good morning michael reuben for the plaintiffs i'd like to reserve three minutes for all wages due to persons employed by labor contractors which the lead legislature recognized are often like serenity transportation under capitalized and which often compete for business by cutting their labor costs of the bone and therefore have historically often been found to have committed labor code violations the legislature sought to accomplish this wage protection purpose by making the clients employers the companies like sci cal in this case that hire the labor contractors by making them jointly and several liable for all wages with out requiring the employees to prove that the client's employer controlled them or without having to prove any of the other traditional elements of joint employer liability under california law and the easy case is one in which the workers actually do the work and then the liability flows to both grounds a hard case because you're seeking compensation for the liability for the waiting time when the waiting time was shared with a lot of other companies so help us out sure perhaps it's a hard case but this is a rule twenty three half appeal and it's not a hard case as to the appropriateness of certification because so yeah there are the how that the legal question should be save for later rather than an answer now because the district court said we're not certifying as was obvious that there's no liability as to that part of your claim that's right and that was plain error under many cases decided by this court and other courts because that was a decision on the merits what should have happened here no way to mean the district court is incapable of is not supposed to decide the merits unless it's necessary to determine whether under plaintiff's theory of liability and i'm not sure that's absolutely right i understand that it's customary to save the marriage question for later but is it impermissible for the district court would include that the claim is a dead bang loser on the merits to say well i'm not going to certify for a claim that we think is a dead bang loser no your honor that is not in permissible so the question is and and whether you phrase it in terms of dead bang loser or not a viable claim which is the way the magistrate judge clearly stated or the question is is there a plausible basis on the merits for that a question for a juror and not a legal question i mean it seems like it's about an interpretation of this statute are i said jurist oh so i completely agree with you it is is a legal question and if a reasonable jurist could conclude as a matter of law that two thousand eight hundred and ten dollars applies as it's plain text seems to indicate it is the purposes of the legislature we believe indicate would apply in the situation to make the client employer jointly and severally liable then that's just a common question for all to make determination in the case now but you are right that if there were no possible construction of twenty eight point one three then a court needn't go through the meaningless exercise of certifying a case only to resolve it later although the proper way to proceed is exactly the way judge  proceeded in his vargas case which is well known on here because it's the predecessor to the a b c analysis in that case as you recall the employer st filed a summary judgment motion to determine whether there is a quite a preemption of prong to or to the massachusetts wage act and then only after judge coleman decided that legal issue did the classification issue come up and the judge certified the remaining issues in this case file three summary judgment motions before the class certification issues were decided including one in which it sought to establish that it wasn't a client employer at all didn't even raise this issue didn't raise this construction of two hundred and eighty three until the briefing on class certification so procedurally this case came about in sort of a backwards way but regardless of the procedure regardless of what should have happened which is that sci cal should have timely raise this is a summary judgment motion the question before you now is is there a construction of two thousand eight hundred and ten three there would are you saying that we're not supposed to give you that conclusion we're supposed to send it back to the record anyway even though it may be a hard question i mean we decide as a matter of law that you lose on this point we're not supposed to say that all i can say in response to that question is in stockwell this court said that you have no jurisdiction under twenty three f to issue merits rulings whether that decision is right or wrong on that point that seems to be the position of the th circuit but as a as a practical matter twenty three f gives this court jurisdiction to review summary  classification orders and i'm not sure what the result should be i can only tell you what it seemed what seems to be required by existing th circuit precedent which is that you don't have jurisdiction to decide the merits of a case on a twenty three dollars f appeal but you don't have to reach that here because all time worked for a labor contractor  under twenty eight dollars against the client's employer it's just as if i think on call is not working then you don't then there's no liability against anyone but but judge look let's start with the on call waiting time although the principle would apply to any shared activities we gave the example of an accident with multiple deaths where the person is dispatched to go to various funeral homes but let's talk about on call waiting time because that i think is what really troubled judge  the judge appropriately certified the on call waiting time against serenity the removal technicians were on duty the the evidence in the record is is very clear starting with the declarations that e r one thousand one hundred and ninety three dollars that as soon as these folks get a call whether they're asleep or they having dinner with their family within five minutes they have to be out getting ready