Christopher Booher v. Jetblue Airways Corporation

Northern District of California, cand-4:2015-cv-01203

ORDER by Judge Jeffrey S. White granting in part and denying in part {{60}} Motion for Partial Summary Judgment; granting in part and denying in part {{63}} Motion for Summary Judgment. (jswlc2S, COURT STAFF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHRISTOPHER BOOHER and PATRICIA Case No. 15-cv-01203-JSW REID, individually, on behalf of others 8 similarly situated, and on behalf of the general public, ORDER REGARDING CROSS- 9 MOTIONS FOR SUMMARY Plaintiffs, JUDGMENT 10 v. Re: Dkt. Nos. 60, 63 11 JETBLUE AIRWAYS CORP., 12 Northern District of California Defendant. United States District Court 13 14 Now before the Court is the motion for partial summary judgment filed by Plaintiffs 15 Christopher Booher and Patricia Reid, on behalf of a putative class ("Plaintiffs") and the cross- 16 motion for partial summary judgment filed by Defendant JetBlue Airways Corp. ("JetBlue"). 17 Having carefully reviewed the parties' papers and considered their arguments and the relevant 18 authority, the Court hereby GRANTS IN PART and DENIES IN PART both parties' motions. 19 BACKGROUND 20 Plaintiff Booher was a flight attendant for JetBlue from 2003 through October 2012. (See 21 Second Amended Complaint ("SAC") ¶ 5.) Plaintiff Reid was a flight attendant for JetBlue from 22 2011 through August 2015. (Id. ¶ 7.) JetBlue provides air transportation and operates flights 23 throughout the country, including from multiple airports in California, including San Francisco 24 International Airport, Los Angeles International Airport, Oakland International Airport, Burbank 25 Bob Hope Airport, Long Beach Airport, and San Diego International. (Id. ¶ 9.) Plaintiffs contend 26 that JetBlue paid its flight attendants as hourly employees at hourly rates based on seniority. (Id. 27 ¶¶ 13–14.) JetBlue currently employs approximately 3,692 flight attendants based in the United 28 States. (See Declaration of Julia Garcia ("Garcia Decl.") ¶ 2.) 1 Every month JetBlue's flight attendants receive an information packet ("Bid Packet") that 2 provides a listing of all available flight pairings ("Pairings"), a pre-planned sequence of flights that 3 may consist of one or more flight segments or one or more on duty times in which attendants are 4 not in flight. (See Declaration of Steven Killeen ("Killeen Decl.") ¶¶ 2–3, Ex. A at 118:12-20, Ex. 5 B at 133:9–134:2.) Once they have reviewed the Bid Packets, flight attendants submit their 6 preferences for specific Pairings as a bid from which their monthly schedule is generated. Flight 7 attendants' schedules fluctuate and depend upon their preferences and the seniority-based bid 8 system. (Garcia Decl. ¶ 3.) 9 Generally, a flight attendant reports to the airport at a designated report time to begin the 10 Pairing, typically one hour before the first flight time. (Killeen Decl. Ex. C at 34:17–35:7.) 11 Following a short briefing with the rest of the crew, the flight attendant reports to the departure 12 gate in advance of passenger boarding. (Id. at 42:6–15.) Then the crew performs its duties to Northern District of California United States District Court 13 ensure that the cabin is ready to receive passengers and assists with the boarding process, which 14 usually begins about 35 minutes prior to scheduled departure. (Id. at 44:8–45:5.) After 15 passengers have boarded and the pilot has received clearance, the pilot releases the brake and 16 pushes back from the gate (Block Out). (Id. at 8:18–21.) Upon arrival at the destination (Block 17 In), the flight attendant assists with deplaning the passengers and may assist with cleaning the 18 aircraft cabin. (Id. at 52:1–53:24.) The Duty Period ends fifteen minutes after the Block In 19 associated with the last flight segment. (Id. at 58:22–59:1.) 20 For Duty Periods with multiple flight segments, there is time between one segment's 21 arrival and the next segment's departure time, referred to as "Turn" or "Ground" time. (Id. at 22 27:13–28:7.) During the Turn time, flight attendants are generally free to attend their own 23 activities without job duties, but must report to the next gate 45 minutes before departure time. 24 (Id. at 54:4–10, 61:8–14.) JetBlue considers Turn time to be duty time for compensation purposes. 