Williams v. Securitas Security Services USA, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 ASHLEY WILLIAMS, Case No. 23-cv-01863-LB 12 Plaintiff, ORDER GRANTING MOTION TO DISMISS WAGE-AND-HOURS 13 v. CLAIMS WITH LEAVE TO AMEND 14 SECURITAS SECURITY SERVICES Re: ECF No. 5 USA, INC., [15] Defendant. [16] 17 INTRODUCTION 18 Plaintiff Ashley Williams, formerly a security guard for defendant Securitas Security Services, 19 sued Securitas for sexual harassment, retaliation, and wage-and-hour violations. Asserting diversity 20 and federal-question jurisdiction, Securitas removed the case to federal court and moved to dismiss 21 the wage-and-hour claims on the grounds that (1) a collective-bargaining agreement (CBA) governs 22 the claims and § 301 of the Labor Management Relations Act (LMRA) thus preempts them, and (2) 23 the plaintiff does not plausibly plead the claims. The court grants the motion on both grounds. [27] 1 STATEMENT 2 1. The Parties and Claims 3 The plaintiff resides in California and began working in 2018 in San Francisco as a security 4 guard for Securitas, a Delaware corporation with a principal place of business in New Jersey.1 Her 5 supervisor, Sidney Johnson, sexually harassed her persistently throughout her employment, but 6 when she reported it to HR, Securitas suspended her from her work duties “instead of taking 7 actions to rectify the situation.”2 In December 2021, she was placed on “stress leave and has not 8 been able to return to Securitas. Accordingly, Securitas constructively terminated [her] 9 employment.”3 10 Her complaint (filed in state court on March 7, 2023) has four claims related to the harassment, 11 retaliation, and wrongful termination (claims seven through ten) and six wage-and-hours claims 12 relevant to the motion to dismiss (numbered as follows): (1) failure to provide meal breaks in 13 violation of Cal. Lab. Code §§ 226.7 and 512; (2) failure to provide rest breaks in violation of Cal. 14 Lab. Code §§ 226.7 and 512; (3) failure to timely pay wages in violation of Cal. Lab. Code § 204 ; 15 (4) failure to pay overtime in violation of Cal. Lab. Code § 510 ; (5) failure to provide accurate 16 itemized wage statements in violation of Cal. Lab. Code § 226 ; and (6) a violation of California’s 17 Unfair Competition Law (UCL), Cal. Bus. & Prof. Code § 17200 , predicated on the wage-and18 hour violations.4 19 The plaintiff alleges that she regularly worked more than eight hours a day and forty hours a 20 week without overtime compensation, Securitas did not provide her with legally compliant meal21 and-rest breaks, and she did not receive accurate itemized wage statements reflecting the regular 22 and overtime hours she worked and the meal-and-rest period premium payments.5 In claim one, [23] 24 1 Compl. – ECF No. 1-5 at 4 (¶¶ 1–2), 5 (¶ 7); Notice of Removal – ECF No. 1 at 3 (¶ 11). Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page 25 numbers at the top of documents and sometimes also to the page numbers at the bottom of documents. [26] 2 Compl. – ECF No. 1-5 at 5 (¶ 8), 7 (¶ 22). [3] Id. at 7 (¶ 24). [4] Id. at 9–27 (¶¶ 31–120). 1 the meal-break claim, she adds that Securitas discouraged, impeded, or did not provide her with 2 uninterrupted meal breaks, interrupted her consistently during her meal and rest breaks, and 3 required her to work through her meal periods.6 Similarly, she was not allowed to take a full ten4 minute rest break, was called back to work before ten minutes, or was not allowed to take a break 5 at all.7 As for pay, the defendant routinely contacted her regarding work-related duties and tasks, 6 all while she was “off her working shift and away from [the d]efendant’s place of business.”8 As 7 for overtime, Securitas required her to complete tasks and duties after she clocked out of her shift.9 [8] 9 2. The CBA 10 The plaintiff worked as a security guard from September 2018 to December 2021, was a 11 member of a union, and was subject to a CBA that governed her employment. The CBA was 12 effective August 5, 2017 to June 30, 2021 and was renewed on June 30, 2021 and extended 13 through June 30, 2022.10 14 The CBA governs the employer’s wage-and-hour policies and definitions. Securitas identifies 15 the following relevant provisions: Article 12 (Wages), Article 13 (Workweek), and Article 25 16 (Grievance and Arbitration Procedure).11 [6] Id. at 9–10 (¶¶ 34–36). [7] Id. at 10 (¶ 39). [8] Id. at 11 (¶ 45). 22 9 Id. at 12 (¶ 48). [10] Id. at 5 (¶ 7), 7 (¶ 24); CBA, Ex. 1 to Req. for Jud. Notice – ECF No. 6 at 8–61; Extension Agreement – ECF No. 6 at 4–7. The plaintiff does not dispute that the CBA governs her employment. 24 Opp’n – ECF No. 11 at 8–9 (arguing only that the court’s inquiry is confined to the complaint and the CBA is an “outside” document). The court judicially notices it. Sarmiento v. Sealy, Inc., 367 F. Supp. 25 3d 1131, 1142–43 (N.D. Cal. 2019) (“Courts regularly take judicial notice of a CBA in evaluating a motion to dismiss.”) (cleaned up); Hernandez v. Sysco Corp., No. 16-cv-06723-JSC, 2017 WL 26 1540652, at *2 (N.D. Cal. Apr. 28, 2017) (“A court may take judicial notice of a CBA in evaluating a motion to dismiss.”); Johnson v. Sky Chefs, Inc., No. 11-CV-05619-LHK, 2012 WL 4483225 , at *1 27 n.1 (N.D. Cal. Sept. 27, 2012) (“Courts routinely take judicial notice of the governing [CBA] where necessary to resolve issues of [LMRA] preemption.”). 