This is a class action brought on behalf of employees working at gas stations owned or operated by defendant Chevron Stations, Inc. (Chevron) who have, during the relevant time period, worked one or more shifts alone. Plaintiff alleges that Chevron has failed to provide legally compliant meal and rest breaks to employees working shifts alone, for example on night shifts. The Court granted class certification by Order entered December 5, 2012. The parties subsequently stipulated to having the court consider for summary adjudication the three issues presented in this motion.

Plaintiff Andra Alexander now moves for summary adjudication of three liability issues, pursuant to Code of Civil Procedure Section 437c, subdivision(s) and the Stipulation and Order entered by the Court on July 9, 2013. In order to further the interests of judicial economy, the parties have agreed to have these three issues adjudicated by the court on this motion for summary adjudication. Stipulation and Order To Adjudicate Issues Pursuant to CCP §437c (s), entered July 9, 2013.

The issues to be decided, as set forth in the Stipulation and Order, are:

ISSUE No. 1: Whether Chevron’s uniform policies satisfy Chevron’s legal obligation as an employer to release employees who are scheduled to work their shift alone of all duty for meal and rest breaks.
ISSUE No. 2: Whether Chevron obtained a written rest period exemption from the DLSE under subpart 17 of the Wage Order, and if so, when was such exemption secured.
ISSUE No. 3: Whether Chevron’s practice of scheduling employees to work alone on certain shifts based on “strict business reasons/need” satisfies the “nature of the work” element of 8 CCR §11070 (11)(C).

The Court has considered Issue No. 1 as two separate issues with regard to meal breaks and rest breaks. With regard to meal breaks, summary adjudication is granted. The court finds that as a matter of undisputed fact, Chevron does not provide off-duty meal breaks to those employees scheduled to work alone. This ruling does not, by itself, resolve the question of Chevron’s liability, as it does not address the question of whether Chevron’s policy requiring employees working alone to take on-duty meal breaks met Chevron’s legal obligations. As discussed with regard to the Court’s decision on Issue No. 3, a triable issue of material fact remains as to whether Chevron’s practices met the requirements for the exception allowing on-duty meal periods to be required under certain circumstances.

With regard to rest breaks, the court grants summary adjudication on Issue No. 1, finding that Chevron did not satisfy its legal obligation to release employees working alone of all duty for rest breaks.

Summary adjudication is granted as to Issue No. 2. The Court finds as a matter of undisputed fact that Chevron did not obtain a written rest period exemption from the DLSE under subpart 17 of the Wage Order.

Summary adjudication is denied as to Issue No. 3. Chevron has shown there to be a triable issue of material fact as to whether its practice of single-staffing some stations and some shifts falls within the “nature of the work” exception allowing on-duty meal breaks in some circumstances.

Analysis:

Burden of Proof: As a preliminary matter, the court considers plaintiff’s arguments as to the applicable burden of proof on this motion. Plaintiff argues that because Chevron has a “threshold” legal obligation to maintain policies that convey its authorization for duty free breaks, the burden of proof on whether Chevron has met this obligation would be on Chevron at trial, and is on Chevron as to this motion. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851. Therefore, plaintiff argues, as to all three issues, its burden of proof for purposes of the motion is similar to the standard governing affirmative adjudication of an affirmative defense.

Plaintiff offers no authority for the argument that a defendant employer in an action alleging meal and rest break violations has the burden of proof at trial to show that its policies are legally compliant. The authorities cited by plaintiff instead address the question of an employer’s obligation to provide meal and rest breaks, not the burden of proof at trial or on a motion for summary adjudication. The Court therefore applies the generally applicable burdens regarding the showing that must be made by a party moving for summary judgment or summary adjudication. A plaintiff, in moving for summary adjudication, has the burden of persuasion that each element of the cause of action in question has been proved and the burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. Aguilar, supra, at 850. Once a moving party makes his prima facie showing, the burden shifts to the opposing party to show the existence of a triable issue of material fact. Id. Here, although the motion is for summary adjudication of liability issues rather than summary judgment, the burden of persuasion and the initial burden of production remain on the moving party, plaintiff.

Issue No. 1. The court considers Issue No. 1 as two sub-issues, one as to meal breaks and one as to rest breaks.

