Motion-Secondary: Reginald Lyle et al. vs Doctors Hospital Of Manteca, Inc. et al.

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                                Joseph Antonelli, Esq. (Bar No. 137039)
JAntonelli@antonellilaw.com

Janelle Carney, Esq. (Bar No. 201570)
JCarney@antonellilaw.com

LAW OFFICE OF JOSEPH ANTONELLI
14758 Pipeline Ave., Suite E, 2nd Floor
Chino Hills, CA 91709

Tel.: (909) 393-0223 / Fax: (909) 393-0471

Joseph Lavi, Esq. (SBN 209776)

Jordan D. Bello, Esq. (SBN 243190)
Vincent C. Granberry, Esq. (SBN 276483)
LAVI & EBRAHIMIAN, LLP

8889 W. Oly ic Blvd., Suite 200
Beverly Hills, California 90211
Telephone: (310) 432-0000

Facsimile: (310) 432-0001

David M. deRubertis (SBN 208709)
The deRubertis Law Firm, APC
4219 Coldwater Canyon Avenue
Studio City, California 91604
Telephone: (818) 761-2322
Facsimile: (818) 761-2323

e-mail: David@deRubertisLaw.com
Attorneys for PLAINTIFF REGINALD LYLE,

on behalf of himself and others similarly situated.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN JOAQUIN

REGINALD LYLE, on behalf of himself and
others similarly situated,

Plaintiff,
v.

DOCTORS HOSPITAL OF MANTECA, INC.;
AUXILLIARY OF DOCTORS HOSPITAL OF
MANTECA; DRS HOSP OF MANTECA INC;
SP OF MANTECA INC; TENET
HEALTHCARE CORPORATION; TENET
HEALTH INTEGRATED SERVICES, INC.;
TENET HEALTH; and DOES 1 to 100,
inclusive,

Defendants

Qo FILED
1019 HAR -7 ANID: GI
ROSA J

i opy

Case No.: STK-CV-UOE-2016-6523
CLASS ACTION

Assigned for all purposes to Judge Michael J.
Mulvihill, Dept. 10C

PLAINTIFF REGINALD LYLE’S
OPPOSITION TO DEFENDANT’S MOTION
FOR NONCERTIFICATION

Date: March 21, 2019
Time: 9:00 a.m.
Dept.: 10C

Action Filed: July 5, 2016
Trial Date: June 10, 2019

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR NONCERTIFICATION

FILED BY FAX1.

Il.

TI.

TABLE OF CONTENTS

A, The Parties
B. Common Issues of Fact and Law Predominate ........sseessssssseessseensecssesseneessseennseesasense 4
Cc. Unpaid Wages Class (Class 1) ....ssssssssssssessssessseeressecsecssteseaunenssessnsesnaessssceeneceanenecnneeny 4
1. Unlawful Rounding Policy (Subclass 1) ..sssssesssssesecseessessessessneeseecseesrsesiesnnennersaseen 4
2. Surgical Service Employees Don & Doff (Subclass 2).....ssesssessssesssesssssesseersneesne®
3. On-Call/Standby (Subclasses 3 & 4).
D. Meal Period Class (Class 2) ......cesscssescssessseessvessnssssvsesvssssscsssegssntarsssssnsesaseeseuscesnecnsensnte 9
1, Surgical Employees Don And Doff During Meal Breaks (Subclass 6) ........610
2. Facially Invalid Waiver Subclass - Invalid Per Se (Subclass 5) ......sssssecsseeseeel
3. On-Call/Standby Meal Class (Subclass 7) ....csssssssssssssssesssessssssseesasessseecsssseessees IL
E. Rest Period Class (Class 3)...
F. Wage Statements (Class 4, Subclass 7) and Final Wages (Class 5)......ssssmseeenenee 13
1. Wage Statements/ Paystubs .......ssssssssessscssessessessseessessssessesessersesersnseenenensesersanene 13
2. Waiting Time Penalties (Class 5).......sssssssssesssesssesssseessessssecssnscesseesseessseessanesssnsess 13
ARGUMENT. wl
A. Class Certification is Appropriate Where There is an Ascertainable Class
with a Well-Defined Community of Interest and Proceeding on a Class
Basis is Superior to Numerous Individual Suits......sssssssesesssseesseesssseccsssesnnesseeeee 14
B. There Is No Merit To Defendant’s Assertion That Arbitration Agreements
Prevent Certification .....ssssesssessssssssssssesssssesssssessssnsssecnsssneeseersceseeesseesresneneessennseraess 15
Cc. The Numerosity Element Is Satisfied For Each Class
D. The Proposed Subclasses are Ascertainable.......c.ssssssssesssesseereesseesneseennseeneeenessnessesees 17
E. The Typicality Element Is Satisfied In The Pending Action... 18

PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR NONCERTIFICATION
iPlaintiff and the Proposed Subclasses Share a Community of Interest
1. Defendants’ Policies And Procedures Raise Common Questions Of Fact.......0.18

Class Treatment Is Superior To Individual AdjudicationS .......sssssssssssseesneee LD

H. Plaintiff and Counsel Are Adequate Representatives .......ssssecsssessscsecseesseenseeaneenseesene 20

Trial Of This Case Is Easily Managed

PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR NONCERTIFICATION
iiTABLE OF AUTHORITIES
Pages
Cases
AHMC Healthcare, Inc. v. Sup. Ct.
(2018) 24 Cal. App.Sth 1014....csssessssssssssesesssenssssvessessnssnssesssessssnesesenscnssssesecenenanseeesseegssseanssen 4

Alberts v. Aurora Behavioral Health Care
(2015) 241 Cal. App.4th 388 .....cssscscssseecsnsseerseecennsssennssseees

Augustus v. ABM Security Services, Inc.
(2016) 2 Cal Sth 257 .c..sssecsssssssessssssssneesssecssessssecessccsssessnsesssessneesnvecniecnnesssrcerssscessdeansnsnastansanss 12

Austin v. Amazon.com
(W.D. Wash. May 10, 2010, No. C09-1679JLR) 2010 U.S. Dist. Lexis 45623... 5