1 Article 12 lists minimum hourly wage rates in the geographic areas covered by the CBA.12 The 2 plaintiff worked in San Francisco. The schedule that applied to San Francisco security officers 3 “provided wages that exceeded 130% of California[’s] minimum wage.”13 4 Article 13 defines the “normal workweek” (forty hours) and workday (12:00 a.m. to 11:59 5 p.m.). All time worked in excess of forty hours in a workweek “shall be paid at one and one-half” 6 times the employee’s regular rate. All time worked in excess of twelve hours in a workday “shall 7 be paid at two” times the regular rate.14 All time worked in excess of eight hours per workday in a 8 fifteen-hour period within a workday “shall be paid at one and one-half [] times the employee’s 9 regular hourly rate of pay, if and as permitted by law.”15 “Work assignments, whenever possible, 10 shall be made so that an employee will have a sixteen[-]hour rest period within any twenty-four[- 11 ]hour work period.”16 12 Article 13 also provides for meal periods and rest periods. Employees are entitled to a fifteen13 minute rest break for each four hours worked (“or major fraction thereof”).17 Employees are entitled 14 to a duty-free meal period of at least thirty minutes in a five-hour work period (except that when a 15 work period of not more than six hours completes the day’s work, the employer and employee may 16 mutually waive the meal period). “Unless an employee is relieved of all duty during a thirty[- 17 ]minute meal period, the meal period may be considered an ‘on duty’ meal period[] and shall be 18 counted as time worked and paid at the employee’s regular wage rate. An ‘on duty’ meal period 19 shall be permitted only when the nature of the work prevents an employee from being relieved of all [21] 12 CBA, art. 12 – ECF No. 6 at 20–22 (pp. 11–13). 22 13 Id., art. 12.1 – ECF No. 6 at 20–21 (pp. 11–12) (setting forth a schedule that increased yearly from 2017 to 2021 and providing that the minimum wage under the section is the greater of the rate in the 23 table or the published San Francisco minimum wage (after any applicable CPI increase)); id., art. 12.5 (providing that a federal, state, county, or city statute or regulation with a higher hourly wage rate 24 supersedes the schedule rate); Mot. – ECF No. 5 at 10 (characterizing the schedule rate as exceeding 130 percent of California’s minimum wage). The court accepts Securitas’s math, which is unchallenged, 25 because it is verifiable by reference to the California minimum wage for the years in the schedule. [26] 14 CBA, art. 13.1 – ECF No. 6 at 22 (p. 13). [15] Id., art. 13.2 – ECF No. 6 at 22 (p. 13). [16] Id., art. 13.3 – ECF No. 6 at 22–23 (pp. 13–14). 1 duty and when an on-the-job paid meal period is agreed to in a written agreement between the 2 Employer and employee. The parties agree that the nature of the work performed by a security 3 officer may prevent him or her from being relieved of all duties[,] necessitating an on-the-job paid 4 meal period.”18 Employees who do not receive meal or rest breaks, or have their rest breaks 5 interrupted without rescheduling, must identify the incidents on their time cards. “[O]therwise, the 6 Employer may assume that the employee received all [] breaks as required by law.” Disputes about 7 breaks are resolved under Article 25 (Grievance and Arbitration Procedure).19 8 Article 25 provides the procedures for resolving “all disputes and grievances.” “[A] grievance 9 is defined as a difference of opinion between the Employer and the Union regarding only the 10 meaning or application of this Agreement, presented to the Employer in writing within fourteen [] 11 days after it occurred, or when the employee or Union became aware of it, or should have become 12 aware of it.”20 13 Submitting a grievance is a four-step process. In step one, within fourteen days of the 14 occurrence (or when the employee or union learn of it), the union submits a signed grievance (with 15 the employee’s version of the facts and the section of the CBA that is violated) to the employer’s 16 designated representative, who has seven days to “render his or her decision in writing.” In step 17 two, if the grievance is not settled or answered during the fourteen days, the union “may submit 18 the grievance” to the employer’s “designated Manager or his or her appointed representative” by 19 fax, mail, or email with seven days after receipt of the step-one decision. The manager or 20 representative has seven days to make a decision by fax, mail, or email. “If requested,” the 21 manager or representative will meet with the grievant and/or the appropriate union representative 22 within thirty days to review the matter. If this process does not resolve the grievance, the parties 23 may agree to submit the matter to a mediator under the process in step three, but if they do not, the 24 union may proceed to step four, arbitration.21 [18] Id., art. 13.7 – ECF No. 6 at 23–24 (pp. 14–15). [19] Id., arts. 13.6–13.7 – ECF No. 6 at 23–24 (pp. 14–15). [20] Id., art. 25.1 – ECF No. 6 at 43 (p. 34). 