Donohue v. Amn Servs., LLC

• Citation: 241 Cal.Rptr.3d 111,29 Cal.App.5th 1068
• Decision Date: 21 November 2018
• Docket Number: D071865
• Court: California Court of Appeals
• Parties: Kennedy DONOHUE, Plaintiff and Appellant, v. AMN SERVICES, LLC, Defendant and Respondent.

29 Cal.App.5th 1068

241 Cal.Rptr.3d 111

Kennedy DONOHUE, Plaintiff and Appellant,

v.AMN SERVICES, LLC, Defendant and Respondent.

D071865

Court of Appeal, Fourth District, Division 1, California.

Filed November 21, 2018

As Modified December 28, 2018

Sullivan Law Group, William B. Sullivan, Eric K. Yaeckel and Clint S. Engleson, San Diego, for Plaintiff and Appellant.

DLA Piper, Mary Dollarhide, San Diego, and Betsey Boutelle for Defendant and Respondent.

IRION, J.

In this wage and hour class and representative action, the trial court granted a motion for summary judgment brought by defendant AMN Services, LLC (AMN), and denied motions for summary adjudication of one cause of action and one affirmative defense brought by plaintiff Kennedy Donohue, individually and on behalf of five certified plaintiff classes she represents (together Plaintiffs). In her appeal from the judgment, Donohue challenges the grant of AMN's motion for summary judgment and the denial of her motion for summary adjudication of one of the causes of action. On appeal, Donohue also challenges what she characterizes as the trial court's "fail[ure] to hear a proper motion for reconsideration" of the summary judgment and summary adjudication rulings.

As we explain, we lack jurisdiction to review the postjudgment order that resulted in the court's decision not to hear Donohue's motion for reconsideration, and in our de novo review of the summary judgment and summary adjudication rulings, we conclude that Donohue did not meet her burden of establishing reversible error. Accordingly, we affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

" ‘Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion.’ " ( Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717, 68 Cal.Rptr.3d 746, 171 P.3d 1082.) We consider all the evidence in the moving and opposing papers, liberally construing and reasonably deducing inferences from Donohue's evidence, resolving any doubts in the evidence in Donohue's favor. ( Id. at p. 717, 68 Cal.Rptr.3d 746, 171 P.3d 1082 ; Code Civ. Proc., § 437c, subd. (c).) For the most part, the relevant facts are not in dispute.

A. The Parties

AMN, a healthcare services and staffing company, recruits nurses for temporary contract assignments. AMN employed Donohue as a nurse recruiter in its San Diego office between September 2012 and February 2014.

Donohue earned a base hourly rate plus commissions, bonuses, and other forms of nondiscretionary performance-based pay.

B. AMN's Timekeeping System & Policies

During the time AMN employed Donohue, AMN used a computer-based timekeeping system known as "Team Time" for all nonexempt employees, which included nurse recruiters. Recruiters like Donohue used Team Time at their desktop computers by clicking on an icon to open the program each day, after which they usually made four entries: Recruiters would "punch in" for the day, "punch out" when they took a meal break, punch back in when they returned from their meal break, and punch out at the end of the day.

Team Time rounded recruiters' punch times—both punch in and punch out—to the nearest 10-minute increment.¹ To establish the proper hourly compensation, AMN would convert each 10-minute increment to a decimal (to the nearest hundredth of a minute),² total the number of hours (to the nearest hundredth of a minute), and multiply the total hours by the recruiter's hourly rate.

If a recruiter believed that a recorded punch time was inaccurate—e.g., the recruiter may have worked while not clocked in or forgotten to punch in or out—AMN's written policy allowed the recruiter to contact his or her manager, who would then notify the recruiter that his or her computer timecard had been unlocked and opened for correction by the recruiter.

Recruiters did not have predetermined times during which they were required to take meal or rest breaks, but AMN had a written policy by which recruiters were: "provided meal breaks and authorized and permitted rest breaks in accordance with California law;"³ "expected to take meal breaks as provided and rest breaks as authorized and permitted and in accordance with this policy"; and "required to accurately record their meal breaks on their time cards and to report to the Company if they are not provided with a meal break or authorized and permitted a rest break or do not otherwise take a meal break." More specifically, this written policy provided: "[Recruiters] who work more than five hours per day are provided an uninterrupted 30 minute meal period no later than the end of the [recruiter]'s fifth hour of work. If a [recruiter] works more than five but no more than six (6) hours in a workday, the meal period may be waived by mutual consent of the Company and [the recruiter]."

