Fuller v. TWC Administration, LLC ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LAURENCE GIBBS, an individual, Case No.: 17-cv-01513 DMS (AGS) MATTHEW LUTACK, an individual, 12 BRENT QUICK, an individual, and ORDER GRANTING IN PART AND 13 JESSICA HUENEBERG, an individual, DENYING IN PART DEFENDANT’S on behalf of themselves and all others MOTION FOR SUMMARY 14 similarly situated, JUDGMENT 15 Plaintiffs, 16 v. 17 TWC ADMINISTRATION, LLC, a 18 Delaware Limited Liability Company, and DOES 1 through 10, inclusive, 19 Defendant. 20 21 This case comes before the Court on a motion for summary judgment filed by 22 Defendant TWC Administration, LLC. Plaintiffs filed an opposition to the motion, and 23 Defendant filed a reply. After reviewing the parties’ briefs and the record on file in the 24 case, the motion is denied in part and granted in part. 25 26 27 28 1 I. BACKGROUND 2 Time Warner provides video, high-speed data, and voice services to customers in 3 the United States. Defendant Time Warner Cable (“TWC” or “Defendant”), a wholly 4 owned subsidiary of Time Warner, directs Time Warner’s daily business practices. 5 Plaintiffs Laurence Gibbs, Matthew Lutack, Brent Quick, and Jessica Hueneberg worked 6 as customer service professionals (“CSRs”) and call center leads (“Leads”) (collectively, 7 “agents”) for TWC in San Diego and Ontario, California. Brent Quick was employed as a 8 CSR and Technical Support Professional from 2014 to 2017. (Quick Decl. ¶ 7). Matthew 9 Lutack was employed as a CSR and Technical Support Professional from 2009 to 2016. 10 (Lutack Decl. ¶ 7). Laurence Gibbs was employed from 2011 to 2014, working as CSR 11 and Lead. (Gibbs Decl. ¶ 7). Jessica Hueneberg was employed from 2014 to 2016 as a 12 CSR. (Hueneberg Decl. ¶ 6). In these customer service roles, Plaintiffs’ essential job 13 functions included “receiv[ing] high volume of incoming phone calls and respond[ing] to 14 inquiries in a manner which meets high quality, productivity and other [TWC] customer 15 service standards.” (Realin Decl., Exh. 6). 16 At all times relevant to this action, Plaintiffs were non-exempt employees. As non- 17 exempt employees, Plaintiffs were entitled to an hourly salary, as well as scheduled meal 18 and rest periods. (Realin Decl., Exh. 20). TWC maintained records for all hours worked 19 for non-exempt employees, (Realin Decl., Exh. 15), and maintained the following policy 20 for regulating meal and rest breaks: 21 22 23 1 In their response to Defendant’s separate statement of undisputed material facts, 24 Plaintiffs contest every one of Defendant’s statements of undisputed material facts and 25 supporting evidence. (Resp. to MSJ, ECF No. 66, Exh. 1). Nonetheless, the conditions of Plaintiff’s employment and Defendant’s policies and procedures are uncontested. Rather, 26 the parties contest the extent TWC supervisors followed these procedures in accordance 27 with California Law. As such, the Court will address such conditions, policies, and procedures as uncontested, and will detail the areas of disagreement where applicable. 28 1 “All employees are to take paid rest breaks, 15 minutes for each four hours of work. Employees must also take an unpaid lunch break of 60 minutes during each shift of 2 6 hours or more. Employees are never to ‘punch out’ and keep working (other wise 3 [sic] known as ‘working off the clock’). Working off the clock is strictly prohibited.” (Realin Decl., Exh. 6). 4 5 To log employee’s time, TWC used an electronic timecard system called “Kronos.” 6 (Carr Decl., Exh. 3). TWC’s employees were also required to sign a “Timekeeping Policy 7 Acknowledgement,” in which they agreed to take their meal and rest breaks as scheduled. 8 If an error existed on an employee’s timecard, this agreement required the employee to 9 “request timecard corrections in writing from [their] supervisor within one pay period of 10 the date of an error or the date that an error was first noticed.” (Id.). 11 Despite this policy, Plaintiffs Quick, Gibbs, and Hueneberg testified to missing meal 12 breaks because their jobs involved fielding high volumes of customer service calls during 13 their shifts. Ms. Hueneberg stated her supervisors told her she “was not allowed to end or 14 transfer a call,” so she could only take her breaks after finishing phone calls. (Hueneberg 15 Decl. ¶ 16). Similarly, Mr. Quick testified his meal periods would occasionally be delayed 16 past the fifth or sixth hour as a result of extended customer phone calls or team meetings, 17 and because supervisors told him to “wrap up the call and then go on your lunch.” (Realin 18 Decl., Exh. 4, 179:9–14). Mr. Quick also testified to experiencing delayed breaks when 19 his lunch break AUX code was not working properly. (Id. at 111:19–112:5). Finally, Mr. 20 Gibbs testified that his meal and rest breaks were delayed when customer escalations 21 occurred. (Realin Decl., Exh. 5, 71:12–15; 71:21–24; 73:16–74:1). Plaintiffs Gibbs and 22 Lutack stated they never complained to Human Resources about any alleged meal or rest 23 break violations, but Mr. Quick testified to attempting to contact Human Resources about 24 the issue. (Realin Decl., Exh. 5, 69:12–14, 75:9–12; Exh. 2, 55:1–5; Exh. 4, 49:16–50:3). 25 Further, Plaintiffs Quick, Gibbs, and Hueneberg all testified to notifying supervisors of 26 either missed meal or rest breaks. (Id., Exh. 4, 49:16–50:3; Exh. 5 at 66:17–67:3; Exh. 3 27 at 43:6–8, 43:13–15). 