Safeway Wage and Hour Cases ( 2019 )

Filed 12/18/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISON FOUR
B287103
SAFEWAY WAGE AND HOUR (Los Angeles County
CASES. Super. Ct. No. BC349382
JCCP No. 4772)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ann I. Jones, Judge. Affirmed.
Arias, Sanguinetti, Wang & Torrijos, Mike Arias,
Alfredo Torrijos and Craig Momita for Plaintiff and
Appellant.
Littler Mendelson, Margaret H. Gillespie, Philip L.
Ross and J. Kevin Lilly for Defendant and Respondent.
INTRODUCTION
This is another in a series of cases in which former
managers of Safeway supermarket stores sought unpaid
overtime wages, claiming they had been misclassified as
exempt executives under regulations applicable to the
mercantile industry. Following trial, a jury found
respondent Safeway, Inc. had proven that appellant William
Cunningham had been an exempt employee (and thus was
not entitled to overtime pay). On appeal, appellant asserts
the trial court committed instructional error. In particular,
he challenges an instruction based on language in this
court’s decisions in Batze v. Safeway, Inc. (2017) 10
Cal.App.5th 440 (Batze) and Heyen v. Safeway Inc. (2013)
216 Cal.App.4th 795 (Heyen), directing the jury to classify
any given task as exempt work whenever a manager engages
in it “because it is helpful in supervising employees in the
store or because it contributes to the smooth functioning of
the store . . . .” Appellant also claims the court abused its
discretion in admitting certain expert testimony, arguing it
was speculative.
We clarify that a task does not become exempt merely
because the manager undertakes it in order to contribute to
the smooth functioning of the store. An instruction on the
consideration of the manager’s purpose, where appropriate,
must inform the jury of relevant limiting principles outlined
in the applicable regulations and recognized by our prior
decisions. However, we conclude the trial court’s instruction
did not affect the jury’s verdict.
2
Additionally, we find no abuse of discretion in the
admission of the contested expert testimony under the
circumstances of this case. We therefore affirm the
judgment.
BACKGROUND
A. The Parties and This Action
Respondent operates a national chain of supermarkets.
From March 2002 to October 2004, appellant worked at
several of respondent’s stores, serving as a First Assistant
Manager (FAM) for most of that time. In 2002, two former
Safeway managers filed a putative class action on behalf of
all Safeway store managers and assistant store managers in
California, alleging failure to pay overtime wages, among
other claims. The trial court denied class certification.
(Batze, supra, 10 Cal.App.5th at pp. 445-446; Heyen, supra,
216 Cal.App.4th at p. 799.)
Before and after the denial of class certification,
numerous former Safeway managers, including appellant,
filed complaints seeking unpaid wages on an individual
basis. Appellant’s action proceeded to trial in 2017.
B. Evidence at Trial
Before trial, respondent conceded appellant had
worked overtime during his employment, and the trial
therefore focused on respondent’s affirmative defense -- that
appellant was subject to the executive exemption and was
not entitled to overtime wages. (See Heyen, supra, 216
3
Cal.App.4th at p. 817 [“Exemptions are narrowly construed
and, as affirmative defenses, must be proved by the
employer”].) Because respondent bore the burden to prove
this affirmative defense, the parties agreed respondent
would present its case first, followed by appellant. At trial,
the main dispute was whether appellant had spent most of
his work time stocking shelves and checking (nonexempt
work) as he claimed, or performing managerial tasks such as
supervising, training, and disciplining employees, assessing
store conditions, and filling out financial reports (exempt
work), as respondent contended.
1. Respondent’s Evidence
i. Lay Testimony
George Arias, a retired Safeway District Manager who
had overseen stores at which appellant worked, testified
about the duties of FAMs. According to Arias, when the
store manager was present, a FAM’s primary responsibilities
were to ensure checkers’ productivity and service, sufficient
stocking of products on the shelves, store cleanliness, and
proper organization of stock in the back room of the store.
FAMs were to direct subordinate hourly employees in
carrying out these tasks, not to perform them on their own.
Safeway stores could have as many as 145 employees, and
FAMs would not be able to manage store activities if they
were preoccupied with physical functions like checking or
stocking. As part of their duties, FAMs walked the aisles of
their stores to assess store conditions and respond to any
4
issues (performing a “store walk”), trained subordinates,
scheduled shifts based on sales projections, and filled out
financial reports.
When the store manager was not present, a FAM was
responsible for the entire operation of the store. Based on
his observations of appellant, Arias did not think appellant
spent more than half his time engaged in physical labor.
During his testimony, Arias recounted transferring
appellant to a particular store to help prepare the store’s
back room for a “show-and-tell,” a production of a model
store demonstrating how a Safeway store should operate.
Corrine Fernando, who had worked alongside
appellant as a bakery manager at one store, testified she had
never seen appellant stock shelves, though she
acknowledged her view of the store was obstructed. She
explained that her department was responsible for stocking
the bread aisle, and that hourly employees were specifically
assigned to stock that aisle. According to Fernando,
appellant would usually be found in the office. Amanda
Deschner, who had worked with appellant as a night crew
head clerk at another store, described receiving product
orders from appellant. She recounted an instance in which
she disagreed with one of appellant’s order requests and
discussed it with the store manager, only to be told, “if
[appellant] asked you to do it, you do what he says.”
