Parker v. Cherne Contracting Corporation

Background

Beatrice Parker and Jeffrey Gurule, Sr. asked the court to certify classes of Cherne’s current and former hourly employees who worked on the Chevron, Tesoro, and Phillips projects in California. The proposed Waiting Time Subclass covered former hourly employees who worked for Cherne in California between February 13, 2015, and the date of certification. The proposed Wage Statement Subclass covered former hourly employees who worked for Cherne in California between December 18, 2016, and June 6, 2019, and received paper wage statements that allegedly lacked Cherne’s full name and address.

The plaintiffs alleged that Cherne did not pay employees for certain pre-shift activities, including badging in, traveling from refinery gates to work areas, obtaining safety gear, and putting on required safety equipment. They also alleged that Cherne issued inaccurate wage statements and failed to pay all wages due when employees left the company. The complaint also included a California unfair-competition claim and representative claims for civil penalties under California’s Private Attorneys General Act.

Class-Certification Standard

Under Federal Rule of Civil Procedure 23, the plaintiffs had to show that the proposed classes met requirements including numerosity, commonality, typicality, and adequate representation. For a class under Rule 23(b)(3), they also had to show that common questions predominated over individual questions and that a class action was superior to other methods of resolving the dispute.

Waiting Time Subclass

The court held that the Waiting Time Subclass lacked commonality and typicality. Although the plaintiffs relied on the collective bargaining agreement’s statement that employees were “in on employee’s time and out on the employer’s time,” the court found that a facially uniform policy did not establish that the policy was applied uniformly.

The evidence showed substantial differences among employees. Some walked from their vehicles to their work areas; others took buses, vans, or shuttles of varying lengths. Some employees picked up safety gear or brass, while others did not. Some employees were paid for time after badging in, and some did not use company transportation. The court also found that Parker’s own experience involved several different tasks and that other employees on her team did not arrive early and did not suffer the alleged harm.

Because the proposed class members worked at different locations, shifts, and positions and had materially different experiences, the court concluded that the alleged unpaid work could not be resolved with one class-wide answer. It therefore denied the motion for class certification as to the Waiting Time Subclass.

Wage Statement Subclass

The court reached a different result for the Wage Statement Subclass. California Labor Code section 226(a)(8) requires wage statements to show the name and address of the employer’s legal entity. Although the plaintiffs initially submitted wage statements from outside the proposed class period, they later submitted paystubs from the relevant period that allegedly lacked Cherne’s full name and address.

The court also relied on Cherne’s admission that it had provided 28,343 wage statements to 1,816 employees during the class period without Cherne’s full name and address. The court found this evidence sufficient to establish commonality and found the plaintiffs’ claims typical because the submitted wage statements showed the alleged deficiency.

The court further held that common legal and factual issues predominated because whether the wage statements contained the legally required employer information could be determined using common evidence. It found class treatment superior because Cherne could apparently identify the deficient wage statements and affected employees, and class treatment would promote judicial efficiency. The court therefore granted the motion for class certification as to the Wage Statement Subclass.

Related Claims

The court held that the plaintiffs’ California unfair-competition claim could not be certified because the plaintiffs described it as derivative of the underlying wage-and-hour claims, and the court denied certification of those wage-and-hour claims. The court did not decide whether the Private Attorneys General Act claims required Rule 23 certification because that issue was not before it on the class-certification motion.

Other Proceedings and Disposition

The court had previously invited Cherne to file a summary-judgment motion, but the opinion did not decide that motion. The court directed Cherne to file a statement about whether it intended to proceed with summary judgment, explaining that the court would address that motion in a separate order.

Judge Haywood S. Gilliam, Jr. denied in part and granted in part the motion for class certification: he denied it as to the Waiting Time Subclass and granted it as to the Wage Statement Subclass.