1 The CBA has this provision about the scope of the CBA’s grievance and arbitration provisions: 2 The Union and the Employer intend that the grievance and arbitration provisions in the [CBA] shall be the exclusive method of resolving all disputes between the [3] Employer and the Union and the employees covered by this Agreement unless 4 otherwise set forth or required under applicable law. The grievance and arbitration provisions shall also cover ‘Wage and Hour Claims or Disputes,’ which shall 5 include all state and federal statutory claims for alleged unpaid wages, claims relating to uniform maintenance, training time, rest periods, meal periods, recovery [6] periods, overtime pay, vacation pay, expense reimbursement, penalties (including 7 claims brought under Labor Code sections 2698–2699.5 (PAGA)), and all other wage and hour related matters, expressly including claims arising under the Fair 8 Labor Standards Act, California Labor Code Sections 201, 203, 204, 226, 226.7, 227.2, 510–512, 551–558, and 1194, and/or Employer obligations under any 9 applicable California Wage Orders that could have been brought in state or federal court. [10] 11 The Parties agree that any employee’s . . . Wage and Hour Claims or Disputes shall be first brought to the Employer’s attention via the grievance process 12 provided for in this Agreement and that they shall attempt to resolve any such Wage and Hour Claims or Disputes via the grievance procedure provided herein.22 [13] 14 3. Procedural History 15 On March 7, 2023, the plaintiff filed the complaint in San Francisco County Superior Court. 16 The defendant removed the case on April 17, 2023, asserting federal-question jurisdiction under 17 the LMRA, 29 U.S.C. § 185 , and diversity jurisdiction because the parties are diverse and the 18 amount in controversy exceeds $75,000.23 28 U.S.C. §§ 1331 , 1332(a). All parties consented to 19 magistrate-judge jurisdiction under 28 U.S.C. § 636.24 The court held a hearing on June 22, 2023. [20] 21 ANALYSIS 22 Securitas contends that the LMRA preempts the wage-and-hour claims and that in any event, 23 the plaintiff does not plausibly plead those claims. The court grants the motion on both grounds. [22] Id., art. 25.9 – ECF No. 6 at 46–47 (pp. 37–38). [27] 23 Notice of Removal – ECF No. 1 at 2. 1 1. LMRA Preemption 2 LMRA § 301 establishes federal jurisdiction for “[s]uits for violation of contracts between an 3 employer and a labor organization.” 29 U.S.C. § 185 (a). It preempts any state claims based on 4 alleged violations of collective-bargaining agreements between employers and labor organizations. 5 Franchise Tax Bd. v. Constr. Laborers Vacation Tr., 463 U.S. 1, 23 (1983). The test for 6 preemption is whether resolution of the state claim requires the court to construe a provision of the 7 CBA. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 , 405–06 (1988); Dent v. Nat’l 8 Football League, 902 F.3d 1109 , 1116–17 (9th Cir. 2018). If a claim is “founded directly on rights 9 created by collective-bargaining agreements” or is “substantially dependent on analysis of a 10 collective-bargaining agreement,” then § 301 preempts it. Caterpillar Inc. v. Williams, 482 U.S. 11 386, 394 (1987) (cleaned up). But “the bare fact that a collective-bargaining agreement will be 12 consulted in the course of state-law litigation plainly does not require the claim to be 13 extinguished.” Livadas v. Bradshaw, 512 U.S. 107, 124 (1994). “The plaintiff’s claim is the 14 touchstone for this analysis; the need to interpret the CBA must inhere in the nature of the 15 plaintiff’s claim. If the claim is plainly based on state law, § 301 preemption is not mandated 16 simply because the defendant refers to the CBA in mounting a defense.” Cramer v. Consol. 17 Freightways Inc., 255 F.3d 683 , 691 (9th Cir. 2001) (en banc); Dent, 902 F.3d at 1116 (“The 18 plaintiff’s claim is the touchstone of the § 301 analysis.”) (cleaned up). 19 The preemption inquiry thus has two parts. First, a court must determine “whether the asserted 20 cause of action involves a right conferred upon an employee by virtue of state law, not by a CBA. 21 If the right exists solely as a result of the CBA, then the claim is preempted.” Burnside v. Kiewit 22 Pac. Corp., 491 F.3d 1053 , 1059–60 (9th Cir. 2007). Second, if the right underlying the state 23 claim exists independently of the CBA, then the court considers whether the right is “substantially 24 dependent on analysis of a collective-bargaining agreement.” Id. at 1059 (cleaned up). 25 Securitas contends — in this sequence — that the overtime, meal-break, and rest-break claims 26 are preempted and that the plaintiff did not exhaust the CBA’s grievance process.25 The court adds [27] 1 a discussion of minimum-wage and pay-period-timing claims to the overtime analysis (due to how 2 the current complaint pleads those claims). 3 1.1 Overtime 4 The plaintiff alleges a failure to pay overtime wages (claim four) in violation of Cal. Lab. 5 Code § 510. As set forth in the Statement, the claim is predicated on generic allegations of 6 overtime work and a more specific allegation of off-the-clock work by Securitas’s contacting the 7 plaintiff about work matters when she was clocked out and not at work. Section 510 does not 8 apply to an employee covered by a valid CBA “if the agreement expressly provides for the wages, 9 hours of work, and working conditions of the employees, and if the agreement provides premium 10 wage rates for all overtime hours worked and a regular hourly rate of pay for those employees of 11 not less than 30 percent more than the state minimum wage.” Cal. Lab. Code § 514 . The CBA 12 satisfies that standard, as the Statement recounts. This is a case about the rules for security guards, 13 who do not have a normal work day. At least with regard to whether the CBA sets forth the 14 overtime rules, it does, and thus it falls within § 514. 