Filed 9/18/18; Certified for Publication 10/4/18 (order attached)




                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                DIVISION ONE

                                         STATE OF CALIFORNIA



CERTIFIED TIRE AND SERVICE                                          D072265
CENTERS WAGE AND HOUR CASES


                                                                    (San Diego County No. JCCP4762;
                                                                    San Diego County No. 37-2013-
                                                                    000381-CU-OE-CTL; Riverside
                                                                    County No. RIC1307773)



         APPEAL from a judgment of the Superior Court of San Diego County, Joel R.

Wohlfeil, Judge. Affirmed.



         Law Offices of Kevin T. Barnes, Kevin T. Barnes, Greg Lander; Scott Cole &

Associates, Jeremy A. Graham; Righetti Glugoski, Matthew Righetti, John Glugoski, and

Michael C. Riguetti for Plaintiffs and Appellants.

         Carothers DiSante & Freudenberger, Timothy M. Freudenberger, Robin E.

Largent, and Garrett V. Jensen for Defendants and Respondents.
       This is an appeal in a certified wage and hour class action following a judgment

after a bench trial in favor of defendants Certified Tire and Services Centers, Inc.

(Certified Tire) and Barrett Business Services. Inc. (collectively defendants). Plaintiffs

contend that Certified Tire violated the applicable minimum wage and rest period

requirements by implementing a compensation program, which guaranteed its automotive

technicians a specific hourly wage above the minimum wage for all hours worked during

each pay period but also gave them the possibility of earning a higher hourly wage for all

hours worked during each pay period based on certain productivity measures.

       As we will explain, we conclude that the plaintiffs' arguments lack merit, and we

accordingly affirm the judgment.

                                              I.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     Certified Tire's Compensation Program for Automotive Technicians

       Certified Tire is a business that sells tires and performs automotive repairs for the

general public through its 40 stores in California. Certified Tire employs automotive

technicians to diagnose and repair customer vehicles.

       Throughout the relevant timeframe, technicians at Certified Tire were

compensated through the Technician Compensation Program (the TCP). Under the TCP,

a technician is paid an hourly wage for all work performed, but the hourly rate earned by

a technician varies from pay period to pay period. A technician's hourly rate for the

applicable pay period is guaranteed to be at least an agreed-upon minimum hourly rate

that the technician is assigned at the time of hire, which in all cases exceeds the legal

                                              2
minimum wage.1 Under the TCP, the hourly rate paid to a technician during any given

pay period may be higher than the guaranteed minimum hourly rate based on a formula

that rewards the technician for work that is billed to the customer by Certified Tire as a

separate labor charge.

       Under the formula, each billed dollar of labor charged to a customer as a result of

the technician's work during the pay period is referred to as the technician's "production

dollars."2 Certified Tire applies the formula by multiplying the technician's production

dollars by 95 percent, multiplying that amount by a fixed "tech rate" assigned to the

technician depending on experience and qualifications,3 and then dividing by the total


1      At trial, Certified Tire's president testified that for much of the class period, the
lowest guaranteed minimum hourly rate assigned to a technician upon hiring was $10 per
hour in Southern California and $11 per hour in Northern California, but those rates had
been raised as of January 2016 to $11 per hour and $12 per hour respectively. Depending
on experience and qualifications, certain technicians are assigned a greater guaranteed
minimum hourly rate at the time of hire, with some assigned a rate as high as $18 per
hour.

2       A technician may perform certain tasks that are billed at a predetermined labor
cost to the customer. For example, a document associated with one technician from 2013
shows that a brake fluid exchange was billed to the customer at a predetermined labor
cost of $47, and a transmission fluid exchange was billed to the customer at a
predetermined labor cost of $58. In addition, technicians perform a variety of tasks that
are not assigned a predetermined labor cost but for which the customer is billed at a
specific hourly labor rate based on the labor time expected to complete the task,
identified on Certified Tire's reports as "shop labor." A technician's production dollars
are based on all of the labor charges billed to a customer for the technician's services
during the pay period.

