George Huerta v. Csi Elec. Contractors, Inc ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE HUERTA, an No. 21-16201
individual, on behalf of himself
and all others similarly situated D.C. No.
and as a representative 5:18-cv-06761-BLF
plaintiff,
Plaintiff-Appellant,
ORDER
v. CERTIFYING
QUESTIONS TO
CSI ELECTRICAL THE SUPREME
CONTRACTORS, INC., COURT OF
Defendant-Appellee, CALIFORNIA
and
FIRST SOLAR, INC.; CALIFORNIA
FLATS SOLAR LLC; CA FLATS
SOLAR 130, LLC; CA FLATS
SOLAR 150, LLC; CAL FLATS
SOLAR CEI, LLC; CAL FLATS
SOLAR HOLDCO, LLC; MILCO
NATIONAL CONSTRUCTORS,
INC.; CALIFORNIA COMPACTION
CORPORATION,
Defendants.
2 HUERTA V. CSI ELEC. CONTRACTORS
Filed July 8, 2022
Before: Sandra S. Ikuta, Jacqueline H. Nguyen, and
John B. Owens, Circuit Judges.
Order
SUMMARY *
California Law
The panel certified to the Supreme Court of California
the following questions:
(1) Is time spent on an employer’s premises
in a personal vehicle and waiting to scan
an identification badge, have security
guards peer into the vehicle, and then exit
a Security Gate compensable as “hours
worked” within the meaning of California
Industrial Welfare Commission Wage
Order No. 16?
(2) Is time spent on the employer’s premises
in a personal vehicle, driving between the
Security Gate and the employee parking
lots, while subject to certain rules from
the employer, compensable as “hours
worked” or as “employer-mandated
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HUERTA V. CSI ELEC. CONTRACTORS 3
travel” within the meaning of California
Industrial Welfare Commission Wage
Order No. 16?
(3) Is time spent on the employer’s premises,
when workers are prohibited from
leaving but not required to engage in
employer-mandated activities,
compensable as “hours worked” within
the meaning of California Industrial
Welfare Commission Wage Order No.
16, or under California Labor Code
Section 1194, when that time was
designated as an unpaid “meal period”
under a qualifying collective bargaining
agreement?
ORDER
We respectfully ask the Supreme Court of California to
exercise its discretion to decide the certified questions set
forth in section II of this order.
I. Administrative Information
We provide the following information in accordance
with California Rule of Court 8.548(b)(1). The caption of
this case is:
No. 21-16201
GEORGE HUERTA, an individual, on
behalf of himself and all others similarly
4 HUERTA V. CSI ELEC. CONTRACTORS
situated and as a representative plaintiff,
Plaintiff-Appellant,
v.
CSI ELECTRICAL CONTRACTORS,
INC., Defendant-Appellee
and
FIRST SOLAR, INC.; CALIFORNIA
FLATS SOLAR LLC; CA FLATS SOLAR
130, LLC; CA FLATS SOLAR 150, LLC;
CAL FLATS SOLAR CEI, LLC; CAL
FLATS SOLAR HOLDCO, LLC; MILCO
NATIONAL CONSTRUCTORS, INC.;
CALIFORNIA COMPACTION
CORPORATION, Defendants.
The names and addresses of counsel for the parties are:
For Plaintiff-Appellant George Huerta:
Lonnie C. Blanchard, III, 177 E Colorado
Boulevard, Pasadena, CA 91105; Peter R.
Dion-Kindem, The Dion-Kindem Law Firm,
2945 Townsgate Road, Suite 200, Westlake
Village, CA 91301.
For Defendant-Appellee CSI Electrical
Contractors, Inc.: Daniel Benjamin
Chammas and Min Kyung Kim, Ford &
Harrison, LLP, 350 S Grand Avenue, Suite
2300, Los Angeles, CA 90071.
HUERTA V. CSI ELEC. CONTRACTORS 5
As required by Rule 8.548(b)(1), we designate George
Huerta as the petitioner if our request for certification is
granted. He is the appellant before our court.
II. Certified Questions
We certify to the Supreme Court of California the
following three questions of state law that are now before us:
(1) Is time spent on an employer’s premises
in a personal vehicle and waiting to scan
an identification badge, have security
guards peer into the vehicle, and then exit
a Security Gate compensable as “hours
worked” within the meaning of California
Industrial Welfare Commission Wage
Order No. 16?