25 (Id. at 55:18–56:1.) However, if the flight attendant's Duty Period ends in a destination other than 26 home, the attendant is released from work for a Layover, rest time which is not considered duty 27 time. (Id. at 29:8–10.) 28 Although Duty Periods include both work done in-flight and on the ground, Plaintiffs 2 1 allege that JetBlue pays only the hourly rates for time actually in the air. Plaintiffs thus brought 2 their first claim for relief seeking unpaid wages for time at California airports. This Court 3 previously addressed Plaintiffs' arguments and granted JetBlue's cross-motion for partial 4 summary judgment on that claim. Booher v. JetBlue Airways Corp., C-15-012303 JSW, 2016 WL 5 1642929, at *2–3 (N.D. Cal. 2016). The Court found Plaintiffs are paid for all hours worked, 6 based on the minimum guarantee in the Bid Packet and considering all hours actually worked. Id. 7 at *3. 8 Plaintiffs now move for partial summary judgment on their remaining claims: (1) failure to 9 pay overtime wages in violation of California Labor Code sections 510 and 1194; (2) wage time 10 penalties in violation of California Labor Code section 201, 202, and 203; (3) failure to provide 11 itemized wage statements in violation of California Labor Code section 226; (4) civil penalties 12 pursuant to California's Private Attorneys General Action of 2004 ("PAGA"), California Labor Northern District of California United States District Court 13 Code section 2698; and (5) violations of California Unfair Competition law ("UCL"), California 14 Business and Professions Code section 17200, et seq. JetBlue opposes and cross-moves for partial 15 summary judgment on the same claims. 16 The Court shall address specific, additional facts, as necessary, in the remainder of this 17 order. 18 ANALYSIS 19 A. Legal Standard on Motion for Summary Judgment. 20 "A party may move for summary judgment, identifying each claim or defense. . . on 21 which summary judgment is sought." Fed. R. Civ. P. 56(a). A principal purpose of the summary 22 judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. 23 Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment, or partial summary judgment, is 24 proper "if the movant shows that there is no genuine dispute as to any material fact and the movant 25 is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "In considering a motion for 26 summary judgment, the court may not weigh the evidence or make credibility determinations, and 27 is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. 28 Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), abrogated on other grounds by Shakur v. Schriro, 514 3 1 F.3d 878, 884-85 (9th Cir. 2008). 2 The party moving for summary judgment bears the initial burden of identifying those 3 portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue 4 of material fact. Celotex, 477 U.S. at 323; see also Fed. R. Civ. P. 56(c). An issue of fact is 5 "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non- 6 moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" 7 if it may affect the outcome of the case. Id. at 248. If the party moving for summary judgment 8 does not have the ultimate burden of persuasion at trial, that party must produce evidence which 9 either negates an essential element of the non-moving party's claims or that party must show that 10 the non-moving party does not have enough evidence of an essential element to carry its ultimate 11 burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 12 (9th Cir. 2000). Northern District of California United States District Court 13 Once the moving party meets its initial burden, the non-moving party must "identify with 14 reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 15 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th 16 Cir. 1995)). It is not the Court's task "to scour the record in search of a genuine issue of triable 17 fact." Id.; see also Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but 18 it may consider other materials in the record."). If the non-moving party fails to point to evidence 19 precluding summary judgment, the moving party is entitled to judgment as a matter of law. 20 Celotex, 477 U.S. at 323. 21 B. The Overtime Claim. 22 Under California law, employers must pay a minimum rate of 1.5 times the regular rate of 23 pay for all work in excess of eight hours in one workday. See Cal. Lab. Code §§ 510, 1194. 24 Plaintiffs allege that they were inadequately compensated for duty periods in which they worked 25 more than eight hours in California, including time spent on intra-California flights. 