Wright v. Menzies Aviation
Filed 11/12/13 Wright v. Menzies Aviation
CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
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Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
>
SARA WRIGHT, Plaintiff and Appellant, v. MENZIES AVIATION, INC. et al., Defendants and Respondents. | B244332 (Los Angeles County Super. Ct. No. BC441308) |
APPEAL from an
order of the Superior Court of
Debre K. Weintraub, Judge. Affirmed.
GrahamHollis,
Graham S.P. Hollis and Vilmarie Cordero for Plaintiff and Appellant.
Foley & Lardner,
John G. Yslas and Christopher G. Ward for Defendants and Respondents.
Appellant Sara
Wright appeals the trial court’s denial of her motion seeking certification of
certain classes in her action against respondents Menzies Aviation Inc.,
Menzies Aviation Group (USA), Inc., and Aeroground, Inc. (collectively
“Menziesâ€), her former employer.
Appellant moved to certify four distinct classes encompassing current
and former nonexempt (hourly) employees of Menzies whom she contended suffered various
employment-related injuries. Appellant contends the trial court abused its
discretion in denying certification of three of the four proposed classes.
A. Complaint
Appellant, a
nonexempt hourly employee, filed a complaint against Menzies alleging that it
had violated various provisions of the Labor Code during her employment,
resulting in payment of inadequate compensation, and that it had issued defective
itemized wage statements.
name="_ftnref2" title="">[2] She sought to represent different classes of
similarly situated nonexempt current and former employees, including
individuals employed since July 2006 who were paid on an hourly basis and
clocked in and out every work day. According
to the operative first amended complaint (FAC), some of the employees appellant
sought to represent worked at LAX’s cargo warehouses located along Imperial Highway and Century Boulevard, and others
worked at the LAX passenger terminals. The
FAC asserted some claims that pertained only to the employees working at the
passenger terminals.
name="_ftnref3" title="">[3]
With respect
to the broader class, the FAC alleged that all Menzies’s nonexempt employees were
subject to a policy under which pay was computed based not on the exact time
each employee clocked in and out, but on their clock-in and clock-out time rounded
up or down to the nearest quarter hour.
The FAC alleged that this policy, when combined with Menzies’s policy of
disciplining employees who arrived more than five minutes late for a shift, resulted
in a timekeeping system that consistently operated in Menzies’s favor. The FAC further alleged that Menzies did not
provide any of its nonexempt employees accurate itemized wage statements as
required by Labor Code section 226, as the wage statements did not contain the
beginning date of the pay period.
With respect
to the employees working at the passenger terminals, the FAC alleged that the
only parking lot available for these employees to leave their cars was a remote
one, served by a shuttle. The employees
who worked in the passenger terminals were also required to clear airport
security prior to beginning a shift. According
to the FAC, these employees were not paid for their time waiting for or riding
on the shuttles, or the time spent going through security inspections and
walking from the security area to the clock-in area.
B. Motion
for Class Certification
In June 2012,
appellant filed a motion to certify the three classes at issue.
evidence that respondents then employed at least 1,100 nonexempt employees at
LAX, approximately 671 or 61 percent of whom worked in the passenger terminals.
Appellant further established that the
list provided by Menzies to the third party administrator for the mailing of
opt-out notices contained 3,688 individuals. In addition, appellant presented the following
evidence pertinent to particular classes.
1. Evidence
Pertinent to Rounding Class
The “rounding
class†appellant sought to certify consisted of: “All current and former hourly non-exempt
employees of [Menzies] who have worked at [LAX] at any point from July 15, 2006
to the present and who according to [Menzies’s] time clock records were not paid for
all hours worked due to [Menzies’s] policy of rounding the time recorded on
their time clock system to quarter hour intervals.â€
Appellant
presented evidence concerning the rounding system Menzies used to calculate
wages, establishing that hourly employees who clocked in up to seven minutes
after an hour or quarter hour were paid as if they had clocked in earlier (the preceding
hour or quarter hour); employees who clocked in after that break point were
paid as if they arrived the following quarter hour. The same applied when the employees left work: an employee could clock out up to seven
minutes before or seven minutes after the hour or quarter hour and be paid the
same as employee who clocked out precisely on the hour or quarter hour. The rounding system also applied when hourly
employees clocked in and out for breaks.