15 So, for example, in Curtis v. Irwin Indus., a putative class action, the named plaintiff contended 16 that he had a nonnegotiable statutory right to overtime pay for his time on an offshore drilling 17 platform (off the coast of California) during his off-duty shifts. 913 F.3d 1146 , 1149–50 (9th Cir. 18 2019). The district court dismissed the claims as preempted under § 301 of the LMRA. The Ninth 19 Circuit affirmed. Id. The Ninth Circuit held that when a CBA satisfies the statutory exemption to 20 overtime, Cal. Lab. Code § 514 , the CBA creates the right to overtime pay and the independent 21 statutory right no longer exists. Id. at 1154–55. The court rejected the plaintiff’s argument that the 22 CBA had to provide overtime pay equivalent to that in Cal. Lab. Code § 510 , finding such a 23 conclusion would render the exemption for qualified CBAs superfluous. Id. at 1155 . Thus, if a CBA 24 satisfies § 514’s statutory exemption, § 510’s overtime requirements do not apply, and the CBA 25 conveys the only right to overtime. Id.; see also Parker v. Cherne Contracting Corp., No. 18-cv26 01912-HSG, 2019 WL 359989 , at *3 (N.D. Cal. Jan. 29, 2019) (applying Curtis and dismissing 27 overtime claims brought under Cal. Lab. Code § 510 on the grounds the CBA defined “overtime 1 hours worked”); Chatman v. WeDriveU, Inc., No. 3:22-cv-04849-WHO, 2022 WL 15654244 , at 2 *5–7, *9 (N.D. Cal. Oct. 28, 2022) (discussing and applying Curtis). 3 That analysis controls here, at least to the extent that the plaintiff argues that she is entitled to an 4 overtime scheme that is different than that in the CBA. The CBA governs the right to overtime. 5 The plaintiff nonetheless contends that the CBA does not meet the statutory exemption 6 because it does not “explicitly express and/or deal with the issue whether [the d]efendant is 7 properly compensating its employees their minimum wage.”26 Citing Johnson v. S.F. Health Care 8 & Rehab Inc., the plaintiff asserts that because the CBA failed to provide “a minimum hourly 9 wage compliant with § 514,” the § 514 requirements were not met and the overtime claim is not 10 preempted. No. 22-cv-01982-JSC, 2022 WL 2789809 , at *4 (N.D. Cal. July 15, 2022). In 11 Johnson, the plaintiff sued her former employer for failure to pay overtime wages, provide meal 12 breaks and rest periods, and provide accurate itemized wage statements (among other wage-and13 hour claims). Id. at *1 . The CBA — like the CBA here — provided for wages, hours of work, and 14 working conditions, and it had a premium wage rate for all overtime hours worked and a regular 15 hourly rate of pay. But — unlike the CBA here — it did not provide for a regular hourly rate of 16 pay for employees of not less than thirty percent more than the state’s minimum wage, as § 514 17 requires, and thus there was no preemption. Id. at *4–5 (citing Cal. Lab. Code § 514 ). The 18 Johnson defendant contended that a savings clause in the CBA kept the CBA within § 514, but the 19 court construed the clause as merely requiring the employer to pay the minimum wage. Id. 20 This case is not like Johnson: the plaintiff does not dispute Securitas’s characterization of the 21 CBA as requiring the payment of a base wage of not less than thirty percent more than the state’s 22 minimum wage. 23 But that does not necessarily end the inquiry. As discussed in the next section, the plaintiff’s 24 allegations are too conclusory to plausibly plead a claim. But there is a suggestion in the complaint 25 that the plaintiff was not paid at all for some work, resulting in a failure to pay the minimum [27] 1 wage.27 Addressing that dispute under state law would not require interpreting the CBA: it is a 2 straightforward task of determining the hours worked and calculating whether the plaintiff was 3 paid minimum wage for those hours. 4 To succeed on a claim under state law for a failure to pay minimum wages, the plaintiff must 5 prove that (1) she performed work and (2) she was paid less than the minimum wage. She also must 6 prove (3) the unpaid wages. Cal. Lab. Code §§ 1194 (a), 1197; Judicial Council of California Civil 7 Jury Instructions (2022), CACI No. 2701. State law defines “hours worked” as “the time during 8 which an employee is subject to the control of an employer.” Cal. Code Regs. tit. 8, § 11160 (2)(J). 9 The state minimum wage dictates the result for the remaining two elements. There is no need to 10 apply the CBA to resolve the claims because the court can look only to state law. The minimum11 wage claim thus is not preempted. Jimenez v. Young’s Mkt. Co., No. 21-CV-02410-EMC, 2021 WL 12 5999082, at *8–9 (N.D. Cal. Dec. 20, 2021) (“[I]rrespective of how ‘the wages,’ or ‘hours of work,’ 13 are determined under a CBA, [the] plaintiff is entitled to be paid a minimum wage . . . for all hours 14 he was under the ‘control’ of [the] defendant.”); McGhee v. Tesoro Ref. & Mktg. Co., 440 F. Supp. 15 3d 1062, 1068–70 (N.D. Cal. 2020) (minimum-wage claim not preempted because “whether [the 16 defendants] violated or complied with the CBAs has no import [for] whether they also violated . . . 