United States District Court, N.D. California
March 25, 2004.
RAUL MEDRANO, TERESA J. LARA, FAUSTINO GARCIA, ALEJANDRO GARCIA, OLGA LEYVA VELARDE, and EFREN RAMOS FRAIDE, on behalf of themselves and all other persons similarly situated, Plaintiffs,
D'ARRIGO BROTHERS COMPANY OF CALIFORNIA, Defendant
The opinion of the court was delivered by: JEREMY FOGEL, District Judge
ORDER GRANTING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY
Plaintiffs move for partial summary judgment as to the liability of
Defendant D'Arrigo Brothers Company of California ("D'Arrigo") in this
class action lawsuit.*fn1
The Court has read and considered the briefing
and evidence submitted by the parties and has considered the oral
arguments of counsel presented on February 27, 2004. For the reasons set
forth below, the
motion will be granted.
Plaintiffs, current and former employees of D'Arrigo, are agricultural
workers. D'Arrigo is engaged in the business of planting, harvesting,
grading, packaging, packing, and processing vegetables. Plaintiffs allege
that from 1996 to 2000, D'Arrigo did not accurately record or compensate
them for all hours worked in particular, hours that D'Arrigo
required Plaintiffs to spend waiting and traveling to and from fields
pursuant to D'Arrigo's mandatory work transportation policy. Under this
policy, D'Arrigo required Plaintiffs to report to a designated departure
point the Spreckels Parking Lot and to board buses
operated by D'Arrigo. The buses then transported the workers to various
work sites. Plaintiffs were not allowed to drive directly to a work site
even if it was closer to their home than the Spreckels Parking Lot. At
the end of the workday, Plaintiffs were not permitted to leave the work
site immediately, but instead had to wait for the foreman to finish his
or her administrative tasks before the bus could transport them back to
the Spreckels Parking Lot.
Plaintiffs claim that D'Arrigo should have compensated them for this
compulsory waiting and travel time, which includes the time spent riding
the bus to the fields, waiting for the bus at the end of the day, and
riding the bus back to the departure point. Plaintiffs contend that the
legal effect of D'Arrigo's failure to compensate them for these
activities is that they have not been paid wages due to them by law.
D'Arrigo disputes Plaintiffs' claims. It argues that it compensated
Plaintiffs for travel time via its "piece rate" payment scheme. D'Arrigo
asserts that it sometimes paid laborers on the basis of the quantity of
vegetables picked rather than the number of hours worked and that when it
did so such "piece rate" payments included payment for mandatory travel
and waiting time.
Plaintiffs now ask for summary judgment that D'Arrigo: (1) failed to
pay wages due for mandatory travel and waiting time as required by
California Industrial Welfare Commission ("IWC") wage order No. 14-80
("Wage Order No. 14-80") (found at Cal. Code Regs., tit. 8, §
11140),*fn2 California Labor Code sections 201 and 202, and the
California Unfair Business Practices Act, California Business and
Professions Code section 17200 et seq.; (2) must pay statutory
waiting time penalties pursuant to California Labor Code section 203; and
(3) failed to record all hours worked and pay all wages when due pursuant
to sections 1831(c) and 1832(a) of the Migrant and Seasonal Agricultural
Worker Protection Act*fn3 ("AWPA").*fn4 See Brief, p. 23.
II. SUMMARY JUDGMENT STANDARD
A motion for summary judgment should be granted if there is no genuine
issue of material fact and the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c)); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). The moving party bears the
initial burden of informing the Court of the basis for the motion and
identifying portions of the pleadings, depositions, answers to
interrogatories, admissions, or affidavits that demonstrate the absence
of a triable issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the burden shifts to the
nonmoving party to present specific facts showing that there is a genuine
issue of material fact for trial. FED. R. CIV. P. 56(e); Celotex
Corp., 477 U.S. at 324. The evidence and all reasonable inferences
therefrom must be viewed in the light most favorable to the nonmoving
party. T. W. Elec. Service, Inc. v. Pac. Elec. Contractors
Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). Summary judgment is not
appropriate if the nonmoving party presents evidence from which a
reasonable jury could resolve the material issue in his or her favor.
Barlow v. Ground, 943 F.2d 1132, 1136 (9th Cir. 1991).
