A Sunny 'Off-The-Clock' Result For Golden State Employers

A California Court of Appeal in Jong v. Kaiser Foundation Health Plan, Inc., Case No. A138725, ___ Cal. App. 4th __, (Cal. App. 1st Dist. 5/20/2014) (Jong) recently upheld the trial court's grant of the defendant's pre-certification motion for summary judgment against California law off-the-clock claims made by the named plaintiff in a putative class action. Jong is a very favorable result for employers, and is notable for several reasons.

The named plaintiff, a former Outpatient Pharmacy Manager (OPM), brought a putative class action suit in 2012 along with two other former OPMs against Kaiser, claiming that they regularly worked off-the-clock. The trial court granted summary judgment against the named plaintiff's claims, and he appealed.

In assessing the summary judgment ruling, the appellate court focused on the record evidence specifically applicable to the named plaintiff, which included deposition admissions that he:

(1) was aware of the employer's policy to pay for all hours worked;

(2) was aware that the employer paid for all hours recorded, including overtime hours, regardless of whether prior approval for overtime work was obtained;

(3) knew how to use the employer's timekeeping system;

(4) signed an attestation affirming that all of his work would be on-the-clock;

(5) did not know whether any manager knew of his alleged off-the-clock work (significantly, plaintiff "proffered no ... evidence of conversations as to his [off-the-clock] working hours" with supervisors [emphasis supplied]);

(6) kept no record of the alleged off-the-clock hours worked; and,

(7) never made a request to work or be paid for overtime denied by the employer.

Against this backdrop, the named plaintiff argued that the mere circumstances of his employment (pressure to stay within labor budget and unchanged duties post-reclassification) put him in the "unenviable" dilemma of choosing whether (i) to report all of his hours worked or (ii) to "maintain his accountability and avoid the imposition of discipline."

The Jong court applied the off-the-clock standard set forth in Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413 (9th Cir. 1981) (Forrester), after noting that (i) the Forrester standard was assumed to apply to state law claims by both parties and the trial court (Judge Carvill of the Alameda County Superior Court), (ii) was actually applied to state law claims by White v. Starbucks Corp., 497 F. Supp. 2d 1080, 1083 (N.D.Cal. 2007) (White), and...