26 California overtime laws "speak broadly," and "apply by their terms to all employment in 27 the state." Sullivan v. Oracle Corp., 51 Cal. 4th 1191, 1197 (2011) ("Sullivan I"). The California 28 Supreme Court has held that even visiting, nonresident employees may claim overtime for "entire 4 1 days and weeks worked in California." Sullivan I, 51 Cal. 4th at 1199–1200; see also Tidewater 2 Marine W., Inc. v. Bradshaw, 14 Cal. 4th 557, 578 (1996). The Sullivan I court relied on the 3 relevant statutory language and legislative history to conclude that California has "expressed a 4 strong interest in governing overtime compensation for work performed in California." Sullivan I, 5 51 Cal. 4th at 1197–1201. This Court finds, therefore, that California overtime laws apply to 6 Plaintiffs with respect to entire days worked in California. 7 It is undisputed that Plaintiffs rely on in-flight time, in addition to on-the-ground hours, to 8 qualify for overtime pay. (See Pl. Motion at 10:15–16, Exs. 11–17.) The issue before the Court is 9 whether hours spent flying between California airports should be considered hours "worked in 10 California." JetBlue argues that they should not, because: (1) California labor laws are preempted 11 by federal laws regulating air travel; (2) Plaintiffs' intra-California flights included time spent 12 flying over federal enclaves or waters; and (3) requiring JetBlue to comply with California's Northern District of California United States District Court 13 overtime laws would violate the Dormant Commerce Clause. The Court shall address each 14 argument in turn. 15 1. Federal Preemption. 16 The Court rejects JetBlue's argument that California labor laws cannot apply to flight 17 attendants during air travel. The Court finds the reasoning in Bernstein v. Virgin Am., Inc. 18 persuasive. 227 F. Supp. 3d 1049, 1076–77 (N.D. Cal. 2017). Like in Bernstein, JetBlue cites the 19 Federal Aviation Act ("FAA") section 40103, which states that the "United States Government 20 has exclusive sovereignty of airspace of the United States." 49 U.S.C. § 40103(a)(1). This Court 21 agrees that, "[a]lthough the federal government has exclusive sovereignty over the United States 22 airspace and aviation safety, 'Congress has not occupied the field of employment law in the 23 aviation context and. . . the FAA does not confer upon the agency the exclusive power to regulate 24 all employment matters involving airmen.'" Id. at 1076 (quoting Ventress v. Japan Airlines, 747 25 F.3d 716, 722 (9th Cir. 2014)). 26 JetBlue provides two conflicting authorities—a footnote in a case from the Northern 27 District of Illinois, Hirst v. Skywest, Inc., No. 15 C-02036, 2016 WL 2986978, at *10, n.14 (N.D. 28 Ill. May 24, 2016), and dicta from a case in this District, Oman v. Delta Air Lines, Inc., 230 F. 5 1 Supp. 3d 986, 991 (N.D. Cal. 2017). In Hirst, the court noted that "it might be argued that the 2 [Illinois Minimum Wage Law] does not apply to any portion of the time [flight attendants] spend 3 in flight over the state of Illinois because that airspace is not within the state's sovereignty." 2016 4 WL 2986978, at *10, n.14. In Oman, the court assumed that only work on the ground, as opposed 5 to work that "occurred in federal airspace governed by federal regulations," was work in 6 California for the purposes of establishing wages earned under California law. 230 F. Supp. 3d at 7 991. Nther court provided any explanation to support its reasoning. This Court, therefore, finds 8 both Hirst and Oman less persuasive than Bernstein. See Bernstein, 227 F. Supp. 3d at 1076–77 9 (also finding Hirst unpersuasive). 10 JetBlue's final argument relies on a Senate Report, which indicates that the airline industry 11 "is unique among transportation industries in its relation to the federal government—it is the only 12 one whose operations are conducted almost wholly within federal jurisdiction." (See Request for Northern District of California United States District Court 13 Judicial Notice ("RJN"), Ex. B, S. Rept. 1811, 85th Cong., 2d Sess., at 5 (1958).) Again, the 14 Court is not convinced that just because Congress has exclusive sovereignty over the United States 15 airspace, means that it occupies the entire field of employment law in the aviation context. See 16 Ventress, 747 F.3d at 722. Moreover, the quoted Senate Report merely states that the airline 17 industry is "conducted almost wholly within federal jurisdiction," which leaves room for the 18 application of state labor laws. (See RJN, Ex. B, S. Rept. 1811, 85th Cong., 2d Sess., at 5 (1958).) 