their cars have to be orld and yes i understand perfectly what you're saying that with respect to serenity these people are on call for serenity but c s i is only one of many clients and i think the record tells us that question is what happens in any circumstance when you have compensable time whether it's waiting time or whether it's dispatch time is our game right that's why it's a hard case on the merits but the answer to that common question is going to drive the resolution of the case for rule twenty three purposes however you know the court as a matter of law or the juror oars as a matter of fact determine liability for that time is going to apply across the board to every class member we may lose at trial we may win but the question now i predict on that question you're going to lose because the district  if there is a plausible theory by which i cal would be libel on the merits which there is for the reasons were explained in the briefs then she erred she should not have decided that merits question on classification for you to reverse her opinion you have to state that yes in fact despite her conclusion she jumped the inclusion where there was a basis for concluding otherwise in explaining why our legal theory is plausible you will necessarily require the district judge to take a nd look at the issues yes she may conclude again on remand if there were still another opportunity for a c i cal the file a summary judgment motion despite the deadline for this positive motions having passed that no there is no liability here but you are going to be telling her that if you look at the plain language in the legislative purposes in fact the way joint and several liability works is almost always the case when you have multiple joint employers where the goal of the statute is to protect the wages of the employee that was the focus of the legislature there will be lots of entities in joint to employ or sorry in joint and several liability cases that are jointly and severally liable there's no double payment the worker gets paid those wages once the minimum wage is owed minimum wages paid it is then up to all of the jointly and severally libel entities to work it out among themselves how liability should be allocated of serenity has so if i know you don't want to lose an on call time but say you lose on the on call time and we agree th t doesn't cover it for sci can you just speak a little bit about how the break issues the meal breaks and rest breaks and overtime issues are supposed to work like for because for this issue  multiple contributions i mean do you need if i see i was responsible for a forty five minute job on a day that there was ultimately overtime are they liable for all of the overtime some of the overtime how how would you know if if the court work to say that the statute does not make a c i kell liable for any time that was worked for more than one client employer whether was work the labor contract or what represent the multiple accident scene and the only time that sci calc and possibly be liable for were dispatches for a c i cal th you would look at that dispatch time which is laid out in the logs in the call sheets so you can calculate worker by worker to determine whether there was enough time spent on dispatches on a given day but do you into your morning respiratory do you need more than for at for sci to be liable do you need more than eight hours a day of rides for sci or do you just need more than eight hours of rides one ride of which was for a c i would if if you assume that the only time the legislature intended any liability at all was for an actual dispatch then it would only be the time on dispatch for a cia n s a guys liability in this case would be  minimal and that's because you would need more than eight hours to trigger overtime eight hours driving that's the reason the reason that workers have overtime claims against serenity and mail and break claims and the other claims is on call time is on duty time where where they are working under california law and they are performing a job that is they are there for the benefit of others it may be that the jury ultimately  concludes that that is not compensable time that was the issue in ridgeway that the court just decided two days ago the jury there decided that the wal mart drivers lay over time was compensable because there was sufficient control that's absolutely a factual question but if the jury concludes that serenity is liable for the on call on duty time waiting to be dispatched then the next question is the legal question and that's when it should be decided under those circumstances having found on a class wide basis because it's a common question that serenity transportation is liable for bad waiting time that waiting for dispatch time then as a matter of law if serenity can't pay given the fact that it is so willfully under capitalized do sci cal and any other client employer the plaintiffs have chosen to sue although in this case se i cal is the only one and severally liable now se i cal has all the options in the world and could have prevented this and has a way of laying off its obligation but the point of the statute is that client employers like sci cal aren't supposed to work with labor contractors that can't comply with a law that don't comply with the law and aren't in a position to pay the wages that's why two thousand eight hundred and ten point three was inactive and that's why despite the your over time so let me interrupt you but then see the three minutes that you want to see i sure will thanks so much cal that hires an independent contractor be responsible for work there was not performed paresi i coul for working for time that was spent not working for sci cal that was sitting on the sidelines waiting to be dispatched to somebody else your questions  already raise that issue and the fundamental question the gist of the claim here is this on call time because without the on call time they have nothing and they have strictly individual issues against sci cal now calvert as as was noted has less than fifteen percent