3      The "tech rate" assigned to a technician at the time of hire generally ranges from
28 percent to 34 percent, and a technician may increase his or her "tech rate" in the
course of employment by pursuing specific certifications or testing to increase his or her
qualifications as a mechanic.
                                             3
hours worked by the technician during the pay period. By applying this formula,

Certified Tire determines the technician's "base hourly rate" for the pay period. If the

base hourly rate exceeds the technician's guaranteed minimum hourly rate, the technician

is paid the base hourly rate for all time worked during the pay period. If the guaranteed

minimum hourly rate is higher than the base hourly rate, the technician is paid the

guaranteed minimum hourly rate for all time worked during the pay period.4 Overtime

hours are paid at one and a half time the hourly rate that applies during the pay period.

       Technicians at Certified Tire are required to be clocked in during all work hours,

except for their lunch period, and they are paid at an hourly rate for all hours on the

clock. The hours during which technicians are clocked in at work are reflected in time

keeping reports. Technicians take rest breaks as required by law, and they do not clock

out while doing so.

       Certified Tire's president testified that he designed the TCP to incentivize

technicians "to hustle" to get things done, and to make Certified Tire a more competitive

employer in the industry by allowing technicians to significantly increase their hourly

compensation based on their efficiency without any cap on the amount of compensation.

According to Certified Tire's president, some technicians achieve a base hourly rate of up

to $70 per hour during a pay period.


4      For example, a technician with a "tech rate" of 30 percent who generated $5,000
of production dollars in an 80-hour pay period, would achieve a base hourly rate for that
pay period of $17.81 (based on $5,000 multiplied by .95, multiplied by .30, divided by
80). Assuming that base hourly rate is higher than the technician's guaranteed minimum
hourly rate, the technician would be paid $17.81 multiplied by 80 hours for the pay
period, for a total payment of $1,424.80.
                                              4
       Some work activities that the technicians are required to perform do not directly

generate production dollars, as those activities are not associated with labor costs charged

to a customer. These activities include certain automotive services, including some oil

changes and some tire rotations, as well as time spent cleaning or attending meetings.

Although technicians do not have the opportunity to increase their base hourly rate by

participating in activities that do not generate production dollars, those activities are

always compensated because technicians get paid an hourly rate for that work, all of

which is performed while they are clocked in.

B.     The Lawsuit

       The instant appeal is based on multiple wage and hour class action lawsuits filed

against Certified Tire and Barrett Business Services, Inc.5 in superior court in Riverside

County and San Diego County by plaintiffs Oscar Gutierrez, Pascal Jeandebien, and

Michael Rehse. After the lawsuits were coordinated in San Diego County Superior

Court,6 a first amended coordinated complaint was filed.7 On December 22, 2015, the


5      According to the evidence at trial, Barrett Business Services, Inc. is the payroll
company that Certified Tire employed during some of the class period. No argument was
presented at trial concerning the alleged liability of Barrett Business Services, Inc.

6      The order granting the petition to coordinate was not included in the Appellants'
Appendix. In response to an argument raised in the respondents' brief, plaintiffs have
requested that we take judicial notice of an order granting the petition to coordinate dated
November 7, 2013. We hereby grant the unopposed request to take judicial notice.

7      Among other things, the first amended coordinated complaint alleged causes of
action under (1) the Private Attorneys General Act of 2004, Labor Code § 2699,
subdivision (a), which provides that a civil penalty assessed by statute for a violation of
the Labor Code may be recovered in a civil action brought by aggrieved employees; and
                                               5
trial court certified the class action with respect to several defined classes, two of which

are relevant here: (1) "All Technicians employed by Defendant from March 6, 2009, to

the present to whom Defendant failed to pay a separate minimum wage for non-

productive time;" and (2) "All Technicians employed by Defendant from March 6, 2009,

to the present to whom Defendant failed to pay for off duty rest periods." The trial court

also found that Gutierrez, Jeandebien and Rehse (plaintiffs) would adequately represent

the class.

