Corbin v. Time Warner Entertainment–Advance/Newhouse P'ship

• Decision Date: 02 May 2016
• Docket Number: No. 13–55622.,13–55622.
• Citation: 821 F.3d 1069
• Parties: Andre CORBIN, individually and on behalf of other members of the public similarly situated, Plaintiff–Appellant, v. TIME WARNER ENTERTAINMENT–ADVANCE/NEWHOUSE PARTNERSHIP, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

821 F.3d 1069

Andre CORBIN, individually and on behalf of other members of the public similarly situated, Plaintiff–Appellant

v.TIME WARNER ENTERTAINMENT–ADVANCE/NEWHOUSE PARTNERSHIP, Defendant–Appellee.

No. 13–55622.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 3, 2015.

Filed May 2, 2016.

William B. Sullivan (argued) and Eric Y. Yaeckel, Sullivan Law Group LLP, San Diego, CA, for Plaintiff–Appellant.

Joseph W. Ozmer, II (argued), Michael D. Kabat, J. Scott Carr, and Rachel E. Sankey, Wargo & French LLP, Atlanta, GA, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of California, Gonzalo P. Curiel, District Judge, Presiding. D.C. No. 3:11–cv–01057–GPC–RBB.

Before: DIARMUID F. O'SCANNLAIN, STEPHEN S. TROTT, and JAY S. BYBEE, Circuit Judges.

OPINION

BYBEE

, Circuit Judge:

This case turns on $15.02 and one minute. $15.02 represents the total amount of compensation that Plaintiff Andre Corbin (“Corbin”) alleges he has lost due to his employer's, Defendant Time Warner Entertainment–Advance/Newhouse Partnership (“TWEAN”), compensation policy that rounds all employee time stamps to the nearest quarter-hour. One minute represents the total amount of time for which Corbin alleges he was not compensated as he once mistakenly opened an auxiliary computer program before clocking into TWEAN's timekeeping software platform. $15.02 in lost wages and one minute of uncompensated time, Corbin argued before the district court, entitled him to relief under the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq.,

and various California state employment laws.

The district court disagreed and granted summary judgment to TWEAN. The court determined that because the company's rounding policy was neutral on its face and in practice, TWEAN's policy complied with the federal rounding regulation, see 29 C.F.R. § 785.48(b)

, and Corbin's $15.02 in lost wages did not present an issue of material fact. The court also held that the one minute of uncompensated time Corbin spent logging into an auxiliary computer program before logging into TWEAN's timekeeping software was de minimis as a matter of law.

We have jurisdiction under 28 U.S.C. § 1291

, and we affirm.

I

A. Facts

TWEAN operates a call center in San Diego, California where its employees field telephone calls from customers. Until May of 2010, non-exempt employees at the facility recorded their work hours by swiping their employment badges through a wall clock mounted at the entrance to the call center. After May 4, 2010, TWEAN transitioned to an online timekeeping platform, implementing a recording system known as Kronos Connect. Kronos Connect directly links an employee's time stamps to a program called Avaya, a “soft-phone system” that must be activated before employees can begin taking customer phone calls. When an employee logs into Avaya to begin work, he is automatically clocked into Kronos. Similarly, when an employee logs out of Avaya, he is automatically clocked out of Kronos. The “Avaya/Kronos” system was designed to help prevent off-the-clock work, blocking employees from answering customer calls unless they are properly clocked into TWEAN's timekeeping software.

TWEAN's compensation policies incorporate a “rounding” procedure that relies on the time stamps recorded by the Avaya/Kronos system. When an employee uses Avaya/Kronos to clock in for work, to clock in and out for lunch, and to clock out at the end of the day, the system rounds each time stamp recorded to the nearest quarter-hour. For example, an employee who clocks in at 8:07 a.m. to begin his workday would see his wage statement reflect a clock-in of 8:00 a.m., rounding his time to the nearest quarter-hour and crediting him with seven minutes of work time for which he was not actually on the clock. Similarly, an employee who clocks out at 5:05 p.m. to end her workday would see her wage statement reflect a clock-out of 5:00 p.m., again rounding her time to the nearest quarter-hour and deducting five minutes of work time for which she was actually on the clock. At the end of each pay period, TWEAN's non-exempt employees are paid in accordance with these rounded figures.

