ORDER GRANTING IN PART MOTION TO DISMISS THIRD AMENDED COMPLAINT
In this' putative class action, Plaintiffs Curtis Johnson (“Johnson”) and Anthony Aranda (“Aranda, and together “Plaintiffs”) filed suit against' their employer, Defendants Serenity Transportation, Inc. (“Serenity Transportation”), its owner David Friedel (“Friedel”), as well as Service , Corporation International (“SCI”), SCI California Funeral Services, Inc. (“SCI .California”), the Neptune Society of Central California, Inc, (“Neptune Soci
BACKGROUND
I. Complaint Allegations
Plaintiffs are “mortuary transportation drivers who carry dead bodies and other human remains from various locations (including nursing homes, ' hospitals, and homes) to Defendants’ facilities.” (Dkt. No. 50 ¶ 1.) Johnson worked as a driver for Defendants from January 1, 2012 to August 23, 2013, and Aranda from approximately August 2012 to March 2015. (Id. ¶¶ 6-7.) They bring this putative class action on behalf of themselves and the other 40-plus drivers that Defendants have employed during the relevant period. (Id. ¶ 17.)
Serenity Transportation & Friedel
' Defendant Serenity Transportation is a mortuary transportation company that employed Plaintiffs within the meaning of the Fair Labor Standards Act (“FLSA”),' California Labor Code, and applicable Industrial Welfare Commission wage order (“IWC Wage Order”) to transport decedents. (Id. ¶¶ 8,17.)
Friedel is the owner, shareholder, CEO, and Board Member of Serenity Transportation, ¿nd an employer of Plaintiffs within the meaning of the FLSA, California Labor Code, and IWC Wage Order. (Id. ¶ 9.) Friedel “is the alter ego” of Serenity Transportation, which he operates for the purpose of concealing violations of the Labor Code. (Id.) Friedel dominates and-controls the actions of Serenity Transportation and knowingly advised the company to treat the drivers as independent contractors to avoid employee status. (Id.) Friedel fails to respect Serenity Transportation’s corporate form by failing to adequately capitalize it, failing to properly maintain its minutes and corporate records, maintaining sole ownership of all Serenity Transportation stock, using his personal home as the location for board meetings, and otherwise failing to conduct board meetings in compliance with the law. (Id.)
Together, Serenity Transportation and Friedel assign drivers- to 24-hour shifts, five days a week, resulting in 120-hour work weeks. (Id. ¶ 18.) The drivers are made available .24 hours a day to SCI, SCI California, Lifemark, Neptune, and the County’s Office of the Medical Examiner-Coroner. (Id.) Serenity Transportation and Friedel recruit and supervise drivers and advertise available driver positions online. (Id. ¶ 19.) The advertisements , specify that drivers must be available for on-call shifts 24 hours a day and that the employer enforces a professional attire dress code. (Id. ¶ 10.) Once hired, Serenity Transportation and Friedel schedule drivers for . shifts and retain the right to change the shifts at their discretion. (Id.) Friedel is personally involved in drafting hiring criteria, interviewing drivers, and''Scheduling their shifts. (Id. ¶ 19.) Together, Serenity
' On both their website and in advertisements, Serenity Transportation and Frie-del refer to the drivers as “staff.” (Id. ¶ 29.) Serenity Transportation and Friedel lease equipment to drivers, including vehicles, radios, and stretchers. (Id.) Initially when Serenity Transportation was founded in 2010 it classified the drivers as employees, but Friedel, in his capacity as a member of the corporation’s Board of Directors, recommended that Serenity Transportation reclassify the drivers as independent contractors, and Serenity Transportation followed suit in February 2011. (Id. ¶¶ 29, 35.)
Drivers work for Serenity Transportation and Friedel continuously for many months or years. (Id. ¶ 33.) The drivers are, however, subject to termination by Serenity Transportation and Friedel at any time for any reason. (Id. ¶ 35.) Drivers are not required to possess á special license or undergo special training to perform Serenity Transportation’s transportation services. (Id. ¶ 34.)
Joint Employer Allegations
Serenity- Transportation and Friedel served as labor contractors for SCI, SCI California, Neptune, Lifemark, and the County by providing drivers on an ongoing basis to meet those entities’ needs. (Id. ¶¶ 20, 33.) SCI and SCI California provide funerál and end of-life services' in Alameda County and across the United States.- (Id. ¶¶ 11-12.) Neptune and Lifemark provide cremation, removal, and end-of-life services in Alameda County and across the United States. (Id. ¶¶ 13-14.) The County provides investigation, removal, and autopsies in Santa Clara County. (Id. II15.) SCI, SOI California, Neptune, Lifemark, and the County all employed Plaintiffs by permitting them to work, exercising control over their wages, hours, and working conditions, and engaging them. (Id. ¶¶ 11-15.) The work that Plaintiffs and drivers generally performed for these Defendants was labor within the entities’ usual course of business. (Id.)