However, the more implausible the claim or defense asserted by the
nonmoving party, the more persuasive its evidence must be to avoid
summary judgment. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1389
(9th Cir. 1990). The standard applied to a motion seeking partial summary
judgment is identical to the standard applied to a motion seeking summary
judgment of the entire case. Urantia Found. v. Maaherra,
895 F. Supp. 1335, 1335 (D. Ariz. 1995).
A. D'Arrigo's Method of Compensation Failed to Comply with
Plaintiffs seek unpaid wages and statutory penalties arising from
D'Arrigo's alleged failure to pay Plaintiffs for time that D'Arrigo
compelled them to spend waiting and traveling to and from work sites on
D'Arrigo's vehicles between August 4, 1996 and April 14, 2000. Plaintiffs
argue that summary judgment should be granted because there is no
disputed genuine issue of material fact that Plaintiffs were not paid for
such travel and waiting time.
AWPA requires an agricultural employer to keep accurate records of time
worked and to pay seasonal workers all wages when due. This Court has
held that AWPA's requirements are triggered if state law, in particular
California's Wage Order No. 14-80 and the California Labor Code,
specifies that wages are due. See Medrano v. D'Arrigo Bros. Co. of
Cal., 125 F. Supp.2d 1163, 1167 (N.D. Cal. 2000).
Section 4 of Wage Order No. 14-80 requires an agricultural employer to
pay agricultural workers a specified minimum wage for "all hours worked."
Section 4(b) provides: "Every employer shall pay to each employee, on the
established payday for the period involved, not less than the applicable
minimum wage for all hours worked in the payroll period, whether the
remuneration is measured by time, piece, commission, or otherwise." The
California Supreme Court held in Morillion that all time
agricultural workers spend under the employer's control, including
specifically compulsory travel and waiting time, must be considered
"hours worked" pursuant to Wage Order No. 14-80. Morillion v. Royal
Packing Co., 22 Cal.4th 575, 587 (Cal. 2000). Thus, according to
Wage Order No. 14-80, although D'Arrigo may use various schemes to
compensate Plaintiffs, it nonetheless must pay its workers enough to
compulsory waiting and travel time. Both the language of Wage Order
No. 14-80 and the California Supreme Court's reasoning in
Morillion suggest that an employer may use varied payment
schemes*fn5 as long as the agricultural worker is paid no less than the
sum the worker would have been paid during the pay period if the employer
paid according to the following formula: number of hours worked
(including compulsory waiting and travel time) during the pay period
multiplied by the minimum wage set forth in Wage Order No. 14-80.
Accordingly, D'Arrigo is liable if it paid the agricultural workers less
than what Wage Order No. 14-80 required during a pay period, regardless
of how it determined the wages that it paid its employees.
D'Arrigo essentially concedes that it did not compensate
Plaintiffs directly for compulsory waiting and travel time, in
that it did not record travel and waiting time and pay wages for those
hours worked. See, e.g., Opposition, p. 19:23-24; Plaintiffs'
Brief, Ex. 6 (Paz Depo. at 60). It nonetheless argues that it compensated
Plaintiffs for such time indirectly via its piece-rate payment
scheme. At the same time, it admits that it followed the "practice of
compensating employees for the `greater of the day,' meaning employees
received either the piece-rate or guaranteed hourly minimum, whichever
was greater for that day."*fn6 Opposition, p. 23:8-10. As already noted,
the guaranteed hourly minimum scheme did not take travel time into
account directly. Thus, even accepting D'Arrigo's position, there clearly
were at least some instances in which Plaintiffs were not compensated,
even indirectly, for travel time.
However, the dispositive issue for the purposes of the present motion
is not whether D'Arrigo paid directly or indirectly for compulsory travel
and waiting time, but rather whether its payment schemes, whether based
on piece rate or a minimum hourly wage, were insufficient pursuant to
Wage Order No. 14-80. That is, the threshold question for determining
whether payment during a pay period in fact fell below that
required by Wage Order No. 14-80 when compulsory waiting and travel time
are taken into account. It is undisputed that payments according to
the piece rate scheme always were greater than those made according to
D'Arrigo's minimum wage. It also is undisputed that sometimes employees
were paid according to D'Arrigo's minimum wage. Accordingly, if
D'Arrigo's minimum wage always compensated employees in an amount greater
than that required by Wage Order No. 14-80 and Morillion, even
if travel and waiting time were not included in the calculation, then
D'Arrigo could not be liable for violating the requirements of Wage Order
It is undisputed, however, that D'Arrigo failed to keep records of the
time that employees spent traveling and waiting while under its control.
Its Executive Vice President, James R. Manassero, stated that, while he
thought employees were compensated for travel time via piece
rate payments, the amount of time spent traveling was not recorded.
