Domingo v. Prime Healthcare Paradise Valley CA4/1 ( 2023 )

Filed 10/6/23 Domingo v. Prime Healthcare Paradise Valley CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ARIEL DOMINGO, D079848
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-23576-CU-
OE-CTL)
PRIME HEALTHCARE PARADISE
VALLEY, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy Taylor, Judge. Affirmed in part, and reversed in part.
Sullivan & Yaeckel Law Group, APC, William B. Sullivan, Eric K.
Yaeckel and Ryan T. Kuhn, for Plaintiff and Appellant.
Seyfarth Shaw LLP, Geoffrey C. Westbrook and Phillip J. Ebsworth,
Justin T. Curley and Kiran Aftab Seldon, for Defendant and Respondent.
INTRODUCTION
Appellant Ariel Domingo filed a representative action under the
Private Attorney General Act (PAGA) (Lab. Code,1 § 2698 et seq.) against his
1 Further statutory references are to the Labor Code unless noted. Rule
references are to the California Rules of Court.
former employer, Prime Healthcare Paradise Valley, LLC (Prime). He
alleged Prime violated the Labor Code and/or applicable Industrial Welfare
Commission (IWC) wage order with respect to meal and rest periods, expense
reimbursement, compensation (on various grounds), wage statements, and
final wages. During discovery, a referee appointed by the trial court
recommended denial of Domingo’s motion to compel time and wage records
for all nonexempt employees on timeliness and other grounds. The trial court
adopted the recommendation. The case proceeded to a bench trial, and the
court granted Prime’s motion for judgment in a detailed statement of
decision. The court entered judgment for Prime.
Domingo appeals, contending the trial court erred by denying his
motion to compel discovery and entering judgment for Prime on each claimed
violation. We conclude Domingo does not demonstrate prejudicial error from
the discovery ruling. As for the claimed violations, we determine Domingo
establishes reversible error as to Prime’s rounding policy based on the record
before us, and reverse the judgment to the extent it rests on that policy. We
further determine Domingo demonstrates no other lack of substantial
evidence or legal error, and affirm the remainder of the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Parties and Underlying Events
Prime operates Paradise Valley Hospital (the Hospital). During the
relevant time period (March 2018 through May 2021), 1,951 nonexempt
employees worked for Prime. The employee handbook described Hospital
policies on meal and rest periods, timekeeping, and other matters.2 Prime
2 Four substantially similar versions of the handbook were in effect
during the relevant time period.
2
used a “JBDev timekeeping system,” through which employees clocked in and
out for shifts and meal periods, and reviewed an end-of shift attestation
(described post).
Domingo worked at the Hospital as a cook from 2003 until January
2019, when his employment was terminated.
Cynthia Quinonez was his supervisor, and her employment also was
terminated in January 2019. She was the Food Services Manager serving as
Executive Chef, and managed the kitchen team to “produc[e] all the meals for
the hospital patients, café, and catering.” There were about 40 people in the
department, and she supervised everyone besides the dieticians. This
included Norman Granger, a food services worker.
B. Litigation and Discovery
In February 2019, Domingo sent a notice of wage and hour violations to
Prime and the California Labor and Workforce Development Agency (LWDA).
He filed his PAGA action a few months later, and sent an amended LWDA
notice in October 2019. In his operative second amended complaint, filed in
February 2020, Domingo asserted six violations: meal and rest period,
minimum wage, overtime, wage statement, failure to reimburse, and failure
to pay wages upon separation.
The case proceeded to discovery, and the trial court appointed a referee.
The referee recommended denial of Domingo’s motion to compel production of
all nonexempt employee time records and wage statements on grounds
including timeliness, which the court adopted. In briefing before the referee,
Domingo had indicated that if Prime supplied certain information, he did not
need all of the records. Prime subsequently provided similar information in
response to special interrogatories.
3
In February 2021, both parties moved for summary judgment and/or
adjudication. In June 2021, the trial court denied Domingo’s motion, and
most of Prime’s motion.
C. Trial, Motion for Judgment, and Statement of Decision
The case proceeded to a three-day bench trial in August 2021. Domingo
called six witnesses: himself; Quinonez; Granger; Filifili Amiatu, Prime’s
Corporate Payroll Director; Durand Hartin, Prime’s Regional Security
Manager; and his expert, Bennett Berger. Amiatu “support[ed] the payroll
staff” with “payroll processing and pay practices.” Hartin managed security
employees, which included enforcing rules. Berger’s consulting firm
“conduct[ed] expert analysis” for employment class actions. Domingo also
entered a number of exhibits into evidence, including the employee handbook,
a JBDev document describing Prime’s rounding and grace period policy, and
time records and wage statements for Domingo and Granger.
After Domingo rested, Prime moved for judgment under Code of Civil
Procedure section 631.8, which Domingo opposed. The trial court issued a
tentative ruling, granting Prime’s motion. Domingo filed a request for
statement of decision, and identified 15 purportedly omitted “principal
controverted issues.” The court’s proposed statement of decision stated the
requests were “essentially . . . special interrogatories” it did not have to
address, but it still added responses to certain concerns. Domingo filed
objections, contending the court failed to resolve his stated issues. The court
overruled the objections, and adopted the proposed statement as its
Statement of Decision.
In the Statement of Decision, the trial court first described the
procedural history and applicable law. The court then discussed the evidence
in detail, and made credibility findings. The court found Amiatu was “very
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credible”; Hartin was “solid, candid and credible”; and Quinonez was “very
thorough and credible despite the fact she arguably had an axe to grind
against defendant for having terminated her involuntarily.” The court also
commented on specific testimony, including, for example, finding Amiatu and
Quinonez more credible on meal and rest break practices than Domingo and
Granger.
The trial court then set forth its rulings (described further post): (i)
Prime’s meal period timekeeping system (which did not permit clocking back
in early) was lawful, as it provided ways to record short meals and was
intended to promote compliant meal periods; (ii) Domingo did not otherwise
prove meal period or rest break violations; (iii) he did not establish unpaid
reimbursement or compensation based on out-of-work communications; (iv)
Prime’s rounding and grace period policy was neutral, facially and in
practice; (v) Prime properly calculated the regular rate, including as to shift
differentials; (vi) time spent complying with rules for free parking and badge
access was not compensable; (vii) listing “hours worked” as a decimal in wage
statements was permissible; and (viii) Domingo did not prove Prime failed to
timely pay his final wages. The court also found he did not establish the
claims were representative.
The trial court entered judgment for Prime, and Domingo appealed.
We requested and received supplemental briefing on issues relating to
Prime’s rounding policy.
DISCUSSION
Domingo contends the trial court erred by denying his motion to compel
discovery. He also challenges the court’s determinations as to each alleged
violation. We conclude he establishes reversible error only as to Prime’s
rounding policy.
5
A. Overview of Applicable Law
1. California Wage and Hour Law and PAGA
In California, “wage and hour claims are today governed by two
complementary and occasionally overlapping sources of authority: the
provisions of the Labor Code, enacted by the Legislature, and a series of 18
wage orders, adopted by the IWC.” (Donohue v. AMN Services, LLC (2021) 11
Cal.5th 58, 61 (Donohue).) Wage Order 5 “applies to persons employed in the
public housekeeping industry,” which includes hospitals. (Mendiola v. CPS
Security Solutions, Inc. (2015) 60 Cal.4th 833, 839, fn. 8 (Mendiola); Cal.
Code Regs., tit. 8, § 11050, subds. 1, 2(P)(4).)3
PAGA “authorizes an employee to bring an action for civil penalties on
behalf of the state against his or her employer for Labor Code violations
committed against the employee and fellow employees, with most of the
proceeds of that litigation going to the state.” (Iskanian v. CLS Transp. Los
Angeles, LLC (2014) 59 Cal.4th 348, 360, abrogated on another ground by
Viking River Cruises, Inc. v. Moriana (2022) ___ U.S. ___, 142 S.Ct. 1906,
1924.) Before filing suit, the employee “must provide notice to the employer
and the [LWDA] ‘of the specific provisions of [the Labor Code] alleged to have
been violated, including the facts and theories to support the alleged
3 The parties agree Wage Order 5 applies here, but disagree as to its
application to certain claims. Specifically, Prime contends Wage Order 5
applies the FLSA definition for “hours worked” to the health care industry,
and precludes liability based on out-of-work communications, rounding, and
parking/badge access. Domingo disagrees. Because we affirm on
communications and parking/badge access, we need not and do not address
Wage Order 5 in those contexts. We also need not resolve the issue in the
rounding context, as we discuss post.
6
violation.’ ” (Williams v. Superior Court (2017) 3 Cal.5th 531, 545
(Williams).)
2. Code of Civil Procedure Section 631.8
Under Code of Civil Procedure section 631.8, “[a]fter a party has
completed his presentation of evidence in a trial by the court, the other
party . . . may move for a judgment.” (Id. at subd. (a).)
The purpose of this section “ ‘ “is ‘to enable the court, when it finds at
the completion of plaintiff’s case that the evidence does not justify requiring
the defense to produce evidence, to weigh evidence and make findings of fact.’
[Citation.] Under the statute, a court acting as trier of fact may enter
judgment in favor of the defendant if the court concludes that the plaintiff
failed to sustain its burden of proof. [Citation.] In making the ruling, the
trial court assesses witness credibility and resolves conflicts in the
evidence.” ’ [Citation.] ‘ “Because the trial court evaluates the evidence as a
trier of fact, it may refuse to believe some witnesses while crediting the
testimony of others.” ’ ” (Orange County Water Dist. v. MAG Aerospace
Industries, Inc. (2017) 12 Cal.App.5th 229, 239 (MAG Aerospace).)
3. Standard of Review
The standard of review for a judgment under Code of Civil Procedure
section 631.8 is “ ‘ “the same as if the court had rendered judgment after a
completed trial—that is, in reviewing the questions of fact decided by the
trial court, the substantial evidence rule applies.” ’ ” (MAG Aerospace, supra,
12 Cal.App.5th at p. 239.) “ ‘ “We review legal issues . . . under a de novo or
independent standard.” ’ ” (Id. at pp. 239–240.)
In applying substantial evidence review, the “power of the reviewing
court begins and ends with the determination as to whether, on the whole
record, there is substantial evidence, contradicted or uncontradicted, that will
7
support the trial court’s determination.” (San Diego Metro. Transit Dev. Bd.
v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528 (SD Metro); ibid.[appellate court “views the evidence in the light most favorable to the
respondents [citation], resolves all evidentiary conflicts in favor of the
prevailing party and indulges all reasonable inferences possible to uphold the
trial court’s findings”]; see Ford v. Miller Meat Co. (1994) 28 Cal.App.4th
1196, 1200 (Ford) [we “do not reweigh the evidence or reassess issues of
credibility”].)
We also “must infer, following a bench trial, that the trial court
impliedly made every factual finding necessary to support its decision,”
unless a party timely files objections identifying omissions or ambiguities.
(Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48.) We
review “implied factual findings under the substantial evidence standard.”
(Id. at pp. 59–60.)
Domingo contends we should apply de novo review because the trial
court stated there were “unresolved issues of law” (citing a comment at the
motion in limine hearing), and “[m]ost of the facts . . . were undisputed.” We
disagree. To the extent this appeal presents issues of law, we do review them
de novo. (MAG Aerospace, supra, 12 Cal.App.5th at pp. 239–240.) But
Domingo’s assertion that most facts were undisputed appears to rest on his
substantially one-sided description of the record in his opening brief. The
record reflects multiple factual disputes, and the parties disagree on the
inferences to be drawn from it. (See Bower v. Inter-Con Security Systems,
8
Inc. (2014) 232 Cal.App.4th 1035, 1043 [“Independent review is appropriate
only when the facts permit just one reasonable inference.”].)4
4. Appellate Briefing Requirements
An appellant’s opening brief must “fairly set forth all the significant
facts, not just those beneficial to the appellant.” (In re S.C. (2006) 138
Cal.App.4th 396, 402; see rule 8.204(a)(2)(C) [brief must “[p]rovide a
summary of the significant facts”].) An appellant who challenges the
sufficiency of the evidence has to “ ‘set forth in their brief all the material
evidence on the point and not merely their own evidence,’ ” or the “ ‘error . . .
is deemed to be waived.’ ” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d
875, 881 (Foreman).)
