Newton v. Schwarzenegger, Defendant's reply to Motion for Summary Judgment and/or Partial Summary...

8/8/2019 Newton v. Schwarzenegger, Defendant's reply to Motion for Summary Judgment and/or Partial Summary Judgment

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959402.1 Case No. 3:09-cv-09-05887-VRW

DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR PARTIAL SUMMARY JUDGMENT

DAVID W. TYRA, SBN 116218KRISTIANNE T. SEARGEANT, SBN 245489KRONICK, MOSKOVITZ, TIEDEMANN & GIRARDA Law Corporation400 Capitol Mall, 27th FloorSacramento, California 95814Telephone: (916) 321-4500Facsimile: (916) 321-4555E-mail: [email protected]

LINDA A. MAYHEW, Chief Counsel(A), SBN 155049WARREN C. STRACENER, Dep. Chief Counsel, SBN 127921WILL M. YAMADA, Labor Relations Counsel, SBN 226669DEPARTMENT OF PERSONNEL ADMINISTRATION1515 S Street, North Building, Suite 400Sacramento, CA 95811-7258Telephone: (916) 324-0512Facsimile: (916) 323-4723E-mail: [email protected]

Attorneys for Defendants/RespondentsGovernor ARNOLD SCHWARZENEGGERDEBBIE ENDSLEY, MATTHEW CATE, BERNARDWARNER and STEPHEN MAYBERG

Exempted from Fees(Gov. Code 6103)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

RICHARD T. NEWTON; FRANK M.MCNEAL; and SEAN A. BEATON,

Plaintiffs/Petitioners,

v.

ARNOLD SCHWARZENEGGER, et al.,

Defendants/Respondents.

CASE NO. 3:09-cv-05887-VRW

DEFENDANTS REPLY TOPLAINTIFFS OPPOSITION TOMOTION FOR SUMMARY JUDGMENTAND/OR PARTIAL SUMMARYJUDGMENT

Date: January 13, 2011Time: 10:00 a.m.

Ctrm: 6, 17th FloorChief Judge Vaughn R. Walker

Complaint Filed: December 16, 2009

///

///

Case3:09-cv-05887-VRW Document95 Filed12/30/10 Page1 of 15


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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES.......................................................................................................... ii

I. INTRODUCTION...............................................................................................................1

II. ANALYSIS..........................................................................................................................2

A. Defendants Motion For Summary Judgment Should Be Granted BecauseThere Is No Dispute Of Material Fact Establishing The Courts Lack OfJurisdiction Over This Matter..................................................................................2

1. In their Complaint, Plaintiffs expressly limited their challenge tothe now expired furlough programs implemented after issuance ofExecutive Orders S-16-08 and S-13-09.......................................................2

2. Defendants have not waived their immunity from suit................................3

B. Defendants Motion For Summary Judgment Should Be Granted BecauseThere Is No Genuine Dispute of Material Fact Establishing Plaintiffs Were

Not Compensated For All Hours Worked ...............................................................41. In addition to fully compensating employees for all hours worked,

the States monthly assignment of furlough leave hours is anotherallowable form of compensation under the FLSA.......................................6

C. Defendants Motion For Summary Judgment Should Be Granted BecauseThere Is No Genuine Dispute Of Material Fact Establishing PlaintiffsStanding To File Suit For FLSA Record Keeping Violations.................................9

III. CONCLUSION..................................................................................................................11



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TABLE OF AUTHORITIES

Page

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FEDERAL CASES

Anderson v. Mt. Clemens Pottery Co.,328 U.S. 680 (1946).............................................................................................................9, 10

Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984)...................................................................................................................8

Christensen v. Harris County,529 U.S. 576 (2000)...............................................................................................................8, 9

Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000).........................................................3

EEOC v. Arabian American Oil Co.,

499 U.S. 244 (1991)...................................................................................................................8

Elwell v. Univ. Hosps. Home Care Servs.,

276 F.3d 832 (6th Cir. 2002) ...................................................................................................10

Hill v. Blind Industries and Services of Maryland,

179 F.3d 754 (9th Cir. 1999) .....................................................................................................3