17 California law”); Parker, 2019 WL 359989 , at *5–6 (“the minimum wage claims arising 18 under California Labor Code section 1194 are not substantially dependent on analysis of the CBA” 19 and “[c]ourts have routinely held that California wage and hour claims . . . based on a failure to 20 compensate at all for certain hours allegedly worked” are not preempted); Tolentino v. Gillig, LLC, 21 No. 20-CV-07427-MMC, 2021 WL 121193 , at *4 (N.D. Cal. Jan. 13, 2021) (minimum-wage claim 22 not preempted where the plaintiff “allege[d] [that] there were hours he worked for which he 23 received no credit, i.e., no payment at all”). 24 State law also governs what work is compensable, and that analysis does not depend on 25 interpretation of the CBA. And even if in some sense the CBA governs the employment 26 relationship, the LMRA will not displace state law where state law concurrently and [27] 1 comprehensively governs those aspects of the employment relationship that are the subject of the 2 plaintiff’s claims. See, e.g., Cramer, 255 F.3d at 690–91. In other words, “[e]ven [though] dispute 3 resolution pursuant to [the CBA], on the one hand, and state law, on the other, would require 4 addressing precisely the same set of facts, . . . the state-law claim can be resolved without 5 interpreting the agreement itself.” Id. at 690 . But at this stage, the plaintiff’s allegations are too 6 conclusory to plausibly plead a claim (as discussed below). 7 The court also notes that claim three, which includes the minimum-wage allegation, is 8 nominally for violation of Cal. Lab. Code § 204 , which (as the complaint puts it) requires that 9 wages be paid “in a timely fashion.”28 Securitas describes this claim as “sparse on the facts” and 10 says “it appears [the p]laintiff is seeking waiting time penalties based on her claims for unpaid 11 overtime wages.”29 Securitas characterizes the claim as derivative and contends that it fails 12 because the other claims fail.30 In her opposition, the plaintiff mentions her § 204 claim (for 13 “timely wages”) only in passing.31 14 Section 204 “provides baseline rules for the timing of semimonthly payments under the Labor 15 Code.” Johnson, 2022 WL 2789809 , at *7. But “§ 204(c) states that ‘when employees are covered 16 by a collective bargaining agreement that provides different pay arrangements, those arrangements 17 shall apply to the covered employees.’” Id. at *8 (quoting Cal. Lab. Code § 204 (c)). Also, 18 violations of § 204 “can support a [Private Attorneys General Act] claim” but “cannot provide an 19 independent cause of action to plaintiffs in their individual capacities.” Hubbs v. Big Lots Stores, 20 Inc., No. LACV1501601JAKASX, 2019 WL 12536594 , at *18–19 (C.D. Cal. June 28, 2019); 21 Andrade v. Arby’s Rest. Grp., Inc., 225 F. Supp. 3d 1115, 1134 (N.D. Cal. 2016). [28] Id. (¶¶ 42–46). 29 Mot. – ECF No. 5 at 11–12. [27] 30 Id. at 18, 23. 1 Although the parties did not directly address the issue, for now the court dismisses the claim as 2 preempted because the CBA “establish[es] a slightly different pay arrangement from the terms in 3 Section 204(a).”32 Johnson, 2022 WL 2789809 , at *8. “Thus, § 204(c) applies.” Id. 4 1.2 Meal Breaks 5 Securitas contends that the CBA preempts the mealtime claim under Cal. Lab. Code § 512 (e).33 6 The plaintiff did not respond to the argument specifically: she alleged generally that her claims are 7 founded on non-negotiable state-law rights and then addressed only the overtime claim.34 In any 8 event, the plaintiff’s right to meal breaks (claim one) is conferred by the CBA because the CBA 9 satisfies the statutory exemption to meal periods under Cal. Lab. Code § 512 (e). 10 The requirements for meal periods are set forth in Labor Code § 512(a) and (b). But those 11 requirements do not apply to an employee covered under a valid CBA that satisfies § 512(e)’s 12 requirement that the CBA 13 expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for meal periods for those employees, final 14 and binding arbitration of disputes concerning application of its meal period provisions, premium wage rates for all overtime hours worked, and a regular [15] hourly rate of pay of not less than 30 percent more than the state minimum 16 wage rate. [17] Cal. Lab. Code § 512 (e). 18 The CBA satisfies § 512(e)’s statutory requirements, and § 301 thus preempts the claim. 19 Parker, 2019 WL 359989 , at *5; Coria v. Recology, Inc., 63 F. Supp. 3d 1093 , 1098–1100 (N.D. 20 Cal. 2014 ). To the extent the plaintiff asserts that she has an independent right under state law to a 21 meal break, she is wrong. Parker, 2019 WL 359989 , at *5 (when a plaintiff’s meal period claims 22 are exempted under Cal. Lab. Code § 512 , the plaintiff “has asserted no rights that exist 23 independently of the CBA, and these claims are preempted”); Coria, 63 F. Supp. 3d at 1098 (if [25] 26 32 CBA, art. 21.1 – ECF No. 6 at 37 (p. 28). [27] 33 Mot. – ECF No. 5 at 17. 34 Opp’n – ECF No. 11 at 9–13. Securitas thus responded only to the overtime arguments. Reply – 1 § 512(e) applies, then § 512(a) does not apply, and the plaintiff’s claimed right to meal periods 2 cannot be said to be based on state law and instead “exists solely as a result of the CBA”). 3 1.3 Rest Breaks 4 Securitas contends that the CBA preempts the rest-break claim (for violation of Cal. Lab. Code 5 §§ 226.7 and 512) because the CBA waives the right to sue.35 As with the meal-break claim, the 6 plaintiff did not respond to the argument specifically: she alleged generally that her claims are 7 founded on non-negotiable state-law rights and then addressed only the overtime claim.36 In any 8 event, as set forth in the Statement, the CBA provides for rest breaks and a mandatory dispute 9 procedure (Article 25’s Grievance and Arbitration) for resolving meal- and rest-break disputes, and 10 it specifically lists §§ 226.7 and 512. 