An appellant also must raise all points in the opening brief, or seek
leave for supplemental briefing. (Raceway Ford Cases (2016) 2 Cal.5th 161,
178 (Raceway) [“We generally do not consider arguments raised for the first
time in a reply brief.”]; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–
766 [refusing to consider new issues on reply; counsel could have “sought
permission to file a supplemental opening brief”]; Rincon EV Realty LLC v.
CP III Rincon Towers, Inc. (2019) 43 Cal.App.5th 988, 1002 (Rincon) [“If
plaintiffs wished to add an argument based on [a case decided after their
4 Domingo also argued in his opening brief that “on appeal from a
defense motion for judgment, the truth of plaintiff’s evidence must be
assumed,” citing Franco W. Oil Co. v. Fariss (1968) 259 Cal.App.2d 325, 328–
329. Franco was distinguishing a motion for nonsuit in a jury trial. On
reply, he then cited Greening v. General Air-Conditioning Corp. (1965) 233
Cal.App.2d 545, 555 to argue that, in review of a motion for judgment,
evidence can be discounted but “not . . . ignore[d].” That part of Greening
addressed how to apply a res ipsa loquitur inference to a negligence claim in
the motion for judgment context, and is inapposite. (Cf. ibid. [affirming
judgment on breach of contract and warranty claims].)
9
opening brief], they should have sought leave to file a supplemental opening
brief . . . , rather than saving the issue for reply”].)
Finally, briefing must be supported by reasoned argument, authority,
and accurate citation to the record. (Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784–785 (Badie) [“When an appellant fails to raise a point,
or asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived.”]; WFG National Title Ins. Co. v.
Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“[W]e may decide
that the appellant has forfeited a point urged on appeal when it is not
supported by accurate citations to the record.”].)
Here, Domingo’s opening brief contains a largely one-sided description
of the record, as noted, and his reply brief has multiple new arguments. Both
parties filed new authority letters containing argument, prior to our request
for supplemental briefing, which was improper as well. (Rule 8.254(b) [“No
argument or other discussion of the authority is permitted in the letter.”].)
Domingo’s reply brief has two further issues. He contends Prime concedes
certain points by not addressing them. But a “respondent’s failure to address
an issue raised in the opening brief” (much less in a new authority letter) is
“not a concession.” (Golden Door Properties, LLC v. County of San Diego
(2020) 50 Cal.App.5th 467, 557, fn. 48.) He also cites an unreported decision.
(People v. Gray (2014) 229 Cal.App.4th 285, 292, fn. 15 [“It is improper to cite
or rely upon unpublished opinions.”]; rule 8.1115(a).)
With these considerations in mind, we turn to Domingo’s arguments.
B. Domingo Does Not Establish Prejudicial Error As To Discovery
Domingo argues the trial court erred by adopting the referee’s
recommended denial of his motion to compel time and wage records. He does
not establish any prejudicial abuse of discretion.
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1. Additional Facts
In May 2019, Domingo served document requests, including for time
records and wage statements for all non-exempt employees. Prime objected.
After initial deposition notices, Domingo served a second amended “Personal
Most Knowledgeable” (PMK) notice, with document requests that included
time and wage records. Prime again objected. Domingo served subsequent
amended PMK deposition notices, without document requests.
In December 2019, Domingo sought ex parte relief to compel a Belaire-
West notice.5 In its minute order, the trial court “set[] a Motion to Compel re
Belaire-West” to be heard in January 2020. The next day, Domingo filed a
“Motion To Compel Attendance Of [Prime’s PMK] And Document Production;
Motion To Compel Bel-Aire West Notice.” Prime opposed, and Domingo filed
a reply. The court declined to rule on the motion, and appointed Judge
Herbert Hoffman (retired) as discovery referee.
The referee held multiple conferences during the spring of 2020. The
Belaire-West process was completed by February 2021. Prime represents,
and Domingo does not dispute, that Domingo received contact information for
1,504 employees.
In April 2021, the referee entered his fifth report and recommendation,
the one at issue here. He stated, “[Domingo] filed a motion to compel
requesting that [Prime] be compelled to produce six categories of documents
as well as . . . the depositions of two non-party witnesses. [Prime] opposed
5 “In wage and hour class actions, a Belaire-West notice is sent to
putative class members to inform them that their contact information will be
disclosed unless they timely object to such disclosure in writing.” (Garcia v.
Haralambos Beverage Co. (2021) 59 Cal.App.5th 534, 539, fn. 3, citing
Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554.)
11
this motion. In [his] reply brief, [Domingo] changed [his] request to demand
four categories of verified statements of information . . . .” The referee does
not include filing dates, but appears to mean a later-filed motion to compel,
not the one from December 2019. The record does not contain a later motion
to compel, but does have an April 2021 reply brief matching the referee’s
description.6 There, Domingo indicated that if Prime provided certain
information, he “would agree that he does not require all of the Time Records
and Wage Statements at issue” (while maintaining he remained entitled to
the records).7
The referee then recommended denial of the motion, stating Domingo
did not move within the statutory deadline and did not address timeliness in
his motion or reply brief. He indicated that even if the motion were timely,
he would deny it, because Domingo did not make a prima facie showing of
violations and there were inadequate meet and confer efforts. He also stated,
6 The record also has emails discussing a briefing schedule in February
and March 2021. Prime represents Domingo filed the later motion to compel
on March 29, 2021.
7 He requested: “1. Regular Rate / Overtime Issue [¶] a. . . . number
of Pay Periods in which Prime employees (1) received a ‘shift differential’
and (2) worked Overtime . . . ; [¶] b. . . . number of Pay Periods in which
Prime employees worked . . . for a time period of 7 hours and 48 minutes
or longer. . .; [¶] c. . . . number of Pay Periods in which Prime employees
worked . . . for a time period of 8 hours or longer”; “2. Meal Period Issue
[¶] a. . . . number of Pay Periods in which Prime employees experienced at
least one Meal Period . . . ; [¶] b. . . . number of Pay Periods in which Prime
employees were subject to the Meal Period ‘Lockout System’ ”; “3. Rest Period
Issues [¶] . . . number of Pay Periods in which Prime employees experienced
at least one Rest Period; and “4. Wage Statement Issues [¶] the. . . . exact
number of Pay Periods in which Prime employees received an Itemized Wage
Statement . . . .” (Some emphasis omitted.)
12
“Based upon all of the briefing, it is unclear what [Domingo] was actually
asking for.”
Domingo objected to the recommendation. In a declaration filed with
its response, Prime’s counsel noted they previously proposed he “could obtain
the information he seeks via interrogatories . . . .”
In May 2021, the trial court adopted the referee’s recommendation. It
noted Domingo remained “free to propound the interrogatories suggested
in . . . [Prime’s counsel’s] most recent declaration.”
Domingo propounded special interrogatories for similar information as
identified in his April 2021 reply brief. In June 2021, Prime served
responses. It indicated that during the relevant time, there were “14,270 pay
periods” in which employees “received a shift differential and overtime”;
“66,683 pay periods in which [they] worked at least 7 hours and 48 minutes”;
“60,012 pay periods where [they] worked more than 8 hours”; and “70,112 pay
periods where [they] received a meal period.” Prime also indicated there
were 71,314 pay periods where “the meal period ‘lockout system’ was in
effect”; “employees received a rest period,” and they “received an itemized
wage statement.” In July 2021, payroll director Amiatu signed a declaration,
which stated there were “36,227 pay periods” in which an “employee worked
between 8 hours and 8 hours and 12 minutes and, pursuant to Prime’s grace
period practice, was paid for 8 hours worked.”
At trial, Domingo’s counsel referenced some of this pay period
information in his opening statement, and Amiatu was examined about
certain information. The interrogatory responses were identified at trial as
Exhibit 72, and Amiatu’s declaration was identified as Exhibit 91.
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2. Applicable Law
“We review the trial court’s grant or denial of a motion to compel
discovery for an abuse of discretion. [Citation.] The statutory scheme vests
trial courts with ‘ “wide discretion” ’ to allow or prohibit discovery.”
(Williams, supra, 3 Cal.5th at p. 540.) An appellant also must “ ‘show not
only that the trial court erred, but also that the error was prejudicial’; i.e., . . .
that it is reasonably probable the ultimate outcome would have been more
favorable to the [appellant] had the trial court not erred in the discovery
rulings.” (MacQuiddy v. Mercedes–Benz USA, LLC (2015) 233 Cal.App.4th
1036, 1045.)
3. Analysis
As a preliminary matter, it is not clear the record is adequate for our
review. The motion to compel at issue—the one presumably filed around
March 2021 and addressed by the referee—does not appear to be in the
record. Domingo also did not include the interrogatory responses in his
appendix; Prime added them in its respondent’s appendix. (Ballard v. Uribe
(1986) 41 Cal.3d 564, 574 [“[A] party challenging a judgment has the burden
of showing reversible error by an adequate record.”]; Wagner v. Wagner
(2008) 162 Cal.App.4th 249, 259 [appellants “had an affirmative obligation to
provide an adequate record so that we could assess whether the court abused
its discretion”].)
But even if the trial court erred in adopting the referee’s denial of
Domingo’s motion to compel, he does not establish prejudice.
Domingo conceded in his April 2021 reply brief that he did “not require
all of the Time Records and Wage Statements at issue” if Prime provided
certain information. Prime served responses with this information in June
2021, a month and a half before trial; Amiatu provided a declaration with
14
more information; and these documents and the information therein were
addressed at trial, including by Domingo’s counsel. Yet, Domingo did not
address the interrogatory responses in his opening brief here, and forfeits any
argument that he could have achieved a better result with the requested
documents than with the interrogatory responses. (Raceway, supra, 2
Cal.5th at p. 178.) On reply here, Domingo belatedly acknowledges the
interrogatory responses, but still does not offer any reasoned argument why
they were insufficient for most of the alleged violations. (Badie, supra, 67
Cal.App.4th at pp. 784–785.) The prejudice arguments he advances in his
opening brief are not persuasive.
First, Domingo argues he was “forced . . . to prove PAGA violations on a
representative basis without any discovery as to Prime’s other nonexempt
employees.” That is not accurate. Prime’s interrogatory responses provided
this kind of information, as did Amiatu’s further declaration. Further, to the
extent Domingo is essentially arguing certain Prime practices are unlawful
(e.g., how it includes shift differentials in the regular rate), he does not
explain how having actual time and wage records could have made any
difference in his case presentation.
Second, Domingo contends “contact information and relevant
employment records” for other employees are “routinely discoverable as an
essential prerequisite to effectively seeking group relief, without . . . good
cause,” citing Williams, supra, 3 Cal.5th at p. 538. Williams indicated
contact information was warranted without good cause, not document
demands. (Ibid.) Domingo did receive contact information, for over 1,500
employees. Williams did not involve a situation akin to this one, where a
plaintiff acknowledged he could rely on employer-provided information.
(Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343.)
15
Finally, Domingo argues the trial court “repeatedly lamented [his]
failure to establish his claims on a representative basis, appearing to reject
certain established violations on such grounds,” noting on reply that it was
the court that denied him representative discovery. We reject his
characterization of the court’s decision. The court noted some of the pay
period information, reflecting it considered the discovery as to other
employees that Domingo did obtain. Domingo does not provide any
explanation or examples for his claim that the court “appear[ed] to reject
certain established violations” for lack of representative proof. In any event,
he has to show he could have achieved a better result with the time and wage
records, not just that the court’s rulings were inconsistent. He fails to do so,
and does not establish reversible error.
C. Meal Periods
Domingo contends the trial court erroneously concluded he did not
establish meal period violations, in light of Prime’s meal period timekeeping
system, purported admission to violations during an event known as Hospital
Week, and payment of meal period penalties. We reject each contention.
1. Additional Facts
Prime’s meal period policy provides for a duty-free, 30-minute meal
period. Amiatu testified about the meal period timekeeping system and
related records, while Domingo, Granger, and Quinonez testified about meal
periods in practice, including during Hospital Week.
For the meal period timekeeping system, Amiatu stated that if an
employee tries to clock back in early, “an error . . . appears on the time clock
with the time indicating when their 30-minute meal break will be complete.”
She explained Prime “want[s] to make sure that employees do take their 30-
minute uninterrupted,” and there were two ways to record the time if
16
employees were called back early. First, they could “fill[] out the . . .
timekeeping authorization form, submit [it] to their manager, and [the
manager] can fix it right away.” Second, they could “wait until the end of
their shift to enter in that time.” Employees also could “always go back” and
check their time record at the time clock.