Appellant also
presented evidence that respondents’ tardiness policy stated that any nonexempt
employee was considered late if he or she reported to work more than five
minutes after the start of the scheduled shift.
The accumulation of 12 “tardies†in a 12-month period could result in
termination.
title="">[6]
In support of
its contention that the policies resulted in a timekeeping system operating in
Menzies’s favor, appellant presented evidence concerning wage and hour records
for 19 putative class employees. For
each of these 19 employees, appellant summarized a week between 2006 and 2008 in
which the rounding system resulted in the employee being clocked in for periods
ranging from 31 to 67 minutes more than was used to calculate his or her
pay. Appellant contended that this
evidence supported a claim against Menzies based on the theory that a rounding
policy is lawful only if at the end of each distinct pay period, the employee
has paid the employee for all hours worked during that pay period. Appellant indicated that for the purposes of
its legal theory, the fact that the compensation might average out over time
was irrelevant.
2. Evidence
Pertinent to Passenger Terminal Employee Class
With respect
to passenger terminal employees, appellant sought to certify a class consisting
of: “All current and former hourly
non-exempt employees of [Menzies] who have worked at the LAX Passenger Terminal
Areas at any time from July 15, 2006 to the present.â€
Appellant presented
evidence indicating that she and a number of other putative class members who
worked in the passenger terminals parked in LAX employee lots or private
parking lots, all located at a distance from the passenger terminals. Appellant and the employees who parked in
those remote lots took shuttles to and from the passenger terminals to arrive
at and depart from work.
name="_ftnref7" title="">[7] Appellant also presented evidence that some employees
who took public transportation were dropped off near a shuttle stop and took a
shuttle the rest of the way in. The evidence
indicated that the only parking option for automobiles close to work stations
in the passenger terminals was expensive.
To support her
contentions relating to the claim that passenger terminal employees should be
paid for time spent waiting for or riding on shuttles, appellant also submitted
copies of 31 employee declarations which had been filed by Menzies in
conjunction with its earlier motion for summary judgment. These employees all stated that they were
free to choose the manner in which they transported themselves to work and that
they elected a variety of methods, including (1) parking in various LAX employee
lots or nearby private lots and taking a shuttle or van to the passenger terminals;
(2) parking on the street and taking a parking lot shuttle to the passenger
terminals; (3) taking public transportation; (4) traveling by motorcycle and
parking in a special lot for motorcycles located near the passenger terminals; or
(5) getting dropped off at the passenger terminals by family or friends. Appellant summarized these declarations and pointed
out that all but a handful of these employees parked in remote lots and used
shuttles to get the rest of the way in, that one of the motorcycle riders did
the same in bad weather, and that the few who stated they used public
transportation did not state whether they used shuttles to travel between the
drop off point and their work stations.
a “de facto†requirement that passenger terminal employees park in remote lots
and take a shuttle to work.
With respect
to the contention that the passenger terminal employee class should also
include a claim for time spent clearing security, appellant contended: “Menzies employment manual requires all
Menzies non-exempt employees working at the LAX Passenger Terminal Area to
comply with a variety of security measures and procedures, including waiting to
pass through a security check point.
Menzies uniformly requires all non-exempt employees to follow airport
security regulations and to work with the airport authorities and abide by the
security measures imposed by the Airport security authorities. Menzies non-exempt employees working at the LAX
cargo warehouses do not have to wait in line or go through a LAX security check
point before they can clock in for their shifts. Menzies ha[s] the same policy and practice of
compensating Menzies non-exempt employees working at the LAX Passenger Terminal
Areas only after they have clocked in for their shifts, and do[es] not
compensate them for the time spent waiting to pass through the security check
point.†There was no citation to any
evidence, and appellant did not otherwise discuss this claim in its moving papers
or its reply.