37 Johnson, 2022 WL 2789809, at *5 n.4 (“The existence of a 11 grievance procedure in the . . . CBA does not lead to federal preemption unless the litigation waiver 12 is ‘clear and unmistakable’ and directly references the relevant statutes at issue.”). The plaintiff 13 apparently concedes the issue. 14 The parties did not address — and the court thus does not either — the effect of Industrial 15 Welfare Commission Order 4-2001 (IWC Wage Order 4). Cal. Code Regs. tit. 8, § 11040 ; Bradford 16 v. Pro. Tech. Sec. Servs. Inc., No. 20-cv-02242-WHO, 2020 WL 2747767 , at *6–7 (N.D. Cal. May 17 27, 2020) (discussing the wage order in the context of a rest-break claim); see Zayerz v. Kiewit 18 Infrastructure W., No. 16-CV-6405-PSG, 2018 WL 582318 , at *4 (C.D. Cal. Jan. 18, 2018) 19 (discussing Industrial Welfare Commission Order 16-2001, Cal. Code Regs. tit. 8, § 11160 , an order 20 governing rest breaks for employees in the construction industry, in the context of a CBA argument 21 regarding a rest-break claim). [25] 35 Mot. – ECF No. 5 at 17–18 (citing CBA, art. 13.6 – ECF No. 6 at 23 (p. 14)). [26] 36 Opp’n – ECF No. 11 at 9–13. Securitas thus responded only to the overtime arguments. Reply – 27 ECF No. 13 at 4–6. 37 CBA, arts. 13.6–13.7, 25.9 – ECF No. 6 at 23–24 (pp. 14–15), 46 (p. 37) (referencing §§ 226.7 and 1 1.4 Accurate Wage Statements 2 The derivative claims for failure to provide accurate statements and a violation of the UCL 3 (claims five and six) are preempted because they depend on the preempted claims. For example, the 4 predicate minimum-wage and overtime claims (claims three and four) determine the wages that the 5 plaintiff is due at separation and the resulting accuracy of the wage statements. Curtis, 913 F.3d at 6 1150 n.3. The UCL claim similarly stands or falls on the predicate claims. Berryman v. Merit Prop. 7 Mgmt., 152 Cal. App. 4th 1544, 1554 (2007) (“A violation of another law is a predicate for stating a 8 cause of action under the UCL’s unlawful prong.”) (cleaned up). The LMRA preempts derivative 9 claims that are substantially dependent on analysis of the CBA. Jimenez, 2021 WL 5999082 , at *13 10 (claims that are derivative of claims that are preempted are themselves preempted). 11 1.5 Grievance and Arbitration Provision 12 The defendant contends that because § 301 preemption applies, the wage-and-hours claims 13 either (1) are completely preempted (and thus should be dismissed) or (2) must be converted into 14 § 301 claims that must be exhausted under the CBA’s grievance process.38 The plaintiff did not 15 address the exhaustion argument except to say in her factual background that Article 25 “lists the 16 procedural requirements and steps for grievance and arbitration procedure[s].”39 17 Normally, statutory claims are not subject to arbitration.40 But a CBA bars a plaintiff’s 18 statutory claims if the agreement’s waiver of her right to sue is “clear and unmistakable.” Wright 19 v. Universal Mar. Serv. Corp., 525 U.S. 70 , 79–80 (1998); Munoz v. Atl. Express of L.A., Inc., No. 20 CV 12–6074–GHK (FMOx), 2012 WL 5349408 , at *4 (C.D. Cal. Oct. 30, 2012) (quoting Wright, 21 525 U.S. at 80–81). 22 As set forth in the Statement and the rest-break section, the CBA provides for a mandatory 23 dispute procedure (Article 25’s Grievance and Arbitration Procedure) for resolving meal- and rest24 break disputes: under Articles 13.6 and 13.7, employees must identify missed breaks on their time [26] 38 Mot. – ECF No. 5 at 18–19. [27] 39 Opp’n – ECF No. 11 at 7. 1 cards and then resolve their disputes under Article 25.41 Again as discussed above, the plaintiff 2 apparently concedes the issue, at least as to the meal- and rest-break claims, because she raised 3 only overtime arguments. 4 The analysis is different for wage claims: unlike Article 13’s requirements for meal- and rest5 break claims, Article 12 does not have a similar provision. That means the issue turns on Article 6 25.9 (quoted fully in the Statement), which states that “the grievance and arbitration provisions in 7 the [CBA] shall be the exclusive method of resolving all disputes between the Employer and the 8 Union and the employees covered by this Agreement unless otherwise set forth or required under 9 applicable law. The grievance and arbitration provisions shall also cover ‘Wage and Hour Claims 10 or Disputes,’ which shall include all state . . . statutory claims for alleged unpaid wages, . . . rest 11 periods, meal periods, . . . overtime pay, . . . expressly including claims arising under . . . 12 California Labor Code Sections,” including the predicate statutes for the plaintiff’s claims. It then 13 states that the parties agree that wage-and-hour claims and disputes “shall first be brought to the 14 Employer’s attention via the grievance process provided for in the Agreement and that they shall 15 attempt to resolve any such Wage and Hour Claims or Disputes via the grievance procedure 16 provided herein.”42 17 Securitas did not make the waiver argument as explicitly in its motion as it did in its reply. In 18 its Statement of Facts, it said that “Securitas and the Union agreed that any employee’s wage-and19 hours claim must first be brought to Securitas’[s] attention via the grievance process.”43 It then 20 said that the plaintiff “notably omit[ted] from her pleading any allegation that she exhausted the 21 grievance procedures.”44 It argued explicitly that the CBA waived the rest-period claim because 22 Article 13.6 calls for final and binding arbitration of disputes concerning rest periods.45 It then 23 said, “[i]ndeed, ‘rest periods’ is an expressly listed item within the scope of the grievance and [24] 25 41 CBA, arts. 13.6–13.7 – ECF No. 6 at 23–24 (pp. 14–15). [26] 42 CBA, art. 25.9 – ECF No. 6 at 46–47 (pp. 37–38). 