Bono Enterprises, Inc. v. Bradshaw
(1995) 32 Cal App.4th 968.....cccccsscsssesssessnesssecssesssesssscsssessnessnesnnssnnnecsnntecarsesersessvntaneensneens 10

Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 1004

Bufil v. Dollar Fin. Group, Inc.
(2008) 162 Cal.App.Ath 1193 .ascccsescsceeessessceesssssssstessensnsusstnsneeuassnssenssesnsenasniacenne 20

Classen v. Weller
(1983) 145 Cal.App.3d 27 sscssseuesnseseesstssesnesnceesetnseeneieetsstsctnsnsstnsesnsensenienstaes 18

Daar v. Yellow Cab Co.
(1967) 67 Cal. 2d 695 ...sscssecosssssssesssenneeseesscesnsstcsarsnecncensessrenvenneneneensesan

Duran y. U.S, Bank Nat. Assn.
(2014) 59 Cal.4th 1...

Gentry v. Sup. Ct.
(2007) 42 Cal Ath 443 ....ccccccssssssssssesssssssssnssrssnssssssecesssscessscsssnansnvessssssssssscesssssesesseccceecersensrerese LD

Ghazaryan v, Diva Limousine, LTD.

(2008) 169 Cal.App.4th 1524....cssssssseesssessseessssssssssseessssseneecurenserssniresersssnnsessasssarsansassanensaneess 14
Harper v, 24 Hour Fitness, Inc.

(2008) 167 Cal.App.4th 966... wl
Hebbard v. Colgrove

(1972) 28 Cal App.3d 1017 ....csssssssseesssesssecssesessessseersnesssssssssssssecaareennaeesaeseersssecsessavanseees 11, 16

PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR NONCERTIFICATION
iiiHendershot v. Ready to Roll Transportation, Inc.
(2014) 228 Cal.App.4th 1213

a1 5, 16, 17

Hicks v. Kaufman & Broad Home Corp.
(2001) 89 Cal.App.4th 908...ssssssstssscssnsstctesistsstststsstsnsanssnaesananssuneceecenenets 17

Jaimez v. Daiohs USA, Inc.
(2010) 181 CalApp.4th 1286..sacucstsetsisttstsistntssssenananneientennneneiennennerts 13

La Sala v. American Sav. & Loan Assn.
(1971) 5 Cal.3d 864

Lee v. Dynamex, Inc.
(2008) 166 Cal. App, 4th 1325...

Linder v. Thrifty Oil Co.
(2000) 23 Cal. 4th 429 ....-ccsssscssseessecsnssssunesssnessnssseenesssseenanecssssnsessanecensnnssansnvasscstsnarenssnets 14,15

Lubin v. The Wackenhut Corp.
(2016) 5 Cal-App 5th 926... sssseesneeceeneee povessssveseaeeeeesenecenossuanannsnneeesceneestiiriosisassanenseea 3, 11

Martinez v. Combs
(2010) 49 Cal. 4th 35.

Mendiola v. CPS See. Solutions, Inc.
(2015) 60 Cal Ath 833 .scsssssectetetnentieistinustntstninasanatienanneeienanieenennennesiiniss 8

Morillion v. Royal Packing Co.
(2000) 22 Cal.4th 575 ...cssscccsssssscssssesensessssssnnnssssmisssnessesseceecaeeeessstsayannusssnsnanneasacesscanssenssage 6, 8

Reese v, Wal-Mart Stores, Inc.
(1999) 73 Cal.App.4th 1225

Reyes v. Bd. of Supervisors
(1987) 196 Cal.App.3d 1263..

Safeway, Inc, v. Sup. Ct.
(2015) 238 Cal.App.4th 1 138..sscseentstnesssesstestsnnetnesnntnanannenestntntnnnennenennsensts 2

Sav-On Drugs Store, Inc. v. Superior Court
(2004) 34 Cal.dth 319. scssssssesssssssesessssssesssesessssseeeesuansssseeessnnnrsssecersnsseseeensassneessnnnnnnssean Ds 19

Sprunk v. Prisma, LLC

(2017) 14 Cal.App.sth 785.... 15
State of California v. Levi Straus & Co.
(1986) 41 Cal. 3d 460.....ccssscscssesccessstsersussesssntecssnnenesssesnsnssscssnnsersauunesssonssonsnasnsecnnasescsnsngensergs 14

PLAINTIFF’S OPPOSITION TO DEFENDANT'S MOTION FOR NONCERTIFICATION
ivVasquez v. Superior Court
(1971) 4 Cal. 3d 800

Ward v. Tilly's, Inc.
(2019) 31 Cal. App. Sth 1167...

Statutes, Rules, and Regulations

Industrial Welfare Commission Wage Orders
Wage Order No. 5, subd. 4(A) ...
Wage Order No. 5, subd. 11(A)

Code Civ. Proc.

Other Resources

2 Newberg on Class Actions §4:23 (4th Ed.)...cssesssssssscsssesesssrserseseonsnssssasacsenssnnssccnnennnasscesennnsseansris 19

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR NONCERTIFICATION
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I. INTRODUCTION

Certification is a procedural mechanism that encourages efficiency at trial, Plaintiff herein—
and in his motion for class certification to be filed March 8, 2019—demonstrates that substantial
evidence exists to certify each of Plaintiff's claims, Plaintiff will seek certification of all non-exempt
hourly employees who worked for Defendant Manteca during the time period of July 5, 2012 to the
date of the class certification order. Plaintiff will seek to certify the following Classes and subclasses:

Class 1: Unpaid Wage Class: All current and former non-exempt employees employed by
Defendant Manteca in California at any time from July 5, 2012 through the date of certification
(relevant time period), who were under control of Defendant, yet were not paid for such time.

e Subelass J; All hourly non-exempt employees of Defendant who worked at least one day
who were underpaid wages as a result of Defendant’s rounding policy (All Hourly
Nonexempt Rounding Subclass).