Deschner testified she had never seen appellant stock
shelves, though she acknowledged occasionally seeing him
checking. Finally, Jennifer Hansen, another night crew
5
head clerk who had worked with appellant, testified she did
not recall ever seeing appellant stock shelves or check out
customers.
ii. Banks’s Expert Testimony
Christina Banks, an industrial organizational
psychologist, testified about the results of an observational
study she had conducted at Safeway stores. She designed
this observational study to measure how a representative
sample of Safeway FAMs performed the job. During the
study, observers followed 28 randomly selected FAMs and
recorded the time they spent on every activity. The study
was conducted after appellant’s employment with
respondent had ended and did not include any of the stores
at which he had worked.1
The study showed the observed FAMs spent an average
of 72.7 percent of their worktime on “managerial” activities,
such as overseeing customer service, and only 27.3 percent of
their time on “non-managerial” activities, such as stocking
shelves. Only three of the 28 observed FAMs failed to spend
more than half their worktime doing managerial work.2
1 Prior to trial, appellant sought to exclude Banks’s testimony
because it did not constitute evidence of how he had spent his
worktime at respondent’s stores. The trial court denied this request.
2 A report documenting the measurements and findings of the
study was admitted into evidence. The report also included
measurements and calculations accounting for time spent thinking
“managerial thoughts” while engaged in different tasks, but Banks
indicated she did not rely on that data in offering her opinions.
6
Based on these results, Banks opined the vast majority of
FAMs spent more than half their time performing
managerial work, and that it was realistic for respondent to
expect its FAMs to do so.
On cross-examination, when asked if her study was
representative of how appellant spent his worktime, Banks
explained the study was “representative of what [FAMs] do”
but she could not “speak to what [appellant] did in his job.”
She later confirmed on redirect that she was not attempting
to “predict . . . what [appellant] did on any particular day.”
2. Appellant’s Evidence
Appellant testified at trial. He described his typical
shift as mostly physically stocking and rearranging products
on shelves. According to appellant, at one store, he spent 60-
70 percent of his time stocking and 20 percent checking. At
two other stores, he spent 70-80 percent of his time stocking,
checking, and cleaning. He testified he never managed
anyone in the various departments of his stores. Appellant
admitted occasionally preparing various reports, but claimed
they took very little time to complete. On cross-examination,
he also admitted conducting store walks and delegating
tasks to other employees, and confirmed he was responsible
for correcting employees’ performance deficiencies and for
discipline.
Albert Kruger, a former store manager who oversaw
appellant at one store, testified appellant was a “work
horse,” responsible for physically replenishing products.
7
Appellant was usually the only employee available to stock
the shelves, and would spend 80-90 percent of his time
stocking. He did very little office work and managed only
himself.
Two other current and former FAMs testified they had
spent the majority of their time doing physical work or
checking customers. Both were observed in Banks’s study
and one of them, Lyle Parker, claimed he had been
instructed to do only management work on the day of his
observation and therefore did less checking than he normally
did. When confronted with check-register data on cross-
examination, however, he admitted he had spent similar
time checking in the days surrounding the study.
C. Jury Instructions
Aside from standard CACI jury instructions, the trial
court also instructed the jury that respondent bore “the
burden of proving by a preponderance of the evidence that
[appellant] was an exempt employee and therefore not
entitled to overtime compensation.” The court instructed the
jury on the elements of the executive exemption, including
the requirement that the employee be “primarily engaged in”
exempt work, and reiterated that respondent had the burden
to prove each element by a preponderance of the evidence.
In Instruction No. 31, the court gave lists of examples of
exempt work (e.g., “interviewing, selecting, and training of
employees,” “directing the work of employees,” and
“disciplining employees”) and nonexempt work (e.g.,
8
“stocking shelves,” “cleaning the store,” and “checking out
customers”).
Instruction No. 31 continued: “These examples of
different tasks are not determinative of whether such tasks
should be classified as exempt or non-exempt. A task may
be exempt or non-exempt based on the reason that the
person is doing the task. Understanding the manager’s
purpose in engaging in such tasks, or a task’s role in the
smooth operation of the store, is critical to the task’s proper
categorization as exempt or non-exempt. A task performed
because it is helpful in supervising employees in the store or
because it contributes to the smooth functioning of the store
or any subdivision of the store is exempt, even though the
identical task performed by an hourly employee for a
different, non-managerial reason would be non-exempt.
“In making your decision, you may consider whether
the manager is doing tasks that also are done by hourly
employees. If the purpose of the manager in doing those
tasks is to supervise employees and/or contribute to the
smooth operations of the store or a recognized subdivision of
the store, then those tasks must be classified as exempt.”
A related instruction, Instruction No. 33, stated:
“Identical tasks may be exempt or nonexempt based on the
purpose they serve within the organization or department.
Understanding the manager’s purpose in engaging in such
tasks, or a task’s role in supervising employees in the store
and/or contributing to the smooth operations of the store or a
9
recognized subdivision of the store, is critical to the task’s
proper categorization as exempt or non-exempt.”