43 Mot. – ECF No. 5 at 12 (citing CBA, art. 25.9 – ECF No. 6 at 46–47 (pp. 37–38)). [44] Id. 1 arbitration provision.”46 It thus argued a failure to exhaust because the plaintiff (1) did not cause 2 the union to file a grievance or (2) allege that the union breached its duty of fair representation by 3 failing to do so. To support its argument, it cited and quoted Soremekun v. Thrifty Payless, Inc., [4] 509 F.3d 978 , 985–86 (9th Cir. 2007): for a claim preempted under § 301, prior to bringing suit 5 against an employer, “an employee seeking to vindicate personal rights under a [CBA] must first 6 attempt to exhaust any mandatory or exclusive grievance procedures provided in the agreement.”47 7 As discussed above, the plaintiff did not respond to these arguments. In its reply, Securitas was 8 more explicit, arguing that Article 25.9 “operates as an unmistakable waiver of [the p]laintiff’s 9 right to pursue wage-and-hour claims in a judicial forum.”48 10 Securitas cited Sanchez v. Securitas Sec. Servs. USA, Inc., No. 2:17-cv-08462-SVW-E, 2018 11 WL 5861258 , at *1–4 (C.D. Cal. July 17, 2018), to support its argument that Article 25.9 bars the 12 claims here.49 The Sanchez provision is different than Article 25.9: it did not have the second 13 paragraph about bringing wage-and-hour disputes to the employer’s attention and “trying” to 14 resolve them. (Also, the four-step process has a lot of “mays.”) This seems relevant, particularly 15 because the CBA treats wage and overtime claims differently than it treats meal- and rest-break 16 claims, as the earlier analysis of Articles 12 and 13 shows. Securitas did not discuss the effect of 17 that paragraph and whether, considered as a whole, Article 25.9 precludes the plaintiff from 18 seeking judicial relief. But because the plaintiff did not address an issue that was raised more 19 explicitly in Securitas’s reply brief, the court does not reach the issue on this round of briefing. [20] 21 2. Failure to State a Claim 22 Securitas also contends that the plaintiff did not sufficiently plead facts that entitle her to 23 relief.50 The court dismisses the claims on this ground too. [24] 25 46 Id. (citing CBA, art. 25.9 – ECF No. 6 at 46–47 (pp. 37–38)). [47] Id. at 19 (cleaned up) (citing and quoting Soremekun, 509 F.3d at 985–86). 48 Reply – ECF No. 13 at 7. [49] Id. 1 2.1 Standard of Review 2 A complaint must contain a “short and plain statement of the claim showing that the pleader is 3 entitled to relief” to give the defendant “fair notice” of (1) what the claims are and (2) the grounds 4 upon which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 555 5 (2007). Thus, “[a] complaint may fail to show a right to relief either by lacking a cognizable legal 6 theory or by lacking sufficient facts alleged under a cognizable legal theory.” Woods v. U.S. Bank 7 N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). 8 A complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide 9 the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a 10 formulaic recitation of the elements of a cause of action will not do. Factual allegations must be 11 enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (cleaned 12 up). A complaint must contain factual allegations that, when accepted as true, are sufficient to 13 “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); 14 NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health Plan, Inc., 838 F. App’x 231 , 234 (9th 15 Cir. 2020). “[O]nly the claim needs to be plausible, and not the facts themselves. . . .” NorthBay, 16 838 F. App’x at 234 (citing Iqbal, 556 U.S. at 696 ); see Interpipe Contracting, Inc. v. Becerra, [17] 898 F.3d 879 , 886–87 (9th Cir. 2018) (the court must accept the factual allegations in the 18 complaint “as true and construe them in the light most favorable to the plaintiff”) (cleaned up). 19 Put another way, “[a] claim has facial plausibility when the plaintiff pleads factual content that 20 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 21 alleged.” Iqbal, 556 U.S. at 678 . “The plausibility standard is not akin to a ‘probability 22 requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” [23] Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops 24 short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (cleaned up). 25 If a court dismisses a complaint because of insufficient factual allegations, it should give leave 26 to amend unless “the pleading could not possibly be cured by the allegation of other facts.” Cook, 27 Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242 , 247 (9th Cir. 1990). If a court 1 amend. United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016); see 2 Steele-Klein v. Int’l Bhd. of Teamsters, Loc. 117, 696 F. App’x 200, 202 (9th Cir. 2017) (leave to 3 amend may be appropriate if the plaintiff “identifie[s] how she would articulate a cognizable legal 4 theory if given the opportunity”). 