IBP, Inc. v. Alvarez,

546 U.S. 21 (2005)...................................................................................................................10

Johns v. Stewart,

57 F.3d 1544 (10th Cir. 1995) ...................................................................................................3

Johnson v. Mammoth Recreations, Inc.,975 F.2d 604 (9th Cir. 1992) .....................................................................................................3

Martin v. Occupational Safety and Health Review Comm'n,499 U.S. 144 (1991)...................................................................................................................8

Parker v. City of New York,

2008 WL 2066443 (S.D.N.Y. 2008)..................................................................................7, 8, 9

Pennhurst State School & Hosp. Halderman, 465 U.S. 89 (1984) .............................................3, 4

Powell v. Florida,

132 F.3d 677 (11th Cir. 1998), cert. denied, 524 U.S. 916 (1998)..........................................10

Reno v. Koray,

515 U.S. 50, 132 L. Ed. 2d 46, 115 S. Ct. 2021 (1995).............................................................8



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TABLE OF AUTHORITIES

(continued)

Page

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S&W Enterprises, L.L.C. v. South Trust Bank of Alabama, NA,

315 F.3d 533 (5th Cir. 2003) .....................................................................................................3

Skidmore v. Swift & Co.,323 U.S. 134, 89 L. Ed. 124, 65 S. Ct. 161 (1944)....................................................................8

Verizon Maryland Inc., v. Public Service Commn of Maryland, et al.,535 U.S. 635 (2002)...................................................................................................................2

STATE CASES

Professional Engineers in California Government v. Schwarzenegger,

50 Cal.4th 989 (2010)....................................................................................................1, 4, 5, 6

FEDERAL STATUTES

29 U.S.C. 211........................................................................................................................10, 11

29 U.S.C. 215..............................................................................................................................10

RULES

Federal Rule of Civil Procedure 16(b)..........................................................................................3

REGULATIONS

29 Code of Federal Regulations 553.28 ...........................................................................6, 7, 8, 9

29 Code of Federal Regulations 778.315 .................................................................................5, 6



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959402.1 - 2 - Case No. 3:09-cv-09-05887-VRW


a heightened standard should be applied to furlough leave, as opposed to other types of leave like

vacation and compensatory time off, has no basis in the law.

Based on these arguments, as detailed below and in the papers already on file with

this Court, Defendants respectfully request that this Court grant summary judgment in this action

in favor of Defendants. Alternatively, Defendants request that this Court summarily adjudicate

each and every claim alleged by Plaintiffs in their complaint in this action.

II.

ANALYSIS

A. Defendants Motion For Summary Judgment Should Be Granted Because There IsNo Dispute Of Material Fact Establishing The Courts Lack Of Jurisdiction OverThis Matter.

1. In their Complaint, Plaintiffs expressly limited their challenge to the nowexpired furlough programs implemented after issuance of Executive OrdersS-16-08 and S-13-09.

Plaintiffs concede this Court can only issue declaratory relief against a State

defendant for ongoing and continuous harm. See Pls Opp., Doc # 89 at 13-14. Plaintiffs

further concede that in order to determine whether relief is prospective, the court should conduct

a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal

law . Pls Opp., Doc # 89 at 14 (quoting Verizon Maryland Inc., v. Public Service Commn of

Maryland, et al., 535 U.S. 635, 645 (2002)). Here, a straightforward inquiry of Plaintiffs

complaint finds Plaintiffs alleged that the two-day a month furlough program implemented

pursuant to Executive Order S-16-08 expired by its own terms on June 30, 2010. See Pls

Complaint, Doc # 1 at 5. In paragraph 10 of their complaint, Plaintiffs allege that the three-day a

month furlough program implemented pursuant to Executive Order S-13-09 also expired by its

own terms on June 30, 2010. Nowhere in Plaintiffs complaint do Plaintiffs allege any violation

of law for the current furlough program implemented after pursuant to Executive Order S-12-10,

nor did Plaintiffs amend their Complaint to include a challenge to the most recent furlough

program.1

1Defendants would be prejudiced if this Court allows Plaintiffs to amend their complaint at

this stage of the proceedings. On April 1, 2010, pursuant to FRCP 26(f), the parties filed with



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959402.1 - 3 - Case No. 3:09-cv-09-05887-VRW


2. Defendants have not waived their immunity from suit.

Contrary to Plaintiffs disingenuous claims that Defendants have acted in a way

that is incompatible with an intent to preserve that immunity, (see Pls Opp., at 10) Defendants

asserted Eleventh Amendment Sovereign Immunity as an affirmative defense in its answer.

