Avery v. TEKsystems, Inc.

• Court: District Court, N.D. California
• Decided: February 13, 2024
• Docket: 3:22-cv-02733
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BO AVERY, et al., Case No. 3:22-cv-02733-JSC

8 Plaintiffs, ORDER RE: PLAINTIFFS’ MOTION 9 v. TO CERTIFY CLASS

10 TEKSYSTEMS, INC., Re: Dkt. No. 63 Defendant. 11

12 13 Bo Avery, Phoebe Rodgers, Kristy Camilleri, and Jill Unverferth all worked as Recruiters 14 for TEKsystems, Inc. (“TEK”), an IT staffing company. Plaintiffs allege TEK improperly 15 classifies Plaintiffs and other Recruiters as exempt from California overtime, wage, and hour laws 16 and therefore illegally underpays Recruiters. Now pending before the Court is Plaintiffs’ motion 17 to certify a class of all current and former Recruiters employed by TEK from January 28, 2018 to 18 the final date of judgment and a subclass of all the class members who worked for TEK on or after 19 January 28, 2019 and are no longer employed by TEK and have not been employed by TEK for 20 more than 72 hours. (Dkt. No. 63.)1 Having carefully considered the briefing, and with the 21 benefit of oral argument on February 8, 2024, the Court certifies the class and subclass and 22 appoints Plaintiffs’ counsel as class counsel. Plaintiffs provide sufficient evidence for each 23 requirement of Federal Rule of Civil Procedure 23. TEK classifies all Recruiters as exempt from 24 overtime and other wage and hour laws, all Recruiters perform the same basic job duty, all work 25 under similar supervision, and all exercise similar amounts of independence and discretion. 26 27 1 BACKGROUND 2 TEK is an Information Technology “IT” staffing services company. (Dkt. No. 68-2 at 3.) 3 TEK provides “staff augmentation” services, in which TEK finds “a worker,” known as a 4 consultant, “to go work for a client” at the client’s office, either virtually or in person. (Id. at 4-5, 5 20.) Nearly all TEK’s employees are involved in “recruiting job positions” meaning they 6 “identify potential candidates who meet the requirements for an open position”—indeed, TEK has 7 46 job titles for recruiting positions in California. (Dkt. No. 64-1 at 6-7.) These job titles include 8 “Lead Recruiter,” “Lead Professional Recruiter,” “Lead Senior Recruiter,” “Professional 9 Recruiter,” “Recruiter II,” “Recruiting Lead,” “Account Recruiting Manager,” “Team Lead,” 10 “Recruiter Trainee,” and “Recruiter.” (Id.) Except for Recruiter Trainees, TEK classifies all of its 11 Recruiter job titles as exempt. (Id. at 9.) “Employees remain in the position of Recruiter Trainee 12 until they have completed all required training and demonstrated their ability to perform the job 13 titles of Recruiter.” (Id.) 14 Plaintiffs seek to certify a class and subclass consisting of only one of those job titles: 15 Recruiter. Recruiters “find people for jobs” for staff augmentation. (Id. at 4, 321.) Essentially, 16 Recruiters screen possible consultants to find those who match the provided job requirements. 17 ((Dkt. No. 64-5 at 32 (Recruiters “[s]creen[] consultants to gain insights into their skills, goals, 18 interests and provide[] aligned opportunities”); 48 (same); 72 (same); 96 (same); 127 (same).) 