Aleman v. Airtouch Cellular: On Remand, Court Rules on Attorney Fees In Split Shift and Reporting Time Class Action

In Aleman v. AirTouch Cellular (2011) 202 Cal.App.4th 117 (discussed here) the Court of Appeal affirmed an order granting summary judgment to an employer in a putative class action, issuing three holdings of note:

First, an employer does not have to pay its employees “reporting time pay” for attending meetings at work when the meetings are scheduled, and the employees work at least half the scheduled time, even if the scheduled time is less than four hours.

Second, an employer does not owe its employees “split shift” compensation if, when they work split shifts, they earned more than the minimum wages required by the wage order.

Third, the employer could not recover its attorney fees because the claims arose under Labor Code section 1194, the one-way fee-shifting statute for minimum wage and overtime claims, rather than section 218.5, which allows either party to recover its fees when it succeeds in an action for the nonpayment of wages.

In March, 2012, the California Supreme Court granted review in Aleman pending its decision in Kirby v. Immoos Fire Protection, Inc. The Court issued its Kirby  decision in April (discussed here) and transferred Aleman back to the Court of Appeal for reconsideration.

The Court of Appeal issued its new decision last week. Aleman v. AirTouch Cellular (9/20/12) --- Cal.App.4th ---. The Court again held that the plaintiffs could not recover reporting time pay (slip op. at 9-16) or split shift compensation (slip op. at 16-19).

The Court reversed its earlier decision on attorney fees in part. It began by reviewing Kirby, which held that Labor Code section 226.7 claims for missed meal and rest periods are not subject to Labor Code section 1194 because they are not minimum wage claim, nor are they subject to section 218.5 because they are claims for failure to provide meal and rest periods, not claims for nonpayment of wages.

Applying this logic, the Aleman Court held: (1) a split shift claim is a claim for minimum wages and is subject to section 1194 (slip op. at 25-26); but (2) a reporting time pay claim is not a minimum wage claim, and is subject to section 218.5, rather than section 1194 (slip op. at 26-27). The Court remanded to the trial court to award the defendant only such fees as were attributable to the reporting time claims.

The opinion is available here.  

Aleman v. AirTouch Cellular: Supreme Court Denies Publication Request

In March, the California Supreme Court granted review in Aleman v. AirTouch Cellular (blogged here) pending its decision in Kirby v. Immoos Fire Protection, Inc.  The Court issued its decision in Kirby (discussed here) in April and transferred Aleman back to the Court of Appeal for reconsideration in light of Kirby.  

The Supreme Court today denied the employer's request that the Court of Appeal's prior decision in Aleman be published.  I have not read the briefs, but I assume the request was based on the fact that Aleman covered reporting time and split shift issues that were not impacted by Kirby.  I assume that the Court of Appeal will not change its rulings on those issues, but it will be interesting to see whether the Court of Appeal publishes its decision on remand and, if so, how the Supreme Court responds.

Aleman v. AirTouch Cellular: Court Issues Decision on Reporting Time, Split Shifts

In Aleman v. AirTouch Cellular (12/21/11) --- Cal.App.4th ----, the Court of Appeal affirmed an order granting summary judgment (Los Angeles Superior Court, Judge William Highberger) to an employer in a putative class action.

The plaintiffs alleged that the defendant violated two separate provisions of Industrial Welfare Commission (IWC) Wage Order No. 4-2001. They alleged that defendant: (1) failed to pay reporting time pay for days when they were required to report to work just to attend work-related meetings; and (2) failed to pay split shift compensation for days on which they attended a meeting in the morning and worked another shift later the same day.

The trial court granted motions for summary judgment against two of the named plaintiffs. The Court of Appeal affirmed, issuing three holdings of note.

First, the defendant did not have to pay the plaintiffs “reporting time pay” for attending meetings at work, because all the meetings were scheduled, and the plaintiff worked at least half the scheduled time, even if the scheduled time was less than four hours.  In other words,  if an employee's only scheduled work for the day is a mandatory meeting of one and a half hours, and the employee works a total of one hour because the meeting ends a half hour early, the employer is not required required to pay reporting time pay pursuant to subdivision 5(A) of Wage Order 4 in addition to the one hour of wages because the employee was furnished work for more than half the scheduled time.  Slip op. at 10.

