Articles Posted in Class-Action

A California wage and hour ruling caught the attention of our Illinois employment rights attorneys because it caused substantial dissent and inspired a replacement decision more than six months after its original opinion was published. Rutti v. Lojack Corporation Inc., No. 07-56599 (9th. Cir. March 2, 2010) concerned whether commute time and time spent at home on work-related tasks should be compensated at work. In its most recent decision, a three-judge panel of the Ninth U.S. Circuit Court of Appeals agreed that commute time is not federally compensable, but split on whether the time is compensable under state law. Similarly, all three agreed that Mike Rutti’s minimal time spent checking assignments for the day from home was not compensable, but disagreed on whether longer evening periods spent transmitting data counted as work time.

Rutti was one of about 450 technicians nationwide for Lojack, Inc. to install alarms in customers’ cars. He spent most of the day on the road traveling between job sites in a company-owned vehicle, but began and ended the day at home, performing administrative tasks for Lojack. Lojack paid him an hourly wage starting when he arrived at the first work site and ending when he left the last one. He file a proposed class action lawsuit seeking compensation under federal and state wage and hour laws for his preliminary and postliminary activities, as well as commute time to and from work sites. The trial court granted Lojack summary judgment dismissing all of the federal claims but upheld a state-law claim seeking compensation for commuting, before dismissing the remaining state-law claims for lack of subject matter jurisdiction. Rutti appealed to the Ninth Circuit.

On appeal, the Ninth separated the case into three issues: whether the commute time was compensable; whether his off-the-clock activities were substantial enough to be compensable; and when Rutti’s work day started under the “continuous work day” doctrine adopted by the Department of Labor. On the commute time issue, the appeals court agreed with the trial court, but only as to Rutti’s Fair Labor Standards Act claims. A 1996 federal law called the Employee Commuter Flexibility Act says employees need not be compensated for travel time, preliminary activities or postliminary activities that take place outside of a normal work day. That’s true even when the vehicle used is the employer’s vehicle and is subject to restrictions on its use, as long as it’s subject to an agreement between the parties.

Rutti had more luck on the issue of off-the-clock activities performed at home before and after work. These are also subject to the ECFA, the Ninth wrote, but only if they are not “principal activities.” In addition, caselaw says they must not be minimal activities. The activity at the beginning of the day included receiving job orders, mapping them and planning his route for the day. This is related to his commute, the court found, and commuting is not compensable. They are also relatively minimal, taking no more than a few minutes. Thus, the Ninth upheld the trial court on the preliminary activities. However, it reversed the trial court as to Rutti’s postliminary activities, which it said were more time-consuming. This included connecting with Lojack’s servers to upload data about his work for the day. This was part of Rutti’s regular work and necessary to Lojack’s business, the court wrote, making it part of the company’s “principal business activities.” The court also found that it was not minimal, citing evidence that it could take more than 10 to 15 minutes because of frequent failures, and that it was a regular part of the work. Thus, it may very well have been compensable time under federal law and should not have been dismissed at the summary judgment stage.

Finally, the court ruled that Rutti may have a case under the “continuous work day” doctrine set forth in Dooley v. Liberty Mutual Ins. Co., 307 F. Supp. 2d 234 (D. Mass. 2004), which held that automobile damage appraisers who worked from home were entitled to compensation for commutes because activities they performed at home were “principal activities” that formed part of a continuous work day. Because the court had already determined that Rutti’s preliminary activities were not compensable, it wrote, the morning commute is not part of a continuous workday. The evening commute might be, the Ninth said, except that 29 C.F.R. § 785.16 says employers may not be compelled to compensate workers for periods when they are relieved from duty so long that they can use the time for their own purposes. This was the case with the postliminary upload time, the court said, because Lojack gave technicians 12 hours in which to upload.