e Subclass 2: All hourly surgical services employees who are required to don and doff
scrubs and Personal Protective Equipment (PPE) off the clock during the relevant time
period. (Surgical Employees Don & Doff Subclass)

© Subclass 3: All hourly surgical services employees who work on-call/standby during the
relevant time period and are paid less than minimum wage. (Surgical Employees On
Cali/Standby Subclass)

e Subclass 4: All hourly employees who work on-call/standby during the relevant time
period and are paid less than minimum wage. (All Hourly Nonexempt On Call/Standby
Subclass)

Class 2; Meal Period Class: All current and former hourly nonexempt employees employed by
Defendant Manteca in California at any time from July 5, 2012 to the date of class certification
(relevant time period), who worked shifts of ten hours or more yet Defendant did not provide required
duty-free meal periods of not less than 30 minutes, for each 5 hours of work.

e Subclass 5: All current and former hourly employees employed by Manteca during the
relevant time period who signed a facially invalid meal period waiver that allowed
Defendant to revoke the meal period waiver. (All Hourly Nonexempt Facially Invalid
Meal Period Waiver Subclass)

* Subclass 6: All current and former surgical services employees employed by Manteca
during the relevant time period who were not provided uninterrupted compliant meals due
to having to don and doff surgical gear. (Surgical Employees Short Meal Periods)

e Subclass 7: All hourly employees who work on-call/standby during the relevant time
period and did not receive “off duty” meal periods. (All Hourly Nonexempt On
Call/Standby Meal Subclass)

Class 3: Rest Period Class: All current and former surgical services employees employed by

PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR NONCERTIFICATION
1Manteca during the relevant time period who were not provided uninterrupted compliant ten minute
rest periods due to having to don and doff surgical gear (Surgical Employces Rest Period)

¢ Subclass 8: All hourly employees who work on-call/standby during the relevant time
period and did not receive “off duty” rest periods. (All Hourly Nonexempt On
Call/Standby Rest Subclass)

Class 4: Wage Statement Class: All current and former hourly employees employed by
Defendant Manteca, in California at any time from July 5, 2015 to the date of certification, who
received a pay stub where the FLSA code that was undefined and or otherwise inaccurate. (FLSA Pay
Code No Rate Class)

e Subclass 9; All surgical services employees employed by Manteca at any time from July
5, 2015 to the date of certification, who received a pay stub, (Derivative Pay Stub Claim)

Class 5: Waiting Time Class: All current and former hourly employees employed by
Defendant Manteca in California at any time from July 5, 2013 to the date of certification, who did
not receive payment of all unpaid wages upon separation of employment within the statutory time
period. (Derivative Waiting Time Penalties Class)

The Court must view the case through the prism of Plaintiff's theory of recovery, not

Defendant's. In Safeway, Inc. v. Sup. Ct. (2015) 238 Cal.App.4th 1138, 1146-1148, the court states:

When “[p]resented with a class certification motion, a trial court must examine the
plaintiff's theory of recovery, assess the nature of the legal and factual disputes likely
to be presented, and decide whether individual or common issues predominate. To the
extent the propriety of certification depends upon disputed threshold legal or factual
questions, a court may, and indeed must, resolve them. ... [H]owever, a court generally
should eschew resolution of such issues uniess necessary. [Citations.]

Plaintiff and Class 1 and related subclasses have not been paid wages for all hours worked
due to Defendant's practice of requiring employees to work off the clock and/or to work for less than
minimum wage for time spent under the control of the employer. Further, Plaintiff and the hourly
meal and rest period classes and related subclasses (Classes 2-3) were not provided compliant meal
and rest periods and are owed premiums for Defendant’s failure. The evidence will demonstrate
Manteca required hourly employees who work subject to Defendant’s on-call / standby practice to be
underpaid for time spent under Defendant’s control. Specifically, the evidence will show Defendant
requires on-call staff to return to the facility w/in 20 minutes up to 30 minutes from being called.
(Holzer Depo. (“Holzer”) 162:5-164:24, 166:9-11, 167:8-24, 166:12-19; Ugalino Depo.
(“Ugalino”) 41:12-19, 55:6-21; Carney Dec. Ex. 5 & 8). This restrictive policy prevents employees

from using that time as they wish and requires that Manteca compensate employees for this time.

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR NONCERTIFICATION
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Manteca also had policy of requiring employees in the surgical services department to arrive
to work prior to their start time and prior to clocking in, tochange into Personal Protective Equipment
(PPE) and surgical scrubs to be dressed and ready to start their shift at the scheduled start time.
Defendant required the surgical services employees to be at their shift huddle at the start of their shift
or be deemed tardy and subject ot discipline. (Ugalino 35:1-15), The same failure to pay wages for
time donning and doffing scrubs was true during a meal period and at the end of shift. All such time
was off the clock, until the second half of 2017, (Ugalino 39:5-17). As a result of this litigation,
Defendant changed its policy and now conducts team huddles approximately 10 minutes after the
shift start time, i.e., at 6:40 a.m. employees starting at 6:30 a.m. (Ugalino 25:20-26:9, 39:5-17).

The Court must consider whether Plaintiff's theories of the case are amenable to common
proof at trial. (Brinker Rest. Corp. v. Sup. Ct. (2012) 53 Cal.4th 1004, 1021-1022.) In determining
whether class treatment is warranted, the court considers “whether the theory of recovery advanced
by the proponents of certification is, as an analytical matter, likely to prove amenable to class
treatment." (Sav-On Drugs Store, Inc. v. Sup. Ct. (2004) 34 Cal.4th 319, 327.) Plaintiff's theories of
recovery are subject to common proof. (See Alberts y. Aurora Behavioral Health Care (2015) 241
Cal.App.4th 388.) The resounding answer is yes. The size of the facility, the number of different
units/departments, and alleged different decision makers have no bearing on the legality of the
uniform policies and practices, especially in light of the subclass definitions Plaintiff will assert. Here,
the documents and testimony demonstrate a uniform practice of instituting plans to avoid the payment
of wages. Lubin v. The Wackenhut Corp. (2016) 5 Cal.App Sth 926, 941 provides a clear road map
that demonstrates this case is prime for certification. The case at bar should be certified, as it involves
common policies and common questions of fact and law. Plaintiff's theories and motion for class
certification revolve around the mechanics of uniform payroll policies and practices, which fail to pay
Plaintiff and the class wages (at the applicable rate i.e., minimum wage or overtime) as a result of
practices that require employees to work off the clock and/ are paid less than minimum wage.

