Bradley v. Networkers Int'l, LLC

• Decision Date: 08 January 2013
• Docket Number: D052365
• Parties: LES BRADLEY et al., Plaintiffs and Appellants, v. NETWORKERS INTERNATIONAL, LLC, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

LES BRADLEY et al., Plaintiffs and Appellants, v. NETWORKERS INTERNATIONAL, LLC, Defendant and Respondent.

D052365

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Filed: December 12, 2012

Filed: January 8, 2013

CERTIFIED FOR PUBLICATION

(Super. Ct. No. GIC862417)

ORDER DENYING PETITION FOR

REHEARING AND MODIFYING

OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

Respondent's petition for rehearing is denied.

It is ordered that the opinion filed herein on December 12, 2012, be modified as follows:

1. On page 27, in the second sentence in the second paragraph, the word "provide" is changed to the phrase "authorize and permit" so the sentence reads:

An employer also has a duty to authorize and permit rest breaks; the number of breaks depends on the length of the shift.

2. In that same paragraph on page 27, the citation to Lamps Plus Overtime Cases (2012) 209 Cal.App.4th 35, 49 (Lamps Plus) is deleted.

3. On page 33, the citation to Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487, 1495 in the second full paragraph is deleted.

4. The paragraph beginning on page 35 extending to page 36, beginning with the words "This case is also factually distinguishable," and ending immediately prior to subheading B, is deleted in its entirety and replaced with the following paragraph:

This case is also factually distinguishable from other post-Brinker decisions upholding the denial of class certification on meal/rest break claims. (See, e.g., Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077.) In Tien, there was "overwhelming" evidence that the employer "made meal periods available to employees," and thus the evidence of the employer's liability to each employee depended on numerous individual issues regarding the employee's particular situation. (Id. at pp. 1084, 1087, 1090.) ⁹

5. On page 36, the following language is added as a new paragraph at the end of footnote number 9:

In a petition for rehearing, Networkers argues that the trial court erred in failing to specifically rule on each of its 227 evidentiary objections. However, by failing to raise and/or develop this contention in their appellate briefs, Networkers has waived the argument. Additionally, contrary to Networkers' assertions in its rehearing petition, nothing in this opinion is intended to expand an employer's rest break obligations beyond the standards discussed by the Brinker court.

There is no change in the judgment.

_________________

McCONNELL, P. J.

OPINION ON REMAND F ROM THE CALIFORNIA SUPREME COURT

CERTIFIED FOR PUBLICATION

LES BRADLEY et al., Plaintiffs and Appellants,

v.

NETWORKERS INTERNATIONAL, LLC, Defendant and Respondent.

D052365

(Super. Ct. No. GIC862417)

APPEAL from an order of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge. Reversed and remanded with directions.

Aiman-Smith & Marcy, Randall B. Aiman-Smith, Reed W. L. Marcy and Hallie Von Rock for Plaintiffs and Appellants.

Seyfarth Shaw, Jonathan D. Meer, Brandon R. McKelvey, Ann H. Qushair and Dennis S. Hyun for Defendant and Respondent.

Three plaintiffs¹ filed a class action complaint against Networkers International, LLC (Networkers), alleging violations of wage and hour laws including those governingovertime pay, rest breaks, and meal breaks. Plaintiffs moved to certify the class, but the court denied the motion, concluding plaintiffs did not meet their burden to show common factual and legal questions would predominate over individual issues. Plaintiffs appealed. In February 2009, we filed an unpublished opinion affirming the trial court's order, concluding the court's ruling was not an abuse of discretion. (Bradley v. Networkers International, Inc. (Feb. 5, 2009, D052365) (Bradley I).)

In May 2009, the California Supreme Court granted plaintiffs' petition for review, and ordered the Bradley I case held pending the high court's decision in Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, review granted October 22, 2008, S166350. Three years later, in April 2012, the California Supreme Court issued its Brinker decision. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker).) The court then remanded Bradley I to this court "with directions to vacate its decision and to reconsider the cause in light of Brinker . . . ."

