Case Number: BC516945 Hearing Date: April 13, 2018 Dept: 39

Pete E. Sarantopoulos v Shepherd Home Health Care, Inc., et al., BC516945

Tentative Ruling for 4-13-18:

Damages calculations:

A. Statute of Limitations

Plaintiff was employed by Defendant from September 1, 2007 to September 3, 2011. After his employment, Plaintiff filed a claim with the DLSE on September 6, 2011. Plaintiff argues that he should be able to seek recovery going back from the date he initially filed a claim for overtime wages with the DLSE. Defendant concedes to the statute of limitations table presented by Plaintiffs. (Def. Reply at 2.) Accordingly, the court finds that Plaintiff is entitled to recovery on the following claims as of the following dates:

· Overtime: 9/19/07

· Rest Periods: 8/1/09

· Minimum Wage: 8/1/09

· Liquidated Damages: 8/1/10

· Waiting Time Penalties: 9/19/07

B. Overtime

In California, overtime premiums must be paid for all hours worked in excess of 8 hours in one workday or 40 hours in one work week. (Lab. Code, § 510.) The parties agree that Plaintiff’s claims cover 192 weeks. At trial, the court found that Plaintiff worked an average of 6.88 days per week and spent 5.88 hours visiting patients per day, 1.57 hours traveling between patients, and 0.33 hours per day in rest periods. This comes to a total amount of 53.53 hours per week. Plaintiff additionally spent 2 hours per week on office supply runs and 1 hour per month (0.23 hours/week calculated on a 52 week year) on training sessions. (Remittitur 26.) This time must also be considered in any overtime calculation.

Defendant’s calculations appear to have omitted or miscalculated the weekly and monthly hour figures and are based on 53.53 hours worked per week. While Plaintiff is only entitled to minimum wage compensation for these hours, these hours must be included in the calculation of the total hours Plaintiff worked per week. While Defendant includes some of these numbers on reply, the calculations appear to still be incorrect. (192 weeks do not come to 25 months; also, 2 additional hours per week for supply time added to 53.53 hours do not add up to 54 hours per week; see Def. Reply 4.)

Accordingly, Plaintiff worked 55.76 hours per week, which comes to 15.76 hours of overtime per week or 3,025.92 total overtime hours over the 192 weeks. Plaintiff is therefore entitled to half of his regular rate of pay for this time.

According to Plaintiff, by deducting all amounts paid as mileage reimbursement on his paystubs and dividing the resulting amount by the number of patient visits he made each pay period, the average regular rate of pay, excluding the mileage reimbursement, is $23.84 per hour. Half of this amount is $11.92 per hour.

Defendant’s calculations are based on a rate of $12.13. Plaintiff additionally took the mileage figures out of its overtime calculations. Plaintiff requests additional overtime at a rate of $11.92, so that is the rate at which overtime will be awarded.

At this rate, Plaintiff is entitled to overtime of $187.83 per week for $36,068.97 in overtime for 192 weeks.

C. Additional Minimum Wages

The parties agree that minimum wages should be calculated at a rate of $8 per hour and that the recoverable minimum wages cover a period of 109 weeks. Plaintiff is entitled to minimum wages for 1.57 hours per day for travel time incurred (at 6.88 hours per week), two hours per week to conduct business at Shepherd’s home office, and one hour per month to attend training sessions (0.23 hours/week). In addition, Plaintiff contends he is entitled to minimum wage compensation for the ten minute rest periods he should have been given.

The applicable provision is California Code of Regulations, title 8, section 11040, subdivision 12, which relates to rest periods for professionals. It states:

(A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.

(B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.

(Cal. Code Regs., tit. 8, section 11040, subd. (12) (Wage Order 4).) Defendant did not provide Plaintiff rest periods; accordingly, Plaintiff is entitled to an addition hour of pay for Defendant’s failure to compensate for all time incurred. (See ibid.) Plaintiff cites Bluford v. Safeway Stores, Inc. (2013) 216 Cal.App.4th 864, 872 (Bluford) to contend that he is entitled to minimum wage payment for the rest period he should have gotten. Bluford only states that mandatory rest periods are considered hours worked and must be compensated; it does not state that an employee may recover for this period in addition to the additional one hour of pay at his regular rate of compensation to which he is entitled. (See ibid.) It is because Plaintiff did not get a rest break that he is entitled to additional compensation under section 1040, subdivision (12)(B). Plaintiff does not provide any legal authority that supports his proposition that he may also recover wages for the rest periods in addition to the additional hour of pay granted under the Wage Order. Accordingly, the court finds that Plaintiff is not entitled to an additional minimum wage payment of 0.33 hours per day to reflect the rest periods he was not given and thus did not work.

