Opinion
Three plaintiffs
In May 2009, the California Supreme Court granted plaintiffs’ petition for review, and ordered the Bradley I case held pending the high court’s decision
Following the remand, the parties submitted extensive supplemental briefs pertaining to Brinker and other judicial decisions filed after our previous opinion. After reexamining the record in light of Brinker, we conclude the trial court erred in refusing to certify the class with respect to each of plaintiffs’ claims except for the claims based on alleged off-the-clock violations. With respect to these claims, we remand for the court to reconsider the certification issues in light of this opinion and Brinker
FACTUAL AND PROCEDURAL BACKGROUND
Networkers is a business that provides technical personnel services to the telecommunications industry. In about 2004, Networkers contracted with three telecommunications companies, EXi Parsons Telecom LLC (EXi), Ericsson Inc. (Ericsson), and Telecom Network Specialists, to supply skilled laborers to install and service cell sites in Southern California.
Networkers thereafter retained approximately 140 skilled workers, including the three named plaintiffs, to fulfill these contracts and provide repair and installation services at the cell sites. Most workers were hired to work on cell sites for a particular customer, e.g., some workers were hired and trained to work only on Ericsson/T-Mobile cell sites, and others were hired and trained to work only on EXi sites. Plaintiffs Bradley and Milton worked at Ericsson/T-Mobile cell sites and plaintiff Jennings worked at EXi cell sites.
In late 2005 or early 2006, plaintiffs Bradley and Jennings (along with numerous other workers) terminated their relationship with Networkers. Shortly after, Networkers replaced its Independent Contractor Agreement with an “Employment” agreement. Networkers began paying overtime wages to these workers, but did not implement a meal or rest break policy. Plaintiff Milton signed the new employment agreement, but left the company soon after.
Within several months, the three plaintiffs filed a class action lawsuit against Networkers, alleging Networkers violated wage and hour laws by failing to pay overtime and provide rest and meal breaks, failing to maintain required employment records, and requiring plaintiffs to underreport their hours. Plaintiffs claimed that although Networkers hired each worker using the standard Independent Contractor Agreement, the actual relationship was in fact an employer-employee relationship and therefore Networkers wаs governed by state wage and hour laws. Plaintiffs sought to represent a class of 140 technical support personnel who worked in California for Networkers at cell sites owned or operated by Networkers’s customers.
Based on these factual allegations, plaintiffs asserted seven causes of action: (1) failure to pay overtime compensation (Lab. Code,
Each named plaintiff also proffered his declaration asserting that Networkers did not adhere to these contractual provisions, and instead treated all of its workers as employees, and these employment policies were uniformly applied to all putative class members. The declarations provided detailed descriptions of the manner in which each plaintiff was hired by Networkers, the work assignment process, and the nature of the job and working conditions. We summarize these declarations below.
In his declaration, plaintiff Milton stated that Networkers hired him in December 2004 as a field technician after being recruited by Networkers employee Pete Wu. Milton signed the standard Independent Contractor Agreement, but did not understand he was not an employee entitled to state law employee protections. Despite the express terms of the agreement, Milton was not required to have liability, errors and omissions, or workers’ compensation insurance; he was not permitted to delegate the work; he was required to follow specific directions as to the scheduling and priority of the work; he was paid by the hour and did not bid for his employment; there was no negotiation regarding the hourly rate; and he was required to obtain a specific set of tools from Networkers and Networkers deducted money from his paycheck to pay for the tools. Additionally, Milton received introductory job training from Networkers.
With respect to his specific job assignments, Milton said he worked exclusively on cell sites owned by T-Mobile which contained equipment made by Ericsson. Milton was assigned approximately 45 to 50 cell sites and was responsible for maintenance, service, and repair of each of these cell sites. Milton received his daily assignments through the receipt of a “trouble ticket” on his computer e-mail or cell phone, which came from a Networkers switch technician or T-Mobile customer service. Milton said that before starting work each day, “Networkers required me to check my email on my computer at home for the trouble tickets I was to work on that day. I typically had as many as 25-30 trouble tickets. I was required to acknowledge receipt of all trouble tickets immediately.”
