California Court of Appeals, First District, Third Division
Superior Court of Alameda County, No. RG12613328, Wynne S. Carvill, Judge.
Stonebarger Law, Gene J. Stonebarger, Richard D. Lambert, Elaine W. Yan; Kearney Littlefield, Thomas A. Kearney and Prescott W. Littlefield for Plaintiff and Appellant.
Sheppard, Mullin, Richter & Hampton, Thomas R. Kaufman and Gregg A. Fisch for Defendants and Respondents.
Plaintiff Henry Jong appeals from a summary judgment entered against him in his action for unpaid overtime for alleged “off-the-clock” work as an hourly “Outpatient Pharmacy Manager” (OPM) for Kaiser Foundation Health Plan, Inc. and Kaiser Foundation Hospitals (collectively, Kaiser). He contends the trial court erroneously held his proffered evidence insufficient to create a triable issue as to whether Kaiser had actual or constructive knowledge that he was working hours in addition to those that he reported. We shall affirm the trial court’s judgment.
Jong and two other former OPMs brought a putative class action against Kaiser alleging numerous wage and hour violations, including, as relevant to this appeal, a cause of action for the alleged failure to pay overtime compensation for hours worked off the clock. Jong and each of the other two plaintiffs were employed by Kaiser as OPMs at different Kaiser pharmacies in California. On various dates between January 2005 and October 2010, Jong worked as a manager at three different pharmacies. Because the defendants’ motion for summary judgment was granted only as to Jong, we focus primarily on the facts pertinent to his employment and to the motion against him.
Prior to November 2009, Jong and all outpatient pharmacy managers were classified as salaried employees, exempt from various wage and hour requirements. As a consequence of the settlement of a class action alleging that these employees had been misclassified and denied benefits to which they were entitled (Lopez v. Kaiser Foundation Health Plan, Inc. (Super. Ct. Alameda County, No. RG 07-305405)), these employees were reclassified as non-exempt hourly employees entitled to overtime premium compensation. Plaintiffs’ complaint alleges that at the same time, Kaiser “instituted a policy that forbade the payment of overtime premium to Plaintiffs and the Class, while simultaneously refusing to make any adjustments to the duties and responsibilities of [the] Class.” “This is significant, ” the complaint further alleges, because Kaiser’s “own data, including surveys of the Class Members produced in the Lopez action, indicated that, before they were re-classified, Class Members were routinely working fifty (50) hours or more per week in order to [meet Kaiser’s goals and requirements]. [¶] The net effect of [Kaiser’s] policy against the payment of overtime premium along with no depreciation
in the nature of their job duties, since being reclassified non-exempt, hourly workers, Plaintiffs and the Class have been, and continue to be, forced to work ‘off the clock’ so as not to incur overtime premium pay in violation of [Kaiser’s] policy while still maintaining compliance with [Kaiser’s] lofty expectations.”
Following discovery, Kaiser moved for summary judgment on the ground, as to this claim, that Jong lacked evidence that Kaiser “failed to pay overtime wages for hours he worked that Kaiser knew or should have known he worked.” In granting the motion, the trial court fairly summarized Kaiser’s evidence as follows: “Kaiser’s evidentiary support... consists in substantial part of excerpts from the Jong transcript deposition. Jong testified that he was aware that it was Kaiser’s policy to pay for all hours worked and to pay for all overtime hours employees record, even if an employee should or could have obtained pre-approval before working the overtime but failed to do so. He also testified that he was familiar with the applicable time keeping rules and that he knew how to use the timekeeping system. He also signed a document entitled ‘Attestation Form for Hourly Managers and Supervisors – Working Off-the-Clock Not Allowed’ (the ‘Attestation’). Jong further testified that he did not know whether anyone in Kaiser management was aware he was performing the off-the-clock work he ...