The common claims of the named Plaintiff make this case particularly suited for class
certification under Code of Civil Procedure §382 because the classes are subject to a common set of
practices and procedures for which they seek damages. The evidence, including the expert declaration
and declarations in support of the motion for class certification, demonstrate that the common

questions predominate and that the class certification is the superior manner to handle the claims of

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR NONCERTIFICATION
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approximately of at least 900 employees. (RIN 2 & 3.)
TI. SUMMARY OF RELEVANT FACTS
A. The Parties

Defendant Doctors Hospital of Manteca, Inc. (hereinafter "Defendant" or "Manteca") operates
a hospital in San Joaquin. Plaintiff Reginald Lyle (hereinafter "Plaintiff" or "Lyle") worked for
Defendant as a non-union Surgical Tech from approximately May of 2013 through approximately
December 9, 2016, which was an hourly paid position. (Lyle Dec. {[4.)

B. Common Issues Of Fact And Law Predominate

Plaintiff demonstrates herein how common issues of law and fact predominate with each
proposed class as defined in the Notice as well as the facts that give rise to Plaintiff's causes action.

Cc. Unpaid Wages Class (Class 1):

Defendant fails to pay wages (at applicable minimum wage and/or overtime rate) to all hourly
non-exempt employees based on its unlawful time rounding policy which results in loss of wages to
the employees. In support of its Motion for Class Certification, Plaintiff will offer the declarations of
substitute representatives for the rounding class. For a subclass of surgical services employees,
Defendant has an unlawful policy of requiring its surgical services employees to work off the clock.!
Further, Defendant has a policy to pay less than minimum wage for on cal! and/or standby shifts.

1. Unlawful Rounding Policy (Subclass 1)

The rounding claim is on behalf of the 65% of non-exempt employees who were harmed by
Defendant’s uniform and unlawful rounding practice. Defendant fails to pay employees for all time
worked due to its rounding mechanism that results in rounding off the time worked which fails to pay
employees for all time worked over time. Defendant confirms that company policy provides that
recorded times reflect work time to the minute for all hourly non-exempt employees, but Defendant
admits it uses a rounding system for purposes of paying wages. (Holzer 54:2-53:8, 56:21-24, 57:22-
24.) As will be evidenced by an expert declaration in support of the motion for class certification, the
rounding works to the detriment of 65% of the sampled employees. In AHMC Healthcare, Inc. v. Sup.
Ct, (2018)'24 Cal-App.Sth 1014, 1020-1028 decided after class certification and on summary

' Allegedly Defendant has changed this policy during the second half of 2017, after approximately 1 year of ,
litigation of this matter. Defendant currently allows employees to clock in, change and be at huddle by 6:40
a.m. (Ugalino 39:5-17.)

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR NONCERTIFICATION
4adjudication as to the rounding practice, the court considered the net efféct of the rounding. Here, the
evidence is clear that 65% of employees have been harmed by Defendant’s practice.

Defendant’s Attendance Policy Coupled With The Rounding Of Employees’ Time
Demonstrates The Such Rounding Is Not Neutral: Defendant’s rounding practice is uniform for
all employees and is a seven (7) minute rounding rule which rounds all punches to the nearest quarter
hour. (Holzer 53:18-56:24, 56:25-57:9, 58:9-14; see Carney Dec. Ex. 47.) The rounding, coupled
with Defendant’s Attendance & Punctuality Policy 405 which require employees to be at their work
area “on time, properly attired and ready for work” at the start of their shift (Carney Dec. Ex. 1) and
the fact that Defendant has no “grace” period (Holzer 64:7-65:20, 66:12-18), results in wage theft.
The time and payroll records demonstrate that payments for actual time worked is able to be computed
with Defendant’s time records, (Holzer 47:3-48:3, 51:25-52:24, 57:22-58:2; Carney Dec. Ex. 2
[timekeeping policy requiring time records reflect work time].) Instead of paying employees based
on actual time punches, Defendant chooses to manipulate the time by “rounding” to save in wages
paid to the employees by failing to pay for all time worked. The uniform rounding practice and policy
that all recorded time reflects time worked makes this issue prime for class certification. In the merits
phase, Plaintiff anticipates filing a summary adjudication motion on this claim.

Defendant’s timekeeping policy requires punctuality and Defendant’s policy regarding
timekeeping requires employees to record accurate times, yet Defendant does not pay their employees
based on the actual time worked, (Carney Dec. Ex. 1, 2, & 3 pp. 15, 23.) The sampled employees
were underpaid for hours worked in at least one (1) pay period. Furthermore, (65%) of sampled
employees were underpaid due to rounding across the entire class period. Defendant considers an
employee late, if the employee is not at their work station at designated start time. (Carney Dec. Ex.
1; see Carney Dec. Ex. 2 & 3.) When employees punch in to work, they are expected to begin
working (Holzer 246:2-24). Furthermore, Defendant has a strict policy that requires employees to
obtain approval for overtime prior to working such, (Holzer Depo p. 135:23-137:22; Carney Dec.
Ex. 3 p. 23.) Despite a “7-minute window” on each punch, Defendant penalizes employees who punch
in one (1) minute late. The harsh rounding rule is unfair to the employees. Accordingly, it is a 7-

minute window to the benefit of the employer and no minutes for the employee, this is not a fair

? Filed concurrently with Carney Dec. is a CD or USB with digital files containing time and payroll records
for a sample of non-exempt hourly employees. (Carney Dec. {6.)