In December 2005, Networkers informed Milton that it would be reclassifying him from an “Independent Contractor” status to “W2 Employee” status, beginning in January 2006. After the reclassification, Networkers reduced Milton’s hourly pay, and paid for overtime hours. The work remained exactly the same, and Networkers did not change its policies regarding rest breaks and restrictive reporting times (off the clock, on call, and travel time).
The declaration of plaintiff Bradley, who worked for Networkers as a field technician from December 2004 through December 2005, was essentially identical to Milton’s declaration in most respects. As with Milton, Bradley was recruited to work for Networkers by employee Pete Wu; worked exclusively at T-Mobile cell sites servicing Ericsson equipment; signed the Independent Contractor Agreement; was paid hourly; was required to have a specific tool set; was provided with introductory training; was assigned work under the “trouble ticket” systеm; sometimes travelled long distances to the sites; and was not provided meal or rest beaks during the workday (including
The declaration of the third plaintiff (Jennings) contained substantially similar information as the other two declarations, except that he was assigned to work on EXi cell sites and had more direct customer supervision at the sites. As with Milton, Jennings said he signed Networkers’s standard Independent Contractor Agreement, but did not consider himself an independent contractor “as I had always been treated as an employee for the same or similar type of work . . . .” He did not bid on the employment contract or negotiate any of its terms, and Networkers required him and all the other workers to purchase a complete set of tools and then deducted the cost from the wоrkers’ paychecks.
With respect to his specific EXi work, Jennings said he was trained by Networkers and EXi on basic tasks specific to the equipment being installed, maintained, and repaired. He then “worked on various sites decommissioning, installing, and re-commissioning equipment . . . .” Jennings said “[t]he travel time to the sites varied and could be as little as 15 minutes or as long as 2 [to] 3 hours. I would learn where the installation site was by email or phone call from a supervisor or whomever was the lead installer for that day. I did not determine where or when I would install a cell site. I would work side by side with other employees to compete the installation.” Jennings was required to submit timesheets to Networkers through a computer timekeeping source, and all of the time “had to be submitted to my supervisor for approval.” He was not paid premium wages for overtime work, even though he “regularly worked over 40 hours a week and regularly worked more than 8 hours a day . . . .” He said that “[o]n days when the installation took a long time, we were not able to take any meal or rest breaks at all.” Jennings also said he “felt pressured by my supervisor to shave my time on certain projects,” and was “asked to enter less time for particularly time-consuming tasks. At the end of the day, we would ask the lead how many hours we should all put down for that day’s work and whatever he said, wе put down, even when that was less than the total amount of time we had actually spent working.”
In explaining his daily work, Jennings said: “We were forbidden to leave the site once we started working on the equipment. ... [¶].. . Sometimes, a site that we installed that we had got up and running would go back down.
Plaintiffs also submitted the declarations of two putative class members, Ernie Garcia and Shane Pinkston, each of whom worked as Networkers field technicians in 2005, and primarily worked at T-Mobile/Ericsson cell sites. Their declarations were similar to the plaintiffs’ declarations, reflecting the same form of recruitment, work assignment process, working hours and conditions, and supervision levels. As with Bradley, these individuals terminated their relationship with Networkers before Networkers recharacterized its workers as employees. As with Milton, both stated they did not fully understand the distinction between an independent contractor and an employee. Identical to each plaintiff, Garcia and Pinkston each asserted he was not given meal or rest breaks, and believed he would be “fired” if he took rest breaks while at a cell site and would sometimes eat in his vehicle on the way to the next cell site destination.
Plaintiffs additionally submitted the declaration of their counsel, who said the three plaintiffs were chosen to represent the class because their claims were typical of the claims of all workers employed under the same Independent Contractor Agreement, each of whom performed similar technical work and were subject to identical management policies. In addition, plaintiff Milton “was chosen to represent those persons who Networkers reclassified in January 2006 from ‘independent contractor’ to ‘employee’ even though their job duties did not in any way change.” Counsel said that 98 of the 140 putative class members worked exclusively under the Independent Contractor Agreement, and the remaining class members were in the same position as Milton, i.e., initially hired under the Independent Contractor Agreement and then signed a new agreement in January 2006 converting the worker’s status to an employee position.
