IN THE UNITED STATES DISTRlCT COURT 

FOR THE DISTRlCT OF OREGON 

ADAM BERGER and MARK PATRICK, 

Plaintiffs, 

v. 

DIRECTV, INC. and DIRECTV, LLC, 

Defendants. 

PAPAK, Magistrate Judge: 

3:14-cv-01661-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiffs Adam Berger and Mark Patrick filed the instant action against defendants 

DIRECTV, Inc., and DIRECTV, LLC, ("DIRECTV") alleging that DIRECTV engages in a 

"fissured employment scheme" by attempting to shed its role as a direct employer and purpmiing 

to dissociate itself from the workers responsible for its products and services. This scheme 

allegedly led to DIRECTV's failure to pay Plaintiffs minimum and overtime wages, failure to 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 1 of 21
properly calculate Plaintiffs' regular rate of pay, and issuing deductions from Plaintiffs' pay in 

violation of the federal Fair Labor Standards Act ("FLSA") and Oregon wage laws. 

Now before the court is DIRECTV's motion to dismiss (#15) pursuant to Rule 12(b)(6) of 

the Federal Rules of Civil Procedure for failure to state a claim and for failure to meet the 

pleading requirements set forth in Rule 8(a)(2). For the reasons discussed below, DIRECTV's 

motion should be granted in part and denied in part. 

PROCEDURAL BACKGROUND 

Plaintiffs filed their amended complaint (#4) on November 12, 2014, alleging violations 

of the FLSA and Oregon law. Specifically, Plaintiffs allege that DIRECTV's FLSA violations 

included: (1) "failing to pay all minimum wage and ove1iime wages due to Plaintiffs," (2) 

"failing to properly calculate Plaintiffs' regular rate of pay for determining the ove1iime premium 

pay owed," and (3) improperly deducting money from Plaintiffs' pay. Amended Complaint, #4, 

if 75. Plaintiffs allege that those failures also violate ORS 652.010 and 652.261, and that 

DIRECTV's wilful failure to pay Plaintiffs all sums due to them upon tennination violates ORS 

652.150. Id. at ifif 81, 83. 

In August 2012, Plaintiff Berger opted-in to a collective action brought against 

DIRECTV on similar grounds as the action now before this court. A class of plaintiffs brought 

that case, Lang et al. V. DIRECTV, Inc., No. 10-1085-NJB, in February 2010 in the Eastem 

District of Louisiana. The court conditionally ce1iified the class after denying a motion for 

summaiy judgment. The Lang comi decertified the class, however, after determining that 

damages would be difficult to calculate on common proof at trial. Pl. 's Response, #29, 4. The 

Lang cou1i dismissed all opt-in plaintiffs without prejudice. Id. On November 1, 2013, Plaintiff 

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Berger filed his individual claims against DIRECTV in one of eleven actions filed by the 

decertified Lang plaintiffs in the Central District of California. Amended Complaint, #4, iJ 60. 

A judge presiding over nine of the eleven actions ordered those actions transferred to the districts 

in which plaintiffs actually performed their work for defendants. Demarco, et al. v. DIRECTV, 

Inc., et al., No 13-cv-8127-ABC-E (Doc. 64). Similarly, in the case in which Plaintiff Berger 

brought his claims, Acfalle, et al. V. DIRECTV, Inc., et al., No 13-8108-ABC, the court 

dismissed the claims of279 plaintiffs without prejudice with leave to re-file their claims in their 

home districts. 

On January 5, 2015, DIRECTV filed its motion to dismiss (#15). 1 On Februmy 5, 2015, 

the parties stipulated to stay proceedings pending a decision from the Judicial Panel on 

Multidistrict Litigation ("MDL Panel") based on Plaintiffs' Motion for Consolidation and 

Transfer of Related Action. The MDL Panel issued an order (#30-1) on Februmy 6, 2015, 

denying transfer of this action and this cou1i lifted the stay onFebrumy 10, 2015 (#28). On 

Februmy 12, 2015, plaintiffs filed their response in opposition to DIRECTV's motion (#29). On 

Februmy 26, 2015, DIRECTV filed a reply in supp01i of its motion (#31). 

On March 4, 2015, the court heard oral argument on DIRECTV's motion. The matter is 

fully submitted and ready for decision. 