19 Account Managers decide whether to approve Recruiters’ chosen candidates. “Account 20 Managers are responsible for maintaining relationships with TEK’s clients.” (Dkt. No. 68-6 ¶ 8.) 21 Though Recruiters sometimes join the initial call with the client to learn about job openings, 22 Account Managers generally create the “requirement,” or “a description of a role that one of 23 [TEK’s] customers needs to fill.” (Dkt. Nos. 64-1 at 183-184; 68-4 ¶ 7.) Recruiters then find 24 candidates who match that “requirement,” and present those candidates to the Account Manager. 25 (Dkt. No. 64-1 at 56.) The Account Manager decides whether to present that candidate to the 26 client. (Dkt Nos. 68-5 ¶ 29; 68-7 ¶¶ 9, 23; 68-10 ¶ 19; 68-13 ¶ 17; 68-17 ¶ 19.) The client then 27 decides whether to interview the candidate. (Dkt. Nos. 64-1 at 625; 68-4 at ¶ 14; 68-9 ¶ 16.) If 1 preparation for that interview. (Dkt. Nos. 64-1 at 429, 623; 68-9 ¶ 16l; 68-10 ¶ 20.) If the client 2 hires the candidate (now called a “consultant”), TEK encourages Recruiters to check-in with that 3 consultant around once a month to see how the consultant is doing at the job. (Dkt. Nos. 64-1 at 4 1029; 68-10 ¶ 22; 68-9 ¶ 17.) Recruiters may also relay information to consultants or even inform 5 consultants they are fired from a position, though Recruiters do not play a role in hiring or firing 6 decisions. (Dkt. Nos. 64-1 at 1029; 68-4 (“I had to fire a consultant . . . While I am not the 7 decision maker, I am the messenger.”) 8 The Recruiter position is an entry level role.2 (Dkt. No. 64-4 at 154 (TEK’s “Recruiter 9 Interview Guide Job Aid” describing the Recruiter position as “an entry level role”), 278 10 (explaining most Recruiters are hired straight out of college and describing them as “Entry Level 11 College Grads”).) Recruiters are not required to have any sort of technical knowledge to be hired. 12 (Dkt. No. 64-1 at 157.) The average tenure of an employee who works as a Recruiter in California 13 is 1.21 years. (Id. at 986.) 14 All Recruiters’ performance is measured according to the same standards. TEK monitors 15 Recruiters according to “numerous metrics” including required weekly numbers of “G2s,” or 16 informational calls with candidates, “reference checks, meetings or meals with candidates, and the 17 number of candidates that Account Managers submitted to a TEKsystems client.” (Dkt. No. 64-1 18 at 1027, 1036. 1044, 1052, 1061, 1069, 1077.) The required numbers “were the same in every 19 branch in TEKsystems for recruiters.” (Id. at 170.) Supervisors closely tracked Recruiters’ 20 “spread”—or the net profit from each successfully placed consultant, indicating the difference 21 between what TEK bills the customer and what TEK pays, including the consultant’s salary and 22 the costs associated with finding the consultant for the position—and in some cases displayed 23 spread amounts in the office “from best to worst for everyone to see.” (Id. at 1027, 1036, 1052, 24 1061, 1069, 1077.) TEK’s internal database allows for Recruiters’ supervisors to see metrics such 25

