Charles Ridgeway v. Wal-Mart Stores, Inc. ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES RIDGEWAY; JAIME Nos. 17-15983
FAMOSO; JOSHUA HAROLD; 17-16142
RICHARD BYERS; DAN THATCHER;
WILLIE FRANKLIN; TIME OPITZ; D.C. No.
FARRIS DAY; KARL MERHOFF, 3:08-cv-05221-SI
Plaintiffs-Appellees/
Cross-Appellants,
OPINION
v.
WALMART INC., DBA Wal-Mart
Transportation LLC,
Defendant-Appellant/
Cross-Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted August 6, 2019
San Francisco, California
Filed January 6, 2020
2 RIDGEWAY V. WALMART
Before: Diarmuid F. O’Scannlain, Eugene E. Siler, *
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Siler
Partial Concurrence and Partial Dissent by
Judge O’Scannlain
SUMMARY **
Class Action / California Employment Law
The panel affirmed the district court’s judgment
awarding tens of millions of dollars in damages in a class
action brought by Wal-Mart California truck drivers alleging
employment-related claims.
The case was initially filed in state court by four truck
drivers. Wal-Mart removed the suit to federal court, and the
parties agreed to a stay until the California Supreme Court
issued Brinker Restaurant Corp. v. Superior Court, 273 P.3d
513 (Cal. 2012) (holding that employers must make meal
and rest breaks available, but do not have to ensure that
employees take such breaks). After the stay was lifted,
plaintiffs filed their fourth amended complaint and dropped
some initial plaintiffs while adding new class plaintiffs. The
district court certified the new class, granted partial
summary judgment to plaintiffs on their minimum wage
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
RIDGEWAY V. WALMART 3
liability claims, and eventually conducted a jury trial and
entered judgment.
The panel held that Wal-Mart raised no reversible error.
The panel rejected Wal-Mart’s claim that the district
court erred by failing to dismiss for lack of jurisdiction. The
panel held that the district court correctly concluded that the
case presented an Article III case or controversy because two
lead plaintiffs remained in the action after the stay was lifted.
The panel rejected Wal-Mart’s claims that plaintiffs
should not have been awarded damages for layovers, rest
breaks, and inspections. Specifically, the panel held that the
district court correctly concluded that, under California law,
time drivers spent on layovers was compensable if Wal-Mart
exercised control over the drivers during those breaks. The
panel further held that a comprehensive review of the Wal-
Mart pay manual demonstrated that it unambiguously
required drivers to obtain preapproval to take a layover at
home, and therefore, the district court did not err in granting
partial summary judgment on this issue to plaintiffs. The
panel also held that the district court correctly determined
that Wal-Mart’s written policies, if applied as written,
resulted in Wal-Mart exercising control over employees
during mandated layovers as a matter of California law. The
panel held that the district court properly instructed the jury
on layovers. The panel also held that there was sufficient
evidence for the jury to find that Wal-Mart had exercised
control over its drivers. The panel rejected Wal-Mart’s
contention that the Federal Aviation Administration
Authorization Act preempted California law governing
layovers. The panel also affirmed the district court’s
judgment awarding damages to plaintiffs for rest breaks and
inspections.
4 RIDGEWAY V. WALMART
The panel held that the district court did not err in
certifying a class and allowing representative evidence as
proof of classwide damages – including plaintiffs’ expert Dr.
Phillips’ testimony and sample.
On cross-appeal, plaintiffs argued that the district court
erred in denying liquidated damages. The panel held that the
district court did not err in finding that Wal-Mart acted in
good faith and with a reasonable belief in the legality of its
action, and therefore affirmed the district court’s denial of
liquidated damages.
Judge O’Scannlain concurred in the majority’s opinion,
except for Part II.B.1.b. Judge O’Scannlain did not agree
with the majority’s conclusion that the district court
correctly granted partial summary judgment to the plaintiffs
when it found that Wal-Mart’s written pay policies
necessarily establish that the company “controlled” drivers
during layovers. In his view, the jury should have been
allowed to decide the meaning of these ambiguous policies
and the extent to which the policies actually “control” what
drivers may do and where they may go.
COUNSEL
Theodore J. Boutrous, Jr. (argued) and Lauren M. Blas,
Gibson, Dunn & Crutcher LLP, Los Angeles, California;
Rachel S. Brass and Joseph A. Gorman, Gibson, Dunn &
Crutcher LLP, San Francisco, California; James H. Hanson,
Scopelitis, Garvin, Light, Hanson & Feary, P.C.,
Indianapolis, Indiana; for Defendant-Appellant/Cross-
Appellee.
RIDGEWAY V. WALMART 5
Michael Rubin (argued) and Matthew Murray, Altshuler
Berzon LLP, San Francisco, California; Lawrence M.
Artenian and Laura E. Brown, Wagner Jones Kopfman &
Artenian LLP, Fresno, California; Jacob M. Weisberg, Law
Office of Jacob M. Weisberg, Fresno, California; Stanley
Saltzman, Marlin & Saltzman LLP, Agoura Hills,
California; for Plaintiffs-Appellees/Cross-Appellants.
OPINION
SILER, Circuit Judge:
Long-haul truckers perform a vital service in the nation’s
economy. No wonder then, that Wal-Mart, among the
world’s largest retail companies, employs hundreds of truck
drivers. Still, over a decade ago, drivers in California felt
that Wal-Mart did not pay them properly in accordance with
California law. So they sued in a class action. After a
sixteen-day trial, the jury agreed with Wal-Mart on most
issues. On some claims, however, the jury sided with the
class of truckers and awarded tens of millions of dollars in
damages.
Now, Wal-Mart asks this panel to erase that judgment.
Wal-Mart contends that the district court erred at every step
along the way—in concluding that it had jurisdiction, in
certifying a class, in interpreting California minimum wage
law, in allowing expert testimony, and in providing jury
instructions.
But it is improper for this court to play armchair district
judge. In the end, while Wal-Mart makes some compelling
points, Wal-Mart raises no reversible error. Additionally,
the district court properly concluded that liquidated damages
are not owed under California law because Wal-Mart
6 RIDGEWAY V. WALMART
demonstrated that it acted in good faith and with a reasonable
belief in the legality of its conduct. Accordingly, we
AFFIRM.
I. Background
A. The Original Lawsuit, the Stay, and the Named
Plaintiffs
More than a decade ago, four truck drivers sued Wal-
Mart in Alameda County Superior Court claiming Wal-Mart
violated state meal and rest break laws. Those drivers
worked out of several distribution centers in California that
served as hubs through which Wal-Mart delivered items
across the western United States. As part of their job,
truckers would travel a wide range of routes, to different
locations, hauling different freight. And, by industry
standards, the truckers were paid well—an average of $300
per day and between $80,000 and more than $100,000
annually.
Still, drivers claimed that they were not receiving
adequate minimum wage pay. Wal-Mart paid truckers
through what it called an activity-based pay system. That
system included pay for (1) mileage, (2) tasks that
constituted “activity,” such as arriving and departing a
facility, as well as hooking a new trailer to the truck, and
(3) hourly wages of fourteen dollars per hour for limited
events like time spent waiting at a store or supplier, delays
due to inclement weather, or delays caused by a truck
breakdown.
Wal-Mart removed the suit to federal court.
Subsequently, the parties agreed to stay the suit while the
California Supreme Court considered an issue that would
affect the truckers’ claims. Three years later, in Brinker
RIDGEWAY V. WALMART 7
Restaurant Corp. v. Superior Court, 273 P.3d 513 (Cal.
2012), the California Supreme Court ruled that an employer
must make meal and rest breaks available, but employers did
not have to ensure that employees took such breaks.
Consequently, the stay was lifted. Just one problem: it
was unclear if any of the named plaintiffs remained in the
lawsuit. Of the four original plaintiffs, two had died during
the stay, one had lost interest in pursuing the case, and class
counsel had concerns about the fourth plaintiff’s ability to
adequately represent the class.
Thus, plaintiffs’ counsel asked the court to order Wal-
Mart to turn over information about potential class members
so that counsel could determine the identity of new plaintiffs
and class representatives. Wal-Mart objected, arguing that
without an adequate plaintiff, the district court did not have
jurisdiction. Citing the “unique circumstances” of the case,
and noting that information about putative class members
would serve purposes other than finding new plaintiffs, the
district court granted plaintiffs’ motion.
After obtaining new information from Wal-Mart,
plaintiffs’ counsel found new named plaintiffs and filed an
amended complaint. Under plaintiffs’ theory, Wal-Mart did
not pay drivers for time spent under the company’s control—
such as during layovers, rest breaks, and inspections—in
violation of California law. Plaintiffs filed their fourth
amended complaint in 2013, seeking damages, restitution,
and statutory penalties under California law.
B. Class Certification
Next, plaintiffs moved to certify a class. They argued
that all Wal-Mart drivers in California after October 10,
2004, were subject to the same written pay policies.
8 RIDGEWAY V. WALMART
Additionally, plaintiffs contended that common issues
predominated over any individual issues because there were
only “minor variations” among the class members.
Wal-Mart objected. It argued that huge variations
among truckers’ locations, routes, and duties could lead to
differences in pay, so individual issues infected the class,
making certification inappropriate.
The district court agreed with plaintiffs and certified the
class.
C. Pre-Trial Partial Summary Judgment for Plaintiffs
Then, plaintiffs moved for partial summary judgment.
Plaintiffs argued that Wal-Mart did not pay drivers for all
job duties, required drivers to take rest breaks without pay,
and “controlled” drivers during ten-hour layover periods,
entitling drivers to minimum wage pay.
The district court granted partial summary judgment as
to plaintiffs’ minimum wage liability claims. The district
court found that under Wal-Mart’s pay policy—if applied as
written—drivers were not paid separately for some activities
and that those activities “may not properly be built in or
subsumed into the activity pay component of Wal-Mart’s
pay policies.” The court also held that, under the policy,
drivers were subject to Wal-Mart’s “control”—as defined by
California law—during layovers. Thus, the district court
found that Wal-Mart must pay minimum wages during those
times. Although the district court found that Wal-Mart’s
policies described practices that would violate California
law, the court presented to the jury the factual question of
whether Wal-Mart had implemented those policies.