(2) Is time spent on the employer’s premises
in a personal vehicle, driving between the
Security Gate and the employee parking
lots, while subject to certain rules from
the employer, compensable as “hours
worked” or as “employer-mandated
travel” within the meaning of California
Industrial Welfare Commission Wage
Order No. 16?
(3) Is time spent on the employer’s premises,
when workers are prohibited from
leaving but not required to engage in
employer-mandated activities,
compensable as “hours worked” within
the meaning of California Industrial
Welfare Commission Wage Order No.
16, or under California Labor Code
6 HUERTA V. CSI ELEC. CONTRACTORS
Section 1194, when that time was
designated as an unpaid “meal period”
under a qualifying collective bargaining
agreement?
Our phrasing of these questions should not restrict the
California Supreme Court’s consideration of the issues
involved; that court may reformulate the questions. Cal. R.
Ct. 8.548(f)(5).
We agree to accept and to follow the decisions of the
California Supreme Court. Id. 8.548(b)(2); see also Frlekin
v. Apple, Inc., 870 F.3d 867, 869 (9th Cir. 2017) (“[W]ith
respect to a certified question, . . . the Ninth Circuit is bound
by the California Supreme Court’s interpretation of
California law.” (citation omitted)).
III. Statement of Facts
This case comes from a construction site at the California
Flats Solar Project (“the Project”), a solar power facility in
Monterey County, California, located on private property
called Jack Ranch. The owner of the facility, First Solar
Electric, Inc., retained CSI Electrical Contractors (“CSI”) for
“procurement, installation, construction, and testing services
on Phase 2 of the Project.”
Appellant George Huerta worked for CSI through the
subcontractor Milco National Constructors, Inc. Two
collective bargaining agreements (“CBAs”) governed his
employment: the Operating Engineers Local Union No. 3 of
the International Union of Operating Engineers, AFL-CIO’s
CBA, and the Project Labor Agreement specific to the
Project.
HUERTA V. CSI ELEC. CONTRACTORS 7
For the Project, First Solar Electric was required to
obtain and follow an Incidental Take Permit (“ITP”) from
the California Department of Fish and Wildlife, which
imposed specific rules regarding the presence of local
endangered species. The CBA required workers to comply
with the permit. The ITP imposed speed limits and other
restrictions on the work site. A biologist also monitored the
site to minimize disturbances to the species’ habitats and
cleared the road each morning before anyone could enter.
Workers commuted to the site via personal vehicles,
carpools, and buses. The Project had one entrance, requiring
workers to first pass a guard shack at the entrance, and then
to stop at the Security Gate several miles down the road.
Sometimes workers waited outside the entrance before the
sun rose or the road was cleared by the biologist.
After passing through the entrance, CSI workers stopped
at the Security Gate miles down the road, where a guard
scanned each worker’s badge and sometimes peered inside
vehicles or truck beds. CSI told workers that the Security
Gate was the first place they “were required to be at the
beginning of the day in order to work.” The same badging-
out process at the Security Gate was used to exit the site.
Since many workers exited the Project around the same time
each day, lines at the Security Gate often were five to twenty
minutes long.
On their way to work, once through the Security Gate,
employees drove ten to fifteen more minutes to the parking
lots down the road. On the drive, they had to follow various
rules and restrictions regarding speed limits and passing;
prohibitions on smoking, gambling, drinking, using drugs or
firearms, and creating dust; and general precautions about
the endangered species. CSI told workers that
noncompliance could result in suspension or termination.
8 HUERTA V. CSI ELEC. CONTRACTORS
CSI also informed workers they “were required to stay
on the job Solar Site during the entire workday” including
“during [their] meal periods.”
The district court granted CSI’s first motion for partial
summary judgment on April 28, 2021, and its second on June
25, 2021. The district court ruled that CSI’s requirements
that workers undergo the exit process and drive between the
Security Gate and the parking lots before and after each shift
did not rise to the level of control sufficient to require
compensation. The district court also determined that the
Security Gate was not the “first required location” as defined
by Wage Order No. 16, and that Huerta’s meal period claims
were statutorily exempted because he worked under a
qualifying CBA. The district court relied on its decisions in
two earlier class actions arising from the same site. See
Griffin v. Sachs Elec. Co., 390 F. Supp. 3d 1070 (N.D. Cal.
2019), aff’d, 831 F. App’x 270 (9th Cir. 2020)
(unpublished); Durham v. Sachs Elec. Co., No. 18-cv-
04506-BLF, 2020 WL 7643125 (N.D. Cal. Dec. 23, 2020).
