for the day were approaching 10 hours and that we were entitled to a second lunch break. On those occasions, my crew and I voluntarily opted to skip (waive) our second meal period so that we could return home earlier and relax.")
Consistent with Defendants' declarations, even the testimony of two named Plaintiffs rebuts the claim that CBGE had a uniform practice of denying uninterrupted meal breaks. Plaintiff Barr stated that when he was a driver, he completed his own time sheets, indicated that he took a lunch break, and did in fact take an uninterrupted lunch break. And Plaintiff Nand attested that he sometimes took meal periods, that the asphalt crew he worked on usually did not get a meal period, but that he saw other types of crews taking their meal breaks ("Pipeline took a lot of breaks . . ."), which was "kind of upsetting" because Nand's crew was "working constantly for, like 8 hours, and you see somebody taking like three or four breaks." Nand Depo. 207:10-21.
In the face of Defendants' conflicting evidence, Plaintiffs' evidence does not show that CBGE had a uniform practice of preventing putative class members from taking required meal breaks, such that a violation of the wage and hour laws could be proved on a classwide basis. See Ordonez v. Radio Shack, Inc., No. CV 10-7060-CAS (JCGx), 2013 WL 210223, *7-8 (C.D. Cal. Jan. 17, 2013) (denying motion for class certification because plaintiff failed to demonstrate that the employer had a uniform policy of preventing employees from taking meal breaks); Gonzalez v. Millard Mall Services, Inc., 281 F.R.D. 455, 463-64 (S.D. Cal. 2012) ("The conflicting evidence reveals that Millard did not have a uniform practice of denying employees their meal breaks and/or rest breaks. Some employees stated that they missed meal and rest breaks while others stated they always received their meal and rest breaks and others provided contradictory statements. Because of the varying declarations and conflicting facts of the putative class members, Plaintiffs have failed to show that Defendants had a common policy that 'prevented' employees from taking meal breaks and/or failed to 'permit and authorize' employees to take rest breaks under Rule 23(a)(2)"). Therefore, the commonality requirement is not satisfied for claims based on the alleged missed meal periods practice and the corresponding subclasses cannot be certified.
6. Rest Period Practice
California law requires its employers to provide nonexempt employees rest breaks of "ten (10) minutes net rest time per four (4) hours or major fraction thereof." Cal. Code Regs., tit. 8, § 11070(12)(A). "The California Supreme Court has interpreted these statutes and orders as requiring employers to ensure only that [ ] break periods are made available to employees. An employee must show that the employer actually prevented the employee from taking breaks; mere proof of knowledge that the employee was forgoing breaks is insufficient." Reece v. Unitrin Auto and Home Ins. Co., 2013 WL 245452, *5-6 (N.D. Cal. Jan. 22, 2013) (citing Brinker, 53 Cal.4th at 1038-40, 139 Cal.Rptr.3d 315, 273 P.3d 513).
Plaintiffs contend that "[p]utative class members confirm that they were not permitted to take 10-minute rest breaks during their shifts, and did not receive rest period premium payments for those violations," and cite a number of declarations to this effect. Mot. 13-16. This single sentence is the Motion's sole discussion of a purported rest period "practice."
Although Plaintiffs don't cite the named Plaintiffs' declarations, the Court has reviewed them and confirms that they contend they missed rest breaks and were not paid rest break premiums. Accordingly, the named Plaintiffs have standing to pursue this claim.
However, as with the other practices, Defendants have filed contrary evidence. First, CBGE's 2022 Employee Handbook includes a rest period policy that is facially compliant. See Handbook p. 25. Second, Caleb Christensen also attests to CBGE's rest policy, which appears to be compliant—Plaintiffs don't argue otherwise—and states that Foremen were trained to provide required rest periods. Christensen Decl. ¶¶ 45-53. Third, the employee declarations Defendants filed attest to those employees taking their rest breaks every day. See Opp'n p.14, fn 8. These employee declarations also provide some detail about the circumstances surrounding rest breaks, lending these declarations credibility: "it has generally been easy to take breaks because there is frequently down time throughout the day" (Aurelio Decl. ¶ 24); "[t]he crew I worked with was always given the opportunity to take rest breaks per the policy, and I always had the opportunity to take my rest breaks. If I ever missed a rest break, it was by my own choice. I do not recall any time that I was unable to take a rest break per the policy," (Blay Decl. ¶ 17); "[m]y crew members were permitted to do whatever they wanted during their rest breaks (go to their car, leave the job site, make personal calls, etc.), so long as they were ready to recommence work at the end of the ten minute rest break and so long as they did not bother other workers who were not on a rest break at the same time," (Barnett Decl. ¶ 18); "[f]or a normal eight hour day starting at 7:00 am, I would take my first rest break around 9:00 am, followed by a meal break starting sometime between 11:00 am and 12:00 pm, and then followed by a second rest break as early as 1:00 pm, depending on how much longer my scheduled shift was. If my shift was going late into the afternoon, I would take my second rest break closer to 2 pm or 2:30 pm." (Peters Decl. ¶18).
