Huerta v. CSI Elec. Contractors, Inc.

39 F.4th 1176 (Mem)

George HUERTA, an individual, on behalf of himself and all others similarly situated and as a representative plaintiff, Plaintiff-Appellant,

v. CSI ELECTRICAL CONTRACTORS, INC., Defendant-Appellee,andFirst Solar, Inc.; California Flats Solar LLC; CA Flats Solar 130, LLC ; CA Flats Solar 150, LLC; Cal Flats Solar CEI, LLC; Cal Flats Solar Holdco, LLC; Milco National Constructors, Inc.; California Compaction Corporation, Defendants.

No. 21-16201

United States Court of Appeals, Ninth Circuit.

Filed July 8, 2022

ORDER CERTIFYING QUESTIONS TO THE SUPREME COURT OF CALIFORNIA

We respectfully ask the Supreme Court of California to exercise its discretion to decide the certified questions set forth in section II of this order.

I. Administrative Information

We provide the following information in accordance with California Rule of Court 8.548(b)(1). The caption of this case is:

No. 21-16201

GEORGE HUERTA, an individual, on behalf of himself and all others similarly situated and as a representative plaintiff, Plaintiff-Appellant,

v.

CSI ELECTRICAL CONTRACTORS, INC., Defendant-Appellee

and

FIRST SOLAR, INC.; CALIFORNIA FLATS SOLAR LLC; CA FLATS SOLAR 130, LLC; CA FLATS SOLAR 150, LLC; CAL FLATS SOLAR CEI, LLC; CAL FLATS SOLAR HOLDCO, LLC; MILCO NATIONAL CONSTRUCTORS, INC.; CALIFORNIA COMPACTION CORPORATION, Defendants.

The names and addresses of counsel for the parties are:

For Plaintiff-Appellant George Huerta: Lonnie C. Blanchard, III, 177 E Colorado Boulevard, Pasadena, CA 91105; Peter R. Dion-Kindem, The Dion-Kindem Law Firm, 2945 Townsgate Road, Suite 200, Westlake Village, CA 91301.

For Defendant-Appellee CSI Electrical Contractors, Inc.: Daniel Benjamin Chammas and Min Kyung Kim, Ford & Harrison, LLP, 350 S Grand Avenue, Suite 2300, Los Angeles, CA 90071.

As required by Rule 8.548(b)(1), we designate George Huerta as the petitioner if our request for certification is granted. He is the appellant before our court.

II. Certified Questions

We certify to the Supreme Court of California the following three questions of state law that are now before us:

(1) Is time spent on an employer's premises in a personal vehicle and waiting to scan an identification badge, have security guards peer into the vehicle, and then exit a Security Gate compensable as "hours worked" within the meaning of California Industrial Welfare Commission Wage Order No. 16?

(2) Is time spent on the employer's premises in a personal vehicle, driving between the Security Gate and the employee parking lots, while subject to certain rules from the employer, compensable as "hours worked" or as "employer-mandated travel" within the meaning of California Industrial Welfare Commission Wage Order No. 16?

(3) Is time spent on the employer's premises, when workers are prohibited from leaving but not required to engage in employer-mandated activities, compensable as "hours worked" within the meaning of California Industrial Welfare Commission Wage Order No. 16, or under California Labor Code Section 1194, when that time was designated as an unpaid "meal period" under a qualifying collective bargaining agreement?

Our phrasing of these questions should not restrict the California Supreme Court's consideration of the issues involved; that court may reformulate the questions. Cal. R. Ct. 8.548(f)(5).

We agree to accept and to follow the decisions of the California Supreme Court. Id. 8.548(b)(2) ; see also Frlekin v. Apple, Inc. , 870 F.3d 867, 869 (9th Cir. 2017) ("[W]ith respect to a certified question, ... the Ninth Circuit is bound by the California Supreme Court's interpretation of California law." (citation omitted)).

III. Statement of Facts

This case comes from a construction site at the California Flats Solar Project ("the Project"), a solar power facility in Monterey County, California, located on private property called Jack Ranch. The owner of the facility, First Solar Electric, Inc., retained CSI Electrical Contractors ("CSI") for "procurement, installation, construction, and testing services on Phase 2 of the Project."

Appellant George Huerta worked for CSI through the subcontractor Milco National Constructors, Inc. Two collective bargaining agreements ("CBAs") governed his employment: the Operating Engineers Local Union No. 3 of the International Union of Operating Engineers, AFL-CIO's CBA, and the Project Labor Agreement specific to the Project.