28 1 In addition to the meal and rest period claims, Plaintiffs contend TWC’s phone 2 system required off-the-clock work at the start and end of their shifts, as well as when the 3 phone system failed during their breaks. To field high volumes of customer service calls, 4 Plaintiffs needed to take calls as soon as they clocked in. From at least 2013, agents used 5 a phone system called “Avaya.” (MSJ, Exh. 6; King Decl. ¶ 3). This phone system 6 connected to Kronos, so “when an agent logs into the Avaya phone system, he or she is 7 simultaneously clocked into Kronos and on the clock.” (Id.). However, Plaintiffs allege 8 they needed to load their programs before taking phone calls, and thus before clocking in. 9 As such, Plaintiffs allege TWC required off-the-clock work because they spent time 10 loading their programs before clocking in. 11 Further, CSRs were evaluated based on several performance metrics, including the 12 amount of “call avoidance”—time spent clocked in but not taking calls. Incidents of call 13 avoidance would negatively impact performance metrics. (Lutack Decl. ¶ 13). Thus, 14 Plaintiffs contend they needed to perform off-the-clock work to avoid being negatively 15 evaluated for “call avoidance” by loading programs before clocking in and by clocking out 16 before logging out of their programs and shutting down their computers. (Lutack Decl. ¶ 17 15). Moreover, TWC required agents to enter a “break” or “lunch” auxiliary code (“AUX 18 code”) into their phone system to prevent calls from coming through during a scheduled 19 break. However, Plaintiffs allege this code would sometimes not work and they would be 20 unable to clock in at the end of their meal period. (SAC ¶ 57). Thus, Plaintiffs also contend 21 TWC required off-the-clock work for time whenever they were unable to clock in at the 22 end of their meal period. 23 Although Plaintiffs claim TWC required this work, TWC’s formal timekeeping 24 policy mandated “all non-exempt (hourly) employees [be] paid for all time worked on 25 behalf of the Company, including any overtime worked.” (Realin Decl., Exh. 20). 26 Relatedly, the policy notes: “Off the clock work is strictly prohibited. That means you 27 must not perform work outside of your ordinary work hours unless you are required to do 28 so by the Company.” (Id.). In addition to core job functions, the timekeeping policy 1 included “logging into or out of computer programs or software applications” in its 2 definition of “work time.” (Id.). 3 Further, TWC’s policy required employees to verify their hours, as recorded in their 4 time sheets on Kronos: 5 “You are responsible for ensuring that your time submitted in Kronos, TWC’s timekeeping system, is accurate. You must be clocked into Kronos prior to 6 performing work and should not clock out of Kronos until you have completed your 7 work for the day. In addition, you should not perform any work during meal or rest breaks.” (Realin Decl., Exh. 20). 8 9 This policy was further reiterated by two emails from supervisors. On December 18, 10 2015, Supervisor Christina Ridge sent an email re-iterating the company policy, but also 11 reminded employees that “[t]here is no grace period before a scheduled shift or returning 12 from break or lunch” and that they “are expected to launch AAD & Avaya and start taking 13 calls immediately – additional tools can be loaded as you go, and as needed.” (Realin 14 Decl., Exh. 11). Further, the email noted “[a]ny un-coded/not ready AUX usage which 15 prevents receiving a call is viewed as call avoidance and is subject to disciplinary action 16 including, but not limited to, termination.” (Realin Decl., Exh. 11). This email was sent 17 to supervisors and Plaintiff Jessica Hueneberg. 18 On April 21, 2016, Supervisor Christina Ridge sent another email to select 19 supervisors, but not including any of the named Plaintiffs, re-iterating that no work should 20 be done off the clock. Further, it instructed that employees could load their tools before 21 their scheduled shift by manually clocking into Kronos “up to 5 minutes before [their] 22 scheduled start of shift.” (King Decl., Exh. 1). She also included a copy of an email from 23 another manager, Ron Collazo, instructing supervisors to ensure their non-exempt 24 employees took their rest and meal breaks and did not load tools before clocking in for 25 their shifts. (Id.). He noted, “[b]oth constitute ‘working off of the clock’ and are 26 considered labor law violations.” (Id.). 27 On August 28, 2017, TWC updated its customer operations soft phone login/log out 28 process guide to reflect changes to its computer system. This new system permitted CSRs 1 to load programs before logging in. (Realin Decl., Exh. 19). According to this guide, 2 TWC notified employees to not “log into any systems or applications until after [they] have 3 logged [in.]” (Id. at 2). Further, the guide provides for a “5-minute grace period” at the 4 start of employee’s shifts, which allowed employees’ “schedule attendance metric” to “not 5 be affected” if they “are available to take calls within five minutes after the start of [their] 6 scheduled shift.” (Id. at 2). The guide also provided for the use of the “lunch” status in 7 Avaya, which allowed employees to pause incoming calls during the duration of their break 8 and instructed employees to not log out until after closing all applications and systems. (Id. 9 at 3). However, all named Plaintiffs worked at TWC prior to 2017 and therefore used the 10 Avaya computer system before these changes. 11 On April 20, 2017, Plaintiffs filed their Complaint in the Superior Court of 12 California, County of San Diego. On July 26, 2017, Defendant filed a notice of removal 13 and answered Plaintiffs’ complaint. (ECF No. 1; ECF No. 2). On August 18, 2017, 14 Plaintiffs filed a second amended complaint. (ECF No. 11, “SAC”). In this complaint, 15 Plaintiffs alleged eight causes of action: (1) failure to provide meal periods; (2) failure to 16 provide rest periods; (3) failure to pay regular and minimum wages; (4) failure to pay 17 overtime compensation; (5) failure to furnish timely and accurate wage statements; (6) 18 failure to pay all wages due upon termination; (7) violation of California’s Unfair 19 Competition Law; and (8) violations of the Private Attorney General Act (“PAGA”). (Id.). 