1 DIRECTV failed to comply with the Local Rules in several respects. First, DIRECTV 

combined its motion with their supporting memoranda. See LR 7-l(b) ("Eve1y motion must be 

accompanied by a separately filed legal memorandum." (emphasis added)). Second, DIRECTV 

did not file each declaration in support of the motion as a separate document. .See LR 10-3(a) 

("Affidavits or declarations must be filed as separate documents with their own captions and 

footers."). DIRECTV is reminded to that they are required to comply with the Local Rules. 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 3 of 21
FACTUAL BACKGROUND 

Plaintiffs are two technicians who formerly installed DIRECTV satellite television 

equipment in Oregon. DIRECTV is a Delaware corporation with its principal place of business 

in El Segundo, Califomia. Amended Complaint, #4, if 6-7, 8. Plaintiffs worked for "subordinate 

entities that were ultimately acquired by DIRECTV," and plaintiff Berger operated as an 

independent contractor for DIRECTV. Amended Complaint, #4, if 12. 

DIRECTV oversees and operates a "Provider Network" comprised of intennediary 

entities known as "Home Service Providers" and secondaiy intermediaries called "Secondary 

Providers." Amended Complaint, #4, if 14. DIRECTV has merged with many of the HSPs, 

leaving three primaiy HSPs standing as independent entities still within the Provider Network; 

DirectSat, MasTec, and Multiband. Amended Complaint, #4, if 16. DIRECTV's relationship 

with the Provider Network, according to Plaintiffs, is controlled by a series of "Provider 

Agreements" that provide the framework for the business relationship between DIRECTV and 

the constituents of its Provider Network. Amended Complaint, #4, if 17. Included in the Provider 

Agreements are (1) required policies and procedures with which hired technicians must comply; 

(2) uniform and identification specifications, including requirements to show and wear 

DIRECTV insignia; and (3) equipment installment specifications. Amended Complaint, #4, if 

18-19. 

While employed as technicians, Plaintiffs received daily schedules from a DIRECTV 

dispatching system. Plaintiffs would complete jobs "assigned by Defendants in the prescribed 

order on the daily work schedule." Amended Complaint, #4, if 21. Their duties required 

telephonic check-ins with DIRECTV dispatchers, reports to DIRECTV following completion of 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 4 of 21
installations, and coordination with DIRECTV employees to activate individual service for 

customers. Id 

Plaintiffs' payroll was administered by non-DIRECTV providers, identified above, and 

those providers also directly paid Plaintiffs. Amended Complaint, #4, i! 56. 

LEGAL STANDARD 

I. Motion to Dismiss for Failure to State a Claim 

To survive a Rule l 2(b )( 6) motion to dismiss for failure to state a claim, a complaint must 

contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell 

At/. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To raise a right to relief above the speculative 

level, "[t]he pleading must contain something more ... than ... a statement of facts that merely 

creates a suspicion [of] a legally cognizable right of action." kl (citation omitted). Instead, "for 

a complaint to survive a motion to dismiss, the non-concluso1y 'factual content,' and reasonable 

inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to 

relief." }1foss v. US. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Ashcroft v. Iqbal, 

556 U.S. 662, 678 (2009)). 

In ruling on a Rule 12(b)(6) motion to dismiss, a comt must take the complaint's 

allegations of material fact as true and construe them in the light most favorable to the 

nonmoving party. Keams v. Tempe Tech. Inst., Inc., 39 F.3d 222, 224 (9th Cir. 1994). All 

reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. 

Newca/ Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n. 2 (9th Cir. 2008). Moreover, the 

"court may generally consider only allegations contained in the pleadings, exhibits attached to the 

complaint, and matters properly subject to judicial notice." Swartz v. KP1'1IG LLP, 476 F.3d 756, 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 5 of 21
763 (9th Cir. 2007). 

II. Legal Standard under the FLSA 

The FLSA provides that a covered employer shall not employ any employee "for a work 

week longer than forty hours unless such employee receives compensation for his employment in 

excess of the hours above specified at a rate not less than one and one-halftimes the regular rate 

at which he is employed." 29 U.S.C. § 207(a)(l). 

The FLSA defines "employer" as "any person acting directly or indirectly in the interest 

of an employer in relation to an employee." 29 U.S.C. § 203(d). Courts have futiher defined 

"employer" as one who "exercise[ s] economic and operational control over the employment 

relationship." Lambertv. Ackerley, 180 F.3d 997, 1012 (9th Cir. 1999) 

The FLSA provides a remedy for employees who have not been paid overtime 

compensation, and states that an employer who violates § 207 "shall be liable to the employee or 

employees affected in the amount of their ... unpaid ove1time compensation ... and in an 

additional equal amount as liquidated damages." 29 U.S.C. § 216(b). At the same time, the 