Ds Answer, Doc # 10 at 7. In paragraphs 1 and 11 of the parties initial joint case management

conference statement, Defendants again asserted its affirmative defenses with respect to the

courts jurisdiction and relief requested in this matter. Doc # 19 at 2, 5. Quite unlike the facts of

the case relied on by Plaintiffs,Hill v. Blind Industries and Services of Maryland, 179 F.3d 754,

758 (9th Cir. 1999), Defendants have made no attempt to litigate the case on the merits and

then assert its immunity. Here, Defendants placed Plaintiffs on notice of their intent to challenge

the courts jurisdiction from the beginning of this suit.

As for Plaintiffs claims that Defendants participation in discovery, by way of

defending deponents and producing requested discovery somehow waived Defendants immunity

ignores the legal principles that defendants generally are not at liberty simply to refuse to

participate in discovery and more importantly that the law requires waiver of immunity to be

express. SeeJohns v. Stewart, 57 F.3d 1544, 1553 (10th Cir. 1995) citingPennhurst State School

& Hosp. Halderman, 465 U.S. 89 (1984) (Thus, any waiver by the state of its Eleventh

Amendment immunity must be unequivocal [citations omitted] a state may waive its Eleventh

Amendment immunity only where stated by the most express language or by such

overwhelming implication from the text [of a state statutory or constitutional provision] as [will]

leave no room for any other reasonable construction. ). No such express waiver occurred here.

this Court a joint scheduling report and case management conference statement wherein theparties agreed that no further amendments to pleadings would be filed. Doc # 19 at 3. Pursuantto Federal Rule of Civil Procedure section 16(b), once a deadline in a scheduling order has passedto amend pleadings, no party is permitted to amend its pleadings absent a showing of good causeand a modification of the scheduling order. FRCP 16(b)(4);Johnson v. Mammoth Recreations,Inc., 975 F.2d 604, 609 (9th Cir. 1992); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9thCir. 2000). In order to satisfy the good cause standard, the moving party must demonstratecompelling reasons why an amendment could not have been made earlier. S&W Enterprises,L.L.C. v. South Trust Bank of Alabama, NA, 315 F.3d 533, 536 (5th Cir. 2003).



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959402.1 - 4 - Case No. 3:09-cv-09-05887-VRW


B. Defendants Motion For Summary Judgment Should Be Granted Because There IsNo Genuine Dispute of Material Fact Establishing Plaintiffs Were Not CompensatedFor All Hours Worked.

In their motion for summary judgment filed contemporaneously with Defendants

motion, Plaintiffs admit that the complained of furlough programs were implemented as a salary

reduction. See Pls MSJ at 7:12-14, Doc # 77 at 11 (Although the furlough program is actually a

reduction to time worked, it is functionally administered as a reduction to the salary rate used in

the calculation of the pay made to employees. (emphasis added)); see also id. at 7:16-20, Doc #

77 at 11 (To accomplish the functional reduction of the salary rate, and to continue to reflect the

actual appointment or base salary rate for employees, Defendant Department of Personnel

Administration (DPA) established a negative furlough pay differential to be applied to the base

salary rate The furlough pay differential reduces the employees base salary rate to achieve the

furlough pay reduction. (emphasis added)). Plaintiffs also admit in their motion for summary

judgment that compensation reduced by the negative salary differential still yields pay well in

excess of the federal minimum wage. See Pls MSJ at 8:5-11, Doc # 77 at 12. Only in their

opposition to Defendants motion do Plaintiffs belatedly argue that furloughs are not a salary

reduction. Plaintiffs make no attempt to explain their diametrically opposed shift in argument.