5 In Landers v. Quality Commc’ns, Inc., 771 F.3d 638 , 644–45 (9th Cir. 2014), the Ninth Circuit 6 set forth the standard for pleading wage-and-hour claims post-Twombly and Iqbal. The plaintiff 7 there alleged that his employer violated the minimum-wage and overtime requirements of the 8 federal Fair Labor Standards Act (FLSA). Id. at 639–40. Specifically, the complaint alleged: The named plaintiff was entitled to a minimum wage and an overtime hourly wage [9] of time and one-half his regular hourly wage for all hours worked in excess of forty 10 hours per week, the named plaintiff worked more than 40 hours per week for the defendants, and the defendants willfully failed to make said overtime and/or 11 minimum wage payments. [12] Id. at 646 (cleaned up). 13 The Ninth Circuit held that this recitation did not state a claim in light of Twombly and Iqbal. [14] Id. It noted “the Supreme Court’s pronouncement in Iqbal that a [p]laintiff’s pleading burden 15 cannot be discharged by a pleading that offers labels and conclusions or a formulaic recitation of 16 the elements of a cause of action.” Id. at 644 (cleaned up). It held that “although plaintiffs in these 17 types of cases cannot be expected to allege with mathematical precision the amount of overtime 18 compensation owed by the employer, they should be able to allege facts demonstrating there was 19 at least one workweek in which they worked in excess of forty hours and were not paid overtime 20 wages.” Id. at 646 (cleaned up). A complaint that “merely alleges that [a plaintiff] was not paid for 21 overtime hours worked,” without more, does not plead a plausible claim. Id. 22 Twombly and Iqbal apply to all civil claims in federal court, and thus federal courts apply the 23 Twombly/Iqbal standard as delineated in Landers to minimum-wage, overtime, meal-break, and 24 rest-period claims under the California Labor Code. Courts have held that a plaintiff must plead 25 facts demonstrating at least one workweek when she was not paid minimum wage, worked in 26 excess of forty hours and was not paid overtime, or was impeded from taking a meal break or rest 27 period, to state a plausible claim. See, e.g., Cortez v. United Nat. Foods, Inc., No. 18-cv-046031 Labor Code minimum-wage, overtime, meal-break, and rest-period claims); Suarez v. Bank of Am. 2 Corp., No. 18-cv-01202-MEJ, 2018 WL 2431473 , at *4–7 (N.D. Cal. May 30, 2018) (same). 3 Courts have held that general allegations that a plaintiff “regularly” worked without being 4 adequately compensated, without more facts, are conclusory and insufficient to state a claim. See, 5 e.g., Bush v. Vaco Tech. Servs., No. 17-cv-05605-BLF, 2018 WL 2047807 , at *9 (N.D. Cal. May 6 2, 2018) (the plaintiff’s “bare assertion that she ‘regularly’ worked more than the statutory 7 requirement is conclusory and insufficient under the standard set forth in Landers”). Similarly, 8 general allegations that the defendant “required” a plaintiff to work without being adequately 9 compensated, without more facts, are conclusory and insufficient to state a claim. Id. at *8 10 (allegations that the plaintiff “was required to report to [the defendant]’s headquarters” at certain 11 times “is another way of saying that [the plaintiff] and the putative class ‘regularly’ worked excess 12 hours, and does not amount to an allegation that [the plaintiff] actually worked” excess hours); 13 McMillian v. Overton Sec. Servs., No. 17-cv-03354-JSC, 2017 WL 4150906 , at *2 (N.D. Cal. 14 Sept. 19, 2017) (allegations that plaintiff “was required to work in excess of 40 hours per week” 15 do not state a plausible claim). 16 2.2 Application 17 Here, as shown by the account in the Statement, the complaint’s allegations amount only to a 18 conclusion that the defendants required the plaintiff to routinely and regularly work overtime 19 without compensation and denied her breaks. Other than explaining her general workweek (more 20 than eight hours a day or forty hours in a week), she gives no example of any week where she was 21 not paid minimum wage or worked in excess of forty hours a week and was not paid overtime. 22 The allegation about contacting her when she was not at work is conclusory and does not allow an 23 inference that the plaintiff worked overtime. Velasco v. Elliot, No. 18-cv-03191-VKD, 2018 WL 24 6069009, at *5 (N.D. Cal. Nov. 20, 2018). She also must plead any facts about the employer’s 25 knowledge of the off-the-clock work, which presumably she can if the employer is contacting her 26 after hours about work. Morillion v. Royal Packing Co., 22 Cal. 4th 575, 585 (2000); White v. 27 Starbucks Corp., 497 F. Supp. 2d 1080 , 1083–85 (N.D. Cal. 2007). 1 In sum, the allegations are too conclusory to plausibly plead claims. See Bush, 2018 WL 2 || 2047807, at *9. The court dismisses claims one through four with leave to amend. Because claims 3 five and six are predicated on these claims, the court dismisses them too. [4] 5 CONCLUSION 6 The court grants the motion to dismiss claims one through six with leave to amend. The 7 || plaintiff must file any amended complaint within four weeks and attach a blackline compare of the 8 amended complaint to the current complaint. 9 This resolves ECF No. 5. 10 IT IS SO ORDERED. LAE 11 Dated: August 16, 2023 LAUREL BEELER 12 United States Magistrate Judge [13] «4 o [16] («17 O Z 18