19 2. Mt. Clemens Burden Shifting. 20 Based on JetBlue's flight records, Plaintiffs allege that they worked a total of 32 days in 21 which they flew only intra-California flights and worked Duty Periods lasting over eight hours.1 22 (See Pl. Motion Exs. 11–17.) The records show the time and location of arrivals and departures, 23 24 1 JetBlue argues that Plaintiffs improperly include Turn time, because aside from one hour 25 of required duties (15 minutes after Block In and 45 minutes prior to departure time), the flight attendants were generally available for their own activities during Turns. (See Killeen Decl. Ex. C 26 at 54:4–10, 61:8–14.) The Court is not persuaded by this argument, given that JetBlue considers Turn time to be duty time for compensation purposes. (See id. at 55:18–56:1.) Moreover, even if 27 all Turns over one hour are treated as one hour of compensable work, Plaintiffs still worked over eight hour Duty Periods on 31 of their 32 alleged overtime days. (See Declaration of Valentin 28 Estevez ("Estevez Decl.") Ex. A at 12.) 6 1 as well as the total work time, but do not include in-flight geographic data. (See id.) Thus, 2 JetBlue argues that Plaintiffs have failed to show the time spent flying between California airports 3 actually occurred within the airspace above California, rather than the airspace above federal 4 enclaves or waters. See Taylor v. Lockheed Martin Corp., 78 Cal. App. 4th 472, 478 (2000) ("A 5 federal enclave is land over which the federal government exercises legislative jurisdiction."). 6 Plaintiffs contend that pursuant to the Supreme Court decision in Anderson v. Mt. Clemens Pottery 7 Co., they should not be barred from recovery by JetBlue's failure to keep more detailed records. 8 328 U.S. 680 (1946). 9 In Mt. Clemens, the Supreme Court established a burden-shifting test to be applied when 10 an employee is unable to prove the precise extent of uncompensated work due to the employer's 11 "inaccurate or inadequate" records. 12 In such a situation we hold that an employee has carried out his Northern District of California United States District Court burden if he proves that he has in fact performed work for which he 13 was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and 14 reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work 15 performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the 16 employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only 17 approximate. 18 Id. at 687–88. The Court reasoned that an employee should not be penalized for an employer's 19 poor record-keeping, as that "would place a premium on an employer's failure to keep proper 20 records in conformity with his statutory duty; it would allow the employer to keep the benefits of 21 an employee's labors without paying due compensation as contemplated by the Fair Labor 22 Standards Act." Id. 23 Here, Plaintiffs allege that they have met their initial burden by showing 32 days in which 24 they worked over eight hours in and between California airports, as indicated by JetBlue's records. 25 (See Pl. Motion Exs. 11–17.) JetBlue asserts that its records are neither inaccurate nor inadequate, 26 because they identified the amount of time Plaintiffs were on duty. Without further explanation, 27 JetBlue argues that the records thus "allowed Plaintiffs to determine when they were working 28 7 1 within California." (See Def. Cross-Motion at 24:2–17.) It is not clear to the Court how the 2 records, without flight path data, would allow Plaintiffs to more precisely prove the hours in which 3 they were working within California. Instead, the Court finds the records provide a just and 4 reasonable inference that Plaintiffs did work full days within California in which they were 5 eligible for overtime compensation under California law. 6 Because neither party is able to provide evidence of the precise amount of work 7 performed—actual flights paths with contemporaneous time stamps—the burden shifts to JetBlue 8 to negative the reasonableness of Plaintiffs' theory. JetBlue provides two examples of flight paths 9 that primarily travel over the Pacific Ocean, from San Francisco to Long Beach and from Oakland 10 to Long