The Customer Defendants' control .the means and methods by which drivers carry out their jobs by directing drivers as to how to handle and remove decedents. (Id. ¶ 23.) While Drivers were at each Joint Employer’s location, drivers were under that Joint Employer’s supervision and control. (Id. ¶¶ 24-26.) Specifically, .SCI and SCI California promulgated detailed policies governing drivers’ work, including requiring a particular type of identification band, specific labeling procedures, -and a protocol for witnessing removal of human remains. (Id. ¶ 24-.) SCI and SCI California retain the right to change these policies at any time. (Id.) They also retain the right to require that drivers receive ongoing training to provide services .in compliance with the entities’ service guarantee; detail the time period in which drivers must respond to calls; and require drivers to follow a professional dress code. (Id.)
Neptune'worked with Serenity Transportation and Friedel to create policies governing the drivers’ work, subject to change by Neptune, which include “instructions on how and- where to record
Lifemark also worked with Serenity Transportation to create policies governing drivers’ work subject to Lifemark’s change. (Id. ¶ 26.) Lifemark’s policies include instructions on. “how and where to record information about the deceased, how to handle the deceased, and how Drivers should conduct themselves when arriving at and leaving Lifemark properties.” (Id.)
The County also promulgated detailed policies governing the drivers’ work subject to Change by the County at any time. (Id. ¶ 27.) These policies include identification and removal protocol at the County Coroner, including “the timeframe in which STI Drivers [are] expected to respond to different types of calls ...; the amount of time that Drivers [are] required to wait at the scene if the deceased [is] not ready to be transported; and ‘stand-by’ and ‘dry-run’ time.” (Id.) The County requires drivers to keep records of service completion, and retained the right to keep its own records of runs. (Id.) The County also requires drivers to follow a dress code, refrain from displaying insignia besides the County Coroner’s, specified rules for driver’s vehicles’ appearance and equipment and retains the right to inspect these vehicles at any time. (Id.) The County supplies some of the driver’s equipment and otherwise requires that drivers act in accordance with instructions given by County staff at the scene. (Id.)
Payment Allegations
Defendants paid Plaintiffs under a common compensation plan and policy where drivers are paid a flat rate that Defendants set for each completed dispatch. (Id. ¶- 37.) All Defendants participate in this scheme “including by requiring Drivers to fill out proprietary paperwork on which Driver time is recorded.” (Id.) As a result, drivers are not compensated for time spent awaiting calls. (Id.) This payment system fails to provide either minimum wage or overtime payment to drivers. (Id.)
11. Procedural History
Plaintiff Johnson initiated this action in Alameda County Superior Court on June 12, 2014 alleging that Serenity Transportation and Friedel violated certain provisions of the California Labor Code. (Dkt. No. 1.) While the case was pending in state court, Johnson amended the complaint to add SCI and Neptune as defendants and to add a claim under the FLSA. (Dkt. No. 1 ¶ 1; Dkt. No. 32-1.) SCI properly and timely removed the case to federal court. (Dkt. No. 1.) Johnson then filed a Second Amended Complaint (“SAC”) adding Plaintiff Aranda and naming Lifemark, SCI California, and the County as defendants. (Dkt. No. 16.) The Court then granted Plaintiffs leave to file a Third Amended Complaint (“TAC”), which removed certain previously-alleged causes of action and added others. (Dkt. No. 49.)
The now operative TAC includes ten causes of action against various groupings of defendants under federal and California labor law. The gravamen of almost all of Plaintiffs’ claims against all Defendants is that drivers have been misclassifled as independent contractors when they are really employees, and therefore Defendants have denied them the benefits of federal and California wage-and-hour laws. Defendants have moved to dismiss all claims against Friedel and the Customer Defendants as well as three of the ten causes of action for failure to state a claim upon which relief may be granted.
LEGAL STANDARD
A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege “enough facts to state a claim to relief that is plausible on its face,” Bell Atl.
Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), under which a party is only required to make “a short and plain statement of the claim showing that the pleader is entitled to relief,” a “pleading that offers ‘labels and conclusions5 or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal,
If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith,
DISCUSSION
Defendants move to dismiss the TAC on three main grounds: (1) failure to allege a basis for Friedel’s liability;. (2) failure to demonstrate that the Customer Defendants qualify as Plaintiffs’ joint employers for the purposes of liability; and (3) failure to allege sufficient facts to state a claim upon which relief may be granted for the second, third, and seventh causes of action. The Court will address each in turn.