In opposing plaintiffs’ class certification motion, Networkers argued the class action was inappropriate because there were numerous individualized issues regarding (1) the number of “trouble tickets” or job assignments performed by each class member; (2) the level of supervision of each class member; and (3) the different job responsibilities performed for different clients. In support, Networkers relied on plaintiffs’ declarations and portions of plaintiffs’ deposition transcripts.
In reply, plaintiffs produced copies of Networkers’s payroll data for each putative class member, reflecting the hours each employee worked and the alleged overtime pay violations. Plaintiffs also submitted hundreds of pages of Networkers’s discovery responses. In these responses, Networkers (1) admitted it did not pay overtime to its technical service workers (until they were converted into employee status) because they were classified as independent contractors exempt from applicable overtime pay requirements; (2) admitted it did not have rest or meal break policies or maintain records of rest or meal breaks; and (3) stated that because it did not supervise its service workers, it did not know whether the workers took rest or meal breaks and the extent or frequency of such breaks.
After holding a hearing, the court denied plaintiffs’ class certification motion. The court stated: “[P]laintiffs have not shown that common questions of fact or law will predominate over individual questions. For example, plaintiffs state, ‘The disconnect between the reality of class members’ work and the recitations of the [Independent Contractor] contract is so great that it borders on the absurd.’ . . . However, there is insufficient evidence that the ‘reality’ that plaintiffs describe in [their] opening brief was experienced so commonly across the class that common questions of fact or law will predominate over individual questions. Moreover, it appears that the actual existence of damages and/or the manner of incurring damages would differ for individual members of the proposed class.” The court declined to rule on each of Networkers’s numerous evidentiary objections (spanning 137 pages), stating that “[e]ven if all of [Networkers’s] objections were overruled, the Court’s ruling would not change.”
I. General Legal Principles Governing Class Action Certification
“ ‘Class actions serve an important function in our judicial system. By establishing a technique whereby the claims of many individuals can be resolved at the same time, the class suit both eliminates the possibility of repetitious litigation and provides small claimants with a method of оbtaining redress ....’” (Richmond v. Dart Industries, Inc. (1981)
“The party seeking certification . . . must establish the existence of an ascertainable class and a well-defined community of interest among the class members. [Citation.] The community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (Richmond v. Dart Industries, Inc., supra,
On the issue whether common issues predominate in the litigation, a court must “examine the plaintiff’s theory of recovery” and “assess the nature of the legal and factual disputes likely to be presented.” (Brinker, supra,
Trial courts “ ‘are ideally situated to evaluate the efficiencies and practicalities of permitting group action’ ” and therefore are “ ‘afforded great discretion’ ” in evaluating the relevant faсtors and in ruling on a class certification motion. (Sav-On, supra,
II. Brinker
In Brinker, the California Supreme Court applied these general principles to review a trial court’s order certifying a class of about 60,000 employees in an action alleging a major restaurant chain owner violated state laws requiring meal and rest breaks for nonexempt hourly employees and requiring accurate recording of employee work time. (Brinker, supra, 53 Cal.4th at pp. 1017-1021.) The Brinker trial court had certified three subclasses: (1) a class alleging employees were not provided their required 10-minute rest breaks; (2) a class alleging employees were not provided timely and sufficient meal breaks; and (3) a class alleging employees worked “off the clock” (without pay). (Id. at pp. 1019-1020.) On appeal, this court held the trial court erred in certifying each of the subclasses and reversed the certification order. (Id. at p. 1021.) The California Supreme Court grаnted the plaintiff’s petition for review, and four years later issued an opinion agreeing and disagreeing with various portions of our holdings and analysis, and reaching a different conclusion with respect to each subclass.
In finding that common issues predominated on this rest break issue, the high court emphasized that “[cjlaims alleging that a uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment,” citing with approval three Court оf Appeal decisions: Jaimez v. Daiohs USA, Inc. (2010)
In analyzing the rest break claims, the Brinker court also expressly rejected this court’s reasoning that evidence showing some employees took rest breaks and other employees were offered rest breaks but declined to take them made class certification inappropriate. (See Brinker, supra,
Second, with respect to meal breaks, the Brinker court clarified that under the applicable wage order, “an employer’s obligation when providing a meal period is to relieve its employee of all duty for an uninterrupted 30-minute period.” (Brinker, supra,
Third, with respect to the off-the-clock allegations (claims that employees were required to work while clocked out during their meal periods), the court upheld this court’s conclusion that the trial court erred in certifying the off-the-clock subclass. (Brinker, supra, 53 Cal.4th at pp. 1051-1052.) The California Supreme Court explained that the evidence presented on the certification motion showed that the employer had a lawful policy of prohibiting off-the-clock work and the plaintiff did not present evidence “of a systematic company policy to pressure or require employees to work off-the-clock . . . .” (Id. at p. 1051.) Without a showing of an allegedly unlawful uniform policy, the high court found the plaintiff had no factual basis from which to argue that the off-the-clock claims could “be shown through common proof.” (Id. at p. 1052.)