3. Evidence
Pertinent to Wage Statement Class
With respect
to the wage statement claim, appellant sought to certify a class consisting of
“All hourly non-exempt employees of [Menzies] who have worked at [LAX] at any
point from July 15, 2006 to the present.â€
Appellant presented evidence that the wage statements Menzies issued to
its employees during the relevant period contained the date the check was
issued, the date the wage period ended, and the frequency of the pay period
(e.g., “weekly,†“bi-weeklyâ€), but did not expressly state the date the wage
period began. Determining the start date
from the information provided would have required the assistance of a calendar.
4. Menzies’s
Opposition
Menzies’s
opposition to the class certification motion pointed out various alleged
shortcomings in appellant’s supporting evidence: (1) appellant had provided no evidence of how
the rounding policy affected average employee compensation over time; (2) the
weeks selected by appellant to support her claim that employees sometimes lost
compensation in the short run included days in which employees were
overcompensated; (3) appellant had presented no evidence of a practice or
policy imposed by Menzies forcing potential passenger terminal employee class
members to travel on an LAX shuttle, and indeed the evidence she presented
established that passenger terminal employees used a variety of means to travel
to and from work; (4) the evidence appellant submitted to demonstrate that the
security clearance requirement was imposed on passenger terminal employees by
Menzies established instead that the requirement derived from airport security
regulations and federal law; and (5) appellant had presented no evidence of
injury to herself or other putative class members as a result of receiving
allegedly deficient wage statements.
5. Trial
Court’s Ruling
In an oral
ruling, the trial court found that the factors of ascertainability, numerosity,
typicality, and adequacy were satisfied.
The court further found that appellant was an adequate class
representative and typical of the proposed classes, and that the attorneys
representing appellant were qualified to act as class counsel. After granting class certification as to one
class, the court denied class certification for the three classes at issue in
this appeal, finding that common questions did not predominate.
The court first
articulated the standard to be applied to that determination: “[T]he trial court’s obligation in analyzing
commonality is to determine whether the elements necessary to establish
liability are susceptible of common [proof]. . . . [W]hat matters to class certification is not
the raising of common questions but rather the capacity of class-wide
proceeding[s] to generate common answers apt to drive the resolution of the
litigation.â€
With respect
to the rounding class, the court found that the evidence demonstrated Menzies’s
rounding policy was applied uniformly to all nonexempt employees and involved rounding
each time clock punch to the nearest quarter hour. It also found clear evidence that under Menzies’s
tardy policy, nonexempt employees who report to work more than five minutes
after the start of a shift are deemed late or tardy, and that 12 tardies in a
consecutive 12-month period was a ground for termination. However, the court found that appellant had
not met her burden of establishing that class claims would predominate. First, the court pointed out that the evidence
established the rounding policy was neutral on its face -- employees were paid
less if they clocked in a few minutes late, but the time would be made up if
they left a few minutes late. With
respect to the evidence presented that certain putative class members were not
paid for all time clocked in during particular weeks, the court stated: “This evidence . . . does not indicate the
existence of a class-wide rounding policy that favors [Menzies]. At most, it shows that during certain pay
periods some class members were not paid for all their time.†Second, responding to appellant’s argument
that the tardy policy tipped the balance in favor of Menzies “because class
members will typically clock in a few minutes earlier to avoid being tardy,†the
court noted that appellant presented “no evidence that any class member felt
compelled to clock in early due to the tardiness policy†and found that “without
evidence to the contrary, it must be assumed that how any particular class
member reacted to the tardiness policy [was] highly individualized.â€
The court concluded
that since there was no evidence that the rounding policy was “designed or
implemented in a manner that favored [Menzies], each class member’s time
records would have to be examined individually to determine whether any
particular class member lost wages.†This
was “an inherently individualized analysis†and “an examination of the time
records for every one of the [class members’] pay periods during the class
period is not manageable.†The court
concluded that “although [appellant] alleges that the rounding policy and
tardiness policy impacted the class members such that the rounded times
benefitted [Menzies] over time, there’s no evidence of this in either written
policy or its implementation. As there’s
no evidence of a class-wide rounding policy and practice that benefitted
[Menzies] over time, numerous individual questions arise such as how did each
class member react to the tardiness policy and did any class member’s overtime
have more time subtracted than added to the hours they worked? Based on these individualized inquiries,
