Co-Authored by Sheryl Skibbe, Jon Meer, and Michael Afar

Seyfarth Synopsis: A recent court decision credited Nike’s time and motion study showing employees spent mere seconds of time in off-the-clock bag checks, finding the checks to be too trivial and difficult to capture to require payment. In contrast, the class failed to present actual evidence showing any amount of compensable time spent by the class off-the-clock while managers inspected their bags or checked their jackets.

In Rodriguez v. Nike Retail Services, Inc., Nike defeated a class action alleging that hourly retail workers were owed money for the time they spent waiting for security inspections after they had clocked out and were exiting the store.

Nike hired an expert to conduct a study of exit inspections, which showed that the average inspection takes no more than 18.5 seconds and that 60.5 percent of all exits required zero wait time. Rather than submit contradictory evidence in response to Nike’s 700 hours of video, which the court found to be representative of the class period, Plaintiff Isaac Rodriguez relied on an expert declaration attempting to poke holes in Nike’s study.

Judge Beth Labson Freeman called Plaintiff’s strategy “misguided,” rejecting “Rodriguez’s attempt to equate this situation to a battle of experts sufficient to deny summary judgment.” “[P]oint[ing] out flaws in the other side’s evidence,” was not the same as “offering any conflicting evidence for the jury to consider at trial on the relevant claim or defense.”

Evaluating Nike’s evidence under the de minimis defense, and recognizing that daily periods of up to 10 minutes have been found to be de minimis, Judge Freeman ruled that the workers hadn’t shown that their off-the-clock exit time was close to meeting that threshold. Although Rodriguez pointed to testimony from three store managers who estimated that some employees may have had a few inspections with higher wait-times, the judge found that wait-times of two or five minutes were too trivial, irregular and administratively difficult to capture.

Judge Freeman also agreed that repositioning time clocks to the front of the store so that employees could clock out after the check was not required. Taking a practical view, the court noted that “brief exit inspections are a modern business reality that most retailers, like Nike, use for the legitimate reason of reducing theft.”

Although the California Supreme Court is considering the de minimis doctrine in Troester v. Starbucks Corp., Judge Freeman declined Rodriguez’s invitation to “predict how the California Supreme Court will rule.” Instead, she noted that the court was compelled to apply existing law to the case, finding the Ninth Circuit and other courts had applied the de minimis doctrine to California claims.

For the moment, this ruling is good news for employers who can put away their stop watches when small increments of off-the-clock time are irregular and difficult to record. But keep your eye on the ball because the California Supreme Court will be making the final call on the de minimis doctrine and whether or how it applies in the state.

Co-authored by Kristen Peters and Simon L. Yang

Seyfarth Synopsis: Last month in Mendoza v. Nordstrom, Inc., the California Supreme Court addressed three questions about California’s “day of rest” statutes that prohibit employers from causing employees “to work more than six days in seven.” California employers can now rest assured that (1) employees are entitled to one day of rest during each workweek, not one day of rest in every rolling seven days; (2) an exception permits employers to require work each day of a workweek if every daily shift in that workweek is no more than six hours; and (3) while employers cannot require employees to forgo a day of rest, employees remain free to choose to work all seven days in a workweek.

California’s “Day of Rest” Provisions

In the beginning (or 80 years ago), the California legislature created the Labor Code. Sections 551 and 552 codified 19th century laws—the “day of rest” provisions—that entitle all in employment to “one day’s rest therefrom in seven” and prohibit an employer to “cause his employees to work more than six days in seven.” Later, the lawmakers said, let there be a six-hour exception, and Section 556 made the day of rest provisions inapplicable “when the total hours of employment do not exceed 30 hours in any week or six hours in any day thereof.”

The Alleged Violations in Mendoza

Two former Nordstrom employees, Chris Mendoza and Megan Gordon, occasionally were asked to fill in for other employees. As a result, they sometimes worked more than six consecutive days. During those weeks, some of their shifts were six hours or less.

Though the day of rest provisions historically lacked a private right of action, Mendoza and Gordon—enabled by California’s private attorneys general statute—sued in federal district court for alleged violations of Sections 551 and 552.

