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September 22, 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,

The opinion of the court was delivered by: JEREMY FOGEL, District Judge

[Docket No. 238]
Plaintiffs move for partial summary judgment as to the liability of Defendant in this class action lawsuit. The Court has read and considered the briefing and evidence submitted by the parties and has considered the oral arguments of counsel. For the reasons set forth below, the motion will be granted. I. BACKGROUND

Plaintiffs, current and former employees of Defendant D'Arrigo Brothers Company of California ("D'Arrigo"), are agricultural workers. D'Arrigo is engaged in the business of planting, harvesting, grading, packaging, packing, and processing vegetables. Plaintiffs allege that between 1996 and 2000, D'Arrigo neither recorded nor compensated 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. Pursuant to 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 ask for summary adjudication that D'Arrigo 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 sections 17200, et seq. They claim that D'Arrigo should have compensated them for this compulsory waiting and travel time, which includes 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. It 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.


  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). Material facts are those that may affect the outcome of the case. Anderson, 477 U.S. at 248. There is a genuine dispute if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. Summary judgment thus 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. See Jackson v. Bank of Hawaii, 902 F.2d 1385, 1389 (9th Cir. 1990).

  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. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). 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). III. ANALYSIS

  A. AWPA, Wage Order No. 14-80, and Morillion

  Plaintiffs seek unpaid wages and statutory penalties arising from D'Arrigo's alleged failure to pay them 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 genuine issue of material fact that they were not paid for such travel and waiting time.

  The Migrant and Seasonal Agricultural Worker Protection Act ("AWPA"), 29 U.S.C. §§ 1801, et seq., requires an agricultural employer to keep accurate records of time worked and to pay seasonal workers all wages when due. 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. Medrano v. D'Arrigo Bros. Co. of Cal., 125 F.Supp.2d 1163, 1167 (N.D. Cal. 2000). 29 U.S.C. § 1832(a) "simply provides that wages must be paid when due, without limiting the source of the obligation," id. 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.

  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 v. Royal Packing Co., 22 Cal.4th 575, 587 (2000), that all time that 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. 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 compensate for 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*fn3 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 as defined in Wage Order No. 14-80.*fn4 This formula applies whether D'Arrigo determined a worker's compensation according to a guaranteed minimum hourly wage, a piece rate wage, or some other method.*fn5 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.*fn6

  Plaintiffs argue that Wage Order No. 14-80 requires D'Arrigo to pay for each separate hour of mandatory waiting and travel time regardless of how much it paid them for other work during the work period. Neither Morillion nor Wage Order No. 14-80 may be read so broadly. The parties have not provided and the Court is not aware of any binding legal authority that requires an employer to calculate an employee's pay on a variable hour by hour basis.*fn7 Section 4(b) of Wage Order No. 14-80 states that the employer must pay the employee on the established payday, not each hour. While Morillion holds that mandatory travel and waiting time must be considered part of "all hours worked," it does not hold that such hours are entitled to special status.

  Although interpreting different statutes, numerous other courts have adopted the same approach as this Court. See, e.g., United States Dep't of Labor v. Cole Enters., Inc., 62 F.3d 775, 780 (6th Cir. 1995); Hensley v. MacMillan Bloedel Containers, Inc., 786 F.2d 353, 357 (8th Cir. 1986); Dove v. Coupe, 759 F.2d 167, 171 (D.C. Cir. 1985); Blankenship v. Thurston Motor Lines, 415 F.2d 1193, 1198 (4th Cir. 1969); United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2nd Cir. 1961); Cuevas v. Monroe Street City Club, Inc., 752 F.Supp. 1405, 1416-17 (N.D. Ill. 1990); Marshall v. Sam Dell's Dodge Corp., 451 F.Supp. 294, 301-03 (N.D.N.Y. 1978); Travis v. Ray, 41 F.Supp. 6, 9 (W.D. Ky. 1941). While the provisions at issue in some of these cases do not necessarily require the total pay to be averaged for a work period, "the purpose of the minimum wage provisions is to protect certain groups of the population from sub-standard wages due to unequal bargaining power. That purpose is met by the work [period] standard." Dove, 759 F.2d at 171 (internal citation omitted).

  Plaintiffs appear to rely heavily on an interpretation by the California Department of Labor Standards Enforcement ("DLSE"). See Plaintiffs' Reply Memorandum in Support of Motion for Summary Judgment, filed February 26, 2004 ("Reply"), Attachment (DLSE Enforcement Policies and Interpretations Manual (2002) section 44.2.2); see also Plaintiffs' Memorandum in Support of Second Motion for Partial Summary Judgment, filed April 12, 2004, Attachment (January 29, 2002 Letter from DLSE (addressing IWC Wage Order No. 9-2001)). However, the California Supreme Court clearly has held that the DLSE's opinion is not binding authority, as the DLSE has not complied with the ...

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