I.
FACTUAL AND PROCEDURAL BACKGROUND
Aerotek is a staffing agency that places temporary employees with its clients. Bay Bread operates a food production facility in South San Francisco. In September 2010, Aerotek and Bay Bread entered a contract under which Aerotek provided temporary employees to work at Bay Bread. The contract stated that temporary employees would work "under [Bay Bread's] management and supervision at a facility or in an environment controlled by [Bay Bread]" and that it was Bay Bread's "responsibility to control, manage and supervise the work" these employees were assigned to perform under the contract.
Aerotek's policies that applied to temporary employees on assignment with clients were set forth in an employee handbook. In relevant part, Aerotek's meal period policy required the following:
After a work period of more than 5 hours, an hourly employee must be provided an uninterrupted 30-minute off-duty meal break. This meal period must begin no later than the end of the employee's 5th hour of work, and the employee is expected to take this meal break in full. If, however, an employee's workday is no more than 6 hours, the employee may elect to waive the off-duty meal period in advance by written agreement with the company.
[¶] ... [¶]
An employee should be relieved from all duties during these 30-minute meal breaks, and the employee must accurately record the time of day he or she began and ended the meal period. A meal period during which the employee is relieved of all duties is not considered time worked and thus the employee will not be paid for the meal break.
[¶] ... [¶]
If at any time an employee believes that someone is preventing him or her from taking, or interfering with the employee's ability to take an authorized ... meal period, the employee immediately should report the matter to their Aerotek Representative. The employee will suffer no retaliation for reporting this matter.
Razon was not familiar with Aerotek's policy, which he considered not "relevant" because Bay Bread "ran [its] shifts in such a way that everyone got a break compliant with state law." According to Razon, two considerations informed when Aerotek temporary employees took their meal breaks: the need to "ensur[e] that everyone got an uninterrupted meal break by the time five hours of their shift elapsed" and "workflow," for example, "when things needed to come in and out of the oven. We can't go take a break and let the cookies burn."
During the time period at issue, Aerotek employed an on-site account manager, David Scott, who worked in an administrative building on Bay Bread's site, across the parking lot from the production facility where the temporary employees worked. Scott visited the production facility twice a
Aerotek hired Serrano to work as a temporary hourly employee at Bay Bread from September 10 to October 4, 2012, and from January 16 to April
Serrano worked in Bay Bread's production facility. Scott estimated that "as many as 200 Aerotek temporary employees" and "as many as 100 Bay Bread employees" worked at the facility during the periods she was employed there. Her time records show that on several days on which she worked more than six hours, she took her meal breaks more than five hours after beginning work or, in a couple instances, did not take a meal break at all.
In response to an interrogatory asking Serrano to specify the facts supporting her claim that Aerotek "in any way prevented [her] from taking lawful meal periods," she stated that she was "presently unaware of any actions Aerotek affirmatively took to 'prevent' [her] from taking meal breaks within the first five hour[s] of work" but "believe[d] that Aerotek failed to ensure that ... Bay Bread implemented appropriate meal break policies." In response to another interrogatory, she explained that her "coworkers informed her that she should take her meal breaks at the same time as others in her group."
Serrano filed this lawsuit as a putative class action in January 2014, and the operative complaint alleges causes of action against both Aerotek and Bay Bread for failure to provide meal periods under Labor Code sections 226.7 and 512, failure to
II.
DISCUSSION
A. General Legal Standards.
1. Standard of review.
The standard for reviewing a grant of summary judgment is well-established. Summary judgment is appropriate if "there is no triable issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." ( Code Civ. Proc., § 437c, subd. (c).) To meet its initial burden in moving for summary judgment, a defendant must present evidence that either "conclusively negate[s] an element of the plaintiff's cause of action" or "show [s] that the plaintiff does not possess, and cannot reasonably obtain," evidence necessary to establish at least one element of the cause of action. ( Aguilar v. Atlantic Richfield Co. (2001)
2. Meal period requirements.
As a nonexempt employee, Serrano was entitled to meal periods during the workday. "An employer shall not require an employee to work during a meal ... period mandated pursuant to an ... applicable ... order of the Industrial Welfare Commission." ( § 226.7, subd. (b).)
B. Undisputed Evidence Establishes that Aerotek Satisfied Its Obligation to Provide Meal Periods Under Brinker.
Serrano contends that the trial court erred in its rulings on issues related to whether Aerotek satisfied its own duty to provide meal periods. We are not persuaded.
The trial court determined that Aerotek had fulfilled its initial burden in moving for summary judgment by showing that it provided Serrano with compliant meal periods, based on evidence that it "adopted a lawful meal period policy" she "repeatedly acknowledged" receiving and her admission that "she [was] unaware of any actions taken by Aerotek to prevent her from taking meal periods." The court also found that Serrano's allegation that Aerotek "failed to 'ensure' that its client, Bay Bread, implemented appropriate meal break policies" was undermined by the evidence that Aerotek required Bay Bread to comply with all applicable laws and "instructed [Serrano] to immediately report if she was being prevented from taking authorized meal periods" but received no such reports.