D'Arrigo thus violated section 1831(c) of AWPA. Mr. Manassero admitted
in his deposition that employees sometimes were required to travel
between at least twenty-five and thirty-five minutes each way.
Plaintiffs' Brief, Ex. 3 (Manassero Depo., at 43:2 & 51:24). A
supervisor testified that some travel times are at least fifty minutes
each way, Plaintiffs' Brief, Ex. 4 (Cooper Depo., at 63), and these
estimates do not include waiting time. Plaintiffs also have provided
evidence (and the Court takes judicial notice) that some travel times
were at least thirty-seven minutes each way. Reply, Exs. 1&4.
The Court concludes on the basis of this undisputed evidence that
D'Arrigo must have undercompensated Plaintiffs in at least some instances
regardless of what payment scheme it used. For example, D'Arrigo's
minimum hourly wage appears to have been $6 during some part of 1997 and
$7.05 during some part of 1998. See Plaintiffs' Brief, Exs. 2
(Wage Schedule attachment to Gega Letter, Oct. 19, 1998, Art. 32.1.A. 1)
& 11 (Gega Letter, Mar. 24, 1997). Wage Order No. 14-80 set forth a
minimum wage of $5 effective March 1997 and $5.75 effective March 1,
1998. Thus, if an employee worked for eight hours in the field and
traveled and waited
a total of two hours during the day,*fn7 D'Arrigo would have paid
the employee $48 per day during at least part of 1997*fn8 and $56.40 per
day during at least part of 1998*fn9 if it paid according to its minimum
wage plan. However, Wage Order No. 14-80 would have required payment of
$50 per day during an equivalent part of 1997*fn10 and $57.50 per day
during an equivalent part of 1998.*fn11
Indeed, the available*fn12 evidence from D'Arrigo's database,
see Soule Decl., ¶ 3, confirms that in a sample of the
computer records for travel to just three of the ranches, Plaintiffs were
paid less than the average minimum wage 2,114 times from January 1999 to
April 2000. Soule Decl., ¶ 14. This is so even if the lowest estimate
of travel distance between Spreckels and the
work sites consistent with the evidence is used. Soule Decl., ¶
10. The evidence contained in D'Arrigo's own computer records, in
combination with the general calculations set forth above, indicate that
there is no genuine issue of material fact that D'Arrigo, at least on
some occasions, underpaid Plaintiffs for work during the day. To the
extent that it suggests that the evidence does not establish underpayment
conclusively, D'Arrigo must bear full responsibility for its repeated
failure to comply with the Court's discovery orders. See
Footnotes 7 & 12. Once D'Arrigo complies with Magistrate Judge
Seeborg's order compelling release of all computer records, an
appropriate accounting of exactly how much D'Arrigo underpaid all
employees can be made.
Finally, D'Arrigo has not offered any evidence that would permit a
rational factfinder to determine that it did pay above the minimum
required by Wage Order No. 14-80, including compulsory waiting and travel
time. Its only comment with respect to the issue of whether its hourly
wage payment scheme was sufficient is: "The guaranteed hourly minimum was
an hourly wage previously set by Defendant for a given commodity. This
hourly minimum was always greater than the California minimum wage in
place at the time." Opposition, p. 3 n.2. Even assuming, for purposes of
discussion, that this statement is true, it does not address the question
of whether D'Arrigo's hourly minimum wage payment scheme provided
payments great enough to overcome the effects of its having neglected to
include compulsory travel and waiting time in the calculation. The more
implausible the claim or defense asserted by the nonmoving party, the
more persuasive its evidence must be to avoid summary judgment.
Jackson, 902 F.2d at 1389.
Pursuant to the California Unfair Business Practices Act, California
Business & Professions Code section 17203, Plaintiffs may seek
restitution from employers for unpaid earnings; such earnings are
considered a vested property right. See Watson Lab., Inc. v.
Rhone-Poulenc Rorer, Inc., 178 F. Supp.2d 1099, 1123 (C.D. Cal.
2001). California Labor Code section 205.5 requires an employer to pay
agricultural workers twice per month. Accordingly, to the extent that
D'Arrigo failed to comply with Wage Order No. 14-80 twice per month,
Plaintiffs may seek restitution of any unpaid earnings.