       The trial court conducted a bench trial in December 2016. In their joint trial

readiness conference report, the parties agreed that "[t]he only issue for resolution in

Phase I is the legality of [the TCP]. Any other liability and injunctive/damages issues, if

necessary, are deferred until after a ruling on Phase I." The parties identified the issue to

be determined by the trial court as: "Have Plaintiffs met their burden to show that

Certified Tire's Technician Compensation Program violates California law?"

       The parties also entered into stipulations concerning the applicable legal standards.

Specifically, the parties stipulated that Certified Tire is "governed by the California Labor




(2) Business and Professions Code section 17200 through 17208, alleging unlawful and
fraudulent business practices based on violations of Labor Code provisions.
                                              6
Code and Wage Order 4[-2001]." (Cal. Code Regs., tit. 8, § 11040.) (Wage Order 4)8

The parties agreed that under Wage Order 4, "Every employer shall pay to each

employee, on the established payday for the period involved, not less than the applicable

minimum wage for all hours worked in the payroll period, whether the remuneration is

measured by time, piece, commission, or otherwise." (Cal. Code Regs., tit. 8, § 11040,

subd. 4(B).) The parties identified the applicable minimum wage as "not less than nine

dollars ($9.00) per hour for all hours worked, effective July 1, 2014, and not less than ten

dollars ($10.00) per hour for all hours worked, effective January 1, 2016." In addition,

the parties agreed that Wage Order 4 provides for rest period as follows: "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. . . . Authorized rest period time shall be

counted as hours worked for which there shall be no deduction from wages." (Cal. Code

Regs., tit. 8, § 11040, subd. 12(A).)




8       In California, "wage and hour claims are today governed by two complementary
and occasionally overlapping sources of authority: the provisions of the Labor Code,
enacted by the Legislature, and a series of 18 wage orders, adopted by the [Industrial
Welfare Commission (IWC)]." (Brinker Restaurant Corp. v. Superior Court (2012) 53
Cal.4th 1004, 1026.) Here, the parties agree that Wage Order 4 applies, as it pertains to
"all persons employed in professional, technical, clerical, mechanical, and similar
occupations . . . ." (Cal. Code Regs., tit. 8, § 11040, subd. (1).) "[M]echanics" are
included by definition under the scope of persons employed in those occupations. (Id.,
subd. (2)(O).)
                                             7
       The trial court held a bench trial at which several witnesses testified, including the

plaintiffs, other technicians formerly or currently employed by Certified Tire, supervisors

from Certified Tire, a Certified Tire employee in charge of payroll, and Certified Tire's

president. The evidence regarding the details of the TCP was largely undisputed, and it

was also undisputed that technicians at Certified Tire were required to clock in for all

hours while at work, and they took their required rest breaks while clocked in during the

work day.

       Plaintiffs' counsel argued in closing that Certified Tire was not in compliance with

the minimum wage and rest period requirements set forth in Wage Order 4. Relying on

case law that prohibits averaging the amount an employee receives during a pay period

for non-paid and paid work hours to comply with the minimum wage requirements (see,

e.g., Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314 (Armenta)), plaintiffs' counsel

argued that because of the TCP, Certified Tire was "secretly paying the lower wage—

nothing for those non-billed hours—while purporting, making it look like through their

averaging, that they're paying at least minimum wage for the non-billed time when, in

fact, they're paying nothing for the non-billed time." Plaintiffs' counsel argued that under

the TCP, because a technician could not increase the base hourly wage when working on

activities that did not generate production dollars those hours are all uncompensated, as

"[n]ot a penny hits their pocket when they do an oil change, when they attend a meeting,

when they do any cleaning." As similarly argued in plaintiffs' trial brief filed at the close

of the bench trial, "Technicians earn no wages for time spent on tasks that do not generate

labor dollars for [Certified Tire] (i.e., oil changes, tire rotations, cleaning, meetings,

                                               8
Preventative Maintenance Analysis (PMA), running errands and waiting for customer

cars to work on) since those tasks do not add to 'Production Dollars' under [Certified