Based on the figures stated above, Plaintiff is entitled to minimum wages to reflect 13.03 hours of work per week. At $8 per hour, this comes to $104.24 per week and $11,362.16 in total minimum wages.

Defendant appears to include a minor calculation error with regard to the amount claimed for travel time. 1.57 hours per week at 6.88 days per week for 109 weeks at $8 per hour comes to $9,419.00, not $9,417.60 as Defendant calculates.

D. Unpaid Rest Periods

The parties agree that Plaintiff is entitled to his hourly rate of $24.26 for each uncompensated rest period and that Plaintiff worked an average of 6.88 days per week for 109 weeks. The only dispute is as to whether Plaintiff is entitled to compensation for 6 rest periods per week or 6.88 rest periods. Defendant does not explain why Plaintiff is only entitled to rest periods for 6 rest periods per week instead of 6.88. Accordingly, Plaintiff is entitled to $18,193.06 to reflect the rest periods Plaintiff was not given based on the 6.88 work days he worked on average per week.

E. Waiting Time Penalties

Pursuant to Labor Code, section 203, Plaintiff is entitled to 30 days of waiting time penalties at his normal weekly rate. (Lab. Code, § 203.) As stated above, Plaintiff worked 55.76 hours per week. 40.46 of these hours were patient hours, while 15.30 of these hours were minimum wage hours. Plaintiff’s regular hourly rate was $24.26 per hour, the minimum wage was $8 per hour, and 15.76 hours were entitled to an additional overtime amount at $11.92 per hour. Calculated for 4 weeks and 2 days, this comes to a total of $5,536.37. This amount is recoverable.

The parties’ arguments regarding waiting time penalties are calculated based on an hourly rate of $24.26. As calculated above, however, a portion of Plaintiff’s normal weekly rate should have been awarded at a minimum wage rate; only patient hours were recoverable at the rate of $24.26 per hour. For purposes of this calculation, Plaintiff was entitled to recover for two 10-minute rest periods at a minimum wage rate of $8 per day; his regular rate should not be considered to include a penalty for Defendant’s failure to grant the rest period for purposes of waiting time penalties.

F. Interest

Plaintiff is entitled to interest under Labor Code, section 218.6. “An employee who sues civilly to recover unpaid overtime is entitled to ‘interest thereon.’ (Lab. Code, § 1194, subd. (a).) Interest accrues from the day the right to recover overtime vests. (Civ. Code, § 3287, subd. (a); citation.) The interest is computed ‘from the date of accrual to the entry of judgment. [Citations.]’ ” (Espinoza v. Classic Pizza, Inc. (2003) 114 Cal.App.4th 968, 975 (Espinoza).)

The parties dispute whether interest is due from the date that each payment was due or within the last day of Plaintiff’s employment. Defendant cites Kempf v. Barret Business Services, Inc. (N.D.Cal. 2007) 2007 WL 4167016 to argue that interest accrues within 72 hours of the last day of Plaintiff’s employment. In Espinoza, the Court of Appeal held that interest must be calculated from the date on which each overtime payment was due. (Id., 114 Cal.App.4th at p. 975.) As the Espinoza plaintiff’s overtime accrued on a weekly basis, the court of Appeal held that the prejudgment interest must be computed from the dates when each payment should have been made. (Ibid.) Accordingly, Plaintiff is entitled to interest for overtime calculated for each pay period based on the date the overtime or minimum wage payment should have been paid (i.e. on the 10th and 25th of each month).

Plaintiff presents a calculation of interest at the rate of 10% from each period when the overtime wages were due. (Declaration of Michael Strauss (“Strauss Decl.”) ¶ 4.) These calculations, however, do not reflect the amounts stated herein. Plaintiff is to submit a new interest calculation.

G. Liquidated Damages

Under Labor Code, section 1194.2, subdivision (a), Plaintiff is entitled to liquidated damages in an amount equal to unpaid minimum wages and interest due thereon. As stated above, Plaintiff is entitled to $104.24 in minimum wages per week and $208.48 for each two-week pay period.

Plaintiff is to submit a new interest calculation as to the minimum wage award.