RIDGEWAY V. WALMART 9
D. Wal-Mart’s Pre-Trial Motions
After discovery concluded, Wal-Mart made several
pretrial motions. First, it argued that the case could not
proceed on a classwide basis based on variations in the
routes, daily tasks, and duties of each driver. The district
court denied the motion.
Second, Wal-Mart moved for summary judgment on the
minimum wage claims. It argued that the Federal Aviation
Administration Authorization Act (“FAAAA”) preempted
California law. Again, the district court denied the motion.
Third, Wal-Mart moved to exclude Dr. G. Michael
Phillips from providing expert testimony about classwide
damages. Phillips said he could “estimate how much time
[truckers] spent performing various activities[,] and then,
under various assumptions, . . . estimate dollar equivalent
values for such time.” The district court also denied Wal-
Mart’s motion to exclude, ruling that Wal-Mart’s issue with
Phillips’s proposed testimony went toward “weight rather
than . . . admissibility.”
E. Trial and Jury Instructions
The trial occurred in 2016, focusing on plaintiffs’
minimum wage claims for eleven separate activities from
October 2004 to October 2015.
Among the jury instructions, the district court issued a
California minimum wage instruction stating:
“Wages” includes all amounts for labor
performed by an employee, whether the
amount is calculated by time, task, piece,
commission, or some other method. The rate
10 RIDGEWAY V. WALMART
of the minimum wage is set forth in
Instruction No. 13.
The Court has previously found that Wal-
Mart’s 2008 driver pay manual states that no
pay is earned for certain tasks. Such a policy,
if enforced or applied, does not comply with
California’s minimum wage laws. A policy
that does not compensate directly for all time
worked does not comply with California
Labor Codes, even if, averaged out, it would
pay at least minimum wage for all hours
worked. Therefore, if Wal-Mart applied the
policy as it is stated in the driver pay manual,
such that no pay was earned for certain tasks,
then it did not comply with California’s
minimum wage law. Wal-Mart may,
however, pay drivers for certain tasks
through activity codes that include those
tasks.
What is stated in any pay plan or written
policy does not itself establish whether
someone was paid the minimum wage.
Rather, plaintiffs must still prove that, in
accordance with the pay policy, the class
members in fact were not paid for certain
tasks. Plaintiffs have the burden to prove
their claims.
The court also instructed the jury about layovers:
Plaintiffs claim that Wal-Mart owes them
unpaid wages for time spent during 10-hour
“layovers” at the end of a shift. Plaintiffs
RIDGEWAY V. WALMART 11
claim that Wal-Mart owes them the
difference between the layover fee paid by
Wal-Mart and the wages that plaintiffs claim
should have been paid according to the
minimum wage rate required by state law.
Under California law, employers must pay
employees at least the minimum wage per
hour for all hours worked. “Hours worked” is
defined as “the time during which an
employee is subject to the control of an
employer, and includes all the time the
employee is suffered or permitted to work,
whether or not required to do so.” The level
of the employer’s control over its employees,
rather than the mere fact that the employer
requires the employee’s activity, is
determinative.
The Court has previously found that the
policies stated in Wal-Mart’s driver pay
manuals subjected drivers to Wal-Mart’s
control during layover periods. Under
California law, the drivers must be paid for
all of the time that they were subject to Wal-
Mart’s control. Therefore, if plaintiffs prove
by a preponderance of the evidence that Wal-
Mart applied the policy as it is stated in the
driver pay manuals, then plaintiffs are
entitled to the amount of additional pay that
will bring Wal-Mart’s payment for each 10-
hour layover up to the amount of the
minimum wage that was applicable at that
time.
12 RIDGEWAY V. WALMART
You must limit your calculations to wages for
layovers that occurred during the period
beginning on October 10, 2005 and ending on
October 15, 2015.
The court further gave the following damages
instruction:
If you find for the plaintiffs on the plaintiffs’
minimum wage claim, you must determine
the plaintiffs’ damages. The plaintiffs have
the burden of proving damages by a
preponderance of the evidence. Damages
means the amount of money that will
reasonably and fairly compensate the
plaintiffs for any injury you find was caused
by Wal-Mart, in accordance with these
instructions.
It is for you to determine what damages, if
any, have been proved.
Your award must be based upon evidence and
not upon speculation, guesswork or
conjecture.
In instances where Wal-Mart did not
maintain records of the number of times
certain work duties were performed or the
amount of time it took class members to
perform those duties, the plaintiffs can satisfy
their burden of proof if they produce
sufficient evidence to show the amount and
extent of that work as a matter of just and
reasonable inference. Wal-Mart may dispute
RIDGEWAY V. WALMART 13
the reasonableness of the inference to be
drawn from the plaintiffs’ evidence.
The jury, seemingly confused about the instruction on
layovers, asked a question, seeking a “definition regarding
Wal-Mart’s control during layover period.” In response, the
court instructed the jury as follows:
There is no clear definition of control in the
California Labor Code. The cases from the
California courts have stated that the level of
the employer’s control over its employees,
rather than the mere fact that the employer
requires the employees activity, is
determinative. To determine if a driver was
subject to Wal-Mart’s control during the
layover, you must determine whether the
driver was able to use that time effectively for
his or her own purposes.
I will give you two examples from other
cases. These involve different factual
situations, and they may be helpful to you as
guidance only. They may be helpful to you as
analogies. The facts in those cases were
different from these facts. But here are the
two examples.
When an employer directs, commands or
restrains an employee from leaving the
workplace during his or her lunch hour and
thus prevents the employee from using the
time effectively for his or her own purposes,
the employee remains subject to the
employer’s control.
14 RIDGEWAY V. WALMART
And here is the second example. When
agricultural worker employees were required
by their employer to meet at designated
places to take the employer’s buses to work
and were prohibited from taking their own
transportation, the employees were subject to
the control of the employer, although they
could read on the bus or perform other
personal activities.
Wal-Mart called the supplemental instruction one it
“c[ould] live with” because it was “a fair compromise.”
Following deliberations, the jury returned a verdict for Wal-
Mart on seven of the eleven tasks in dispute, and for
plaintiffs on four issues. The jury awarded $44,699,766 for
layovers, $3,961,975 for rest breaks, $2,971,220 for pre-trip
inspections, and $2,971,220 for post-trip inspections.
The district court denied plaintiffs’ post-trial motion for
liquidated damages and civil penalties. And the court denied
Wal-Mart’s motions for a new trial and for judgment as a
matter of law. This appeal followed.
II. Discussion
Wal-Mart raises multiple issues, claiming each
constitutes reversible error. First, it claims the district court
erred by failing to dismiss for lack of jurisdiction. Second,
it contends that it was error to award damages to plaintiffs
based on layovers, rest breaks, and inspections. Third, it
argues that the district court erred in certifying a class. We
affirm the district court on all assertions of error raised by
Wal-Mart.
Plaintiffs filed a cross-appeal. They contend that the
district court erred by denying liquidated damages to
RIDGEWAY V. WALMART 15
plaintiffs as required under California law. We disagree. As
a result, we affirm on the issue of liquidated damages.
A. Jurisdiction After Stay Was Lifted
1. Active Case or Controversy
We review the district court’s ruling on jurisdiction de
novo. Smith v. T-Mobile USA Inc., 570 F.3d 1119, 1122 (9th
Cir. 2009).
The district court correctly concluded that this case
presented an Article III case or controversy because two lead
plaintiffs remained in the action after the stay was lifted.
Wal-Mart argues that any “case or controversy”
disappeared because, after the stay was lifted, no named
plaintiff remained to represent the class. Thus, Wal-Mart
contends the case was moot when the stay was lifted.
Wal-Mart is partially correct. When the stay was lifted,
two of the named plaintiffs had died, one of the named
plaintiffs indicated that he might no longer be interested in
litigating the matter, and plaintiffs’ counsel was concerned
about whether the fourth named plaintiff could represent the
class. And, at that time, the class had not yet been certified,
so the putative class members were not parties to the case.
See Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1349
(2013). But not all named plaintiffs were gone. Two named
plaintiffs remained parties to the action when the stay was
lifted.
The cases Wal-Mart cites in support of its position are
unavailing. For instance, Reed v. Bowen is easily
distinguished from this case because, in Reed, the district
court had already determined that the named plaintiffs were
16 RIDGEWAY V. WALMART
not adequate representatives because they had no stake in the
outcome of the litigation. 849 F.2d 1307, 1311 (10th Cir.
1988). Since no adequate named plaintiffs remained in
Reed, the district court held that the case was moot and
refused to certify the class. Id. That is not the case here.
The district court never found the two remaining named
plaintiffs inadequate, and both remaining named plaintiffs
continued to have a stake in the outcome of the litigation
after the stay was lifted.
Moreover, Wal-Mart would be correct had the remaining
plaintiffs voluntarily dismissed their claims before the
putative class was certified. See Employers-Teamsters
Local Nos. 175 & 505 Pension Tr. Fund v. Anchor Cap.
Advisors, 498 F.3d 920, 924 (9th Cir. 2007). But lethargy
does not constitute voluntary dismissal when the lethargic
plaintiff continues to have an active dispute with the
defendant. Here, plaintiffs continued to have live
controversies with Wal-Mart despite one plaintiff’s lack of
enthusiasm and counsel’s concern about the other. The
district court correctly refused to dismiss this case for lack
of jurisdiction.
2. Abuse of Discretion
We do not address whether the district court abused its
discretion by permitting pre-certification discovery because
Wal-Mart does not argue the issue. In its opening brief, Wal-
Mart argues only that the district court lacked jurisdiction to
issue the pre-certification discovery order. When an
appellant fails to clearly and distinctly raise an argument in
its opening brief, this court considers the argument
abandoned. McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th
Cir. 2009). As a result, any argument that the district court
abused its discretion in allowing pre-certification discovery
was waived.
RIDGEWAY V. WALMART 17
B. Liability for Damages Arising from Layovers, Rest
Breaks, and Inspections
Wal-Mart claims that plaintiffs should not have been
awarded damages for layovers, rest breaks, and inspections.