A. The TAC Adequately Alleges Grounds for Defendant Friedel’s Liability
1. Alter Ego Liability
Plaintiffs allege that Friedel is the alter ego of Serenity Transportation such that he, is liable for the corporation’s violations. (Dkt. No. 51 ¶ 9.) “The alter ego doctrine arises when a plaintiff comeg into court claiming that an opposing party is using the corporate form unjustly and in derogation of the plaintiff’s interests.”
When assessing whether there is unity of interest between a corporation and an individual for the purposes of piercing the corporate veil under alter ego liability, courts consider, among other factors:
the commingling of funds and other assets; the failure to segregate funds of the individual and the corporation; the unauthorized diversion of corporate funds to other than corporate purposes; the treatment by an individual of corporate assets as his own; the failure to seek authority to issue stock or issue stock" under existing authorization; the representation by an individual that he is personally liable for corporate debts; the failure to maintain adequate corporate minutes or records; the intermingling of the individual and corporate records; the ownership of all the stock by a single individual or family; the domination or control of the corporation by the stockholders; the use of a single address for the individual and the corporation; the inadequacy of the corporation’s capitalization; the use of the corporation as a mere conduit for an individual’s business; the concealment of the ownershipof the corporation; the disregard of formalities and the failure to maintain arm’s-length transactions with the corporation; and the attempts to segregate liabilities to the corporation.
Digby Adler Grp. LLC v. Image Rent a Car, Inc.,
The TAC alleges more than mere conclusory allegations that courts generally find insufficient. See Gerritsen v. Warner Bros. Entm’t Inc.,
Defendants’ reliance on Stewart v. Screen Gems-EMI Music, Inc.,
' Next, “California courts generally require evidence of some bad-faith conduct to fulfill the second prong of alter ego- liability, [and] that bad faith must make it inequitable to recognize the corporate form.”" Smith v. Simmons,
Instead, Plaintiffs urge, that the inequitable result is- that Friedel will be unjustly enriched by having, directly profits ed from having unlawfully instructed Serenity Transportation to violate the California Labor Code by classifying the drivers
2. Liability under California Labor Code § 2753.4
The first eight causes of action in the TAC allege liability against Friedel, in part, for having advised Serenity Transportation to treat drivers — who were initially classified as employees — as independent contractors knowing that they were, in fact, employees. Plaintiffs’ allegations arise under California Labor Code § 2753, which provides in relevant party that a person “who, for money or other valuable consideration, knowingly advises an employer to treat an individual as an independent contractor to avoid employee status for that individual shall be jointly and severally liable with the employer if the individual is found not to be an independent contractor.” Cal. Labor Code § 2753(a), The statute also includes a carve-out, noting that it does not apply to a “person who provides advice to his or her employer” or a licensed attorney providing legal advice. Id. § 2753(b).
The TAC alleges that Friedel was the CEO of Serenity Transportation. (Dkt. No. 46 ¶ 9.) Thus, because he is alleged to be an employee of the company, Defendants contend that the subsection (b) carve-out applies and Friedel is not vicariously liable under Section 2753. Defendants made this same argument in their opposition to
Defendants argue generally that, as a matter of logic, when a person performs as both employee and in other roles for his employer — like a member of board .of directors — his employment relationship always precludes Section 2753 liability. On the one hand, this approach finds support in the legislative history of Section 2753, which explains that the addition of the section “was necessary because employers frequently relied on the services of employment consulting firms to find ways to streamline the business and cut costs.” Noe v. Super. Ct.,
Defendants further contend that Plaintiffs have not alleged that Frie-del received money or valuable consideration for providing the misclassification advice, so the claim fails anyway. But Plaintiffs have alleged that Friedel was the sole shareholder of Serenity Transportation. (Dkt. No. 51 ¶ 9.) Drawing all inferences in Plaintiffs’ favor as required, one could reasonably infer that Friedel received the cost-savings benefit — i.e., withheld wages and benefits — that resulted from Serenity Transportation classifying drivers as independent contractors instead of employees. Thus, Plaintiffs have stated a claim for Friedel’s vicarious liability under Section 2753, as well. The Court therefore declines to dismiss Friedel from this action.