common questions do not predominate the rounding policy claim.â€
With respect
to compensating passenger terminal employees for commute or shuttle time, the
court found that although appellant’s evidence indicated that putative class
members parked in lots some distance from the passenger terminals, there was no
policy enacted by Menzies dictating the means by which they arrived at
work. To the extent appellant contended there
was no “practical alternative†to parking in a remote lot and riding a shuttle,
there was no legal authority for the proposition that such commute time was
compensable. “The main element necessary
to establish liability is [the] defendants’ control over the manner and means
by which the class members commuted to work. [¶] . . . The
question of [Menzies’s] control over the manner and means by which class
members commuted to work has not been shown to be susceptible to common proof
if there’s no evidence of a class-wide policy or practice implemented by
[Menzies] that controlled class members’ commute.â€
With respect
to compensating passenger terminal employees for security clearance time, the
court noted that the class certification motion “address[ed] this theory in a
single paragraph [which did] not offer evidentiary or other citation.†The court found that the security procedures
followed were “dictated by federal aviation law†and not Menzies’s policy, and that
Menzies had “no authority to change the security procedures set forth under the
federal law.†Appellant had provided no evidence “that
[Menzies] had a policy exercising control over the class members while they
were in airport security line†or of a requirement by Menzies that its
employees go through airport security, “which is entirely a creature of federal
law.†As appellant had provided no
evidence of “a policy implemented by [Menzies] that is unlawful and resulted in
damages to the class members,†the court found appellant had “not shown that
common questions dominate this theory of liability.â€
Finally with
respect to the failure to include the beginning date of the pay period on
itemized wage statements, the court found that appellant had not provided any
evidence that any putative class members were injured by the omitted
information. “Without evidence that the
class member[s] suffered any injury, there’s no evidence that the omission in
the itemized statements violates the law.
Whether the omission injured any class members in particular will have
to be examined on an individualized basis.
Common questions do not predominate [under] this theory.†The court order denying certification of the
three classes at issue in this appeal was filed July 19, 2012. This appeal followed.
A. General
Principles and Standard of Review
“Drawing on
the language of Code of Civil Procedure section 382 and federal precedent,†the
Supreme Court has “articulated clear requirements for the certification of a
classâ€: “The party advocating class
treatment must demonstrate the existence of an ascertainable and sufficiently
numerous class, a well-defined community of interest, and substantial benefits
from certification that render proceeding as a class superior to the
alternatives. [Citations.]†(Brinker
Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021 (
“‘“embodies three factors: (1)
predominant common questions of law or fact; (2) class representatives with
claims or defenses typical of the class; and (3) class representatives who can
adequately represent the class.â€â€™â€ (
Where the issue is whether individual questions or questions of common
or general interest predominate, the issue is “whether ‘the issues which may be
jointly tried, when compared with those requiring separate adjudication, are so
numerous or substantial that the maintenance of a class action would be
advantageous to the judicial process and to the litigants.’ [Citations.]â€
(Ibid.) “The answer hinges on ‘whether the theory of
recovery advanced by the proponents of certification is, as an analytical
matter, likely to prove amenable to class treatment.’ [Citation.]â€
(Ibid.)
“The party
seeking certification has the burden to establish the existence of both an
ascertainable class and a well-defined community of interest among class
members.†(Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319,
326.) This burden is “not merely to show
that some common issues exist, but, rather, to place substantial evidence in
the record that common issues predominate.†(Lockheed
Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1108.)
A trial court is
required to “examine the allegations of the complaint and supporting
declarations [citation] and consider whether the legal and factual issues they
present are such that their resolution in a single class proceeding would be
both desirable and feasible.†(
to evaluate the efficiencies and practicalities of permitting group action,
they are afforded great discretion in granting or denying certification.†[Citation.] A certification order generally will not be
disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on
improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]’â€
(Id. at p. 1022.) Whether individual or common questions
predominate “is a factual question; accordingly, the trial court’s finding that
common issues [do or do not] predominate generally is reviewed for substantial
evidence,†and we must presume in favor of the court’s order “‘the existence of
every fact the trial court could reasonably deduce from the record . . . .’†(Ibid.)