It advances numerous theories in support of its contention
and urges reversal. We address each in turn.
1. Award of Damages for Layovers
Wal-Mart advances four arguments in support of its
contention that damages should not have been awarded for
unpaid layovers. First, it argues that layovers are not
compensable as a matter of law because Wal-Mart cannot
legally control an employee while he is on a legally-
mandated break. Second, it contends that, even if layovers
could be compensable, layovers are not compensable here
because Wal-Mart did not exercise control over the truckers
on layovers. Third, it claims that the district court erred
when instructing the jury. Fourth, it argues that the FAAAA
preempts California law.
a. Compensability of Layovers Under California Law
The district court correctly concluded that, under
California law, time drivers spent on layovers is
compensable if Wal-Mart exercised control over the drivers
during those breaks.
Under California and federal law, truckers must take
breaks. 13 Cal. Code Regs. § 1212.5(a); 49 C.F.R.
§ 395.3(a)(1). During mandatory breaks, drivers may take
“sleeper berth” time or “off duty” time. 13 Cal. Code Regs.
§ 1212(g)(1)(A); 49 C.F.R. § 395.1(g)(1)(i). But the drivers
are specifically not “on duty” or “driving”—two other
distinct categories under state and federal law—during
18 RIDGEWAY V. WALMART
breaks. 13 Cal. Code Regs. §§ 1201(u)(4), 1213(c);
49 C.F.R. §§ 395.2, 395.8(b). What’s more, time spent on
layovers cannot be interrupted; otherwise, the ten-hour rest
period begins anew. 13 Cal. Code Regs. § 1212(g)(1)(A);
49 C.F.R. § 395.1(g)(1)(i).
So, must workers be compensated for time spent on
legally mandated breaks? Wal-Mart says no. It says that
surely the law cannot require a driver to be compensated for
periods when state and federal law compel drivers not to
work.
Wal-Mart’s argument has logical appeal, but it does not
follow California law. In California, an employer must pay
minimum wages whenever it controls the employee. See
8 Cal. Code Regs. § 11090. And there is no reason to think
that, as a matter of law, an employer cannot exercise control
of a trucker even when the driver is taking a legally-
mandated break.
Here, the district court identified the appropriate legal
standard. The district court determined that “California law
. . . requires an additional inquiry: whether the employer
exercised control.”
In sum, whether an employee deserves pay in California
turns on whether the employer exercised control over the
employee, not whether the employee is actively working.
Thus, Wal-Mart’s argument on this point fails.
b. Control, Partial Summary Judgment, and Factual
Sufficiency
Next, Wal-Mart contends that even if layover time is
compensable under California law, it did not exercise control
over the truckers here. This contention can be divided into
RIDGEWAY V. WALMART 19
two primary issues. First, the parties dispute whether the
district court erred in granting partial summary judgment for
plaintiffs. Second, Wal-Mart argues that there is insufficient
evidence to support a finding that it applied these policies in
a manner that controlled employees during layovers.
i. Partial Summary Judgment Based on Wal-Mart’s
Pay Policy
Wal-Mart argues that the district court erred by granting
partial summary judgment to plaintiffs when the court found
that Wal-Mart’s policies, as written, would constitute control
over employees during layovers. We review the district
court’s grant of summary judgment de novo. Vasquez v.
County of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2003).
(a) Meaning of Wal-Mart’s Pay Manual
Initially, we consider the meaning of the relevant
provisions in Wal-Mart’s pay manual. Wal-Mart argues
that—under a correct reading—the pay manual only
“create[s] a requirement to seek prior approval to obtain the
$42 for a layover taken at home.” Wal-Mart contends that
the pay manual does not require employees to seek approval
to go home during layovers but instead requires drivers to
seek preapproval to obtain the $42 inconvenience payment.
In support of its position, Wal-Mart cites a single
provision of the 2008 Driver Reference and Pay Manual.
The layover provision says:
LO – Layover Time:
A layover is earned when taking a mandatory
DOT break and is not paid in conjunction
with any other type of pay. The intent is to
20 RIDGEWAY V. WALMART
pay Drivers for layovers taken in the tractor
cab.
• Any exceptions must be approved prior to
the Layover by the GTM, including:
o Drivers taking a layover at his/her
residence
o Drivers taking a layover not required
by hours of service rules
Read in isolation, this provision could support Wal-
Mart’s argument. Its meaning is sufficiently ambiguous that,
if this provision stood alone, interpretation might have been
a jury question.
But a more comprehensive review of the Wal-Mart pay
manual demonstrates that it unambiguously required drivers
to obtain preapproval to take a layover at home. For
instance, Wal-Mart’s pay manual provides that a break may
be taken at home “[o]nly after receiving approval from a
member of Transportation management.” The manual also
states that taking an “[u]nauthorized break at home” is
“unacceptable and may lead to immediate termination.”
These provisions make no mention of the $42 inconvenience
fee and instead require drivers to seek preapproval before
choosing to take a break at home. Thus, when read
comprehensively and in context, Wal-Mart’s written policy
clearly prohibits drivers from taking a layover at home
unless they receive prior approval. Wal-Mart’s argument to
the contrary lacks textual support.
RIDGEWAY V. WALMART 21
(b) District Court’s Finding on Control as a Matter of
Law
Next, we consider whether the district court erred when
it found that, as a matter of law, the written policies in Wal-
Mart’s pay manual would amount to an exercise of control
over drivers during layover periods if implemented as
written. We conclude that the district court correctly
determined that Wal-Mart’s written policies constituted
control as a matter of California law.
Employers in California must pay at least minimum
wages to employees for all hours worked, 8 Cal. Code Regs.
§ 11090, including all the time in which an employer
exercises control over the employee, Morillion v. Royal
Packing Co., 995 P.2d 139, 143–45 (Cal. 2000). An
employee “does not have to be working during that time to
be compensated.” Id. at 143. California courts construe
worker-protection laws liberally “with an eye to promoting
such protection.” Brinker Restaurant Corp. v. Superior
Court, 273 P.3d 513, 527 (Cal. 2012).
What constitutes control in California is not so clear, but
caselaw provides underlying principles. Although an
employer may place some constraints on an employee’s
movement during breaks, control exists if the employer goes
too far. See Augustus v. ABM Sec. Servs., Inc., 385 P.3d 823,
832 (Cal. 2016). Thus, an employer may restrict an
employee from traveling more than five minutes away from
the worksite during a ten-minute break because if she does,
she will be unable to return to the worksite before the break
ends. Id. But control may exist if a worker, although off
duty, remains on call. Id. 832–33. And if employees face
disciplinary action for not responding to an employer during
rest breaks, the employer may be exercising control.
22 RIDGEWAY V. WALMART
Madera Police Officers Ass’n v. City of Madera, 682 P.2d
1087, 1088–92 (Cal. 1984).
Moreover, control may exist even when employees are
permitted to perform personal activities if the employer
imposes meaningful restrictions on the employee. For
instance, control was found even when employees were
permitted to read for leisure or sleep while being forced to
travel on a company bus to a worksite. Morillion, 995 P.3d
at 146–47.
In short, the question of control boils down to whether
the employee may use break or non-work time however he
or she would like. Augustus, 385 P.3d at 832; Mendiola v.
CPS Sec. Sols., Inc., 340 P.3d 355, 360 (Cal. 2015) (“When
an employer directs, commands or restrains an employee
from leaving the work place and thus prevents the employee
from using the time effectively for his or her own purposes,
that employee remains subject to the employer’s control.”).
Even so, this case-specific approach focuses on the level of
the employer’s control on employees, not necessarily
whether the employer requires certain activities. Mendiola,
340 P.3d at 360; Morillion, 995 P.2d at 146.
Here, the mere fact that Wal-Mart requires its employees
to take layovers—as it must, by law—does not indicate that
Wal-Mart exercised control over drivers during breaks.
Rather, the relevant consideration is the level of control that
Wal-Mart exerted over its employees during layovers.
Thus, we look back to the text of the policy. As noted,
the written policy required drivers to gain preapproval from
management before taking a layover at home. The manual
also required drivers to record the break at home and the
approving manager on the trip sheet. Finally, drivers could
be subject to disciplinary action, up to and including
RIDGEWAY V. WALMART 23
“immediate termination,” for taking an unauthorized layover
at home.
Analogous case law supports a finding of control here.
Wal-Mart’s written policy is similar to the policies that were
found to establish employer control in Morillion, 995 P.2d
139, and Bono Enterprises, Inc. v. Bradshaw, 38 Cal. Rptr.
2d 549 (Cal. Ct. App. 1995), disapproved on other grounds
by Tidewater Marine Western, Inc. v. Bradshaw, 927 P.2d
296 (Cal. 1996).
In Morillion, employees were required to meet at a
designated departure point at a set time to ride the
employer’s buses to work. 995 P.2d at 147. Employees
were prohibited from using their own cars and were
subjected to verbal warnings and lost wages if they used
personal vehicles to travel to work. Id. The California
Supreme Court found that control existed because—even if
the employers could engage in limited activities like sleeping
or reading while on the bus—employees “were foreclosed
from numerous activities in which they might otherwise
engage if they were permitted to travel to the fields by their
own transportation.” Id. at 146.
While Wal-Mart’s policy did not contain as strong
indicia of control as in Morillion, the same logic applies.
Wal-Mart’s policy restricted drivers’ freedom of movement
and prevented drivers from making a unilateral decision to
spend layovers at home without preapproval. Wal-Mart
employees may have been free to leave the truck and engage
in personal activities during layovers, but they could not go
home. This foreclosed drivers from numerous activities in
which they might otherwise engage while on layovers. As a
result, employee liberty and freedom of movement was
controlled by Wal-Mart.
24 RIDGEWAY V. WALMART
Similarly, in Bono, employees were prohibited from
leaving the employer’s premises during meal periods, even
though they were relieved of their duties. 38 Cal. Rptr. 2d
at 551–54. The California Court of Appeal found that
employees were under the employer’s control during these
periods because the policy “prevent[ed] the employee from
using the time effectively for his or her own purposes.” Id.
at 553–54.