Amiatu explained that when employees “clock[] out at the end of their
shift, an attestation will appear on the screen,” and by choosing “agree,” they
attest “they took their . . . meal, their rest period, and . . . did not work any
unauthorized overtime or off the clock work.” If they chose “disagree,” a
second screen appeared, which allowed the employee to identify issues,
including “Work Load Prevented Meal Period” and “I Chose Not To Take A
Required Meal Period.”8 Attestation records for Domingo and Granger
showed each always selected “agree.” Amiatu also addressed Prime’s
payment of meal premiums (which we address post), and said an employee
who chose not to take a meal did not receive a premium, but was “paid for all
their hours worked.”
Amiatu also described the “time record audit trial,” which reflected
edits. She testified Domingo’s audit trail from March 2018 to January 2019
(i.e., the beginning of the relevant time period, through his termination)
showed he made eight edits, six involving meals. Based on this, Amiatu
understood he knew how to “manually enter his meal break,” and “edit . . . or
input his time . . . at the clock.” She said Granger made seven edits, which
showed “he knew how to submit edits for his meal period punches.”
8 There was also an option for “Took Meal Period Forgot to Swipe.”
“Workload Prevented” and “Chose Not to Take” were options for rest periods,
too.
17
Domingo testified “most of the time [they were] being called back to
work” from meal breaks to help other employees. He further testified that on
the Monday of Hospital Week in 2018, Quinonez told them “don’t take your
break.” He first said they “were told not to punch out,” but then denied
recalling if he punched out. His time records did not show a missing meal.
Domingo admitted he was trained to take a 30-minute meal period, was “not
to work off the clock,” and could refuse to work during his meal break (but
would not receive the extra hour of pay if he chose to work). As for the
attestation and time edits, Domingo remembered being told to “just click on
agree,” and when asked if he edited time punches, said he was “not in the
position” to edit his time. He did not know about practices for meal and rest
breaks in other departments (or for overtime, timekeeping, reimbursements,
or off-the-clock work).
Granger was asked by Domingo’s counsel if he always received “30
minutes uninterrupted” for his meal break. When he said yes, counsel asked
if was “ever interrupted,” and he responded “Yes, sometimes,” by Quinonez.
Granger testified Quinonez told them to work during one day of Hospital
Week, though he did not recall the day, and stated he “didn’t punch out.” He
estimated there were nine other kitchen employees working at the time. The
trial court deemed cross-examination by Prime waived, stating it did not
think Granger’s testimony “added anything” and he “was just not a creditable
witness.”
Quinonez testified Domingo never told her he was not receiving full
meal breaks, or complained he “could not record the actual end of his meal
period.” She denied she told him or any other employee to clock out but
continue working. When asked if she ever called Domingo back early from a
meal break, she said the “only time [she] can remember where . . . that might
18
have—where that did happen” was Hospital Week, when she “can remember
calling folks back.” She said “human resources was involved”; “appropriate
adjustments” were made to time cards; and employees were given “meal
penalties that they were due.” Quinonez later testified she “did call
[Domingo] back,” they gave him a meal period penalty, and she believed the
payroll system would reflect this.
The trial court summarized the foregoing testimony. It did not find
compelling Domingo’s claim that he was usually called back early from
meals, and did not find credible his claim that he was just told to click
“agree.” It also observed Domingo was “[u]naware of meal and rest period”
practices in other departments. The court found Granger’s testimony about
his meals being interrupted “[s]ounded scripted,” and noted it had waived
cross-examination.
The trial court then set forth its rulings. First, the court found
Domingo did not prove the meal period timekeeping system led to Prime
“masking short meal periods” or “failing to maintain accurate . . . records.” It
found employees “if necessary, could still accurately record a short meal
period, explaining, “The system provides two methods for employees to claim
a meal period premium on those rare occasions (one day during hospital
week) where the meal period was foreshortened. The evidence was that
kitchen employees knew they could edit their time and did so.” The court
determined the system was Prime’s “reasonable effort to ensure and promote
compliance with the Labor Code” under Brinker v. Superior Court (2012) 53
Cal.4th 1004, 1040 (Brinker). The court also found the “evidence did not
preponderate in favor of a finding that this claim was representative.”
Second, the trial court found Domingo “did not make out a PAGA claim
for meal and rest period violations,” in general. It found the “evidence easily
19
preponderated in favor of a finding that [Prime’s] meal and rest period
policies were facially lawful.” The court “found the testimony of [Amiatu] and
[Quinonez] more credible than that offered by [Domingo] and [Granger] on
how those policies were carried out in the day-to-day operation of the
kitchen.” The court again found the evidence did not favor a finding that the
claim was representative.
2. Applicable Law
“Under California law, employers must generally provide employees
with one 30-minute meal period that begins no later than the end of the fifth
hour of work and another 30-minute meal period that begins no later than
the end of the 10th hour of work.” (Donohue, supra, 11 Cal.5th at p. 61, citing
§ 512; Wage Order 5, subd. 11(A) [requiring meal periods consistent with
§ 512].)
The California Supreme Court set forth in Brinker, and reiterated in
Donohue, the following rules: “An employer is liable only if it does not
provide an employee with the opportunity to take a compliant meal period.
The employer is not liable if the employee chooses to take a short or delayed
meal period or no meal period at all. The employer is not required to police
meal periods to make sure no work is performed. Instead, the employer’s
duty is to ensure that it provides the employee with bona fide relief from duty
and that this is accurately reflected in the employer’s time records.
(Donohue, supra, 11 Cal.5th at p. 78; see Brinker, supra, 53 Cal.4th at
pp. 1040–1041.)
“If an employer does not provide an employee with a compliant meal
period, then ‘[it] shall pay the employee one additional hour of pay’ ” at the
employee’s regular rate. (Donohue, supra, 11 Cal.5th at p. 61, citing § 226.7,
subd. (c).) “In addition to providing premium pay, the employer must
20
compensate the employee for any time worked during the meal period if ‘it
“knew or reasonably should have known that the worker was working
through the authorized meal period.” ’ ” (Donohue, at p. 68, citing Brinker,
supra, 53 Cal.4th at p. 1040, fn. 19.)
An employer also has a “duty to maintain accurate records of meal
periods.” (Donohue, supra, 11 Cal.5th at p. 76; Wage Order 5, subd. (7)(A),
7(A)(3) [employer shall keep “accurate information” as to employees,
including time records showing “[m]eal periods”].)
3. Analysis
a. Meal Period Timekeeping System
Domingo argues the trial court’s ruling was contrary to the record and
the California Supreme Court’s decision in Donohue. We disagree.
First, he contends the undisputed evidence showed that due to Prime’s
timekeeping system (which he calls a “lockout system”), employees “were not
(at times) able to accurately record” meal break returns, and he himself “was
often required to . . . return to work ‘early,’ ” could not record these early
returns, and did not receive penalties. But the evidence and inferences as
these issues were disputed and the trial court rejected Domingo’s position, so
he is functionally asking us to reweigh the evidence. We may not do so.
(Ford, supra, 28 Cal.App.4th at p. 1200.)
Even if Domingo had preserved a substantial evidence challenge to the
trial court’s findings, the record supports them. Amiatu’s testimony reflected
Prime intended for employees to take compliant meal breaks, and employees
still had two methods to record short meals that did occur (i.e., submitting a
form, or adjusting the time at shift-end). The evidence also showed
employees knew how to use these methods, including the edits in Domingo’s
and Granger’s audit trails; Amiatu’s testimony that these records reflected
21
they knew how to record meals; and their attestations, which indicated they
received meal breaks. The court did not find credible Domingo’s claim that
he was told to just click “agree” for the attestation, and could impliedly reject
his testimony that he could not edit time.
Second, Domingo argues Prime’s timekeeping system is inconsistent
with Donohue. We reject this argument as well.
In Donohue, the employer’s timekeeping system rounded meal period
“time punches to the nearest 10-minute increment.” (Donohue, supra, 11
Cal.5th at p. 62.) If there was a missed, short, or delayed meal (after
rounding), a drop-down menu let the employee choose an option indicating
why. (Id. at pp. 62–63.) Employees also could ask for manual adjustments,
and had to sign a certification at the end of each biweekly pay period that
meals were received. (Id. at p. 63.) The plaintiff brought a class action, this
court affirmed summary judgment for the employer, and the California
Supreme Court reversed. (Donohue, supra, 11 Cal.5th at pp. 61, 63–64.)
The Court held employers “cannot . . . round[] time punches . . . in the
meal period context.” (Donohue, supra, 11 Cal.5th at p. 61.) The Court also
held “time records showing noncompliant meal periods raise a rebuttable
presumption of meal period violations, including at the summary judgment
stage.” (Ibid.) The Court stated, in part:
“It is important that employers keep accurate records so that
enforcement agencies can ‘ “adequately investigate and enforce” a wage
order’s meal period provisions.’ [Citation] . . . . If the records are
accurate, then the records reflect an employer’s true liability. . . . If the
records are incomplete or inaccurate—for example, the records do not
clearly indicate whether the employee chose to work during meal
periods despite bona fide relief from duty—then the employer can offer
evidence to rebut the presumption.”
22
(Id. at p. 76.) The Court also disagreed the presumption required employers
to “police meal periods,” explaining it “[i]nstead . . . requires giv[ing]
employees a mechanism for recording their meal periods and to ensure that
employees use the mechanism properly.” (Ibid.)
Domingo contends Prime’s meal period timekeeping system failed to
produce accurate records, thus raising a “ ‘rebuttable presumption’ of Labor
Code violations,” which the court failed to apply. He also contends the court
improperly permitted Prime to “ ‘shift[] the burden’ to keep accurate time
records” to employees. We are not persuaded.
First, Domingo appears to assume Donohue’s rebuttable presumption
analysis applies here, despite a different procedural posture and facts. The
factual differences alone show the analysis does not neatly apply. In
Donohue, employees punched in and out for meals when they chose, but the
employer rounded the punches—resulting in records that did not reflect the
actual meal periods. Here, Prime intended for employees to actually take 30-
minute meal periods, while providing same-day methods to record short
meals. There is nothing intrinsically inaccurate about Prime’s records.
Even if the trial court should have applied a rebuttable presumption of
meal period violations, Domingo does not establish prejudice. (Navigators
Specialty Ins. Co. v. Moorefield Constr., Inc. (2016) 6 Cal.App.5th 1258, 1287–
1288 [“[m]isallocation of the burden of proof in a bench trial is not reversible
error per se but must be prejudicial to warrant reversal”; if substantial
evidence supports finding, misallocation is harmless].) Employers must give
employees a way to record meal breaks and ensure they use it properly.
(Donohue, supra, 11 Cal.5th at p. 77.) When the presumption applies, the
employer can present evidence that employees were “compensated for
noncompliant meal periods” or “provided compliant meal periods during
23
which they chose to work.” (Ibid.) The record contained evidence on these
matters: Prime used a timekeeping system that encouraged full meal
periods, but still provided ways to record noncompliant ones; employees could
indicate what happened (including that they “chose” to work); and Prime paid
premiums and/or compensation as applicable. On this record, the court could
find Prime’s system did not violate meal period requirements,
notwithstanding any contrary presumptions.
Second, Domingo does not establish Prime’s system improperly shifted
the recordkeeping burden to employees. In stating employees must supply a
mechanism to record meal breaks, Donohue contemplates employers can
require use of such mechanisms. (Donohue, supra, 11 Cal.5th at p. 77; cf. id.
at p. 68 [employer must pay for time worked during meal breaks if it knew or
should have known about it].) The California Supreme Court took issue with
the drop-down menu there to log meal issues, because it was triggered by
rounded punches. (Id. at p. 80 [system “would have ensured accurate
tracking of meal period violations if it had simply omitted rounding”].) The
Court also found the biweekly certifications there were inaccurate to the
extent they required employee to keep their own records. (Id. at pp. 80–81.)
Here, in contrast, Prime employees would know about a potentially short
meal break, because the time clock would tell them to return after 30
minutes. If they ended up working, they could fix it right away, or address it
in their end-of-shift attestation just hours later—with no need to keep
records.
b. Hospital Week
The trial court referenced “rare occasions (one day during hospital
week) where the meal period was foreshortened,” in finding employees could
accurately record a short meal if needed. Domingo argues uncontroverted
24
evidence established there were meal period violations during Hospital Week,
including on a representative basis. The inferences to be drawn from the
evidence were not undisputed, and substantial evidence supports the court’s
implied finding that the Hospital Week evidence was insufficient to prove
meal period violations.