“Ordinarily,
appellate review is not concerned with the trial court’s reasoning but only
with whether the result was correct or incorrect. [Citation.] But on appeal from the denial of class
certification, we review the reasons given by the trial court for denial of
class certification, and ignore any unexpressed grounds that might support
denial. [Citation.] We may not reverse, however, simply because
some of the court’s reasoning was faulty, so long as any of the stated reasons
are sufficient to justify the order.†(
(2009) 178 Cal.App.4th 830, 843-844, italics omitted; accord,
California (2013) 217 Cal.App.4th 719, 726.) “Any valid pertinent reason will be
sufficient to uphold the trial court’s order.â€
(Thompson v. Automobile Club of
Southern California, supra, at p.
726.)
B. Rounding
Class
Federal
regulation has long permitted the practice of “recording the employees’
starting time and stopping time to the nearest 5 minutes, or to the nearest
one-tenth or quarter of an hour,†as long as the “arrangement averages out so
that the employees are fully compensated for all the time they actually workâ€
and the practice is not used to avoid compensating the employees properly “for
all the time they have actually worked.â€
(29 C.F.R. § 785.48(b).) As
interpreted by the courts, this regulation “permits employers to use a rounding
policy for recording and compensating employee time as long as the employer’s
rounding policy does not ‘consistently result[] in a failure to pay employees for
time worked.†(Alonzo v. Maximus, Inc. (C.D. Cal. 2011) 832 F.Supp.2d 1122, 1126,
and cases cited therein.) “[A]n
employer’s rounding practices comply with [the regulation] if the employer
applies a consistent rounding policy that, on average, favors neither
overpayment nor underpayment.†(
California’s Division of Labor Standard Enforcement (DLSE) adopted the
federal regulation in its Enforcement Policies and Interpretations Manual. In See’s
Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 902 (
on the federal regulation and its adoption by DLSE, that “the rule in
California is that an employer is entitled to use [a typical] 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.’†(210 Cal.App.4th at p. 907,
quoting 29 C.F.R. § 785.48(b).)
name="_ftnref11" title="">[11]
The court in
which a party could establish the fairness or unfairness of a rounding policy
for purposes of determining its lawfulness.
Both parties sought to rely on the analysis of an economist and
statistician, who analyzed employees records over a four-and-a-half-year period
and found that the practice resulted in overcompensation of employees as a
whole, but shorted the plaintiff/class representative by approximately one-half
hour. (See’s Candy, supra, 210 Cal.App.4th at pp. 894-895.) The Court of Appeal found that this report supported
the propriety of See’s rounding policy under California law “because [the
policy] was used in a manner that did not result over a period of time in the
failure to compensate the employees for all the time they actually
worked.†(Id. at p. 908.) The plaintiff
contended that the evidence concerning See’s progressive discipline policy
which, like Menzies’s, threatened termination for excessive tardiness, established
that the system was biased in a way that favored See’s. The court was not persuaded that this
assertion, uncorroborated by facts or evidence, established that See’s “nearest-tenth
rounding policy is unfair to, or biased against the employees in the class†in
the face of the statistical evidence that “over time the rounding policy did
not result in a loss to the employees.â€
(Id. at pp. 912-913.)
With this in
mind, we examine the evidence presented by appellant in support of the class
certification motion. Appellant submitted
no evidence suggesting that Menzies’s rounding policy resulted in losses to the
average employee over time. Instead, appellant
relied on records indicating that a handful of employees suffered losses in
specific weeks based on the difference between their actual clock-in and
clock-out time and the time reflected on their pay records. Appellant explained that her claim was based not
on a showing that compensation failed to average out over time, but on a
showing that Menzies failed to pay all wages owed in a particular pay
period. Appellant specifically contended
that “the fact that [Menzies] paid more wages [in] a different pay period does
not liberate [it from its] liability of [sic] failing to pay all wages owed on
a prior pay period,†and that a rounding policy could be deemed neutral only if
“at the end of the pay period . . . the employer has paid the
employee for all hours worked during that pay period . . . .†(Emphasis omitted.)