The district court initially rejected the former barista and sales associates’ claims—both because they were not required to work the fill-in shifts and because they had worked some less than six hour shifts during the at-issue weeks. The plaintiffs appealed.

Interpreting the Day of Rest Provisions

Uncertain how California courts would interpret the statutes, the Ninth Circuit asked for the California Supreme Court’s assistance. The Justices addressed and resolved three questions:

  1. Is the “day of rest” calculated by the seven-day workweek, or does it apply on a rolling basis to any seven-consecutive-day period?

A day of rest is guaranteed for each seven-day, employer-established workweek, not for any “rolling” seven-day period.

In reaching this result, the Mendoza court concluded that “the Legislature intended to ensure employees … a day of rest each week, not to prevent them from ever working more than six consecutive days at any one time.” Thus, periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.

Of more general interest, in adopting the workweek as the framework for counting the seven days the California Supreme Court made an observation that could be welcome to employers in future cases by indicating that this interpretation would be the one most congenial to an employer’s administration of time records.

  1. Does the Section 556 exception apply so long as an employee works six hours or less on at least one day of the applicable workweek, or does it apply only when an employee works no more than six hours on each and every day of the workweek?

The “six hour” exception applies only when an employee works no more than 30 hours in the workweek and no more than six hours on each day of the workweek.

  1. What does it mean for an employer to “cause” an employee to go without a day of rest?

“[A]n employer’s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right.” The Court explained that an employer is not liable simply because an employee chooses to work a seventh day; rather, an employer “causes” an employee to go without a day of rest when it induces the employee to forgo an entitled day of rest. In other words, employers cannot coerce employees to forgo a day of rest, but they will not face liability if an employee, who is aware of the rest-day requirements, nonetheless chooses to work seven days in a row.

Again, employers likely appreciate the Justices’ rejection of the plaintiffs’ ambitious argument that the Labor Code should always be interpreted in such a way as to maximize liability. The Court recognized that an expansive interpretation is improper when the legislative intent indicates a narrower reading of the statute.

Moreover, the decision does protect employees and their right to choose. So on the seventh day, let them rest—or work. It’s up to them.

Lessons Learned for Employers 

Employers nonetheless should review their scheduling practices to assess whether employees (exempt and non-exempt) work all seven days in any employer-defined workweek. Employers should also ensure that their employment policies notify employees of their right to a “day of rest” so they can establish that an employee made an informed decision to forgo a day of rest. Finally, employers should consider obtaining a written waiver from an employee before agreeing to allow the employee to forgo a day of rest in a given workweek.

Co-authored by Julie Yap and Michael Cross

Seyfarth Synopsis:  The California Court of Appeal affirmed a denial of class certification on the ground that the plaintiff’s expert report failed to establish claims could be determined on common evidence. The ruling highlights that trial courts are permitted to weigh conflicting evidence related to whether common or individual issues predominate. While expert reports often inform merits questions relating to damages, when those reports are the main source of support for certification, they equally inform issues of liability.

Plaintiff, a former Oracle technical analyst, filed suit alleging that Oracle’s employment practices violated various state wage and hour laws and constituted unfair business practices. Plaintiff’s case, both in the trial and appellate courts, turned largely on the reliability of his expert’s report.

Plaintiff’s expert’s opinion was based on a comparison of Oracle’s (1) payroll records, (2) internal time records, and (3) time cards. In comparing those data sets, Plaintiff’s expert purported to find a discrepancy between the number of overtime hours technical analysts worked and the number of overtime hours for which Oracle had paid them. In addition, by reviewing the time cards, the expert purported to uncover that many analysts took shortened or late meal breaks, or missed them altogether. Plaintiff moved to certify a class relying on a handful of putative class member declarations, but, in large part, through reference to a concurrently-filed expert report, arguing that his claims were subject to common proof through the expert’s comparison and analysis of Oracle’s records.