Corbin worked for TWEAN at the San Diego call center from July 20, 2007 to June 15, 2011. Hired to answer customer calls, Corbin was classified as a “technical support agent,” a non-exempt position paid on an hourly basis. Like all of TWEAN's non-exempt employees, Corbin's Avaya/Kronos clock-ins and clock-outs were rounded to the nearest quarter-hour. Since the implementation of the Avaya/Kronos timekeeping system in May of 2010, Corbin worked 269 shifts subject to TWEAN's rounding policy; he gained compensation or broke even in 58% of them. In total, however, the parties agree that as a result of TWEAN's rounding policy, Corbin lost $15.02 in aggregate compensation over the period stretching from May 5, 2010 to his resignation on June 15, 2011. Additionally, Corbin once logged onto an auxiliary computer program before logging into Avaya/Kronos. Swapping this order of operations cost him one minute of compensable time, as the minute spent logging into the auxiliary program was not captured by the Avaya/Kronos timekeeping system.

B. Procedural History

Corbin filed this action in the Superior Court of California in 2011. TWEAN removed the case to federal court pursuant to the Class Action Fairness Act. See 28 U.S.C. § 1332(d)

.¹ Corbin then filed an amended complaint, alleging a collective action pursuant to 29 U.S.C. § 216(b) for violations of the FLSA, as well as various class actions for violations of California employment laws.

In 2012, Corbin moved to file a second amended complaint, seeking to add several new claims, including the rounding claim at issue in this appeal. That motion was denied later that year, as was Corbin's motion to certify a class of California employees based on the claims alleged in his first amended complaint. Corbin filed a motion for reconsideration on the district court's class certification order in January of 2013. Two months later, the district court granted TWEAN's motion for summary judgment in its entirety and entered final judgment in favor of TWEAN.²

II

We review the district court's grant of summary judgment de novo. Pavoni v. Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir.2015)

. We “must determine, viewing the evidence in the light most favorable to the nonmoving party, whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact.” Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc). A “genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir.2010) (quoting Caneva v. Sun Cmtys. Operating Ltd. P'ship (In re Caneva), 550 F.3d 755, 761 (9th Cir.2008) (as amended)).

We review a district court's decision to grant summary judgment prior to deciding a motion for class certification for abuse of discretion. Wright v. Schock, 742 F.2d 541, 543–44 (9th Cir.1984)

.

III

Corbin's core claims center on two of TWEAN's employment practices. First, Corbin argues that TWEAN's rounding policy deprived him of the full amount of his earned wages, specifically overtime compensation. We will refer to this as the “rounding claim.” Second, Corbin alleges that TWEAN permitted employees to load auxiliary computer programs before clocking into the Kronos/Avaya system, a practice, he claims, that denied him full compensation for time spent actually working. We will refer to this as the “logging-in” claim. Corbin raises the rounding and logging-in claims as violations under the FLSA, and these violations also serve as the basis for Corbin's claims under California wage laws.³ Additionally, Corbin alleges that the district court improperly truncated the scope of his claims by considering only evidence post-dating TWEAN's transition to the Avaya/Kronos timekeeping system on May 4, 2010. Finally, Corbin asserts that the district court erred by refraining from ruling on his motion for reconsideration of the court's earlier order denying Corbin's motion for class certification.

We address each contention in turn.

A. Rounding Claim

Corbin argues that TWEAN's rounding policy violates 29 C.F.R. § 785.48(b)

, the federal rounding regulation, because it is not facially neutral or neutral as applied to Corbin. We reject this argument. However, before addressing whether TWEAN's rounding policy meets the requirements of § 785.48(b), we address Corbin's threshold arguments that seek to undermine the validity of the rounding timekeeping method more broadly.

1. The Federal Rounding Regulation

For more than fifty years, a federal regulation has endorsed the use of “ ‘Rounding’ practices.” See Wage and Hour Division, Department of Labor, 26 Fed.Reg. 190, 195 (January 11, 1961)

. Codified at 29 C.F.R. § 785.48(b), the current regulation reads in full:

“Rounding” practices. It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees' starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.

This regulation permits “employers to efficiently calculate hours worked without imposing any burden on employees,” offering employers a “practical method for calculating work time” and a “neutral calculation tool for...