The claim
appellant purported to assert was not in accord with the federal regulation or
the holding in See’s Candy, both of which
require a showing that the rounding system consistently results in underpayment
to the average employee over time. Indeed,
it appears to be diametrically opposed to the holding in See’s Candy, which recognized that statistical evidence indicating the
rounding policy properly compensated the average employee would provide the
employer a complete defense, despite evidence that a particular employee was
disadvantaged. More important, as the
trial court found, the claim presented by appellant was not a type amenable to
class litigation. In order to establish
it, the records of each employee would have to be examined individually to
determine whether that employee suffered a loss in any particular pay
period. In her brief, appellant contends
that whether the rounding system favored Menzies over the employees is an issue
of fact common to the entire class. But
appellant expressly disavowed a claim based on establishing that the system, as
a whole or on average, disadvantaged Menzies’s employees, in favor of a claim
based on each employee’s experience from pay period to pay period. The trial court did not abuse its discretion
in finding that individual issues would predominate because “each class
member’s time records would have to be examined individually†to establish
liability for the claim asserted.
Appellant
contends that the trial court erroneously considered the merits of her claim in
rendering its determination on the class certification issue. We disagree.
It is an established rule that “resolution of disputes over the merits
of a case generally must be postponed until after class certification has been
decided [citation], with the court assuming for purposes of the certification
motion that any claims have merit [citation].â€
(Brinker, supra, 53 Cal.4th at p. 1023.)
It is equally well-recognized, however, that issues affecting the merits
of a case may be “‘enmeshed with class action requirements.’†(Id.
at p. 1023.) In that situation, “[w]hen
evidence or legal issues germane to the certification question bear as well on
aspects of the merits, a court may properly evaluate them.†(Id.
at pp. 1023-1024.) Indeed, as our
Supreme Court stated in Brinker,
“[t]o the extent the propriety of certification depends upon disputed threshold
legal or factual questions, a court may, and indeed must, resolve them.†(Id.
at p. 1025.)
Addressing
whether questions common to the class predominate over questions affecting
members individually requires the trial court to consider the elements of the
causes of action alleged. (
supra, 29 Cal.4th at p. 1106; see Brinker,
supra, 53 Cal.4th at p. 1025 [trial
court “must examine the plaintiff’s theory of recovery, assess the nature of
the legal and factual disputes likely to be presented, and decide whether
individual or common issues predominateâ€].) “[I]f the presence of an element necessary to
certification, such as predominance, cannot be determined without resolving a
particular legal issue, the trial court must resolve that issue at the
certification stage.†(
italics omitted.)
Here, the
trial court properly assessed the elements of the cause of action alleged,
appellant’s theory of recovery, the evidence, and the legal and factual issues
likely to be presented. It resolved no
legal issues unnecessary to determining predominance. There was no significant factual dispute,
because appellant presented no evidence suggesting that Menzies’s companywide
rounding policy resulted in employees being deprived of earned compensation
over time. Instead, appellant presented
evidence to support a different claim -- that a rounding system is unlawful if
it does not average out on a weekly basis -- and a theory supported by no
evidence -- that Menzies’s disciplinary policy would cause employees to behave
in ways that would inadvertently result in significant lost time. As the court recognized in
rounding policy might disadvantage employees are no substitute for evidence. (See’s
Candy, supra, 210 Cal.App.4th at pp. 911-912.) The trial court properly concluded that individual
claims would predominate, and that the claim presented was not amenable to
class litigation.
C. Passenger
Terminal Employee Class
1. Shuttle
Riding Time Claim
In
Morillion v. Royal Packing Co. (2000)
22 Cal.4th 575, the Supreme Court held that where an employer requires its
employees to travel to work sites on its own buses and permits them to use no
alternate form of transportation, it must compensate the employees for the time
spent traveling on those buses. (
holding in Vega v. Gaspar (5th Cir.