The parties stipulated to the judgment, which reserved
Huerta’s right to appeal. Huerta timely appealed to our
court.
IV. Explanation of Certification Request
No controlling California precedent has answered the
certified questions presented here. These questions are
dispositive in this case and have significant public policy
implications for California workers and employers.
A. Exit Process
California law provides no clear answer to the certified
question of whether California Industrial Welfare
HUERTA V. CSI ELEC. CONTRACTORS 9
Commission Wage Order No. 16 requires compensating
workers for time spent on the employer’s premises in a
personal vehicle, waiting to scan an identification badge,
permit security guards to peer into the vehicle, and exit a
Security Gate. 1 Wage Order No. 16 provides that employers
must pay employees for all “hours worked,” which is defined
as “the time during which an employee is subject to the
control of an employer, and includes all the time the
employee is suffered or permitted to work, whether or not
required to do so.” Wage Order 16 §§ 2(J), 4(A). The
California Supreme Court has held the two prongs are
“independent factors, each of which defines whether certain
time spent is compensable as ‘hours worked.’” Frlekin v.
Apple, 457 P.3d 526, 531 (Cal. 2020) (quoting Morillion v.
Royal Packing Co., 995 P.2d 139, 143 (Cal. 2000)).
Huerta argues that this “mandatory exit security process”
constitutes “hours worked” under both the “control” prong,
and the “suffer or permit” prong, of Wage Order No. 16. On
appeal, he specifically challenges the waiting time and
security process only upon exit from, not entry to, the site.
CSI refers to this time merely as “time exiting the project,”
and contends the time is not compensable under the
“control” prong because of the standard from Frlekin, and
does not constitute hours worked under the “suffer or
permit” prong due to the rule in Hernandez v. Pacific Bell
Telephone Co., 239 Cal. Rptr. 3d 852, 860 (Ct. App. 2018).
1
Wage Order No. 16 regulates the wages, hours and working
conditions in certain on-site occupations in the construction, drilling,
logging, and mining industries.
10 HUERTA V. CSI ELEC. CONTRACTORS
1. “Control” Prong
The California Supreme Court in Frlekin clarified the
“determinative” question for the “control” prong is the level
of control, “rather than the mere fact that the employer
requires the employees’ activity.” 457 P.3d at 533, 538
(quoting Morillion, 995 P.2d at 146). For “onsite employer-
controlled activities,” whether the activity is required is
relevant but not dispositive; courts also consider additional
relevant factors “including, but not limited to, the location of
the activity, the degree of the employer’s control, whether
the activity primarily benefits the employee or employer,
and whether the activity is enforced through disciplinary
measures.” Id. at 538. But the analyses and weight given to
the factors differ slightly when addressing, for example, on-
site security exit processes, see id., and mandatory on-call
time on the employer’s premises, see, e.g., Mendiola v. CPS
Sec. Sols., Inc., 340 P.3d 355 (Cal. 2015). The analyses and
weight also differ when addressing the employee’s travel
time off the employer’s premises, such as travel to and from
the employer’s premises on employer-mandated
transportation, Morillion, 995 P.2d at 140, and travel to and
from the employer’s premises on employer-provided
optional transportation, Overton v. Walt Disney Co., 38 Cal.
Rptr. 3d 693, 699–701 (Ct. App. 2006); Hernandez, 239 Cal.
Rptr. 3d at 856–59. And no California court has addressed
which iteration of the control analysis applies to time spent
on the employer’s premises, in a personal vehicle, waiting
for and undergoing an exit process.
The Frlekin factors provide guidance, but no clear
answer. Like the bag check in Frlekin, the process here was
required to exit, and in both cases the process occurred on
the employer’s premises and primarily benefitted the
HUERTA V. CSI ELEC. CONTRACTORS 11
employer. 2 However, the disciplinary measures here were
less extensive than those in Frlekin. 3 And the overall degree
of control seems lower than in Frlekin, where the employer
compelled workers to “perform specific and supervised tasks
while awaiting and during the search,” like finding and
waiting for an available manager or guard to conduct the
search, opening all bags and packages and moving items
inside, presenting personal technology for inspection, and
“providing a personal technology card for device
verification.” 457 P.3d at 531. While Huerta and his
colleagues could also wait for up to twenty minutes to exit,
he merely had to roll down his window and present his
badge, and it is not clear that guards always looked into car
windows or truck beds, or that this caused delays or required
workers to take any action.