In her concurring opinion, Justice Werdegar provided guidance on remand regarding the missed meal break issues, stating the court does not “endorse” the defendant’s argument that the question why a meal period was missed renders meal period claims “categorically uncertifiable.” (Brinker, supra,
III. Summary of Issues and Conclusions in This Appeal
A predicate legal issue underlying Networkers’s liability to the class members is whether plaintiffs were independent contractors or employees. The trial court found the work differed among the class members and therefore plaintiffs did not prove common questions would predominate on this legal issue. In our prior opinion, we found insufficient evidentiary support for this conclusion. Although there were certain differences in the class members’ particular jobs, we determined these differences were largely irrelevant to the legal issue of whether the worker was an employee or an independent contractor.
In this opinion, we reiterate and adhere to this conclusion. Neither party suggests, nor have we independently found, any aspect of Brinker that would support a different analysis or conclusion. Brinker instructs that in determining whether common or individual issues predominate, a court must focus on the plaintiff’s theory of recovery and assess the nature of the legal and factual disputes likely to be presented under this theory. Applying this analysis, we again determine that the trial court erred in concluding that individual issues are likely to predominate on the independent contractor/employee issue.
But this determination does not resolve the appellate issues before us. In our prior opinion, we found that even though common issues would predominate on the independent contractor/employee issues, there were reasonable grounds for the trial court to conclude that individual issues would predominate on issues relating to the existence and amount of damages for each class member and that these individual issues would make a class action unmanageable. In their supplemental briefs, plaintiffs argue that our analysis was inconsistent with various aspects of the Brinker decision. Networkers counters that our prior decision is fully consistent with the Brinker decision. For the reasons explained below, we agree with plaintiffs’ contentions and find that under Brinker, the trial court erred in denying plaintiffs’ certification motion, except with respect to the claims relating to alleged off-the-clock violations.
IV. Independent Contractor Issue
A foundational legal question underlying Networkers’s liability for the wage and hour violations is whether plaintiffs were independent contractors
S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989)
In Martinez v. Combs (2010)
Under both the Borello and Martinez standards, the evidence relevant to the factual question whether the class members were employees or independent contractors is common among all class members. Each of the class members signed a standard Independent Contractor Agreement that characterized the worker as an independent contractor; each class member was engaged in a similar occupation (skilled labor in installing or servicing cell sites); each class member was required to work full time and to be available on every working day and during assigned “on call” times; each class member was told how to prioritize each day’s jobs; each class member received hourly pay, rather than pay by the job; each class member submitted timesheets to Networkers and Networkers’s customers for approval; and each class member was required to use a specific set of tools on the job and to
These common facts would be relevant in each class member’s case against Networkers and would constitute the focus of the proof on the independent contractor/employee issue. (See Estrada, supra, 154 Cal.App.4th at pp. 13-14 [finding common issues in class action involving question whether workers were employees or independent contractors].) Networkers argued below that there would be a need for individualized proof because of differences among the workers pertaining to job titles, skill levels, pay grades, and the specific type of repair or installation work. However, with respect to the issues “likely to be presented” in the litigation (Brinker, supra,
Networkers also argued that individualized analysis would be necessary because the class members worked for different customers and some workers were more closely supervised at particular jobsites than were other workers. However, plaintiffs’ theory of the case was not that the class members were employees because they were supervised while working at the jobsites. Because of the nature of the job—repair and installation at numerous remote sites throughout Southern California—plaintiffs acknowledged that most class
Ali v. U.S.A. Cab Ltd. (2009)
We also find unhelpful Networkers’s reliance on the fact that the plaintiffs may have had different subjective views of their business relationship with Networkers. The evidence showed that Bradley understood that the relationship was characterized as an independent contractor relationship, but did not believe this was legally correct. The other declarants asserted that they believed they were employees. The difference in this evidence is not legally significant on the class certification issues. Networkers did not produce any evidence that the employees subjectively believed the realities of the job reflected solely an independent contractor relationship.