20 On September 14, 2017, Defendants filed a motion to stay the action, pending the 21 California Supreme Court’s decision in Troester v. Starbucks Corporation. (ECF No. 22). 22 This Court granted the motion to stay on October 24, 2017. (ECF No. 24). On July 26, 23 2019, Defendant filed the present motion for summary judgment. (“MSJ”, ECF No. 60). 24 On August 14, 2019, both parties submitted a notice of joint stipulation for this Court to 25 consider the motion on summary judgment prior to the motion for class certification. (ECF 26 No. 64). This Court granted the joint stipulation on August 14, 2019. (ECF No. 65). 27 / / / 28 / / / 1 II. DISCUSSION 2 Defendant moves for summary judgment on all of Plaintiffs’ claims, but focuses on 3 Plaintiffs’ first four claims because the remaining claims are derivative of their underlying 4 claims. (MSJ at 3). Therefore, Plaintiffs’ meal break, rest break, and off-the-clock 5 (including overtime) claims will be addressed here. 6 A. Legal Standard 7 Summary judgment is appropriate if there is no genuine dispute as to any material 8 fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 9 The moving party has the initial burden of demonstrating that summary judgment is proper. 10 Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify 11 the pleadings, depositions, affidavits, or other evidence that it “believes demonstrates the 12 absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 13 (1986). “A material issue of fact is one that affects the outcome of the litigation and 14 requires a trial to resolve the parties’ differing versions of the truth.” S.E.C. v. Seaboard 15 Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). 16 The burden then shifts to the opposing party to show that summary judgment is not 17 appropriate. Celotex, 477 U.S. at 324. The opposing party’s evidence is to be believed, 18 and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 19 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party 20 cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th 21 Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for 22 trial. Id.; See also Butler v. San Diego District Attorney’s Office, 370 F.3d 956, 958 (9th 23 Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go beyond 24 pleadings, plaintiff must counter by producing evidence of his own). To do so, the non- 25 moving party must “go beyond the pleadings” and by “the depositions, answers to 26 interrogatories, and admissions on file,” designate “specific facts showing that there is a 27 genuine issue for trial.” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)) (internal 28 quotation marks omitted). 1 More than a “metaphysical doubt” is required to establish a genuine issue of material 2 fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). 3 The opposing party must show that evidence in the record could lead a rational trier of fact 4 to find in its favor. Id. at 587. “[M]ere disagreement or the bald assertion that a genuine 5 issue of material fact exists no longer precludes the use of summary judgment.” Harper v. 6 Wallingford, 877 F.2d 728, 731 (9th Cir. 1989) (citing California Architectural Bldg. 7 Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied 8 484 U.S. 1006, 108 S. Ct. 698, 98 L.Ed.2d 650 (1988)). “Credibility determinations, the 9 weighing of the evidence, and the drawing of legitimate inferences are jury functions, not 10 those of a judge, [when] he [or she] is ruling on a motion for summary judgment.” 11 Anderson, 477 U.S. at 255. “[I]f direct evidence produced by the moving party conflicts 12 with direct evidence produced by the nonmoving party, the judge must assume the truth of 13 the evidence set forth by the nonmoving party with respect to that fact.” TW. Elec. Service, 14 Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). 15 B. Meal Break Claims 16 Plaintiffs’ first claim is for violation of California Labor Code § 512 and its 17 applicable wage order. (SAC ¶ 38). California Labor Code § 512(a) mandates a 30-minute 18 meal break for non-exempt employees working more than five hours, and a second meal 19 period for employees working more than ten hours. These provisions require “a first meal 20 period no later than the start of an employee’s sixth hour of work” and, if applicable, “a 21 second meal period after no more than 10 hours of work in a day.” Brinker Rest. Corp. v. 22 Super. Ct., 53 Cal.4th 1004, 1041–42, 139 Cal.Rptr.3d 315, 273 P.3d 513 (2012). “If an 23 employer engages, suffers, or permits anyone to work for a full five hours, its meal break 24 obligation is triggered.” Id. at 1039. Although an employer is obligated to provide a meal 25 period to its employees, it satisfies this obligation if at the end of five (or ten) hours “it 26 relieves its employees of all duty, relinquishes control over their activities and permits them 27 a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or 28 discourage them from doing so.” Id. at 1040. 