B. California Labor Code Section 510 Is Irrelevant to the
As discussed above, section 4 of Wage Order No. 14-80 requires an
to pay its workers a specified minimum wage for "all hours worked,"
and in Morillion the California Supreme Court held that "all
hours" includes compulsory travel and waiting time. D'Arrigo argues,
however, that Wage Order No. 14-80 conflicts with California Labor Code
section 510. Section 510 provides rules for payment for overtime work and
specifies what work amounts to "overtime." It qualifies time spent
commuting on an employer's vehicle. Specifically, it provides:
The requirements of this section do not apply to
the payment of overtime compensation to an
employee working pursuant to any of the following:
(b) Time spent commuting to and from the first
place at which an employee's presence is required
by the employer shall not be considered to be a
part of a day's work, when the employee commutes
in a vehicle that is owned, leased, or subsidized
by the employer and is used for the purpose of
ridesharing, as defined in Section 522 of the
As relevant to this case, section 510 does nothing more than specify
that overtime wages need not be paid for noncompulsory travel
time ("time spent commuting to and from the first place at
which an employee's presence is required'). The term "day's
work" in section 510 omits travel time because this provision evidently
envisions a scenario in which employers provide discretionary commuting
services for employees. In contrast, Morillion and the present
action concern a situation in which employees were compelled to use the
employer's vehicles. In light of this distinction, the California Supreme
Court noted that it was "not persuaded that [section 510] clearly applies
to plaintiffs' compulsory travel time." Morillion, 22 Cal.4th at
590 n.6. The court's statement that "[b]ecause [compulsory travel] time
is compensable under the plain language of Wage Order No. 14-80, we
decline to determine the exact relationship between Labor Code section
510 and the definition of "hours worked" under Wage Order No. 14-80,"
id., serves only underscores the applicability of Wage Order No.
14-80 in the present matter.
C. AWPA Applies When Wages Due Are Unpaid.
D'Arrigo argues that AWPA "does not incorporate the substantive
provisions of state wage and hour laws and was not intended to be a
federal enforcement mechanism for alleged violations of state wage and
hour laws." Opposition, p. 13. However, this Court already has
held that 29 U.S.C. § 1832(a) "simply provides that wages must
be paid when due, without limiting the source of the obligation,"
Medrano, 125 F. Supp.2d at 1167, and thus "Plaintiffs have
alleged a cognizable AWPA claim by alleging that they were not paid wages
due to them under California law," id. at 1168. For the reasons
set forth in that decision, D'Arrigo's argument is untenable.
D. Statutory "Waiting Time" Penalties Might Be Available to
Some Class Members.
California Labor Code sections 201 and 202 require an employer to pay
all unpaid wages when an employee is discharged or quits. California
Labor Code section 203 provides for a penalty of up to thirty-days worth
of pay if "an employer willfully fails to pay . . . any wages of an
employee who is discharged or who quits."
Plaintiffs argue that there is no genuine issue of material fact that
D'Arrigo acted willfully in its failure to pay discharged Plaintiffs.
Specifically, D'Arrigo intentionally did not pay for travel time, and
"[a]s used in section 203, `wilful' merely means that the employer failed
or refused to perform an act which was required to be done." Barnhill
v. Robert Saunders & Co., 125 Cal.App.3d 1, 7 (1981). However,
the Barnhill court also found that the defendant should not be
penalized if the law is unclear and the defendant did not withhold
payment in bad faith. It is undisputed in this case that the law was
unclear until Morillion, which was decided in 2000. In fact, in
that case the California Supreme Court overturned the lower court's
conclusion that there was no duty to pay for compulsory travel time.
Additionally, seasonal employees such as Plaintiffs are not
"discharged" within the meaning of the statute when they are "laid off
during the off-season with the expectation that they will return to work
at the onset of the subsequent season. Plaintiffs generally returned the
following season, keeping their seniority rights. See
Opposition, p. 31. Indeed, this Court already has found that "unlike a
common law claim requiring payment upon discharge or resignation, the
instant claims . . . are asserted by current employees who have not
resigned or been discharged." Medrano, 125 F. Supp.2d at 1170.
Statutory penalties generally are unwarranted.
However, waiting time penalties are applicable to any employees who
discharged after the Morillion decision and before this
suit was filed and who were not paid at least the minimum wage required
by Wage Order No. 14-80 including compulsory waiting and travel time.
Only this group of employees is entitled to summary judgment. If
Plaintiffs wish to pursue this issue either at a trial or an evidentiary
hearing or if D'Arrigo wishes to submit an appropriate motion for summary
adjudication with respect to it, the moving party shall advise the Court.