26 2 At oral argument, TEK asserted the Recruiter position is not an entry level role because some Recruiters remain in the Recruiter role for many years. However, while some Recruiters stay in 27 the role longer than the average Recruiter tenure of 1.21 years, that does not change the evidence 1 as “spread,” “how many consultants” Recruiters talk to, and candidate “submittals” to clients “on a 2 daily basis.” (Id. at 201.) Each week Recruiters’ supervisors get a report on how each Recruiter is 3 doing. (Id. at 165.) 4 Recruiters are all paid according to a uniform pay scale: Recruiters receive an annual 5 salary and can receive commission and bonuses based on their achievement of standardized 6 performance metrics. (Dkt. Nos. 64-1 at 330; 64-4 at 37-38.) TEK uses the same job description 7 for all Recruiters. (Dkt. Nos. 64-1 at 333-34; 64-7 at 11-18.) 8 Plaintiffs move to certify: (1) a class of “[a]ll current and former Recruiters employed by 9 Defendant in California from January 28, 2018 to the final date of judgment;” and (2) a subclass of 10 “[a]ll Class Members who worked for Defendant as Recruiters on or after January 28, 2019 and 11 who are no longer employed by Defendant and have not been employed by Defendant for more 12 than 72 hours.” (Dkt. No. 63 at 8.) 13 DISCUSSION 14 Plaintiffs, as the party seeking class certification, “bear the burden of demonstrating that 15 they have met each of the four requirements of Federal Rule of Civil Procedure 23(a) and at least 16 one of the requirements of Rule 23(b).” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979–80 17 (9th Cir. 2011). Here, Plaintiff seeks certification under Rule 23(b)(3), which requires that 18 “questions of law or fact common to class members predominate over any questions affecting only 19 individual class members,” and “a class action is superior to other available methods for fairly and 20 efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). 21 Class-certification analysis must be “rigorous” and “may entail some overlap with the 22 merits of the plaintiff’s underlying claim.” Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 23 568 U.S. 455, 465–66 (2013) (cleaned up). However, “Rule 23 grants courts no license to engage 24 in free-ranging merits inquiries at the certification stage. Merits questions may be considered to 25 the extent—but only to the extent—that they are relevant to determining whether the Rule 23 26 prerequisites for class certification are satisfied.” Id. 27 I. SUBSTANTIVE CLAIMS OF PROPOSED CLASS 1 than 40 hours in a given workweek.” Mies v. Sephora U.S.A., Inc., 234 Cal. App. 4th 967, 976 2 (2015) (citing Cal. Lab. Code, § 510(a)) (cleaned up). “It also generally provides employees with 3 meal periods and rest breaks.” Id. However, California labor law excepts certain employees from 4 these requirements—both through statutes and orders of the Industrial Wage Commission. Id. 5 Plaintiffs contend they, along with proposed class and subclass members, have been denied 6 overtime pay, and related benefits, in violation of California Labor Code §§ 510, 1194, and 1198. 7 (Dkt. No. 1-2.) Defendant does not dispute that it did not pay overtime or provide meal periods 8 and rest breaks to purported class members, but instead assert all purported class members are 9 exempt from these provisions of the California Labor Code. 10 California law provides:

11 The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid . . . for 12 executive, administrative, and professional employees, if the employee is primarily engaged in the duties that meet the test of the 13 exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a 14 monthly salary equivalent to no less than two times the state minimum wage for full-time employment. 15 16 Cal. Labor Code § 515; see also Cal. Indus. Welfare Comm’n, Wage Order No. 4-2001, Cal. Code 17 Regs. tit. 8, § 11040(1)(A) (explaining the Wage Order’s overtime compensation requirements 18 “shall not apply to persons in administrative, executive, or professional capacities”). TEK asserts 19 its Recruiters are exempt from overtime requirements because they fall under the “administrative 20 exemption.” (Dkt. No. 68 at 29.) 21 The California Industrial Welfare Committee defines “[a] person employed in an 22 administrative capacity” as:

23 any employee:

24 (a) Whose duties and responsibilities involve . . . :

25 (I) The performance of office or non-manual work directly related to management policies or general business operations 26 of his/her employer or his employer’s customers; . . .

27 and independent judgment; and . . . 1 (d) Who performs under only general supervision work along 2 specialized or technical lines requiring special training, experience, or knowledge; or 3 (e) Who executes under only general supervision special assignments 4 and tasks; and

5 (f) Who is primarily engaged in duties that meet the test of the exemption. . . . The work actually performed by the employee during 6 the course of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together with 7 the employer’s realistic expectations and the realistic requirements of the job . . . 8 (g) Such employee must also earn a monthly salary equivalent to no 9 less than two (2) times the state minimum wage for full-time employment. 10 Cal. Code Regs. tit. 8, § 11040(1)(A)(2). For purposes of the administrative exemption, 11 “primarily” “means more than one-half the employee’s work time.” Cal. Code Regs. tit. 8, § 12 11040(2)(N). 13 Defendant bears the burden of establishing the administrative exemption applies to its 14 Recruiters. See Harris v. Superior Ct., 53 Cal. 4th 170, 182 (2011) (describing the administration 15 exemption to overtime compensation requirements as an “affirmative defense”). So, for 16 Recruiters to qualify as “administrative” employees and therefore be exempt from overtime, meal, 17 and rest break requirements, TEK must establish, among other things, (1) Recruiters’ duties and 18 responsibilities involve the performance of work “directly related to management policies or 19 general business operations of his/her employee or his employer’s customers;” (2) Recruiters 20 “customarily and regularly exercise discretion and independent judgment;” and (3) Recruiters 21 “perform[] under only general supervision work along specialized or technical lines requiring 22 special training, experience, or knowledge” or “execute[] under only general supervision special 23 assignments and tasks.” Cal. Code Regs. tit. 8, § 11040(1)(A)(2). Further, TEK must establish 24 Recruiters perform such duties “primarily,” or more than half of their work time and Recruiters’ 25 salary meets minimum salary requirements. Id. 26 II. RULE 23(A) 27 “A representative plaintiff may sue on behalf of a class when the plaintiff affirmatively 1 demonstrates the proposed class meets the four threshold requirements of Federal Rule of Civil 2 Procedure 23(a): numerosity, commonality, typicality, and adequacy of representation.” Sali v. 3 Corona Reg’l Med. Ctr., 909 F.3d 996, 1002 (9th Cir. 2018). 4 A. Numerosity 5 First, Plaintiffs must establish “the class is so numerous that joinder of all members is 6 impracticable.” Fed. R. Civ. P. 23. Plaintiffs have established as of June 14, 2023, there were 7 approximately 476 proposed class members and 252 proposed subclass members. (Dkt. No. 64-1 8 ¶¶ 32-33.) Defendant does not contest numerosity. So, Plaintiff has satisfied the numerosity 9 prerequisite. 10 B. Commonality 11 “To show commonality, Plaintiffs must demonstrate that there are questions of fact and 12 law that are common to the class.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th Cir. 13 2011) (citing Fed. R. Civ. P. 23(a)(2)). “What matters to class certification . . . is not the raising of 14 common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to 15 generate common answers apt to drive the resolution of the litigation.” Ruiz Torres v. Mercer 16 Canyons Inc., 835 F.3d 1125, 1133 (9th Cir. 2016) (quoting Wal–Mart Stores, Inc. v. Dukes, 564 17 U.S. 338, 350 (2011)). To satisfy Rule 23(a)(2)’s commonality requirement, “[e]ven single 18 [common] question” is sufficient. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011) 19 (cleaned up). 20 In this case, both parties agree TEK classifies all purported class members as exempt. 