California case law concerning employer control, and
factors such as whether the control is exerted on or off the
employer’s site, provides further guidance, but again no
clear answer. The control exerted by the employers in
Morillion and Mendiola—which the California Supreme
2
The Frlekin exit searches “promote[d] [the employer’s] interest in
loss prevention.” 457 P.3d at 535. While CSI argues the exit process
was “strictly for the purposes of ingress and egress,” the record supports
that the purpose was theft prevention, and it is reasonable to infer CSI
also intended to promote security and compliance with the
environmental restrictions.
3
Compared to the extensive written discipline policy in Frlekin,
457 P.3d at 536, including and up to termination for failure to undergo
an exit search, here workers without badges could exit by obtaining
clearance from the security guard shack. While workers could be
disciplined or terminated if they twice attempted to exit the Security Gate
“too early at the end of the workday,” this was because early arrival
indicated workers were speeding on the internal roads, and so discipline
was unrelated to the exit process.
12 HUERTA V. CSI ELEC. CONTRACTORS
Court deemed sufficient to require compensation—seems
comparatively greater than that exerted here. In Morillion,
995 P.2d at 140–41, workers were required to travel on
employer-provided buses from off-site meeting points to the
employer’s premises, so the employees were off-site but
under the employer’s control. In Mendiola, 340 P.3d at 357–
58, workers were restricted from leaving the premises during
on-call periods and required to immediately respond to
activated alarms, though not required to take other actions,
so the employees were on-site and under the employer’s
control (because they were on-duty and required to stay on
site). The California Court of Appeal in Overton, 38 Cal.
Rptr. 3d at 699–701, emphasized that the mandatory nature
of the transportation was critical in making off-site travel
time compensable (though Frlekin, 457 P.3d at 538, stated
that the mandatory nature was a non-dispositive factor for
security exit processes). In comparison, Huerta could be in
his personal vehicle, but was required to go through the
Security Gate to leave the job site, and was on the
employer’s premises until he exited the Security Gate, which
meant he was necessarily prevented from performing
personal errands until he exited the Gate and left the
employer’s premises.
As this case contains elements of the Frlekin security
process and the Morillion and Overton transportation
requirements, but does not fit neatly into either set of cases,
we are uncertain whether CSI exerted sufficient control over
Huerta for his time spent related to the exit process to
constitute “hours worked” under Wage Order No. 16.
Although Huerta was required to be on-site (and under some
degree of employer control) until he exited the employer’s
premises, he was in his personal vehicle, and the degree of
employer control was not substantial. And the consequence
of any interpretation of the Wage Order could significantly
HUERTA V. CSI ELEC. CONTRACTORS 13
impact employers and employees throughout California that
require workers to badge into or out of worksites, buildings,
parking garages, or other locations.
2. “Suffer or Permit” Prong
Huerta also argues that the time spent waiting for and
undergoing the exit process was compensable as “hours
worked” under the “suffer or permit” prong of Wage Order
No. 16. Under California law, “an employee who is suffered
or permitted to work does not have to be under the
employer’s control to be compensated, provided the
employer has or should have knowledge of the employee’s
work.” Frlekin, 457 P.3d at 531 (first citing Morillion,
995 P.2d at 144–45; then citing Troester v. Starbucks Corp.,
421 P.3d 1114 (Cal. 2018); and then citing Hernandez,
239 Cal. Rptr. 3d at 856). The “phrase ‘suffered or permitted
to work, whether or not required to do so’ . . . encompasses
a meaning distinct from merely ‘working.’ . . . [It] can be
interpreted as time an employee is working but is not subject
to an employer’s control.” Morillion, 995 P.2d at 145. And
“a benefit is neither a necessary nor a sufficient condition for
liability under the ‘suffer or permit’ standard. Instead . . . ,
the basis of liability is the defendant’s knowledge of and
failure to prevent the work from occurring.” Martinez v.
Combs, 231 P.3d 259, 282 (Cal. 2010).
The California Supreme Court has never explicitly
defined “work” in the phrase “suffer or permit to work” or
issued an opinion that squarely addresses the question. Cf.
id. at 273–74, 282 (discussing the history of the phrase and
its interaction with employer control); Dynamex Ops. W. v.
Super. Ct., 416 P.3d 1, 32 (Cal. 2018) (discussing how the
phrase impacted the definition of independent contractor).