1 If the employer knows or reasonably should know that an employee was denied a 2 proper meal break, the employer must “pay the employee one additional hour of pay at the 3 employee’s regular rate of compensation for each workday that the meal or rest or recovery 4 period is not provided,” otherwise known as a “meal premium payment.” Cal. Lab. Code 5 § 226.7(c); Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1101 (2007). But if 6 an employer provides a proper break for employees and does not impede or discourage 7 them from taking it, “its knowledge that an employee is working through a meal break 8 establishes no violation of the duty to pay premium wages, though the employer must still 9 compensate the employee for the time worked.” Safeway, Inc. v. Super. Ct., 238 Cal. App. 10 4th 1138, 1155, 190 Cal. Rptr. 3d 131, 144 (Cal. Ct. App. 2015). “In contrast, if the 11 employer knows that meal breaks are missed, shortened, or unduly delayed because the 12 employer has instructed the employee to work, or has otherwise impeded the taking of 13 breaks, that duty is contravened, absent a suitable waiver or agreement by the employee.” 14 Id. (citing Brinker, 53 Cal. 4th at 1039–40, 1049). Nevertheless, “the employer is not 15 obligated to police meal breaks and ensure work thereafter is performed.” See Brinker, 53 16 Cal. 4th at 1040. Rather, “[b]ona fide relief from duty and the relinquishing of control 17 satisfies the employer’s obligations, and work by a relieved employee during a meal break 18 does not thereby place the employee in violation of its obligations and create liability for 19 premium pay.” See id. at 1040–41. 20 “Under these standards, a plaintiff must show that [an] employer impeded, 21 discouraged or prohibited employees from taking required breaks.” Silva v. AvalonBay 22 Comtys., Inc., 2016 WL 425100, at *10 (C.D. Cal. 2016) (citing Perez v. Safety-Kleen Sys., 23 Inc., 253 F.R.D. 508, 515 (N.D. Cal. 2008)). When weighing the issue of delayed or missed 24 meal breaks at the summary judgment stage, therefore, the court must assess why the 25 employee did not take a timely break, rather than if they took a timely break. See Manigo 26 v. Time Warner Cable, Inc., CV:16-06722-JFW (PLA), 2017 WL 5054368 at *4 (C.D. Cal. 27 2017) (citing id.). In sum, for Plaintiffs here to prevail on a claim for violation of California 28 Labor Code § 512, they must establish (1) they are non-exempt employees who are eligible 1 for meal breaks, and who experienced delayed or missed breaks in violation of California 2 law; (2) TWC did not provide proper meal breaks, or impeded or discouraged Plaintiffs 3 from taking such breaks; (3) TWC had notice of missed or delayed breaks; and (4) TWC 4 did not pay requisite premiums for any such meal breaks. At this stage, summary judgment 5 is appropriate only if there is no genuine dispute of material fact regarding all four issues. 6 First, the parties here do not dispute that employees were non-exempt employees, 7 and thus eligible for meal breaks. However, only three of the named Plaintiffs actually 8 testified to missing missed meal breaks in their depositions and declarations. One plaintiff, 9 Mr. Lutack, did not describe any missed meal breaks. Therefore, summary judgment is 10 appropriate for Mr. Lutack’s meal break claim. However, the remaining three plaintiffs 11 meet the first prong. 12 Next, on the second prong, the parties dispute whether TWC provided proper meal 13 breaks, and whether TWC impeded or discouraged Plaintiffs from taking breaks. This 14 issue involves two separate disputes between the parties: first, whether TWC maintained 15 an adequate meal break policy in general; and second, whether Plaintiffs’ supervisors 16 impeded or discouraged them from taking breaks. 17 On the parties’ dispute regarding whether TWC’s meal policy is lawful, the Court 18 finds in favor of TWC. TWC’s meal break policy states: “Employees working more than 19 6 hours must take a minimum 30-minute unpaid lunch break.” (Realin Decl., Exh. 15). 20 Plaintiffs contend this policy is facially unlawful because “absent waiver, California law 21 provides for a meal break on shifts exceeding 5, not 6 hours.” (P’s Opp. To MSJ at 17) 22 (citing Cal. Lab. Code § 512(a)). Further, Plaintiffs contend “there is no evidence meal 23 breaks were waived on shifts shorter than 6 hours[], and TWC did not produce a single 24 meal break waiver.” (Id.). However, TWC asserts it properly scheduled Plaintiffs’ breaks 25 at least 30 minutes before the fifth hour of work and the meal break policy provides breaks 26 for shifts of five to six hours. (MSJ at 1–2; Suppl. King. Decl. ¶ 3–8). TWC also notes 27 Plaintiffs cannot raise this new argument because they neither plead it in their complaint 28 nor raised it in discovery, and they cannot oppose the present motion with unpled theories. 1 (Reply at 5) (citing Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000)). 2 Regardless, this policy appears lawful because it provides for meal breaks on all shifts 3 exceeding six hours, with meal breaks to be taken prior to the beginning of the fifth hour 4 on a shift exceeding six hours. See Dilts v. Penske Logistics, LLC., 188 F. Supp. 3d 1016, 5 1020 (S.D. Cal. 2016) (“Although a policy that affirmatively schedules an employee’s first 6 meal break after the start of the sixth hour of work or after the start of the eleventh hour of 7 work could violate California law, that is not the case here.”). 