Metropolitan News-Enterprise


Thursday, December 13, 2012


Page 3


C.A. Says Court Erred in Not Certifying Wage-and-Hour Class Action


By a MetNews Staff Writer


Technical workers may proceed with their class action lawsuit against three telecommunications companies for alleged violations of wage and hour laws, the Fourth District Court of Appeal held yesterday.

Justice Judith Haller, writing for a unanimous Div. One, said that under the state Supreme Court holding in Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, San Diego Superior Court Judge William R. Nevitt Jr. erred by not certifying a class with the plaintiffs’ claims for overtime and rest and meal break pay, though he did not abuse his discretion by not certifying a class for claims that the defendant required them to underreport their time.

In about 2004, Networkers International, LLC contracted to supply skilled laborers to install and service cell sites in Southern California for EXi Parsons Telecom, Ericsson, and Telecom Network Specialists.

The plaintiffs were three of the approximately 140 skilled workers that Networkers retained to fulfill these contracts and to provide repair and installation services at the sites.

Networkers required each worker to sign a standard “Independent Contractor Agreement,” which stated the worker was an independent contractor rather than an employee.

Based on that characterization, Networkers did not pay premium wages for overtime, compensate the workers for travel or waiting times, or establish a policy requiring meal and rest breaks.

Independent Contractor Claim

In approximately 2006, Networkers replaced its “Independent Contractor Agreement” with an “Employment” agreement and began paying overtime wages to its workers; it did not, however, implement a meal or rest break policy.

Plaintiffs Les Bradley and Edwin Jennings left Networkers before the change to the new employment agreement. Plaintiff Versil Milton signed it, but left the company soon after.

Several months after leaving the company, the plaintiffs filed a class action lawsuit, alleging that Networkers failed to pay overtime, to provide rest and meal breaks, and to maintain required employment records. They also claimed that Networkers had required them to underreport their hours.

As part of the basis for their suit, they claimed that although Networkers hired each worker using the standard “Independent Contractor Agreement,” the actual relationship was, in fact, one of employer-employee.

They sought to represent a class of the 140 technical support personnel who worked for Networkers in California at cell sites owned or operated by the company’s telecommunications customers.

Nevitt concluded that individual issues relating to the existence and amount of damages for each class member would predominate and would make a class action unmanageable. On initial appeal, the Fourth District agreed.

Granted and Held

But in May 2009, the California Supreme Court granted plaintiffs’ petition for review, and ordered the case held pending the high court’s decision in Brinker. After that case was decided, the high court remanded the case to the appellate court “with directions to vacate its decision and to reconsider the cause in light of Brinker.”

In doing so the panel found that Nevitt erred in denying plaintiffs’ certification motion, except with respect to the claims relating to alleged “off-the-clock” violations.

Haller noted that there was “a foundational legal question” of whether plaintiffs were independent contractors, in which case Networkers was not required to comply with rules governing overtime and meal and rest periods, or whether they were employees.

Without resolving the question, the justice said the evidence relevant to the factual question whether the class members were employees or independent contractors was common among all class members,” and “would be relevant in each class member’s case against Networkers and would constitute the focus of the proof” on the issue.

Haller added:

“The critical fact is that the evidence likely to be relied upon by the parties would be largely uniform throughout the class.”

With respect to plaintiffs’ claims about meal and rest breaks, Haller wrote:

“The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof. Although an employer could potentially defend these claims by arguing that it did have an informal or unwritten meal or rest break policy, this defense is also a matter of common proof.”

Brinker Applied

In addition, Haller noted that under the logic of Brinker, “when an employer has not authorized and not provided legally-required meal and/or rest breaks, the employer has violated the law and the fact that an employee may have actually taken a break or was able to eat food during the work day does not show that individual issues will predominate in the litigation.”

The justice said that class certification was also appropriate with respect to the plaintiffs’ claims for damages for meal/rest break violations, as “proof of the damages would be a simple matter of directly calculating the outstanding amounts owed from the pay records.”

The panel rejected the plaintiffs’ assertion, however, that Nevitt abused his discretion by failing to certify the class on their claims that Networkers violated state law by requiring class members not to record all of their work time.

“The factual record does not necessarily show Networkers had a uniform policy requiring each employee to work off the clock,” Haller wrote. “Instead, there is evidence … [that the] claims arose from individual actions of particular supervisors and the extent … varied substantially for each worker and for each job.”

The panel remanded the issue to the trial court for further consideration, however, noting that such a decision was “prudent” where “the factual and legal landscape has changed … and it is not clear that the court considered the off-the-clock issues separately from the overtime claim.”

Presiding Justice Judith McConnell and Justice Alex McDonald concurred in the opinion

The case is Bradley v. Networkers International, LLC, 12 S.O.S. 6377.


Copyright 2012, Metropolitan News Company