Tire's] formula." (Italics added). Also referring to the fact that technicians do not have

the opportunity to increase their production dollars during a rest break because they are

not generating labor charged to the customer, plaintiffs' counsel argued that Certified Tire

was in violation of the rest period requirement in Wage Order 4. Counsel argued, "I

think it's undisputed here that when technicians are on a rest break, they cannot add to

their wages during those rest breaks. The wages stay the same." According to plaintiffs,

"When Technicians are paid as a percentage of Production Dollars they receive no

separate wages for . . . statutorily mandated rest breaks."

       The trial court issued a statement of decision in favor of Certified Tire. After

extensively setting forth the testimony and evidence presented at trial and the governing

case law, the trial court explained that plaintiffs had not established any violation of the

wage and hour laws. The trial court stated,

              "First, the parties agree that this is not an 'off-the-clock' case.
       [Certified Tire's] 'Technician's Timekeeping Reports' accurately reflect the
       times and hours worked by that Technician during the corresponding time
       period. . . .

              "Second, contrary to the Court's concern in Armenta, [Certified Tire]
       has not 'averaged' the technicians' hours to calculate their wages; instead,
       [Certified Tire] applies the higher base rate, if any, to all of the hours
       worked—billed and non-billed labor—by the technicians. The Court
       recognizes that the technicians' production may vary from one day to the
       next throughout the two week pay period which, as calculated at the end of
       two weeks, may be different than a snapshot of the technicians' production
       on any given day. However, it appears to the Court that, to the extent the
       technicians are entitled to be paid a higher base rate, the averaging, if any,
       only adds to (as opposed to subtracts from) the technicians' wages.

                                              9
       Ultimately, the calculation of the technicians' wages, under this formula, is
       much more about the technicians' wage 'ceiling' rather than wage 'floor.'

             "Third, the Court finds that, based on this record, the technicians
       have been paid, at all times, a guaranteed minimum wage for all of their
       hours worked -- billed and non-billed labor. In other words, even during
       pay periods where the technicians have been wholly unproductive, they
       have been paid minimum wages which comply with the California wage
       and hour laws at issue in this case."

       The trial court entered judgment in favor of Certified Tire on April 12, 2017. On

May 9, 2017, a notice of appeal was filed.9




9       The notice of appeal form, as completed by class counsel and filed on May 9,
2017, stated that plaintiff Gutierrez was the party filing the appeal and did not mention
the other two plaintiffs. However, as early as the filing of the motion for relief from
default in this court on June 27, 2017, and the filing of the Civil Case Information
Statement in this court on July 7, 2017, the court filings by plaintiffs have identified all
three plaintiffs as the appealing parties, and, consistently, the opening appellate brief
states that it is filed on behalf of all three plaintiffs. Accordingly, the omission of the
names of the other two plaintiffs in the notice of appeal appears to have been an oversight
or a typographical error. In a footnote, the respondents' brief seizes on the content of the
notice of appeal and points out that it identified only Gutierrez as the appealing party.
Defendants contend that accordingly "Plaintiff Gutierrez is the only Appellant, and any
appeal rights on behalf of any other plaintiff or class member have been waived." We
disagree, as this case is a certified class action lawsuit. As a result of the order certifying
this case as a class action, Gutierrez, along with the two other plaintiffs, are each
participating in this litigation in their capacity as class representatives. Accordingly,
because of Gutierrez's status as a class representative in a certified class action lawsuit,
his notice of appeal served as an appeal on behalf of the entire class, including the other
two plaintiffs who fall within the scope of the class. Further, defendants have identified
no manner in which they have been prejudiced by omission of the other two plaintiffs
from the notice of appeal.
                                              10
                                             II.