8 Plaintiffs also contend TWC violated California law because their supervisors 9 impeded or discouraged them from taking breaks. The parties dispute whether Defendant 10 met its obligation under Brinker to permit Plaintiffs “a reasonable opportunity to take an 11 uninterrupted 30-minute break”, and “not impede or discourage them from doing so.” 12 Brinker, 53 Cal. 4th at 1040. In its motion, TWC argues it did not impede or discourage 13 Plaintiffs from taking breaks for three reasons: first, because TWC used a phone system 14 that included a feature to allow Plaintiffs to prevent additional calls as their break 15 approached; second, Plaintiffs’ supervisors never told them to skip breaks, or delay them 16 beyond the time permitted by law; and third, Plaintiffs’ supervisors were adamant that 17 Plaintiffs comply with break schedules. (MSJ at 1–2). However, Plaintiffs contend their 18 supervisors impeded them from taking timely breaks by not permitting them to transfer 19 calls or leave meetings to take their breaks. (P’s Resp. to DSUF at No. 1; P’s Opp. To 20 MSJ, Exh. 3 at 43:3–8; 44:14–25) (“They set forth times that you are supposed to adhere 21 to. And if you are on a call or in a meeting, you are not allowed to transfer the call or leave 22 the meeting to go to lunch at or before your five-hour mark.”). An employer may “not 23 undermine a formal policy of providing meal breaks by pressuring [its] employees to 24 perform their duties in ways that omit breaks.” Brinker, 53 Cal. 4th at 1040–41. In 25 addition, an employer cannot “supplant a formal policy of providing meal . . . breaks by 26 imposing conflicting policies that impede or discourage an employee from taking 27 compliant breaks.” Novoa v. Charter Comm’ns, LLC., 100 F. Supp. 3d 1013, 1022 (E.D. 28 Cal. 2015). 1 Defendant contends summary judgment is appropriate because the facts here are 2 similar to Manigo v. Time Warner, where a district court addressed whether TWC met its 3 obligation to provide adequate meal and rest periods. Manigo v. Time Warner Cable, Inc., 4 CV 16-06722-JFW (PLA), 2017 WL 5054368 (C.D. Cal. 2017). There, the plaintiffs 5 argued TWC failed to meet its obligation to provide breaks under the Brinker standard 6 because of a “combination of short staffing and [d]efendants’ requirement that dispatchers 7 answer all incoming calls.” Id. at *4. However, plaintiffs did not allege missed or delayed 8 breaks with specificity, instead pointing to time sheet records showing delayed breaks. Id. 9 In granting summary judgment, the district court noted plaintiffs did not adequately show 10 why these breaks were delayed. Id. 11 Here, three of the Plaintiffs go beyond the plaintiffs in Manigo by alleging instances 12 of delayed meal breaks because of work-related demands or pressure from their 13 supervisors. (See Realin Decl., Exh. 5, 71:12–24; Realin Decl., Exh. 4, 182:20–21; 183:3– 14 4; 111:19–112:6; Exh. 3 at 43:6–8; 43:13–15). Mr. Quick testified to experiencing delayed 15 meal breaks (past the fifth or sixth hour of work) because of long customer phone calls, 16 team meetings, and when the lunch break AUX code did not work properly and he 17 continued receiving calls. (Realin Decl., Exh. 4 182:20–21; 183:3–4; 111:19–112:6). 18 Further, Mr. Quick’s supervisor told him to finish his calls prior to taking his meal break. 19 (Id. at 179:9–14) (“Wrap up the call and then go on your lunch”). Similarly, Ms. Hueneberg 20 testified to experiencing late meal breaks due to customer calls or meetings. (Realin Decl, 21 Exh. 3 at 43:6–8; 43:13–15). She noted she did not voluntarily choose to delay these breaks, 22 but rather was instructed by her supervisors to continue the calls, even if it meant delaying 23 lunch. (Id. at 186:22–25; 44:14–25.) Finally, although Mr. Gibbs did not identify a 24 supervisor specifically telling him to miss this break, he testified to it being delayed 25 because of the nature of his job. (Realin Decl., Exh. 5 at 71:12–24). 26 In response, TWC disputes its supervisors impeded or discouraged Plaintiffs from 27 taking timely breaks. Rather, TWC contends it scheduled timely breaks for Plaintiffs and 28 enforced its lawful meal break policies by “reminding Plaintiffs to take their breaks as 1 scheduled, and coaching them when and if they failed to do so.” (SUF at No. 8). As such, 2 a genuine dispute of material fact exists regarding this element. Ordonez, 2013 WL 210223 3 at *7 (finding that evidence of delayed, short, or missed meal periods is insufficient to show 4 that a violation occurred because such evidence does not explain why such a break was 5 delayed, short, or missed, and an employee could have voluntarily opted to start their meal 6 break late, cut it short, or not take it); Lopez v. United Parcel Service, Inc., 2010 WL 7 728205 at *8 (N.D. Cal. 2010) (finding a genuine dispute of material fact existed regarding 8 meal breaks when a plaintiff allegedly missed breaks “due to the press of business”). 9 On the third element, there is sufficient evidence for a jury to conclude Defendant 10 had notice of missed or delayed breaks. Here, as noted, Mr. Quick and Ms. Hueneberg 11 testified to notifying their supervisors about delayed breaks but being told to continue 12 taking calls. Though Mr. Gibbs did not testify to notifying his supervisors of delayed 13 breaks, Defendant’s timekeeping system automatically added a meal premium payment if 14 an employee did not clock out by their fifth hour of work, “with supervisors having the 15 authority to remove such penalties only upon confirmation that the agent in fact had the 16 opportunity for a timely break, but chose to take it later.” (SUF at No. 22; King Decl. ¶ 17 16). Defendant, based on its time-keeping system, could have known about these missed 18 breaks, even if its supervisors were not informed by Plaintiffs. Therefore, the third prong 19 is met for these three Plaintiffs. 20 Finally, there is a genuine dispute of material fact regarding whether meal premiums 21 were paid for these delayed breaks. Defendant contends Plaintiffs were provided meal 22 premiums for any untimely breaks. (MSJ at 18). Mr. Quick testified that he was not paid 23 meal penalties for delayed breaks, though he also testified he never requested a meal 24 penalty premium for those missed breaks. (Realin Decl., Exh. 4, 174:16–25; 175:3–5). 