Metropolitan News-Enterprise


Thursday, September 20, 2012


Page 1


Court of Appeal Revives Class Action Bid by Newspaper Carriers




The Court of Appeal for this district yesterday revived a bid by newspaper carriers to bring a labor law class action against the company that publishes the Antelope Valley Press.

Div. Four, in an unpublished opinion by Thomas Willhite, said the plaintiffs established that the issue of whether the carriers were employees or independent contractors could be resolved on a class-wide basis, contrary to the trial court’s ruling. The action was sent back to the Los Angeles Superior Court for further proceedings.

The plaintiffs alleged in their complaint that the company misclassified them as independent contractors, thus depriving them of overtime wages, meal and rest breaks or compensation in lieu thereof, payment of reasonable business expenses, and itemized wage statements, all in violation of the Labor Code. They also claimed the newspaper made illegal deductions from their wages in response to customer complaints, charged them for supplies, and required them to provide their own workers’ compensation coverage.

Parties’ Contentions

The plaintiffs claimed that they operated under precise instructions from management as to where to place newspapers, whether to start or stop delivery as to specific customers, what inserts to put in the newspapers, and what types of bags to use on a particular day. The company responded that the only requirement it imposed was that each customer receive a dry, readable newspaper each day, and that its communications to the employees were means to that end, not independent job requirements.

Superior Court Judge Carl J. West—who has since retired—ruled that in order to determine whether the newspaper exercised sufficient control over the employees’ activities to require they be classified as employees, there would have to be “heavily individualized inquiries.” Even if the employees were found as a class to be employees, he added, there would have to be individualized determinations with respect to overtime and breaks, since the evidence showed that the hours and days worked by the carriers varied widely.

The Court of Appeal agreed with the trial judge on the latter point, affirming the denial of class certification with regard to the issues of overtime and meal and rest breaks. But the court must, on remand, certify a class action with respect to the remaining claims unless it finds individual issues predominant with respect to liability, the panel said.

Form Agreements

Willhite noted that all of the carriers entered into the same form agreements with the company. While there were disagreements as to what policies the company had, or didn’t have, with respect to how carriers were required to do their jobs, those disagreements did not preclude a classwide determination as to whether the carriers were employees or independent contractors, the justice said.

He explained:

“The parties do not argue that some carriers operating under the form agreements are employees while others are not.  Both sides argue that AVP has policies that apply to all carriers. The difference between the parties is the content of those policies....While there may be conflicts in the evidence regarding whether the policies plaintiffs assert exist, the issue itself is common to the class.  Similarly, whether the policies that exist are ones that merely control the result, rather than control the manner and means used to accomplish that result, is an issue that is common to the class.”

Attorneys on appeal were Daniel J. Callahan, Jill A. Thomas, Michael J. Sachs, Kathleen L. Dunham and Scott D. Nelson of Callahan & Blaine for the plaintiffs and William C. Rava and Sue J. Scott of Perkins Coie for the defendant.

The case is Ayala v. Antelope Valley Newspapers, Inc., B235484.


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