E. Issues to Be Determined at the Post-liability Phase.
D'Arrigo offers several arguments that are not directly relevant to the
present motion, the purpose of which is to determine liability. First, it
contends that questions of material fact exist as to the extent to which
it compensated employees above minimum wage. Second, it argues that some
employees were compensated adequately through piece-rate earnings. Third,
it asserts that there are questions of material fact as to which job
classes were subject to the mandatory busing policy: it offers evidence
that cauliflower, celery, fennel, and cactus harvest crews, helpers in
lettuce machine and mixed lettuce crews, machine operators and helpers on
romaine hearts crews, tractor and equipment movers on broccoli harvest
crews, loaders for rappini crews, and thin and hoe crews were excluded.
See, e.g., Opposition, p. 2; Plaintiffs' Ex. 2 (Snell Depo. at
37 & 40).
While it is true that these issues may be relevant to D'Arrigo's
liability to individual class members, Plaintiffs have shown adequately
that at least some class members were compensated below the minimum wage
required by Wage Order No. 14-80. To the extent that some class members
were not undercompensated during certain pay periods, these class members
will not be able to prove damages at the damages phase of the present
action. By making a determination that D'Arrigo improperly failed to
record and pay for compulsory travel time for at least some employees,
the Court is not indicating that all class members necessarily are
entitled to damages or determining the damages to which individual class
members may be entitled. In the damages phase of this action, Plaintiffs
must demonstrate how much they were paid and show that that amount fell
below the minimum wage required by Wage Order No. 14-80 and
Morillion. Similarly, in order to receive waiting time
penalties, class members will have to demonstrate that
they were permanently discharged after Morillion was
decided and before the filing of the present action and that they were
not paid the required minimum wage. To the extent that additional issues
relative to individual class members, such as whether certain classes of
employees were required to ride the bus, require determination by the
Court, the parties may submit motions for summary adjudication of those
Plaintiffs suggest that the Court proceed in three phases following
determination of liability. First, the class should be notified. Second,
Plaintiffs recommend that a special master, to be compensated by
D'Arrigo, should determine (1) whether claims submitted after the filing
deadline should be allowed and (2) the identity of the claimants. Third,
the Court should calculate damages. Plaintiffs concede that D'Arrigo
"probably has a right to a jury trial" on the issue of which employees
were required to ride the buses and that the parties should submit
briefing to determine summarily whether that issue can be adjudicated.
Plaintiffs also suggest that if D'Arrigo disagrees with the findings of
the special master, it should take up its objections at a trial on
damages. It appears, however, that apart from the question of
which subclasses of employees were subject to compulsory travel and
waiting determination of damages likely will require only a
technical calculation (using D'Arrigo's payroll computer records) of how
much each Plaintiff was paid during a payroll period and a comparison of
the result of that calculation with the amount required by state law.
Good cause therefore appearing, IT IS HEREBY ORDERED that Plaintiffs'
motion for summary judgment is granted as follows:
(1) The Court concludes as a matter of law that Defendant has failed to
pay wages due to at least some members of the class on some occasions as
required by California Industrial Welfare Commission wage order No.
14-80, California Labor Code section 205.5, the California Unfair
Business Practices Act, California Business and Professions Code section
17200 et seq., and section 1832(a) of the Migrant and Seasonal
Agricultural Worker Protection Act;
(2) The Court concludes as a matter of law that Defendant must pay
time penalties pursuant to California Labor Code section 203 to any
employee who was not paid in full consistent with California
Industrial Welfare Commission wage order No. 14-80 and Morillion v.
Royal Packing Co., 22 Cal.4th 575 (Cal. 2000) after being
permanently discharged or quitting, after the decision of the California
Supreme Court in Morillion, and before this action was filed.
Summary judgment in favor of Plaintiffs as to this issue as to any other
employee is inappropriate and will be denied. The parties shall advise
the Court as to whether they plan to pursue subsequent litigation
relating to the issue of whether such other employees are owed waiting
time penalties; and
(3) The Court concludes as a matter of law that Defendant failed to
record all hours worked and pay all wages when due pursuant to section
1831(c) of the Migrant and Seasonal Agricultural Worker Protection Act.
The parties may submit motions for summary adjudication on or before
April 5, 2004 limited to the issue of which groups of agricultural
workers were required by Defendant to wait and travel on Defendant's
buses. However, counsel shall meet and confer prior to filing any such
motion in order narrow the scope of the motion to the extent that is
Pursuant to Federal Rule of Civil Procedure 53, the Court will appoint
a special master to determine:
(a) whether claims submitted after the filing
deadline should be allowed;
(b) the identity of claimants; and
(c) the extent to which Defendant underpaid
individual class members during the relevant pay
The parties shall file letter briefs with the Court on or before April
12, 2004 addressing the proposed duties and identity of the special