25 Nevertheless, Mr. Quick also testified, as discussed, to notifying his supervisors of these 26 missed breaks. Similarly, Ms. Hueneberg did not testify to receiving any meal premiums, 27 though she notified supervisors of delayed breaks, as discussed. Mr. Gibbs, as discussed, 28 testified to not receiving any meal premium payments and to never asking for a meal 1 premium, but he also noted he was unaware he could get paid a meal premium for a delayed 2 lunch. (Realin Decl., Exh. 5, 75: 1–8). Further, Plaintiffs provide expert testimony 3 showing only 3 premium payments were paid out of 42 instances of late meal breaks. (P’s 4 Resp. to DSUF at No. 2). Though Defendant disputes the credibility of the expert witness, 5 the Court cannot delve into that determination at this stage. Because Plaintiffs and 6 Defendant both provide substantial evidence supporting their positions, there is a genuine 7 dispute of material fact here. Therefore, summary judgment is not appropriate for Plaintiffs 8 Hueneberg, Gibbs, and Quick’s meal break claims. Summary judgment is appropriate for 9 Plaintiff Lutack’s meal break claims. 10 C. Rest Break Claims 11 Second, Plaintiffs Quick and Gibbs contend Defendant failed to provide a sufficient 12 opportunity for them to take rest breaks. California Labor Code § 226.7(b) provides: 13 “An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, 14 standard, or order of the Industrial Welfare Commission, the Occupational Safety 15 and Health Standards Board, or the Division of Occupational Safety and Health.” 16 Further, the applicable wage order provides for the remedy for such a violation—a 17 rest break premium equal to “one (1) hour of pay at the employee’s regular rate of 18 compensation for each workday that the rest period is not provided.” IWC Order No. 4– 19 2001 (12)B. “The text of the wage order is dispositive” because it “defines clearly how 20 much rest time must be authorized.” Brinker, 53 Cal.4th at 1028. Moreover, the standard 21 for employers to provide rest breaks is more flexible than the standard for meal periods: 22 “The only constraint on timing is that rest breaks must fall in the middle of work 23 periods ‘insofar as practicable.’ Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, 24 but may deviate from that preferred course where practical considerations render it 25 infeasible.” Id. at 1031. 26 Plaintiffs contend Defendant failed to authorize and permit rest periods during the 27 class period and further, failed to pay the applicable premiums for those delayed periods. 28 1 Nonetheless, Defendant contends summary judgment is appropriate because Plaintiffs 2 Quick and Gibbs “admit they were never instructed to skip a break, and that if they took a 3 rest break later than scheduled they did so because it was not practicable or feasible to take 4 it at the scheduled time because they were on a call,” and Plaintiffs Hueneberg and Lutack 5 did not assert rest break claims. (MSJ at 6). 6 In Manigo, the plaintiffs similarly argued they were forced to take delayed breaks or 7 miss their breaks because TWC “pressured them into taking calls instead of taking their 8 scheduled breaks.” 2017 WL 5054368 at *5. There, the court found the plaintiffs’ 9 allegations of delayed rest breaks due to incoming calls were insufficient to demonstrate a 10 genuine dispute of material fact because the flexible Brinker standard allows “employers 11 [to] deviate from rest break schedules where it is not feasible to adhere to the schedules.” 12 Id. Moreover, there, the plaintiffs “admitted at their depositions that supervisors never 13 specifically instructed them to skip breaks,” and the court found plaintiffs “frequently made 14 subjective personal decisions about when to take breaks based on their perception of 15 coverage rather than their schedules despite the fact that they never had responsibility for 16 determining their coverage needs.” Id. Finally, the court noted the defendant’s official 17 policies required plaintiffs to notify supervisors about missed breaks, and found plaintiffs 18 did not do so and further, “did not identify a single specific instance in which they did not 19 receive the appropriate premium they were allegedly due for missing a break.” Id. 20 Here, Mr. Quick’s rest break claims suffer a similar defect. He fails to identify any 21 instance with specificity, instead stating, “it wasn’t like a common occurrence . . . you 22 know it’s not even worth mentioning.” (Realin Decl., Ex. 4, 158:13–25; 159:1–3). 23 Therefore, summary judgment is appropriate for Mr. Quick’s rest break claims. 24 Lastly, Mr. Gibbs asserts several rest break claims: he testified to missing breaks 25 when he was “incredibly slammed” with calls and experiencing delayed breaks due to the 26 press of business. (Realin Decl., Exh. 5 65:18–23; 67:22–25; 68:1–16). Although he 27 informed his supervisors of missed and delayed breaks, he noted his supervisors told him 28 to “do [his] best” to take his breaks, and one was “adamant” about him taking his breaks. 1 (Id., 66:17–25; 67:1–12; 67:13–16). While Mr. Gibbs provided no evidence of Defendant 2 encouraging him to skip breaks, there is a triable question of fact because Mr. Gibbs noted 3 he only missed breaks because of an influx of calls, leaving him unable to take a break. 4 See Lopez, 2010 WL 728205 at *8 (N.D. Cal. 2010) (finding a genuine dispute of material 5 fact existed regarding missed rest breaks when a plaintiff allegedly missed breaks “due to 6 the press of business”). Therefore, summary judgment is not appropriate for Mr. Gibbs’ 7 rest break claims. Summary judgment is appropriate for the remaining Plaintiffs’ rest break 8 claims. 