Domingo and Granger said they were called back to work on one day of
Hospital Week, but Domingo’s time records did not show a missed meal, and
both agreed in their attestations that they received meal breaks. As for
Quinonez, she did say she called Domingo and others back that week, human
resources was involved, and the payroll system would reflect he received a
penalty. But she supervised numerous employees, initially only said she
“might” have called Domingo back, and Domingo and other employees could
have chosen to work. (In re Daniel G. (2004) 120 Cal.App.4th 824, 830
(Daniel G.) [trier of fact “may believe . . . part of a witness’s testimony”; “[o]n
appeal, we must accept that part of the testimony which supports the
judgment”].) Further, Quinonez worked in food service, not human resources
or payroll, and Amiatu, who did work in payroll, testified Domingo and
Granger knew how to record meals.
Viewing this record in the light most favorable to the judgment, the
trial court impliedly could find that even if there were potentially short meals
during Hospital Week, Domingo did not prove violations based on them.
c. Payment of Premiums
Finally, Domingo argues Prime’s payment of meal break premiums
“established liability for meal period violations.” He makes the same
argument for rest break penalties. We reject both.
Section 226.7, subdivision (c), provides that “[i]f an employer fails to
provide an employee a meal or rest . . . period . . . , the employer shall pay the
25
employee one additional hour of pay at the employee’s regular rate of
compensation . . . .”
Amiatu testified that during the relevant time period, Prime paid 6,207
meal period premiums and 1,058 rest break premiums. She explained that
when an employee chose “Workload Prevented” for a meal or rest period,
Prime did not “do any independent investigation to determine” if it happened;
rather, they “just pay.” When Domingo’s counsel asked if Prime paid meal
period penalties “because [it] concluded that there were meal period
violations,” Amiatu said, “That’s correct.” His counsel tried to elicit similar
testimony on rest breaks, but she testified they “pay based on what the
employee elected,” and she was “unaware of any” occasion when Prime
disputed an employee missed a break, reiterating, “because we pay.”
The trial court could impliedly find Prime’s payment of premiums,
without more, did not prove it failed to provide compliant meal or rest breaks.
Although Amiatu indicated at one point that meal period premiums were
based on violations, she mostly testified consistently that Prime paid
premiums without investigating if a violation actually occurred. The court
could credit that testimony, and decline to focus on the inconsistent response.
(Daniel G., supra, 120 Cal.App.4th at p. 830.) In turn, the court could find
that, absent confirmatory investigation, the premium payments just reflected
employees claimed they did not receive breaks—not that Prime failed to
provide them. (Compare In re Automobile Antitrust Cases I & II (2016) 1
Cal.App.5th 127, 149 [by “engaging in this review and revision process,”
executive “clearly manifested his belief in the accuracy of the meeting
minutes”]; SD Metro, supra, 73 Cal.App.4th at p. 528 [we “indulge[] all
reasonable inferences possible to uphold the trial court’s findings”].)
26
Domingo argues that “[t]o the extent the trial court implicitly relied on
Prime’s payment of the penalties as excusing its liability, the California
Supreme Court has repeatedly rejected the notion that an employer can avoid
liability for violating § 226.7 merely by paying meal period premium
penalties,” citing Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244(Kirby) and Kim v. Reins Int’l Cal., Inc. (2020) 9 Cal.5th 73 (Kim). (See
Kirby, at p. 1256 [attorney fees issue; “provision of an additional hour of pay
does not excuse a section 226.7 violation”]; Kim, at p. 84 [PAGA standing
after individual plaintiff’s settlement; “payment of this statutory remedy
‘does not excuse’ ” violation].)
But, again, the trial court could find the premium payments did not
establish violations in the first place, such that it would not reach the issue of
whether liability was excused. Should Domingo seek to rely on Kirby and
Kim to suggest penalties can establish violations, without more, that reliance
is misplaced. If anything, they underscore the penalty is separate from the
violation, and proof of the violation is necessary. (See Kirby, supra, 53
Cal.4th at pp. 1256–1257 [“failure to provide an additional hour of pay does
not form part of a section 226.7 violation . . . . failure to provide required meal
and rest breaks is what triggers a violation”]; Kim, supra, 9 Cal.5th at p. 84
[“The remedy for a Labor Code violation . . . is distinct from the fact of the
violation itself.”].)
C. Rest Breaks
In addition to his rest break argument based on premium payments
(which we have rejected), Domingo contends the trial court failed to consider
Prime’s rest break policy in practice. This contention lacks merit, too.
27
1. Additional Facts
Prime’s rest break policy provides for one duty-free, 10-minute rest
break for every four hours of work. Amiatu testified that, as with meal
periods, employees had two ways to report rest break issues: submitting a
form at the time to the manager, or selecting “workload prevented” during
the end-of-shift attestation process.
Domingo testified he usually took his first rest break and his second
break was scheduled, but he was “not able to take it” two or three times a
week because it was “really busy.” He subsequently testified he was
contending he “never took” his second rest break. He “never told anyone in
management” he was “unable to take [his] second rest break.” Granger
denied taking “any rest breaks,” explaining they were busy.
Quinonez denied supervisors knew employees were not taking second
breaks due to kitchen rushes, and said they “were rigorous about encouraging
and reminding and directing employees to take their breaks as scheduled.”
She testified Domingo never complained to her that he could not take a
second rest break, and she had no knowledge of Granger working through
rest breaks. She acknowledged Domingo generally arrived at work before
her, and that if Granger “[took] his break at other than his scheduled time”
when she was at home, she would not know.
The trial court described the testimony regarding rest breaks, including
that Domingo acknowledged his second rest break was scheduled, but he
claimed he could not take it, and that Granger said he never received rest
breaks. The court determined Domingo did not establish a rest break
violation. As with the meal periods, the court found the rest break policy was
facially lawful; Amiatu and Quinonez were “more credible” than Domingo and
Granger regarding how the policy was “carried out in the day-to-day
28
operation of the kitchen,” and the evidence did not reflect the claim was
representative.
2. Analysis
Domingo argues the trial court “fail[ed] to consider the unrebutted
evidence of rest period violations,” and erroneously analyzed “the language of
the rest period policy only.” (Some capitalization omitted.) This argument
mischaracterizes the court’s ruling and the record, and we reject it.
“California law requires employers to relieve their employees of all
work-related duties and employer control during 10-minute rest periods.”
(Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, 272; § 226.7,
subd. (b) [“An employer shall not require any employee to work during a . . .
rest . . . period mandated” by IWC wage order]; Wage Order 5, subd. 12(A)
[requiring 10 minutes net rest time per four hours worked].)
First, the trial court’s findings and analysis make clear it considered
whether the rest break policy was compliant in practice. It acknowledged
Domingo and Granger’s testimony about not receiving certain or all rest
breaks (noting Domingo admitted his second one was scheduled), and still
concluded, as with meal periods, that Amiatu and Quinonez were more
credible about how the rest break policy was “carried out in the day-to-day
operation of the kitchen. . . .” That the court set forth certain findings on
meal and rest periods concurrently does not, as Domingo asserts, establish
the “court failed to even distinguish between [them].”
Second, the evidence was disputed. Domingo and Granger testified
they missed breaks because the kitchen was busy, but Quinonez denied
supervisors knew of missed breaks due to kitchen rushes and, to the
contrary, said they “remind[ed] and direct[ed]” employees to take their
breaks. This evidence was for the trial court to weigh, not us. (Ford, supra,29
28 Cal.App.4th at p. 1200.) Domingo suggests his and Granger’s testimony
established violations because no witness rebutted each assertion, and
Quinonez was not always present while they were working. The court could
reject their testimony because it did not believe them. (MAG Aerospace,
supra, 12 Cal.App.5th at p. 239 [court “may refuse to believe some
witnesses”]; see Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 836
[provided trier of fact “ ‘does not act arbitrarily . . . , it may reject the
testimony of a witness even though the witness is uncontradicted’ ”]; ibid.[“The fact that [appellant] testified to such payments did not obligate the
court to accept that testimony.”].)
Finally, even if we construed Domingo’s argument as a substantial
evidence challenge, we would reject it. Again, the court expressly found
Quinonez more credible than Domingo and Granger regarding kitchen
operations. Her testimony was evidence that Prime provided compliant rest
breaks, consistent with its policy, to Domingo and other employees.
D. Out-Of-Work Communications
Domingo argues the trial court erroneously determined he did not
establish violations based on unreimbursed expenses and compensation for
out-of-work communications. We disagree.
1. Additional Facts
The employee handbook contained multiple provisions for scheduling
and communication. The “Schedules” policy stated, “It is the employee’s
responsibility to check his/her answering machine/pager/cell phone should
any work schedule changes occur.” The “Call-Offs” policy said “schedules
may be adjusted to meet the demands of [a] fluctuating [patient] census,” and
employees “must check their messages or answering machine before coming
to work.” Another section, “Attendance” said, “Generally, employees that are
30
going to be tardy for work or who will be unable to work . . . are required to
call a minimum of two (2) hours prior to the start of the shift.” There was
also a “Standby and Callback” policy. The “Callback” subsection said, in part,
that “all time spent on a work related phone call shall be reported by the
employee and will be compensated.”
Amiatu testified Prime required employees to call “as soon as they
knew they would be absent” and “at least two hours before their scheduled
start.” They had to call “if they were going to be tardy” too, and could be
disciplined for not doing so. When asked if Prime reimbursed employees for
cell phone costs to “record a tardy,” she said if they “submit a reimbursement
on their cell phone usage,” it would be processed through accounts payable.
She also testified employees “must check their messages or answering
machines” before work, but “wouldn’t say daily”; rather, it was when a
supervisor did “call[-]off” (i.e., adjusted employee numbers). She agreed
Prime “will pay the employees for all time spent on a work-related phone
call,” so long as they submit an authorization form (as payroll is “not aware”
otherwise.)
Domingo testified “most of the time” after he woke up, he “would check
[his] cell phone” for messages, “because sometimes they would text us[,]
whether they would change our schedule or . . . ask us to come early.” It
would take “one to two minutes,” and “sometimes . . . a little longer” because
he had other messages. He never asked to be paid for this time, because he
was not aware he could be. When asked on direct examination if Prime
reimbursed his cell phone costs, he said “no,” because he was not aware he
could be reimbursed. On cross-examination, he was read his deposition
testimony in which he said “they will reimburse you” if “they ask you to
purchase items for work,” and admitted he was “aware that other kitchen
31
workers were reimbursed for expenses.” He also admitted nobody told him
he “could not submit [his] cell phone bill for reimbursement.”
Domingo further testified Quinonez “always calls us” and “always
sends us messages when we are off work.” A trial exhibit contained all of the
text messages he had, and consisted of five pages of brief exchanges with
Quinonez. Domingo started two of them; in one, he told her he was switching
with another employee the next day, and in the other, he said he could not
work because his car was towed. Most of Quinonez’s messages involved
scheduling, such as asking if he could cover a shift. As for her remaining
messages, in one she told him the boiler had not worked and it was best to
run the pans through the dishwasher in the morning. In another, she told
him about other employees being unavailable, and that it was okay to close
the grill. There was also a message in which she told him to check on a pie,
and she said he was likely at work for it.
Granger, like Domingo, testified the first thing he would do on work
days was check his cell phone for messages. He also testified Quinonez
contacted him to leave a message “twice a week,” and if he had a voicemail, it
took “two to three minutes” to check. He never asked to be paid for checking
messages, and when asked if he requested reimbursement, he said he “didn’t
know if we can . . . .”
Quinonez testified she would contact kitchen employees when shifts
had to be covered, to “make those shifts available” to them. Employees “had
every right to ignore the message,” with no discipline, and Domingo ignored
her messages on occasion. An employee “could specify any kind of contact
method that they preferred,” including home phone, cell phone, or “their
mother . . . .” She normally contacted Domingo by text message, as this was
his preferred method, and believed most messages related to scheduling. She
32
did not recall texting Granger, but said it was likely she would have done so
for shift coverage. She did not specifically “recall calling a kitchen employee
for a work-related call after hours.”
When asked if employees were paid when she texted them, Quinonez
explained they “always compensated employees for any hours that they
worked,” including off the clock, but “offering them the opportunity to come
into work was not considered work on their part . . . . She agreed “kitchen
employees know how to seek reimbursement for business expenses,” noting
situations when certain workers had to purchase supplies, and acknowledged
it was rare.