PLAINTIFF’S OPPOSITION TO DEFENDANT'S MOTION FOR NONCERTIFICATION
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rounding system. Defendant’s “incidental overtime” is another mechanism to ensure it saves millions
of dollars by not paying for all time worked. Austin v. Amazon.com (W.D. Wash. May 10, 2010, No.
C09-1679JLR) 2010 U.S. Dist. Lexis 45623, demonstrates why this sort of mechanism in conjunction
with a tardy policy is not neutral. The Court in Austin in a motion to dismiss, denied the relief sought
where the policy “allows rounding when it benefits the employer without disciplining the employee;
but disciplines the employee when the rounding does not work to the employer’s advantage.” This is
exactly the case here. Employees get reprimanded for being tardy or incurring overtime, but no
reprimand for working 14 minutes of combined time that is uncompensated as a result of the rounding.
The policy and practice are not neutral.

All underpayment of minimum wage and overtime due to Defendant’s rounding practice are
strictly recoverable by the putative class pursuant to Labor Code §§510 and notwithstanding any
agreement to work for lesser wages, and there is no California statute or regulation expressly allowing
the underpayment of overtime premiums based on an employer’s rounding policy. Thus, Plaintiffand
the class are entitled to the unpaid minimum wage and overtime premiums? in addition to liquidated
damages. (Lab. Code §§1194, 1194.2.)

Further, the Supreme Court has held that an employer must pay its employees for all hours
worked while "subject to its control" whether or not the employer required the employees to actively
do something. (Martinez v. Combs (2010) 49 Cal. 4th 35, 71; see also Morillion v. Royal Packing Co.
(2000) 22 Cal.4th 575, 584-585. (See RJN Exh, 12) Defendant’s “rounding” policy “systematically
undercompensate[s] employees” (AHMC, 24 Cal.App.5th at 1021), because it is applied in concert
with Defendant’s “attendance, punctuality, and tardiness” policies such that it is set up to result in the
putative class members being underpaid for the hours worked and provides Defendant free labor that
should be paid 150% premium or 200% premium rates but at least at a minimum wage rate. This issue

is amenable to class certification, as the rounding practice is common to all hourly employees.
2. Surgical Service Employees Don & Doff (Subclass 2)

This subclass is limited to surgical services employees required to don and doff scrubs and

3 Defendant contends a portion of the class, approximately 220 employees, is not entitled to overtime
because they are subject to a collective bargaining agreement (Motion 9:12-19, 17:2-17), but these
employees would still be entitled to unpaid wages at a minimum wage rate, Defendant also asserts in
footnote 34 that Plaintiff's claims may be preempted. That is a merits issue not proper for certification
and there is no merit to Defendant’s position. Plaintiff's claims are based on State law and not the
CBA. (Cramer v. Consolidated Freightways, Inc. (9th Cir. 2001) 255 F.3d 683, 693-694 [claims
based on California law rather than CBA rights are not preempted].)

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR NONCERTIFICATION
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PPE off the clock. As noted above, Defendant policies required employees to clock in and out at the
beginning and end of the day and record their meal breaks. (Holzer 47:3-48:3. Carney Decl. Ex. 2.)
Defendant's timekeeping system precisely records accurate work time because supervisors verified
the employees’ punches were accurate. (Holzer 51:25-52:24.) In Defendant’s operating rooms ithas
an extremely strict sterile environment requirement. Furthermore, Defendant had a mandatory policy
which required the Surgical Service Employees to change out of their street clothes including their
shoes and into their sterile scrubs as well as PPE, which includes head cover, face mask, beard mask,
glasses or goggles, jacket, gloves and overcoat, at the hospital’s locker room. (Holzer 82:4-18, 83:19-
86:6, 91:12-92:18.) Defendant did not allow the Surgical Employees to wear their sterile scrubs
outside of the hospital. (Holzer 82:4-18, 83:19-86:6.) The only thing that the employees could wear
under their scrubs was undergarments. (Holzer 91:12-20). It took approximately 10-15 minutes to
change out of the street clothes and in to the hospital mandated scrubs and PPEs. (Ugalino 25:20-
26:9, 38:13-39:11; Lyle Depo. 178:2-9, 195:8-10, 196:1-5, 248:14-25). Defendant required Plaintiff
and surgical employees to come to work, change into sterile scrubs and then clock in no more than
seven (7) minutes before shift start to ensure no overtime would be incurred. Plaintiff and the class
were therefore required to work off the clock to ensure they arrive at start of shift ready to begin. The
Surgery Service Employees had dressed in required PPE and attire at their assigned work area at the
beginning of their scheduled start time or they would be considered late and subject to discipline.
(Holzer 78:23-79:10, 66:20-68:20, 69:16-72:18, 94:20-97:11, 143:18-21, 149:19-25, 74:8-75:9,
100:9-101:3; Lyle Depo. 115:4-7, 116-118.) Defendant admits the Surgical Service Employees had
to clock in before their scheduled start time so that they could put on their PPEs and scrubs to be at
their work station by the beginning of their shift. (Holzer 150:1-153:3, Lyle Depo. 250;1-19.)
Defendant never compensated the employees for the time spent donning and doffing out of
their street clothes into scrubs and PPEs at the beginning or end of shift until the second half of 2017.
(Ugalino 39:5-17, 25:20-26:9, 39:5-17). Failing to pay employees for this changing time resulted in
unpaid wages at the applicable minimum wage or overtime wage rate. Wage Order 5 states "Every
employer shall pay to each employee [the applicable minimum wage] per hour for all hours worked."
(RJN Exh 4, bold added.). The Supreme Court has held an employer must compensate employees
for time spent under employer's control even if the employee is not working or even if the employee

can engage in limited activities such as reading, sleeping, listening to music, drinking coffee,

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR NONCERTIFICATION
7showering, watching television, or browsing the Internet. (Mendiola v. CPS Sec. Solutions, Inc.