21 (Dkt. Nos. 63 at 46 (“TEK’s uniform policy of classifying Recruiters as exempt from overtime”); 22 68 at 11 (describing the Recruiter role as “exempt”).) So, the central dispute is whether purported 23 class members were properly characterized as exempt. Resolving that dispute involves at least the 24 common question of whether all Recruiters’ work is “directly related to management policies or 25 general business operations” of TEK or TEK’s customers. 26 California’s Industrial Welfare Commission’s Wage Order 4 incorporates the Code of 27 Federal Regulations § 541.205(a) (2001), which defined the “directly related” phrase in Wage 1 related” phrase “distinguishes between ‘administrative operations’ and ‘production’ or ‘sales’ 2 work.” 53 Cal. 4th 170, 181 (2011) (quoting C.F.R. § 541.205(a) (2001)). Specifically, “[w]ork 3 qualifies as ‘directly related’ if it” is both “qualitatively administrative,” such as “advising 4 management, planning, negotiating, and representing the company,” and “quantitatively, it must 5 be of substantial importance to the management or operations of the business.” Id. 6 This question can be answered on a class-wide basis. Plaintiffs provide evidence 7 indicating all Recruiters have the same primary job duties. TEK’s internal documents indicate a 8 Recruiter’s primary duty is to match or “screen” candidates against requirements determined by 9 TEK’s clients. (Dkt. No. 64-5 at 32 (Recruiters “[s]creen[] consultants to gain insights into their 10 skills, goals, interests and provide[] aligned opportunities”); 48 (same); 72 (same); 96 (same); 127 11 (same).) These internal documents are supported by the testimony of TEK’s corporate executives, 12 who also describe Recruiters’ role as finding a “match” between job descriptions and individuals 13 looking for work. (Dkt. No. 64-1 at 172, 312, 319.) Defendant’s declarants confirm the same 14 primary duties. (Dkt. Nos. 68-4-17.) For example, Paul Stryker writes when he worked as a 15 Recruiter, his role “was to understand the exact skills and experience that the clients needed and to 16 find candidates who were well suited to perform that work.” (Dkt. No. 68-6 ¶ 7.) Similarly, 17 Yasmin Yancey, who is currently a Recruiter, describes her role as “find[ing] the best candidates 18 to fill the client’s job requirements.” (Dkt. No. 68-10 ¶ 7.) 19 TEK asserts “whether Recruiters perform work that is ‘directly related’ to the management 20 or policies or general business operations is not a certifiable question” because “Plaintiffs’ 21 argument ignores” California Supreme Court precedent. (Dkt. No. 68 at 30-31.) The thrust of 22 TEK’s argument is the “directly related” analysis includes when activity is “directly related to 23 management policies or general business operations of his/her employer or his employer’s 24 customers.” Cal. Code Regs. tit. 8, § 11040(1)(A)(2)(a) (emphasis added). So, according to 25 TEK, since Recruiters act as “personnel management and human resources” for TEK’s 26 “customers” (e.g., the companies in which TEK is placing employees), TEK’s Recruiters’ work is 27 directly related to the management policies of those customers. 1 administrative exemption applies to all Recruiters’ claims; TEK is not asserting the “directly 2 related” analysis is not subject to class-wide proof. To the contrary, TEK’s argument for why all 3 its Recruiters’ work is directly related to its customers management policies or general business 4 operations is premised on treating all Recruiters the same. 5 So, Plaintiffs have satisfied the commonality perquisite to class certification. 6 C. Typicality 7 The typicality requirement is satisfied if “the claims or defenses of the representative 8 parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The test of 9 typicality serves to ensure that the interest of the named representative aligns with the interests of 10 the class.” Ruiz Torres, 835 F.3d at 1141 (quotations and citations omitted). “Under the Rule’s 11 permissive standards, representative claims are ‘typical’ if they are reasonably coextensive with 12 those of absent class members; they need not be substantially identical.” Id. (cleaned up). 13 “Measures of typicality include ‘whether other members have the same or similar injury, whether 14 the action is based on conduct which is not unique to the named plaintiffs, and whether other class 15 members have been injured by the same course of conduct.’” Id. (quoting Hanon v. Dataproducts 16 Corp., 976 F.2d 497, 508 (9th Cir. 1992)). 17 Plaintiffs have demonstrated their claims are typical of the purported class. Plaintiffs all 18 worked as Recruiters and are seeking to represent a class of Recruiters. (Dkt. No. 64-1 at 421 19 (Avery), 534 (Camilleri), 604 (Rodgers (Raras)), 811 (Unverforth).) TEK classified Plaintiffs and 20 all other class members as exempt from overtime, meal, and rest break requirements. (Id. at 8, 21 12). Plaintiffs allege they were misclassified as exempt, and therefore are entitled to overtime pay 22 and penalties for meal break and rest break violations. (Dkt. No. 1-1.) So, Plaintiffs and the 23 purported class members have the same alleged injuries resulting from that classification. 