of the business of this serenity two thousand and sixteen i don't know if the other years well doesn't even work for me it has zero now because they've got to use them to yeah they stopped using them as a result of all this this  exactly and so the on call time clearly is is not and just quarterly i think found the year she she dealt with the issues that and the language of the statute from the standpoint of making a legal interpretation not a decision on the  there were there were a couple of different issues my client and its parent company sci service corporation international were sued service corporation international had nothing to do with this of course and it will claim was that they were a joint employer so we a motion for summary judgment on that issue that's what we filed a motion for summary judgment on the grounds that the that this statute didn't apply to on the grounds of our client wasn't a client employer by definition under the law and the definition of the statute dealing primarily with the issue of premises on the premises or not on the premises i mean at the shore just a little bit because time runs sure but i'm trying to pick up the point made by mr rulon that it's an odd thing when you really have a genuine issue of law to make this heart of your class sort of occasion and i have that are they on getting that out of the in the st just because i got that your honor but it was because of the way the case was scheduled and when we were supposed to be making motions and so forth and they filed their motion for certification before we could do that motion that's all and so we raised the issue the issue is clearly going to be have to be decided at some point and it is clearly a question of law and not of no question that is there anything was there in the district court on case in the central issue from their standpoint that is if my client's not liable for all the on call time that these workers spent waiting to be called to somebody else then the case has very little value as in there's a very little exposure because after all our client only provided fifteen percent of their business but it could i ask you about the other claims so my understanding is that some of these jobs took four hours four and a half hours so wouldn't you be liable for a rest break claim on a four hour ride potentially potentially but that requires a really tight individual analysis i know that it's a lie is it so hard i mean if they have records of the length of rides why can't there just be a look to see whether anyone did rides over three and a half hours  well in an isolated case for one of the plane or set might be true that that was a rarity by the way the average time was less than two hours per day so the question is ok with you here let me pose a hypothetical to you let's assume that and i this is in keeping with the asked let's assume that my client hired serenity to do one removal on one day and it took two hours let's assume that but that same employee did four removals for somebody else that also took two hours each have ten hours is my client responsible for the overtime wage and as well as the meal and rest period responsibilities for all those other sounds like mr riddell is saying it not you're not if you if they lose on the on call time question right but it seems like i don't quite understand how that gets you out entirely which i think right now you're out entirely right like it don't know we're not out this was a decision not to certify the class and the reason was not to certif because the records despite the claim here the records of serenity do not indicate sufficient information for that to answer those questions on an individual basis the records show the time a call came into serenity a referring more to a that went into their dispatch office then it was dispatched out to one of the one of the drivers the drivers records they kept a record called the call log they also kept a record called invoice the driver records have a call log that indicates a time on it in some cases that time was reflected is the time they got the call from the dispatcher in other cases it was the time that they actually arrived at the scene where they're going to make the pick up we don't know when a driver if a driver gets a call at ten o'clock in the morning what time does my client responsible for do they are they responsible from the time that the dispatch call comes to the driver or from the time the driver gets dressed as  isn't that a common issue that the district court could decide as a common matter and then they calculate it from the record well because it can't be calculated from the records because the records are incomplete and they're inaccurate in because of the way that the drivers were recording the information was not consistent so the fact of the matter is that those records will not be would require an intent analysis and also would require well if somebody gets a call the tender at eight o'clock in the morning and they're dispatched to go to a town thirty miles away and on the way they stop and they have breakfast is that time that my client's responsible for you know that requires an analysis did you have a meal did you take a rest break did you do this and that on each one of their their missions so every judge clearly focused on that she said look you're only responsible sci caliph for work actually performed for work that you do which which is in you could argue under the terms of the statute there's only the time that they actually spent on our premises because that's what the statute says the judge clearly said no it's probably the time that they're actually working for you that is when you don't think that includes getting to your premises well no i think getting to where  that that's the case i think that's maybe a fair analysis the statute has lots of issues as we were some constitutional vagueness issues as well as you know so i think it was seventy five minutes or so as i understood it a driver had seventy five minutes between  serenity's rule said you have to respond respond that is say i'm