Here, Wal-Mart’s policy established similar restrictions.
Wal-Mart’s layover policy imposed constraints on employee
movement such that employees could not travel freely and
avail themselves of the full privileges of a break. For
instance, if Wal-Mart’s policies were applied as written,
drivers may have been free to take a shower or go to a movie
while on layovers, but drivers were not free, without
receiving permission, to go home to see a pet, to eat a meal
at their kitchen table, or to watch television in their own
living room.
The dissent argues that the manual’s limitation on a
driver’s ability to take a layover at home may not constitute
control as a matter of California law because Wal-Mart’s pay
manual provides an exception that permits employees to take
layovers at home with permission. See Dis. Op. at 52. In
support of that position, the dissent cites Bono for the
proposition that control may not exist when an employer
requires employees to “ma[ke] prior arrangements” to
engage in certain activities. See id. at 52. It is true that Wal-
Mart’s policy permits drivers to take layovers at home with
permission. Even so, we are aware of no per se rule under
California law that control will not be found when an
employer creates an exception for employees who receive
prior approval to engage in otherwise restricted activities.
RIDGEWAY V. WALMART 25
Again, the relevant inquiry under California law on
control is whether an employee was permitted to use their
time as he or she would like. And here, Wal-Mart’s written
policy prohibited drivers from taking layovers at home
without permission. This is not a case where Wal-Mart
simply required workers to take lunch or a short break at a
certain location. Instead, Wal-Mart required drivers to
receive permission to enjoy one of the most fundamental
privileges that all employees enjoy—the autonomy to go
home when they are not working. In sum, the nature of the
restriction matters, and Wal-Mart’s restriction requiring
drivers to receive permission before taking a ten-hour
layover at home prevented drivers from independently
choosing to use their time spent on layovers at their own
leisure.
Even so, Wal-Mart says its policy did not amount to
control under California law. It says control occurs when
employers erect prohibitions on employee conduct, not
when employers impose additional burdens on employees.
And, according to Wal-Mart, the policy simply required
employees to ask permission to take a layover at home, it did
not outright ban such conduct.
But the prohibition-burden distinction advanced by Wal-
Mart finds no support in California law. The key question is
whether the employee may use the time spent on layovers
for his or her own purposes, not whether the provisions are
classified as prohibitions or burdens. If Wal-Mart’s policies
directed, commanded, or restrained employee conduct, such
that drivers were not free to spend layover time as they saw
fit, then control existed. Nor, for that matter, does Wal-
Mart’s prohibition-burden distinction find support in the
facts of this case. In requiring its drivers to seek permission,
rather than merely provide notification, before taking a
26 RIDGEWAY V. WALMART
layover at home, Wal-Mart reserved the right to decline such
requests. By retaining that power, Wal-Mart’s policy
established more than a mere “burden.”
Additionally, Wal-Mart argues that drivers were free to
leave their trucks as much as they wanted while on layovers,
and many of them did. So, Wal-Mart argues that the district
court erred because the question of whether Wal-Mart
controlled the physical location of drivers on layovers was a
disputed question of fact. But the district court did not
determine that Wal-Mart in fact controlled the physical
location of drivers on layovers. All the district court said
was that the policy, if applied as written, amounted to
control. The district court submitted the question of whether
Wal-Mart in fact applied the written policy to the jury. As
such, Wal-Mart was permitted to make the argument that it
did not in fact control the physical location of its drivers at
trial—notwithstanding the district court’s partial summary
judgment ruling on the written policy.
In conclusion, the district court correctly concluded that
Wal-Mart’s policies, if applied as written, resulted in Wal-
Mart’s exercising control over employees during mandated
layovers. Whether the written policies constituted control
was a question of law that the district court had the authority
to resolve at the summary judgment stage. Wal-Mart’s
written policy gave the company control over whether
drivers could go home during a layover period.
Additionally, drivers that took an unauthorized layover at
home were subject to disciplinary action, including potential
termination. As such, Wal-Mart’s policy dictated what
drivers could do on layovers and restricted employees from
complete freedom of movement during breaks. As a result,
the district court correctly concluded that Wal-Mart’s
RIDGEWAY V. WALMART 27
written policy—if implemented as written—constituted
control under California law.
ii. Jury Instructions
We next consider whether the district court committed
reversible error based on the jury instructions pertaining to
layovers. The district court properly instructed the jury
because the initial instruction on layovers and the
supplemental instruction in response to a jury question—
when viewed as a whole—fairly and accurately covered the
issues, correctly stated the law, and were not misleading or
prejudicial.
In reviewing jury instructions, we do not employ a line-
by-line examination. Instead, we use a practical approach,
focusing on whether “in the light of the issues and viewed as
a whole,” the instructions “were complete, clear, correct, and
adequate.” Mueller v. Auker, 700 F.3d 1180, 1193 (9th Cir.
2012). So long as the instructions “fairly and adequately
cover the issues presented, correctly state the law, and are
not misleading,” no error will have occurred. Brewer v. City
of Napa, 210 F.3d 1093, 1097 (9th Cir. 2000).
Wal-Mart argues that the district court’s initial
instruction on layovers was prejudicial and requires reversal.
The district court instructed the jury, in relevant part, that
“[t]he [c]ourt has previously found that the policies stated in
Wal-Mart’s driver pay manuals subjected drivers to Wal-
Mart’s control during layover periods.” Contrary to Wal-
Mart’s assertion, this instruction was not erroneous. As
discussed above, the district court correctly found that Wal-
Mart’s pay manuals, if applied as written, subjected drivers
to Wal-Mart’s control during layover periods. Both on
summary judgment and in its instruction to the jury, the
district court limited its finding of control to the language of
28 RIDGEWAY V. WALMART
the pay manuals alone. The district court never told the jury
that Wal-Mart’s conduct in fact amounted to control.
The district court properly left to the jury the question of
whether Wal-Mart had in fact applied its written layover
policy. Later in the initial layover instruction, the court
informed the jury that “if plaintiffs prove by a preponderance
of the evidence that Wal-Mart applied the policy as it is
stated in the driver pay manuals, then plaintiffs are entitled
to the amount of additional pay that will bring Wal-Mart’s
payment for each 10-hour layover up to the amount of
minimum wage that was applicable at that time.” (emphasis
added). This part of the instruction provided an accurate
statement of the applicable legal standard and instructed the
jury that it was for them to decide whether Wal-Mart had
applied its written policies as stated in the driver pay manual.
As a result, the district court’s initial layover instruction—
when viewed as a whole—fairly and adequately covered the
issues, was not misleading, and accurately stated the law and
the district court’s earlier summary judgment ruling.
Still, even if the initial layover instruction was erroneous,
the supplemental instruction that was issued in response to a
jury question provided an accurate statement of the law and
cured any defects in the initial instruction. The jury question
sought a “definition regarding Wal-Mart’s control during
layover periods.” In response, the district court correctly
informed the jury that “[t]here is no clear definition of
control in the California Labor Code,” but that, “cases from
California courts have stated that the level of the employer’s
control over its employees, rather than the mere fact that the
employer requires the employees[’] activity, is
determinative.” The court went on, saying, “[t]o determine
if a driver was subject to Wal-Mart’s control during the
layover, you must determine whether the driver was able to
RIDGEWAY V. WALMART 29
use that time effectively for his or her own purposes.”
(emphasis added). Thus, the supplemental instruction
correctly stated California law on the doctrine of control and
informed the jurors that it was their responsibility to
determine whether Wal-Mart controlled its drivers during
layovers.
Ultimately, the initial jury instruction on layovers, paired
with the supplemental jury instruction on control under
California law, provided a complete, clear, accurate, and
adequate statement of the applicable law on layovers. The
district court accurately informed the jury that it had
previously found that the provisions in Wal-Mart’s pay
manual would subject drivers to Wal-Mart’s control. Still,
the district court’s instructions made clear that it was for the
jury to decide whether Wal-Mart implemented the written
policies. As a result, the district court committed no error
when instructing the jury on layovers.
iii. Factual Sufficiency
Now, we address Wal-Mart’s next grievance regarding
layovers: How, on this record, were drivers subject to Wal-
Mart’s control during layovers? Wal-Mart argues that there
was insufficient evidence for the jury to find that Wal-Mart
had exercised control over its drivers. We disagree.
Fact finding is normally left to the jury. U.S. Const.
amend. VII. This court will not typically disturb a jury’s
factual findings. See Johnson v. Paradise Valley Unified
Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001). When
substantial evidence supports the verdict, it should be
upheld. Id. And all that substantial evidence requires is
“evidence adequate to support the jury’s conclusion, even if
it is also possible to draw a contrary conclusion from the
same evidence.” Id.
30 RIDGEWAY V. WALMART
Wal-Mart urges this court to overturn the jury’s verdict.
To that end, Wal-Mart notes that trial evidence showed that
some drivers slept in hotels or at home during layovers, some
went to the movies, a few went to restaurants, or took long
walks, and others visited family or went sightseeing. Wal-
Mart says that hardly amounts to control.
If that were the only evidence in the record, Wal-Mart
might be right. But the record also contained substantial
countervailing evidence that a reasonable jury could have
credited. Several drivers testified that they understood that
they were required to sleep in the truck on layovers and were
supposed to seek permission to sleep elsewhere.
Additionally, drivers testified that they were under the
impression that they were not allowed to consume alcohol,
could not carry a personal weapon, had to seek authorization
to have a guest in the tractor, and were not allowed to have
a pet in the cab during a layover. That evidence is enough
to support a finding that Wal-Mart controlled drivers on
layovers.
Wal-Mart points to conflicting evidence that was
presented at trial, but that is not dispositive. It is “within the
province of the jury” to hear disputed testimony and resolve
inconsistencies. United States v. Geston, 299 F.3d 1130,
1135 (9th Cir. 2002). As such, the jury was responsible for
weighing conflicting evidence and reaching a factual
conclusion.
Additionally, Wal-Mart’s argument that factors such as
prohibitions on alcohol use and having pets in the cab should
not have been considered is inconsistent with California law.