Viewing the evidence in the light most favorable to the court’s ruling, the only reasonable conclusion is that the factual and legal questions would be essentially the same among the plaintiff class members on the independent contractor issue.
V. Specific Claims and Damages
As an alternate basis for its denial of plaintiffs’ class certification motion, the trial court found there were substantial individual differences in proof pertaining to damages on the particular claims alleged by plaintiffs. We review each of those claims below.
Meal and rest break rules are contained in wage orders issued by the IWC. The wage orders are issued on an industry-by-industry basis. (Brinker, supra,
Gеnerally, an employer must provide an employee a 30-minute meal break for a work period of more than five hours and a second 30-minute meal break for a work period of more than 10 hours per day with certain specified waivers. (§ 512, subd. (a); Cal. Code Regs., tit. 8, § 11040, subd. 11; see Brinker, supra,
On plaintiffs’ class certification motion, it was undisputed that (1) Networkers did not have a policy permitting or authorizing meal or rest breaks for the proposed class members; (2) Networkers did not know whether these workers took the required breaks; and (3) Networkers did not maintain any records reflecting when (or if) the workers took meal or rest breaks. The evidence also showed that after Networkers formally converted these workers to “employee” status, it did not implement any rest or meal break policy, or give any notification to the workers about their entitlement to take meal or rest breaks.
Under Brinker, plaintiffs’ legal challenge to these uniform practices involves common factual and legal issues that are amenable to class treatment. “An employer is required to authorize and permit the amount of [rest and meal] break time[s] called for under the wage order for its industry. If it does not... it has violated the wage order and is liable.” (Brinker, supra,
In support of their certification motion, plaintiffs presented evidence that under Networkers’s uniform practice, none of the workers was provided, or given authorization to take, the required meal or rest breaks. In their discovery responses, Networkers acknowledged it did not have a policy and did not know if the employees took meal or rest breaks. Five workers further submitted declarations confirming that they frequently did not take rest breaks because of the nature of the work and several believed they would be “fired” if they stopped working to take a break. Likewise, these workers’ declarations supported that they were not given the type of meal break required under the law—an uninterrupted 30 minutes during which they were free to use their time as they wished.
In response, Networkers did not present any evidence showing it had a formal or informal practice or policy of permitting the required breaks or that any worker believed he or she was entitled to take a legally required rest or meal break, or that some or all workers took these breaks. At most, Networkers argued the workers must have taken breaks because they worked alone for long periods of time. Further, Networkers did not present any evidence that its meal or break policies (or the failure to institute such policies) were different with respect to each worker.
Brinker instructs that in ruling on the predominance issue in a certification motion, the court must focus on the plaintiff’s theory of recovery and assess the nature of the legal and factual disputes likely to be presented and determine whether individual or common issues predominate. (Brinker, supra,
Networkers argues, and we agreed in our initial opinion, that the issue of which employees had missed breaks and how many breaks were missed and whether those missed breaks were the result of Netwоrkers’s lack of a break policy was highly dependent on the testimony of each plaintiff, essentially requiring a mini-trial on each class member’s case to determine the eligibility for recovery and the amount of damages to which each plaintiff would be entitled.
However, this argument conflicts with Brinker’s clear holdings that for meal breaks, an employer has an obligation to relieve its employee of all duty, permit the employee to take an uninterrupted 30-minute break, and to not impede or discourage the employee from doing so. (Brinker, supra,
This principle is illustrated by the facts and holding in Jaimez, a case filed after our original opinion and cited with approval by the Brinker court. (Jaimez, supra,
In support of class certification, the Jaimez plaintiff submitted class member declarations showing the employees engaged in the same service-type duties (although for different customers), they were subject to the same uniform pay and meal break policies set forth in the handbook, the employer regularly failed to pay overtime pay, and the nature of the employer-assigned routes and duties resulted in the workers often working more than eight hours per day without taking required uninterrupted meal and/or rest breaks.