9 D. Third and Fourth Causes of Action: Failure to Pay Regular and Minimum 10 Wages and Failure to Pay Overtime Wages (“Off-the-Clock” Claims) 11 Finally, Plaintiffs contend Defendant failed to pay regular and minimum wages and 12 overtime wages in violation of California law. Plaintiff contends Defendant violated these 13 statutes by requiring Plaintiffs to work off-the-clock at three times: (1) when loading their 14 programs before clocking in to take calls; (2) when closing programs after clocking out of 15 their shifts; and (3) when “they were unable to clock back in at the end of their meal period 16 due to technical difficulties.” (SAC at ¶¶ 51–60). 17 California Labor Code Sections 1197 and 1198 mandate the minimum wage and the 18 maximum hours worked for employees. California Labor Code § 510 regulates overtime 19 hours. California Labor Code § 1194 provides the cause of action to enforce these 20 provisions: 21 “(a) Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation 22 applicable to the employee is entitled to recover in a civil action the unpaid balance 23 of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.” 24 25 In California, employees “not permitted to use time effectively for their own 26 purposes are considered subject to the control of their employer.” Stevens v. GCS Service, 27 Inc., 281 Fed. Appx 670, 672 (9th Cir. 2008) (internal quotation marks and citations 28 1 omitted). When determining whether employees are subject to their employer’s control, 2 “the level of the employer’s control over its employees, rather than the mere fact that the 3 employer requires the employees’ activity, is determinative.” Id. However, employees 4 must be compensated when they are “suffered or permitted to work” by their employer. Id. 5 Whether an employee was “suffered or permitted to work” can involve a genuine issue of 6 material fact, such as when a Plaintiff submits evidence through deposition statements that 7 he received calls from his employer and engaged in work-related phone conversations 8 during his commute. Id. 9 “[A] plaintiff may establish liability for an off-the-clock claim by proving that (1) 10 he performed work for which he did not receive compensation; (2) that defendants knew 11 or should have known that plaintiff did so; but that (3) the defendants stood idly by.” 12 Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1165 (9th Cir. 2014), cert denied, 135 S. Ct. 13 2835 (2015). To prevail on an off-the-clock claim, Plaintiffs “must prove that [employer] 14 had actual or constructive knowledge of [their] off-the-clock work.” See White v. 15 Starbucks Corp., 497 F. Supp. 2d 1080, 1083 (N.D. Cal. 2007). 16 There is no genuine issue of material fact when the employer lacks “actual or 17 constructive knowledge of any . . . supposed off-the-clock work” because an employer’s 18 liability for an off-the-clock overtime claim “hinges on such knowledge.” Plaisted v. Dress 19 Barn, Inc., 2013 WL 300913 at *4 (C.D. Cal. 2013) (citing Forrester v. Roth’s I.G.A. 20 Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981)). Thus, summary judgment may be 21 appropriate for such claims when plaintiffs testify to not informing their supervisors of any 22 off-the-clock work. See, e.g., Reece v. Unitrin Auto & Home Ins. Co., 2013 WL 245452, 23 at *4 (N.D. Cal. 2013) (granting summary judgment on plaintiff’s off-the-clock claims 24 because he did not notify his employers of off-the-clock work, instead alleging they had 25 notice from timestamps on emails he sent after hours). 26 Finally, the amount of time worked need not be significant; a few minutes can be 27 sufficient for an off-the-clock claim. There is no de minimis doctrine in California. “An 28 employer that requires its employees to work minutes off the clock on a regular basis or as 1 a regular feature of the job may not evade the obligation to compensate the employee for 2 that time by invoking the de minimis doctrine.” Troester v. Starbucks Corp., 5 Cal. 5th 3 829, 847 (2018). 4 Defendant contends summary judgment is warranted for Plaintiffs’ off-the-clock 5 claims for two reasons: (1) Plaintiffs failed to show occasions where they worked off the 6 clock; and (2) Plaintiffs “cannot show that TWC had actual or constructive knowledge of 7 any uncompensated pre- or post-shift work.” (MSJ at 19–21). 8 Defendant initially contends it is entitled to summary judgment because Plaintiffs 9 cannot show occasions where they worked off the clock. (MSJ at 19). Quoting Brinker, 10 Defendant notes, when “employees are clocked out” that “creates a presumption they are 11 doing no work, a presumption [plaintiffs] . . . have the burden to rebut.” Id. (quoting 53 12 Cal. 4th at 1051–52). As such, they allege Plaintiffs have failed to meet their burden for 13 their off-the-clock claims. However, all Plaintiffs described instances of off-the-clock 14 work in their depositions. They testified to arriving to work early to load programs before 15 clocking in, so they were ready to take calls immediately upon clocking in. (P’s Resp. to 16 DSUF at No. 41). Plaintiff Lutack testified to notifying every supervisor that he was 17 working off the clock by loading programs before he started his shift. (Realin Decl., Exh. 18 2, 119:18–120:8). Plaintiff Hueneberg described an instance where her supervisor, Aaron 19 Powell, told her that she could not clock in prior to loading her programs, but rather advised 20 her to start up her programs and then clock in. (Realin Decl., Exh. 3, 53:23–55:4). Plaintiff 21 Gibbs testified that each of his supervisors told him to “make sure” his programs were open 22 by the time he clocked in. (Realin Decl., Exh. 5, 60:1–6). Plaintiff Quick testified to asking 23 his supervisor about why he needed to come in prior to his shift. (Realin Decl., Exh. 4, 48: 24 7–12). He also testified that one of his supervisors instructed him to “Open up all [of his] 25 tools and then clock in.” (Id. at 129:7–19). Further, he testified to sending emails while 26 off-the-clock, including approximately five times during his lunch break or rest break. (Id., 27 164:10–25; 165:1–25). 