Defendants next contend that Plaintiffs have failed to allege that SCI, SCI California, Neptune, Lifemark, and the County are liable to Plaintiffs as “joint employers” under the FLSA and California law. The joint employer doctrine recognizes that “even where business entities are separate, if they share control of the terms of conditions of an individual’s employment, both companies can qualify as employers.” Guitierrez v. Carter Bros. Sec. Servs., LLC, No. 2:14-cv-00351-MCE-CKD,
1. Joint Employer under the FLSA
a. Legal Standard
A defendant must be an “employer” of the plaintiff to be- liable under the FLSA. Bonnette v. Cal. Health & Welfare Agency,
“Two or more employers may be “joint employers” for the purposes of the FLSA.” Maddock v. KB Homes, Inc.,
The Supreme Court has explained that the “economic reality” of an employment situation determines whether an employer-employee relationship exists under the FLSA. Goldberg v. Whitaker House Co-op.,
Where the employee performs work which simultaneously 'benefits two or more employers; or works for two or more employers at different times during the-workweek, a-joint employment relationship generally will be considered to exist in situations such as:
(1) Where .there is an-arrangement between the employers to share the employee’s services, as, for example, to interchange employees; or
(2) Where one employer is acting directly or indirectly in the interest of .the other employer (or employers) in relation to the employee; or .
(3) Where the employers are not completely disassociated-with-respect to the employment of a- particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.
29 C.F.R. § 791.2(b). Thus, the regulations indicate that “joint employment will generally be considered to exist when 1) the employers are not ‘completely disassociated’ with respect to ,the employment .of the individuals and-2) where, one employer is controlled by another or the employers are under common, control.” Chao v. A-One Med. Servs., Inc.,
The Ninth Circuit, in turn, has adopted a four-part “economic reality” test to determine when the employer-employee relationship exists. See Bonnette,
(1) the work done by the employee was analogous to a specialty job on the production line; (2) the responsibility under the contract was. standard for the industry and could be passed from one contractor to another "without material change and little negotiation; (3) the purported j oint employer owns or has an interest in the premises and equipment used for the work; (4) the employees did -not have a business organization that could shift as a unit from one worksite to another;. (5) the services rendered were piecework and did not require special' skill, initiative or foresight; (6) the employee did not have, an opportunity for profit or loss depending upon the employee’s managerial skill; (7) there was permanence in the working relationship and (8) the service rendered was an integral part of the alleged joint employer’s business.3
In addition to pleading facts in support of the Bonnette and Torres-Lopez factors, a plaintiff seeking to hold multiple entities liable as joint employers must plead specific facts that explain how the defendants are related and how the conduct underlying the claims is attributable to each defendant. See Freeney v. Bank of Am. Corp., No. CV 15-02376 MMM (PJWx),
b. Application to the Customer Defendants
i. Bonnette Factors
Power to Hire and Fire. The first Bonnette factor is whether the alleged joint employer has the power to hire and fire the purported employees. Here, the TAC alleges that Serenity Transportation and Friedel placed job advertisements, interviewed, and hired drivers, then provided them to the Customer Defendants as a labor contractor. (Dkt. No. 50 ¶¶ 19-20.) Thus, the Customer ■ Defendants plainly have no hiring authority. With respect to firing, the TAC alleges generally that the Customer Defendants retain and exercise the right to remove drivers from their work rotation. (Dkt. No. 50 ¶ 35.) In contrast, however, the TAC also explicitly alleges that Serenity Transportation and Friedel retain and exercise the right to terminate a driver’s employment. (Id.; see also id. ¶ 22 (noting that failure to comply with policies could result in the driver’s contract termination).) Plaintiffs ■ argue in their opposition that removal of a driver from his work rotation for a particular Customer Defendant “effectively terminates the Driver from that Defendant and is indicative of employment status.” (Dkt. No. 52 at 12.) But the TAC does not allege that removal of a driver from a work rotation terminates the driver’s role — as a driver for Serenity Transportation. Thus, the first Bonnette factor weighs against a finding of joint employer status for all of the Customer Defendants.
Control over the Employees’ Work Schedules or Conditions. The second Bonnette factor is whether the entity had control over the employees’ work schedules or conditions. This factor provides a scintilla of support for a finding of joint employer status. The Court discounts the conclusory allegation that all “[e]ach of the Defendants has retained extensive control over the wages, hours, and working conditions of Plaintiffs and other Drivers.” (Dkt. No. 50 ¶ 17.) The TÁC alleges that the Customer Defendants promulgated detailed policies that governed the work that the drivers performed. (Id. ¶¶ 23-27.) Simi
Turning to the more specific allegations against each Customer Defendant, ‘ SCI and SCI California enacted policies requiring drivers to use particular labeling and removal protocol; requiring that drivers receive training; detailing the time period in which drivers were to respond to calls; and specifying that drivers dress “in a professional manner.” (Id. ¶ 24.) Merely requiring drivers to dress professionally while on the job plainly does not give rise to joint employer' liability; this “policy” does not even identify the particular clothing that the drivers must wear. And while one identified policy is that SCI and SCI California require that drivers receive training, Plaintiffs do not allege that the training comes from those entities or has anything to do with those entities’ policies. Thus, the claim against SCI and SCI California turns on those entities’ labeling and removal protocol and policies detailing the time period in which drivers must respond to calls. There is no allegation that SCI and SCI California control the drivers’ driving routes or schedules. These allegations provide some indication that SCI and SCI California had limited .control over the employees’ work conditions, but the inference is weak at best.