Oracle opposed Plaintiff’s motion to certify, relying on its own expert’s report and 42 declarations, 22 of which were from putative class members. Oracle’s rebuttal expert identified significant flaws in the methodology and care used by the Plaintiff’s expert. Among other flaws, Plaintiff’s expert included on-call, non-worked, and sick time in his time card numbers, which created significant discrepancies between the purported time worked and the time paid. In addition, the Plaintiff’s expert misread Oracle’s spreadsheets and ignored a $21 million overtime payment that Oracle had made. Finally, the expert made a number of assumptions about the data he analyzed, but failed to disclose those assumptions in his report.

The Trial Court’s Denies Certification

In denying Plaintiff’s motion for certification, the Court concluded that Plaintiff’s expert report was unreliable based largely on the reasons set forth in Oracle’s opposition. Specifically, the court found that because Plaintiff relied on his expert’s report to establish that three of his claims could be determined by common proof, and because that report was unreliable, he could not establish commonality for those claims.

The Appellate Court Affirms The Denial of Certification

Plaintiff appealed the trial court ruling on two main grounds. He first argued that whether or not his expert’s calculations were accurate should not have been considered on his motion for certification. Accuracy of expert reports, he argued, is a merits question. Second, Plaintiff argued that the trial court improperly weighed the competing declarations submitted by the parties.

In evaluating the first question, the Court of Appeal noted that whether or not common issues predominate over individual ones is often closely tied to the ultimate merits of a claim. But the Court did not stop there. The Court rejected Plaintiff’s argument that Plaintiff’s expert’s opinion went only to the merits of alleged damaged in the case, holding that when a party’s expert report serves as its sole support for establishing that common questions predominate, the party has transformed that report into evidence of liability, not damages. As the Court explained:

Plaintiff’s only evidence that uncompensated overtime and missed, late, or short meal breaks could be established classwide with common proof was [his expert’s] declaration and his comparison of [two of Oracle’s] databases. The issue here is whether Plaintiff can establish that class members worked overtime for which they were not paid or had late, short, or missed meal breaks on a classwide basis, and this is a question of entitlement to damages, not damages themselves.

The Court also found it was within the lower court’s discretion to weigh competing declarations from the parties in order to determine whether the requirements for class certification were satisfied, and that doing so was not an improper evaluation of the merits.

Employers defending against class certification motions that rely on expert opinions to establish liability can, and should, offer contrary evidence, and make clear to the court that they are arguing certification and liability issues, not simply damages issues.

Co-authored by Julie Yap and Billie Pierce

Seyfarth Synopsis: A federal court in California recently held that a franchisor cannot be held liable for labor code claims where it did not exercise control directly, or through an actual agency relationship with the employer, over the terms and conditions of the workers’ employment. The decision limits claims against independent businesses based on an “ostensible” or perceived agency relationship between the employer and the independent business.

On March 10, 2017, a federal judge handed a Franchisor—a Fast-Food-Giant (FFG) who franchises with independent restaurant owners—a second straight summary judgment win, ruling that the FFG could not be held liable under an ostensible agency theory for workers’ California wage claims arising out of their employment with the franchise restaurants. As we explained earlier this year, three fast-food workers from Oakland sued a family-owned company that operated eight franchise restaurants in Northern California. They brought the FFG along for the ride under a joint employment theory, serving up a complaint chock full of California Labor Code, Private Attorneys General Act (PAGA), and negligence claims.

Last August, a federal judge dismissed the claims against the Franchisor, in part, after finding that the FFG did not control the workers’ employment directly or through an actual agency relationship with their employer, and was therefore not a joint employer. But the judge didn’t toss out the workers’ claims completely, opining that a jury could be persuaded that the FFG was liable under an “ostensible agency” theory—namely that the franchisee might have created an impression that it was acting as the franchisor’s agent (even if it was not), and the employees may have relied on that impression to their detriment.

Recently, the FFG moved for dismissal of all claims against it, arguing that it could not be held liable for the workers’ wage and labor code claims because—by definition—it is only an “employer” if it exercised “actual” control over their employment (and the court had already ruled that was not the case in its prior grant of summary judgment). The workers countered that liability could be premised on ostensible agency because the California Wage Order defines an employer to include anyone who “directly or indirectly, or through an agency or any other person, employs or exercises control over the wages, hours, or working conditions of any person.”