                                       DISCUSSION

A.     Standard of Review

       "In reviewing a judgment based upon a statement of decision following

a bench trial, we review questions of law de novo. [Citation.] We apply

a substantial evidence standard of review to the trial court's findings of fact." (Thompson

v. Asimos (2016) 6 Cal.App.5th 970, 981.) When the facts are undisputed, "[a] reviewing

court determines the meaning of a wage order de novo." (Gonzalez v. Downtown LA

Motors, LP (2013) 215 Cal.App.4th 36, 44 (Gonzalez).)

       Here, plaintiffs state that the evidence is undisputed concerning the details and

application of the TCP. However, they contend that the trial court erred in concluding,

based on those undisputed facts, that the TCP does not violate the requirement that

Certified Tire pay the minimum wage and provide paid rest periods as set forth in Wage

Order 4. Accordingly, we apply a de novo standard of review to the legal questions

presented here.

B.     Applicable Case Law Regarding Plaintiffs' Minimum Wage and Rest Period
       Argument

       Plaintiffs' contention that Certified Tire fails to comply with the minimum wage

and rest period requirements in Wage Order 4 is based on case law that has developed

since Armenta, supra, 135 Cal.App.4th 314, was decided in 2005. Plaintiffs contend that,

based on that case law, Certified Tire is violating the rule that "an employer utilizing an

activity-based compensation scheme (like Certified Tire's TCP), must separately


                                             11
compensate employees for both: (1) time working on tasks which generate no wages;

and (2) rest breaks." Based on the same case law, plaintiffs also contend that Certified

Tire is impermissibly attempting to establish minimum wage compliance despite its

failure to pay for each hour worked by using "an average hourly rate for each hour

worked." To understand and evaluate plaintiffs' argument we first review the case law

upon which Plaintiffs rely.

       In Armenta, workers who maintained utility poles in the field were paid an hourly

wage, which was above the minimum wage, but the employer refused to pay an hourly

wage for time spent driving to the job sites or processing paper work. (Armenta, supra,

135 Cal.App.4th at pp. 317-319.) The employer argued that this practice did not violate

the minimum wage requirement for the hours that were uncompensated because "when

an employer pays a higher hourly rate, . . . it should be entitled to divide the total number

of hours worked into the amount the employee was paid to arrive at an average hourly

wage and then determine whether the employee's compensation complied with the

minimum wage law," which was the approach followed by federal courts applying the

federal Fair Labor Standards Act of 1938 (FLSA; 29 U.S.C. § 201 et seq.). (Armenta, at

pp. 321-322, italics added.) Interpreting Wage Order 4 in light of its language and the

surrounding statutory provisions, Armenta concluded that "the FLSA model of averaging

all hours worked 'in any work week' to compute an employer's minimum wage obligation

under California law is inappropriate. The minimum wage standard applies to each hour

worked by respondents for which they were not paid. The trial court, therefore, correctly

determined that appellant violated [the minimum wage requirement] by failing or

                                             12
refusing to pay for driving time and time spent by foremen processing paperwork." (Id.

at p. 324.) Accordingly, under Armenta, when using an hourly-based compensation

system, an employer is required to pay at least the minimum wage for each hour worked

and may not meet that requirement by showing that the employee was effectively paid

more than the minimum wage for all time on the job by dividing the amount of the

employee's total compensation for the pay period by the total hours worked, even though

some time was not separately compensated by an hourly wage.

       The rule established by Armenta—that employees must be separately compensated

at minimum wage or above for all time worked—was subsequently applied by California

courts to "piece-rate" compensation programs, in which employees do not receive an

hourly wage but are paid based on the tasks they perform. In Gonzalez, supra, 215

Cal.App.4th 36, automobile service technicians were paid on a piece-rate basis for their

work. Specifically, technicians were "paid a flat rate ranging from $17 to $32, depending

on the technician's experience, for each 'flag hour' a technician accrues." (Id. at p. 41.)

Flag hours were assigned to every task that a technician performs and were intended to

correspond to the actual amount of time a technician would need to perform the task.

(Ibid.) A technician who completed a repair task accrued the number of flag hours

assigned to that task, regardless of how long the technician actually took to complete the

task. (Ibid.) A technician's pay for each 80-hour period was based on the number of flag

hours accrued during that pay period multiplied by the technician's applicable flat rate.