(2015) 60 Cal.4th 833, 840-842; Morillion, 22 Cal.4th at 582, 586.) When an employer requires an

employee to be at a specific location or engage in a specific activity, the time must be paid. (Morillion,

22 Cal.4th at 586-587 [requiring to ride bus makes commute time compensable]; Mendiola, 60 Cal.4th

at 840-842 [restricting to area made time compensable].) Accordingly, if Defendant or job

requirements require employees to don and doff PPEs at work, the time must be compensated. (Id.)
3. On-Call/Standby (Subclasses 3 & 4)

The third basis for failure to pay minimum and/or overtime wage arises out of Defendant's
policy and procedure for employees in units with mandatory on call/standby shifts which would place
these hourly employees, like surgical service employees, “On-Call” or “Standby.” (Holzer 155:6-9,
157:13-158:25). On-Call or Standby time meant that after regularly scheduled hours the employee
must be available to come to the hospital once contacted at any time by the hospital during their On-
Call shift. (Holzer 160:25-161:4.) The On-Call employee must respond to all calls and must get to
the hospital within 20 to 30 minutes of receiving a call, otherwise, they will be disciplined up to and
including termination. (Holzer 162:5-164:24, 166:9-11, 167:8-24, 166:12-19; Ugalino 41:12-19,
55:6-21,) Defendant initially paid $5.25 per hour for their On-Call time and later on was increased to
$6.50 (Holzer 168:12-170:2, 172:2-23; 179:20-181:4, 182:3-7, 183:23-184:2, 226:15-227:15);
however, this on call time with a strict return time is clearly controlled time and thus, Defendant was
required to pay at least minimum wage and overtime if applicable. (RIN 8-10, 12.) The minimum
wage during the time covered by this litigation was $8.00-$11.00. (RIN 8)

The common question applicable to the failure to pay minimum wage for the on call time is
control. (Ward v. Tilly's, Inc. (2019) 31 Cal.App.5th 1167, 1183.) “California courts considering
whether on-call time constitutes hours worked have primary focused on the extent of the employers’
control .... and thus prevents the employee from using the time effectively for his or her own
purposes, that employee remains subject to the employer’s control. According to'[the definition of
hours worked], that employee must be paid.” (Mendiola, 60 Cal.4th at 840, bold added.)

The Court in Mendiola, 60 Cal.4th at 841 continued stating “Courts have identified various
factors bearing on an employer’s control during on-call time” such as:

(1) Whether there were excessive geographical restriction _on_employees’_movements.
Defendant’s PMK admitted that i) if Defendant was going to call the employce on the landline, the

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employee had to stay at home during the entire On-Call shift (Holzer 161:16-162:4), ii) the
employees had to be within 20 minutes of the hospital since they had to report to the hospital within
20 minutes (Holzer 162:5-164:24, 166:9-11, 167:8-24, 166:12-19).

(2) Whether frequency of the call was unduly restrictive. In the pending action, the On-Call
employees had to respond to 100% of their calls (Holzer 162:9-11) and 85% of the time the On-Call
employee had to report to the hospital. (See Lyle Depo. 245:10-13)

(3) Whether a fixed time limit for response was unduly restrictive. In the pending action,
Defendant’s PMK admitted the employees had to be within 20 minutes of the hospital since they had
to report to the hospital within 20 minutes (Holzer 162:5-164:24, 166:9-11, 167:8-24, 166:12-19.)

(4) Whether the on-call employee could easily trade on-call responsibilities. In the pending
action, the On-Call employees are the only employees on-call with no backup (Lyle Depo. 103:6-
18) and they cannot switch with another employee while they are on-call (Holzer 174:10-177:21).

(5) Whether use of a pager could ease restrictions. In the pending action, the use of a pager
would not make any difference as to the geographical location or the 20 minute response time or the
inability to switch with another employee.

(6) Whether the employee had actually engaged in personal activitics during call-in time. In

the pending action, since the On-Call employees are hospital employees and performing patient care,
they would have to be in an alerted state of mind wherein they would not be able to drink or taking
any medications during their On-Call time.

(7) Whether the on-call waiting time is spent primarily for the benefit of the employer and its
business. Defendant operates a hospital and the On-Call time is only for the benefit of Defendant
since On-Call employee were called to report to work once a patient was brought to the hospital and
to make sure the hospital complies with its ratio of the patient to provider. (Holzer 215:14-22).

As stated by the Court in Mendiola, in the pending action, the On-Call employees were obliged
to respond to 100% of their calls or be subject to discipline including termination as well as having
to report to the hospital within 20 minutes or be subject to discipline including termination (Holzer
162:5-164:24, 166:9-11, 167:8-24, 166:12-19.). In fact, Defendant admitted in deposition that being
On-Call places severe restriction as to what an employee can do and where the employee can go
during his On-Call shift. (Holzer 168:12-170:2, 172:2-23).

D. Meal Period Class (Class 2):

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“An employer's duty with respect to meal breaks under both section 512, subdivision (a) and
Wage Order No, 5 is an obligation to provide a meal period to its employees. The employer satisfies
this obligation if it relieves its employees of all duty, relinquishes control over their activities and
permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede
or discourage them from doing so.” (Brinker 53 Cal.4th at 1041; Lab. Code §512; Wage Order 5
§11(A) [attached as RJN Ex. 4].) The Plaintiff's theory is twofold. First, for Subclass 5, all hourly
nonexempt employees are required to sign a facially invalid meal period waiver when they work shifts
of 10 hours or more. (Carney Dec, Ex. 9-12, 14) Second, for Subclass 6, the Surgical Services
Employees do not receive a full thirty (30) minute uninterrupted meal period as a result of having to
don and doff their sterile scrubs and PPE.

1. Surgical Employees Don And Doff During Meal Breaks (Subclass 6)

Common issues of fact and law predominate whether the Surgical Service Employees received
less than 30 minutes for a meal break because time spent dotining and doffing scrubs/PPEs during
meal breaks reduced the meal period to less than 30 minutes. Defendant's PMK admits Defendant
failed to provide the employees with a net 30 minute meal break because Defendant admits that it
requires employees to don and doff before leaving the hospital (Holzer 97:21-98:6, 99:17-100:2),
Defendant admits that it only provided the employees with a 30 minute meal break and the donning
and doffing had to be completed during said time. (Holzer 75:12-25, 93:10-23; Ugalino 38:13-39:4)
The common question of fact and law also exists as to whether the Surgical Service employees were
relieved from all duties during their meal break because they had to don and doff their scrubs and
PPEs during their meal breaks for the benefit of Defendant.