The trial court took much of the language of
Instruction Nos. 31 and 33 from our decisions in Batze,
supra, 10 Cal.App.5th 440 and Heyen, supra, 216
Cal.App.4th 795. Appellant objected to the language dealing
with the manager’s purpose in undertaking the task,
arguing this assessment applies only to tasks that are not
also done by the manager’s subordinates. He argued that
ignoring this limitation would mean any task would be
exempt. The trial court overruled his objection, concluding
the instruction was supported by our precedents.3
The court also refused to give several instructions
appellant requested, including ones involving: (1) the
elements of the exemption and a rebuttable presumption
that any given task is nonexempt; (2) a list of categorically
nonexempt tasks, which included stocking shelves and
manning a cash register; and (3) advisements that an
employee cannot engage in exempt work while at the same
time doing other work, and that time spent “thinking
managerial thoughts” while performing nonexempt tasks
must be classified as nonexempt.
3 Although respondent asserts that appellant later acquiesced in
Instruction Nos. 31 and 33, our review of the record satisfies us that
appellant has preserved his objection to those instructions.
10
D. Closing Arguments
In closing, respondent’s counsel highlighted the various
managerial responsibilities entrusted to appellant as a FAM
according to Arias’s testimony, and argued that with all
appellant’s managerial assignments, he could not have
stocked or done other physical work for substantial portions
of his time. Counsel also directed the jury to the testimony
of appellant’s coworkers who had not seen him stock shelves.
Turning to appellant’s store walks, respondent’s
counsel contended this work was “the essential task of
managing” and argued that although a FAM might
occasionally move product on a shelf, the primary purpose of
store walks was to assess store conditions. Counsel then
cited the court’s instruction that identical tasks may be
exempt or nonexempt depending on their purpose.
As to Banks’s observational study, respondent’s
counsel emphasized the relevance of the study to
respondent’s expectations: “Remember we concede that
[appellant] isn’t on that study. . . . But is it not realistic, if
the company goes out and has a study done . . . and it shows
that 28 managers were . . . doing their job that way, is it not
realistic to expect that’s how they manage stores?” In his
rebuttal, counsel brought up appellant’s work preparing a
back room for the show-and-tell, and argued this task too
was exempt, because it was done for training or
demonstration purposes.
Appellant’s counsel, on the other hand, pointed to
testimony that appellant had spent most of his time
11
stocking, and argued he was merely “a filler.” Attacking the
observational study, counsel argued it was unreliable and
emphasized it said nothing about appellant’s work.
E. Verdict and Judgment
After less than two hours of deliberations, the jury
returned a special verdict finding, by a vote of 10-2, that
respondent had proven appellant had been an exempt
employee. The trial court subsequently entered judgment
for respondent. Appellant timely appealed, challenging the
trial court’s jury instructions and its admission of Banks’s
testimony.
DISCUSSION
A. Jury Instructions
1. Governing Legal Principles
i. The Labor Code and the IWC’s Wage
Orders
“California’s Labor Code mandates overtime pay for
employees who work more than 40 hours in a given work
week. (Labor Code, § 510, subd. (a).) However, the
Legislature authorized the Industrial Welfare Commission
(IWC) to establish exemptions for various categories of
employees, including ‘executive . . . employees,’ where the
employee is ‘primarily engaged in the duties that meet the
test of the exemption,’ the employee ‘customarily and
regularly exercises discretion and independent judgment in
performing those duties,’ and the employee ‘earns a monthly
12
salary equivalent to no less than two times the state
minimum wage for full-time employment.’ (Lab. Code, § 515,
subd. (a).)” (Batze, supra, 10 Cal.App.5th at p. 471, fn.
omitted.)
Utilizing its statutory authority, the IWC promulgated
several Wage Orders, codified in the California Code of
Regulations, setting forth criteria for determining whether
an employee may be classified as an exempt executive.4 (See
Cal. Code Regs., tit. 8, § 11010 et seq.) As relevant here,
Wage Order No. 7-2001 governs employees of the
“mercantile industry.”5 (Cal. Code Regs., tit. 8, § 11070
(Wage Order).) To be an exempt executive under this Wage
Order, an employee must, inter alia, be “primarily engaged
in duties which meet the test of the exemption.” (Id.,
§ 11070, subd. (1)(A)(1)(e).) “The [W]age [O]rder defines
‘primarily’ as ‘more than one-half the employee’s work time,’”
and instructs the trier of fact to “look not only to the ‘work
actually performed by the employee during the workweek,’
but also to the ‘employer’s realistic expectations and the
realistic requirements of the job.’” (Heyen, supra, 216
Cal.App.4th at pp. 819, 828, quoting Cal. Code Regs., tit. 8,
§ 11070, subds. (1)(A)(1)(e), 2(K).) As to the nature of work,
the Wage Order provides that exempt work and nonexempt
4 The IWC was defunded in 2004, but its wage orders remain in
effect. (Batze, supra, 10 Cal.App.5th at p. 471.)
5 There is no dispute that respondent is in the mercantile
industry.
13
work “shall be construed in the same manner as such items
are construed in the following regulations under the Fair
Labor Standards Act effective as of the date of this order
[2001]: 29 C.F.R. Sections 541.102, 541.104-111, and
541.115-116.”6
ii. The Federal Regulations
According to the 2001 version of the federal
regulations, determining whether a particular kind of work
is exempt or nonexempt should usually be an easy task. “In
the vast majority of cases[,] the bona fide executive employee
performs managerial and supervisory functions which are
easily recognized as within the scope of the exemption.”