FLSA provides a number of exemptions from these ove1iime regulations for certain employees, 

including "executive employees," 29 C.F.R. § 541.100, "administrative employees,"§ 541.200, 

"professional employees," § 541.300, "computer employees," § 541.400, and "outside sales 

employees," § 541.500, as well as "combination exemptions," for employees who "perform a 

combination of exempt duties" but might not directly qualify under any specific exemption. See 

id. at§ 541.708. 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 6 of 21
III. Oregon State Law Claims 

Oregon Revised Statutes 653.055 provides that: "[a]ny employer who pays an employee 

less than the wages to which the employee is entitled under ORS 653.010 to 653.261 is liable to 

the employee affected." ORS 653.261 provides in relevant part: 

The Connnissioner of the Bureau of Labor and Industries may adopt 

rules prescribing such minimum conditions of employment, 

excluding minimum wages, in any occupation as may be necessary 

for the preservation of the health of employees. The rules may 

include, but are not limited to ... hours of work, but not less than 

eight hours per day or 40 hours per week; however, after 40 hours of 

work in one week overtime may be paid, but in no case at a rate 

higher than one and one-half times the regular rate of pay of the 

employees when computed without benefit of connnissions, 

ovetl'ides, spiffs and similar benefits. 

Oregon law broadly defines "employ" as "to suffer or pe1mit to work .... " ORS 

653.010(2). The same statute defines "employer" as "any person who employs another .... " 

ORS 653.010(3). 

ANALYSIS 

In suppmi of their FLSA claim, Plaintiffs assert that DIRECTV' s policies and practices of 

imposing charge backs, failing to compensate Plaintiffs for all hours worked, and failing to 

reimburse expenses incurred in the course of employment resulted in Plaintiffs routinely working 

at an effective wage rate ofless than the applicable minimum wage. Amended Complaint, #4, if 

64, 68. Plaintiffs also asse1i that they routinely spent more than foiiy hours per week performing 

tasks for the benefit of DIRECTV without receiving the benefit of overtime premiums as 

required by applicable law, a violation of both the FLSA and ORS 653.261. Id. if 55. 

In its motion, DIRECTV argues (1) that Plaintiffs have not pied sufficient facts to 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 7 of 21
establish that they were "employees" of DIRECTV under the FLSA or Oregon Law; (2) Plaintiffs 

have not pied facts supporting a claim that they were not paid minimum and overtime wages 

under as required by the FLSA and Oregon Law; and (3) Plaintiffs have not pled facts suppotting 

their Oregon law claim that DIRECTV failed to pay all sums due upon termination in violation 

of ORS 652.150 ("Final Pay Claim"). Each issue will be analyzed in turn. 

I. The Employer-Employee Relationship 

DIRECTV first moves to dismiss Plaintiffs' claims brought under the FLSA and Oregon 

law because "they have not, and cannot, properly plead the existence of an employment 

relationship with DIRECTV." Def. 's Motion, #15, 9. DIRECTV takes issue with the Amended 

Complaint, stating that 

[I]t cannot be determined whether Plaintiffs are alleging that they 

were direct employees of another entity and DIRECTV was the 'joint 

employer' along with the other entity or entities; or whether Plaintiffs 

are alleging that they were independent contractors of another entity, 

and that DIRECTV was somehow their direct employer and not the 

other entity; or whether Plaintiffs are alleging that although they had 

an independent contracting relationship with another entity, that other 

entity was really a direct employer and DIRECTV was their joint 

employer. 

Def.'s Motion, #15, 9-10. The Amended Complaint does not directly address DIRECTV's 

concern. Instead, Plaintiffs allege that "DIRECTV, through the Providers, exetted control over 

Plaintiffs sufficient to established that they employed Plaintiffs ... under the FLSA." Amended 

Complaint, #4, ~37. While DIRECTV argues that this is conclusory and overbroad and therefore 

fails to meet the relevant pleading standards, that argument ignores the fact that the FLSA' s 

definition of "employer" is not limited to the common law definition, but must instead be given 

an expansive interpretation in order to effectuate the FLSA's broad remedial purpose. Lambert 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 8 of 21
v. Ackerley, 180 F.3d 997, 1012 (9th Cir. 1999). 

A. Relevant Definitions 

The FLSA's definition of employer is "any person acting directly or indirectly in the 

interest of an employer in relation to an employee." 29 U.S.C. 203(d). The applicable statutory 

definition of employer under Oregon law is any person who "suffers," or permits, another to 

work. ORS 653.010(2); ORS 653.010(3). 