(Ibid.) The technicians accrued no flag hours for performing non-repair tasks, such as



                                             13
cleaning, obtaining parts and participating in training. (Id. at p. 42.) Thus, the employees

were not directly compensated for non-repair time.

       In an attempt to comply with minimum wage requirements, the employer kept

track of all the time a technician spent at the work site, whether or not the technician was

working on a repair order, and it divided the employee's total earnings over the pay

period by the total hours worked to ensure that the employee's effective hourly rate was at

least at the minimum wage. (Gonzalez, supra, 215 Cal.App.4th at pp. 41-42.) If the

effective hourly rate was less than the minimum wage, the employer supplemented the

technician's pay to reach an effective average hourly rate that equaled the minimum

wage. (Ibid.) Applying the same analysis used in Armenta, Gonzalez concluded that

under Wage Order 4 an "employer's method of averaging employees' hours worked in a

given pay period in order to compute its minimum wage obligations violated the

minimum wage law." (Id. at p. 46.) Technicians "were entitled to separate hourly

compensation for time spent waiting for repair work or performing other non-repair tasks

directed by the employer during their work shifts." (Id. at. pp. 40-41, italics added.)

Gonzalez explained that the analysis in Armenta applied regardless of the fact that the

employer "compensated its technicians on a piece-rate basis" rather than based on the

payment of an hourly wage. (Id. at p. 49.)10



10     Gonzalez pointed out that several federal district court decisions had applied
Armenta's holding to piece-rate compensation programs. (Gonzalez, supra, 215
Cal.App.4th at p. 49.) Here, plaintiffs cite and rely on federal district court decisions
reaching the same conclusion regarding piece-rate compensation programs as Gonzalez.
(Cardenas v. McLane FoodServices, Inc. (C.D.Cal. 2011) 796 F.Supp.2d 1246, 1252 [in
                                             14
       Armenta's holding also has been extended to the issue of whether an employer

paying on a piece-work basis must separately compensate employees for rest periods. In

Bluford v. Safeway Stores, Inc. (2013) 216 Cal.App.4th 864 (Bluford), truck drivers were

compensated based on the number of miles driven and other variables, but "none of these

components directly compensated for rest periods." (Id. at p. 872.) Bluford held that

"under the rule of Armenta . . . rest periods must be separately compensated in a piece-

rate system. . . . [¶] Thus, . . . a piece-rate compensation formula that does not

compensate separately for rest periods does not comply with California minimum wage

law." (Id. at p. 872.)11 We note that effective January 1, 2016, the Legislature enacted

Labor Code, section 226.2, which codified the holdings of Gonzalez and Bluford,



a case involving truck driver compensation, the court concluded that "a piece-rate
formula that does not compensate directly for all time worked does not comply with
California Labor Codes, even if, averaged out, it would pay at least minimum wage for
all hours worked"]; Ontiveros v. Zamora (E.D.Cal., Feb. 20, 2009, No. CIV S-08-
567LKK/DAD) 2009 WL 425962, at *3 [applying Armenta's holding to automobile
mechanics compensated on piece rate basis]; Ridgeway v. Wal-Mart Stores, Inc.
(N.D.Cal. 2015) 107 F.Supp.3d 1044, 1053 [truck drivers paid on a piece-rate basis must
be separately compensated for unpaid work activities when under the employer's control];
Villalpando v. Exel Direct Inc. (N.D.Cal. 2016) 161 F.Supp.3d 873, 889 (Villalpando)
[when truck drivers who were paid on a piece-rate basis could not directly earn
compensation during pre-trip work hours, the employer could not establish compliance
with minimum wage requirements by showing that the drivers' average wages for all
hours worked was at or above the minimum wage rate].) As the holdings of those federal
cases do not materially differ from the holding of Gonzalez, we do not separately discuss
them here.