But the court didn’t buy the workers’ argument, noting that the Wage Order’s second phrase—“exercises control over”—limited the scope of agency liability to actual agency or actual control over their employment. The Wage Order’s specific, limited definition of an “employer” meant that the conflicting ostensible agency provisions were not a viable basis for the workers’ claims. The court was also not persuaded by the workers’ resort to policy arguments that adopting a broader interpretation would advance the protective purpose of the Wage Order, stating “[t]o ignore [lawmakers’] decision to limit the definition of ‘employer’ to those who, through an agent, control workplace conditions would be to rewrite the law.”

This decisions is good news for franchisors and other similar types of entities that do not exercise actual control over employees. This case takes California law at the language of its text and prevents employees from pursuing entities that are not joint employers. However, the take-away order for franchisors continues to be to stay out of the kitchen when it comes to the relationship between franchisees and their employees.

Authored by Kiran A. Seldon

Seyfarth Synopsis: Three decisions issued earlier this month reveal an increasing tension between the Ninth Circuit and California appellate courts on whether representative PAGA actions can be arbitrated. As a result, employers wishing to compel arbitration of representative PAGA claims are likely to be better off in federal court than in state court.

In 2014, the California Supreme Court held in Iskanian v. CLS Transportation Los Angeles, LLC that pre-dispute arbitration agreements cannot require employees to waive representative claims under California’s Labor Code Private Attorneys General Act (“PAGA”). The following year, the Ninth Circuit agreed with Iskanian and held in Sakkab v. Luxottica Retail North America, Inc. that PAGA representative actions cannot be waived.

While state and federal courts agree that pre-dispute waiver of PAGA actions is prohibited, they disagree on the next logical question: can private arbitration agreements require PAGA claims to be arbitrated on a representative basis? In a pair of recent unpublished decisions, the Ninth Circuit has answered “yes.” Two state appellate courts, in contrast, have expressed the view that representative PAGA claims cannot be arbitrated—even if the employer and employee agreed to do so in a pre-dispute arbitration agreement—unless the State has also consented.

The Ninth Circuit. Earlier this month, Wulfe v. Valero Refining Co. California considered a pre-dispute arbitration agreement that was silent regarding waiver of PAGA claims. The Ninth Circuit held that “the district court’s order compelling arbitration did not run afoul of Sakkab and Iskanian because the order did not prevent [the employee] from bringing a representative PAGA claim in arbitration.” It is only “pre-dispute agreements to waive the right to bring a representative PAGA claim [that] are unenforceable,” the Court held.

Two days later, in another unpublished decision, the Ninth Circuit reached the same result. In Valdez v. Terminix International Company Limited Partnership, it reversed a district court, which had held that PAGA claims categorically cannot proceed to arbitration.” The Ninth Circuit again concluded that “Iskanian does not require that a PAGA claim be pursued in the judicial forum; it holds only that a complete waiver of the right to bring a PAGA claim is invalid.” It also interpreted Sakkab as “likewise recogniz[ing] that individual employees may pursue PAGA claims in arbitration.”

California appellate courts.  Days after Wulfe and Valdez, a state appellate court opined in Betancourt v. Prudential Overall Supply that PAGA claims cannot be arbitrated without the State of California’s consent. The “fact that [the employee] may have entered into a pre-dispute agreement to arbitrate does not bind the state to arbitration,” the court concluded. However, these statements arguably were not necessary to the Court of Appeal’s ultimate holding, which was that the arbitration agreement was unenforceable because it contained a PAGA waiver in violation of Iskanian.

Betancourt is in line with Tanguilig v. Bloomingdale’s, Inc., another state appellate court opinion issued in November 2016. Tanguilg also opined that “a PAGA plaintiff’s request for civil penalties on behalf of himself or herself is not subject to arbitration under a private arbitration agreement between the plaintiff and his or her employer. This is because the real party in interest in a PAGA suit, the state, has not agreed to arbitrate the claim.” As in Betancourt, however, the arbitration agreement had a PAGA waiver in violation of Iskanian, arguably making the Court of Appeal’s broader discussion unnecessary to its holding.