Beach. (See Declaration of Imran Rahman ("Rahman Decl.") Exs. A, B.) Both examples 11 were scheduled for flights in 2016, and were only one of many possible routes between the 12 destinations. (Id. ¶ 11.) JetBlue alleges that, between September 1, 2016 and December 31, 2016, Northern District of California United States District Court 13 454 of 475 flights from San Francisco to Long Beach, and 366 of 546 flights from Oakland to 14 Long Beach, were scheduled to fly the example routes, respectively. (Id.) However, JetBlue also 15 states that these scheduled flights "take various routes depending on weather conditions, air traffic, 16 and other variables," and "may also take an inland route." (Id. ¶ 5.) 17 JetBlue does not provide any information regarding Plaintiff's scheduled flight paths, 18 actual flights paths, or JetBlue's standard routes during the relevant time period. Moreover, 19 JetBlue's two examples fail to account for the fact that during the 32 alleged overtime days, 20 Plaintiffs also flew to and from Sacramento, and in both the north and south directions. (See id. ¶ 21 5; see also Pl. Motion Exs. 11–17.) Therefore, the Court finds that JetBlue has failed to negative 22 the reasonableness of Plaintiffs' theory. JetBlue's two example flight paths are insufficient to 23 show it is unreasonable that at least one of Plaintiffs' thirty-two alleged overtime days consisted of 24 intra-California flight routes within the state's borders. Accordingly, the Court finds Plaintiffs are 25 entitled to damages on their overtime claim. 26 3. The Dormant Commerce Clause. 27 The Dormant Commerce Clause "ensures that state autonomy over 'local needs' does not 28 inhibit 'the overriding requirement of freedom for the national commerce.'" Sam Francis Found. 8 1 v. Christies, Inc., 784 F.3d 1320, 1323 (9th Cir. 2015) (quoting Great Atlantic & Pacific Tea Co. 2 v. Cottrell, 424 U.S. 366, 371 (1976)). "If a statute 'regulates even-handedly to effectuate a 3 legitimate local public interest, and its effects on interstate commerce are only incidental, it will be 4 upheld unless the burden imposed on such commerce is clearly excessive in relation to the 5 putative local benefits.'" Sullivan v. Oracle Corp., 662 F.3d 1265, 1271 (9th Cir. 2011) ("Sullivan 6 II") (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)). 7 JetBlue argues that applying California's overtime law to flight attendants places an undue 8 burden on JetBlue, in violation of the Dormant Commerce Clause. This argument is clearly 9 precluded by Ninth Circuit law. In the context of overtime compensation, the court found that 10 "California applies its Labor Code equally to work performed in California, whether that work is 11 performed by California residents or by out-of-state residents. There is no plausible Dormant 12 Commerce Clause argument when California has chosen to treat out-of-state residents equally Northern District of California United States District Court 13 with its own." Sullivan II, 662 F.3d at 1271. JetBlue asserts that Sullivan II does not apply, 14 because Plaintiffs failed to show that they worked in California for over eight hours in a single 15 workday. As discussed, the Court finds, by including flight time between California airports, 16 Plaintiffs have met their burden to demonstrate they worked full days in California such that they 17 were eligible for overtime pay. 18 Accordingly, the Court GRANTS Plaintiffs' and DENIES JetBlue's motions with respect 19 to Plaintiffs' second claim for relief. 20 C. Waiting Time Penalties. 21 Plaintiffs also allege that they are entitled to waiting time penalties under California Labor 22 Code section 203. Cal. Lab. Code § 203(a). Section 203 states that if "an employer willfully fails 23 to pay. . . any wages of an employee who is discharged or who quits," the employee's wages 24 continue as a penalty for not more than 30 days. Id. The term "willful" does not require "a 25 deliberate evil purpose to defraud," but "merely means that the employer intentionally failed or 26 refused to perform an act which was required to be done." Armenta v. Osmose, Inc., 135 Cal. 27 App. 4th 314, 325 (2005). 