DIRECTV points this court to a definition of"employer" used by the Oregon courts in 

the absence of controlling statutory definitions: "one who hires another for wages." Def.' s 

Motion, #15, 10 (citing Kibec v. Balog, No. 3:12-cv-559-ST, 2012 WL 2529202 at *3 (D. Or. 

May 29, 2012), citing Pope v. Judicial Dep't, 79 Or. App. 732, 721P.2d462, 464 (1986)). In 

recommending the adoption of this definition for present purposes, DIRECTV ignores the fact 

that the Kibec court applies the wage-focused definition only after noting that "[t]he applicable 

statutes on which the [claim] appears to be based ... do not define an 'employer' .... " Kibec, 

2012 WL 2529202 at *3. Here, however, the relevant statutes under which Plaintiffs bring their 

claims, the FLSA and ORS 653.010(3), include statutory definitions of"employer." The Oregon 

common law definition cited by DIRECTV, therefore, is inapplicable to the instant case. 

Additionally, the FLSA recognizes the concept of "joint employment," or a situation in 

which employers may share control of an employee based on common or hierarchical control on 

behalf of the multiple employers. 29 C.F.R. 791.2; see also Cejas Commercial Interiors v. 

Torres-Lizama, 260 Or. App. 87, 101 (2013) (noting that legislative history of ORS 653.010 

suppo1ts the understanding that, in defining "employ" to include "to suffer or pe1mit to work," 

the legislature intended to include more relationships than were traditionally included). 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 9 of 21
Additionally, the Oregon courts have recognized "joint employment" as a basis for finding an 

employer-employee relationship in the context of a claim brought under ORS 653.010. Delgado 

v. Del }vfonte Fresh Produce, NA., Inc., 260 Or. App. 480, 317 P.3d 419, 422-23 (2014) 

(upholding trial court decision that allowed special jury verdict finding ')oint employment" 

created an employer-employee relationship after applying a multi-factor test). Thus, to the extent 

DIRECTV's motion takes issue with Plaintiffs' perceived reliance on ')oint employment" to 

establish an employer-employee relationship, it is inco!1'ect. 

B. The Economic Reality Test 

As the parties concede, whether an employment relationship exists under the FLSA is 

determined through the application of the multi-factor "economic reality" test and evaluation of 

the totality of the circumstances. Bonnette v. California Health & Welfare Agency, 704 F.2d 

1465, 1470 (9th Cir. 1983); Torres-Lopez v. 1Vlay, 111F.3d633, 639 (9th Cir. 1997); Cejas 

Commercial Interiors, 260 Or. App. at 94 (adopting the economic-realities test). That test looks 

to four "regulatory factors" and roughly eight "nonregulatory factors" when dete1mining the 

economic realities of a potential employer-employee relationship. Torres-Lopez v. i\Iay, 111 

F.3d at 640. 

In using the economic realities test, the Ninth Circuit employs four "regulatory factors," 

which focus on whether an alleged employer (I) has the power to hire and fire the alleged 

employee; (2) controls employee work schedules or conditions of employment; (3) dete1mines 

the wage rate and method of payment; and (4) maintains employment records. Hale v. State of 

Ariz., 993 F.2d 1387, 1394 (9th Cir. 1983). I note that "these particular factors are merely 

guidelines . . . . The determination of whether an employer-employee relationship exists does not 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 10 of 21
depend on isolated factors but rather upon the circumstances of the whole activity." Gilbreath v. 

Cutter Biological, Inc., 931F.2d1320, 1324 (9th Cir. 1991). 

DIRECTV argues that Plaintiffs' complaint pleads facts to support only the "control" 

factor, and highlights the fact that Plaintiffs do not allege that DIRECTV hired them. Def. 's 

Motion, #15, 11 (citing Amended Complaint, #4, ~ 34). While the control factor is not 

dispositive, the Ninth Circuit has, in similar circumstances, focused on a high degree of control 

exerted by the alleged employer over the alleged employee in finding an inference of an 

employment relationship sufficient to reverse and remand a finding of no merit on a claim 

arguing that an employment relationship existed. Baker v. lvlcNeil Island Corrections Ctr., 859 

F.2d 124, 128-29 (9th Cir. 1988). 

In their complaint, Plaintiffs offer factual allegations regarding DIRECTV's direct control 

over Plaintiffs and indirect control by way of agreements with, and control over, the Provider 

Network. Amended Complaint, #4, ~~ 17-19. Plaintiffs describe the relationship between 

DIRECTV and the HSPs and the provisions contained within the Provider Agreements that 

specifically control Plaintiffs. Amended Complaint, #4, ~~ 28-32. Plaintiffs identify Ironwood 

Communications and DTV Home Services, LLC as entities that allegedly jointly employed 

Plaintiffs along with DIRECTV. Amended Complaint, #4, ~~ 27-30. 