1994) 36 F.3d 417, that employees using company provided buses to get to and
from work were not entitled to compensation for travel time, because in
to use [defendant’s] buses to get to work in the morning’†but “‘chose . . . how
to get to and from work.’†(22 Cal.4th at
p. 589, fn. 5, quoting Vega v.
Gaspar, supra, at p. 425.) Morillion
was followed by Overton v. Walt Disney Co.
(2006) 136 Cal.App.4th 263, where employee parking was located a distance from
the work site and the employer provided a shuttle to transport employees from
the parking lot to the work site, but did not require them to drive personal
automobiles to work, park in the assigned lot or ride the shuttle: “[The plaintiff] argues Morillion mandates travel time payments to employees who,
an employer-provided shuttle because no alternative transportation is available
or feasible. We reject this argument,
based on Morillion’s discussion of Vega. The Supreme Court concluded the plaintiffs in
compensation for travel on employer-provided buses under the standard adopted
in Morillion, because the workers ‘were
free to choose -- rather than required -- to ride their employer’s buses.’ The
Supreme Court’s analysis did not turn on whether the bulk of the Vega employees
had any alternative transportation reasonably available. There was certainly no evidence that the
workers who used the employer-provided buses had alternative means of
transportation readily available. In any
event, even if we were to recognize the possibility of a “de facto†requirement
which could satisfy Morillion, the
facts of this case would not fall within it. The evidence is undisputed that [the
plaintiff] could have taken a vanpool to [the work site], which would have
allowed him preferential parking . . . . Thus, [the plaintiff] was not required to park
in the [remote] lot or take the shuttle in any de facto sense†(136 Cal.App.4th at pp. 272-273, italics
added.)
Here, the
evidence presented demonstrated that Menzies had no policy requiring employees
to commute to work in any particular fashion, park in any particular lot, or ride
a shuttle all or any part of the way in.
The evidence further established that passenger terminal employees
utilized a number of options for commuting, including riding motorcycles and
public transportation or having themselves dropped off. Although a significant number apparently park
at remote LAX employee lots and take a shuttle, the claim that these employees
are entitled to compensation during their shuttle ride time is foreclosed by
the decisions in Morillion and
Appellant
contends the trial court was obliged to ignore that the claim asserted had no
merit, and focus on whether individualized proof was necessary to establish “liabilityâ€
or run afoul of the rule precluding resolution of matters of substance in the
context of a certification motion. However,
we believe the court applied the proper criteria. First, the court explained that the claim had
no merit because appellant had presented no evidence of a policy requiring
employees to park in a certain place or arrive at the work site in a particular
manner, and the evidence presented established that there were alternates modes
of transportation available. The court
went on to find that assuming employees were de facto required to drive to
work, park in remote lots and take a shuttle due to the lack of practical
alternatives, such claims would not be amenable to common proof. We agree.
For each employee, the trier of fact would need to consider individual
circumstances and why, in view of each employee’s particular situation, no other
options were available. Such claim would
not have been amenable to class resolution.
2. Security
Clearance Time Claim
The
trial court observed that appellant had barely mentioned this claim in her
moving papers and had failed to support the existence of such a claim with
citation to evidence. On appeal,
appellant briefly refers to evidence that she was required to clear LAX Airport
Terminal security, but neither advances an argument nor cites legal authority establishing
a claim for compensation for such time. “An
appellant must affirmatively demonstrate error through reasoned argument,
citation to the appellate record, and discussion of legal authority.†(Bullock
v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685.) “‘The reviewing court is not required to make
an independent, unassisted study of the record in search of error or grounds to
support the judgment.’ [Citation.]†(Guthrey
v. State of California (1998) 63 Cal.App.4th 1108, 1115, quoting 9 Witkin,
Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.) Where “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 or forfeited. (Badie
v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; accord,
(2009) 172 Cal.App.4th 857, 862.) We do
so here.