See Mendiola, 340 P.3d at 360 (finding that employer
restrictions on “nonemployee visitors, pets, and alcohol use”
were relevant to determining control).
RIDGEWAY V. WALMART 31
In sum, the jury’s factual finding, that Wal-Mart
exercised control over its drivers under California law, is
supported by substantial evidence. As a result, we will not
disturb its determination.
c. Preemption
Lastly, we consider Wal-Mart’s contention that the
FAAAA preempts California law. The FAAAA expressly
preempts state laws “related to a price, route, or service of
any motor carrier.” 49 U.S.C. § 14051(c)(1). Wal-Mart
argues that the district court’s ruling would require
companies to pay minimum wages for layovers in
California—something that surely affects prices, routes, and
services.
But we can quickly dispense with that argument. In Dilts
v. Penske Logistics, LLC, this court held that the FAAAA
does not preempt California meal and rest break laws. 769
F.3d 637, 647 (9th Cir. 2014). Wal-Mart argues that Dilts
does not control because here, unlike in Dilts, “an actual
conflict between state and federal law” exists. As plaintiffs
point out, however, California law and federal law do not
conflict here because federal law says nothing about states
requiring employers to pay workers that are under the
employer’s control while on break. Like the meal and rest
break laws in Dilts, California laws governing layovers “do
not set prices, mandate or prohibit certain routes, or tell
motor carriers what services that they may or may not
provide, either directly or indirectly.” 769 F.3d at 647.
Thus, “even if employers must factor [state wage and hour
laws] into their decisions about the prices they set, the routes
that they use, or the services that they provide,” the FAAAA
does not preempt those laws. Id. at 646. As such, no
preemption exists here.
32 RIDGEWAY V. WALMART
2. Award of Damages for Rest Breaks and Inspections
Plaintiffs were also awarded damages for not being paid
minimum wages during rest breaks and inspections. After
considering California law, we conclude that the district
court judgment on damages for rest breaks and inspections
must be affirmed.
Wal-Mart claims that it does not owe damages for failure
to pay minimum wages for rest breaks and inspections—
after all, drivers made more than $80,000 per year, and some
made six-figure salaries. Thus, Wal-Mart claims that no
matter how many hours that drivers worked, they must have
received minimum wages based on total compensation.
Moreover, Wal-Mart contends that its system did pay
drivers for rest breaks and inspections. According to Wal-
Mart, these tasks were built in to the pay plan because rest
breaks and inspections occurred during an hour when the
driver was already compensated above minimum wage and
the tasks were “directly related” to other tasks for which the
drivers received compensation.
Plaintiffs say otherwise. The drivers say that they
received pay for certain specific activities, and rest breaks
and inspections were excluded. They note that, under
California law, all time worked must be accounted for in the
compensation scheme. In other words, an employer is not
permitted to take a worker’s entire salary—even if it is six
figures—and divide it by the number of hours worked to
ensure that minimum wage was paid for all activities. So,
plaintiffs say, if Wal-Mart paid truckers for some activities,
but not specifically for rest breaks and inspections, it
violated California minimum wage law.
RIDGEWAY V. WALMART 33
Wal-Mart’s argument may have some logical appeal, but
it lacks support in California law. In California, “[t]he
averaging method utilized by the federal courts for assessing
a violation of federal minimum wage law does not apply.”
Armenta v. Osmose, Inc., 135 Cal. App. 4th 314, 323
(Cal. Ct. App. 2005). As mentioned in the layover context,
an employer must pay an employee for all “hours worked,”
including “the time during which an employee is subject to
the control of an employer.” 8 Cal. Code Regs. § 11090.
Plaintiffs argue that Wal-Mart’s pay structure
impermissibly averaged a trucker’s pay within a single hour,
when it should have provided separate compensation for rest
periods. See Bluford v. Safeway Stores, Inc., 216 Cal. App.
4th 864, 872 (Cal. Ct. App. 2013). Under California law,
plaintiffs are correct.
A brief review of Wal-Mart’s pay manual is instructive.
Wal-Mart used an activity-based pay system that
compensated drivers for (1) miles driven, (2) “activity pay,”
which included arriving at a location, departing, and hooking
a new trailer to the truck, and (3) hourly pay for limited
events like waiting at a store or supplier, delays due to
inclement weather, or delays caused by a truck breakdown.
Wal-Mart argues that pay for rest breaks and inspections was
subsumed into activity pay because rest breaks and
inspections were performed in conjunction with other
activities that were included in activity pay.
But Wal-Mart may not meet rest period or inspection
payment requirements by “borrowing” from other
compensation sources, such as an hourly rate or mileage
payment. See id. Indeed, arguments that a pay plan includes
in its calculation “the time [employees] spent taking rest
breaks . . . misinterpret[s] California law.” Vaquero v.
Stoneledge Furniture LLC, 9 Cal. App. 5th 98, 114 (Cal. Ct.
34 RIDGEWAY V. WALMART
App. 2017). For instance, in Vaquero, the California Court
of Appeal ruled an employer’s compensation system failed
to properly pay for rest periods when the system “did not
include any component that directly compensated sales
associates for rest periods.” Id.
That is not to say that Wal-Mart could never incorporate
payments for multiple tasks in activity codes. And we need
not decide as much. Here, all the district court found was
that California law prohibited Wal-Mart from subsuming
time spent on rest breaks and inspections into the “activity
pay” component of the pay structure because that would not
separately pay workers for all the time worked.
For example, if, in a given hour, a trucker drove for forty-
five minutes and was paid a mileage rate that would
otherwise meet the state’s minimum wage requirement for a
full hour, Wal-Mart may not have that driver take a fifteen-
minute break and provide no additional compensation for the
break just because that driver had already received a
minimum wage in the first forty-five minutes of the hour.
That would constitute improper borrowing and averaging
under California law. Bluford, 216 Cal. App. 4th at 872;
Armenta, 135 Cal. App. 4th at 323.
No doubt, sometimes several tasks like rest breaks and
inspections could fall under a general provision in the pay
plan. But, to comply with California law, Wal-Mart would
have to pay drivers for certain activity codes that include
those tasks. Here, the pay manual is silent on rest breaks and
inspections.
Next, Wal-Mart takes aim at the jury instructions on pay
for rest breaks and inspections. As in the layover context,
the district court commented on the permissibility of the
policy stated in Wal-Mart’s pay manual, but left to the jury
RIDGEWAY V. WALMART 35
the factual question of whether Wal-Mart in fact applied its
pay policy with respect to rest breaks and inspections. Wal-
Mart says it was prejudiced by the jury instructions.
But Wal-Mart’s argument fails because the challenged
instructions were not misleading. Instruction No. 17’s
statement that Wal-Mart’s policy did “not separately specify
pay for rest breaks” was accurate. Wal-Mart does not
dispute that the pay manual was silent on pay for rest breaks.
Moreover, the instruction directed the jurors to find for
plaintiffs only if they found (1) “that class members took rest
breaks,” and (2) “that Wal-Mart applied the policy as it is
stated in the driver pay manuals, such that minimum wage
was not earned for rest breaks.” (emphasis added).
Additionally, Instruction No. 15 informed the jury that a
written plan or policy “does not itself establish whether
someone was paid minimum wage,” and that “plaintiffs must
still prove” that Wal-Mart failed to pay minimum wages.
That instruction also specified that Wal-Mart could “pay
drivers for certain tasks through activity codes that include
those tasks.” As a result, considered in totality, the jury
instructions on rest breaks were neither erroneous nor
prejudicial because the court correctly informed the jury that
plaintiffs had to prove that Wal-Mart failed to pay minimum
wages for rest breaks.
Wal-Mart’s challenge to the jury instructions on pay for
inspections also fails. Wal-Mart claims that the court’s
instructions were prejudicial because they referred to prior
court orders, which suggested that the court had already
determined that Wal-Mart violated the law. But, while the
court did correctly inform the jury that it had found that the
pay manuals violated California wage laws, the court also
informed jurors that it was their responsibility to determine
whether Wal-Mart had in fact applied the policies as written.
36 RIDGEWAY V. WALMART
As a result, when considered in totality, the jury instructions
on inspections provided an accurate statement of the law.
Lastly, Wal-Mart argues that the court erred by failing to
include language—based on Cal. Lab. Code § 226.2—that
an employer need not pay for tasks that are “directly related”
to other compensable tasks. The relevant statutory language
provides that employees “shall be compensated for rest and
recovery periods and other nonproductive time separate
from any piece-rate compensation,” with “nonproductive
time” defined as “time under the employer’s control,
exclusive of rest and recovery periods, that is not directly
related to the activity being compensated on a piece-rate
basis.” Cal. Lab. Code § 226.2(a)(1). But the district court
did not err by refusing to include this instruction because, as
the district court noted, the Code section with the “directly
related” language did not take effect until January 1, 2016,
after the close of the class period.
C. Class Certification and Damages
Wal-Mart further argues that plaintiffs’ classwide
damages proof ran outside of what the law allows. Indeed,
Wal-Mart argues that plaintiffs’ expert on damages—Dr.
Phillips—should not have been permitted to testify at all, and
in any event, that his testimony failed to show classwide
damages.
Representative evidence is nothing new. Courts allow it
in certain circumstances, but plaintiffs do not have free rein
in using such evidence. See Tyson Foods, Inc. v.
Bouaphakeo, 136 S. Ct. 1036, 1046–49 (2016). Thus, we
must decide whether representative evidence was properly
used in this case.
RIDGEWAY V. WALMART 37
Initially, Wal-Mart attacks Phillips because it says his
methodology was improper and his conclusions were not
representative. Wal-Mart says that truckers differed on how
much time they spent on rest breaks, completing inspections,
and on layovers. Wal-Mart contends that these variations
mean that plaintiffs cannot use representative testimony to
prove the elements of their case, including damages.