As a result of the current tension between state and federal courts, employers who wish to compel arbitration of a PAGA claim on a representative basis should pay careful attention to the forum in which they are litigating. Though Wulfe and Valdez are unpublished, they are persuasive Ninth Circuit authority, making the chances for success higher in federal court than in state court. Unless the issue is resolved by the California Supreme Court, the uncertainty surrounding arbitration of PAGA representative claims is likely to continue.

Co-authored by David D. Kadue and Rocio Herrera

Seyfarth Synopsis: A California appellate court has held that unless a collective bargaining agreement includes an explicitly stated, clear, and unmistakable intent to waive the right to a judicial forum for statutory claims, arbitration of those claims will not be compelled. The CBA in the case, Vasserman v. Henry Mayo Newhall Memorial Hospital, did not waive the right to a judicial forum because its “Grievance and Arbitration” section failed to specify the California Labor Code provisions that would have to be arbitrated.

The Facts

Tanya Vasserman, a registered nurse, worked for Henry Mayo Newhall Memorial Hospital, under a CBA between the Hospital and the California Nurses Association. The CBA’s “Grievance and Arbitration” section provided for grievances culminating in arbitration, and defined a grievance as any dispute “arising out of the interpretation or application of a specific Article and Section of this Agreement during the term of the Agreement … as to events or incidents arising only at the Hospital.” The CBA outlined a three-step grievance procedure. Step three required the Hospital or the California Nurses Association to “file the grievance for binding arbitration pursuant to the rules of the Federal Mediation and Conciliation Service.” The CBA included articles on compensation, including overtime, and meal and rest periods. None of these articles referred to the grievance procedure or to remedies for violations.

Instead of filing a grievance, Vasserman sued in state court for violation of the California Labor Code, including claims for a failure to pay all regular and overtime wages and a failure to provide meal and rest breaks. The Hospital moved to stay the case and compel arbitration. The Hospital argued that Vasserman and the other employees she sought to represent in her putative class action were all covered by a CBA that included a Grievance and Arbitration section that clearly required the Hospital or the union to file a grievance for mandatory arbitration at step three. The Hospital argued that the grievance procedure explicitly waived the right to pursue claims in a judicial forum and Vasserman had to arbitrate her claims. The trial court denied the Hospital’s motion to compel arbitration, and the Hospital appealed to the California Court of Appeal.

The Court of Appeal’s Decision

The Court of Appeal affirmed the trial court’s decision. It found that the Grievance and Arbitration section defined a grievance as “any complaint or dispute arising out of the interpretation or application of a specific Article or Section of this Agreement.” The section also described a three-step grievance procedure, including step three in which any unresolved grievances may be submitted to arbitration. But it also limited the power of the arbitrator. The section provided that the arbitrator “shall be without authority to decide matters specifically excluded or not included in this Agreement.”

The court held that because the Grievance and Arbitration section did not specifically refer to the California Labor Code or other state or federal statutes, or include any language suggesting that the union intended to waive employees’ rights to bring statutory claims in court, the CBA contained no explicitly stated, clear, and unmistakable waiver of a judicial forum.

The court also rejected the Hospital’s argument that the parties, by including specific articles on pay and meal and rest breaks in the CBA, clearly and unmistakably intended to submit all disputes regarding those subjects to the grievance or arbitration process. The articles on pay and meal breaks did not refer to state laws. A waiver cannot be inferred from “broad, nonspecific language … not coupled with an explicit incorporation of statutory requirements.”

What Vasserman Means for Employers

We are reminded that to preclude judicial litigation of statutory rights, CBAs should specify any statutory rights that will be subject to grievance and arbitration procedures. These grievance procedures should also be incorporated by reference in any other section of the CBA discussing statutory rights, to ensure that the parties clearly and unmistakably state their intent to submit all disputes regarding those subjects to the grievance and arbitration procedures set forth in the CBA.

Authored by Simon L. Yang

Seyfarth Synopsis: Sometimes, plaintiffs’ attorneys have circumvented a key aspect of the California Legislature’s intent in enacting PAGA: limiting standing to pursue penalties for Labor Code violations to those employees who were actually harmed. Though a new California bill could halt those attempts, PAGA plaintiffs’ wiliness warrants a cautionary comment to the Legislature to ensure that any amendment furthers—rather than further frustrates—the original legislative intent.