For the Project, First Solar Electric was required to obtain and follow an Incidental Take Permit ("ITP") from the California Department of Fish and Wildlife, which imposed specific rules regarding the presence of local endangered species. The CBA required workers to comply with the permit. The ITP imposed speed limits and other restrictions on the work site. A biologist also monitored the site to minimize disturbances to the species' habitats and cleared the road each morning before anyone could enter.

Workers commuted to the site via personal vehicles, carpools, and buses. The Project had one entrance, requiring workers to first pass a guard shack at the entrance, and then to stop at the Security Gate several miles down the road. Sometimes workers waited outside the entrance before the sun rose or the road was cleared by the biologist.

After passing through the entrance, CSI workers stopped at the Security Gate miles down the road, where a guard scanned each worker's badge and sometimes peered inside vehicles or truck beds. CSI told workers that the Security Gate was the first place they "were required to be at the beginning of the day in order to work." The same badging-out process at the Security Gate was used to exit the site. Since many workers exited the Project around the same time each day, lines at the Security Gate often were five to twenty minutes long.

On their way to work, once through the Security Gate, employees drove ten to fifteen more minutes to the parking lots down the road. On the drive, they had to follow various rules and restrictions regarding speed limits and passing; prohibitions on smoking, gambling, drinking, using drugs or firearms, and creating dust; and general precautions about the endangered species. CSI told workers that noncompliance could result in suspension or termination.

CSI also informed workers they "were required to stay on the job Solar Site during the entire workday" including "during [their] meal periods."

The district court granted CSI's first motion for partial summary judgment on April 28, 2021, and its second on June 25, 2021. The district court ruled that CSI's requirements that workers undergo the exit process and drive between the Security Gate and the parking lots before and after each shift did not rise to the level of control sufficient to require compensation. The district court also determined that the Security Gate was not the "first required location" as defined by Wage Order No. 16, and that Huerta's meal period claims were statutorily exempted because he worked under a qualifying CBA. The district court relied on its decisions in two earlier class actions arising from the same site. See Griffin v. Sachs Elec. Co. , 390 F. Supp. 3d 1070 (N.D. Cal. 2019), aff'd , 831 F. App'x 270 (9th Cir. 2020) (unpublished); Durham v. Sachs Elec. Co. , No. 18-cv-04506-BLF, 2020 WL 7643125 (N.D. Cal. Dec. 23, 2020).

The parties stipulated to the judgment, which reserved Huerta's right to appeal. Huerta timely appealed to our court.

IV. Explanation of Certification Request

No controlling California precedent has answered the certified questions presented here. These questions are dispositive in this case and have significant public policy implications for California workers and employers.

A. Exit Process

California law provides no clear answer to the certified question of whether California Industrial Welfare Commission Wage Order No. 16 requires compensating workers for time spent on the employer's premises in a personal vehicle, waiting to scan an identification badge, permit security guards to peer into the vehicle, and exit a Security Gate.¹ Wage Order No. 16 provides that employers must pay employees for all "hours worked," which is defined as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so." Wage Order 16 §§ 2(J), 4(A). The California Supreme Court has held the two prongs are "independent factors, each of which defines whether certain time spent is compensable as ‘hours worked.’ " Frlekin v. Apple , 8 Cal.5th 1038, 258 Cal.Rptr.3d 392, 457 P.3d 526, 531 (2020) (quoting Morillion v. Royal Packing Co. , 22 Cal.4th 575, 94 Cal.Rptr.2d 3, 995 P.2d 139, 143 (2000) ).

Huerta argues that this "mandatory exit security process" constitutes "hours worked" under both the "control" prong, and the "suffer or permit" prong, of Wage Order No. 16. On appeal, he specifically challenges the waiting time and security process only upon exit from, not entry to, the site. CSI refers to this time merely as "time exiting the project," and contends the time is not compensable under the "control" prong because of the standard from Frlekin , and does not constitute hours worked under the "suffer or permit" prong due to the rule in Hernandez v. Pacific Bell Telephone Co. , 29 Cal.App.5th 131, 239 Cal. Rptr. 3d 852, 860 (Ct. App.2018).

1. "Control" Prong

The California Supreme Court in Frlekin clarified the "determinative" question for the "control" prong is the level of control, "rather than the mere fact that the employer requires the employees' activity." 258 Cal.Rptr.3d 392, 457 P.3d at 533, 538 (quoting Morillion , 94 Cal.Rptr.2d 3, 995 P.2d at 146 ). For "onsite employer-controlled activities," whether the activity is required is relevant but not dispositive; courts also consider additional relevant factors "including, but not limited to, the location of the activity, the degree of the employer's control, whether the activity primarily benefits the employee or...