Consistent with her position below, Serrano argues that Aerotek's own meal period policy is "irrelevant" because Bay Bread was not aware of it and did not enforce it. She offers no authority to support her position that Aerotek had a duty to take affirmative steps to ensure that Bay Bread implemented the policy. In fact, this position is at odds with Brinker , which held that an employer is not required to "police" the taking of meal breaks and that mere knowledge they are not being taken does not establish liability. ( Brinker, supra ,
In a related claim, Serrano also argues that Aerotek's failure to review time records and investigate whether meal period violations were occurring was a breach of its own duty to provide meal periods, not a nonactionable failure "to police or ensure that meal periods are taken." We fail to understand the distinction Serrano attempts to draw. She provides no authority to suggest that Aerotek could not fulfill its duty to provide meal breaks without investigating whether those breaks were being taken, and we specifically reject her contention that "time records show[ing] late and missed meal periods creat[ed] a presumption of violations." Even if Aerotek had actual or constructive knowledge that she was not taking her meal breaks within five hours of starting work, Brinker makes clear that such knowledge does not
In short, Serrano's attempt to impose a heightened duty on Aerotek finds no support in Brinker or any other relevant authority. The trial court correctly determined that there was no triable issue of material fact as to whether Aerotek fulfilled its own duty to provide meal periods.
C. Serrano Fails to Demonstrate that Aerotek Is Vicariously Liable for Any Meal Period Violations Committed by Bay Bread.
Serrano also claims that Aerotek is vicariously liable for Bay Bread's alleged meal period violations. We disagree.
Serrano claims that vicarious liability exists based on the nondelegable duty doctrine. The doctrine is an exception to the common law rule that "a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work." ( Srithong v. Total Investment Co. (1994)
Although the nondelegable duty doctrine may enable the injured employee of an independent contractor to sue the party who hired the independent contractor (see, e.g., Felmlee v. Falcon Cable TV (1995)
Even if Aerotek purported to have delegated its duty, however, Serrano offers no authority suggesting the doctrine allows her to hold Aerotek liable for any failure
Though Serrano argues in terms of the nondelegable duty doctrine, her contention that Aerotek is liable for Bay Bread's violations is essentially
Serrano's reliance on the concept of joint employers is revealed by the main decision she discusses, Noe v. Superior Court (2015)
In reaching its holding, Noe rejected the plaintiff's argument that the two companies that had failed to make the classification decision could be held liable even if they had no knowledge of the misclassification. ( Noe, supra , 237 Cal.App.4th at pp. 331-332,
The trial court here rejected Serrano's reliance on Noe , determining both that the statements about section 226.7 in footnote 10 were dicta and that, "to the extent the Court of Appeal's dicta suggests that a joint employer is liable for meal break violations committed solely by a co-joint employer,
Second, even if footnote 10's discussion of section 226.7 had precedential value, it is inconsistent with Brinker . Brinker does not impose liability on an employer that makes compliant meal periods available even if the employer is aware that its employees are not taking the breaks. It is true that the duty to provide meal periods arises by virtue of an entity's status as an employer of a person for at least five hours. ( Brinker, supra ,
Serrano also argues that even if Noe does not establish that "multiple employers can be liable for meal period violations [solely] by virtue of their employer status," at the very least the decision's " 'actual engagement' test" applies here and establishes Aerotek's liability because Aerotek "knew or should have known about the pattern of meal period violations ... and did nothing to investigate, correct or address the problem with Bay Bread." (Italics omitted.) Noe 's holding that a joint employer could be held liable for misclassification decisions it knew about and failed to address was based on section 226.8's language, however, not any principle generally applicable to all Labor Code provisions. As the court stated, "whether an employer is liable
D. Serrano's Derivative Claims Were Properly Dismissed .
In its ruling, the trial court implicitly agreed with Aerotek that because "the undisputed evidence establishe[d] it provided [Serrano] with compliant meal periods," her "meal period claim and derivative claims for waiting time penalties, unfair business practices, and PAGA penalties fail[ed] as a matter of law." On appeal,
III.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
We concur:
Margulies, J.
Banke, J.
Notes
At oral argument, Serrano's counsel inaccurately represented that Aerotek temporary employees were trained on Aerotek's meal break policy only before being assigned to work at Bay Bread.
Serrano claims that "her time records from Aerotek confirmed that her meal periods were late or noncompliant 36 days out of 42 days." Our review of the records cited-which cover only the second period during which she worked at Bay Bread-reveals slightly fewer days on which a violation could have occurred, but the exact number does not affect our resolution of the issues on appeal.
The lawsuit originally included another named plaintiff who brought claims for rest period violations against Aerotek and another one of its clients, but those claims were eventually settled. All further statutory references are to the Labor Code unless otherwise noted.
The trial court also granted Aerotek's motion for judgment on the pleadings, which Bay Bread joined, to dismiss Serrano's claim for waiting time penalties based on the alleged meal period violations. Although Serrano also appealed from that order, she does not raise claims related to it in her brief.