11     In addition to Bluford, plaintiffs cite federal district court cases that follow Bluford
in recognizing that rest periods must be separately compensated when employees are
compensated on a piece-rate basis. (Villalpando, supra, 161 F.Supp.3d at p. 889; Perez
v. Sun Pacific Farming Co-op., Inc. (E.D.Cal., June 8, 2015, No. 1:15-CV-00259-KJM-
SKO), 2015 WL 3604165.)
                                              15
providing for separate payment for nonproductive work time and for rest periods when

employees are compensated on a piece-rate basis, but creating certain safe harbors for

employers. (See Fowler Packing Company, Inc. v. Lanier (9th Cir. 2016) 844 F.3d 809,

812-813 [describing Lab. Code, § 226.2].)

       The principle established in Armenta has also been applied to the issue of how rest

periods are compensated in a commission-based compensation system. In Vaquero v.

Stoneledge Furniture LLC (2017) 9 Cal.App.5th 98, 102 (Vaquero), furniture store

employees were compensated on a commission basis, but the system "did not include any

component that directly compensated sales associates for rest periods." (Id. at p. 114.)

Vaquero concluded that an employer was required "to separately compensate employees

for rest periods if an employer's compensation plan does not already include a minimum

hourly wage for such time." (Id. at p. 110.)12

C.     The Case Law Cited by Plaintiffs Does Not Establish That Certified Tire Violated
       Minimum Wage or Rest Period Requirements

       As the centerpiece of their argument that Certified Tire's TCP violates the

minimum wage and rest period requirements, plaintiffs rely on Armenta, Gonzalez,

Bluford and Vaquero for the principle that "an employer utilizing an activity-based

compensation scheme . . . must separately compensate employees for both: (1) time

working on tasks which generate no wages; and (2) rest breaks." Plaintiffs contend that



12      Similarly, in Balasanyan v. Nordstrom, Inc. (S.D.Cal. 2012) 913 F.Supp.2d 1001,
1007, a federal district court applied Armenta to conclude that department store
employees who worked on commission were required to be directly compensated at no
less than minimum wage for all activities that did not allow them to earn a commission.
                                            16
the TCP violates these principles because, according to them, technicians earn "no

wages" when performing work that does not generate production dollars, and therefore

"the TCP violates the minimum wage requirements by failing to provide the required

separate compensation" for each hour worked. As we will explain, plaintiffs' argument

that the technicians are not "separately" paid for non-productive work in an "activity-

based compensation system" suffers from two central flaws, which we discuss in turn.

       First, although TCP has similarities to a piece-rate system or a commission-based

system because technicians are able to increase their earnings by increasing their

production, the TCP is not an "activity-based compensation system" as plaintiffs contend.

Instead, it is an hourly-rate system in which technicians are paid at a single hourly rate

for all hours worked during a pay period. Armenta, Gonzalez, Bluford and Vaquero are

not applicable, as those cases involved either (1) an hourly compensation system

including off the clock work; (2) a piece-rate system; or (3) a commission-based system.

In contrast, Certified Tire applies an hourly based system that compensates technicians

for all the time that they are at work. Technicians earn wages for every single work

activity that they perform, including waiting for customers and performing tasks that do

not have billed labor costs associated with them. Although the hourly rate differs from

pay period to pay period because technicians have the opportunity to increase their

guaranteed minimum hourly rate based on the generation of production dollars, the

technicians are always paid on an hourly basis for all hours worked at a rate above

minimum wage regardless of their productivity, and regardless of the type of activity in

which they were engaged during those hours.

                                             17
       Second, plaintiffs' argument depends on their premise that technicians are paid no

wages for hours that do not generate production dollars. Plaintiffs contend that, as in

Armenta, Gonzalez, Bluford and Vaquero, the technicians were not separately

compensated for the time that they spent at work performing "non-productive" tasks. To

support this argument plaintiffs ask us to compare the wages that would be earned by two

hypothetical technicians at Certified Tire. In an attempt to illustrate plaintiffs' point, we

turn to the following scenario: assume one technician generates $2,000 of production

dollars in a 30-hour pay period working solely on tasks that generate production dollars.