Meal Breaks: With regard to meal breaks, Chevron does not argue that it provided off-duty breaks to employees working alone; it asserts that the on-duty meal periods provided were legally compliant. Chevron’s Memorandum of Points and Authorities in Opposition to Motion, pp. 10-11. The evidence submitted by both sides shows that the policy was to provide on-duty meal breaks in this situation. Declaration of Helen Alm in support of Opposition, ¶10 and Exhibit A, 2012 Employee Handbook, p. 32 (“In some instances, employees may be required to remain on duty during the entire shift and forego an unpaid meal period. If an on-duty meal period is required during a shift (i.e., graveyard or other single shift), the scheduled employee must have a signed “Employee Request for On Duty Meal Period” form on file…..”); Plaintiff’s Separate Statement of Undisputed Material Facts (SSUF), #8, Declaration of Matt Bailey (Bailey Decl.), ¶ 6, Exh. E (On-Duty Meal Agreement Form). Plaintiff has shown as a matter of undisputed material fact that the meal periods provided to employees working alone were, as a matter of policy, on-duty meal periods.

The court therefore grants summary adjudication as to Issue No. 1 with regard to meal breaks, finding that Chevron’s uniform policies did not satisfy Chevron’s legal obligation as an employer to release employees who are scheduled to work their shift alone of all duty for meal breaks. This does not reach the question of whether the on-duty meal breaks provided were sufficient to meet Chevron’s legal obligations with regard to meal breaks. There is a disputed issue of material fact as to whether Chevron met the requirement for an exception to the requirement that an off-duty meal period be provided due to the “nature of the work” under Wage Order 7-2001 is discussed below, in the discussion of Issue No. 3.

Rest Breaks: The evidence presented by plaintiff and by Chevron as to how rest breaks were provided for employees working alone is not in conflict. Both parties agree that employees working alone were required to take their breaks where they could see the sales and register areas and respond to any customer needing assistance. SSUF #21; Bailey Decl. Exh. G (July 27, 2010 e-mail to station managers). Chevron adds to this that if an employee on rest break was interrupted, he or she was permitted to restart the break after the customer left in order to receive a full uninterrupted ten minutes of break. Chevron’s Separate Statement of Additional Undisputed and Disputed Material Facts (Chevron SSAF) #41; Alm Decl. ¶ 11; Chevron Request for Judicial Notice, Exh. F (Compendium of Employee Declarations previously submitted in this matter in opposition to motion for class certification). Plaintiff does not dispute this characterization of Chevron’s policy regarding rest breaks, but argues that as a matter of law, where employees were required during their breaks to be available to respond to customers, this did not meet Chevron’s obligation to relieve those employees of all duty during rest breaks.

The Court notes that there is a disputed issue of fact as to whether the rest breaks were considered by Chevron, as a matter of policy, to be “on-duty.” Plaintiff points to an e-mail sent to station managers in 2009 that stated that employees working alone (those who work graveyard shift, or in “Kiosk” locations) “are considered on-duty while taking these breaks.” SSUF # 19, Bailey Decl. Exh. F (Sept. 17, 2009 e-mail from Ruth McDonald). Chevron, in response, argues that the e-mail had to do with timecard procedures and not human resources policy. Chevron SSAF, response to #19. Regardless of the dispute over whether Chevron considered these employees to be on-duty, if, based on the undisputed facts regarding the nature of the breaks provided, as a matter of law they were not relieved of all duty, summary adjudication is appropriate.

Thus the motion for summary adjudication of Issue No. 1, with regard to rest breaks, involves a question of law: can an employer meet its legal obligation to provide employees with rest breaks by providing for such breaks, but requiring that an employee remain available to respond to customers as needed, if the employee may then re-start his or her break until a full uninterrupted ten minutes is completed?

California law requires employers to provide their employees with duty-free rest breaks. Labor Code Section 226.7. Employees are paid for their time during rest breaks, and may be required to remain on the employer’s premises during these breaks. Chevron RJN, Exh. B, DLSE “FAQs” on rest periods.