28 Plaintiffs argue that JetBlue willfully failed to pay overtime as required by California law, 9 1 because its records show Plaintiffs were eligible for overtime, but its payment structure does not 2 provide overtime pay. (See Motion Exs. 10–17.) As discussed, the Court found JetBlue's records 3 do support Plaintiff's allegation that they worked full days in California such that they were 4 eligible for overtime pay. JetBlue does not dispute that overtime is not part of its payment 5 structure. (See Motion Ex. 10 at JB002193; Pl. Reply at 6:13–27.) Further, JetBlue provides no 6 alternative theory to explain why it should not be liable for waiting time penalties. 7 Accordingly, the Court GRANTS Plaintiffs' and DENIES JetBlue's motions with respect 8 to Plaintiffs' third claim for relief. 9 D. The Wage Statement Claim. 10 California Labor Code section 226 provides, in relevant part, that "[a]n employer, 11 semimonthly or at the time of each payment of wages, shall furnish to his or her employee. . . an 12 accurate itemized statement in writing showing. . . total hours worked by the employee. . . [and] Northern District of California United States District Court 13 all applicable hourly rates in effect during the pay period and the corresponding number of hours 14 worked at each hourly rate by the employee." Cal. Lab. Code § 226(a). Plaintiffs allege that 15 JetBlue's wage statements failed to meet Section 226 requirements, because the statements only 16 listed hours and hourly rates for in-flight time, despite Plaintiffs' significant on-the-ground duties. 17 JetBlue argues that Section 226 does not apply to Plaintiffs, because they principally worked 18 outside of California during the relevant time periods.2 19 Several courts in this District have already addressed whether Section 226 applies to airline 20 employees whom work a portion of their hours in California. In Ward v. United Airlines, Inc., the 21 court held that Section 226 is subject to the "job situs" test, which limits the statute's application 22 to employees whom work principally in California. No. C 15-02309 WHA, 2016 WL 3906077, at 23 *3–5 (N.D. Cal. July 19, 2016) (Alsup, J.). The court reasoned that finding otherwise would 24 25 2 The California Supreme Court has yet to establish a clear rule regarding claims under 26 Section 226. Sullivan I explicitly limited its holding to overtime compensation for work performed in California. The Court provided that "California's interest in the content of an out-of- 27 state business's pay stubs, . . . for example, may or may not be sufficient to justify choosing California law over the conflicting law of the employer's home state. No such question is before 28 us." Sullivan I, 51 Cal. 4th at 1201. 10 1 constitute extraterritorial application of California wage-and-hour laws. Id. at *3. The court 2 further rejected plaintiffs' argument that Section 226 governs wage statements issued to 3 employees residing in California regardless of where their work occurred, because it would yield 4 "absurd results" by forcing out-of-state employers to comply with the laws of each state of 5 residence of its employees, and depriving in-state wage earners of protection solely based on out- 6 of-state residence. Id. at *4. 7 In Bernstein v. Virgin Am., Inc., the court rejected Ward's job situs test as dispositive. 227 8 F. Supp. 3d 1049, 1059–61, 1066 (N.D. Cal. 2017) (Tigar, J.). Instead, the Bernstein court opted 9 for a multi-factored approach.3 Id. Pursuant to Tidewater and Sullivan I, the court found relevant 10 factors include whether: (1) the employee resides in California; (2) the employee receives pay in 11 California; (3) the employee has exclusive or principal job situs in California; (4) the employer 12 resides in California; and (5) the employee's absence from California was temporary in nature. Northern District of California United States District Court 13 Bernstein, 227 F. Supp. 3d at 1059–60. The court explained that, under Tidewater, while an 14 employee who meets the first three factors "presumptively enjoys the protections of California 15 wage orders," an employee does not need to meet all three factors, including job situs, to be 16 protected by California law. Id. at 1059 (emphasis added). Applying the Tidewater/Sullivan I 17 factors, the court found the parties had "deep ties" to California—plaintiffs were California 18 residents, Virgin was based and headquartered in California, and 88–99% of Virgin's daily flights 19 either departed from, or arrived in, California airports. Id. at 1060. Although plaintiffs spent only 20 about 25% of their total work time in California, which may have been insufficient to pass the job 21 situs test, the court found the "other compelling considerations" allowed plaintiffs to bring their 22 Section 226 claims. Id. at 1060–61. 