14 HUERTA V. CSI ELEC. CONTRACTORS
The California Court of Appeal has held “the standard of
‘suffered or permitted to work’ is met when an employee is
engaged in certain tasks or exertion that a manager would
recognize as work. Mere transportation of tools, which does
not add time or exertion to a commute, does not meet this
standard.” Hernandez, 239 Cal. Rptr. 3d at 860 (quoting
Taylor v. Cox Commc’ns Cal., LLC, 283 F. Supp. 3d 881,
890 (C.D. Cal. 2017)).
Here, Huerta was a forklift operator, and there is no
record evidence suggesting his manager would recognize
driving his personal vehicle, rolling down his window, or
scanning his identification badge as “work.” He does not
contest these were the only required activities, but instead
argues they met the legal standard because he had to literally
exert himself to do so.
However, the California Supreme Court has never
explicitly adopted this definition and we are uncertain if it
would. The answer would be dispositive here if decided in
Huerta’s favor, so we respectfully certify this question.
B. Drive Time
No controlling California precedent has answered the
certified question of whether Wage Order No. 16 requires
compensating workers for time spent driving between the
entrance/exit of the employer’s premises and the location
where the shift begins/ends. Though the time spent driving
between the employee parking lots and the Security Gate
blends into the time spent waiting for the exit process, CSI’s
control differed between the drive time and the exit process,
and Huerta’s theory of liability is also distinct.
HUERTA V. CSI ELEC. CONTRACTORS 15
1. “Control” Prong
Huerta argues he should be paid for the “drive time”
between the Security Gate and the employee parking lots as
“hours worked” under the “control” prong of Wage Order
No. 16, as he was required to be on the employer’s premises,
could not use the time for his own purposes, and was subject
to CSI’s rules on the road. CSI contends that the relevant
question is the level of control, not whether workers could
use the time for their own purposes, and that enforcing rules
on the road does not rise to a compensable level of control.
Several of the Frlekin control factors favor Huerta: The
drive occurred on CSI’s premises and the rules were
enforced through disciplinary measures, including
termination, and while the drive itself benefitted both the
employee and employer, the rules—including bans on
speeding, smoking, drinking, wearing headphones, and other
activities—benefitted the employer.
California cases concerning off-premises transportation
are instructional here. Employers “control” drive time by
requiring workers to use employer-provided transportation.
Compare Morillion, 995 P.2d at 146–47, with Hernandez,
239 Cal. Rptr. 3d at 856–59 and Overton, 38 Cal. Rptr. 3d at
697–99; see also Frlekin, 457 P.3d at 534 (“[I]n the
commute context, an employer’s interest generally is limited
to the employee’s timely arrival. . . . [U]nless the employer
compels the employee to use a certain kind of transportation
or employer-provided transportation, it would be, without
more, unreasonable to require the employer to pay for travel
time.”). In Morillion, for example, the time spent waiting
for and riding on the employer-mandated buses constituted
compensable “hours worked” under the relevant wage order
because the employer exerted control by “determining when,
where, and how [workers] are to travel.” 995 P.2d at 147.
16 HUERTA V. CSI ELEC. CONTRACTORS
The employer in Huerta’s case did not exert a similar time
of control: Huerta used his own vehicle, and other workers
carpooled with colleagues or took a bus, and the rules he had
to follow fundamentally differ from the requirement to ride
in an employer’s vehicle. 4 On the other hand, this is not an
off-site transportation case: Huerta was required to be on the
employer’s premises while he was traveling from the Gate
to the parking lot, a fact that weighs in favor of the
conclusion that he was under his employer’s control. See
Frlekin, 457 P.3d at 531 (indicating that employees were
under the employer’s control while awaiting an exit search
in part because the employer “confines its employees to the
premises as they wait for an undergo an exit search”); cf.
Bono Enters., Inc. v. Bradshaw, 38 Cal. Rptr. 2d 549, 553–
54 (Cal. App. 1995), disapproved on other grounds by
Tidewater Marine Western, Inc. v. Bradshaw, 927 P.2d 296(Cal. 1996) (“When an employer directs, commands or
restrains an employee from leaving the work place during
his or her lunch hour and thus prevents the employee from
using the time effectively for his or her own purposes, that
employee remains subject to the employer’s control.”).