(§ 541.102(a).) Such functions include: “[i]nterviewing,
selecting, and training of employees; setting and adjusting
their rates of pay and hours of work; directing their work;
maintaining their production or sales records for use in
supervision or control; appraising their productivity and
efficiency for the purpose of recommending promotions or
other changes in their status; handling their complaints and
grievances and disciplining them when necessary; planning
the work; determining the techniques to be used;
apportioning the work among the workers; determining the
type of materials, supplies, machinery or tools to be used or
merchandise to be bought, stocked and sold; controlling the
6 Undesignated section references are to the 2001 version of title
29 of the Code of Federal Regulations.
14
flow and distribution of materials or merchandise and
supplies; providing for the safety of the men and the
property.” (§ 541.102(b).)
But the federal regulations also recognize a category of
exempt tasks that may not be so easily identifiable as
exempt -- work “directly and closely related” to the
management of a department and the supervision of
employees. (§ 541.108.) “This phrase [work directly and
closely related] brings within the category of exempt work
not only the actual management of the department and the
supervision of the employees therein, but also activities
which are closely associated with the performance of the
duties involved in such managerial and supervisory
functions or responsibilities.” (§ 541.108(a).) The
regulations explain: “The supervision of employees and the
management of a department include a great many directly
and closely related tasks which are different from the work
performed by subordinates and are commonly performed by
supervisors because they are helpful in supervising the
employees or contribute to the smooth functioning of the
department for which they are responsible. Frequently such
exempt work is of a kind which in establishments that are
organized differently or which are larger and have greater
specialization of function, may be performed by a nonexempt
employee hired especially for that purpose.” (Ibid.)
Section 541.108 provides several examples of tasks
that, depending on the circumstances, may be “directly and
closely related” to exempt work:
15
“(b) Keeping basic records of working time . . . is
frequently performed by a timekeeper employed for that
purpose. In such cases the work is clearly not exempt in
nature. In other establishments which are not large enough
to employ a timekeeper, or in which the timekeeping
function has been decentralized, the supervisor of each
department keeps the basic time records of his own
subordinates. In these instances, . . . the timekeeping is
directly related to the function of managing the particular
department and supervising its employees. . . .
“(c) Another example of work which may be directly
and closely related to the performance of management duties
is the distribution of materials or merchandise and supplies.
. . . In [some] establishments it is not uncommon to leave
the actual distribution of materials and supplies in the
hands of the supervisor. In such cases it is exempt work
since it is directly and closely related to the managerial
responsibility of maintaining the flow of materials. In a
large retail establishment, however, where the replenishing
of stocks of merchandise on the sales floor is customarily
assigned to a nonexempt employee, the performance of such
work by the manager or buyer of the department is
nonexempt. . . .
“[¶] . . . [¶]
“(e) . . . a department manager or buyer in a retail or
service establishment who goes about the sales floor
observing the work of sales personnel under his supervision
to determine the effectiveness of their sales techniques,
16
checking on the quality of customer service being given, or
observing customer preferences and reactions to the . . .
merchandise offered, is performing work which is directly
and closely related to his managerial and supervisory
functions. His actual participation, except for supervisory
training or demonstration purposes, in such activities as
making sales to customers, replenishing stocks of
merchandise on the sales floor, removing merchandise from
fitting rooms and returning to stock or shelves, however, is
not. . . .”
Section 541.108(g) cautions that when dealing with the
kinds of work described in this section -- work that is not
inherently managerial or supervisory -- it is frequently
difficult to distinguish “managerial type” tasks from
“production operation[s].” It provides that “if work of this
kind takes up a large part of the employee’s time it would be
evidence that . . . such work is a production operation rather
than a function directly and closely related to the
supervisory or managerial duties . . . .” (§ 541.108(g).)
As for nonexempt work, the regulations define it to
include all work other than management and supervision,
and directly and closely related work. (§ 541.111(a).)
Section 541.111 explains: “Nonexempt work is easily
identifiable where, as in the usual case, it consists of work of
the same nature as that performed by the nonexempt
subordinates of the ‘executive.’ It is more difficult to identify
in cases where supervisory employees spend a significant
amount of time in activities not performed by any of their
17
subordinates and not consisting of actual supervision and
management. In such cases[,] careful analysis of the
employee’s duties with reference to the phrase ‘directly and
closely related . . .’ will usually be necessary in arriving at a
determination.” (§ 541.111(b).)
iii. Batze v. Safeway and Heyen v.
Safeway
This court has examined the exemption standards of
the federal regulations in two prior cases in the string of
Safeway overtime-wage cases, Batze and Heyen. Both cases
involved Safeway assistant managers who claimed they had
spent more than 50 percent of their time doing nonexempt
work and were therefore nonexempt employees entitled to
overtime pay.
In Heyen, the trial court, aided by an advisory jury,
found for the plaintiff. (Heyen, supra, 216 Cal.App.4th at
pp. 798-799.) On appeal, Safeway contended the trial court
failed to account for time the plaintiff had spent multi-
tasking -- simultaneously performing exempt and nonexempt
work -- and that all such time should be classified as exempt.