The parties offer little authority as to whether a rest break during which the employee is not only required to remain on the premises, but must be available to respond to customers, can be considered a legally compliant off-duty break. Chevron cites Temple v. Guardsmark (N.D. Cal. 2011) 2011 US Dist. LEXIS 21100 for the proposition that on-call rest breaks – where, as here, an employee is required to remain available to respond as needed – are acceptable. However, in that case, the on-call policy for rest breaks for security guards required them to remain available in case of emergency. This is unlike the situation here, where employees are required to remain available not only in case of emergency, but in case of any customer needing help. Moreover, the question of whether an on-call rest break can legally be considered an off-duty break was not at issue in that case, where the parties agreed that an on-call break was acceptable, but disagreed as to whether the implementation of the written policies in fact allowed off-duty, but on-call, breaks. Id. at 18.

Plaintiff in reply points to Bufil v. Dollar Financial Group (2008) 162 Cal.App. 1193. In Bufil, the Court of Appeal looked at the issue of commonality for purposes of class certification with regard to the defendant’s rest break policies, which did not allow employees working alone or with a trainee to close the store or take other measures to be off-duty. Id. at 1206. The Court of Appeal found that the evidence of the policies and their implementation were sufficient to demonstrate commonality on the rest break issue. Id. However, the court did not rule on whether the policy in question was legally compliant or consider whether a policy such as the one at issue here, allowing on-call breaks that can be re-started if interrupted, could satisfy the employer’s obligation to provide rest break.

Chevron further argues that it is illogical to disallow on-call rest breaks where California law specifically allows on-duty meal breaks in some circumstances and allows an employee to work alone. To do so, Chevron argues, would mean that although single employee staffing is permissible during thirty minute meal breaks, an additional employee must be made available to relieve the employee during ten minute rest breaks. Chevron Memorandum of Points and Authorities, p. 18. The Court notes that providing an additional employee is not the only way to guarantee that an uninterrupted rest break is provided. Chevron could, for example, allow an employee working alone to close up for each ten minute rest break, not responding to customers, but remaining on the premises.

Wage Order 7-2001 provides for an exception to the requirement that meal breaks be off-duty where the nature of the work requires it. 8 CCR 11070 (11)(C). No such exception is available for rest breaks, unless a written exemption is granted. 8 CCR 11070 (12) and (17). The reason for this distinction is clear: while an employee may be able to eat a meal while working, taking a rest from work while continuing to do that work is a logical impossibility. Here, where employees were required not only to remain on premises, but to respond to customers while on break, such a break cannot be considered to be off-duty. Part of these employees’ duties was to be available and assist customers as needed. While they remained available – not just while they were actually assisting customers – they were performing a part of their job. The Court finds that in this context – gas station attendants working single shifts – an employee who was required to remain available to respond to customers as needed during rest breaks was not relieved of all duty for those breaks, as required by law.

Issue No. 2. Chevron does not dispute its admission in this case that it has not obtained a written rest period exemption from the DLSE under subpart 17 of Wage Order 7-2001. Declaration of Matt Bailey in support of motion for summary adjudication, Exhibit H (Plaintiff’s Requests for Admission, Set Two, Request No. 16) and Exhibit I (Responses to Requests for Admission Set Two, Response to Request No. 16). Summary adjudication of this issue is therefore granted, the Court finding that as a matter of undisputed fact, Chevron did not obtain a written rest period exemption from the DLSE.

Issue No. 3. Wage Order 7-2001 provides for an exception to the requirement that off-duty meal breaks be provided “when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to.” 8 CCR 11070 (11) (C).

Plaintiff argues that the “nature of the work” must mean something about the actual duties performed requires an on-duty meal, not merely whether an employee is scheduled to work alone. See West v. Circle K Stores, Inc. (2006) 2006 U.S. Dist. LEXIS 42074 at 25. As a matter of law, plaintiff argues, because off-duty meal breaks are sometimes possible for employees in this job – when there are two or more employees staffing a shift – the job does not fall within “the nature of the work” exception, regardless of Chevron’s staffing practices. Unless providing off-duty meal breaks is “truly not possible,” plaintiff argues, the exception does not apply. Plaintiff’s Memorandum of Points and Authorities, p. 18.