California intermediate courts distinguish Morillion and
employer-mandated off-site transportation from employer-
provided optional off-site transportation, where employers
do not exert sufficient control because workers have choices
in their commutes. See Hernandez, 239 Cal. Rptr. 3d at 856–
59; Overton, 38 Cal. Rptr. 3d at 697–99. Huerta argues CSI
controlled the drive time between the Security Gate and the
employee parking lots because he was on the employer’s
4
Some of the rules impose restrictions similar to ordinary traffic
laws, which make the drive resemble non-compensable commute time
more than employer-mandated travel. See Frlekin, 457 P.3d at 534
(“Commuting . . . is not generally compensable.”).
HUERTA V. CSI ELEC. CONTRACTORS 17
premises, and therefore could not run errands or pick up his
children. See Morillion, 995 P.2d at 146. But this argument
is undermined by Hernandez, which determined that
employers did not control drive time in optional employer-
provided vehicles even when workers were required to carry
the employer’s equipment and were not permitted to run
errands or make other stops. 239 Cal. Rptr. 3d at 858–59.
Indeed, while the Hernandez workers were fully precluded
from non-work-related errands on their entire commute,
Huerta could have done those things on the rest of his
commute aside from the stretch between the Security Gate
and the employee parking lots—but Huerta is claiming only
that time spent on the stretch between the Gate and the lot
qualifies as “hours worked.”
In Overton, employees who drove to work were required
to park in lots far from the job site, but the time spent on
optional shuttles from the parking lot to the job site—time
apparently not spent on the employer’s premises—was not
compensable, as personally driving to work was voluntary
(vanpools and buses were available) and use of the shuttles
was not mandatory (they could walk or bike). 38 Cal. Rptr.
3d at 699–701. The facts here distinguishable because the
entire travel time occurs on the employer’s premises and
Huerta had no option other than to travel on the employer’s
premises from the Security Gate to the parking lot of the job
site. Even if the arrival to the lot in Overton parallels
Huerta’s arrival to the Security Gate as the first entry onto
the employer’s premises, in Huerta’s case he had no option
other than arriving at the Gate, whereas the Overton
employees could arrive directly at their jobsite entrance. See
id. at 695. For the same reason, the travel time between the
lot and jobsite in Overton is distinguishable from the travel
time between the Gate and jobsite here. And the Overton
court rejected the suggestion to move the time clock to
18 HUERTA V. CSI ELEC. CONTRACTORS
badge-in at the parking lot as it would result in the employer
“paying unnecessary compensation to many of its
employees,” including those that walked or biked from the
lot to the site. Id. at 701. But even though the travel from
the parking lot to the job site was not compensable given that
an employee could choose to not make the trip, Overton does
not preclude Huerta’s similar drive time claim because he
had no choice but to drive from the Gate to his jobsite.
Yet the California Supreme Court has not decided the
specific issue of whether driving on an employer’s premises,
in a personal vehicle, before or after a shift, while subjected
to an employer’s rules, is compensable as “hours worked”
under the control prong of the wage order, so we are unsure
if the time is compensable. Because interpreting the wage
hour to favor either party could significantly increase or
decrease California employers’ liability for compensating
workers when they are on an employer’s premises, we
respectfully certify this question for review.
2. “Employer-Mandated Travel” and “First Location”
Under Section 5
Wage Order No. 16 Section 5(A) states, “All employer-
mandated travel that occurs after the first location where the
employee’s presence is required by the employer shall be
compensated at the employee’s regular rate of pay or, if
applicable, the premium rate . . . .”
The California Supreme Court has never defined “first
location” or “employer-mandated travel” in Wage Order No.
16 Section 5and it appears this is the only wage order that
includes this travel language. Therefore, we do not know if
the Security Gate is the “first location” in this case. The
California definition of “compulsory travel time” from
Morillion may apply to and define “employer-mandated
HUERTA V. CSI ELEC. CONTRACTORS 19
travel” in Wage Order No. 16, as the legislative history of
the wage order cited Morillion. 5 Also, the hearing
discussing the passage of the wage order explicitly
referenced “protect[ing] worker[s] from being seesawed
between job sites . . . where they may be told to report to a
particular job site, and then, after performing particular work
there, being told to go to a secondary job site, and as a result,
not being paid for the employer-controlled travel in
between,” and also protecting workers who “have to park
off-site and be bused into the job sites,” both of which are
encompassed by the Morillion definition. 6 But as discussed
above, it is not entirely clear that Morillion precludes
compensating workers for the drive time, wait time, and
badging time, so defining “first location” and/or “employer-
mandated travel” could be dispositive for this issue.