Using all of that reasoning, the majority upheld most of the trial court’s rulings, but vacated rulings as to state-law claims for compensation and postliminary claims for the data upload. A separate concurring opinion by Judge Silverman and joined by Judge Hall agreed as to the California state-law claims for commuting. California requires employers to compensate their workers for all time “during which an employee is subject to the control of an employer, the judges wrote, citing Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578 (2000). Because Rutti was subject to multiple rules governing his behavior with the company truck, he was clearly under Lojack’s control, they wrote. Another concurrence authored by Judge Hall alone said the panel should have upheld the trial court on the postliminary data upload as well, because they were minimal. Finally, Judge Callahan dissented from the majority’s opinion on the state-law claims, arguing that Morillion did not apply because Rutti was not required to commute by company bus, as in that case.

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A recent California state appeals court decision caught the eyes of our Chicago employment class action attorneys because it addressed fine distinctions in class certification. In Jaimez v. Daiohs USA, 2010 Cal. App. LEXIS 156 (Feb. 8, 2010), California’s Second District Court of Appeal ruled that a trial court improperly denied class certification when it relied on individual testimony to establish the existence of a uniform employer policy. It agreed, however, that plaintiff Alex Jaimez was an inappropriate class representative.

From 2001 to 2007, Jaimez was a route sales representative for DAIOHS First Choice Services, which provides refreshments and vending-machine products to offices. From 2003 to 2007, all of them were reclassified from overtime-exempt to non-exempt, receiving an hourly wage plus overtime when applicable. In 2007, Jaimez filed this action in Los Angeles Superior Court, seeking to certify four classes of employees who were allegedly denied overtime; meal breaks; rest breaks; or pay stubs.

The plaintiffs argued that First Choice had improperly classified RSRs as exempt before the change, illegally denying overtime, meal breaks and rest breaks. After the change, the company continued not paying overtime, the plaintiffs claimed, but pressured RSRs to finish their routes in eight hours even when the routes were long. The plaintiffs also claimed that they were not informed that they were entitled to another meal break if they worked more than 10 hours. Before 2006, they said, meal breaks were automatically removed from time records regardless of whether they were taken; after 2006, employees were pressured to sign a statement that they took the break, even when they didn’t. These were the result of consistent, uniform corporate policies, the motion said, making class certification appropriate. The proposed class sought back wages and penalties under state law.

First Choice opposed the class certification motion by submitting testimony from 25 current RSRs who said they had no such problem. All of them said they were able to take rest and meal breaks when they wished, are encouraged to do so and have time to do so. Relying on these declarations, the trial court denied class certification, saying Jaimez was not typical enough an the proposed class did not have common questions of law and fact. It also said Jaimez was not a good representative, because pretrial testimony showed that he’d lied about a previous criminal conviction for petty theft when he was hired. Plaintiffs then asked for leave to file a First Amended Complaint with new class representative, but was denied. They appealed both orders.

On appeal, the Second District said the trial court misapplied state class certification standards by considering conflicting issues of fact rather than evaluating whether the plaintiffs’ theory of recovery was appropriate for class treatment. In this case, the plaintiff’s “theory of recovery” includes questions of fact and law that predominate over all RSRs in the class, including questions about First Choice’s policies, record-keeping and misclassification of employees. When the trial court used the RSR declarations submitted by First Choice to deny this, the appeals court said, it incorrectly reached the merits of the claim rather than the question of predominance. In fact, the appeals court said the declarations actually support to some extent the allegations made by the plaintiffs about policies and practices. That RSRs may have different damages does not mean they don’t have common questions of law and fact to try.

The appeals court further found that Jaimez was a sufficiently typical representative of the class, noting that he had submitted nine declarations from others that were substantially similar. However, it also found that he was not an adequate representative because of his dishonesty about his criminal conviction. Thus, the appeals court upheld the trial court’s class certification ruling on that issue, but reversed on all other issues. It also reversed the denial of leave to file a First Amended Complaint, noting that the trial court itself invited Jaimez to file such a complaint and that First Choice did not oppose it. The case was remanded to trial court with instructions to certify subclasses after a new class representative is appointed.

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