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Utne v. Home Depot U.S.A., Inc.

United States District Court, N.D. California

July 11, 2019

JOHN UTNE, Plaintiff,
HOME DEPOT U.S.A., INC., Defendant.




         This class action labor dispute arises from the alleged failure of defendant Home Depot U.S.A., Inc. (“Home Depot”) to pay its store employees, including named plaintiff John Utne, for the full amount of time worked. In March 2018, Utne's motion to certify two employee classes- the “Lock-In Class” and the “Hourly Employee Class” (collectively, “Plaintiffs”)-was granted. Plaintiffs now move for partial summary judgment that Home Depot is liable (1) to the Lock-In Class for employee time spent waiting to be let out of the store after clocking out and (2) to the Hourly Employee Class for time spent walking to the back of the store and donning the required orange work aprons before clocking in. Home Depot opposes this motion and seeks partial summary judgment that it is not liable to the Hourly Employee Class for the pre-shift time described above, or for the waiting time[1] and wage statement claims that derive therefrom. For the reasons set forth below, Plaintiffs' motion is denied. Home Depot's motion for partial summary judgment is granted with respect to the Hourly Employee Class's waiting time and wage statement claims, but is otherwise denied.[2]


         A. Procedural History

         In March 2016, Utne filed suit against Home Depot in the Superior Court of California seeking recovery of unpaid wages and derivative penalties on behalf of himself and other Home Depot store employees in California. The action was subsequently removed to federal court. The operative Third Amended Complaint (“TAC”) advances five claims under California Law for (1) failure to pay hourly wages, Cal. Lab. Code §§ 223, 510, 1194, 1197, 1198; (2) failure to provide accurate written wage statements, id. § 226; (3) failure timely to pay all wages at the termination of employment, id. § 201-203; (4) violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.; and (5) civil penalties arising from Home Depot's alleged violation of various provisions of the state labor code, Cal. Lab. Code § 2698 et seq.[3]

         On March 30, 2018, two classes were certified: (1) a Lock-In Class made up of “[a]ll individuals employed by Home Depot in hourly-paid or non-exempt positions in Home Depot stores in California at any time since March 8, 2012, and who worked at least one shift ending after the time that the Home Depot store was scheduled to close to the public for the evening, ” and (2) an Hourly Employee Class made up of “[a]ll individuals employed by Home Depot in hourly-paid or non-exempt positions in California at any time since March 8, 2012.” Order Granting Class Cert. 1, 11.

         B. Factual Background for Hourly Employee Class

         The primary question with respect to the Hourly Employee Class is whether workers were subject to Home Depot's control from the time they entered the store to the time they clocked-in. The parties agree that both the primary clock-in machine and the employee lockers where the orange aprons are stored are typically located in the back of the store. It is possible, however, for store employees to clock in and out from computer terminals located near store entrances, Pennington Tr. 25:9-14, [4] and several class members testified to using these terminals to clock in or out. See, e.g., Navarrete Decl. ¶¶ 2, 6; Brown Decl. ¶ 2; Chavez Decl. ¶ 3; Bovee Decl. ¶¶ 3, 5; see also Alvarez Tr. 72:12-74:25.[5]

         It is also undisputed that Home Depot maintains a written policy which states: “Associates are not permitted to remain in the store unless they are working or shopping.” Leviant Decl. Ex. 4. The parties dispute, however, whether this policy applies to the beginning of the workday. When asked to clarify this issue, Home Depot's Rule 30(b)(6) witness, Barbara Pennington, testified: “I think the company's intent with respect to this language was really designed for the end of the day, but it could apply at the beginning of the day.” Pennington Tr. 39:2-13. Pennington gave two reasons for the policy, namely preventing employees from inadvertently performing work for which they were not being compensated and ensuring an accurate head count of employees in the event of an emergency evacuation. Id. 37:18-22, 38:3-11.

         Home Depot maintains another written policy directing employees to put on their orange work aprons before clocking in. The policy states: “Remember that you should arrive fully prepared to begin your shift. In stores, associates should put on their aprons just before clocking in.” Leviant Decl. Ex. 4. Pennington similarly testified that “[w]hen an associate arrives at the start of their shift, they need to go to the back, get their apron, put it on, go to the time clock and clock in.” Pennington Tr. 37:7-10.

         Finally, Home Depot proffers testimony from several class members that they routinely engaged in personal activity while waiting to clock in, including watching television, doing homework, talking on the phone, checking social media, drinking coffee, and chatting with co-workers in the break room. A few class members also testified to being generally unaware of restrictions on their conduct while waiting to clock in. See Stith Tr. 77:10-18; Alvarez Tr. 50:3-17. Utne indicated, however, that employees were prohibited from checking their phones while in the store and that this was a “[f]iring offense.” Utne Tr. 92:11-93:9.[6]

         C. Factual Background for Lock-In Class

         Once Home Depot stores close to the public for the night, the store's exterior doors are locked and a key is required to enter or exit the building. Certain designated key-carrying employees or managers are tasked with letting employees out of the store. It is undisputed that, on some occasions, this procedure has resulted in employees being forced to wait until a manager was available to let them out. Pennington Tr. 51:19-24 (explaining that employees can “go to the front of the store and wait for the manager or page the manager” in order to be let out of the store).[7]Several class members testify, however, that they were almost always let out of the store without any wait. See e.g., Henley Tr. 44:4-46:18; Andia Tr. 102:10-103:12; De La Rosa Decl. ¶ 5; Mothershed Decl. ¶ 5.[8]

         There is also conflicting evidence regarding the extent to which employee time spent waiting to leave the store was unpaid. While some employees clocked out in the rear of the store then waited to be released, other class members clocked out near the front of the store right before exiting the building. Neither party definitively establishes the extent to which class members were permitted, or advised, to clock out at the front of the store. Home Depot policy also allowed employees to report time not captured by the timeclock by submitting a time adjustment form. Pennington Tr. 64:4-15; see also Utne Tr. 196:19-200:14; Ceja Decl. ¶ 7; Marmolejo Decl. ¶ 5; Lee Tr. 68:4-69:5 (explaining that he submitted a correction form when forced to wait to be let out).[9] Several Home Depot managers also testify to advising employees to submit time adjustment forms if they are forced to wait at the exit before being released. Some employees, however, chose not to submit correction forms because they considered the amount of time insignificant. Others stated that they were unaware they could be compensated for the wait time.


         The purpose of summary judgment “is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The Court must ultimately decide “whether the ‘specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence.” T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 ...

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