Huerta specifically contends the Security Gate was the
“first location” the employer required him to be, and
therefore the travel to and from that location was employer-
mandated, not because he had to badge in but rather because
managers told workers they had to go through the Gate
before starting their shifts. It is true that there was at least a
de facto required arrival time to be at the Gate for entry and
exit: Workers had to sign in at the parking lots before their
shift started; there was a strictly enforced speed limit on the
only road between the Gate and parking lot; CSI knew how
long the drive took; the Gate did not open until a certain time
5
Statement As to the Basis for Wage Order No. 16 Regarding
Certain On-Site Occupations in the Construction, Drilling, Mining, and
Logging Industries, at 10. https://www.dir.ca.gov/iwc/StatementAsTo
TheBasisWageorder16.pdf.
6
Public Hearing, Department of Industrial Relations Industrial
Welfare Commission, Sept. 21, 2000 (statements of Scott Wetch and
Jerry Haft), https://www.dir.ca.gov/iwc/PUBHRG9211.htm.
20 HUERTA V. CSI ELEC. CONTRACTORS
each morning; and CSI “gave workers a scheduled time
when [they] could enter” the site, which sometimes was
delayed; which taken together indicates CSI and the workers
knew the Gate arrival time was de facto required for workers
to begin or end their shifts on time.
But de facto arrival times do not always signify that the
drive was employer-mandated, compensable travel.
Standard commutes need not be compensated in California,
see Frlekin, 457 P.3d at 534, during which there are always
de facto required arrival times for locations unrelated to the
employer. For example, a worker might have to arrive at a
public toll plaza by 7:00 a.m. if she hopes to miss traffic and
arrive at the office by 7:30 a.m., but we do not think that
means the commute from the toll plaza to the office is
compensable. By contrast, Huerta might have had to arrive
at such a public toll plaza by 7:00 a.m. in order to arrive at
the employer’s premises—i.e., the Security Gate—by
7:30 a.m. and at his worksite by 8:00 a.m. And Overton cuts
against Huerta’s theory of liability because, while the
opinion did not discuss Section 5(A), the California Court of
Appeal did not seem to think the travel from the parking lot
to the job site was compensable merely because an employee
had to make the trip once parked. On the other hand,
employees in Overton had the option of reporting directly to
the employee entrance, while Huerta had to report to the
Security Gate.
But because no court has specifically defined Section
5(A), California courts broadly construe wage orders to
protect workers, see Mendiola, 340 P.3d at 359, and this
question would be dispositive if decided in Huerta’s favor,
we respectfully request that the California Supreme Court
answer this certified question.
HUERTA V. CSI ELEC. CONTRACTORS 21
C. Meal Periods
Finally, no controlling California precedent has
answered the certified question of whether Wage Order No.
16 or California Labor Code Section 1194 requires
compensating workers for time spent on the employer’s
premises, when workers are prohibited from leaving but not
required to engage in employer-mandated activities, and that
time is designated as an unpaid “meal period” under a
qualifying collective bargaining agreement. The answer to
this question would dispositively address Huerta’s meal
period claim.
California law requires employers to pay workers
minimum wage, “[n]otwithstanding any agreement to work
for a lesser wage.” Cal. Lab. Code § 1194; see also Cal. Lab.
Code § 1182.12; IWC Wage Order 16 §§ 2, 4 (requiring
minimum wage for all “hours worked”). California law also
requires providing workers thirty-minute meal periods,
subject to certain exceptions. Cal. Lab. Code § 512(a).
California courts have stated the Labor Code requires that
the meal periods be paid if work is required, which includes
when workers cannot leave the employer’s premises (i.e. an
on-duty meal period). See, e.g., Brinker Rest. Corp. v.
Super. Ct., 273 P.3d 513, 532–35 (Cal. 2012) (discussing the
historical legal basis for off-duty meal period requirements,
including ensuring employees “are free to leave the
premises”); Bono Enters., Inc., 38 Cal. Rptr. 2d at 556
(supporting the interpretation of the wage order to require
“an employer to pay an employee for meal periods during
which the employee is precluded from leaving the
worksite”); Madera Police Officers Ass’n v. City of Madera,
682 P.2d 1087, 1088 (Cal. 1984) (analyzing whether meal
periods were so circumscribed as to constitute “hours
worked”).