Another common question of fact and law exists as to whether Defendant’s policies and
procedures requiring the Surgical Service Employees to don and doff during their meal break,
discouraged the Surgical Employees from leaving the premises during their meal breaks (in essence
requiring them to remain on the premises) since they would never get a net 30 minute meal breaks if
they had to don and doff during their 30 meal breaks. As the Supreme Court ruled in Brinker, the
employer “satisfies this obligation [to provide meal periods] if it relieves its employees of all duty,
relinquishes control over their activities and permits them a reasonable opportunity to take an
uninterrupted 30-minute break, and does not impede or discourage them from doing so.” (Brinker, 53

Cal.4th at 1040.) Employees are not said to have received a duty and control-free meal period “[w]hen

PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR NONCERTIFICATION
10an employer directs, commands or restrains an employee from leaving the work place during his or
her lunch hour and thus prevents the employee from using the time effectively for his or her own
purposes.” (Bono Enterprises, Inc. v. Bradshaw (1995) 32 Cal.App.4th 968, 975.) Defendant's meal

period policies and practices violate the requirements of Labor Code § 512 and the Wage Order.
2. Facially Invalid Waiver Subclass - Invalid Per Se (Subclass 5)

Ms. Holzer testified that all employees have signed the same versions of Defendant’s meal
break waiver form. (Depo Holzer p. 193:5-15; Carney Dec. Ex. 9-12.) Accordingly, this subclass
presents one legal issue concerning the validity of the meal period waiver that every employee signed.
The unlawful language, Defendant’ right to revoke the waiver, is in every meal period waiver and
stated in the meal period policies. Plaintiff contends that the language that provides Defendant the
right to revoke the meal period waiver is facially invalid as a matter of law. (See Carney Dec. Ex. 9-
12.) Plaintiff wil! prove in the merits stage that the IWC only authorized a revocation of the waiver
by the employee. (See RJN Exh.4 §11). “In order to be valid, any such waiver must be documented
in a written agreement that is voluntarily signed by both the employee and the employer. The
employee may revoke the waiver at any time by providing the employer at least one day’s
written notice.” (RJN Exh. 4 §11(D), emphasis added.)

. Plaintiff alleges that each waiver that the Defendant’s ability to revoke the waiver, is invalid.
Furthermore, the Wage Order, also requires a notice period to be included in the waiver. Wage Order
5 §11(D) states “The employee may revoke the waiver at any time by providing the employer at least
one day’s written notice.” (RJN Exh 4 §11(D).) This language is missing from Defendant’s waivers.
This class presents a common inquiry which will have a common answer in the merits phase. The
waivers are cither invalid or valid as to all employces who signed the waiver with the offending
language. Nothing in the Wage Order or Statement of the Basis contemplates revocation by the
employer. (RJN Ex. 4 & 7.) Determining whether an agreement is invalid would require nothing
more than checking whether the agreement contains a revocation clause. (See Lubin, 5 Cal.App 5th
at 950-951.) Determining whether an employee, who signed a meal agreement that is invalid on this
ground, does not require numerous individualized questions.

3. On-Call/Standby Meal Class (Subclass 7)
All hourly employees who work on-call shifts were on-call during their entire on call shift,

which would include their meal periods. (See Holzer 160:25-161:4, 162:5-11, 162:9-11.) However,

PLAINTIFF’S OPPOSITION TO DEFENDANT'S MOTION FOR NONCERTIFICATION
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the Supreme Court recently made clear that an employer violates the requirement that employers
provide employees with meal and rest periods during which they are relieved of all duty, if the
employer requires the employees to be on call during their meal or rest period. (Augustus v. ABM
Security Services, Inc. (2016) 2 Cal.5th 257, 264-271.) Accordingly, during an on-call shift,
employees were not relieved of all duties while they were taking their meal period. Common issues
of fact and law predominate due to on call-shifts.

E. Rest Period Class (Class 3):

Defendant fails to authorize ten (10) minute rest periods for the Surgical Services Employees
due to Defendant's requirement that they don and doff the sterile scrubs and PPE during their break.
Once again, as noted above, common issues of fact and law predominate whether the time spent
donning and doffing scrubs and PPEs during the rest breaks caused the Defendant to fail to provide
the Surgery Service Employees with proper and adequate rest breaks which amounted to net 10
minutes. The answer is no since Defendant's PMK admits that Defendant requires employees to don
and doff before leaving the hospital (Holzer 97:21-98:6, 99:17-100:2, Lyle Depo. 198:20-199:24,
200:3-12; 203:2-11, 200:21-201:15), Defendant admits that it only provided the employees with a
10 minute rest break (Holzer 93:10-23), and the donning and doffing had to be completed during said
time. As such, the requirements cut rest breaks short or eliminated them given the time it takes to
remove surgical gear and PPEs. As with the meal periods, Defendant fails to relieve the Surgical
Services Employees of all duties during their rest breaks because they were performing work which
benefited Defendant during their 10 minute rest breaks, as well as discouraging them from leaving
the premises during their rest breaks (in essence requiring them to remain on the premises).

On-Call Standby Rest Periods (Subclass 8), Defendant fails to provide rest breaks to non-
exempt employees that have been placed On-Call and/or Standby since it was mandatory for them to
respond to all calls from the hospital during their entire shift, including any rest breaks that they might
have taken otherwise they would be disciplined including termination for failing to answer a call
(Holzer 162:5-11) in violation of Augustus, 2 Cal.5th 257. Thus, on call and standby employees are
never relieved of all work duties during rest periods. The Court in Augustus stated:

“we address whether employees can be forced to shoulder an affirmative responsibility to
remain on call, vigilant, and at the ready during their rest periods. . . . to keep their radios and
pagers on during rest breaks, to remain vigilant and to respond when needs arise... . Such
policies conflict with an employer’s obligation to provide breaks relieving employees of
all work-related duties and employer control.” (Augustus, 2 Cal.5th at 271, bold added.)

PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR NONCERTIFICATION
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28

The facts of the pending action are identical to the facts in the Augustus, Defendant’s On-Call
employees must have their phones and/or cell phones on and with them at all times during their on-
call shift, including their meal and rest breaks, to remain vigilant and to respond when the need arises!
(Holzer 160;25-162;11) As such, Defendant failed to provide the On-Call time employees with rest

breaks and the claim raises a common question of fact and law and must be certified.

F. Wage Statements (Class 4, Subclass 7) and Final Wages (Class 5):
1, Wage Statements/Paystubs

During the class period, all hourly employees were paid on a biweekly basis and employees
have been provided with wage statements containing the same information during the class period,
and all employees' paystubs are identical. An employer must provide employees with wage statements
accurately reflecting, inter alia, gross and net "wages carned," applicable hourly rates, and
corresponding number of hours worked. (Lab. Code §226, subd. (a)(9).) An employee who suffers an
injury as a result of the employer’s knowing and intentional failure to include information required
by Labor Code section 226, subd. (a) is entitled to recover statutory penalties. (/d., subd. (e).) An
employee is deemed to suffer injury if the employee cannot promptly and easily determine any
requisite information from the wage statement alone. (/d.) In addition, the meaning of "suffering
injury" includes difficulty and expense involved in reconstructing pay records, including filing a
lawsuit. (Jaimez y. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1305-1307.) Failure to provide
accurate information makes it difficult for an employee to determine exactly how they are being
underpaid. Whether the "injury" and "knowing and intention" requirements are met are additional
common questions. (/d. at 1305-1307.) The defendant admittedly failed to state the hourly rate for the
Earn Code “FLSA” until the pay date of December 1, 2017. Additionally, Defendant fails to comply
Labor Code § 226(a)(9)’s requirement that an employer is required to list all applicable hourly rates
and hours worked at those rates. Instead, Defendant includes “FLSA” rate on the paystub, without
defining what the rate of pay is and what week it is for and/or the corresponding number of FLSA
hours. (Carney Dee. Ex. 15.) Defendant admits it provided employees with wage statements
containing the same information. Because the inaccuracy of the wage statements is based on the
aforementioned certifiable conduct, this claim is similarly predominated by common issues of fact
and law as explained above. Plaintiff seeks a standalone class and a derivative class, The derivative

class is based on any finding of liability of classes 1-4,
2. Waiting Time Penalties (Class 5)

PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION FOR NONCERTIFICATION
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Defendant also failed to provide all unpaid wages to employees after separation of
employment in violation of Labor Code §§ 201 and 202. Defendant failed to pay wages to Plaintiff
and class members for unpaid minimum wage and/or overtime hours, and for unpaid meal and rest
premiums. Defendant admits the same policies and procedure for payment of final wages applies to
all, (Holzer 228:3-10.) Defendant's policies blatantly violate basic California wage and hour laws.
Defendant's violations are confirmed and established on a class-wide basis by admissions by
Defendant's PMK, deposition testimony of the Plaintiff, discovery responses and Defendant’s written
policies, well as declarations of putative class members filed concurrently herewith. The procedures
are so well-defined by Defendant's PMKs that class member testimony is unnecessary to adjudicate
the issues. As detailed below, this motion should be granted and the classes certified.

Il, ARGUMENT
A. Class Certification is Appropriate Where There is an Ascertainable Class with a
Well-Defined Community of Interest and Proceeding on a Class Basis is Superior
to Numerous Individual Suits

The California Supreme Court has recognized the class action as "a means to prevent a failure
of justice in our judicial system" (Linder v. Thrifty Oil Co. (2000) 23 Cal. 4th 429, 434 ("Linder"))
and “an essential tool for the protection ... against exploitative business practices" (State of Cal. v.
Levi Straus & Co. (1986) 41 Cal. 3d 460, 471). At certification, the court should not focus on merits,
but on whether the case meets requirements for class treatment. (Linder, 23 Cal. 4th at 443.) Class
actions are statutorily authorized "when the question is one of common or general interest, of many
persons, or when the parties are numerous, and it is impracticable to bring them all before the court."
(Code Civ. Proc. § 382; Lee v. Dynamex, Inc. (2008) 166 Cal. App, 4th 1325, 1332.) Thus, class
certification is appropriate where the party moving for class certification shows the following five
elements: (1) the proposed class is numerous yet ascertainable; (2) common issues of law and fact
predominate; (3) the claims of the proposed class representatives are typical of the class; (4) The
proposed class representatives will adequately represent the class; and, (5) the class action is the
superior means to resolve the litigation, This case soundly meets each of these requirements.

Liability is exclusively a post-certification determination. The focus during certification is
limited to whether or not there is a systematic, class wide practice, not whether there is liability
following from such a practice. (Ghazaryan v. Diva Limousine, LTD. (2008) 169 Cal.App.4th 1524,

1531.) Class certification is "essentially a procedural [question] that does not ask whether an action

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is legally or factually meritorious." (Linder, 23 Cal. 4th at 439.) Although a class member's precise
amount of damages may ultimately vary, individual variations are not a bar to certification. (Vasquez
v. Super. Ct. (1971) 4 Cal. 3d 800, 815 ("“Vasquez").) "[T]he necessity for class members to
individually establish eligibility and damages does not mean individual questions predominate."

(Reyes v. Bd. of Supervisors (1987) 196 Cal.App.3d 1263, 1278.)

B. There Is No Merit To Defendant’s Assertion That Arbitration Agreements
Prevent Certification

Defendant argues that the numerous class members have entered into arbitration agreements
with Defendant and argues that this should bar certification. (Motion 15.) Defendant’s arguments fail
for several reasons, First, as noted above, under California law, at the certification stage, the court
does not consider the merits of the claims or defenses at issue. (Hendershot v. Ready to Roll Transp.,
Inc. (2014) 228 Cal.App.4th 1213, 1222.) In Hendershot, in opposition to the plaintiff's class
certification motion, the defendant argued that numerosit