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Andrew Seymore et al v. Metson Marine

April 14, 2011


Superior Court of Contra Costa County, No. CIVMSC08-02279, Thomas M. Maddock, Judge. (Contra Costa County Super. Ct. No. CIVMSC08-02279)

The opinion of the court was delivered by: Pollak, Acting P.J.

On rehearing


Plaintiffs Andrew Seymore and Kenneth Blonden appeal from a judgment entered in favor of their former employers defendants Metson Marine, Inc., and Metson Offshore, Inc. (collectively Metson), on their complaint seeking to recover unpaid overtime wages. The trial court granted summary judgment in favor of Metson on the ground that Metson's compensation practices comply with the requirements of the Labor Code. When employed by defendants, plaintiffs worked consecutive 14-day "hitches" on Metson's ships providing emergency cleanup of oil spills and other environmentally hazardous discharges off the California coast. They contend the trial court erred in granting Metson's motion for summary judgment because the undisputed facts establish that Metson failed (1) to properly calculate overtime for the seventh consecutive day worked in each workweek and (2) to properly compensate them for the 12 hours each day of a hitch that they were on call. We agree with plaintiffs that it is not permissible for Metson to artificially designate the workweek in such a way as to circumvent the statutory requirement to pay overtime rates for the seventh consecutive day worked in a workweek. We also agree that the restrictions placed on plaintiffs during their on-call hours, including the requirement that they sleep aboard the ships and remain within no more than 45 minutes of the ship at all times, subjected plaintiffs to Metson's control for the full 14-day hitch, so that the on-call hours constitute time worked. However, we do not agree that plaintiffs were entitled to compensation for 24 hours a day. California law authorizes employers to enter into an agreement with their 24-hour employees to exclude from compensation eight hours of sleep time in each 24-hour period and the undisputed evidence establishes that plaintiffs and Metson had such an understanding. Accordingly, plaintiffs are entitled to compensation for an additional four, but not 12, hours in each 24-hour period. Because Metson failed to establish that it had fully and correctly compensated plaintiffs for all hours worked, the trial court erred in granting Metson's motion for summary judgment. We shall, therefore, reverse the judgment and remand the action for further proceedings.

Factual and Procedural Background

Plaintiffs' complaint alleges causes of action for unpaid overtime wages under Labor Code*fn1 section 1194 and for unfair business practices under Business and Professions Code section 17200. The complaint alleges that Metson's "policy, practice, and customs regarding wages violate California overtime laws" and amount to an unlawful business practice. The parties filed competing motions for summary judgment and summary adjudication. The following undisputed facts were offered in support of the motions:

Metson provides "crew members and vessel operations for offshore oil spill recovery vessels." Metson's vessels must be prepared to respond to emergency oil spills 24 hours a day. Plaintiffs were employed as crew members on Metson's ships from before 2004 through December 2007.

As crew members, plaintiffs "worked on two-week rotational hitches, i.e., 14-day hitches, alternating with 14-day rest periods." Each two-week period started on a Tuesday at noon and ended at noon on the Tuesday 14 days later. However, Metson calculated overtime pay on the premise that the workweek began at 12:00 a.m. on Monday and ended at 11:59 p.m. the following Sunday. Under Metson's calculations, plaintiffs worked six days in the first workweek, seven days in the second workweek and two days in a third workweek. On that basis, plaintiffs were paid a single seventh day premium at the end of the second workweek.

Plaintiffs were paid to work a 12-hour daily shift during this two-week "hitch," except on crew-change days, when they worked only six hours. Plaintiffs were paid an hourly rate for the full 12-hour shift whether or not they actually performed any work during the full 12 hours. Plaintiffs were paid their regular hourly rate for the first eight hours and time and a half for the additional four hours. On the occasions that plaintiffs worked more than 12 hours in a day while responding to an emergency, they were paid double time for all hours in excess of the usual 12-hour shift.

The remaining 12 hours in each 24-hour period were designated by Metson as "off-duty." Metson designated eight hours of the "off-duty" time as sleep time, three hours as meal times and one hour as free time. During the "off-duty" time, Metson required employees to be on "stand by." Crew members could leave the boat during their "off-duty" time but were required to "check in and check out" when they left the ship. When employees left the ship, they were required to carry a cell phone or pager and be able to return to the ship within 30 to 45 minutes of an emergency call.*fn2 Metson provided sleeping quarters for the crew and plaintiffs were required to sleep on board the vessels. If an emergency was reported while the crew members were asleep, crew members were required to respond and return to work. Crew members were prohibited from consuming alcohol at any time during the two-week hitch. Blonden testified that when he was not working he might go for a walk or to the drugstore to pick up a prescription, read, watch television or call his wife. Seymore testified that when he was not working he ate, watched television, went for a walk or to the gym, and ran personal errands.


1. Metson's Motion for Summary Judgment

The trial court granted summary judgment in favor of Metson, concluding that the uncontroverted facts establish that Metson calculated plaintiffs' wages correctly. Plaintiffs challenge this conclusion, contending that they were entitled to an additional day of premium pay per hitch for working seven consecutive days in a workweek, and additional compensation for the 12 hours they were on call during their 14-day hitches.

A. Seventh Day Premium Pay

Plaintiffs contend that Metson violated the Labor Code by failing to pay them a seventh day premium on both the seventh and 14th days of each hitch. Section 510, subdivision (a) states in pertinent part: "[T]he first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. . . . In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee." Section 500, subdivision (b) defines a "workweek" as "any seven consecutive days, starting with the same calendar day each week. 'Workweek' is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods."

In a petition for rehearing, Metson emphasizes the persuasive value of federal law interpreting the meaning of "workweek" under the federal Fair Labor Standards Act of 1938 (FLSA), 29 United States Code section 201 et seq. We agree that federal authority is persuasive insofar as it does not conflict with the remedial purposes of the California labor laws. (Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16, 31 ["California courts have recognized that California's wage laws are patterned on federal statutes and that the authorities construing those federal statutes provide persuasive guidance to state ...

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