(Id. at p. 799.) We rejected these contentions, explaining
that “the regulations do not recognize ‘hybrid’ activities.”
(Id. at p. 822.) We held that the trier of fact must separately
classify each task as either exempt or nonexempt (ibid.), and
where employees engage in concurrent performance of
exempt and nonexempt work, categorization of that time will
depend on their purpose in undertaking the activity (id. at
18
pp. 825-826 [approving instruction that jury must categorize
time spent on concurrent performance of exempt and
nonexempt work according to employee’s purpose]). In so
doing, we reviewed and discussed the standards set forth in
the federal regulations, and identified several general
principles. (Id. at pp. 819-821.)
Among other observations regarding the “work directly
and closely related” category, we stated: “identical tasks
may be ‘exempt’ or ‘nonexempt’ based on the purpose they
serve within the organization or department. Understand-
ing the manager’s purpose in engaging in such tasks, or a
task’s role in the work of the organization, is critical to the
task’s proper categorization. A task performed because it is
‘helpful in supervising the employees or contribute[s] to the
smooth functioning of the department’ is exempt, even
though the identical task performed for a different,
nonmanagerial reason would be nonexempt. (§ 541.108(a).)”
(Heyen, supra, 216 Cal.App.4th at p. 822.)
However, we also recognized that “work of the same
kind performed by a supervisor’s nonexempt employees
generally is ‘nonexempt,’ even when that work is performed
by the supervisor” and that “[i]f such work takes up a large
part of a supervisor’s time, the supervisor likely is a
‘nonexempt’ employee. (§§ 541.108(g), 541.111(b),
541.115(b).)” (Heyen, supra, 216 Cal.App.4th at p. 822.) And
we proceeded to highlight section 541.108’s teaching that in
a large retail setting, tasks such as restocking or making
sales to customers are nonexempt unless done for training or
19
demonstration purposes. (Heyen, supra, at pp. 821, 822-823,
citing § 541.108(c) & (e).)
Applying these principles to Safeway’s argument, we
concluded: “the regulations look to the supervisor’s reason
or purpose for undertaking the task[:] If a task is performed
because it is ‘helpful in supervising the employees or
contribute[s] to the smooth functioning of the department for
which [the supervisors] are responsible’ (§ 541.108(a), (c)),
the work is exempt; if not, it is nonexempt.” (Heyen, supra,
216 Cal.App.4th at p. 826, italics omitted.)
We reviewed these principles again in Batze. There,
the trial court ruled largely in Safeway’s favor following a
bench trial, finding that the plaintiffs, former Safeway First
and Second Assistant Managers, had engaged in exempt
managerial work for more than 50 percent of their time.
(Batze, supra, 10 Cal.App.5th at p. 444.) On appeal, we
affirmed, rejecting the plaintiffs’ challenges to the sufficiency
of the evidence to support the trial court’s findings. (Id. at
p. 445.) In doing so, we repeated Heyen’s statements that
“‘[i]dentical tasks may be “exempt” or “nonexempt” based on
the purpose they serve,’” that “‘[u]nderstanding the
manager’s purpose . . . or a task’s role in the work of the
organization, is critical to the task’s proper categorization,’”
and that “‘[a] task performed because it is “helpful in
supervising the employees or contribute[s] to the smooth
functioning of the department” is exempt, even though the
identical task performed for a different, nonmanagerial
reason would be “nonexempt.” [Citation.]’” (Batze, supra, at
20
p. 474, quoting Heyen, supra, 216 Cal.App.4th at pp. 822-
823.) But we also noted the regulations’ admonishment,
recognized in Heyen, that in large retail settings, restocking
or making sales to customers is nonexempt unless done for
training or demonstration purposes. (Batze, at p. 473,
quoting Heyen, at pp. 820-821.)
Based on these principles, we rejected the plaintiffs’
contention that the trial court had erred in classifying
certain tasks as exempt. (Batze, supra, 10 Cal.App.5th at
pp. 480-481.) As relevant here, the plaintiffs contested the
categorization of the following tasks: (1) scanning “out-of-
stocks,” which involved “walk[ing] the aisles to see whether
the store was low on any product” and “scan[ning] bar codes
to trigger the warehouse to send more product” (id. at
pp. 447, 480); and (2) managing the “front-end,” which the
plaintiffs alleged consisted mostly of “checking, bagging and
performing other routine services for customers” (id. at
p. 481).
As for scanning out-of-stocks, we acknowledged this
task could be done by hourly employees. (Batze, supra, 10
Cal.App.5th at p. 480.) However, citing the “work directly
and closely related” category and Heyen’s discussion of the
need to examine a task’s purpose, we concluded the trial
court was entitled to find that “[w]hen performed
occasionally by an [assistant manager], . . . scanning out-of-
stocks was exempt because it assisted the [assistant
manager] to fulfill his or her managerial responsibility for
determining when and where out-of-stocks occur and
21
minimizing them.” (Batze, supra, at pp. 480-481, citing
Heyen, supra, 216 Cal.App.4th at p. 822.) In other words,
while both managers and their subordinates could engage in
the seemingly identical work of scanning out-of-stocks, the
managers’ periodic performance of this task served a
different function that was “directly and closely related” to
the management and supervision of their stores. (See ibid.)