Reversing the trial court’s order, the Jaimez court found the trial court “misapplied” the law regarding class certification by “focusing on the potential conflicting issues of fact or law on an individual basis, rather than evaluating ‘whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment.’ ” (Jaimez, supra,
As in Jaimez, there were common factual and legal issues in this case regarding whether the employees were permitted to take meal and rest breaks and whether they were compensated for missed meal and rest breaks. The evidence also showed that the nature of Networkers’s scheduling and work requirements made it difficult for employees to take required rest and meal breaks. Focusing on the employees’ allegations that the employer’s company-wide employment practices violated state law, the Jaimez court found the fact that the evidence may disclose that not all employees missed a meal or rest break does not mean that individual issues would predominate on the liability issues. (Jaimez, supra, 181 Cal.App.4th at pp. 1300-1301.) Applying the principles set forth in Brinker, we reach the same conclusion in this case.
In reaching our conclusions in this case, we find unhelpful Networkers’s reliance on Sotelo, supra,
On this record, the Sotelo court held the trial court did not err in finding the class was not ascertainable and common issues did not predominate on the independent contractor issue or on matters relating to the individual claims. (Sotelo, supra, 207 Cal.App.4th at pp. 647-656.) With respect to the individual claims, the court found there was no evidence defendants had a common policy applicable to all employees that allegedly violated state law (id. at pp. 654-655) and plaintiffs had made no effort to satisfy the predominance element with respect to the specific claims (id. at p. 652). This is very different from the circumstances here where the plaintiffs alleged, and produced specific evidence, showing the existence of a common practice (the failure to authorize and provide for meal and rest breaks) that violated state law. Further, in Sotelo many of the workers employed other individuals to perform the required tasks and this information was not necessarily reflected in the employment records. Thus, unlike here, there was no simple or
This case is also factually distinguishable from other post-Brinker decisions upholding the denial of class certification on meal/rest break claims. (See, e.g., Tien v. Tenet Healthcare Corp. (2012)
B. Alleged Overtime Wage Violations
Plaintiffs also challenge the court’s refusal to certify the class on their claims that Networkers failed to pay overtime wages.
An employer is required to pay its employees 1.5 times the usual hourly wage for work in excess of eight hours per day or 40 hours per week, and two times the usual wage for work in excess of 12 hours. (§ 510, subd. (a); see Cal. Code Regs., tit. 8, § 11040, subd. 3(A).) Networkers admitted it paid no overtime wages to any class members from December 2004 through December 2005. Thus, if plaintiffs prove they were employees, the fact that Networkers did not pay overtime wages is a common issue that can be proved classwide.
Networkers nonetheless argued below that the overtime pay issue was inextricably linked with plaintiffs’ claims that they were unlawfully pressured by their supervisors to underreport their hours and their claims that they were not permitted to fully record travel and waiting times. Networkers asserted that because this underreporting did not occur on a consistent basis and was dependent on the particular job and the particular worker, to accurately determine the entitlement and amount of overtime pay for work that was never recorded, each of the class members would be required to testify, and Networkers would be entitled to present the testimony of the various individual supervisors, requiring numerous mini-trials on the factual issues regarding if and when the compelled underreporting occurred.
In our prior opinion, we found this argument provided a sufficient basis for the court to have exercised its discretion to deny certification on the overtime claim. However, on our review of the Brinker decision, we conclude there is no reasonable basis to merge the two issues into one single claim for the purpose of class certification on the overtime claim. (See Brinker, supra,
C. Off-the-clock Claims
Plaintiffs contend the court erred in failing to certify the class on their claims that Networkers violated state law by requiring class members to work at certain times but not allowing them to record the work time (“off-the-clock” claim). We reject this contention on the record before us.
The factual record does not necessarily show Networkers had a uniform policy requiring each employee to work off the clock. Instead, there is evidence supporting that the off-the-clock claims arose from individual actions of particular supervisors and the extent of the off-the-clock work varied substantially for each worker and for each job. Thus, on the record before us we cannot conclude that the court abused its discretion in denying certification on this claim.