Turning to Neptune, Plaintiffs allege that the entity created policies with instructions on how and where drivers must record information about the deceased, how to handle the deceased, and the order in which drivers were to complete tasks. (Id. ¶ 25.) The TAC does not detail what those policies were — ie., what tasks were included and, how they were enforced, if at all. Further undercuttipg any inference of Neptune’s control is the allegation that Neptune “worked with STI and Friedel” to create the policies. (Id.) Even drawing all reasonable inferences in Plaintiffs’ favor, that Neptune did not have its own policies governing the drivers but rather created policies with the drivers’ actual employer undercuts the conclusion that Neptune itself exereised control over the drivers’ working conditions through these policies.
The same is true of Lifemark, which is alleged to have worked with Serenity Transportation and Friedel to create policies and procedures including instructions on how and where to record information about' the deceased, how to handle the deceased; and how drivers should conduct themselves while ' located on Lifemark property. (Id. ¶ 26.) As above, the TAC does not detail what those policies are; without them, the Court has no ability to suss out the extent to which the policies actually indicate Lifemark’s control over the drivers’ working conditions. Nor does the TAC allege that Lifemark itself monitored or enforced the policies. Thus, as written, the allegations against Neptune and Lifémark give rise only to an anemic inference that the entity, exercised control over the drivers’ work conditions and schedules.
The County presents a slightly different picture. The TAC alleges that the County promulgated policies about the timéframe in which drivers must respond to different types of calls, the amount óf time drivers were required to wait at the' scene if the deceased was not ready to be transported, and, “stand-by” and “dry-run” time. (Id. ¶ 27.) This is enough, at this stage of litigation, to plausibly establish that the Customer Defendants exercise control
Thus, the second Bonnette factor provides some support for a finding of joint employer status for the County, and minimal support for such finding as to SCI, SCI California, Neptune, and Lifemark.
Control over the Rate and Method of Employees’ Payment. The third Bonnette factor is whether the alleged employer determined the rate and method of the employees’ payment. The TAC alleges in a conclusory fashion that “[a]ll Defendants participate in the compensation scheme, including by requiring Drivers to fill out proprietary paperwork on which Driver time is recorded.” (Dkt. No. 50 ¶ 37.) In the TAC, Plaintiffs impliedly allege that they signed an employment contract with Serenity Transportation.
Maintenance of Employment Records for the Employees. The final Bonnette factor considers whether the Customer Defendants maintain employment records for the employees. The TAC does not allege that SCI, SCI California, Neptune, or Lifemark maintain employment records for the drivers. As for the County, the TAC alleges that the County requires drivers to keep records, and retains the right to keep records of the runs. (Dkt. No. 50 ¶ 27.) But. it does not allege that the County actually maintains such records. Thus, this factor, weighs against a finding of joint employment status against all Customer Defendants.
Plaintiffs argument that it has no knowledge regarding whether other Defendants [besides the County] retained employment records” because those Defendants “have not substantially responded to any discovery requests” misses the mark. (Dkt. No. 52 at 13.) This approach — allowing Plaintiffs' to cure pleading defects at the back end through facts gleaned through discovery rather than pleading facts in the complaint — flips the relevant pleading standard on its head. Twombly and Iqbal require a plaintiff to plead enough facts from which a plausible inference' of joint employment status can be drawn to survive dismissal; and thereafter proceed to discovery, not' the other way aroúnd.
ii. Torres-Lopez Factors
The Court now turns to the second through seventh Torres-Lopez factors. See Moreau,
But besides a mechanical application of these factors, the- facts of Torres-Lopez itself are also instructive. There, the nominal employer effectively had no employees
The Bonnette factors weigh the heaviest in the joint employment analysis under federal law, see Moreau,
2. Joint Employer Under California Law
The Court reaches the same conclusion applying California law, which has its own test for determining joint employment.
a. Legal Standard
In actions to recover unpaid minimum wages pursuant to Cal. Labor Code § 1194, as here, “the standards to determine whether Defendants are directly liable are set out in Martinez v. Combs,
Notably, Plaintiffs argued that another test should primarily drive the determina
Plaintiffs argue that since Martinez, a number of courts have continued to apply only the common law Borello right-to-control test without reference to Martinez or the IWC Wage Order definitions. See, e.g., Alexander v. FedEx Ground Package Sys., Inc.,
Still, the question of the scope of Martinez’s application has not yet been resolved. As one court in this District recently explained, “[although Martinez involved alleged minimum wage violations under California Labor Code § 1194, California courts have applied the Martinez definition to causes of action arising under other section of the Labor Code as well.” Ochoa,
Notably in Martinez, the California Supreme Court also implied that Borello may not apply to wage claims at all because the fact's are distinguishable.
