Muldrow v. Surrex: On Remand After Brinker, Court of Appeal Affirms Holding that Class Members Were Commissioned Sales Exempt and Employer Provided Meal Periods

In Muldrow v. Surrex Solutions Corporation (1/24/12) 202 Cal.App.4th 1232 (blogged here), a recruiter sued his employer for failure to pay overtime and meal period compensation. The trial court (San Diego Superior, Judge Nugent) certified the class, and the parties tried the case to the court. The trial court found that the class members were subject to the commissioned sales exemption from the overtime requirements, that the employer provided meal periods to them, and that it was not obligated to ensure that they took their meal periods. The Court of Appeal affirmed, but the California Supreme Court granted review pending its decision in Brinker v. Superior Court (4/12/12) 53 Cal.4th 1004.  

On remand, the Court of Appeal affirmed its prior decision -- not impacted by Brinker -- that the recruiters were subject to the commissioned sales exemption because: 

1. The class members were engaged principally in selling services (slip op. at 12-15); 
2. The class members' commissions were sufficiently related to the price of those services (slip op. at 16-22); and 
3. The employer's payment of draws against commissions constituted a bona fide commission system (slip op. at 22-24). 

The Court also affirmed its prior decision that the employer had provided the required meal periods to the class members and was under no obligation to ensure that they took their meal periods.  Slip op. at 24-25.  

The opinion is available here.