Second, the defendant did not owe the plaintiffs additional compensation for working “split shifts” because on each occasion he worked a split shift he earned more than the minimum amount required by the wage order.  Slip op. at 17.  In other words, the plaintiff would be entitled to split shift pay only if his total earnings for the day were less than the number of hours worked, plus the split shift premium of one hour's pay, at the minimum wage rate.  Ibid.

Third, the defendant could not recover its attorney fees from the plaintiffs because the claims arose under Labor Code section 1194, the one-way fee-shifting statute, rather than section 218.5, which allows either successful party to recover its fees.  Slip op. at 22.  "Ultimately, reporting time and split shift pay requirements serve the same general purpose as Labor Code section 1194."  Slip op. at 25.

The opinion is available here.

Securitas v. Superior Court: Court of Appeal Affirms Judgment on Split Shift Issue

Securitas Security Services USA, Inc. v. Superior Court (Holland) (July 7, 2011) --- Cal.App.4th ----, 2011 WL 2641699, presents a discrete split shift issue. The plaintiffs are security guards. They allege failure to pay split shift pay, among other violations. The defendant moved for summary adjudication on the split shift cause of action:

Securitas moved for summary adjudication of the second count only, arguing that plaintiffs are not entitled to split-shift pay because they do not work “split shifts” as defined in Wage Order No. 4. Securitas argued that an uninterrupted work shift that spans midnight and falls in two calendar days and two workdays is not a split shift, and that a split shift does not occur if an employee ends such an overnight shift in the morning and begins another overnight shift late in the evening of the same workday. Plaintiffs argued in opposition that a split shift occurs whenever an employee works two nonconsecutive periods in the same workday, such as when a shift begins on one workday and ends on another and the employee then returns to work several hours later on the second workday. Plaintiffs also argued that Securitas had failed to pay split-shift pay not only where the employee worked shifts spanning midnight on consecutive days, but also where the employee worked nonconsecutive periods in the same workday without working through midnight.

Slip op. at 1. The trial court (Los Angeles Superior, Judge Jones) denied the motion, holding that a split shift occurs "whenever an employee works two nonconsecutive periods of time in the same workday." Slip op. at 2. Securitas filed a writ petition. The Court of Appeal reversed the trial court on the split shift issue:

Wage Order No. 4 defines a “split shift” as “a work schedule” that “is interrupted by non-paid non-working periods established by the employer, other than bona fide rest or meal breaks.” (Cal.Code Regs., tit. 8, § 11040, subd. 2(Q).) The term “work schedule” is not defined in either the wage order or the Labor Code. In the context of a provision establishing minimum wages to compensate employees who are required to return to work after an interruption in their “work schedule,” we believe that a “work schedule” simply means an employee's designated working hours or periods of work. In our view, this is so irrespective of the “workday” established by the employer. A “split shift” occurs only when an employee's designated working hours are interrupted by one or more unpaid, nonworking periods established by the employer that are not bona fide rest or meal periods. The fact that a single continuous shift happens to begin during one “workday” and end in another does not result in a “split shift.” Thus, employees working uninterrupted overnight shifts on consecutive days do not work a split shift and are not entitled to split-shift pay under the wage order.

Slip op. at 4. Regardless, the Court found that summary adjudication was not appropriate and denied the writ:

Plaintiffs' second count for failure to pay split-shift premiums ... is not limited to purported split shifts created by consecutive overnight shifts, but also encompasses other instances in which they allegedly worked split shifts. Securitas made no effort to show that plaintiffs have not worked split shifts in other circumstances that might fall within the wage order definition for which they may be entitled to split-shift pay. We therefore conclude that Securitas failed to sustain its burden as the party moving for summary adjudication to show that plaintiffs cannot establish an element of their cause of action and are not entitled to summary adjudication.

Slip op. at 5.

The opinion is available here.