Rather, Plaintiffs attempt to distinguish the California Supreme Courts holding inProfessional

Engineers in California Government v. Schwarzenegger, supra, 50 Cal.4th 989 by arguing that

Plaintiffs here, unlike those inProfessional Engineers, are unable to utilize furlough leave

because of the 24-hour nature of the correctional facilities and therefore it cannot be interpreted as

a salary reduction. Plaintiffs argument ignores the Courts reasoning.

InProfessional Engineers, the Supreme Court found that through the budget

process, the Legislature approved an across the board salary reduction for State employees.

Professional Engineers in California Government v. Schwarzenegger, supra, 50 Cal.4th 989.

The Court did not distinguish between employees who took self-directed furloughs or those

whose offices were closed on specific days. The Court inProfessional Engineers held that in

enacting the Revised Budget Act of 2008, the Legislature validated the then-existing furlough

program. Professional Engineers, 50 Cal.4th at 1047-1048. The Supreme Court stated that the



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legislative history of the Budget Act of 2008 makes it abundantly clear the Legislature

contemplated that the reduction in appropriations for employee compensation could be

achieved through the furlough plan that was then in existence. Id. at 1047. The then-existing

furlough program was the furlough program that existed on February 19, 2009. The furlough

program that existed on February 19, 2009, was the program implemented by the DPA pursuant

to Executive Order S-16-08. Thus, the then-existing furlough plan at the time that the

Legislature passed the Revised Budget Act of 2008, and validated the furlough program, included

employees at all state agencies and departments, regardless of whether the employees took self-

directed furlough leave or had assigned office closures.

Plaintiffs go to great lengths to argue that the FLSA requires payment of straight

time wages before payment of overtime wages. Defendants do not dispute that contention. That

contention, however, is not relevant to this suit. Plaintiffs offer no evidence they were not

compensated for straight time hours worked. By reducing the employees salary across the

board, all hours worked were compensated, just at a reduced rate. Plaintiffs convoluted

argument that specific straight-time hours worked were not compensated in violation of 29

Code of Federal Regulations section 778.315 is belied by the evidence submitted by Plaintiffs in

support of their motion for summary judgment. Linda Matsuda, Bureau Chief for the State

Controllers Office, testified that the furlough program resulted in a negative percentage-based

differential being applied to employees base pay. See Ex. 7 to Decl. of Jim Harrison, Doc # 78-

7 at 10. Ms. Matsuda also testified that with respect to the class of Plaintiffs, a lower pay rate

was used as a basis for calculating employees compensation. Id. at 14. She testified that the

rate that the payroll system uses to calculate an employees compensation was changed. Id. at

16. PML 2009-007, issued by the Department of Personnel Administration on February 3, 2009,

also described the administration of the furlough program as an adjustment to the employees

base salary. See Ex. 14 to Decl. of Jim Harrison, Doc # 78-14 at 3. In a February 5, 2009

memorandum from the State Controllers Office, the department tasked with operating the States

payroll, the SCO explains that a pay differential will be added to the employee employment

history (EH) records to reduce the base rate by an average percentage equivalent to the two



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959402.1 - 6 - Case No. 3:09-cv-09-05887-VRW


furlough days. See Ex. 15 to Harrison Decl., Doc # 78-15 at 2.

Defendants implementation of the relevant furlough programs was administered

as an across the board salary reduction for State employees. Plaintiffs pay for straight time hours

is controlled exclusively by the California Legislature. The California Legislature through the

Revised Budget Act of 2008 passed in February 2009 and the Revised Budget Act of 2009 passed

in July 2009 reduced the straight time pay for all state employees including those employees who

participate in self-directed furloughs. Professional Engineers in California Government v.

Schwarzenegger, supra, 50 Cal.4th 989. These reductions enacted by the Legislature modified

the pay provided to Plaintiffs for straight time hours and constitutes the new applicable statute

referenced in 29 Code of Federal Regulations section 778.315. Plaintiffs offer no evidence that

specific hours worked went uncompensated. Defendants motion for summary judgment should

be granted because there are no disputed material facts establishing Plaintiffs were not paid for all

hours worked.