A New PAGA Bill: Employers should be optimistic that the California Legislature continues to propose bills seeking to curtail PAGA abuse. One recently introduced bill would advance three laudable goals, to close loopholes and preclude arguments that have encouraged absurd interpretations of the original PAGA statute. But the Legislature should mindfully proceed. While one proposed change is straightforward, a second creates confusion absent a quick fix, and a third requires revisiting PAGA’s legislative intent to consider what amendment would be best.

Extension of Time for Employers to Exercise Right to Cure Violations: The first part of the pending bill proposes a clearly needed fix of an oversight within the 2016 amendment. As previously noted, 2016 legislation provided the LWDA with more time to respond to PAGA letters, but failed to also extend the employer’s time to respond. The pending bill would provide employers with 65 days to cure certain Labor Code violations.

Expansion of Scope of Violations Subject to Right to Cure: The proposed bill would also broaden the availability of the right to cure. Currently, many violations are specifically excluded from the cure provisions. According to the bill, an amendment would “exclude only the health and safety violations from the right to cure provisions.” The proposed text within the bill, however, falls short and would create confusion.

A quick fix is all that would be needed, though. To achieve the declared intent, the proposed amendments within Labor Code section 2699.3(c) (providing procedures for curable violations) should be accompanied with deletion of section 2699.3(a), which currently provides procedures lacking any right to cure but applying to some of the Labor Code violations the bill intends to make curable.

Reemphasis on PAGA’s Standing Requirement: The third proposal is the most interesting. The bill’s suggested amendment would reemphasize that “an aggrieved employee may be awarded civil penalties based only upon a violation by the employer actually suffered by that employee.”

At first glance, the proposal restates a given, but it likely responds to some plaintiffs’ efforts to obliterate PAGA’s standing requirement. These plaintiffs have misled courts into believing that an employee aggrieved by one Labor Code violation can invoke PAGA to seek penalties for other violations that the employee never experienced.

That isn’t right. Even PAGA’s initial proponents, in 2003, explained that a standing requirement meant that a PAGA plaintiff could only be someone who had been subjected to the Labor Code violation for which that plaintiff sought to recover penalties:

Only Persons Who Have Actually Been Harmed May Bring An Action to Enforce The Civil Penalties. Mindful of the recent, well-publicized allegations of private plaintiff abuse of [California’s unfair competition law (the “UCL”)], the sponsors state that they have attempted to craft a private right of action that will not be subject to such abuse. Unlike the UCL, this bill would not permit private actions by persons who suffered no harm from the alleged wrongful act. Instead, private suits for Labor Code violations could be brought only by an employee or former employee of the alleged violator against whom the alleged violation was committed. This action could also include fellow employees also harmed by the alleged violation.

The legislative history is consistent throughout, and the final bill analysis preceding PAGA’s enactment maintained that PAGA plaintiffs must have suffered harm from an alleged violation. Those individuals could seek penalties on behalf of “other current or former employees against whom one or more of the alleged violations was committed.” Simply put, someone who was aggrieved by certain Labor Code violations could be a PAGA plaintiff and could sue on behalf of others who also were subject to any of those violations.

But PAGA plaintiffs argue that the enacted statute is contrary. They seize upon PAGA’s definition of an “aggrieved employee,” which they read to comingle concepts. Specifically, they argue that PAGA confers standing not only on those plaintiffs whom the Legislature intended to have standing to be a PAGA plaintiff (i.e., those “against whom the alleged violation was committed”) but also on those employees on whose behalf the PAGA plaintiff could sue (i.e., those “against whom one or more of the alleged violations was committed”).

The result is that absurd arguments abound. For example, some PAGA plaintiffs assert that a non-exempt employee who suffered an expense reimbursement violation can recover penalties on behalf of employees who have been misclassified as exempt!

Two Cents for the Legislature: The proposed amendment—a new Labor Code section 2699.4 establishing that “an aggrieved employee may be awarded civil penalties based only upon a violation by the employer actually suffered by that employee”—is a welcomed attempt to put an end to the silliness. But the proposal restates what was intended to be an evident truth.