The trial court found “[a] lot of [Domingo’s] text message testimony
seemed scripted to the court. Never asked to be paid for this time. . . .
Claims ‘we complained’ because [Quinonez] ‘always sends us messages when
we are off work.’ In light of the relative dearth of documentary evidence, the
court disbelieves this testimony.” The court also found he admitted “no one
told him” he could not seek reimbursement, he was “[i]mpeached with depo”
on this issue, and he was unaware of practices in other departments,
including as to reimbursements. The court found Granger “[n]ever asked to
be paid for checking messages” or reimbursement. The court noted Amiatu’s
testimony that Prime paid for work-related phone calls, and employees “[j]ust
have to submit the form.”
The trial court determined Domingo did not establish reimbursement
or wage violations based on the cell phone use. It found he “never sought
reimbursement, despite being aware he was entitled to, and thus was never
denied reimbursement.” The court then found, “No wages are due . . . merely
as a result of an inquiry . . . about . . . availability to cover a shift. . . .
Replying that one is unable to cover a work shift is not ‘work.’ ” Addressing
33
specific messages, the court found the pie text occurred when he was clocked
in, and the dishwasher text “simply provided an update . . . so he could act on
[it] the following morning, when he was clocked in and being paid.” The court
noted he “did not respond” and found that “[t]o the extent he even read it
before he was clocked in,” the “time spent doing so is so ‘minute or irregular
that it is unreasonable to expect the time to be recorded,’ ” citing Troester v.
Starbucks Corp. (2018) 5 Cal.5th 829, 834–835 (Troester). The court also
determined the evidence did not reflect either claim was representative.
2. Reimbursement
a. Applicable Law
Section 2802, subdivision (a) provides: “An employer shall indemnify
his or her employee for all necessary expenditures or losses incurred by the
employee in direct consequence of the discharge of his or her duties, or of his
or her obedience” to the employer’s directions.” (See Cochran v. Schwan’s
Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1143–1144 (Cochran).) “The
purpose of this statute is ‘ “to prevent employers from passing their operating
expenses on to their employees.” ’ ” (Id. at p. 1144.) “ ‘[B]efore an employer’s
duty to reimburse is triggered, it must either know or have reason to know
that the employee has incurred an expense.’ ” (Wilson v. The La Jolla Group
(2021) 61 Cal.App.5th 897, 919 (Wilson).)
In Cochran, the Court of Appeal held that when “employees must use
their personal cell phones for work-related calls, . . . section 2802 requires the
employer to reimburse them.” (Cochran, supra, 228 Cal.App.4th at p. 1140,
italics added; id. at pp. 1144–1145 [reversing denial of class certification to
consider issue of mandatory personal cell phone use].)
“Section 2804 provides that this indemnification requirement [under
section 2802] cannot be waived by contract.” (USS–Posco Industries v. Case
34
(2016) 244 Cal.App.4th 197, 205; § 2804 [any “agreement . . . made by any
employee to waive the benefits of this article . . . is null and void”].)
b. Analysis
Domingo argues the trial court erroneously ignored Cochran, section
2804, and standards for representative claims in concluding he did not prove
a reimbursement violation. He establishes no error here.
First, Domingo contends the “undisputed evidence showed standard
policies[] requiring [him] and all other employees to use their cell phone to
call in to Prime,” and Cochran therefore applies. (Cochran, supra, 228
Cal.App.4th at pp. 1144–1145.) We disagree. The trial court impliedly could
find Prime did not require employees to use cell phones, and the record
supports that finding. The employee handbook reflected, and Amiatu
confirmed, that employees had to alert Prime when they were going to be
absent or tardy, and check their messages for schedule changes (at least
when there were adjustments to staffing numbers). But Quinonez testified
employees could use any contact method, even a family member, and that
text message exchanges about scheduling were voluntary. The handbook also
indicated employees could use an answering machine for messages.
Second, Domingo argues the trial court ignored section 2804 in
“finding . . . [he] waived his right to [reimbursement] because he ‘never
sought reimbursement.’ ” The court did not find Domingo waived anything.
Rather, it found he “never sought reimbursement, despite being aware he
was entitled to, and thus was never denied reimbursement.” This express
finding also reflects the court impliedly found that had Domingo submitted a
reimbursement request, it would have been addressed. These findings were
consistent with applicable law, which requires reimbursement when the
employer “know[s] or have reason to know that the employee has incurred an
35
expense.” (Wilson, supra, 61 Cal.App.5th at p. 919.) Domingo cites no
authority that section 2804’s bar on contractual waiver obviates the need for
the employer to have reason to be aware of claimed expenses. He relatedly
asserts “common sense dictates [his] claim for reimbursement was timely
brought, via [his] . . . lawsuit” and PAGA notice. He cites no case for this
assertion, either, and we do not see how it is reasonable to delay a
reimbursement request until one is preparing to sue over it.
Finally, Domingo argues the trial court “ignored controlling precedent
in finding that [his] claim for reimbursement was not representative,” citing
the text of section 2802 and its purpose (i.e., to prevent the passing of
operating expenses on to employees). He notes Prime’s employee handbook
states it applies to all employees, and was the same throughout the relevant
time period. Neither general reimbursement principles, nor Prime’s
handbook, establish error here. Domingo has not established Prime required
cell phone use, or any practice of denying reimbursements to the extent
requested. Indeed, Domingo conceded kitchen employees received
reimbursements for other reasons, and he did not know about practices in
other departments.9
9 Domingo raises more points on reply, which he forfeits because they are
late, and to the extent unsupported by argument and authority. (Raceway,
supra, 2 Cal.5th at p. 178; Badie, supra, 67 Cal.App.4th 779, 784–785.) For
example, he argues “all phone costs . . . must be reimbursed,” cellular or not.
But he does not establish requiring workers to report in when sick or tardy or
to check messages, without more, requires reimbursement. He also contends
Prime was aware he chose cell phone as his contact method and received
work messages, and the trial court improperly denied representative
discovery here. But cell phone use still was not required, he has not shown
the messages were compensable work (as discussed post), and he does not
explain how the discovery would have led to a better result.
36
3. Compensation
a. Applicable Law
Wages must be paid to an employee “for all hours worked.” (Wage
Order No. 5, subd. 4(A).) “[H]ours worked” is “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 . . . .” (Wage Order No. 5, subd. 2(K).) The “time during which ‘ “the
employee is suffered or permitted to work” ’ encompasses the time during
which the employer knew or should have known that the employee was
working on its behalf.” (Troester, supra, 5 Cal.5th at p. 840.)
In Troester, which involved a Starbucks worker, the California
Supreme Court held the federal de minimis rule did not apply to California
wage and hour claims, and although California also had a de minimis rule, it
was “not applicable to the regularly reoccurring activities” at issue there,
which took four to ten minutes per shift. (Troester, supra, 5 Cal.5th at p. 848;
id. at p. 835 [tasks included a computerized “close store procedure,” setting
the alarm, locking the door, and walking coworkers to their cars].) The Court
explained, in part, that it “ ‘recently . . . “cautioned against ‘confounding
federal and state labor law’ [citation] and . . . ‘that where the language or
intent of state and federal labor laws substantially differ, reliance on federal
regulations or interpretations to construe state regulations is misplaced.’ ” ’ ”
(Id. at p. 839, quoting Mendiola, supra, 60 Cal.4th at p. 843.)
The Court concluded, “We leave open whether there are wage claims
involving employee activities that are so irregular or brief in duration that
employers may not be reasonably required to compensate employees for the
time spent on them.” (Troester, supra, 5 Cal.5th at p. 848; see id. at p. 834
[similar observation for time that is “so minute or irregular”].)
37
b. Analysis
Domingo argues the trial court erred in relying on Troester, and
undisputed facts establish Prime failed to compensate required work. We
disagree the trial court misapplied Troester, and Domingo’s arguments
regarding the record lack merit.
Domingo contends Troester held that “[w]hile ‘minute or irregular’ work
may be non-compensable under the federal ‘de minimis’ doctrine, this
doctrine did not apply under California law,” and “[i]nstead, due to the
‘employee protective’ intent behind the [Labor Code], all ascertainable time
spent under the employer’s control must be compensated[.]” He
mischaracterizes Troester. The Court recognized that although the California
de minimis doctrine did not apply there, where the employee regularly
engaged in several minutes of post-shift tasks, there may be “activities . . . so
irregular or brief,” or “so minute or irregular,” as to be noncompensable.
(Troester, supra, 5 Cal.5th at pp. 834, 848.) The trial court here reasonably
considered whether the activities at issue were “so minute or irregular” that
no compensation was due. Domingo establishes no legal error.10
Domingo’s arguments as to the record are no better. The facts are,
again, disputed, and because he fails to properly challenge the trial court’s
findings on substantial evidence grounds, he forfeits the issue. (Foreman,
supra, 3 Cal.3d at p. 881.) His contentions lack merit, regardless.
First, Domingo argues checking and responding to messages was
required, as evidenced by “numerous” and “routine” text message exchanges
between Domingo and Quinonez. The issue is whether the communication
10 Domingo does not contend the out-of-work communications placed him
under Prime’s control, and we do not reach that issue.
38
activities at issue were “hours worked,” which can implicate duration and
regularity. (Wage Order No. 5, subd. 2(K); Troester, supra, 5 Cal.5th at
pp. 834, 848.) Substantial evidence supports the finding that these activities
were too irregular and minimal to be compensated.
The trial court did not believe Domingo’s testimony that Quinonez
“always sends [them] messages,” citing the “relative dearth of documentary
evidence.” The record reflects this lack of evidence, as Domingo produced just
five pages of messages, with brief exchanges mostly about shifts and
scheduling. Quinonez also testified workers were not required to respond
(and Domingo himself sometimes ignored messages), supporting the
conclusion that these exchanges were irregular at most.
The trial court also could find that any time spent on these irregular,
brief exchanges, or checking messages in the morning, was minute. (Cf.
Troester, supra, 5 Cal.5th at p. 843 [in “declin[ing] to decide whether a de
minimis principle may ever apply to wage and hour claims,” noting FLSA
case with “paperwork involving a minute or less” of employee time, and
“hypothetical scenarios,” such as “an employee reading an e-mail notification
of a shift change”]; id. at pp. 855–856, conc. op’n, J. Kruger [noncompensable
time might occur when “occasionally employees are notified of schedule
changes by e-mail or text message during their off hours and are expected to
read and acknowledge the messages”; or when a computer login process
usually takes “no more than a minute” or far less, but “rare[ly] and
unpredictabl[y]” can take two to three minutes].) The court could impliedly
reject Domingo’s testimony that it even took him “one to two minutes” to
check messages in the morning, given the small number of messages he
produced. Lastly, to the extent employees had to notify Prime when they
39
were sick or tardy, Domingo does not argue or show these tasks took any
routine, non-minute amount of time.
Second, Domingo argues Prime admitted “time spent on off-work calls
should be paid, but only if the employee specifically asked for extra pay,” and
they were never told the “time was compensable, let alone that they had to
seek additional payment for it.” This is not an accurate description of the
record, and does not help him regardless. The callback policy stated “all time
spent on a work related phone call shall be reported by the employee and will
be compensated,” making clear the employee simply had to notify Prime to be
paid. Amiatu’s testimony confirmed employees did not have to “ask[] for
extra pay”; they just had to submit an authorization form, so payroll knew
about the call. None of this helps Domingo, either way, because he does not
establish sick or tardy calls were “work[-]related”; that kitchen employees
otherwise engaged in work-related calls (Quinonez did not remember making
any such calls after hours); or that employees who did have work-related calls
were not paid for doing so.
F. Rounding and Grace Period Policy
Domingo contends the trial court erred by considering rounding and
grace period issues without affirmative defenses; the grace period policy was
separate and unlawful; and the rounding policy was unlawful as well. We
reject his affirmative defense and grace period arguments, but conclude he
has established reversible error as to the rounding policy based on the record
before us.
1. Additional Facts
Prime used a JBDev timekeeping system, as noted, and a JBDev
document explained how shift timekeeping worked. The system tracked time
to the minute, and total time for the day was rounded to the nearest tenth of
40
an hour, unless it was within 12 minutes of an hour. In that case the “grace
period” applied, and the time was rounded to the nearest whole hour (i.e., 7
hours, 48 minutes, and 8 hours, 12 minutes, rounded to 8 hours). The
“Attendance” section of employee handbook stated: “The time keeping [sic]
grace period is for payroll computation purposes only and not to be confused
with the disciplinary process for tardiness.”