23 Here, this Court finds Section 226 does not apply, either under Ward's job situs test or 24 25 3 The court in Oman also supported Bernstein's multi-factor approach, but ultimately based 26 its holding on a narrower de minimis analysis. 230 F. Supp. at 993–94 (Orrick, J.). The court distinguished the case from Ward and Bernstein by focusing on whether a de minimis amount of 27 work in California alone was sufficient to apply California law, without regard for other factors such as "the Flight Attendants' residence, an employer's California residence or other 'deep ties' 28 to California, or the performance of a significant amount of work in a particular pay period in California." Id. 11 1 Bernstein's multi-factor test. Like in Ward, Plaintiffs worked primarily outside of California, 2 spending 25.4% and 16.8% of their hours working in California, and 80.4% and 90% of their 3 workdays with some work at non-California airports. (See Estevez Decl. Ex. A at 5.) Further, 4 even if Ward is legal error, as Plaintiffs assert, the facts of this case are clearly distinguishable 5 from those in Bernstein. Unlike Virgin, which was headquartered in California, JetBlue is 6 headquartered in New York. (See Declaration of Julia Garcia ("Garcia Decl.") ¶ 2.) JetBlue's 7 Dispatch, Crew Scheduling, Crew Services, Inflight Standards, Payroll, Compensation, Human 8 Resources, and Legal departments are all located in New York. (See id. ¶ 3.) Only 7.3% of 9 JetBlue's daily flights depart from, or arrive at, California airports, as compared to 88–99% of 10 Virgin's daily flights. (See Rahman Decl. ¶ 8.) Moreover, JetBlue's flight attendants receive 11 initial training, and typically annual training, in JetBlue's Florida Support Center. (See Garcia 12 Decl. ¶ 6–7.) Thus, it is clear that the parties lack the same "deep ties" to California as found in Northern District of California United States District Court 13 Bernstein. See Bernstein, 227 F. Supp. 3d at 1060–61; see also Vidrio v. United Airlines, Inc., No. 14 CV15-7985 PSG (MRWx), 2017 WL 1034200, at *5 (C.D. Cal. Mar. 15, 2017) (finding Section 15 226 did not apply under the Bernstein test, because United lacked "deep ties" to California, as it 16 was not headquartered in California, only 18.34% of its domestic flights operated out of California 17 airports, and its California-based flight attendants begin and end comparatively few shifts in 18 California, and some do not work in California at all). 19 Accordingly, the Court GRANTS JetBlue's, and DENIES Plaintiffs', motion with respect 20 to Plaintiffs' fourth claim for relief. 21 E. The PAGA and UCL Claims. 22 Plaintiffs also bring derivative claims under the PAGA, Cal. Lab. Code § 2698, and the 23 UCL, Cal. Bus. & Profs. Code § 17200, et seq., based on their underlying overtime and improper 24 wage statement claims. For the same reasons already discussed, the Court finds Plaintiffs' PAGA 25 and UCL claims prevail as they relate to the overtime claim, and fail as they relate to the wage 26 statements claim. 27 Accordingly, with respect to Plaintiffs' fifth and sixth claims, the Court GRANTS 28 Plaintiffs' and DENIES JetBlue's motions as they relate to the overtime claim. The Court 12 1 GR RANTS JetB Blue's and DE ENIES Plain ntiffs' motioons as they reelate to the w wage statements claim. 2 CONCLU USION 3 For the foregoing reeasons, the Court C GRAN NTS IN PAR RT and DEN NIES IN PAR RT the 4 parrties' motion ns for partial summary ju udgment. Att this time, tthe Court onlly addressess the claims 5 witth respect to liability. To o the extent that Plaintifffs show dam mages for theeir overtime and waiting g 6 tim me penalty cllaims, the Co ourt is inclin ned to grant P Plaintiffs' caalculated aw wards, but will provide 7 Deefendants an opportunity to respond. Accordinglly, the Courtt requests that the partiess meet and 8 con nfer to determ mine a sched dule to brieff the issue off damages, aas well as anyy other remaaining issuess 9 to bring b this caase to resoluttion. 10 IT IS SO S ORDER RED. 11 Daated: Decemb ber 12, 2017 7 12 __________________________________________ Northern District of California United States District Court JEFFFREY S. W WHITE 13 Unnited States D District Judgge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 133