i. Exercise Control over Wages, Hours, or Working Conditions
Under Martinez, an entity employs workers if it “directly or indirectly, or through an agent or any other person, employs or exercises' control” over their wages, hours, or working conditions. IWC Wage Order No. 9-1002 § 2(G). The language is disjunctive, and control over only one such factor will give rise to joint employer liability. See Martinez,
For example, in Martinez, the plaintiff workers sued a farmer and two produce merchants that sold the farmer’s produce.
ii. Suffer or Permit to Work
An entity can be held liable as ah employer for “suffering or permitting to work” only if it “fail[s] to perform the duty of seeing to it that the prohibited condition does not exist.” Martinez,
In Martinez, the California Supreme Court concluded that the produce merchants were not employers because “neither' had the power to prevent plaintiffs from working.” Id. Instead, only the‘ farmer “had the exclusive power to hire and fire his workers, to set their wages and hours, and to tell them when and where to report to work.” Id. The court reasoned that while the merchants “might as a practical matter have forced [the farmer] to lay off workers or to divert their labor to other projects” by no longer doing business with the farmer, but “[s]uch a business relationship, standing alone, does not transform the purchaser into the employer of the supplier’s workforce.” - Id. Other courts have similarly underscored that an entity does not “suffer or permit” workers to work where they do not have hiring and firing power. See, e.g., Futrell,
iii. Engage
Under- Martinez, “to engage” means to create a common law employment relationship. Martinez,
California courts also consider “several ‘secondary indicia of the nature of a service relationship.” Borello,
(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the in-strumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.
Id.; see also Futrell,
2. Application to the Customer Defendants
Plaintiffs argue that the allegations in the TAC meet all three definitions of an employer under Martinez.
a. Exercise Control Over Wages, Hours, or Working Conditions
Plaintiffs contend that the Customer Defendants exercise control over both their wages and working conditions sufficient for a finding of joint employment. With respect to wages, Plaintiffs insist that the Customer Defendants in part set the drivers’ compensation, based on the allegation that “Drivers are paid a flat rate set by Defendants for each dispatch they complete.” (Dkt. No. 50 ¶ 37.) But the employment contract indicates that drivers receive a percentage of the fees for services that the Customer Defendants pay. (Dkt, No. 51-1 at 7.) While this makes clear that the Customer Defendants’ initial fee contributes to the ultimate determination of how much drivers receive, Serenity Transportation alone is alleged to have responsibility for determining the rate at which drivers were ultimately paid. The California Supreme Court squarely rejected the exact argument that Plaintiffs now advance. See Martinez,
Nor does the TAC allege facts that give rise to a plausible inference that the Customer Defendants exercise control over the drivers’ working conditions based on the policies they are alleged to have promulgated. While the TAC includes some allegations regarding policies that the Customer Defendants promulgated with respect to the drivers’ work and that certain Customer Defendants (namely, SCI and SCI California) required drivers to undergo training, mere imposition of requirements or oversight of workers’ performance is not enough to make the overseeing entity a joint employer absent hiring and firing power. See Martinez,
Plaintiffs rely on Villalpando v. Exel Direct, Inc., No. 12-CV-04137 JCS,
And indeed, besides conclusory allegations that the Court does not accept as true, there are no factual allegations supporting the proposition that the Customer Defendants could hire or fire drivers from their positions. While they could request that a driver be removed from their rotation — i.e., that the driver no longer performs pickups for them — there are no allegations that this removal affects the driver’s employment with Serenity Transportation. Thus, the allegations do not plausibly establish that removal from one Customer Defendant’s routes does not result simply in the driver doing runs for other customers. See Martinez,
For each of these reasons, the TAC does not allege that the Customer Defendants exercised control over the' drivers’ wages working conditions sufficient for a finding of joint employer status under the first prong óf Martinez.
b. Suffer or Permit to Work
Plaintiffs’ argument as to the second prong fares no better. Plaintiffs barely push back against Defendants’ assertion that the, TAC fails to allege that the Customer Defendants, “suffered or permitted” the drivers to work under the meaning of Martinez. Indeed, Plaintiffs’ opposition dedicates a single sentence in support of the proposition that the TAC meets the suffer-or-permit-to-work standard. (Dkt. No. 52 at 10:17-19.) Specifically, Plaintiffs contend that the allegation that the Customer Defendants “helped set workers’ wages and determined in part the workers’ work location and hours established that it may have had knowledge of and failed to prevent the allegedly unlawful work from occurring[.]” (Id.)