22 HUERTA V. CSI ELEC. CONTRACTORS
But Labor Code Sections 512(e) and (f) expressly
exempt from meal period requirements “employee[s]
employed in a construction occupation” if “covered by a
valid collective bargaining agreement” that:
expressly provides for the wages, hours of
work, and working conditions of employees,
and expressly provides for meal periods for
those employees, final and binding
arbitration of disputes concerning application
of its meal period provisions, premium wage
rates for all overtime hours worked, and a
regularly hourly rate of pay of not less than
30 percent more than the state minimum
wage rate.
Those conditions are met here.
Paralleling the Labor Code requirements, Wage Order
No. 16 Sections 10(A) and (D) mandate thirty-minute meal
periods, which must be paid and counted as time worked
unless the worker “is relieved of all duty.” Section 10(E)
further states that Sections 10(A) and (D):
shall not apply to any employee covered by a
valid collective bargaining agreement if the
agreement expressly provides for the wages,
hours of work, and working conditions of the
employees, and if the agreement provides
premium wage rates for all overtime hours
worked and a regular hourly rate of pay for
those employees of not less than 30 percent
more than the state minimum wage.
These conditions are encompassed by those in the Labor
Code Section 512(e), and also met here.
HUERTA V. CSI ELEC. CONTRACTORS 23
Referencing Labor Code Sections 512(e) and (f), the
California Court of Appeal has held employers and union-
represented employees covered by valid CBAs may bargain
over (and perhaps bargain away) the right to off-duty meal
periods, Araquistain v. Pac. Gas & Elec. Co., 176 Cal. Rptr.
3d 620, 628 (Ct. App. 2014), because of the “express
statutory exemption[s] for CBA-covered employees relating
to the . . . right,” Gutierrez v. Brand Energy Servs. of Cal.,
Inc., 264 Cal. Rptr. 3d 173, 183 (Ct. App. 2020) (citing
Araquistain, 176 Cal. Rptr. 3d at 628; Vranish v. Exxon
Mobil Corp., 166 Cal. Rptr. 3d 845, 848–50 (Ct. App. 2014)
(permitting union-represented employees covered by valid
CBAs to bargain over overtime rights)). But the Gutierrez
court specifically distinguished between minimum wage
rights as compared to off-duty meal period and overtime
rights, because “[t]here is no equivalent statutory language”
permitting bargaining over minimum wage rights for CBA-
covered workers. 264 Cal. Rptr. 3d at 183.
Thus, while it is clear that union-represented employees
covered by a valid CBA may bargain over meal period
rights, it is less certain if they may bargain away the right
entirely, and it is unclear if they may bargain away their right
to be paid minimum wage for “on-duty” meal periods where
they are prohibited from leaving the employer’s premises.
Huerta contends state law minimum wage protections apply
to the time he spent on CSI’s premises during time
designated as an unpaid meal period under his CBA because
he was prohibited from leaving and so was on duty. But CSI
asserts this “minimum wage” claim is merely a meal period
claim in disguise, and so properly exempted under Labor
Code Sections 512(e) and (f) and Wage Order No. 16
Section 10(E).
24 HUERTA V. CSI ELEC. CONTRACTORS
Whether minimum wage laws proscribe, permit, or
otherwise affect unpaid, on-duty meal periods in CBAs
under Wage Order No. 16 and Labor Code Sections 512 and
1194, such that a CBA can relinquish the right to minimum
wage compensation for on-duty meal periods, has not yet
been addressed by California courts. And while the record
does not show how many workers are subject to a CBA that
provides for unpaid meal periods while prohibiting workers
from leaving the employer’s premises, the answer to this
question will no doubt affect many union-represented
workers across California. Thus, we respectfully submit this
question to the California Supreme Court for review.
V. Accompanying Materials
The clerk of this court is hereby directed to file in the
Supreme Court of California, under official seal of the
United States Court of Appeals for the Ninth Circuit, copies
of all relevant briefs and excerpts of the record, and an
original and ten copies of this order and request for
certification, along with a certification of service on the
parties, pursuant to California Rule of Court 8.548(c)–(d).
This case is withdrawn from submission. Further
proceedings before us are stayed pending final action by the
Supreme Court of California. The Clerk is directed to
administratively close this docket, pending further order.
The parties shall notify the clerk of this court within seven
days after the Supreme Court of California accepts or rejects
certification, and again within seven days if that Court
accepts certification and subsequently renders an opinion.
The panel retains jurisdiction over further proceedings.
IT IS SO ORDERED.