In Domingo’s complaint, he alleged Prime “would receive ‘to-the-
minute’ start and end times,” but “thereafter alter - and deduct time from -
the Time Records,” which “caused the employees to lose compensation,
including Overtime Compensation.” Prime did not plead affirmative defenses
based on its rounding and grace period policy. Domingo propounded requests
for admission that mentioned the grace period, and discussed rounding and
the grace period in his objection to the referee’s recommendation; Prime
sought summary judgment on rounding; and both parties addressed these
issues in their trial briefs (with Domingo arguing Prime could not rely on
them, due to not pleading affirmative defenses).
At trial, Amiatu agreed Prime had “work times to the minute” and took
the “extra step” of rounding. She disagreed the grace period “applies only to
a certain select area of time,” stating “[t]he grace period and the rounding
applies to the total hours” of work, and denied Prime had a policy barring
work during the grace period. Amiatu acknowledged the JBDev document
was not given to employees, but said the grace period was referenced in the
handbook and “they also cover it” in the “new hire orientation.”
Amiatu confirmed there were 36,227 pay periods “in which a Prime
employee worked between 8 hours[,] and 8 hours and 12 minutes,” but was
paid for 8 hours. She explained how she arrived at the 36,227 figure. If an
employee worked at least one day in a pay period where the “grace period
41
didn’t work in his favor” (e.g., 8 hours, 3 minutes), she “counted that pay
period” and “didn’t look at any other dates” in the period. She did not know
how many pay periods were “instances where the employee was overpaid.”
When asked if “Prime ever performed an analysis as to whether its employees
[were] fully compensated pursuant to its rounding policy,” she responded,
“Not to my knowledge.”
Amiatu also testified about a summary document she prepared, which
showed Domingo gained 23 hours and 19 minutes from rounding between
March 2018 and January 2019. A similar document for Granger showed he
gained 2 hours and 8 minutes between March and June 2018. Domingo and
Granger both had days with additional overtime minutes. Amiatu
acknowledged her summary documents did not denote regular and overtime
minutes (i.e., in showing minutes gained or lost each day).
Prime stopped applying the grace period in May 2021, and now
rounded to the nearest hundredth of an hour. Amiatu said employees were
“not happy” about losing the grace period, and she had not heard anyone say
they were “happy to have it eliminated.”
Quinonez testified it was routine for Domingo to clock out early, and
her understanding was that he was “taking advantage of the grace period
practice.”
The trial court rejected Domingo’s affirmative defense argument,
stating an “affirmative defense is new matter that defendants are required to
plead and prove,” the court did “not believe” rounding or grace periods were
affirmative defenses under this definition, and “[n]o case” holds otherwise.
The court then said it was of “no practical legal significance,” as “whether an
issue must be pled as an affirmative defense only has potential significance
as to notice and the burden of proof,” and “[n]either is implicated here.” It
42
explained Domingo had “ample notice” Prime “contended [his] claims failed
due to rounding,” and its “findings would have been the same if [Prime] bore
the burden of proof . . . .”
The trial court then set forth its rulings. The court indicated it was
following the holding in See’s Candy Shops v. Superior Court (2012) 210
Cal.App.4th 889, 896 (See’s I) that employers can use neutral rounding
policies, and concluded the “rounding and grace period policies, operating
together, were neutral, both facially and as applied.” It found the policies
“did not burden employees; indeed, the reverse is true,” stating the “only
evidence before the court” is that the practices “benefitted non-exempt
employees.” In summarizing Quinonez’s testimony, the court had noted
“Domingo generally timed clocking out so he could leave early—he took
advantage of the grace period, worked it in his favor.”
The trial court also discussed issues raised by Domingo in his request
for the statement of decision. For example, addressing Domingo’s request
that the court “address whether a grace period is permissible if employees are
performing work,” the court found it was not a principal issue, and further
stated it was not “an intelligible request considering . . . how the grace
period” worked. The court explained it was “one step of a two-part,
inextricably intertwined rounding process,” whereas the See’s grace period
“applied to a particular time of the day.”
2. Applicable Law
In See’s I, the employer calculated pay “based on . . . [timekeeping
system] punch times, subject to adjustment under two policies: (1) the
nearest-tenth rounding policy and (2) the grace period policy.” (See’s I, supra,
210 Cal.App.4th at p. 892.) For the latter, employees could “voluntarily
punch in up to 10 minutes before their scheduled start time and 10 minutes
43
after their scheduled end time,” but were paid based on scheduled time. (Id.
at pp. 892–893.) An employee filed a class action, the trial court entered a
summary adjudication order rejecting the employer’s affirmative defenses
regarding rounding, and, in a 2012 decision, we granted writ relief to the
employer. (Id. at pp. 893, 899, 913–914.)
Recognizing “no California statute or case law specifically authoriz[ed]
or prohibit[ed]” rounding, we determined the “federal/DLSE standard,” which
“allows rounding if the employees are fully compensated ‘over a period of
time,’ ” was appropriate. (See’s I, supra, 210 Cal.App.4th at pp. 901–902,
citing 29 C.F.R. § 785.48, subd. (b), DLSE Manual, §§ 47.1, 47.2.) We
explained that “[a]ssuming a rounding-over-time policy is neutral, . . . the
practice is proper under California law because its net effect is to permit
employers to efficiently calculate hours worked without imposing any burden
on employees.” (See’s I, at p. 903; ibid. [policies underlying federal
regulation, which recognize rounding can be practical and neutral, “apply
equally” to California’s “employee-protective policies”].) We concluded “an
employer is entitled to use the nearest-tenth rounding policy if the rounding
policy is fair and neutral on its face and ‘it is used in such a manner that it
will not result, over a period of time, in failure to compensate the employees
properly for all the time they have actually worked.’ ” (Id. at p. 907.)
In Silva v. See’s Candy Shops (2016) 7 Cal.App.5th 235 (See’s II),
disapproved on other grounds in Donohue, supra, 11 Cal.5th at page 77, we
affirmed summary judgment for the employer on the rounding and grace
period policies. (Id. at 247–248, 252–253.)
44
3. Analysis
a. Affirmative Defenses
Domingo does not establish the trial court committed prejudicial error
by considering Prime’s rounding and grace period policy in the absence of
affirmative defenses.
First, Domingo does not establish error. An answer “must contain ‘[a]
statement of any new matter constituting a defense,’ in other words, an
affirmative defense.” (Advantec Group, Inc. v. Edwin’s Plumbing Co., Inc.
(2007) 153 Cal.App.4th 621, 627; citing Code Civ. Proc., § 431.30, subd.
(b)(2)].) He cites no authority that rounding and grace periods must be pled
as affirmative defenses. Instead, he argues it was undisputed Prime “did not
list” these issues in its answer. But his complaint asserted Prime altered and
deducted time, and he does not explain what that alteration could refer to
besides the rounding and grace period policy, such that the policy would be
“new matter.” Domingo also argues that “if the onus of proof is thrown upon
the defendant, the matter to be proved by him is new matter,” citing Harris v.
City of Santa Monica (2013) 56 Cal.4th 203, 239 (Harris) and other cases on
affirmative defenses. (E.g., Cal. Academy of Sciences v. Cnty. of Fresno (1987)
192 Cal.App.3d 1436, 1442 [“fail[ure] to plead affirmative defenses waives
them”].) These cases do not address rounding and grace periods, much less
hold the defendant always has the burden on them.
Second, and regardless, Domingo does not show prejudice. (See Harris,
supra, 56 Cal.4th at p. 240 [“a defect in a pleading that otherwise properly
notifies a party cannot be said to affect substantial rights”; lack of affirmative
defense did not mean trial court erred by instructing jury on the issue]; Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 573 [judgment cannot “be
reversed unless error cause actual prejudice”].) The trial court found
45
Domingo had “ample notice” that Prime was relying on its rounding and
grace period policy, and the record reflects as much, including discovery
requests and briefing by Domingo. The court also indicated its findings here
would have been the same if Prime bore the burden of proof. Domingo does
not establish his ability to present or prove his case was impaired by the lack
of affirmative defenses.
b. Grace Period
Domingo argues the rounding and grace period policies were separate,
and Prime did not establish the grace period met conditions set forth in See’s
II. The trial court found the grace period was part of the rounding policy, the
record supports that finding, and the See’s II grace period analysis does not
apply.
First, the trial court found Prime’s grace period was “one step of a two-
part, inextricably intertwined rounding process.” The record supports this
finding. As explained in the JBDev document and confirmed by Amiatu, total
time for the day was rounded to the nearest tenth, unless it was within 12
minutes of an hour, when it was rounded to the nearest hour. Even if these
were separate policies, they would be separate rounding policies—not one
rounding policy, and one grace period policy that, as in See’s, applied to
actual, particular periods of time. (Cf. See’s II, supra, 7 Cal.App.5th at p. 237
[grace period policy “permits employees to clock in 10 minutes before and
after a shift, but calculates work time from the employee’s scheduled start
and end times”].)
Second, and in turn, we reject Domingo’s argument that Prime’s grace
period was unlawful under See’s II. There, this court affirmed summary
judgment for the employer as to its grace period policy, where the employer
46
provided evidence that during the grace period, it barred employees from
work and exercised no control over them. (See’s II, supra, 7 Cal.App.5th at
p. 253; ibid. [employees “could (and did) engage exclusively in personal
activities” during this time].) Here, again, the grace period was a part of the
rounding policy, not an actual time period in which an employee could work.
c. Rounding
During initial briefing in this appeal, Domingo asserted Prime’s
rounding policy resulted in recorded work time being deducted. He argued
the policy was unlawful because, among other things, it conflicted with
Donohue’s concerns about rounding in light of technological advancements
and Troester’s concerns about full compensation. (See Donohue, supra, 11
Cal.5th at p. 74; Troester, supra, 5 Cal.5th at pp. 835, 845.) Prime argued its
policy was “neutral on its face and in practice worked to the benefit of
employees” (italics omitted), and was lawful under See’s I. Prime further
argued that “even if Domingo’s reading of Donohue was sound,” it would not
require reversal, because Wage Order 5 uses the FLSA definition of “hours
worked” for the health care industry and the FLSA “explicitly endorses
rounding.”
After briefing concluded, Camp v. Home Depot U.S.A., Inc. (2022) 84
Cal.App.5th 638 (Camp) reversed summary judgment for an employer on a
rounding claim, and “invite[d] the [California Supreme Court] to ‘decide[] the
validity of the rounding standard articulated in See’s Candy,’ ” as applied to
an employer that captures all minutes worked and then applies rounding.
(Camp, supra, 84 Cal.App.5th at pp. 644, 660–661.) The California Supreme
Court granted review in Camp. (Review granted Feb. 1, 2023, S277518.)
Woodworth v. Loma Linda University Medical Center (2023) 93 Cal.App.5th
471038 (Woodworth) subsequently reversed summary adjudication on a
rounding claim, expressing its agreement with Camp. (Id. at pp. 1045–1046.)
At this court’s request, the parties filed supplemental briefs addressing
the applicability of Wage Order 5’s “hours worked” definition to rounding and
this case; the applicability of Camp and Woodworth; and the sufficiency of the
evidence that Prime’s rounding policy was neutral as applied.
We conclude there was no substantial evidence for the trial court’s
finding that Prime’s rounding policy was neutral in application. Accordingly,
Domingo has established reversible error, regardless of which rounding
standard applies (if any), and we need not resolve that issue in this appeal.
We explain.
Under both See’s I and federal law, an employer may use a rounding
policy that is facially neutral and “ ‘is used in such a manner that it will not
result, over a period of time, in failure to compensate’ ” employees for all time
worked. (See’s I, supra, 210 Cal.App.4th at p. 907, citing 29 C.F.R. § 785.48;
see Houston v. Saint Luke’s Health System, Inc. (8th Cir. 2023) 76 F.4th 1145,
1152–1153 [vacating summary judgment for employer on rounding claim;
explaining federal regulation “does not require rounding; it permits it” and
“permission comes with conditions: chiefly, that the rounding ‘will not result’
in systematic or routine underpayment ‘over a period of time’ for work
performed”].) In See’s, there was expert evidence for the neutrality of the
employer’s rounding policy. (See’s II, supra, 7 Cal.App.5th at pp. 249–250
[expert concluded “based on two statistical studies” that “rounding policy was
mathematically neutral over time”]; see also, e.g., AHMC Healthcare, Inc. v.