However, because the factual and legal landscape has changed based on our reversal of the class certification ruling on the overtime and rest/meal breaks, and it is not clear that the court considered the off-the-clock issues separately from the overtime claim, .the prudent course is to remand this issue for the trial court’s reconsideration. In so doing, we decline to rule on plaintiffs’ contention that the off-the-clock violations may be proved by the use of representative testimony, surveys, and statistical methods. This contention involves factual questions regarding manageability and fairness that should be considered by the trial court in the first instance.
D. Remaining Claims
In addition to their causes of action for failure to pay overtime wages, violations of meal and rest break laws, and working off the clock, plaintiffs also brought claims for (1) failure tо furnish accurate wage statements; (2) failure to keep accurate payroll records; (3) waiting time penalties; and (4) unfair business practices. To the extent these claims were based on plaintiffs’ overtime and/or meal and rest break claims, the court should have granted class certification on these claims. To the extent these causes of action are based on the off-the-clock claims, the court should reconsider its ruling based on this opinion and Brinker.
Order reversed and remanded with directions. The parties to bear their own costs on appeal.
McConnell, P. J., and McDonald, J., concurred.
A petition for a rehearing was denied January 8, 2013, and the opinion was mpdified to read as printed above. Respondent’s petition for review by the Supreme Court was denied March 20, 2013, S208161.
Notes
The plaintiffs are Les Bradley, Edwin Jennings, and Versil Milton.
In reaching our conclusions, we reject Networkers’s arguments that plaintiffs’ supplemental briefs went beyond the scope of the Supreme Court’s remand. Under the high court’s direction, we focus our reconsideration of our prior opinion on the Brinker decision, including reviewing appellate decisions cited with approval by the Brinker court and appellate decisions filed after Brinker in which the appellate court applied and/or interpreted Brinker's holdings.
Cell sites are the tower facilities that receive and send radio transmissions to аnd from cellular phones. The Ericsson contract primarily concerned services for T-Mobile cell sites. For convenience, we shall refer to these sites as Ericsson/T-Mobile cell sites.
The complaint defined the proposed class as: “All persons, whether designated by Networkers as an employee, or, contrary to fact and law, designated as a consultant or independent contractor, who are employed or have been employed by Networkers in California to work for Networkers’ clients or Networkers’ clients’ telecommunications customers as non-exempt electronic technical support personnel, including technical services supporters, field technicians, cell site surveyor and others, to assist in the survey, deinstallation, installation, upgrading, maintenance, servicing and repair of such customers’ facilities, cell sites and/or equipment. . . .”
Further statutory references are to the Labor Code, unless otherwise specified. References to wage orders are to the 2001 Industrial Welfare Commission (IWC) wage orders. The wage orders are codified in the California Code of Regulations (Cal. Code Regs., tit. 8, §§ 11010-11170.)
Those factors include (1) the employer’s right to control the means and manner of accomplishing the result; (2) whether the worker is engagеd in a distinct occupation or business from the employer; (3) whether the type of occupation is usually “done under the direction of the principal or by a specialist without supervision”; (4) the skill required in the particular occupation; (5) the length of time for which the services are to be performed; (6) the method of payment whether by the time or by the job; (7) whether the parties believe they are creating an employee relationship; and (8) the right to discharge the worker at will. (Borello, supra, 48 Cal.3d at pp. 350-351.)
In this regard, Networkers’s reliance on decisions involving exempt employees is misplaced. (See Walsh v. IKON Office Solutions, Inc. (2007)
As in Sotelo, another court very recently upheld the lower court’s refusal to certify a class of home delivery newspaper carriers. (Ayala v. Antelope Valley Newspapers, Inc. (2012) .
In its supplemental appellate brief, Networkers argues at length that the law does not require an employer to provide a written meal or rest break policy. However, plaintiffs’ allegations concern the absence of any policy, not merely a written policy. Moreover, as Brinker instructs, a court should not address the merits of a claim in examining a class certification motion unless necessary. It is not necessary for this court to address the issue whether a written meal and/or rest break policy is legally required.
In a petition for rehearing, Networkers argues that the trial court erred in failing to specifically rule on each of its 227 evidentiary objections. However, by failing to raise and/or develop this contention in its appellate briefs, Networkers has waived the argument. Additionally, contrary to Networkers’ assertions in its rehearing petition, nothing in this opinion is intended to expand an employer’s rest break obligations beyond the standards discussed by the Brinker court.