1. In addition to fully compensating employees for all hours worked, the Statesmonthly assignment of furlough leave hours is another allowable form ofcompensation under the FLSA.

Plaintiffs err in contending 29 Code of Federal Regulations section 553.28 is

limited only to non-statutory or contractual overtime or only for hours outside their regular work

schedule. Pls Opp. at 13:11-16; 14:5-10, Doc # 89 at 17-18. Such an interpretation ignores the

plain language of the regulation and is unsupported by any authority limiting the section in such a

manner. Section 553.28(c) provides other compensatory time may be paid for hours earned

and accrued in excess of a standard established by the personnel policy or practice of any

employer, or by custom[.] Nowhere in subsection (c) does the regulation limit such hours

worked to overtime hours or hours in excess of a regular work schedule. The fact that Plaintiffs

illustrated its argument with a single mere example drawn from a secondary source, while failing

to provide any case or statutory authority to support its argument, demonstrates that Plaintiffs

argument lacks legal support. Pls Opp. at 13, fn. 6, Doc # 89 at 17.

Section 553.28s plain meaning cannot be interpreted as narrowly as Plaintiffs

contend. To the contrary, the hours Plaintiffs spent working their allegedly unpaid straight time



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hours falls squarely within section 553.28, subdivision (c) because those hours were worked in

excess of the furlough policys reduced work schedule. Plaintiffs contend that section 553.28

does not apply because Plaintiffs work schedules did not change from the schedule they worked

prior to the furlough policys implementation. Pls Opp. at 14:26-28, Doc # 89 at 14. While the

schedule may not have changed, the fact remains that Plaintiffs worked in excess of the reduced

work schedule implemented by Defendants furlough policy. Plaintiffs themselves acknowledge

Plaintiffs worked full schedules during the furlough program, despite the fact the furlough

program implemented a reduction in work hours. Pls MSJ at 9:1-2, 17:9, Doc # 77 at 13, 21.

In evidence submitted by Plaintiffs in support of their motion for summary judgment, Plaintiffs

rely on a series of documents produced by DPA and the SCO regarding the implementation of

furlough programs. PML 2009-007, issued on February 3, 2009, explains that [f]or posted

positions in 24/7 facilities: management will work with employees to determine which two days

in the month will be taken off. When this is not operationally feasible and would jeopardize

security, health or safety, management will work with employees to select time off in the future.

However, deferring furlough days for future use shall only be done after all other options have

been evaluated and proven unworkable. See Ex. 14 to Harrison Decl., Doc # 78-14 at 2.

Whether or not the hours at issue are deemed overtime or are hours worked outside of a regular

schedule, no dispute exists that the hours at issue in this case were worked in excess of

Defendants personnel policy or practice. Accordingly, section 553.28 authorizes providing for

such hours in the form of other compensatory time.

Second, contrary to Plaintiffs contention, section 553.28 applies even when

overtime is worked in the same work period. Pls Opp. at 16:1, Doc # 89 at 20. Plaintiffs offer

no authority to support its contention that section 553.28 is inapplicable during work periods

where overtime was worked. Pls Opp. at 4:15-18, Doc # 89 at 8. InParker v. City of New York,

the Southern District Court of New York determined that the defendant appropriately paid

plaintiffs in the form of other compensatory time for non-overtime hours between 35 and 40 per

workweek, even in workweeks where statutory overtime was worked. Parker v. City of New

York, 2008 WL 2066443, *2-6 (S.D.N.Y. 2008). The plaintiffs inParkeralleged that non-



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overtime hours worked should have been paid in the form of cash when overtime was worked in

the same workweek. Id. at 1. TheParkercourt found that payment of other compensatory time

for the plaintiffs non-overtime hours worked was permissible, even when overtime was worked

in the same workweek, stating, the Court finds that [29 C.F.R.] Section 553.28, read in its

entirety, supports the position that the FLSA permits but does not require the use of compensatory

time as compensation for gap-time hours in overtime workweeks. Id. at 4

Plaintiffs reliance upon DOL Opinion Letter FLSA 2004-10 is also unavailing

because the Opinion Letter, ostensibly discussing a minimum wage matter, made mere

conclusory statements about the form of compensation for non-overtime hours worked. The

Opinion Letters main focus discussed an employers obligation to comply with the FLSAs

minimum wage requirements for non-overtime hours worked, and merely concluded, in dicta and

without any analysis, that straight time compensation should be paid in cash. Furthermore, the

Opinion Letter contains no discussion of the effect of section 553.28.

