CONSOLIDATED APPEALS from a judgment and order of the Superior Court of San Diego County, Thomas P. Nugent, Judge. Affirmed. (Super. Ct. No. 37-2008-50872-CU-OE-NC)
The opinion of the court was delivered by: Aaron, J.
CERTIFIED FOR PUBLICATION
In this appeal from a judgment after a bench trial, we consider whether the trial court erred in determining that an employer was not required to pay overtime wages (Lab. Code, § 510)*fn1 to a class of its current and former employees because they were subject to the commissioned employees exemption (Cal. Code. Regs., tit. 8, § 11070, subd. (3)(D)). Pursuant to this exemption, employers are not required to pay overtime wages to employees "whose earnings exceed one and one-half (1 1/2) times the minimum wage if more than half of that employee's compensation represents commissions." (Ibid.) We conclude that the trial court properly determined that the employees were subject to the commissioned employees exemption. Accordingly, we affirm the judgment and a postjudgment order awarding costs to the employer.
FACTUAL AND PROCEDURAL BACKGROUND
Tyrone Muldrow filed this action against Surrex Solutions Corporation (Surrex) on behalf of himself and a class of current and former Surrex employees. In his complaint, Muldrow brought causes of action including failure to pay overtime (§ 510) and failure to provide meal periods (§ 512), among other claims. The trial court certified a class of current and former Surrex "senior consulting services managers," who formerly worked (or were currently working) as employment recruiters for Surrex, since January 31, 2004.
At a bench trial of the class members' claims, Surrex asserted that it was not required to pay overtime to the class members because they were subject to the commissioned employees exemption (Cal. Code. Regs., tit. 8, § 11070, subd. (3)(D)) and the administrative employees exemption (id., subd. (1)(A)(2)). Surrex also contended that it had provided meal periods to the class members, as required.
The trial court determined that the class members were subject to the commissioned employees exemption. The trial court further concluded that Surrex had provided meal periods for the class members, and that the law did not obligate Surrex to ensure that the employees utilized the meal periods. Because these determinations disposed of the action, the court did not proceed to determine whether the class members were subject to the administrative employees exemption. The court entered judgment and a postjudgment award of costs in favor of Surrex.
Appellants filed an appeal from the judgment in which they claim
that the trial court erred in determining that the commissioned
employees exemption applied to them and that they were therefore not
entitled to overtime. In addition, appellants claim that the trial
court erred in denying their claim for missed meal periods.*fn2
Appellants also filed an appeal from a postjudgment
order awarding costs to Surrex. Pursuant to the parties' stipulation,
this court consolidated the appeal from the judgment with the appeal
from the postjudgment cost award.*fn3
A. The trial court did not err in determining that appellants were not entitled to overtime pay because they were subject to the commissioned employees exemption
Appellants claim that the trial court erred in determining that Surrex was not required to pay them overtime (§ 510) because they were subject to the commissioned employees exemption (Cal. Code. Regs., tit. 8, § 11070, subd. (3)(D)).
Appellants' contention raises a mixed question of law and fact. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794 (Ramirez) ["The question whether Ramirez was an outside salesperson within the meaning of applicable statutes and regulations is, like other questions involving the application of legal categories, a mixed question of law and fact"].) Mixed questions of law and fact are reviewed de novo, where the claim to be reviewed is "predominantly one of law." (E.g., In re Marriage of Sonne (2010) 48 Cal.4th 118, 124.)
In this appeal, appellants contend that the trial court erred in determining that they were subject to the commissioned employees exemption, in light of undisputed facts pertaining to both their employment duties and Surrex's compensation system. We apply the de novo standard of review to this claim, since the claim raises a question of law. (See Ramirez, supra, 20 Cal.4th at p. 794 [applying de novo standard of review because, "[i]n the present case, although there was some controversy as to the facts--i.e., as to what Ramirez did as an employee for Yosemite--the predominant controversy is the precise meaning of the term 'outside salesperson,' a question of law"].)
a. Relevant statutory and regulatory provisions
Section 510, subdivision (a) specifies that eight hours of labor constitute a day's work, and that any work in excess of eight hours in one day, 40 hours in one workweek, and the first eight hours worked on the seventh day of work in any workweek "shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee."
California Industrial Welfare Commission (IWC) Wage Order No. 7-2001 exempts from this statutory overtime compensation requirement "any employee whose earnings exceed one and one-half (1 1/2) times the minimum wage if more than half of that employee's compensation represents commissions." (Cal. Code Regs., tit. 8, § 11070, subd. (3)(D).)*fn4
In Keyes Motors, Inc. v. Division of Labor Standards Enforcement (1987) 197 Cal.App.3d 557 (Keyes Motors), the Division of Labor Standards Enforcement (DLSE) determined that an employer that sold and serviced automobiles was required to pay overtime wages to its mechanics. The employer sought a judicial declaration that it was not required to pay overtime wages to its mechanics because the mechanics' compensation, which was based on a percentage of the hourly rate charged to customers ...