A second technician generates $2,000 of production dollars in a 40-hour pay period,

devoting 10 hours of the 40 hours to tasks that do not generate production dollars.

Further assume both technicians have a "tech rate" of 30 percent. The base hourly rate

for the first technician is $19 per hour ($2000 x .95 x .30 ÷ 30 = $19). The base hourly

rate for the second technician is $14.25 per hour ($2000 x .95 x .30 ÷ 40 = $14.25). For

30 hours of work the first technician gets paid $570 during the pay period ($19 x 30 =

$570). For 40 hours of work the second technician also gets paid $570 during the pay

period ($14.25 x 40 = $570).13

       According to plaintiffs, a hypothetical such as this illustrates that because both

technicians are taking home the same amount in their paychecks (i.e., $570) even though

the second technician worked 10 hours more than the first technician while involved in




13     The hypothetical situation assumes no overtime hours were worked by either
technician during the pay period.
                                              18
tasks that did not generate production dollars, the second technician is not compensated

at all for the last 10 hours of the pay period. We disagree.

       In the scenario set forth above, the second technician is paid at an hourly rate that

is above the minimum wage for all hours work regardless of the type of work involved.

The technician also receives paid rest breaks at above minimum wage for all the time on

the clock, even if no production dollars are being generated during the rest period. Put

simply, all time on the clock is directly and expressly compensated by Certified Tire at an

hourly rate that exceeds the minimum wage. As we find no merit to plaintiffs' contention

that the second technician is receiving no wages at all for the time spent on tasks that do

not generate production dollars, we reject the plaintiffs' argument that Certified Tire must

make a separate additional payment to the technician to comply with the minimum wage

and rest period requirements.

       Further, contrary to plaintiffs' contention, because technicians are paid at an hourly

rate that is above minimum wage for each hour on the clock, this case does not involve

averaging of an employee's hourly rate to show compliance with minimum wage

requirements. In Armenta and Gonzalez, the employers unsuccessfully argued that they

should be able to divide the amount they paid their employees by the total hours worked

to establish they had complied with minimum wage requirements for that pay period.

(Armenta, supra, 135 Cal.App.4th at pp. 321-322; Gonzalez, supra, 215 Cal.App.4th at

pp. 41-42.) Here, Certified Tire does not need to show compliance with minimum wage

requirements by dividing the total amount paid during a pay period by the total hours

worked. Instead, Certified Tire directly establishes compliance with minimum wage

                                             19
requirements by paying technicians at a rate above the minimum wage hourly rate for all

hours on the clock.

      In sum, Certified Tire makes payments to its technicians on an hourly basis at an

hourly rate above the minimum wage for all hours worked, and it provides paid rest

periods on the clock as required by law. Thus, based on the undisputed facts regarding

the manner in which technicians are compensated under Certified Tire's TCP, plaintiffs

have not established that Certified Tire is in violation of the minimum wage requirement

and rest period requirement in Wage Order 4.

                                     DISPOSITION

      The judgment is affirmed.



                                                                               IRION, J.

WE CONCUR:




HUFFMAN, Acting P. J.




NARES, J.




                                           20
Filed 10/4/18

                           CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                               STATE OF CALIFORNIA



CERTIFIED TIRE AND SERVICE                        D072265
CENTERS WAGE AND HOUR CASES

                                                  (San Diego County No. JCCP4762;
                                                  San Diego County No. 37-2013-
                                                  000381-CU-OE-CTL; Riverside
                                                  County No. RIC1307773)

                                                  ORDER CERTIFYING OPINION
                                                  FOR PUBLICATION


THE COURT:
        The opinion in this case filed September 18, 2018 was not certified for
publication. It appearing the opinion meets the standards for publication specified in
California Rules of Court, rule 8.1105(c), the request pursuant to California Rules of
Court, rule 8.1120(a) for publication is GRANTED.
        IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
        ORDERED that the words "Not to be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
                                                               HUFFMAN, Acting P. J.

Copies to: All parties