Adding a provision to clarify original intent could be argued is unnecessary, especially since the Legislature could simply revisit the definition of an “aggrieved employee.” The definition presently can and should be read without absurdity, but PAGA plaintiffs contort statutory language to assert illogical arguments (like the ability to recover penalties as being irrelevant to standing).

In sum, enacting section 2699.4 to preclude an award of penalties for a violation that a PAGA plaintiff has not suffered merely restates the standing requirement that precludes such an award in the first instance. To the extent the Legislature finds a need to respond to PAGA plaintiffs’ tactics, enacting section 2699.4 might be unnecessarily complicated. A simple amendment to the definition of an aggrieved employee would have the same result.

N.D. CalAuthored by Eric Hill

Seyfarth Synopsis: Airline customer service representative denied pay for pre-employment 10-day classroom training program under the FLSA and California Labor Law.

The maxim “it is extremely difficult to find someone to pay you to learn” has been proven again! This must be why we, or at least most of us, eventually leave school to enter the working world.

Meanwhile, the trend in the law is clear:

  1. Where trainees are truly “learning,” as a precursor to “working,” and are the primary beneficiary of pre-employment training, there is no duty to pay them.
  2. But, where the trainee’s “on the job” training involves performing work an employee would otherwise perform (to the employer’s financial advantage), the trainee must be paid.

In a January 9, 2017 ruling, Judge Vince Chhabria of the Northern District of California held that a customer service representative for Hawaiian Airlines was not entitled to be paid during a 10-day pre-employment training program that consisted of classroom work and tours of the facilities rather than actual “on-the job” customer service training. The decision is notable for its practical, straightforward analysis regarding when trainees should be paid under federal and California law.

The Court adopted the “primary beneficiary test,” cautioned against a mechanistic application of the six Department of Labor criteria, and granted Hawaiian Airlines summary judgment. (While the lawsuit is a proposed class action, the parties opted to file cross-motions for summary judgment before litigating the class certification question.)

According to the Court, the key question was whether the airline was taking financial advantage of the trainee during the training program by using her to perform work that an employee would otherwise perform. Because the plaintiff did not perform the work of the customer service employees, the Court found no reasonable juror could conclude she was acting as an “employee” during her training course.

The Court noted the classroom instruction and touring were only precursors to performing the work of an employee. The airline did not receive any direct benefit from the training, which taught trainees about FAA regulations, the computer system, and the way the company operated. Because the airline was not using the trainees as “anything close to employees,” the plaintiff was the “primary beneficiary” of the training.

As is the trend, the Court rejected the argument that a trainee is an employee unless the employer can satisfy all six of the DOL’s criteria. Stating that the six criteria are “relevant but not conclusive,” the Court focused instead on whether the trainee or the employer was the “primary beneficiary” of the training. It warned against “mechanistically applying the six criteria,” and called the case “a good illustration” of why “just about every court” has “rejected the Department of Labor’s approach.”

The Court emphasized that the DOL’s criteria seem to be designed for true “on-the-job” training, whereas the plaintiff here was not involved in this type of training. The Court also pointed out there is no difference between the federal and California legal standards for determining whether a worker qualifies as an “employee” during training.

Despite its warnings about reliance on the six DOL criteria, the Court found that application of the criteria would lead to the same result. The criteria are:

  1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school.
  2. The training is for the benefit of the trainees.
  3. The trainees do not displace regular employees, but work under close observation.
  4. The employer that provides the training derives no immediate advantage from the activities of the trainees; and on occasion his operations may actually be impeded.
  5. The trainees are not necessarily entitled to a job at the conclusion of the training period.
  6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent training.

This decision is not the first “training time” case to grant summary judgment to an employer under these circumstances. Despite the positive trend, these cases are highly fact-driven and do not foreclose the possibility that trainees will be deemed to be employees. But they do signal that, where trainees are not performing the work of the employees and are not engaging in traditional work-alongside-the-employees “on the job” training, they do not cross the line from “trainee” to “employee” and need not be paid as a matter of law.