However, just like the alleged joint employers in Martinez, as explained above, Serenity Transportation is alleged to have exclusive power to hire and fire the drivers and to set their wages and hours. Martinez,
c. To “Engage” and thereby Create a Common Law Employment Relationship
As for the third prong, whether the Customer Defendants “engaged” drivers, the Court considers whether the Customer Defendants created a common law employment relationship with the drivers. Martinez,
The primary inquiry is whether 'the Customer Defendants had the right to exercise control over the drivers. The inquiry is similar to the FLSA analysis. Plaintiffs allege that SCI/SCI California retained the right to control the drivers’ work by enacting detailed labeling and -witness removal protocol requiring- that drivers receive training; detailing the time period in which drivers must- respond to calls, and retaining the right-to control driver dress code. (Dkt. No. 50 ' ¶ 24.) Neptune allegedly created policies and procedures including instructions on how and where to record information,. how to handle the deceased, and the order in which drivers were to complete tasks. (Id: ¶ 25.) Similarly, Lifemark allegedly created policies and procedures about hów and where to record informa;tion about the deceased, how to' handle the deceased, and how drivers should conduct themselves when arriving at and leaving Lifemark properties. (Id. 1Í 26.) The County, in turn, promulgated policies governing identification and removal protocol, including the timeframe in which drivers were expected to respond, the amount of time that drivers must wait.at th.e scene, records drivers must keep, professional dress requirements, and certain vehicle and equipment requirements. (Id. ¶ 27..) These allegations are enough to plausibly establish that the Customer Defendants had some control over some of the details of the drivers’ work.
As for the secondary factors, while Plaintiffs argue that the Customer Defendants had the right to terminate drivers as explained above, the actual allegations are that the Customer Defendants could remove drivers from their rotation. Next, Plaintiffs allege that transportation of Iranian remains is not a distinct occupation or business from the Customer Defendants, but rather was integral to their work: SCI and SCI California allegedly hired drivers themselves, and Neptune and Lifemárk advertise and offer removal transportation services as part of their end-of-life services. (Dkt. Nó. 50 ¶¶ 30-31.) They have alleged that no skill, special training or specialized license is required to do the work (id. ¶ 34), and that drivers were made available to the Customer Defendants on an ongoing basis, which implies an. indefinite working relationship (id. ¶ 33).
On the other hand, other secondary factors are not pleaded: while Plaintiffs allege in a conclusory manner that the Customer
To be sure, Plaintiffs do “not have to satisfy every factor in order to establish an employment relationship” at the pleading stage. See Betancourt,
***
As written, the TAC does not adequately allege any basis for joint employer liability under the standards set forth in Martinez. Because Plaintiffs have therefore failed to plausibly establish a basis for the Customer Defendants’ joint employer liability under either federal or California law, the Court will ‘ therefore dismiss all claims against the Customer Defendants with leave to amend.
C. Adequacy of Particular Causes of Action
1. Second Cause of Action Based on “On Call” and “Standby” Time
In the second cause of action, Plaintiffs allege that Defendants are liable for failing to pay drivers' minimum wage for all hours worked because drivers were not compensated for “on call” or “standby time” waiting for new pick-up assignments in violation of California Labor Code § 1194 and IWC ■ Wage Order 9-2001. (Dkt. N. 50 ¶¶ 70-89.) Defendants move to dismiss this claim on the ground that the TAC contains insufficient allegations that Plaintiffs- are entitled to be paid for their on-call and standby time.
California law requires employees to be paid for “all hours” worked “at the statutory or agreed rate and no part of this rate may be used as a credit against a minimum wage obligation.” Armenta v. Osmose, Inc.,
“It is well established that an employee’s on call or standby time may require compensation.” Mendiola v. CPS Sec. Solutions, Inc.,
“California courts considering whether on-call time constitutes hours worked have primarily focused on the extent of the employer’s control.” Mendiola,
(1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee’s movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; (7) whether the employee had actually engaged in personal activities during call-in time.
Mendiola,
Here, Plaintiffs allege that drivers are assigned to 24-hour shifts, five days a week, resulting in 120-hour workweeks and that they are only paid when responding to calls. (Dkt. No. 50 ¶¶ 18, 83.) They allege that they can receive as many as seven or eight 2-hour calls per day. (Id. ¶ 84.) Plaintiffs allege that Serenity Transportation and Friedel require drivers to respond immediately to notices of calls on the Nextel radios that Serenity Transportation provides and that — at least on information and belief — the Customer Defendants expect drivers to be available 24 hours a day 7 days a week and to respond to dispatches within a specified timeframe.6 (Id.) Plaintiffs further allege that these requirements “made it difficult for Drivers to engage in personal activities when they were not responding to calls.” (Id.)