That interpretation, however, is at odds with the interpretation given to the exception by the Division of Labor Standards Enforcement, responsible for enforcing Wage Orders such as Wage Order 7-2001, and by the courts. Although many cases have interpreted the “nature of the work” exception in the context of reviewing decisions on class certification, the Court knows of no California appellate authority directly addressing when that exception is applicable. See Faulkinberry v. Boyd & Assoc., Inc. (2013) 216 Cal. App. 4th 220; Abdullah v. U.S. Sec. Assocs. (9th Cir. 2013) 731 F. 3d 952. The DLSE responsible for enforcing Wage Orders such as Wage Order 7-2001, identifies certain positions working alone, such as “a sole worker in an all-night convenience store” as a type of job that would “prevent the employee from being relieved of all duty based on the necessary job duties” and thus fall under the exception. DLSE Guidelines Regarding Meal Periods, Revised 7/11/12, Exh. A to Chevron’s Request for Judicial Notice. The DLSE guidelines, although not controlling authority as to the interpretation of the Wage Order, can be used by the Court for guidance in its interpretation. Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1029 fn. 11, cit. om.

Courts have followed the lead of the DLSE in applying the on-duty meal exception to employees working single shifts. In Abdullah, supra, the Ninth Circuit cited DLSE’s application of “the nature of the work” as requiring an analysis of five factors:

(1) [T]he type of work, (2) the availability of other employees to provide relief to an employee during a meal period, (3) the potential consequences to the employer if the employee is relieved of all duty, (4) the ability of the employer to anticipate and mitigate these consequences such as by scheduling the work in a manner that would allow the employee to take an off-duty meal period, and (5) whether the work product or process will be destroyed or damaged by relieving the employee of all duty.” Abdullah, supra, at 960 fn. 12, citing to DLSE Opinion Letter 2009.06.09.

The Court in Abdullah, considering whether plaintiff in that case had made a showing of commonality sufficient to support class certification as to on-duty meal break claims, held that under this interpretation, the merits inquiry would turn on whether the defendant could invoke “the nature of the work” exception as a defense on a class wide basis, and thus the commonality requirement was met. See also Faulkinbury, supra, at 235 (question of whether on-duty meal break exception applied to security guards covered by employer’s on-duty break policy could be resolved on a class-wide basis).

Chevron argues that the five factors set forth in Abdullah support the application of the exception here. First, Chevron argues, the “type of work” is operation of a twenty-four hour gas station, requiring that an employee be available to customers at all times. Second, for the class members – by definition employees working alone – there is no other employee available to provide relief during a break. Third, the consequences of allowing off-duty meal breaks would be, according to Chevron, “severe” – customer service and sales would be affected. Chevron’s Memorandum of Points and Authorities, pp. 14-15. Chevron cannot, Chevron argues, anticipate when there will be customers present, and so the work cannot be scheduled so as to allow off-duty breaks.

Determining the appropriate application of these factors in this case clearly involves resolving factual questions that here are in dispute. Whether there are alternatives to Chevron’s current staffing practices that would allow for off-duty breaks and what the consequences of a change in current practices would be are questions of fact that go directly to whether the “nature of the work” here required on-duty meal breaks. Chevron has shown the existence of triable issues of material fact on this question. Summary adjudication of Issue No. 3 is therefore denied.

Evidentiary Rulings:

Plaintiff’s Request for Judicial Notice is granted. Evidence Code § 452 (d).

Defendant’s Request for Judicial Notice is granted as to all Exhibits thereto. Evidence Code §452 (d) and (h). Plaintiff’s objection to Exhibit F (the compendium of employee exhibits previously filed by CSI in this matter in support of its opposition to the motion for class certification) is overruled. These declarations have already been considered by the court and are part of the court’s filed and are relevant to what CSI”s practices were.

Defendant’s Objection No. 1 is overruled. Counsel states an adequate basis for his knowledge of the document.

Plaintiff’s Supplemental Request for Judicial Notice is granted as to Exhibits 2 and 3 thereto. Evidence Code §452 (d), (h). It is denied as to the particular language of the class certification order for which notice is requested. This request is unnecessary, as the Court has granted plaintiff’s request for judicial notice of the entire order granting class certification.

Plaintiff’s Objections to Evidence:

Objection 1 to Alm Declaration 3:8-10: Overruled. Ms. Alm states an adequate foundation for her knowledge of the matter stated; it is relevant to the issue of what CSI’s policies were.

Objection 2 to Alm Declaration 3:17-20: Overruled. Ms. Alm states an adequate foundation for her knowledge of the matter stated.