Whenever there was noncompliance with the meal period requirements—e.g., if the recruiter did not punch out to take a meal period before the end of the fifth hour of work, or if the meal period was less than 30 minutes—AMN had a policy in place to ensure what it considered an appropriate remedy. During the first few weeks of Donohue's employment in September 2012, for any noncompliant meal period, Team Time assumed a Labor Code violation, and the recruiter automatically received the full statutory meal period penalty payment.⁴ At all relevant times after mid-September 2012, if a recruiter's meal period was missed, shortened, or delayed, Team Time automatically provided a drop-down menu that required the recruiter's response. If the recruiter indicated that he or she chose not to take a timely 30-minute meal period, then AMN did not pay a meal period penalty; however, if the recruiter indicated that he or she was not provided the opportunity to take a timely 30-minute meal period, then AMN paid the recruiter the full statutory meal period penalty.⁵ We note that Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 139 Cal.Rptr.3d 315, 273 P.3d 513 ( Brinker ) became final in May 2012 and that AMN changed its policy to provide the drop-down menu in September 2012. We infer that AMN effected the change in an effort to comply with the holding in Brinker , where the Supreme Court concluded that, although "an employer's obligation is to relieve its employee of all duty" during a meal period, "the employer need not ensure that no work is done"; rather, "the employee [is] thereafter at liberty to use the meal period for whatever purpose he or she desires." ( Id. at p. 1017, 139 Cal.Rptr.3d 315, 273 P.3d 513.)

AMN's written policy directed recruiters to "accurately record their meal breaks every day" as follows: "[Recruiters] should ‘clock out’ on their timesheet at the start of their meal period and ‘clock in’ when they return to work. Meal breaks are unpaid. [Recruiters] who are not provided a meal period as defined above will receive payment for hours worked and an additional hour's pay. [Recruiters] who waive a meal period as permitted by this policy, or who otherwise do not take a meal period which was provided as defined above, are paid for hours worked. [Recruiters] who do not take a full and timely meal period for any reason must report this on their time sheets and must also report if they were provided or not provided, as defined in this policy, with the meal period. [Recruiters] who report that they were provided a timely and full meal break but did not take it, took a shorter break or a later break are representing that he/she did so voluntarily."

In addition to hourly compensation, AMN also paid nurse recruiters like Donohue "different types of non-discretionary commissions, performance bonuses, and other incentive pay."⁶ These bonuses, which may be earned monthly or quarterly, are often due and calculable only after the pay period during which the work was performed; and in the event additional overtime must be paid on such amounts, it is calculated by a complex formula. These bonus-related overtime adjustments—which are not tied to the recruiter's hourly wage but rather are "the mathematical equivalent of calculating the bonus into the [recruiter's] regular rate of pay"—are denoted as "Flsa Ot" on the recruiter's wage statement.⁷

C. The Litigation

Donohue filed the underlying wage and hour action in April 2014. The operative second amended complaint (complaint), filed on behalf of Donohue individually and a class of similarly situated AMN employees and former employees, contains allegations in support of the following seven causes of action: (1) failure to provide meal and rest periods in violation of sections 226.7 and 1197.1; (2) failure to pay overtime and minimum wage in violation of sections 510 and 1197.1; (3) improper wage statements in violation of section 226; (4) unreimbursed business expenses in violation of section 2802; (5) waiting time penalties in violation of sections 201-203; (6) unfair business practices in violation of Business and Professions Code section 17200 ; and (7) civil penalties authorized by the Labor Code Private Attorneys General Act of 2004 (PAGA), section 2698 et seq.

In October 2015, the trial court certified five classes of nonexempt AMN employees with the title of "Recruiter": (1) the overtime class; (2) the meal period class; (3) the rest period policy class; (4) the itemized wage statement class; and (5) the ex-employee class (of former AMN employees who are entitled to relief based on violations proven to the four prior classes of current AMN employees). The court denied class certification to Donohue's claims related to unreimbursed business expenses, which were based on an employee's use of a personal cell phone for AMN business.

Almost a year later, in September 2016, the parties filed cross-motions: AMN sought summary judgment, or in the alternative, summary adjudication of eight individual issues (which, if granted as to each issue, would result in summary...