Here and elsewhere in this Order, the Court cites declarations and depositions as examples of evidence; these citations are not exhaustive catalogs of the evidence. The parties generally provided more comprehensive citations to the evidence in their footnotes.
Given all of the conflicting evidence, Plaintiffs have not shown that CBGE has a uniform practice of not permitting its employees to take rest breaks and failing to provide premiums for missed rest breaks. Accordingly, Plaintiffs have not shown that claims based on the rest break "practice" raise a common question than can be resolved with a common answer. In addition, to the extent employees did not take rest breaks, many of Defendants' declarants state it was a matter of their choice, further detracting from any commonality that could arise from such claims.
7. Reimbursement Practice
Plaintiffs contend that "Defendant CBG did not reimburse them for expenses that were necessary to carry out their duties, including (1) the use of their cellular phone for work purposes, (2) work boots, (3) safety vests, and/or (4) hard hats." Mot. 13:17-14:2. They cite a deposition and declarations whereby Plaintiffs and putative class members claim that they incurred certain expenses that CBGE did not reimburse.
The expenses Plaintiffs' declarants refer to include not only the 4 items listed, but also miscellaneous tools, equipment, and other supplies and gas that seem to have been purchased on an ad hoc basis. However, the Motion does not address these expenses at all, so the Court does not consider them included in the "reimbursement practice." Thus, apart from noting that such allegations raise only individualized issues, and that Defendants filed evidence documenting numerous reimbursements for such ad hoc purchases over the class period, see Valarie Christensen Decl. Ex. N (Dkt. No. 33-1 pp. 244-250), the Court will not address them further.
However, the single sentence quoted above is the Motion's sole discussion of a purported "reimbursement practice." Simply stated, this minimal reference fails to show any kind of uniform "practice" as to any of the 4 listed expenses that would warrant class treatment.
Furthermore, on the merits, the employer is required to reimburse employees only for "necessary expenses," Cal. Lab. Code § 2802(a), which does not include an employee's basic work clothing that is "usual and generally usable in the occupation." Carlos v. Wal-Mart Assoc., Inc., 2022 WL 2784768, *5 (C.D. Cal. May 3, 2022); see also Townley v. BJs Restaurants, Inc., 37 Cal.App.5th 179, 185, 249 Cal.Rptr.3d 274 (2019) (employer requiring "slip resistant shoes" did not have to reimburse employees because slip resistant shoes are "basic wardrobe items which are usual and generally usable in the occupation"). And, "[t]he employer is not required to pay for non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots)." 29 CFR § 1910.132(h)(2). Here, Plaintiffs present no evidence that CBGE required employees to wear any particular kind of boots or specialty footwear, and in fact Plaintiffs' own witnesses testified that there was no specific footwear requirement. As for the safety vests and hard hats, Caleb Christensen attests that CBGE supplied hard hats and safety vests, usually on the first day of work, but that some employees did not wear them and others preferred to use their own hard hats and vests rather than those issued by CBGE. See Christensen Decl. ¶¶ 66-68. Plaintiffs' own witnesses confirmed that CBGE provided hard hats and vests. All of the foregoing strongly suggests that CBGE did not have to reimburse employees for these expenses, and it fails to show that CBGE had a practice of refusing to reimburse for necessary items.
Plaintiffs also assert that CBGE did not reimburse them for using their cell phones for work. Once again, Plaintiffs have not shown that CBGE had a uniform practice requiring putative class members to use their cell phones for work. While most of Plaintiffs' declarants state that they did use their personal cell phones to communicate about scheduling and to coordinate while on the job, few of them also assert that doing so was required. In fact, four of Plaintiffs' witnesses do not mention cell phone use, thus undermining the uniformity of Defendants' alleged practice. See Pls' Exhs. 75, 76, 86, 87. Furthermore, many of Defendants' declarants testified that they did not need or use their personal cell phones for work, because Foremen would give them their next days' assignment in person at the end of each day, and while on the jobsite, they just spoke their Foremen or other workers directly See, e.g., Aurelio Decl. ¶ 37, Pescador Decl. ¶ 38, Barnett Decl. ¶¶ 28-29. Where employees (such as crew members doing traffic control) needed electronic communication, they used company-issued radios, not cell phones. See Najera Decl. ¶¶36-38. And certain Foremen who needed to use cell phones were provided them by CBGE. See Sampson Depo. 30:17 ("I had a company phone.") All of this is consistent with Caleb Christensen's declaration describing CBGE's facially-compliant reimbursement policy and cell phone policy. See Caleb Christensen Decl. ¶¶ 54-68.
In light of the conflicting evidence, Plaintiffs have not shown that CBGE has a uniform reimbursement practice, so Plaintiffs' theory of commonality fails. The Court therefore finds that Plaintiffs cannot satisfy the commonality requirement of Rule 23(a) for any class based on the reimbursement practice.