28 1 Defendant’s contention, however, has merit with respect to Plaintiffs’ off-the-clock 2 claims for work performed after clocking out and during meal and rest periods. Plaintiffs 3 have failed to describe with specificity any instances of working off-the-clock after 4 clocking out or during break periods. Accordingly, summary judgment is appropriate for 5 Plaintiffs’ claims of off-the-clock work after clocking out or during meal and rest periods, 6 but their claims for work performed before clocking in raise triable questions of fact. 7 Defendant contends “Plaintiffs could not identify any occasion when they complied 8 with the policy requiring them to request a timecard adjustment” and their supervisor failed 9 to do so. (MSJ at 22, SUF at No. 60). However, as discussed, each Plaintiff identified an 10 instance in which they confronted their supervisor about off-the-clock work, or 11 alternatively, where their supervisor instructed them to perform off-the-clock work. 12 Therefore, this argument is insufficient because Plaintiffs provided evidence of times when 13 they reported their off-the-clock work. 14 Similarly, Defendant contends Plaintiffs did not identify times when they worked 15 off the clock and were not paid for their time. (MSJ at 12). First, Defendant contends it is 16 entitled to summary judgment because it is undisputed that “Plaintiffs did not work off the 17 clock every day.” (Id.). Nevertheless, Plaintiffs provided evidence that their situation is 18 similar to that in Troester, where the California Supreme Court found that “a few minutes 19 of extra work a day can add up.” 5 Cal. 5th at 847. There, the plaintiff submitted evidence 20 that “Starbucks’s computer software required him to clock out on every closing shift before 21 initiating the software’s ‘close store procedure’ on a separate computer terminal in the back 22 office.” Id. at 835–36. Troester’s closing tasks required him to work four to 10 additional 23 minutes per day. Id. at 836. Similarly here, Plaintiffs provide evidence that loading 24 programs took several minutes per day. (Opp. to MSJ at 10; Realin Decl., Exh. 1). 25 Finally, Defendant contends there are “other undisputed facts” that prevent Plaintiffs 26 from showing TWC had actual or constructive knowledge of uncompensated work. 27 Defendant points to evidence Plaintiffs were instructed not to work off the clock and an 28 email from one of Hueneberg’s supervisors, Ms. Ridge, telling members of the team to not 1 load programs off the clock, but instead clock in early to do so. (King Decl. Exh. 1). 2 Nevertheless, Plaintiffs Lutack, Gibbs, and Quick dispute receiving this email. (P’s Resp. 3 to DSUF at No. 38). Though Hueneberg received one of the emails, she also testified that 4 another supervisor instructed her to load programs prior to clocking in. (Realin Decl., Exh. 5 3, 54:23–55:4). Because there is conflicting testimony from each party, there is a genuine 6 dispute of material fact. 7 Finally, although Defendant argues Plaintiffs could have loaded programs by other 8 means after clocking in, Plaintiffs dispute knowing about these alternative means. (P’s 9 Resp. to DSUF at No. 37). Defendant also points to the 2017 changes to the phone system 10 that allowed a 5-minute grace period after clocking in to load programs, but those changes 11 are inapplicable because Plaintiffs’ claims arose before the changes were made. Moreover, 12 Plaintiffs claim they notified supervisors of their off-the-clock issues, and Defendant 13 disputes any such notice was given to supervisors. Thus, whether the employer “suffered 14 or permitted” the employees to work during this time is disputed. See Stevens, 281 Fed. 15 Appx at 672. Plaintiffs have raised a genuine dispute of material fact regarding 16 Defendant’s knowledge of this off-the-clock work. Therefore, Defendant’s motion for 17 summary judgment is denied for the third and fourth claims, with respect to the off-the- 18 clock work involved with loading programs prior to clocking in. Defendant’s motion is 19 granted for off-the-work claims based on time spent working after clocking out or during 20 breaks. 21 E. Plaintiff’s Remaining Causes of Action: Failure to Furnish Timely and Accurate Wage Statements; Failure to Pay All Wages due Upon Termination; 22 Violation of California’s Unfair Competition Law; and PAGA 23 Finally, Defendants contend Plaintiff’s remaining claims are “entirely derivative of 24 their underlying claims,” and “[b]ecause those underlying claims fail as a matter of law . . 25 . all of Plaintiff’s claims . . . also fail.” (MSJ at 24). Nevertheless, the court finds some of 26 Plaintiffs’ underlying claims demonstrate a genuine dispute of material fact, as discussed. 27 28 1 || Therefore, Defendant’s motion for summary judgment on Plaintiff’s remaining claims is 2 denied to the extent they derive from those claims. 3 HI. CONCLUSION 4 For the foregoing reasons, Defendant’s motion for summary judgment is granted for 5 Mr. Lutack’s meal period claims; (2) Mr. Lutack, Ms. Hueneberg, and Mr. Quick’s rest 6 || period claims; and (3) all Plaintiffs’ off-the-clock claims based on time worked after 7 |{clocking out or during breaks. Defendant’s motion for summary judgment is denied for 8 ||the remaining claims. In accordance with the parties’ stipulation, Plaintiff's motion for 9 || class certification is addressed in a subsequent order. 10 IT IS SO ORDERED. Dated: January 3, 2020 > nm Sab Hon. Dana M. Sabraw 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28