In te1ms of direct control, Plaintiffs exhaustively allege DIRECTV's control over their 

work schedules, which are transmitted through DIRECTV' s dispatching systems, and the order 

ofindividualjobs Plaintiffs were obligated to complete. Amended Complaint, #4, ~~ 19-21. 

Additionally, Plaintiffs allege that DIRECTV exerted direct control over many fundamental 

aspects of Plaintiffs' work in terms of insignia on Plaintiffs' unifo1ms, DIRECTV-provided 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 11 of 21
equipment, DIRECTV-specific training, and identification credentials specific to DIRECTV. 

Amended Complaint, #4, ~ 39. Plaintiffs additionally allege reporting to DIRECTV and 

coordinating with DIRECTV employees after each completed satellite installation job. Amended 

Complaint, #4, ~ 21. 

On this record, I find that Plaintiffs have alleged sufficient facts to suppo1t a claim resting 

on an employment relationship such that Plaintiffs' claim survives DIRECTV's Rule 12(b)(6) 

motion to dismiss. 

II. Minimum and Overtime Violations 

DIRECTV next moves against Plaintiffs' claims alleging failure to pay overtime and 

minimum wages, which are based in part on allegations that Plaintiffs (1) were routinely 

subjected to a wage rate that was less than the applicable minimum wage because they were not 

compensated for all hours worked; (2) were unlawfully deprived of ove1time compensation; (3) 

were not reimbursed by DIRECTV for necessmy business expenses; and ( 4) were subject to 

"charge backs" from their pay. Amended Complaint, #4, ~~ 62, 64, 68. 

DIRECTV argues that Plaintiffs have failed to plead a plausible claim insofar as Plaintiffs 

have not alleged: (1) the number of hours worked for which they did not receive compensation; 

(2) the specific weeks during which those hours were worked; (3) their rate of pay; (4) the 

business expenses for which they did not received reimbursement; and (5) the amount of charge 

backs deducted from their pay. Def.'s Motion, #15, 13. DIRECTV relies heavily on the 

standards for pleading overtime and wage claims under FLSA set forth by the Ninth Circuit in 

Landers v. Quality Communications, Inc., 771F.3d638 (9th Cir. 2014). 

The patties concede that Landers does not require a detailed account of ove1time hours 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 12 of 21
worked or weeks during which overtime was not paid, as the court held that a plaintiff "may 

establish a plausible claim by estimating the length of her average workweek during the 

applicable period and the average rate at which she was paid, the amount of overtime wages she 

believes she is owed, or any other facts that will permit the comi to find plausibility." Landers v. 

Quality Communications, Inc., 771 F.3d at 645. The Landers comi did require, however, that a 

plaintiff must recite more than conclusory allegations that follow the statutoty language in order 

to survive a Rule 12(b)(6) motion. Id. at 644. 

In terms of Plaintiffs' overtime claims, a key requirement cited in Landers, which 

DIRECTV highlights in its arguments, is that, "at a minimum, a plaintiff asse1iing a violation of 

the FLSA overtime provisions must allege that she worked more than forty hours in a given 

workweek without being compensated for the hours worked in excess of fo1iy during that week." 

Id. at 645. While the Landers comi did not require the plaintiffs in that case to plead the 

overtime compensation allegedly owed to them "with mathematical precision," it did state that 

"they should be able to specify at least one workweek in which they worked in excess of forty 

hours and were not paid ove1iime wages." Id at 646. DIRECTV argues, therefore, that 

Plaintiffs' failure to pinpoint a specific workweek in their factual allegations supporting the 

FLSA minimum wage and ove1iime claims cause those claims to fall shoti of the pleading 

requirements of Landers. 

In this case, Plaintiffs allege that they "routinely worked more than 40 hours per week," 

and that DIRECTV's policies and practices "resulted in [Plaintiffs] being routinely subjected to 

working at an effective wage rate of less than the applicable minimum wage." Amended 

Complaint, #4, ifif 62, 64, 68. Landers clearly holds that a plaintiff fails to state a claim under the 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 13 of 21
FLSA by alleging only that he or she worked "more than 40 hours per week." Landers v. Quality 

Communications, Inc., 771 F.3d at 645. Plaintiffs in this case do not identify a date-specific 

workweek during which they worked in excess of 40 hours, and DIRECTV argues therefore that 

Plaintiffs' failure falls shot1 of the standard miiculated in Landers. See Perez v. Wells Fargo & 

Co., No. C14-0989 PJH, 2014 WL 6997618, at *7 (N.D. Cal. Dec.11, 2014) (finding that under 

Landers, allegations that plaintiffs "regularly" or "consistently" worked more than 40 hours a 

week fall shoti of the Iqbal!Ti11ombly standard). 