Following the remand, the parties submitted extensive supplemental briefs pertaining to Brinker and other judicial decisions filed after our previous opinion. After reexamining the record in light of Brinker, we conclude the trial court erred in refusing to certify the class with respect to each of plaintiffs' claims except for the claims based onalleged off-the-clock violations. With respect to these claims, we remand for the court to reconsider the certification issues in light of this opinion and Brinker.²

FACTUAL AND PROCEDURAL BACKGROUND

Networkers is a business that provides technical personnel services to the telecommunications industry. In about 2004, Networkers contracted with three telecommunications companies, EXi Parsons Telecom LLC (EXi), Ericsson Inc. (Ericsson), and Telecom Network Specialists, to supply skilled laborers to install and service cell sites in Southern California.³ Each of these contracts provided that the laborers would perform work under the direction of supervisors employed by the telecommunications company and set forth detailed requirements for worker qualifications and the work to be performed. Under these contracts, Networkers was responsible for recruiting and managing the workers, and warranted the work would be performed in a satisfactory manner.

Networkers thereafter retained approximately 140 skilled workers, including the three named plaintiffs, to fulfill these contracts and provide repair and installation services at the cell sites. Most workers were hired to work on cell sites for a particularcustomer, e.g., some workers were hired and trained to work only on Ericsson/T-Mobile cell sites, and others were hired and trained to work only on EXi sites. Plaintiffs Bradley and Milton worked at Ericsson/T-Mobile cell sites and plaintiff Jennings worked at EXi cell sites.

Networkers required each worker to sign a standard contract, entitled "Independent Contractor Agreement," which stated the worker was an independent contractor rather than an employee. Based on its characterization of the workers as independent contractors, Networkers did not pay premium wages for overtime, compensate the workers for travel or waiting times, or establish a policy requiring meal or rest breaks.

In late 2005 or early 2006, plaintiffs Bradley and Jennings (along with numerous other workers) terminated their relationship with Networkers. Shortly after, Networkers replaced its "Independent Contractor Agreement" with an "Employment" agreement. Networkers began paying overtime wages to these workers, but did not implement a meal or rest break policy. Plaintiff Milton signed the new employment agreement, but left the company soon after.

Within several months, the three plaintiffs filed a class action lawsuit against Networkers, alleging Networkers violated wage and hour laws by failing to pay overtime and provide rest and meal breaks, failing to maintain required employment records, and requiring plaintiffs to underreport their hours. Plaintiffs claimed that although Networkers hired each worker using the standard " 'Independent Contractor Agreement,' " the actual relationship was in fact an employer-employee relationship and thereforeNetworkers was governed by state wage and hour laws. Plaintiffs sought to represent a class of 140 technical support personnel who worked in California for Networkers at cell sites owned or operated by Networkers' customers.⁴

Based on these factual allegations, plaintiffs asserted seven causes of action: (1) failure to pay overtime compensation (Lab. Code,⁵ §§ 510, 1194); (2) failure to provide adequate meal periods (§§ 226.7, 512; Wage Order No. 4); (3) failure to provide rest time (Wage Order No. 4); (4) failure to furnish accurate wage statements (§§ 226, 226.3; Wage Order No. 4); (5) failure to keep accurate payroll records (§§ 1174, 1174.5; Wage Order No. 4); (6) waiting time penalties (§ 201 et seq.); and (7) unfair business practices (Bus. & Prof. Code, § 17200 et seq.).

Plaintiffs then moved to certify the complaint as a class action. In support, they submitted a copy of Networkers' standard Independent Contractor Agreement, and produced evidence that it was signed by each putative class member. The agreement contained numerous provisions reflecting an independent contractor relationship,including that the worker was "responsible for determining when, where and how the Work is performed"; the worker was entitled to delegate the work or designate other individuals to perform the work; the worker could bid for the jobs; and the worker was required to maintain liability, errors and omissions, and workers compensation insurance.

Each named plaintiff also proffered his declaration asserting that Networkers did not adhere to these contractual provisions, and instead treated all of its workers as employees, and these employment policies were uniformly applied to all putative class members. The declarations provided detailed descriptions of the manner in which each plaintiff was hired by Networkers, the work assignment process, and the nature of the job and working conditions. We summarize these declarations below.

In his declaration, plaintiff Milton stated that Networkers hired him in December 2004 as a field technician after being recruited by Networkers employee Pete Wu. Milton signed the standard " 'Independent Contractor Agreement,' " but did not understand he was not an employee entitled to state law employee protections. Despite the express terms of the agreement, Milton was not required to have liability, errors and omissions, or workers' compensation insurance; he was not permitted to delegate the work; he was...