going to take the call or i'm not going to take the call and get their steer radically within seventy five minutes was that in new york in sci's contract with serenity that within within it was outlawing that the driver would be there yes it was the same as when he's own contract with his drivers so then why shouldn't that was minutes be part of the job from the time they're dispatched to the time they actually get going no from the time they get in their car and start driving to their work site to the place where they're going to make a pick up that might be a legitimate time but when did they get in the car in the car when they got the call at eight o'clock in the morning did they get in the car to eight hundred and thirty and drive and get there in time or did they did they wait an hour to get there in fact the records will show that in some cases they waited two hours to get there they were late so those analyses have to be done on an individual basis that's what judge coralie found and that's why she refused to certify the but the so was heard her decision that they need to be individualized because she agreed with you that at the time i don't really start until sometime during the seventy five minutes i mean if we disagree about that then maybe we say the whole seventy five minute counts and then we can take it from the time of the colorado in the st place where we don't we don't hire people in on seventy five minute increments all we told serenity was we need somebody to respond within a time somebody you decide who and you can you can go whenever you like you can we can pick the person to go it's not up to us to do so but they have to be there we want somebody to respond we have a deceased person there are families there they need somebody to respond so i get that that time is not included it's the time that they actually work force they actually go out and do something for us how many punitive class members are there please well interestingly they're put in the subclass or are you referring to the potential subclass it t a class up class there there's a facility class or group of folks it's i think it's sixteen in the class as a whole that is if you buy the idea that we're responsible for all of the drivers and all of their on call time as plain as content there's eighty five drives i think it's eight hundred and fifty number it's not a huge class and but the subway and of course you've got a window that down two of those eighty five drivers who work there during the time that this a that's a different answer from the question he asked it is an issue was raised in a district court yes it was we we put it we put all these statistics in front of the court but did you argue this class be certified because of numerosity you know did i make an oral argument did i make a big argument about that no probably not i think nd in the brief it i think it's in the brief that we in the briefing and the materials that were supplied that numerosity is a suggestion we did ask you that this statute has lots of issues in our view and lots of issues of vagueness and uncertainty and it's a st impression case in the california supreme court no california courts ruled on so we did ask that it be certified for their determination as to a lot of the terms like at any given time site work site and premises work perform all those terms are big in the statute so that's what we that's why we did that ok minutes for the for the other other attorney they split time good morning i'm jeff hawkins and i represent serenity and david for now i think as far as the appeal goes it doesn't involve david for dell or serenity the plaintiffs certification was entirely granted yes to those two defendants so to that extent i think that my parents is almost unnecessary and i don't but among certain whether there are any questions about my involvement in that appeal i have very little information about two thousand eight hundred and ten three but want to make a couple of points in that regard there was an agreement between the parties to proceed in the fashion that we have with regard to some summary judgment at the outset of the case to clarify a few defendants involvement mainly the county of santa clara and the joint employment issues because we thought that that would clear up a lot of stuff so that's why we had some summary judgments in the beginning we talked about summary judgment in the middle before certification and then we decided to certification and then have summer judgments after that so there are summary judgments pending on these issues as well they did get involved into the certification as it applies to serenity again two thousand and ten point three doesn't involve us serenity transport people from one place to another they have roughly eighty dollars to ninety dollars clients they perform a portion of work for sci but it's a very small portion of work  i would estimate fifteen percent there are some factual dispute about whether it's a majority or minority or ten percent or six percent and i think that depends on how you calculate the numbers serenity dispatches by contacting a driver the driver has five minutes to accept or decline a transport so they can they can decline a transport all together and have no implication serenity drivers after they accept a transport then have the obligation to get to the location of that season within seventy five minutes and some clients it was a little bit less time because of an emergency situation say somebody is deceased on the freeway and the and what is your understanding of the records that exist do we know the time at which a driver accepted the job in some circumstances there was no continuity or consistency with regard to the records so there's but like from serenity's side so you said you call someone but if they say no then you need to call someone else like it is there any record on serenity's part of when someone accepted and went when it started it's inconsistent your honor serenity so the drivers hypothetically accept a call some drivers and there wasn't a consistent policy on this if