In contrast, in rejecting the plaintiffs’ argument that
time they had spent at the front-end should have been
classified as nonexempt, we concluded the evidence showed
assistant managers “were put at the front to improve
customer service by observing the checkers . . . to determine
whether they were working efficiently and providing
satisfactory customer service”; they were “to observe and
manage, not to check.” (Batze, supra, 10 Cal.App.5th at
p. 481.) With these principles in mind, we consider
appellant’s claims of instructional error.
2. Analysis
Appellant challenges the trial court’s jury instructions
about the categorization of appellant’s work, complaining
about both instructions the court gave and instructions he
claims the court refused to give. We review claims of
instructional error de novo. (Sander/Moses Productions,
Inc. v. NBC Studios, Inc. (2006) 142 Cal.App.4th 1086,
1094.) “‘In considering a claim of instructional error we
must first ascertain what the relevant law provides, and
then determine what meaning the instruction given
22
conveys.’” (Bay Guardian Co. v. New Times Media LLC
(2010) 187 Cal.App.4th 438, 462.) “‘‘‘[T]he correctness of jury
instructions is to be determined from the entire charge of the
court, not from a consideration of parts of an instruction or
from a particular instruction.”’” (Ibid.) Even when an
instruction, or the failure to give an instruction, was
erroneous, we generally will not reverse the judgment unless
there is a reasonable probability the appealing party would
have obtained a better result absent the error.
(Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1388
(Baumgardner).)
i. The Trial Court’s Purpose
Instructions
Appellant challenges the trial court’s jury instructions
on the “work directly and closely related” category, which
directed the jury to consider his purpose in performing any
given task. He argues it was error to instruct the jury in
Instruction No. 31 that “[a] task performed because it is
helpful in supervising employees in the store or because it
contributes to the smooth functioning of the store or any
subdivision of the store is exempt . . . .” He also contests
similar language in Instruction No. 33, which stated that
“[u]nderstanding the manager’s purpose . . . or a task’s role
in supervising employees in the store and/or contributing to
the smooth operations of the store . . . is critical to the task’s
proper categorization . . . .” He claims this language in the
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instructions conflicted with the regulations and erased any
distinction between exempt and nonexempt tasks.
As noted, the trial court took the contested language
from our opinions in Batze and Heyen. The court
commendably sought to instruct the jury in accordance with
the appellate courts’ most recent pronouncements on the
exemption’s controlling standards. However, without the
surrounding context of the regulations and the governing
principles we acknowledged in Heyen and Batze, the
language of the instructions may be confusing to a jury.
Initially, it is important to recognize the proper role of
the purpose inquiry. The consideration of a manager’s
purpose in performing a particular task is intended to
capture the narrow category of work that is not inherently
managerial but is “directly and closely related” to
management and the supervision of employees.
(§ 541.108(a).) Under Heyen, supra, 216 Cal.App.4th at
pages 825-826, this category may also include certain time
spent concurrently performing exempt and nonexempt work.
As the regulations acknowledge, both exempt and
nonexempt work generally may be easily identified without
resort to the “work directly and closely related” category.
(See § 541.102(a) [“In the vast majority of cases[,] the bona
fide executive employee performs managerial and
supervisory functions which are easily recognized as within
the scope of the exemption”]; § 541.111(b) [“Nonexempt work
is easily identifiable where, as in the usual case, it consists
of work of the same nature as that performed by the
24
nonexempt subordinates of the ‘executive’”].) This category
is irrelevant, and the purpose inquiry of no utility, in a
factual dispute regarding the activities in which the
manager engaged. Thus, a trial court need not instruct the
jury to consider the manager’s purpose unless the employer’s
defense theory invokes the “work directly and closely
related” category and substantial evidence supports its
application. (See Joyce v. Simi Valley Unified School
District (2003) 110 Cal.App.4th 292, 303 [“An instruction
correct in the abstract, may not be given where it is not
supported by the evidence”]; Harris v. Oaks Shopping Center
(1999) 70 Cal.App.4th 206, 209 [“Irrelevant . . . instructions
need not be given”].)
When an instruction on the “work directly and closely
related” category is appropriate, the court should not
instruct that any task is exempt if the manager undertakes
it because it “contributes to the smooth functioning” of the
store. A manager arguably intends to facilitate the smooth
functioning of the store in performing any task otherwise
done by hourly employees, be it mopping floors or returning
shopping carts. Neither the regulations nor our precedents
construing them hold that a factfinder may find any such
task exempt simply because it aids the store’s operations.
Under the regulations, “work of the same kind
performed by a supervisor’s nonexempt employees generally
is ‘nonexempt,’ even when that work is performed by the
supervisor.” (Heyen, supra, 216 Cal.App.4th at p. 822.) For
work to be “directly and closely related” to managerial work,
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it must be “different from the work performed by
subordinates” (§ 541.108(a)); while it may be seemingly
identical to tasks performed by the manager’s subordinates,
it must serve a different function, directly and closely related
to the management and supervision of the store (see Batze,
supra, 10 Cal.App.5th at p. 480). In a large retail setting,
tasks such as stocking shelves or making sales to customers
will not be included in this category unless done for training
or demonstration purposes. (See Heyen, supra, at pp. 821,
822-823, quoting § 541.108(c) & (e); Batze, supra, at p. 473.)