D. Wage
Statement Class
Labor Code
section 226 provides: “Every employer
shall . . . at the time of each payment of wages, furnish each
of his or her employees . . . an accurate itemized statement in
writing showing (1) gross wages earned, (2) total hours worked by the employee
[except for exempt employees], (3) the number of piece-rate units earned and
any applicable piece rate if the employee is paid on a piece-rate basis, (4)
all deductions, provided that all deductions made on written orders of the
employee may be aggregated and shown as one item, (5) net wages earned, (6) the
inclusive dates of the period for which the employee is paid, (7) the name of
the employee and only the last four didgis of his or her social security
number, [or the last four digits of the social security number or employee
identification number], (8) the name and address of the legal entity that is
the employer, and . . . (9) all applicable hourly rates in effect during the
pay period and the corresponding number of hours worked at each hourly rate by
the employee . . . .†(Lab. Code
§ 226, subd. (a).) Under
subdivision (e) of the statute, “[a]n employee suffering injury as a result of
a knowing and intentional failure by an employer to comply with subdivision (a)
is entitled to recover the greater of all actual damages or fifty dollars ($50)
for the initial pay period in which a violation occurs and one hundred dollars
($100) per employee for each violation in a subsequent pay period, not to exceed
an aggregate penalty of four thousand dollars ($4,000), and is entitled to an
award of costs and reasonable attorney’s fees.â€
(Id., subd. (e).)
In
1136, the court held that to state a claim for a violation of Labor Code section
226, an employee must “suffer injury†as a result of the failure by an employer
to comply with the statute. “The injury
requirement in section 226, subdivision (e), cannot be satisfied simply because
one of the nine itemized requirements . . . is missing from a wage statement. . . .
[T]he statute requires that an employee may not recover for violations . . . unless
he or she demonstrates an injury arising from the missing information.†(192 Cal.App.4th at pp. 1142-1143, italics
omitted.) According to the court, injury
may be established when the inaccurate or incomplete wage statements “required
[the] plaintiff[] to engage in discovery and mathematical computations to
reconstruct time records to determine if they were correctly paid.†(Id.
at p. 1143.)
Effective
January 1, 2013, subdivision (e) was amended to provide that “[a]n employee is
deemed to suffer injury for purposes of this subdivision if the employer fails
to provide accurate and complete information as required by any one or more of
items (1) to (9), inclusive, of subdivision (a)†and “the employee cannot
promptly and easily determine from the wage statement alone†certain matters,
including as pertinent here: “(i) The
amount of the gross wages or net wages paid to the employee during the pay
period or any of the other information required to be provided on the itemized
wage statement pursuant to items (2) to (4), inclusive, (6), and (9) of
subdivision (a).†(Lab. Code, § 226,
subd. (e)(2)(B)(i).) For purposes of
this subdivision “‘promptly and easily determine’ means a reasonable person
would be able to readily ascertain the information without reference to other
documents or information.â€
Appellant
agrees that injury is an element of a Labor Code section 226 claim. She contends, however, that the element is
satisfied if an employee must use a calendar to determine a wage period’s start
date, and that to the extent Price
holds otherwise, the Legislature’s amendment signals disapproval. We disagree.
Price held that the injury
requirement is minimal and can be established if the employee cannot easily ascertain
from the information provided if his or her wages and hours were correctly
calculated. The amendment confirms that
the standard is whether the employee can “promptly and easily determine†from
the wage statement alone the critical information needed to assure that he or
she is not being underpaid.
As the trial
court correctly observed, appellant submitted no evidence to show that she or any
other class members suffered any injury as a result of Menzies’s failure to include
the start date on wage statements. None
claimed to have been confused by the wage statements or unable to determine the
applicable pay period. In the absence of
evidence supporting that employees were injured in a manner suitable for class
resolution, determination of injury would require introduction of evidence
specific to each particular employee.
concluded that “common question do not predominate,†and any injuries suffered
by potential class members would require adjudication on an individualized
basis.
The
order partially denying appellant’s motion for class certification is
affirmed. Menzies is awarded its costs
on appeal.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
class of employees whose overtime was allegedly improperly calculated because
their shifts extended beyond midnight.
The court certified that class, and nothing pertaining to that class is
at issue in this appeal.
aviation support company[y] based in the United Kingdom that provide[d]
ground-handling, cargo handling, aircraft maintenance, and aviation-related
services†at Los Angeles International Airport (LAX).