I disagree with DIRECTV on these grounds, as an isolated reading of the "specific workweek" 

language from Landers is improper. 

In the brief time since the Landers opinion was issued, several district courts have offered 

varying interpretations of the rigors imposed by the pleading standards set foiih in that case. 

Compare Cardoza v. B/oomin' Brands, Inc., 2015 WL 476182 at *l (D. Nev. Feb. 5, 2015) 

(holding that plaintiffs satisfied Landers by alleging that they had not been paid overtime "[a]t 

least once during the past tluee years"), with Perez, 2014 WL 6997618, at *7 (considering the 

failure to plead facts regarding a specific workweek the most impotiant in an mrny of factual 

insufficiencies and affirming dismissal on those grounds). Impo1iantly, a recent Ninth Circuit 

decision shed additional light on the court's own interpretation of the language and standards it 

applied in Landers. See Boon v. Canon Business Solutions, Inc., 2015 WL 675112 at *1 (9th Cir. 

Feb. 18, 2015). In Boon, the com1 reviewed a district court's dismissal of the plaintiffs claim for 

failure to state a claim and failing to plead with specificity as described in Landers. Id. The 

cou1i applied the general pleading standards of Twombly and Iqbal that govern Rule 12(b)(6) 

motions and then reiterated the Landers pleading standard, holding that "detailed factual 

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allegations regarding the number of ove1iime hours worked are not required to state a plausible 

claim." Boon, 2015 WL 675112 at *1, citing Landers, 771 F.3d at 644. The comiproceeded to 

reverse the district court for requiring, in order to state a claim, ( 1) detailed estimates of 

uncompensated time; (2) estimates of how often plaintiffs went uncompensated; (3) and the rate 

of pay at which the plaintiff normally worked. Id. The Boon comi flatly rejected these 

requirements based on the standard articulated in Landers, above. Id The court went on, to 

discuss the "specific workweek" standard on which DIRECTV's motion partly rests, ultimatley 

concluding that the plaintiff met the general pleading requirements as well as the Landers 

"specific workweek" standard simply by "identif[ying] tasks for which he was not paid and 

alleg[ing] that he regularly worked more than eight hours in a day and f01iy hours in a week." 

Boon, 2015 WL 675112 at*!. Based on Plaintiff Patrick's and Plaintiff Berger's allegations that 

they "routinely" worked 50 and 60 hours per week, respectively, as well as their allegations that 

many of those hours were unpaid and they were not paid overtime compensation, Amended 

Complaint, #4, iii! 62, 64, 66, Plaintiffs in the instant case have at least met the threshold 

articulated in Landers and clarified in Boon by alleging that they have been deprived of the 

wages to which they are allegedly entitled. I find no reason to deviate from the Ninth Circuit's 

analysis of its own standard. 

DIRECTV posited at oral argument that, should this court adopt the Ninth Circuit's 

interpretation of the Landers standard as applied in Boon, Plaintiffs' minimum wage claim fails 

nonetheless. DIRECTV argues that Plaintiffs' failure to plead numerically an effective wage rate 

and precisely how that rate was allegedly reduced is insufficient to state a claim. I disagree. 

Plaintiffs need not plead with "mathematical precision," and are entitled to draw on personal 

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experience and memo1y in order to allege facts demonstrating they received less than minimum 

pay. See Landers, 771 F.3d at 646. Here, Plaintiffs' allege that they spent "many unpaid" hours 

per week perfo1ming tasks for the benefit of DIRECTV; that DIRECTV had a policy of imposing 

charge backs wherein it deducted amounts from Plaintiffs' pay ifthere were issues with an 

equipment installation job; that Plaintiffs were made to purchase supplies necessaiy to perform 

their job without reimbursement; and that Plaintiffs were not paid for integral tasks necessaiy for 

their primary task of installing DIRECT satellite television equipment. Amended Complaint, #4, 

ilil 51, 52, 53, 63, 67, 68. Plaintiffs allege that these conditions caused them to be paid an 

effective wage rate of less than the applicable minimum wage. Id. at il 68. Any argument that 

Plaintiffs must go beyond alleging all of these conditions of their employment and provide an 

"estimate of how much uncompensated time was [worked], how often, and at what rate" is 

inconsistent with Landers. Boon, 2015 WL 675112 at *1. 