that's what you're asking  regarding serenity some drivers recorded that they took a call i think cept it and then they have their arrival time every driver reported their arrival on scene right not everyone wrote down when they got the call or when accepted the call correct and you did not compensate from the time they accepted the call can i clarify that before your honor i don't think anybody recorded when they accepted the call i think that they recorded when they left from their house if that makes sense i see and did you come at what point do you been to begin to compensate when they leave the house it's a piece rate compensation your honor so they get paid fifty two dollars or fifty five dollars per delivery say across the state or to an airport or for a coroner the rates varied somewhat based upon the i guess you could say the time or the expected time that it would take correct ok got it ok thank you thank you they had to respond within five minutes they were called off and by mr friedel himself if they didn't respond or if they didn't take the call and mr freeh dels e mail to all class members is it eight hundred and ninety one to ninety two saying you have to be there within sixty to seventy five minutes don't delay have your car gassed and ready to go have the suit ready you should get there as soon as possible even though the client doesn't need you to be there within seventy five minutes and so big because those records exist your position is that even if you was on the on call time there should be a class as to the rest breaks and meal breaks and over and over time short on the dispatch time but the important question here is corley herself cited indicated the legislature is concerned with six industries in particular two of them agriculture and garment are industries where it is common place for to be multiple client employers and often undifferentiated work it's often impossible to tell think about a garment or commercial laundry which is another one and look this is california look at the versus sending us you're to understand how an employer who worker is on site the whole day and didn't get breaks and how to overtime how i mean it's just easier to understand then this on call thing where no one really knows who is responsible from the start i acknowledge that the merits in this case and the factual determination may not be easy but this is a class certification question and the extent to which two thousand eight hundred and ten point three applies in one of these instances where there are multiple employers and the work is undifferentiated and because of the under capitalization the workers are concerned they're not going to be paid for what we contend  do you have to assume for these purposes that we are right because the jury could find that in terms of just thinking about whether to certify that we have any idea how common this kind of shared on call time situation is like if it would be certifying just to get certainly in the industrial laundry case and i was citing the emerald versus into us an aggie r vers a synthesis in the california courts of appeal where cities under a living wage ordinance sent laundry and the workers had no idea which client's laundry they were working on and the court found the california court applying california law joint and several liability because there was sufficient control there those are hungry workers have to be on call twenty four hours a day i mean i'm not sure it's the same on two different issues on with the whether on call time is compensable is a separate merits issue also a class wide issue we have to assume for purposes of a class certification motion it's compensable that serenity is liable because they're on duty they're on duty five days a week twenty four hours a day they can get that call it during the time and have to respond within five minutes if that time is compensable which is a jury question then certainly serenity has to pay for the overtime the real breaks and all that but of serenity doesn't have the money to pay the question then is are the purposes of two hundred and eighty three and the tax which simply says the worker has to be supplied to doesn't say controlled by doesn't say working for if the if the worker whose wages were janai is a worker who was supplied to someone and there's no temporal limitation in two thousand eight hundred and ten three is that company liable that's a common question it's a hard question perhaps my understanding is that there are regulations in progress to interpret this that's exactly right and does that affect whether we should certify now and should we wait to see what those regulations say because it's going to change the legal landscape sure it it  s certainly would indicate that rather than certifying you should reverse and remand with an order requiring class certification because presumably those regulations will be final or will be withdrawn by the time this case goes to trial and will have guidance from the sea which is prime trying to put some meat on the bones of two thousand eight hundred and ten point three but the california supreme court obviously doesn't need to wait for those regulations if they are ultimately going to be promulgated and we don't know because it was back in june that they were st proposed nothing has happened about them since then but what we know is these are difficult issues there unresolved issues it's complicated because this is gut feeling that on call time isn't really work time but under california law it is if there is sufficient control by serenity and those are because they are common questions and the resolution will affect all numerosity was considered she found numerosity in fact there are sixty people rather than a smaller number but because that resolution will affect everyone in the same way this is an appropriate case for certification the court jumped the gun by deciding the merits issue to the summary judgment motions were filed before the classification motion there's no reason why the employer couldn't have sought summary judgment on this it didn't