Applying the factors identified in Mendiola to these allegations, there are no on-premises living requirement or excessive geographical restrictions alleged, so the first two factors weigh against compen-sable on-call time. With respect to the
Plaintiffs rely on Renfro v. City of Emploria, Kansas,
In short, as presently written, Plaintiffs have alleged facts that they “waited to be engaged,” not that they were “engaged to wait.” The second cause of action is therefore dismissed to the extent that it asserts failure to compensate on-call time.
2. Third Cause of Action for Unpaid Overtime Wages
Plaintiff’s third cause of action alleges that Defendants failed to pay them overtime wages in violation of California Labor Code § 510 and IWC Wage Order 9-2001 § 3. (Dkt. No. 50 ¶¶ 90-97.) Labor Code Section 510 “requires employees to be paid not less than one and on-half .times their ‘regular rate of pay’ for all hours in excess of eight [hours] in a day or 40 [hours] in a week.” Gonzalez,
Defendants argue that Plaintiffs’ overtime claim must be dismissed because Plaintiffs have not shown that they worked in excess of 8 hour works days or 40 workdays precisely because they have not shown that they are entitled to compensation for on-call time. The Court declines to dismiss this cause of action. As discussed above, the TAC as written fails to establish
3. Seventh Cause of Action Regarding Itemized Statements of Hours Worked
The seventh cause of action, a “pay stub” violation, arises under Labor Code Section 226 and IWC Wage Order No. 9 § 7. Plaintiffs allege that Defendants have failed to comply with their obligation to provide Plaintiffs, semi-monthly or at the time of each payment of wages, with accurate, itemized written statements describing the total number of hours worked. (Dkt. No. 50 ¶¶ 124-132.)
Labor Code Section 226 requires an employer’s semi-monthly wage statement to include an accurate itemized written statement including nine categories of information, including the total number of hours worked. Cal. Labor Code § 226. “To recover damages under [S]ection 226, subdivision (e), an employee must suffer injury as a result of a knowing and intentional failure by an employer- to comply with the statute.” Price v. Starbucks Corp.,
Here, Plaintiffs allege that their wage statements did not show the actual and total number of hours worked and that, as a result, they have been precluded from accurately monitoring the number of hours worked, determining whether they have been lawfully compensated for all hours worked, and seeking any owed overtime. (Dkt. No. 50 ¶¶ 126, 129.) Courts have found that a. plaintiffs “inability to determine their hourly wage meets the minimal-injury requirement of Section 226.” Soto v. Diakon Logistics (Del.), Inc., No. 08-CV-33-L WMC,
D. Leave to Amend
Generally, when a complaint is dismissed, “leave to amend shall be freely given when justice so requires.” Carvalho v. Equifax Info. Servs., LLC,
Here, Plaintiffs have,already amended her claims three times. However, Plaintiffs first and second amended complaints were filed as of right, and the Court granted Plaintiffs leave to file the third upon Plaintiffs’ request. Thus, none of the amendments followed briefing on a motion to dismiss, so the Court has not had an opportunity to put Plaintiffs on notice of any deficiencies. At oral argument, Plaintiffs represented that they can allege further facts to render plausible at least some of the dismissed claims. Accordingly, the Court will grant leave to amend.
CONCLUSION
For the reasons described above, the Court GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss. Specifically, the Court declines to dismiss the claims against Friedel of the third and seventh causes of action. However, the Court dismisses the claims against the Customer Defendants, but Plaintiffs shall have lead to amend to add allegations that establish that the Customer Defendants were joint employers for the purposes of the FLSA and the California Labor Code. In addition, the Court dismisses with leave to amend the second cause of action to the extent that it asserts failure to compensate for on-call time. Plaintiffs’ amended complaint is due by November 16, 2015.
This Order disposes of Docket No, 51.
IT IS SO ORDERED.
Notes
. Both parties cite both federal and state law when describing the requirements of alter ego
. Plaintiffs also allege that Friedel himself was an “employer” of drivers. An individual manager can be liable as an employer where he has a significant role in company operations and supervision of employees, particularly where he has a say on financial matters. See Boucher v. Shaw,
. The Torres-Lopez factors derive from the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §§ 1801-1872. See Maddock v. KB Homes, Inc.,
. Defendants attached a copy of Plaintiff Johnson’s employment contract to their motion to dismiss. (Dkt. No. 51-1.) On a 12(b)(6) motion, a court may consider documents incorporated by reference into the complaint. United States v. Ritchie,
. California’s common law the test is so similar to federal law that at least one court in this District has declined to apply the California rules separately and instead applied the FLSA test even to state law labor claims. See Rios v. Airborne Express, Inc., No. C-05-2092 VRW,
. The TAC does not allege what that specified timeframe is for any Customer Defendant.