And if work that is not inherently managerial “takes up a
large part of the employee’s time,” it is evidence that this
work “is a production operation rather than a function
directly and closely related to the supervisory or managerial
duties . . . .” (§ 541.108(g); accord, Heyen, at p. 822.)
Trial courts instructing on the “work directly and
closely related” category should moor it to its intended scope
under the regulations by including these limiting principles,
as relevant. Without these applicable principles, the
description of the “work directly and closely related”
category in Instructions Nos. 31 and 33 may be overbroad.7
7 Relying on section 541.108(b)’s discussion of the timekeeping
example, appellant claims that the “work directly and closely related”
category includes only certain tasks performed in “unusual
circumstance[s] or [in] smaller or differently configured organizations,”
and is not applicable to Safeway’s retail operations. While some
examples of work in this category may be more typical in certain
settings, section 541.108 does not limit the category to any particular
setting. Indeed, our decision in Batze establishes this category could
(Fn. is continued on the next page.)
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In this case, however, we perceive no potential
prejudice from the instruction. “In assessing prejudice from
an erroneous instruction, we consider, insofar as relevant,
‘(1) the degree of conflict in the evidence on critical issues
. . . ; (2) whether respondent’s argument to the jury may
have contributed to the instruction’s misleading effect . . . ;
(3) whether the jury requested a rereading of the erroneous
instruction . . . or of related evidence . . . ; (4) the closeness of
the jury’s verdict . . . ; and (5) the effect of other instructions
in remedying the error . . . .” (Soule v. General Motors Corp.
(1994) 8 Cal.4th 548, 570-571 (Soule).)
The principal dispute at trial concerned how appellant
spent the majority of his time, not the proper categorization
of the tasks he performed. Appellant presented testimony
that he was essentially a glorified stocker, spending most of
his time stocking shelves, with no suggestion that he had
any managerial purpose in doing so. Respondent, on the
other hand, presented testimony that appellant spent the
bulk of his time doing inherently managerial work, which
was undisputedly exempt: supervising, training, and
disciplining employees, preparing schedules using projected
sales, monitoring store conditions, responding to problems,
and filling out financial reports.
apply in standard large-retail operations. (See, Batze, supra, 10
Cal.App.5th at p. 480 [trial court permissibly found scanning out-of-
stocks at Safeway stores was directly and closely related to exempt
work].)
27
Respondent’s closing argument similarly focused on
undisputedly exempt work. Counsel argued that with all of
appellant’s inherently managerial responsibilities, he would
not have had time to stock or do other menial work all day,
as he claimed. At no point did respondent’s counsel suggest
stocking was exempt work. Moreover, counsel made only
two brief references to the regulations’ purpose inquiry. In
discussing appellant’s store walks, counsel contended this
work was “the essential task of managing,” claiming that
although it might involve moving product on the shelf, the
task’s purpose was to assess store conditions. In so arguing,
counsel referenced the instruction that identical tasks may
be exempt or nonexempt depending on their purpose. In his
rebuttal, counsel referenced the purpose inquiry a second
time in asserting that appellant’s work preparing a back
room for the show-and-tell was exempt because he
performed it for training or demonstration purposes. Both
these references were unobjectionable, and at no point did
counsel argue these tasks were exempt merely because they
contributed to the smooth functioning of the store.
Appellant’s counsel, in contrast, urged the jury to find
credible the testimony of appellant and his witnesses that he
spent more than 50 percent of his time stocking. The jury
was thus presented with two starkly contrasting factual
scenarios -- one in which appellant primarily managed and
supervised, and the other in which he stocked shelves and
checked out customers.
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The jury sent no questions regarding the jury
instructions and deliberated less than two hours before
returning a verdict, indicating its members had little trouble
reaching their respective conclusions in what was largely a
credibility contest. While the verdict was non-unanimous,
the record suggests the disagreement revolved around the
parties’ factual claims, with 10 jurors accepting respondent’s
account, and two accepting appellant’s.
Appellant emphasizes the trial court’s instructions
twice referenced the broad language about a task’s
helpfulness in supervising employees or its contribution to
the smooth functioning of the store. But absent a relevant
body of evidence or related argument by counsel, the jury
had no meaningful opportunity to apply this language in an
objectionable way. Given that the challenged instructions
were largely irrelevant to the disputed issues at trial, that
respondent’s argument did not focus on it, and that the jury
reached its verdict with relative ease, we find no reasonable
probability that appellant would have obtained a more
favorable result without the contested language in the
instructions. (See Soule, supra, 8 Cal.4th at pp. 570-571;
Baumgardner, supra, 144 Cal.App.4th at p. 1388.)
ii. Claims of Refused Instructions
Appellant argues the trial court erred in failing to
instruct the jury on three principles identified in Heyen
supra, 216 Cal.App.4th 795: (1) that “work of the same kind
performed by a supervisor’s non-exempt employees generally
29
is ‘nonexempt,’ even when that work is performed by the
supervisor” (id. at p. 822); (2) that in a large retail setting,
tasks such as restocking or making sales to customers are
nonexempt unless done for training or demonstration
purposes (id. at pp. 821, 822-823); and (3) that “the
regulations do not recognize ‘hybrid’ activities,” but rather,
that the regulations require each discrete task be separately
classified as either exempt or nonexempt (id. at p. 822).