The DOLs interpretation of its own federal regulations is not entitled Chevron-

style deference. Chevron U.S.A., Inc., v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984); see Christensen v. Harris County, 529 U.S. 576, 587 (2000) (Here, however, we

confront an interpretation contained in an [DOL] opinion letter, not one arrived at after, for

example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those

in opinion letters do not warrant Chevron-style deferenceInstead, interpretations contained

in formats such as opinion letters are entitled to respect under our decision in Skidmore v. Swift

& Co., 323 U.S. 134, 140, 89 L. Ed. 124, 65 S. Ct. 161 (1944), but only to the extent that those

interpretations have the power to persuade, ibid. (citingReno v. Koray, 515 U.S. 50, 61, 132 L.

Ed. 2d 46, 115 S. Ct. 2021 (1995);EEOC v. Arabian American Oil Co., 499 U.S. 244, 256-258,

(1991); Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 157 (1991); 1

K. Davis & R. Pierce, Administrative Law Treatise 3.5 (3d ed. 1994))). In fact, addressing the

same opinion letter cited by Plaintiffs here, and indeed, the same language quoted in Plaintiffs

Opposition, theParkercourt expressly declined to defer to the DOLs interpretation, finding the

opinion letters conclusory statements related to the form of compensation for non-overtime



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hours worked were unpersuasive because section 553.28 is unmistakably and unambiguously

permissive rather than mandatory. See Christensen, 529 U.S. at 587-88 (declining to defer to

DOL's interpretation of a regulation contained in an opinion letter where DOL interpreted a

permissive regulation as prohibiting a mandatory compensatory time usage policy). Parker,

2008 WL 2066443 at *5.

Finally, Plaintiffs cite no authority in support of its proposition that section 553.28

is limited only to contractual overtime hours. Plaintiffs near-verbatim recitation of a single

example of other compensatory time from a non-current edition of a privately published book

on the Fair Labor Standards Act cannot substitute for the plain wording of the regulation, or be

interpreted as a mandatory, blanket limitation upon the compensation permitted by section

553.28. Pls Opp. at 13 n. 6, Doc # 89 at 17 (citing The FLSA Users Manual, 3d Ed. by Will

Aitchison (2002) at 161-64).

Neither Plaintiffs nor Defendants dispute that some Plaintiffs worked overtime

hours during the time the furlough policy was in effect. Neither Plaintiffs nor Defendants dispute

that the furlough policy implemented a reduced work schedule program, and, in some instances,

Plaintiffs worked hours in excess of the standard established by that program. However,

Plaintiffs err in contending they were deprived straight time compensation for those excess hours

worked because each hour was compensated, just at a reduce rate, and additionally, Plaintiffs

received compensation for those excess hours in the form of paid time off or other compensatory

time as allowed under section 553.28.

C. Defendants Motion For Summary Judgment Should Be Granted Because There IsNo Genuine Dispute Of Material Fact Establishing Plaintiffs Standing To File SuitFor FLSA Record Keeping Violations.

Plaintiffs Opposition fails to address Defendants underlying contention that

Plaintiffs lack standing to bring an action alleging violation of the FLSAs recordkeeping

requirements. Instead, Plaintiffs merely assert this Court is not precluded from recognizing the

violation if the Court views the instant case from the perspective ofAnderson v. Mt. Clemens

Pottery Co., 328 U.S. 680 (1946). Pls Opp. at 12:25-27, Doc # 89 at 16. Plaintiffs failure to

address the standing argument, while simultaneously relying on a case that has since been



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superseded by statute, confirms Plaintiffs inability to seek relief upon its third cause of action.