As the Court has found that none of Plaintiffs' practices or resulting subclasses satisfy Rule 23(a), the Court need not address any other elements of the Rule 23 analysis.
The Court does note, however, that Plaintiffs have also failed to satisfy numerosity for any of the subclasses. Plaintiffs represent that, based on Defendants' records, there are at least 283 putative Class Members. However, they do not say how many putative class members are in each subclass, or even proffer an educated guess. This is insufficient, and the Court would deny certification of all subclasses on this basis as well. See, e.g., Chavez v. AmeriGas Propane, Inc., 2015 WL 12859721, at *9 (C.D. Cal. 2015) (court cannot find that numerosity is satisfied where there may be 489 potential class members but plaintiff "adduces no evidence [ ] regarding the number of individuals who are members of the nine subclasses proposed").
V. MOTION TO CERTIFY FLSA COLLECTIVE ACTION
Plaintiffs move to certify their FLSA claim as a collective action. Plaintiffs sole FLSA claim—count 1—is for Failure to Pay Overtime and Minimum Wage Under the Fair Labor Standards Act 29 U.S.C. § 201 et seq.
A. Legal Standard
Under section 216(b) "workers may join a collective action if they claim a violation of the FLSA, are 'similarly situated' to the original plaintiff, and affirmatively opt in." Campbell v. City of Los Angeles, 903 F.3d 1090, 1108 (9th Cir. 2018). In this Circuit, courts typically consider whether to maintain an FLSA collective action twice in a case. First, early in the case, the court makes a "preliminary determination that the collective as defined in the complaint satisfies the 'similarly situated' requirement of section 216(b)." Id. at 1109. The conditional certification stage imposes only a " 'lenient [standard] that typically results in certification.' " Luque v. AT&T Corp., 2010 WL 4807088, *3 (N.D. Cal. Nov. 19, 2010) (cleaned up). "Second, after relevant discovery, "[t]he employer can move for 'decertification' of the collective action for failure to satisfy the 'similarly situated' requirement in light of the evidence produced to that point." Id.
B. Discussion
As noted above, Plaintiffs define the "FLSA Class" as "All Field Employees who were employed by Defendant CBG and Defendant Caleb Christensen ('Defendant Christensen') from November 18, 2017, up to and through the date of the order granting collective action certification and who elect to opt-in to this action . . ." Plaintiffs do not explain which of the alleged "practices" give rise to the FLSA claims, but it appears that FLSA unpaid overtime and minimum wage claims could arguably arise from the "Travel Time" Practice, the Underreporting Practice, the Late Meal Period Practice, the Meal Period Practice, and the Rest Period Practice. Plaintiffs invite the Court to embark on the second stage analysis.
For their part, Defendants address the FLSA claim in a single 4-line footnote, implying that because the claims are not common or typical, plaintiffs are not "similarly situated." See Opp'n p. 24, fn. 18. Defendants do not dispute Plaintiffs' contention that the case is ripe for the second stage analysis. The Court therefore will consider whether permitting this case to proceed as a collective action is appropriate under the second stage.
It is not appropriate. First, and fatally, Plaintiffs make no independent presentation regarding the second stage FLSA analysis. Instead, they say only that "[t]he factors under the second stage of the two-tier approach, 'disparate factual and employment settings' of the Class Members and whether or not the applicable defense raise individualized issues, were fully briefed above under the stricter Rule 23 standard." Mot. 24:1-9. Plaintiffs have thus left it to the Court to pick out from their lengthy brief the particular arguments that support their FLSA claim, the bases of which Plaintiffs also failed to identify. The Court will not undertake that project.
Second, the Court's Rule 23 analysis finds that Plaintiffs have not established any of the practices on which all of their claims depend, so insofar as their motion to treat the FLSA claims as a collective action is based on the existence of such practices, they cannot proceed collectively. Third, it is clear that the underlying bases for the claims are fraught with individualized issues stemming from disparate factual and employment settings (job location, role, foreman, etc.), and that the relevant defenses raise individualized issues (i.e., waiver of meal and/or rest breaks), such that it would not be appropriate to certify this as an FLSA collective action.
VI. CONCLUSION
The Court has carefully considered the parties' briefing, their supporting evidence, the caselaw, and oral argument.
First, the named Plaintiffs lack standing to pursue the "facially deficient" wage statement claims, so certification of any subclasses based on those claims is DENIED.
Second, the Court finds that Plaintiffs have not shown that CBGE engaged in any of the "uniform practices" upon which their theory of commonality for all of their classes and subclasses depends. The Court finds that in the absence of such a showing, Plaintiffs have not satisfied the commonality requirement of Rule 23(a). The Rule 23 Motion is therefore DENIED in its entirety.
Finally, Plaintiffs have not satisfied the more stringent second stage of the analysis necessary to attain certification of the FLSA claims as a collective action, so that Motion is also DENIED.
IT IS SO ORDERED.