Super. Ct. (2018) 24 Cal.App.5th 1014, 1018, 1027–1028 [expert analysis
reflected rounding policy was neutral over four-year period].)
48
Here, in concluding Prime’s rounding policy was neutral as applied, the
trial court found the “only evidence before the court” was that it “benefitted
non-exempt employees . . . .” However, Amiatu’s undisputed testimony
confirmed there were 36,227 pay periods in which employees worked up to 8
hours 12 minutes, and were only paid for 8 hours, thus losing compensation
(and overtime at that). Further, because she counted a pay period if minutes
were lost on one day, there could have been more than 36,227 days in which
employees lost compensation. Although she did conclude Domingo and
Granger gained minutes overall (and Prime’s interrogatory responses
reflected other pay periods in which employees would have gained minutes),
there still was no evidence the workforce as a whole made up for the lost
compensation over time. Not only was there no expert analysis, but Amiatu
disclaimed knowing if Prime ever analyzed whether employees were being
fully compensated. This record negates the court’s finding that the “only
evidence” was that the policy “benefitted . . . employees,” and undermines its
conclusion that the policy was neutral as applied.
Prime’s arguments do not persuade us to reach a different conclusion.
First, Prime argues the evidence regarding the 36,227 pay periods does
not show underpayment or lack of neutrality.11 Prime states that one of
these pay periods was a Domingo pay period in which he was overpaid,
showing it is “impossible to know” how many pay periods involved a net loss.
But we know every one of these pay periods had at least one day with unpaid
11 Prime notes Domingo did not focus on the 36,227 pay periods in his
opening or reply brief. But he did contend Prime deducted work time based
on rounding, and both parties addressed underpayment in their
supplemental briefs. We are satisfied the issue was adequately raised and
briefed.
49
minutes—and, again, there was no evidence of overpayment sufficient to
neutralize that loss.
Second, Prime argues that Domingo and Granger’s records reflecting
overpayment are adequate to support the trial court’s finding that the
rounding policy was neutral as applied. Prime asserts courts “have held that
rounding policies are neutral in application based on an analysis of the
plaintiff’s records alone,” citing David v. Queen of Valley Medical Center
(2020) 51 Cal.App.5th 653 and Corbin v. Time Warner Entertainment-
Advance/Newhouse Partnership (9th Cir. 2016) 821 F.3d 1069. These cases
are distinguishable. David appeared to involve only individual claims. (See
David, at pp. 657, 664 [affirming summary judgment on plaintiff’s rounding
claim, based on facially neutral policy and expert analysis of plaintiff’s time
punches; no discussion of class claims or PAGA].) Corbin did not analyze
rounding-related evidence as to other employees, meaning it did not consider
a record comparable to that before us. (Corbin, at pp. 1069, 1075–1079
[affirming summary judgment on rounding claim based on plaintiff records].)
Having concluded there was no substantial evidence that Prime’s
rounding policy was neutral as applied, we reverse the judgment to the
extent it is based on that policy.
G. Treatment of Shift Differential In Regular Rate
Domingo contends the trial court erroneously found Prime correctly
calculated the regular rate, with respect to shift differentials. He does not
establish any error.
1. Additional Facts
Prime’s employee handbook has a section titled “Shift Differentials,”
which states “[n]on-exempt employees in designated positions will be
compensated for hours worked into the evening, night or weekend shifts.”
50
Copies of wage statements for Domingo and Granger are in the record.
Each covers a two-week pay period, and has four columns pertinent here:
“Earning Description” (pay type; e.g. “Regular,” “Overtime,” etc.); “Rate”;
“Hours” (listed using decimal points); and “Amount.” On some statements,
“Evening Shift” is in the Earnings Description column; the corresponding
Rate is $1.00, and the Amount is the product of $1.00 and the identified
Hours. For example, Domingo’s September 28, 2018 wage statement shows
1.4 Evening Shift hours, and $1.40 in the Amount column. Similarly,
Granger’s March 30, 2018 wage statement shows 38.6 “Evening Shift” hours,
for an additional $38.60.
Amiatu testified that when Prime calculates the regular rate, it
“divides the employees’ total compensation for the workweek by the total
hours worked during the applicable workweek . . . .” It “applies a shift
differential” if one was paid. When Domingo’s counsel asked if the shift
differential was a “fixed amount” and a “flat sum rate of pay,” she said
“correct” to each question. On subsequent questioning by Prime’s counsel,
she agreed a “shift differential [is] a higher wage” and “increase[s] . . . with
hours worked,” and denied it was “any sort of flat sum bonus.” Amiatu also
addressed shift differentials when she testified about the attestation screen,
which showed “any differential.” The trial court asked, “[W]eekends
differential, they get 1.24 times their regular rate of pay . . . ?” She
responded, “Yes, multiplied to their hours.”
The trial court stated Amiatu testified, “Shift differential is a higher
wage for weekend or night work. Increases with hours worked.” The court
determined Domingo’s regular rate claim based on shift differentials was not
at issue, because he did not allege it in his complaint. The court then
51
determined that, if it were at issue, the evidence reflected Prime “calculates
the regular rate . . . correctly . . . .”
2. Applicable Law
“Under Labor Code section 510 and the [Industrial Welfare
Commission] wage orders, an employee’s overtime pay rate is a multiple of
his or her ‘regular rate of pay.’ ” (Alvarado v. Dart (2018) 4 Cal.5th 542, 561
(Alvarado).) “[A]n employee’s ‘regular rate of pay’ . . . is not the same as the
employee’s straight time rate (i.e., his or her normal hourly wage rate).
Regular rate of pay, which can change from pay period to pay period, includes
adjustments to the straight time rate, reflecting, among other things, shift
differentials and the per-hour value of any nonhourly compensation the
employee has earned.” (Id. at p. 554.)
In Alvarado, the California Supreme Court addressed how the regular
rate “should be calculated when the employee has earned a flat sum bonus
during a single pay period.” (Alvarado, supra, 4 Cal.5th at p. 549.) The
employer there paid a “flat sum of $15 per day of weekend work” (i.e., a
“weekend attendance bonus”). (Id. at pp. 549, 570.) The Court held the flat
sum bonus had to be divided by the “number of nonovertime hours the
employee worked during the pay period.” (Id. at p. 549, italics omitted.) It
“limit[ed] [its] decision to flat-sum bonuses comparable to the attendance
bonus at issue” there. (Id. at p. 561, fn. 6; see id. at pp. 567–568 [“If a bonus
is a reward ‘for each hour of work,’ and its amount therefore increases in
rough proportion to the number of hours worked,” it “might be said . . . the
bonus . . . constitutes base compensation, including base compensation for
overtime work, in which case one might be able to argue that only the
overtime premium need be added.”].)
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3. Analysis
Domingo maintains he preserved his shift differential theory, Prime
admitted the differential was a flat sum, and Prime thus improperly failed to
use nonovertime hours as the divisor, in violation of Alvarado.
First, even if Domingo preserved the shift differential theory,
substantial evidence supports the trial court’s finding that Prime’s shift
differential was a “higher wage,” not a flat sum. Amiatu testified the shift
differential was a wage multiplier, and the wage statements in the record
reflected as much. She also denied the shift differential was “any sort of flat
sum bonus.” To establish Prime’s purported admission that the shift
differential actually was flat sum, Domingo cites Amiatu’s affirmative
responses to his counsel’s questions about whether the shift differential was a
“fixed amount” and a “flat sum rate of pay.” But, as discussed above, the trial
court could credit the consistent testimony and evidence, and decline to focus
on these limited, arguably inconsistent responses. (Daniel G., supra, 120
Cal.App.4th at p. 830.)
Second, because Prime’s shift differential was not a flat sum, Domingo’s
reliance on Alvarado is misplaced. As noted, the California Supreme Court
limited its holding to flat sum bonuses. (Alvarado, supra, 4 Cal.5th at p. 561,
fn. 6; see Bowen v. Target (9th Cir. 2022) 2022 WL 16570815, at *1–2 [use of
“total hours” as divisor for incorporating shift differential was not error;
“Alvarado’s reasoning does not apply here. In contrast to flat-sum bonuses,
shift premiums are not fixed; they are hourly payments and are proportional
to hours worked . . . and will increase as an employee works additional
overtime”].)
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E. Free Parking and Badge Access Requirements
Domingo argues the trial court erred by rejecting his argument that
time spent complying with free parking and badge access rules was
compensable. We disagree.
1. Additional Facts
Prime’s employee handbook contained policies pertaining to parking
and security. The parking policy stated employees “must follow the parking
area rules,” subject to being towed and/or disciplinary action. The policy
further stated, “[i]n an attempt to build and maintain solid community
relations, it is imperative that employees use the parking areas provided as
opposed to parking in residential areas,” and “employees may not park in
areas designated as outpatient, handicapped, receiving and Emergency
Department parking.” Another policy required employees to wear
identification badges, explaining the purpose was “two-fold: (1) to clearly
identify employees to patients, their visitors and security and (2) to identify
employees to police, fire, and emergency personnel in the event of an
emergency.”
Durand Hartin, Prime’s Regional Security Manager, said Prime had
lots where employees could park. He testified the handbook statement about
not parking on residential streets was not enforced at all, they do not patrol
those streets, and he was unaware of citations, discipline, or towing occurring
as a result of such parking. Hartin also testified employees traveled to work
by walking, taking the bus, carpooling, using ride-share apps, and being
dropped off.
With respect to facility access, Hartin explained an employee who
parked on-site would “badge in” at the parking entry gate, by “just tak[ing]
out [the] badge and put[ting] it in front of the reader.” The employee would
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badge out from the employee parking pedestrian gate. The employee then
badged in to the “loading dock, inside the Hospital, wherever their
department is . . . .” If an employee entered the front door during business
hours, they would still have to wear the badge, but not place it on a reader.
Domingo testified he drove to work, but had walked when he was new.
He said he would badge in at a main gate, and then into the employee
parking lot. After parking, he would badge out of the lot; walk to the
Hospital, which took “about a minute”; and badge in. Granger similarly
testified it took “one minute” to walk to the Hospital after parking, and said
he would enter “from the back,” which was “close to the kitchen . . . .”
Bennett Berger, Domingo’s expert, said that based on Prime’s “access
granted” badge swipe records, Domingo’s initial swipe was an average of 4.13
minutes before he clocked in, and his final swipe was an average of 5.13
minutes after he clocked out.
The trial court found Domingo’s “effort to demonize [Prime’s] provision
of free employee parking . . . frivolous,” and stated, “The evidence is
overwhelming that the persons who most benefitted from the existence of
employee parking are the employees.” The court also disagreed employees
“were ‘working’ from the moment they first used” their identification badges.
It found “[m]erely being required to wear an ID badge is not ‘work.’ ” The
court distinguished the exit searches in Frlekin v. Apple Inc. (2020) 8 Cal.5th
1038 (Frlekin), explaining that “proof of the applicability of the ‘control’
clause that was central” to Frlekin was not present. The court explained
“nothing prevent[ed]” a Prime employee from “accessing the security gate,
parking, and then walking to a coffee cart or bagel shop” before work, or
“walking to the post office or conducting another personal errand” after work
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(prior to returning to the parking lot). The court concluded its “findings
render Mr. Berger’s calculations largely irrelevant.”
2. Applicable Law
As noted above, “[h]ours worked” is “the time during which an
employee is subject to the control of an employer.” (Wage Order 5, subd.
2(K).) An “employee who is subject to the control of an employer does not
have to be working during that time to be compensated . . . .” (Frlekin, supra,
8 Cal.5th at p. 1046, italics omitted, citing Morillion v. Royal Packing Co.
(2000) 22 Cal.4th 575, 585 (Morillion).)
In Morillion, the California Supreme Court held agricultural workers
who were required to take an employer-provided bus to and from the fields
engaged in compensable “hours worked” while riding on the bus. (Morillion,
supra, 22 Cal.4th at p. 578.) They were subject to the employer’s control,
because they 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 p. 586; compare Overton v. Walt Disney Co. (2006)
136 Cal.App.4th 263, 271 (Overton) [distinguishing Morillion; time spent
taking optional employer-provided bus from assigned lot was not
compensable, where employees could use alternative transport].)
In Frlekin, the Court held that time spent by Apple employees “waiting
for and undergoing exit searches” of bags and packages was compensable.