As to the first two principles, we observe initially that
appellant did not request related instructions, and he has
therefore forfeited any contention about them. (See Hurley
v. Department of Parks & Recreation (2018) 20 Cal.App.5th
634, 655 [party may not challenge trial court’s failure to give
particular instruction when party did not request such
instruction].) While he asserts the trial court refused
relevant instructions, the proposed instructions he cites do
not deal with these concepts, but instead involve a
presumption of nonexemption, the elements of the
exemption, and an admonition that time spent “thinking
managerial thoughts” while performing nonexempt tasks
must be classified as nonexempt.8 Moreover, while
8 Another instruction appellant proposed, but does not cite on
appeal, stated that various tasks, including stocking and manning a
cash register, were nonexempt, without mentioning any possible
exception. This requested instruction was incorrect -- as appellant
recognizes, there are circumstances under which such work may be
deemed exempt. Thus, the trial court properly refused to give the
requested instruction. (See Bullock v. Philip Morris USA, Inc. (2008)
159 Cal.App.4th 655, 684-685 [“A court may refuse a proposed
(Fn. is continued on the next page.)
30
instructions on these principles would have helped
contextualize the trial court’s purpose instructions, their
omission was not prejudicial for the reasons discussed above.
As for the third principle, relating to hybrid activities,
appellant concedes the trial court properly instructed the
jury, in accordance with Heyen, that “each task must be
separately classified as either exempt or non-exempt.” He
complains, however, that the court never told the jury the
tasks could not be performed “at the same time,” and
suggests that concurrent performance of exempt and
nonexempt activities must be considered nonexempt.
Appellant cites no authority supporting such an instruction.
To the contrary, in Heyen, this court held the factfinder must
categorize concurrent performance of exempt and nonexempt
work based on the manager’s purpose in undertaking the
activity. (Heyen, supra, 216 Cal.App.4th at p. 826.) We did
not hold that such time must always be considered
nonexempt. Accordingly, the trial court did not err in
refusing appellant’s requested instruction.
B. Banks’s Expert Testimony
Appellant claims the trial court should have excluded
Banks’s expert testimony as speculative. “Trial judges have
a substantial gatekeeping responsibility when it comes to
expert testimony. [Citation.] In particular, courts are to
instruction that incorrectly states the law . . . and ordinarily has no
duty to modify a proposed instruction”].)
31
ensure that opinions are not speculative, based on
unconventional matters or grounded in unsupported
reasoning. [Citation.] We review a court’s execution of these
gatekeeping duties for an abuse of discretion. [Citation.]”
(People ex rel. Dept. of Transportation v. Dry Canyon
Enterprises, LLC (2012) 211 Cal.App.4th 486, 493.)
Appellant argues Banks’s opinion testimony was
speculative in that she relied on an observational study of
other FAMs, at other stores, after appellant had left
Safeway, to “make predictions” about how he had spent his
worktime. He asserts that no sound methodology supported
Banks’s testimony and instead, that she merely assumed his
typical work experience would be similar to that of FAMs
observed in her study.
Respondent counters, and we agree, that appellant’s
argument is based on a false premise. Contrary to
appellant’s claims, Banks offered no opinion on appellant’s
actual work experience or his typical workday. Indeed,
during her cross-examination, she stated she could not
“speak to what [appellant] did in his job,” and on redirect
confirmed she was not attempting to “predict . . . what
[appellant] did on any particular day.” Instead, Banks
opined only that respondent’s expectation that its FAMs
would spend more than half their time on exempt work was
realistic. As explained, Wage Order No. 7-2001, applicable
to respondent, requires the factfinder to consider “the
employer’s realistic expectations and the realistic
requirements of the job” in determining whether the
32
employee “primarily engaged in duties which meet the test
of the exemption.” (Cal. Code Regs., tit. 8, § 11070, subd.
(1)(A)(1)(e).) Banks’s testimony was clearly relevant to this
consideration.
Respondent’s closing argument also cited Banks’s
study and testimony in the context of realistic expectations.
Referencing the observational study, respondent’s counsel
explained its import to the jury: “Remember we concede that
[appellant] isn’t on that study. . . . But is it not realistic . . .
to expect that’s how they manage stores?” At no time did
counsel suggest either the observational study or Banks’s
testimony established how appellant had actually spent his
worktime.
Appellant does not contend that Banks’s opinion of the
realistic nature of respondent’s expectations was speculative.
Accordingly, the trial court did not err in admitting the
contested evidence.9
9 For the first time in his reply brief, appellant contends Banks’s
report and testimony constituted inadmissible hearsay under People v.
Sanchez (2016) 63 Cal.4th 665. He has forfeited any contention in this
regard by failing to raise it in his opening brief. (See Browne v. County
of Tehama (2013) 213 Cal.App.4th 704, 726 [failure to raise argument
in opening brief constitutes forfeiture].)
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DISPOSITION
The judgment is affirmed. Respondent shall recover its
costs on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
34