The portion of Wal-Mart’s attack that focuses on liability
is unpersuasive. As we have already discussed, substantial
evidence supported the jury’s finding that Wal-Mart was
liable for not paying minimum wages in accordance with
California law. Wal-Mart continues to dispute this by
pointing to the range of activities that truckers engaged in
while on layovers. But that evidence was submitted to the
jury, and the jury found for plaintiffs on the issues of pay for
layovers, rest breaks, and inspections. Once the jury found
that Wal-Mart owed minimum wages to drivers for layovers,
rest breaks, and inspections, the varying amount of time
truckers spent doing these tasks went to the question of
damages.
Wal-Mart’s argument is more compelling on the issue of
damages. It argues that, given the broad range of
experiences among drivers, Phillips’s testimony and other
evidence could not prove classwide damages. For example,
some truckers took shorter rest breaks than others. Some
inspections took longer than others. Variation abounded.
It is true that “the ‘amount of damages is invariably an
individual question,’” but that “does not defeat class action
treatment.” Vaquero v. Ashley Furniture Indus., Inc., 824
F.3d 1150, 1155 (9th Cir. 2016) (quoting Yokoyama v.
Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir.
2010)). Time and time again, this court has reaffirmed the
principle that the need for individual damages calculations
38 RIDGEWAY V. WALMART
does not doom a class action. Id.; Jimenez v. Allstate Ins.
Co., 765 F.3d 1161, 1167 (9th Cir. 2014); Leyva v. Medline
Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013); Yokoyama,
594 F.3d at 1094. The Supreme Court’s ruling in Tyson
Foods “has not disturbed our precedent.” Vaquero, 824 F.3d
at 1155. Thus, to the extent that Wal-Mart argues that
different damages calculations require reversal, we reject
that argument based on our precedent. Still, plaintiffs must
prove their damages. So next we address whether plaintiffs
proved damages through representative evidence.
Tyson Foods serves as a starting point for our analysis.
There, employees claimed their employer owed overtime
pay for time employees spent donning and doffing protective
gear. 136 S. Ct. at 1043. Of course, it might take one
employee longer to put on protective gear than others. So
how could one determine how much overtime the employer
owed each employee? That’s where representative evidence
came into play. Id. at 1046. In Tyson Foods, the Supreme
Court allowed class members to use representative evidence
to prove their claims, even though some individual issues
might arise. Statistical examples, the Court explained, are a
means of proving a case. Id. Of course, representative
evidence and statistical evidence are not always proper.
These types of evidence are only permissible when “the
evidence is reliable in proving or disproving the elements of
the relevant cause of action.” Id.
Wal-Mart argues that Phillips’s testimony fails under
Tyson Foods because the testimony is not something that
“could have sustained a reasonable jury finding as to hours
worked” if the drivers had brought individual actions. See
id. at 1046–47. That’s so, according to Wal-Mart, because
the named plaintiffs testified to varying hours during which
they took rest breaks and completed inspections. For
RIDGEWAY V. WALMART 39
example, Plaintiff Gonzalez testified his inspections took
between seven and ten minutes. Thus, Wal-Mart asks how
Gonzalez could have used Phillips’s fifteen-minute average
if Gonzalez had brought an individual action. Wal-Mart
contends that he could not have, so the representative
evidence fails.
Not exactly. First, Tyson Foods tells us that
representative evidence “include[s] employee testimony,
video recordings,” and expert studies. 136 S. Ct. at 1043.
So testimony from Wal-Mart drivers can amount to
representative evidence. See Pierce v. Wyndham Vacation
Resorts, Inc., 922 F.3d 741, 748–49 (6th Cir. 2019)
(approving of employee testimony as a form of
representative evidence in a wage and hour collective
action); Monroe v. FTS USA, LLC, 860 F.3d 389, 401 (6th
Cir. 2017) (holding that Tyson Foods did not limit
representative evidence to studies). Here, many plaintiffs
testified about the length of their rest breaks and inspection
time. In a class action, testimony alone may serve as the
basis for classwide damages.
Wal-Mart argues that there is no reason to think the
testimony from plaintiffs was representative, but it does not
tell us why. And if Wal-Mart believed the testimony was
not perfectly representative, its recourse was to present that
argument to the jury. Indeed, Wal-Mart did argue to the jury
that it couldn’t properly extrapolate from plaintiffs’
representative evidence to the hundreds of absent class
members, and the jury rejected that position. Ultimately, as
the district court held, Wal-Mart’s problem with Phillips’s
testimony went to weight, not to admissibility.
Second, there is no reason to think that Gonzalez or other
plaintiffs with shorter rest breaks or inspections times could
not use the evidence submitted by Phillips if they had
40 RIDGEWAY V. WALMART
brought individual actions. Wal-Mart says such plaintiffs
“would have no reason to rely on an assumption” about rest
breaks “because they had their own evidence.” But why not?
Phillips’s testimony would strengthen and corroborate all
plaintiffs’ claims that they were not paid when they should
have been.
Wal-Mart’s position would mean that anytime an
individual plaintiff testified about an estimate of how long
he or she worked and was not paid, representative samples
would be improper. That cannot be squared with Tyson
Foods, which included time variants “alleged to be upwards
of 10 minutes a day” among class members. Id. at 1047.
Representative evidence may include the testifying
plaintiffs, who provided ample evidence for a fifteen-minute
average rest break. The use of Phillips’s sample is consistent
with Tyson Foods, because each individual plaintiff could
have used that information in an individual action. Id. at
1046–47.
Nor does Phillips’s testimony present any
methodological flaw. Phillips based his information on Wal-
Mart’s own electronic payroll data, questionnaires from
forty random members of the class, hard copies of payroll
documents, data from 1,200 DOT inspections, a driver log
database, a trip detail database, a GPS database, and more.
Wal-Mart had ample opportunity to cross-examine Phillips,
call its own expert, or present other evidence. In the end, the
jury credited the evidence presented by plaintiffs. And
because this is a case in which “a representative sample is
‘the only practicable means to collect and present relevant
data’” to show damages, such representative evidence was
properly admitted. Id. at 1046 (quoting Manual of Complex
Litigation § 11.493, p. 102 (4th ed. 2004)).
RIDGEWAY V. WALMART 41
For instance, consider layovers. For those, Phillips
simply took Wal-Mart’s data showing when each class
member was paid $42 for the layover and subtracted that
from what Wal-Mart would have paid if drivers received
minimum wages. Phillips calculated damages based on
“every individual class member for whom [he] had
electronic records.” In other words, Phillips’s damages
calculation as to layovers entailed little to no extrapolation—
it involved looking at records for each class member. Yes,
Wal-Mart argues that it did not “control” drivers during
layover periods because drivers could—and did—engage in
many types of activities. But that point goes to liability, not
damages.
As for inspections, all agree that pre-trip and post-trip
inspections occurred each workday. The DOT requires such
inspections. Thus, Phillips could determine how many
inspections were done by simply counting each day that each
class member drove for Wal-Mart. Wal-Mart notes that
Phillips testified about an average fifteen-minute inspection
time, but argues that nothing supported that number. For
instance, drivers may have taken five minutes or seven
minutes to complete inspections. According to Wal-Mart,
nothing in the data—or representative testimony—provides
an answer.
Wal-Mart’s argument misses the mark. Drivers need not
prove that they all took the same time to complete required
inspections. All that is required is enough representative
evidence to allow a jury to draw a reasonable inference about
the unpaid hours worked. Id. at 1047–49. Here, plenty of
evidence supported the fifteen-minute determination. For
example, the jury considered evidence from forty class
member deponents, a Wal-Mart training video, and Wal-
Mart manager depositions. Phillips testified that he used the
42 RIDGEWAY V. WALMART
depositions and surveys of class members to get the average
of fifteen-minute inspections. Not only that, but Phillips
calculated how much Wal-Mart would owe for each single
minute per inspection. Thus, the jury did not have to accept
Phillips’s fifteen-minute inspection calculation. But the jury
had ample evidence to do so. Again, Phillips’s sample was
concerned with the amount of damages, “not the fact that
damages are due.” Alvarez v. IBP, Inc., 339 F.3d 894, 915
(9th Cir. 2003), aff’d, 546 U.S. 21 (2005).
The same is true for rest breaks. Despite variations,
which are common in class action damage calculations,
introduction of the representative sample and representative
testimony was proper because plaintiffs had no other
practicable way to prove how much Wal-Mart owed them.
Tyson Foods, 136 S. Ct. at 1046–48. And plenty of evidence
supported the jury’s conclusion.
In the end, the district court properly admitted
representative testimony and the representative sample.
Wal-Mart’s quarrel with the jury’s finding on liability is
misplaced. The jury weighed evidence presented by the
parties and found for plaintiffs on layovers, rest breaks, and
inspections. Phillips’s sample, surveys, Wal-Mart’s data,
and testimony from the named plaintiffs provided ample
evidence regarding the extent of classwide damages. Thus,
the district court did not err in certifying a class and allowing
representative evidence as proof of classwide damages—
including Phillips’s testimony and sample.
D. Cross Appeal on Liquidated Damages
In a cross appeal, plaintiffs argue that the district court
erred in denying liquidated damages. Under California law,
aggrieved employees are entitled to liquidated damages
when an employer is found to have unlawfully withheld
RIDGEWAY V. WALMART 43
wages, unless the defendant employer shows it acted in good
faith and with a reasonable belief in the legality of its
conduct. Cal. Lab. Code § 1194.2. Thus, the question is
whether Wal-Mart can show good faith and a reasonable
belief in the legality of its conduct. When considering this
question, the district court did not limit Wal-Mart to the
evidence it presented at trial. Instead, the district court
allowed Wal-Mart to present information that was not before
the jury and determined that Wal-Mart need not pay
liquidated damages.
Plaintiffs argue that the district court erred in considering
post-trial declarations that amounted to hearsay from
witnesses that plaintiffs did not get to cross-examine. But
plaintiffs cite no authority that such evidentiary rules apply.
And limiting review to only evidence presented at trial
would require defendants to anticipate losing at trial by
presenting their good faith and reasonableness arguments for
potential post-trial liquidated damages motions. We reject
that position.