(Frlekin, supra, 8 Cal.5th at p. 1051.) Apple exercised control in multiple
ways: it required compliance “under threat of discipline”; “confin[ed] its
employees to the premises” during the process; and compelled “specific and
supervised tasks” by employees. (Id. at p. 1051; ibid. [tasks included
“locating a manager or security guard and waiting for that person to become
available, unzipping and opening all bags and packages, moving around
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items within a bag or package, removing any personal Apple technology
devices for inspection, and providing a personal technology card for device
verification”].) Employees estimated the process took “five to 20 minutes,” up
to 45 minutes on “the busiest days.” (Id. at p. 1053.) The Court also noted
that whether an “activity primarily benefits the employer” is a “relevant
consideration,” and the “exit searches are imposed mainly for Apple's
benefit.” (Id. at p. 1052.)
3. Analysis
Substantial evidence supports the trial court’s determination that
compliance with the parking and badge access rules was not compensable.
First, ample evidence reflects Prime did not exercise control via its
parking rules, but, rather, that free parking was intended as a benefit and
employees could still pursue personal tasks before and after work. Parking
was optional, as employees could walk, take public transport, or use other
methods to get to work. (See Overton, supra, 136 Cal.App.4th at p. 271 [time
spent taking optional employer bus was noncompensable]; compare Frlekin,
supra, 8 Cal.5th at p. 1049 [“[b]y determining when, where, and how its
employees must travel . . . the employer in Morillion exercised a significant
level of control”].) Domingo himself walked when he first started at Prime.
For those who did drive and park on site, Domingo cites no evidence that
parking cost anything or that there were set entry or exit times—meaning, as
the court found, employees could engage in personal tasks after parking and
before departing for the day. That employees were not supposed to park off-
site (an unenforced rule) did not, as Domingo suggests, transform the parking
benefit into a basis for compensable time. (Cf. Rodriguez v. Taco Bell Corp
(9th Cir. 2018) 896 F.3d 952, 956–957 [employer did not exert control by
offering discounted lunch that employees had to eat in the store].)
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Second, we conclude the record also reflects Prime’s badge access rules
did not result in compensable time, and disagree with Domingo that Frlekin
is applicable. Even assuming badge access benefitted Prime, it did not
impose any control over employees. As Hartin testified, an employee just had
to hold the badge up to a reader—to enter gates and doors they would pass
through anyway. In contrast, the employees in Frlekin had to engage in a
multi-step, time-intensive security check before leaving the store that
required locating a manager or guard, and precluded personal activities.
(Frlekin, supra, 8 Cal.5th at p. 1043.) Further, there were multiple Hospital
entry points (e.g., “close to the kitchen,” front entrance, etc.), facilitating
access to different work stations.
Domingo’s remaining arguments here lack merit.
First, he argues Prime had “accurate ‘to the minute’ time records which
reflected all daily badge swipes,” and Berger testified about uncompensated
time incurred by him and Granger. Berger relied on “access event” records,
not time records, and the trial court found his calculations irrelevant because
the time was not compensable. We agree.
Second, on reply, he contends Huerta v. CSI Electrical Contractors, Inc.
(2022) 39 F.4th 1176, pending at the California Supreme Court on certified
questions, presents the same factual and legal scenario as here.12 We again
disagree. Huerta involved a construction site on private land, with one
entrance. (Id. at p. 1178.) Employees had to stop at a security gate “several
miles down the road,” where a guard scanned badges and sometimes looked
in vehicles, then drive “ten to fifteen” minutes to parking lots. They stopped
12 Although this new reply argument is improper (Raceway, supra, 2
Cal.5th at p. 178), the parties addressed Huerta in connection with Domingo’s
motion to stay pending its outcome (which we denied). We elect to address it.
58
at the gate on exit too, and lines “were often five to [20] minutes long.” (Ibid.)
On appeal from partial summary judgment for the employer, the Ninth
Circuit made a certification request to the Court, including as to “whether
[the employer] exerted sufficient control” for time “related to the exit
process,” and if the applicable wage order (16) required pay for “time spent
driving between the entrance/exit of the employer’s premises and the location
where the shift begins/ends.” (Id. at pp. 1181–1182.)
Even if the California Supreme Court holds these activities are
compensable, they are plainly distinguishable from the optional parking and
minimal badge access rules here. Again, Prime employees could travel to and
enter the Hospital in multiple ways; those who did park had to walk “about a
minute” to the building; and they just had to swipe a badge at gates and
doors, not undergo a security check.
H. Wage Statements and Final Wages
Finally, Domingo contends the trial court erred in determining he did
not establish wage statement and final wage violations. To the extent these
claims are derivative of claims based on Prime’s rounding policy, we reverse
the judgment in part accordingly. (See Zuniga v. Alexandria Care Center,
LLC (2021) 67 Cal.App.5th 871, 889, fn. 10 [PAGA action; “Because we
reverse the court’s ruling concerning those primary claims, we necessarily
reverse this derivative ruling, as well.”].) The claims fail to the extent they
are derivative of other violations, which he did not establish.13 His other
arguments here also lack merit.
13 Thus, we need not and do not address the recently decided Naranjo v.
Spectrum Security Services (2022) 13 Cal.5th 93, 101–102, which held meal
period violations can trigger derivative liability for wage statement and final
wage claims (and about which Domingo improperly filed a new authority
59
1. Wage Statement
Domingo contends Prime’s use of decimals in its wage statements did
not reflect actual hours worked, and the trial court erred in concluding
otherwise.
Amiatu testified “one decimal” means “every six [minutes]”; if a wage
statement show 40.2 hours, the “.2 is meant to represent 12 minutes”; and for
13.5 hours, the “.5” is “30 minutes.” She agreed it did not explain “[w]hat a
particular decimal means in terms of [a] range of minutes” (i.e., with respect
to rounding). When Domingo was asked if he knew what “0.900” meant in
the hours column, he said, “No.” Berger testified that of the wage statements
he reviewed, 19 out of 34 had decimals (9 of 23 for Domingo, and 10 of 11 for
Granger).
The trial court found the evidence did not establish employees received
inaccurate wage statements. It stated Domingo’s theory about Prime listing
hours as a decimal was not in his PAGA notice or complaint. The court found
that “in any event,” employees “can ‘promptly and easily determine’ their
wages when ‘hours worked’ is listed as a decimal.” It further found using
hours and minutes would “make calculating gross wages much more tedious
and difficult to determine for employees and therefore would be contrary to
the public policy underpinning [Section 226].”
Even if Domingo preserved his wage statement theory, he does not
show the trial court erred in rejecting it.
letter with argument, and included argument on reply). Domingo also
forfeits his assertion on reply that Prime failed to “separately list” meal
premiums, for which he cites Naranjo; he did not raise the point in discussing
the Naranjo Court of Appeal decision in his opening brief, and did not seek to
file a supplemental brief to do so. (Raceway, supra, 2 Cal.5th at p. 178;
Rincon, supra, 43 Cal.App.5th at p. 1002.)
60
Section 226 “requires an employer to supply each employee . . . a
written wage statement” listing various items, including “total hours
worked.” (Ward v. United Airlines (2020) 9 Cal.5th 732, 743 (Ward).) “The
core purpose of section 226 is ‘to ensure an employer ‘document[s] the basis of
the employee compensation payments’ to assist the employee in determining
whether he or she has been compensated properly.’ ” (Id. at p. 752.) An
employee suffers injury under section 226 if the employer fails to provide the
required information, and the employee “cannot promptly and easily
determine from the wage statement” certain information, including total
hours worked. (§ 226, subd. (e)(2)(B)(i).) “ ‘[P]romptly and easily determine’
means a reasonable person would be able to readily ascertain the information
without reference to other documents or information.” (Id. at subd. (e)(2)(C).)
Domingo argued in his opening brief that Prime “admitted that it fails
to explain what its decimals mean in terms of actual minutes worked,” citing
Amiatu’s testimony. On reply, he belatedly argues he preserved his decimal
theory, and suggests using decimals for “hours worked” is impermissible
under section 226. Assuming he did not forfeit these points, they lack merit.
First, Amiatu did explain how decimals on the wage statement showed
hours and minutes worked for payroll purposes, indicating, for example, that
“one decimal” is “six minutes” and “.2” is 12 minutes. What she
acknowledged was that the statements did not show the decimal meaning in
terms of unrounded minutes (i.e., that “.5” could result from 27 to 32
minutes). But Domingo cites no authority that a wage statement must
explain rounding. As for his testimony that he did not know what “0.900”
meant, the trial court could impliedly find it not credible.
Second, Domingo does not establish use of decimals for “hours worked”
is unlawful. He cites section 226’s requirement that wage statement
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information be ascertainable without reference to other documents or
information. But the trial court found Prime employees could determine
their wages with the time listed in decimals, and it could be harder to
calculate wages with separate minutes. Domingo does not show these
findings were erroneous. (See Raines v. Coastal Pacific Food Distributors,
Inc. (2018) 23 Cal.App.5th 667, 677 [affirming summary adjudication for
employer, where wage statement did not list overtime rate, but did list hours
and amount; explaining rate could be “ ‘promptly and easily’ determined by
simple arithmetic” and “no additional documents or information are
necessary”].)
2. Final Wages
Finally, Domingo contends the trial court erred by rejecting his claim
that his final wages were paid after termination.
Domingo’s employment was terminated on January 17, 2019. A note in
his time records stated, “Timecard Approval . . . Approved on 1/18/2019.”
Amiatu testified she was not at the Hospital on the day Domingo was
terminated, did not recall if he was provided with a paycheck that day, and
agreed that “in order for a paycheck to be provided, a manager should have
approved it.”
Quinonez testified she was at Domingo’s termination meeting, which
was in director Kristin Holmskog’s office. Quinonez remembered bringing
Domingo’s final paycheck to the meeting, and said Holmskog would have
given Domingo the final paycheck. For his part, Domingo testified he was
called to the director’s office, and was read and handed a termination letter.
His counsel asked if he was given any other document, and he said, “I don’t
recall . . . . I was so confused that day . . . , I don’t recall, sir.” His counsel
then asked, “Do you recall receiving a paycheck on the day of your
62
termination?” He said, “I don’t remember what they handed me that day. I
understand after I received a week through mail [sic].” On cross-
examination, Domingo agreed he did not recall if he received his final check
at the termination meeting.
The trial court “did not believe” Domingo’s testimony that he “does not
recall receiving check [and] understands he received it after a week in the
mail.” Summarizing Quinonez’s testimony, the court stated, “Domingo got
his final check at his termination meeting.” The court found Domingo did not
meet his burden, explaining that “[s]aying he didn’t recall receiving it is not
the same as saying he wasn’t paid” and the evidence did not reflect the claim
was representative.
Domingo does not establish the trial court’s findings were inconsistent
with the law or record. “The prompt payment provisions of the Labor Code
impose certain timing requirements on the payment of final wages to
employees who are discharged . . . .” (McLean v. State of California (2016) 1
Cal.5th 615, 619.) “If an employee is discharged, ‘the wages earned and
unpaid at the time of discharge are due and payable immediately.’ (§ 201,
subd. (a).)” (McLean, at p. 619.)
Substantial evidence supports the trial court’s finding that Domingo
received his check at his termination meeting, and, thus, did not prove Prime
violated the final wage payment requirements in this regard. Quinonez
testified she brought Domingo’s final paycheck to the termination meeting,
and director Holmskog would have given it to Domingo. Domingo’s
testimony, while equivocal, made clear he received the check at some point.
The court could infer from this evidence that Holmskog did in fact give the
final paycheck to Domingo at the termination meeting.
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The other evidence at trial did not undermine this inference. Even if
Domingo did not recall receiving the check at the termination meeting (which
the trial court did not appear to believe), that would not prove lack of receipt.
(Cf. Gilbert v. City of Chicago (N.D. Ill. 2019) 404 F. Supp. 3d 1215, 1219
[“there is a difference between ‘not remembering and affirmatively stating
something did not happen.’ ”].) As for Amiatu’s testimony that a manager
“should have” approved a check before issuance, she did not state that
process occurred here, and did testify she was not at the Hospital the day
Domingo was terminated and did not recall if he received his check at the
termination meeting.
DISPOSITION
The judgment is reversed in part, to the extent it is based on Prime’s
rounding policy and in accordance with this opinion. In all other respects,
the judgment is affirmed. The parties shall bear their own costs on appeal.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
64