Considering the facts in the light most favorable to the Plaintiffs, I find that the Landers 

standard, as analyzed by the Ninth Circuit in Boon, is satisfied with regard to Plaintiffs overtime 

and minimum wage claims brought under the FLSA. The general pleading requirements to 

survive a Rule l2(b)(6) motion to dismiss are similarly satisfied. Thus, DIRECTV's motion to 

dismiss Plaintiffs' overtime and minimum wage claims for failure to allege sufficient facts 

should be denied. 

III. Final Pay Claim Under ORS 652.150 

DIRECTV next argues that Plaintiffs' Final Pay Claim falls short of the Rule 12(b)(6) 

standard. DIRECTV points to a single allegation in the Amended Complaint supporting the 

Final Pay Claim: "Defendants willfully failed to pay to plaintiffs all sums due to them at the time 

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the [sic] te1mination from employment or within five days thereafter." Amended Complaint, #4, 

~ 83. DIRECTV argues that Plaintiffs' claim under ORS 652.150 fails insofar as Plaintiffs did 

not plead (1) that they were te1minated; (2) when they were terminated; (3) how much they were 

owed at te1mination; ( 4) how much they were paid as final pay at termination; (5) when they 

received final pay; (6) the grounds for their termination; and (7) the existence and content of any 

written notices of nonpayment after termination. Def.' s Motion, # 15, 18 (citing Amended 

Complaint, #4, ~ 83, 84). 

DIRECTV points the court to Brown v. }vfojo Records, No. CV-00-286-ST, 2000 WL 

33244473 at *9 (D. Or. June 6, 2000), to support dismissal of Plaintiffs' Final Pay Claim under 

Rule 12(b)(6) given the alleged factual insufficiencies in Plaintiffs' Amended Complaint. In that 

case, the court did not dismiss that claim on insufficient factual allegations, as DIRECTV moves 

for here. Instead, the Brown court dismissed the final pay claim with prejudice because plaintiffs 

conceded that no employer-employee relationship existed between them and defendants, failing 

to give rise to a claim under ORS 652.150. Brown v. }vfojo Records, 2000 WL 33244473 at *9. 

Although that case is distinguishable, as Plaintiffs in the instant case argue that an employeremployee relationship does in fact exist, I nonetheless agree with DIRECTV that the factual 

allegations in Plaintiffs' Amended Complaint fall short of establishing a claim under ORS 

652.140 and ORS 652.150. 

Plaintiffs argue that "the elements necessary to support a claim for penalty under 

[652.150] are simple and straightforward.'" Pl.'s Response, #29, 22. I agree. I also agree with 

2 Plaintiffs refer to ORS 162.150 in this section of their briefing. Pl.'s Response, #29, 

21-22. I construe all references to ORS 162.150 as references to ORS 652.150, the relevant 

statute. 

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Plaintiffs' asseliion that no clear authority requires them to plead the specific facts listed in 

DIRECTV's motion and above. Id However, by its terms, ORS 652.150 requires that "ifan 

employer willfully fails to pay any wages or compensation of any employee whose employment 

ceases ... then, as a penalty for the nonpayment, the wages or compensation of the employee 

shall continue from the due date thereof at the same hourly rate ... until action therefor is 

commenced." ORS 652.150. Thus, in order to state a claim under ORS 652.150 upon which 

relief can be granted, Plaintiffs should provide relevant factual allegations to show, at the very 

least, that their alleged employment with DIRECTV has ceased, when that employment ceased, 

and whether there was any written notice of nonpayment pursuant to ORS 652.150(2). 

Fmther, ORS 652.150 is a penalty provision that is invoked upon establishment of a 

violation of ORS 652.140. See ORS 652.150(1). It appears to be Plaintiffs' position that the 

same failures to pay minimum and ove11ime wages due and owing at each regularly scheduled 

pay period that underlie their FLSA claims give rise their Final Pay Claim under ORS 652.140. 

That is, Plaintiffs do not allege that DIRECTV or any HSP proffered final payment of wages in 

an untimely fashion or failed to tender compensation in connection with work perfo1med during 

Plaintiffs' final pay period, but rather that DIRECTV failed to cure the accumulated failures to 

pay in full alleged to underlie the FLSA claims prior to termination. ORS 652.140 provides in 

relevant pai1 as follows: 

(1) When an employer discharges an employee or when employment is 

te1minated by mutual agreement, all wages earned and unpaid at the time of 

the discharge or termination become due and payable not later than the end 

of the first business day after the discharge or termination. 