The district court concluded that Wal-Mart acted
reasonably and in good faith. As to good faith, the district
court determined that Wal-Mart believed its pay policy
complied with California minimum wage law. For example,
the court noted that Wal-Mart drivers were among some of
the highest paid drivers in the industry. The court also
concluded that Wal-Mart had low attrition rates and paid
discretionary pay when drivers unexpectedly fell short of
daily averages. And for seven activities, the jury found in
Wal-Mart’s favor. Additionally, Wal-Mart eventually
changed its pay policies to comply with California law.
Finally, at least one California district court previously
found claims parallel to those presented here to be
preempted by the FAAAA. Ortega v. J.B. Hunt Transport,
44 RIDGEWAY V. WALMART
Inc., No. 2:07-cv-08336-BRO-SH, 2014 WL 2884560, at
*5–6 (C.D. Cal. June 4, 2014), vacated and remanded, 694
F. App’x 589 (9th Cir. 2017). While we reject that
interpretation, as did the court below, Ortega lends some
credibility to Wal-Mart’s assertion of good faith.
Still, plaintiffs argue that Wal-Mart failed to meet its
burden. They contend that the key inquiry is not whether
Wal-Mart had generally laudable pay practices. Instead,
plaintiffs say that the proper inquiry is whether Wal-Mart
acted in good faith and with reasonable belief in the legality
of its actions based on its employment practices pertaining
to layovers, rest breaks, and inspections, not general pay
practices. That is because the statute says an employer must
show that the “act or omission giving rise to the action was
in good faith.” Cal. Lab. Code § 1194.2(b). Thus, plaintiffs
contend that most of what the district court relied on—
including Wal-Mart’s general pay practices—was not
relevant to whether Wal-Mart acted in good faith and with a
reasonable belief as to pay for layovers, rest breaks, and
inspections.
But here—even if the district court relied on some
irrelevant information—there is enough evidence to support
the district court’s finding that Wal-Mart acted in good faith
and with a reasonable belief in the legality of its actions.
Several Wal-Mart pay practices indicate an effort, albeit an
imperfect one, to comply with California law. And the
bounds of permissible conduct were, at least during the class
period, somewhat murky. As the district court noted, even
though some California cases are instructive, those cases are
not conclusive on whether Wal-Mart’s pay policies were
reasonable under California law. For example, there is no
clear definition of what constitutes employer control under
California law. As a result, we cannot say that Wal-Mart did
RIDGEWAY V. WALMART 45
not act with a reasonable belief in the legality of its actions,
even though we affirm the finding for plaintiffs on liability.
In sum, the district court did not err in finding that Wal-
Mart acted in good faith and with a reasonable belief in the
legality of its action, and we affirm its determination as to
liquidated damages.
III. Conclusion
Wal-Mart and plaintiffs propose several bases for
reversal in this admittedly complex case, but ultimately none
holds water. Following over a decade of litigation, a robust
motions practice, and a sixteen-day trial, we conclude that
the judgment should stand.
Appellees’ motion for judicial notice of certain materials
from the legislative history of two provisions of the
California Labor Code is GRANTED and the district court
is AFFIRMED.
O’SCANNLAIN, J., concurring in part and dissenting in
part:
I concur in all of the majority’s opinion except for Part
II.B.1.b, in which the court affirms the finding of liability
against Wal-Mart for its failure to compensate drivers for
time spent during layover periods. Specifically, I cannot
agree with the majority’s conclusion that the district court
correctly granted partial summary judgment to the plaintiffs
when it found that Wal-Mart’s written pay policies
necessarily establish that the company “controlled” drivers
during their layover breaks. In my view, the jury should
have been allowed to decide the meaning of these ambiguous
46 RIDGEWAY V. WALMART
policies and the extent to which the policies actually
“control” what drivers may do and where they may go.
For the reasons expressed herein, I respectfully dissent
from the “layover periods” portion of the majority’s opinion.
I
As required by both state and federal law, Wal-Mart’s
long-haul truck drivers must take ten-hour breaks—so-
called “layovers”—between each of their driving shifts. See
49 C.F.R. § 395.3(a)(1); Cal. Code Regs. tit. 13, § 1212.5(a).
During this time, drivers formally are not on duty, and
they may not drive or perform other work for Wal-Mart.
See 49 C.F.R. §§ 395.2, 395.8(b); Cal. Code Regs.
tit. 13, §§ 1201(u)(4), 1213(c). Trucks are equipped with
sleeper berths to allow drivers to rest during their layovers,
though testimony in this case indicates that drivers actually
spent time performing a variety of activities including
visiting family, exercising, eating, golfing, or even visiting
casinos.
One of the principal claims in this case is that, under
California law, Wal-Mart was required—but failed—to pay
drivers minimum wage during their layover periods. The
validity of that claim ultimately turns on whether Wal-Mart
exercised “control” over its drivers during such periods,
within the meaning of California employment law. If so,
Wal-Mart needed to pay drivers minimum wage for their
layover time; if not, no compensation was required. See Cal.
Code Regs., tit. 8 § 11090(2)(G). At summary judgment, the
district court found that, at least as a matter of written policy,
Wal-Mart did purport to control its drivers during their
layovers. The court entered partial summary judgment in the
plaintiffs’ favor on this issue, finding that “the policies in
RIDGEWAY V. WALMART 47
[Wal-Mart’s] Driver Pay Manuals subjected drivers to Wal-
Mart’s control during layover periods.”
In light of this ruling, at trial the issue of whether Wal-
Mart was required to pay its drivers during layover periods
was reduced to the question of whether Wal-Mart actually
implemented these written policies. In its jury instructions,
the court restated its finding of fact that the policies
expressed in the pay manuals “subjected drivers to Wal-
Mart’s control during layover periods” and instructed the
jury to find in favor of the plaintiffs if they proved “that Wal-
Mart applied the [layover] policy as it is stated in the driver
pay manuals.” If it believed Wal-Mart did indeed apply its
own written policies, the jury was instructed to award pay to
compensate the plaintiffs for the full length of each 10-hour
layover period.
Ultimately, the jury found that Wal-Mart owed drivers
more than $44 million in unpaid wages for layover time.
II
The core problem with the jury’s finding is that the
district court’s earlier entry of partial summary judgment
short-circuited the entire layover-periods question.
Although Wal-Mart’s written pay policies might be
understood to assert control during layover periods, that was
a genuinely disputed question of fact, which should have
been presented to the jury to decide. By instead answering
that question itself, the district court prejudiced Wal-Mart in
its ability to defend the lawfulness of its own company
policies and practices.
48 RIDGEWAY V. WALMART
A
Under California law, an employer must pay minimum
wage for all time “during which an employee is subject to
the control of an employer.” Cal. Code Regs. tit. 8,
§ 11090(2)(G). Under this test, an employee “does not have
to be working during that time to be compensated.”
Morillion v. Royal Packing Co., 995 P.2d 139, 143 (Cal.
2000). Even during a break period, an employee might
remain under control of his or her employer if the employer
imposes requirements that prevent the employee from
spending “truly uninterrupted time” at his or her pleasure.
Augustus v. ABM Sec. Servs., Inc., 385 P.3d 823, 833 (Cal.
2016). While an employer may freely impose reasonable
restraints like requiring employees to remain on site during
short breaks, it must compensate employees for break
periods if it imposes more severe restrictions that effectively
prevent the employee from spending the time as he or she
might wish, such as by requiring the employee to remain on-
call or preventing him or her from leaving the worksite for
extended periods of time. See id. at 832–34.
Against this backdrop, the district court ruled that the
terms of Wal-Mart’s 2008 pay manual necessarily
established the company’s control over drivers during their
layover periods. Such manual, however, says very little
about what a driver may or may not do during a layover.
The parties agree that Wal-Mart paid drivers a $42
“inconvenience fee,” at least for layovers they spent in the
sleeper berths of their trucks and away from home. The pay
manual reinforces this payment but says little else about how
a layover must be spent. The manual specifies that layover
time is “not paid in conjunction with any other type of pay,”
but instead is a standalone pay category “inten[ded] . . . to
pay Drivers for layovers taken in the tractor cab.” The
RIDGEWAY V. WALMART 49
manual further emphasizes that drivers “will not be
compensated for a DOT [layover] break if any portion of it
is taken at home.” In addition to forgoing the $42 payment,
in order to “take a [layover] at home” a driver must receive
a manager’s prior approval, safely and securely park his or
her tractor and trailer, and record the break at home (and the
manager’s approval) on his or her time sheet. Taking an
unauthorized layover at home is prohibited and “may lead to
immediate termination.”
Altogether, then, Wal-Mart’s written policy establishes
essentially two relevant restrictions on drivers’ layover time:
(1) they will receive a $42 payment only if the layover is
spent “in the tractor cab,” and (2) if they wish to take the
layover at home, they must receive a manager’s approval and
lock the truck in a safe location. The district court and the
majority seize on these basic restrictions to conclude that,
because drivers were not completely free to spend their
layovers at home without management approval, they must
have been subject to Wal-Mart’s control during that time.
But none of these requirements establishes control as a
matter of California law.
1
First, there can be no serious argument that the offer to
pay drivers $42 for a layover taken in the truck constitutes
“control” over them.
The $42 payment is simply a gratuitous offer on Wal-
Mart’s part—what the company asserts is a benefit to
alleviate the inconvenience of spending a layover in the
driver’s truck. That benefit is not paid when the driver
instead chooses to spend the layover in a more convenient
location like his or her home, a friend’s house, a hotel, or
elsewhere. We have previously recognized that employers
50 RIDGEWAY V. WALMART
in California are free to impose such reasonable limitations
on benefits like this. In Rodriguez v. Taco Bell Corp, for
example, we recently held that Taco Bell did not exert
control over its employees by offering them a discounted
lunch, but only if they ate in the store itself. 896 F.3d 952,
956 (9th Cir. 2018). We explained that employees were free
to forgo the meal discount and eat their lunch anywhere else;
the fact that the restaurant required them to stay onsite to
receive the gratuitous benefit did not inhibit their freedom of
choice. See id. at 956–57. The same is true about the $42
inconvenience fee here.
2
Second, the manual’s limitations on a driver’s ability to
spend a layover at home do not, as a matter of law, establish
“control.”