Authored by

Seyfarth Synopsis: In what many employers will see as a “break” from workplace reality, the Supreme Court, in Augustus v. ABM Security Services, Inc., announced that certain “on call” rest periods do not comply with the California Labor Code and Wage Orders. As previously reported on our California Peculiarities Employment Law Blog, this decision presents significant practical challenges for employers in industries where employees must respond to exigent circumstances.


On December 23, 2016, the California Supreme Court issued its long-anticipated decision in Augustus v. ABM Security Services, Inc., affirming a $90 million judgment for the plaintiff class of security guards on their rest break claim. The Supreme Court found that the security guards’ rest breaks did not comply with the California Labor Code and Wage Orders, because the guards had to carry radios or pagers during their rest breaks and had to respond if required.

The Supreme Court took a very restrictive view of California’s rest break requirements, concluding that “one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest breaks.” Thus, in the Supreme Court’s view, an employers may not require employees to remain on call—“at the ready and capable of being summoned to action”—during rest breaks.

See our One Minute Memo for more details on the decision and thoughts on the implications of this case for California employers. The Augustus decision presents significant practical challenges for employers, especially in industries in which employees must be able to respond to exigent circumstances.

Workplace Solution:

The holding that “on call” rest periods are not legally permissible should prompt employers to evaluate their rest-break practices. In industries where employees must remain on call during rest periods, employers should consider seeking an exemption from the Division of Labor Standards Enforcement. Lawyers in the Seyfarth California Workplace Solutions group can assist with other suggestions for responding to this decision.

Authored by Simon L. Yang

Seyfarth Synopsis: When the California Supreme Court said no to PAGA waivers in its 2014 Iskanian ruling, we asked whether employers would boldly go where few have gone before and implement arbitration agreements requiring arbitration of PAGA claims. A recent California Court of Appeal decision issued in Perez v. U-Haul Company of California warrants revisiting that question.

Many employers stayed the course in 2014 and continued including PAGA waivers within their arbitration agreements, since numerous federal district courts continued disagreeing with and refusing to apply Iskanian’s logic.

And even when in 2015 the Ninth Circuit instructed federal district courts to apply Iskanian, many employers continued using arbitration agreements with PAGA waivers, since PAGA litigation could be severed and stayed while a plaintiff’s individual claims were arbitrated. If the employer prevailed on the individual claims in arbitration, the plaintiff would not be an aggrieved employee, would not have standing under PAGA, and would thus be unable to pursue mooted PAGA claims.

By 2016 plaintiffs have made the availability of that option scarcer. To avoid having to prove standing by prevailing on their individual claims before pursuing otherwise stayed PAGA claims, plaintiffs now commonly prefer to file PAGA-only lawsuits, without alleging individual claims.

The two putative Perez class representatives, however, had pursued both individual and PAGA claims. Predicting and seeking to avoid a stay of their PAGA claims, the Perez plaintiffs hopped onto the PAGA-only bandwagon by amending their complaints to allege a PAGA cause of action only—abandoning their individual claims, their roles as potential class representatives, and putative class members’ individual rights.

U-Haul fought back and sought to require arbitration of the predicate issue of whether the plaintiffs themselves had been subject to any Labor Code violations. Even though U-Haul was not seeking to preclude the PAGA cause of action but only to arbitrate the individual issues determinative of plaintiffs’ standing for their PAGA claims, the Court of Appeal rejected U-Haul’s argument. It reasoned that no individual issues remained at issue and that U-Haul’s arbitration agreement explicitly precluded arbitration of any representative issues.

Though Iskanian explicitly acknowledged that PAGA claims might be arbitrated, the Perez court then went full dictum. It opined that even if U-Haul’s arbitration agreement did not preclude its argument for arbitrating the plaintiff-specific issues determinative of PAGA standing, the PAGA cause of action could not be split between arbitration and litigation. But Iskanian doesn’t preclude this. What it precluded was the waiver of the right to pursue PAGA claims at all.

While it may be the case that an arbitration agreement cannot specify that an individual claim be created in a PAGA-only lawsuit, an arbitration agreement should be able to specify that representative claims be arbitrated—and specify that streamlined procedures be applied. Once again, will some enterprising employers consider going boldly where few have gone before?