That Plaintiffs are barred from alleging a violation of the recordkeeping provisions

of 29 United States Code section 211, subdivision (c) is undisputed. The FLSA expressly vests

the Secretary of Labor with the exclusive authority to enforce any alleged violations of the

recordkeeping requirements. Elwell v. Univ. Hosps. Home Care Servs., 276 F.3d 832, 843 (6th

Cir. 2002). Under section 217, the Secretary of Labor is empowered to initiate injunction

proceedings to restrain any violation of 29 United States Code section 215, including section 215,

subdivision (a)(5). Powell v. Florida, 132 F.3d 677, 678 (11th Cir. 1998), cert. denied, 524 U.S.

916 (1998). Section 215(a)(5) makes it unlawful for an employer to fail to comply with the

recordkeeping requirements contained in Section 211, subdivision (c). Id.

Plaintiffs reliance onAnderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946),

to support its recordkeeping argument is inapposite. Notwithstanding thatAnderson has been

superseded by statute2, the Court inAnderson did not discuss the FLSAs recordkeeping

violations as a separate cause of action. Instead, as Plaintiffs Opposition points out, the

Anderson Court merely stated that where the employer failed to maintain accurate records, the

employer cannot object to the lack of precision inherent in the calculation of damages for unpaid

overtime. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 688 (1946). Plaintiffs action for

prospective declaratory relief in the instant case precludes the calculation or award of back-pay.

Moreover, the instant action seeks separate and independent declaratory relief on the FLSAs

recordkeeping statutes. Plaintiffs argument fails because Plaintiffs erroneously conflate a

separate, independent cause of action seeking declaratory relief upon a violation of the FLSAs

recordkeeping provisions with unrelated case authority describing how to calculate back-pay

damages.

Even if Plaintiffs had the right to enforce the FLSA recordkeeping requirements, a

claim Defendants deny, Defendants have not violated any of the requirements under section 211,

subdivision (c). The FLSA requires the following information be maintained as part of an

employees basic records, which include: (1) full name and social security number; (2) address

2SeeIBP, Inc. v. Alvarez, 546 U.S. 21, 41 (2005)



15/15

KRONICK,

MOSKOVITZ,

TIEDEMANN &

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959402.1 - 1 1 - Case No. 3:09-cv-09-05887-VRW


with zip code; (3) birth date if employer is younger than 19; (4) sex and occupation; (5) time and

day of week when employees workweek begins; (6) hours worked each day; (7) total hours

worked each workweek; (8) basis on which employees wages are paid; (9) regular hourly pay

rate; (10) total daily or weekly straight time earning; (11) total overtime earnings for the

workweek; (12) all additions to or deductions from the employees wages; (13) total wages paid

each pay period; and (14) date of payment and the pay period covered by the payment. 29 U.S.C.

211, subd. (c). There is nothing in the statute or case law, which requires the Defendants to

demarcate the corresponding pay period. Accordingly, Defendants motion for summary

judgment and/or partial summary judgment should be granted because Plaintiffs lack standing to

bring this claim

III.

CONCLUSION

For the foregoing reasons, State Defendants motion for summary judgment be

granted in its entirety.

Dated: December 30, 2010 KRONICK, MOSKOVITZ, TIEDEMANN & GIRARDA Law Corporation

By: /s/ David W. TyraDavid W. TyraKristianne T. SeargeantAttorneys for Defendants/RespondentsGovernor ARNOLD SCHWARZENEGGER,DEBBIE ENDSLEY, MATTHEW CATE,BERNARD WARNER and STEPHEN MAYBERG

Dated: December 30, 2010 DEPARTMENT OF PERSONNEL ADMINISTRATION

By: /s/ Will M. YamadaWill M. YamadaAttorneys for Defendants/RespondentsGovernor ARNOLD SCHWARZENEGGER,DEBBIE ENDSLEY, MATTHEW CATE,BERNARD WARNER and STEPHEN MAYBERG


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