The majority suggests that these restrictions effectively
direct where drivers are required to be during their layover
periods. It analogizes Wal-Mart’s policy to two cases in
which employers were found to have exercised control by
requiring their employees to spend downtime at specified
locations. See Maj. Op. at 23–24. In Bono Enterprises, Inc.
v. Bradshaw, for example, the California Court of Appeal
held that an employer was required to compensate its
employees during lunch breaks in which the employees were
prohibited from leaving the worksite. See 32 Cal. App. 4th
968, 975–76 (1995), disapproved on other grounds by
Tidewater Marine W., Inc. v. Bradshaw, 927 P.2d 296 (Cal.
1996). Likewise, in Morillion v. Royal Packing Co., the
California Supreme Court held that an employer controlled
its employees by requiring them to meet at a designated
place and then ride employer-provided buses to the fields in
which they worked. 995 P.2d at 147. The California
Supreme Court held that, even though employees could pass
RIDGEWAY V. WALMART 51
the time on the bus as they saw fit (for example by reading
or sleeping), they were still under the employer’s control
during that time, because they “were foreclosed from
numerous activities in which they might otherwise engage if
they were permitted to travel . . . by their own
transportation,” such as dropping their children at school,
stopping for breakfast before work, or running other errands.
Id. at 146.
The limited restrictions expressed in Wal-Mart’s pay
manual are a far cry from those in Bono or Morillion. In
both Bono and Morillion, the employees were prohibited
from being anywhere other than a location specifically
directed by the employer. Here, by contrast, Wal-Mart’s pay
manual says almost nothing about where drivers can go or
what they can do during a layover. At most, the policy
places certain restrictions on a driver’s ability to pass the
layover at home. Such restrictions hardly amount to the sort
of control recognized in Bono or Morillion. First, it is not
clear that (as the majority suggests) Wal-Mart’s pay manual
prevents drivers from even visiting their homes. If drivers
take any portion of their layover at home, they don’t get the
$42 convenience fee. But it is not clear that the policy
generally requiring authorization prior to “taking” a layover
at home, also means drivers needed permission to visit a
nearby home even briefly, for example to eat a meal or
change clothes. More to the point, the policy says nothing
at all about a driver’s freedom to spend layover time
anywhere else. The majority points to nothing in the policy
that would preclude a driver from visiting a friend, going to
see a movie, going to a bar or restaurant, shopping, running
errands, and so forth. Unsurprisingly, drivers testified at trial
that they did—and that they understood they were permitted
to do—exactly these sorts of things during layovers.
52 RIDGEWAY V. WALMART
Moreover, the majority glosses over the fact that Wal-
Mart’s pay manual expressly allows employees to take their
breaks at home as well, so long as they receive prior
approval. Requiring approval before engaging in certain
activities does restrict employees’ ability to do those
activities in some way. But it hardly prevents them. Again,
the contrast to Bono and Morillion is instructive. In both
cases, employers enforced policies that simply prohibited—
without any apparent exception—employees from straying
from their directed areas. See Morillion, 995 P.2d at 141 &
n.1; Bono, 32 Cal. App. 4th at 978 n.4. Indeed, in Bono the
court wrote that the employer would not have exerted control
over its employees if had permitted them to “ma[ke] prior
arrangements” to leave the worksite for lunch. See 32 Cal.
App. 4th at 978 n.4. The court observed that the lack of such
a policy was “extremely significant” to its conclusion that
the on-site lunch breaks required compensation. Id. Here,
in direct contrast, the manual expressly informs drivers that
they may spend breaks at home, so long as they receive prior
approval and secure the truck while they will be away.
Just as in Bono, the availability of a policy allowing
drivers to make prior arrangements to spend a layover at
home should be “extremely significant” to our interpretation
of the pay manual and the extent to which it purports to
control drivers’ activities. But instead of actually grappling
with how such a policy might reduce the degree to which the
manual restrains drivers’ ability to go home, the majority
instead quickly dismisses its relevance because the manual
implicitly “reserved [Wal-Mart’s] right to decline” a driver’s
request to take a layover at home. Maj. Op. at 25–26. The
manual itself says nothing about the grounds on which such
a request might be declined. Yet, the majority appears to
assume the worst, simply asserting that Wal-Mart’s
authority to decline a driver’s request means that the policy
RIDGEWAY V. WALMART 53
necessarily imposed “more than a mere ‘burden’” on drivers’
ability to take a layover at home—with no explanation for
why that is so or, more importantly, how we know it from
the face of the policy alone. See id. at 26. At summary
judgment, the manual’s failure to make clear the extent of
the burden imposed by the pre-approval rule should have
weighed against granting summary judgment, and instead
allowed this open question to go to the jury. See infra Part
II.B.
In the end, the majority’s interpretation of Wal-Mart’s
pay manual rests on a sweeping and simplistic proposition:
any policy that “restrict[s] employees from complete
freedom of movement during breaks” is sufficient to show
“control” under California law. Maj. Op. at 26–27.
Unfortunately, the majority does not cite a single case that
actually supports such a broad rule, and the text of the
manual hardly demonstrates the sort of strict location control
at issue in the only cases upon which the majority relies.
B
Because Wal-Mart’s pay manual says so little about what
drivers may or may not do during layovers, it leaves a great
deal of room for interpretation. In attempting to parse this
scant guidance at summary judgment, the district court was
required to draw all reasonable inferences in Wal-Mart’s
favor. See Barnes v. Chase Home Fin., LLC, 934 F.3d 901,
906 (9th Cir. 2019). Instead, the court seems to have drawn
every inference against Wal-Mart and assumed that the most
restrictive reading of the manual must be true. 1 Perhaps a
1
For example, the majority asserts that summary judgment was
proper because it is “aware of no per se rule under California law that
control will not be found when an employer creates an exception for
54 RIDGEWAY V. WALMART
reasonable factfinder could agree with the district court that
the manual could be construed as a company policy of
strictly controlling drivers’ whereabouts during layover
periods. But the text of the manual itself does not compel
such a conclusion.
1
In deciding this contested issue against Wal-Mart, the
court effectively took from the jury one of the most critical
questions in this case: what was Wal-Mart’s official policy
regarding what drivers were permitted to do during layover
periods? Notably, testimony in this case shows that many
drivers understood company policy to be broadly
permissive, allowing them to do “whatever [they] want[ed]”
during layovers. But the court significantly limited the
jury’s own consideration of how permissive Wal-Mart
policy was by instructing them that at least the company’s
official written policy violated California law, and that Wal-
Mart was liable if it followed such policy.
employees who receive prior approval to engage in otherwise restricted
activities.” Maj. Op. at 24. But such observation flips the burden at
summary judgment on its head. In defending against summary judgment
on this issue, Wal-Mart was certainly not required to show that its
interpretation of the manual is necessarily correct as a matter of law.
Rather, summary judgment should not have been granted unless the
plaintiffs could show that Wal-Mart’s interpretation was wrong as a
matter of law—a conclusion that even the majority seems to recognize
is not supported under California law. Regardless whether there is a “per
se rule” under California law that Wal-Mart’s view will necessarily
prevail, such view is one with which a reasonable factfinder could
agree—and thus this is a genuinely disputed question that should have
been decided by the jury at trial. See Rookaird v. BNSF Ry. Co., 908
F.3d 451, 459 (9th Cir. 2018).
RIDGEWAY V. WALMART 55
It is not difficult to see how this ruling prejudiced Wal-
Mart. Wal-Mart should have had the opportunity to
persuade the jury that the pay manual (and company policy
generally) placed only minimal restraints on drivers’ activity
or whereabouts during layovers. Instead, Wal-Mart was
forced to accept that its manual announced unlawful policies
and then attempt to convince the jury that it had implemented
practices that conflicted with those policies in material ways.
In essence, Wal-Mart could win only by showing that it
ignored its own company standards. 2
2
Nor did the court eliminate the prejudice by offering a
supplemental jury instruction on the definition of “control”
under California law, as the majority suggests. See Maj. Op.
28–29. Perhaps confused as to whether the court’s summary
judgment ruling had already declared Wal-Mart to be liable
on the layover claims, the jury asked the court to clarify the
“definition regarding Wal-Mart’s control during layover
periods.” In response, the court told the jury that there “is
no clear definition of control” under California law, but that
the key was whether “the driver was able to use that time
effectively for his or her own purposes.” The court gave two
examples, notably both from cases in which courts found
employer control (once again, Bono and Morillion). The
court gave no counterexamples from a case in which control
2
The prejudice is especially obvious if one considers the situation
of a juror who read the manual and found its policies not to be overly
restrictive. Nonetheless, such a juror would have been told that, if Wal-
Mart actually followed the manual, then it had violated California law.
Even though such a juror found Wal-Mart’s written policies to be
perfectly permissive, Wal-Mart would lose unless it could persuade him
or her that, in practice, the company was even more lenient with drivers.
56 RIDGEWAY V. WALMART
was lacking, nor did it offer any possible limitations to the
cases’ holdings.
This supplemental instruction might have given the jury
more detail on what “control” means under California law,
but it did nothing to correct its earlier instruction that such
control is necessarily demonstrated by Wal-Mart’s written
policy. Thus, the jury was still left to decide only whether
Wal-Mart deviated from that policy in a way that materially
lowered the extent to which it controlled drivers. If the jury
simply decided that Wal-Mart followed its policy as written,
the precise definition of control was beside the point because
its command was already clear: impose liability. This was
error.
III
In sum, while I join the majority in all other respects, I
must conclude that the district court erred in granting partial
summary judgment against Wal-Mart on the meaning of
Wal-Mart’s written pay policies. Such a conclusion can be
supported only by drawing every inference against Wal-
Mart—exactly the opposite of the court’s task at summary
judgment. The limited text of Wal-Mart’s policies says very
little about what drivers may do during their layover periods,
and it does not remotely demonstrate the degree of control
found sufficient in other California cases. On this scant
evidence, the district court should have left for the jury the
critical task of determining the extent of control exerted by
Wal-Mart’s layover policies and practices.
I would reverse the judgment against Wal-Mart to such
extent and remand for a new trial on the “layover periods”
issue.