(2) (a) When an employee who does not have a contract for a definite period 

quits employment, all wages earned and unpaid at the time of quitting 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 18 of 21
become due and payable immediately ifthe employee has given to the 

employer not less than 48 hours' notice, excluding Saturdays, 

Sundays and holidays, of intention to quit employment. 

(b) Except as provided in paragraph ( c) of this subsection, if the 

employee has not given to the employer the notice described in 

paragraph (a) of this subsection, the wages become due and payable 

within five days, excluding Saturdays, Sundays and holidays, afterthe 

employee has quit, or at the next regularly scheduled payday after the 

employee has quit, whichever event first occurs. 

( c) If the employee has not given to the employer the notice described in 

paragraph (a) of this subsection and if the employee is regularly 

required to submit time records to the employer to enable the 

employer to determine the wages due the employee, within five days 

after the employee has quit the employer shall pay the employee the 

wages the employer estimates are due and payable. Within five days 

after the employee has submitted the time records, all wages earned 

and unpaid become due and payable. 

Or. Rev. Stat. 652.140(1) and (2). 

The Oregon Court of Appeals has twice addressed the question whether misconduct 

underlying a failure to pay wages or ove1iime wages systematically over the course of an 

employee's employment can also give rise to a failure to pay termination wages if not conected 

by the time the employment ends. Hurger v. Hyatt Lake Resort, Inc., 170 Or. App. 320, 323 

(2000), rejected the proposition that failure to pay wages due at termination could constitute a 

new, independent violation of a minimum wage or ove1iime statute, but did not establish 

conclusively that there could be no claim under ORS 652.140 premised on an ongoing systematic 

underpayment of wages not c01Tected prior to the termination of employment. 

In Cornier v. Tulacz, 176 Or. App. 245 (2001), the court of appeals came closer to 

establishing that proposition, opining that if a plaintiff presented two such claims for two 

penalties under the two different statutory schemes based on the same employer misconduct, 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 19 of 21
"one of those claims would probably fail under Hurger." Cornier, 176 Or. App. at 250. 

While these cases fall short of conclusively establishing that an ORS 652.140 claim will 

not lie based on ongoing-underpayment facts, the courts of this district have consistently 

interpreted them as standing collectively for that proposition. See, e.g., 1\fathis v. Haus. Auth., 

242 F. Supp. 2d 777, 788 (D. Or. 2002); Cooper v. Thomason, Case No. 06-1018-KI, 2006 U.S. 

Dist. LEXIS 76307, *6-9 (D. Or. Oct. 19, 2006) (collecting cases). I see no grounds for 

deviation from that reasonable interpretation. 

Based on the foregoing, DIRECTV's motion to dismiss should be granted as to Plaintiffs' 

Final Pay Claim under ORS 652.150, and that claim should be dismissed without prejudice. 

Plaintiffs' should be granted leave to amend to cure the deficiencies of that claim. 

CONCLUSION 

For the reasons discussed above, DIRECTV's motion to dismiss (#15) should be denied 

in part as it applies to Plaintiffs' overtime and minimum wage claims. 

DIRECTV's motion should be granted in part as it applies to Plaintiffs' claim alleging 

violation of ORS 652.150 and that claim should be dismissed without prejudice with leave to 

amend. 

SCHEDULING ORDER 

The Findings and Recommendation will be refened to a district judge. Objections, if any, 

are due fourteen (14) days from service of the Findings and Recommendation. Ifno objections 

are filed, then the Findings and Recommendation will go under advisement on that date. 

If objections are filed, then a response is due fourteen (14) days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

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Case 3:14-cv-01661-PK Document 33 Filed 03/06/15 Page 20 of 21
and Recommendation will go under advisement. 

NOTICE 

A party's failure to timely file objections to any of these findings will be considered a 

waiver of that pmiy' s right to de novo consideration of the factual issues addressed herein and 

will constitute a waiver of the pmiy' s right to review of the findings of fact in any order or 

judgment entered by a district judge. These Findings and Recommendation are not immediately 

appealable to the Ninth Circuit Couii of Appeals. Any notice of appeal pursuant to Rule 4(a)(l) 

of the Federal Rules of Appellate Procedure should not be filed until entry of judgment. 

Dated this 6th day of March, 2015, ·. 

onorable Paul Papak 

United States Magistrate Judge 

21 - FINDINGS AND RECOMMENDATION 

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