24 TEK asserts the four named Plaintiffs are not typical because (1) “none worked following 25 the onset of COVID in-person work restrictions in late March 2020, which brought on or 26 accelerated a number of changes at TEK;” (2) “[n]one of the Plaintiffs have worked for TEK in 27 more than three and a half years, which is nearly two-thirds of the class period;” and (3) Plaintiffs 1 But TEK does not explain what changes TEK implemented post-COVID, how any such changes 2 impacted the work of Recruiters, or what a “typical” length of time for a Recruiter Trainee is. And, 3 most importantly, TEK does not explain how any of these facts are relevant to the claims or 4 defenses of this case. 5 So, Plaintiffs meet the typicality requirement of Rule 23(a)(3). 6 D. Adequacy 7 Finally, Rule 23(a)(4) requires the Court to determine if “the representative parties will 8 fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “To determine 9 whether named plaintiffs will adequately represent a class, courts must resolve two questions: (1) 10 do the named plaintiffs and their counsel have any conflicts of interest with other class members 11 and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the 12 class?” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 985 (9th Cir. 2011) (quotations and 13 citations omitted). 14 Plaintiffs have established they will fairly and adequately protect the interests of the class. 15 There is no evidence of any conflicts of interest between the named parties and purported classes. 16 (Dkt. No. 64 ¶ 22.) Plaintiffs’ counsel provide evidence indicating they have experience litigating 17 class actions and have sufficient resources to vigorously represent the purported class and 18 subclass. (Id. ¶¶ 4-21.) Thus far, Plaintiffs have “actively participat[ed] in discovery.” (Id. ¶ 24.) 19 Further, Defendant does not contest adequacy. So, Plaintiffs have satisfied the adequacy 20 prerequisite of Rule 23(a). 21 III. RULE 23(B)(3) 22 Rule 23(b)(3) requires: (1) the questions of law or fact common to members of the class 23 predominate over any questions affecting only individual members, and (2) a class action is 24 superior to other available methods for the fair and efficient adjudication of the controversy. 25 A. Whether Common Issues Predominate Over Individual Issues 26 Plaintiffs have the burden “by a preponderance of the evidence” to “marshal facts showing 27 . . . class issues predominate” over individualized ones. Miles v. Kirkland’s Stores Inc., No. 22- 1 v. Bumble Bee Foods LLC, 31 F.4th 651, 664–65 (9th Cir. 2022) (en banc)). “For purposes of this 2 analysis, [a]n individual question is one where members of a proposed class will need to present 3 evidence that varies from member to member, while a common question is one where the same 4 evidence will suffice for each member to make a prima facie showing [or] the issue is susceptible 5 to generalized, class-wide proof.” Ruiz Torres, 835 F.3d at 1134 (cleaned up). The predominance 6 inquiry is not just a matter of the quantity of individualized questions versus the quantity of 7 common questions, but also weighs the relative importance of each category of question. See id. 8 (“[M]ore important questions apt to drive the resolution of the litigation are given more weight in 9 the predominance analysis over individualized questions which are of considerably less 10 significance to the claims of the class.”). 11 TEK’s treatment of all Recruiters as exempt is relevant to the court’s analysis, though far 12 from dispositive. See In re Wells Fargo Home Mortgage Overtime Pay Litigation, 571 F.3d 953, 13 957, 959 (9th Cir. 2009) (holding “[a]n internal policy that treats all employees alike for 14 exemption purposes suggests that the employer believes some degree of homogeneity exists 15 among the employees,” but “relying on that policy to the near exclusion of other factors relevant 16 to the predominance inquiry” is an abuse of discretion). The Court’s analysis “focuse[s] on 17 “whether the employer exercised some level of centralized control in the form of standardized 18 hierarchy, standardized corporate policies and procedures governing employees, uniform training 19 programs, and other factors susceptible to common proof.” Vinole v. Countrywide Home Loans, 20 Inc., 571 F.3d 935, 946 (9th Cir. 2009). 21 In determining whether class issues predominate, the Court will consider each element of 22 California’s administrative exemption, and whether proving that element relies on common proof 23 or an individualized inquiry. 24 25 26 27 1. Whether Recruiters’ Work Is Directly Related to Management Polices 1 or General Business Operations of TEK or TEK’s Customers 2 As discussed above, the resolution to this question relies on common legal and factual 3 determinations. So, this issue weighs in favor of a finding common issues predominate. 4 2. Whether Recruiters Exercise Discretion and Independent Judgment 5 California’s Industrial Welfare Commission’s Wage Order 4 incorporates the Code of 6 Federal Regulations § 541.207 (2001), which defines “the exercise of discretion and independent 7 judgment” as:

8 involv[ing] the comparison and the evaluation of possible courses of conduct and acting or making a decision after the various possibilities 9 have been considered. The term . . . implies that the person has the authority or power to make an independent choice, free from 10 immediate direction or supervision and with respect to matters of significance. 11 12 29 C.F.R. § 541.207(a)(2001). So, if an employee “merely applies his knowledge in following 13 prescribed procedures or determining which procedures to follow, or who determines whether 14 specific standards are met” that employee “is not exercising discretion and judgment.” Id. § 15 541.207(b). The regulations give the example of an “inspector” who “perform[s] specialized work 16 along standardized lines,” but also “rel[ies] on technique and skills acquired by special training or 17 experience.” Id. § 541.207(c)(1). Such an inspector “may make recommendations on the basis of 18 the information they develop in the course of their inspections . . . but these recommendations are 19 based on the development of facts as to whether there is conformity with the prescribed 20 standards.” Id. Accordingly, “[t]he inspector is engaged in exercising skill rather than discretion 21 and independent judgment.” Id. 22 Similarly, the federal regulations give the example of a personnel clerk who “screen[s]” 23 applicants. Id. § 541.207(c)(5). The Federal Regulations explain:

24 Typically such an employee will interview applicants and obtain from them data regarding their qualifications and fitness for employment. . 25 . . The ‘‘screening’’ operation consists of rejecting all applicants who do not meet standards for the particular job or for employment by the 26 company. The standards are usually set by the employee’s superior or other company officials, and the decision to hire from the group of 27 applicants who do meet the standards is similarly made by other 1 Id. However, the term “discretion and independent judgment” does “not necessarily imply that the 2 decisions made by the employee must have a finality that goes with unlimited authority and a 3 complete absence of review.” Id. § 541.207(e). Instead, “[t]he decisions made as a result of the 4 exercise of discretion and independent judgment may consist of recommendations for action rather 5 than the actual taking of action.” Id. 6 Plaintiffs provide evidence establishing all Recruiters have the same primary job duties— 7 allowing for resolution of this issue on a class-wide basis. TEK’s internal documents indicate 8 Recruiters’ primary duty is to match or “screen” candidates against requirements determined by 9 TEK’s clients. (Dkt. No. 64-5 at 32, 48, 72, 96, 127.) These internal documents are supported by 10 the testimony of TEK’s corporate executives. (Dkt. No. 64-1 at 172, 312, 319.) Further, nearly all 11 Recruiters are paid under the same salary structure (Dkt. Nos. 68-2 at 22; 64-7 at 53), and all 12 Recruiters’ job performance is measured by the same metrics (Dkt. No. 64-1 at 170), which 13 indicates TEK considers all Recruiters to be engaged in substantially similar work. Ambrosia v. 14 Cogent Commc’ns, Inc., 312 F.R.D. 544, 557–58 (N.D. Cal. 2016) (granting class certification for 15 employees seeking overtime compensation based on evidence “corporate policies . . . transform 16 the individualized issues into common ones” since “all of the putative class members sell roughly 17 the same products, are recruited and hired using the same job description, and are paid under the 18 same compensation plan”). 19 TEK’s Recruiter declarations do not establish individual issues predominate. Both at 20 briefing and oral argument, TEK argued the wide variation among Recruiters in how they 21 accomplish their tasks of finding employees for clients means whether Recruiters exercise 22 discretion and independent judgment is not subject to common proof. As evidence, TEK submits 23 14 employee declarations. (Dkt. Nos. 68-4-17.) However, TEK has not identified any corporate 24 testimony or company-wide policies evidencing such variation. “[A] smattering of examples 25 involving a few isolated cases does not automatically defeat class certification if, as here, the 26 overwhelming evidence shows” a consistent policy or practice of the employer. Miles, 89 F.3d at 27 1223-24 (citing Senne v. Kansas City Royals Baseball Corp., 934 F.3d 918, 938 (9th Cir. 2019) 1 employees so long as liability arises from a common practice or policy of an employer.”)). 2 Moreover, most of TEK’s declarations are not relevant to the question of whether 3 Recruiters—as opposed to other, supervisory employees at TEK—exercise discretion and 4 independent judgment. Of TEK’s 14 declarants, four are currently Recruiter Leads. (Dkt. Nos. 5 68-6 (Stryker) ¶¶ 7, 10-11; 68-8 (Mendez) ¶ 5; 68-9 (McCarty) ¶ 24; 68-11 (Compton) ¶ 29.). 6 Three are Team Leads. (Dkt. Nos. 68-4 (Guffy) ¶ 6; 68-12 (Levine-Gorelick) ¶¶ 26-27; 68-15 7 (Kehl) ¶ 16.) One is a Division Lead. (Dkt. No. 68-14 (Boland Jones) ¶ 5.) Another states she 8 has held “different recruiting roles” since December of 2017, but does not specify her current role 9 (though her LinkedIn Profile as of December of 2023 indicates she is a “Senior Specialized 10 Recruiter). (Dkt. Nos. 68-16 (Ferrari) ¶ 4; 72-2.) Further, while nine of the 14 declarants are not 11 presently Recruiters, the declarations almost universally use the present tense when describing job 12 duties and activities. The declarations of individuals who are not presently Recruiters are, for the 13 most part, not relevant because they do not provide evidence of the job duties of Recruiters rather 14 than other, upper-level positions.3 15 The remaining five Recruiter declarations do not persuade the Court individual questions 16 predominate. (Dkt Nos. 68-5 (Rothermich); 68-7 (Whitman); 68-10 (Yancey); 68-13 (Harvey); 17 and 68-17 (Budde).) TEK’s five Recruiter declarants’ job descriptions align with TEK’s internal 18 documents and Plaintiffs’ Recruiter declarants. For example, Nicole Whitman, who is one of 19 Defendant’s declarants and has been a Recruiter at TEK since February of 2014, explains after she 20 finds a candidate who is “the right match for a requirement,” she then “present[s]” that candidate 21 to the Account Manager. (Dkt. No. 68-7 ¶ 23.) If the Account Manager “agree[s] with [her] 22 recommendation,” then “[t]ypically,” the Account Manager “present[s] the candidates to the 23 customer”—though, on occasions, Account Managers “have trusted [her] to present candidates to 24 3 At oral argument, TEK asserted the declarations from employees in supervisory positions were 25 relevant to the class certification analysis because those individuals still spend time recruiting. (See, e.g., Dkt. No. 68-6 ¶ 26 (explaining when employee was a Recruiting Lead their “main focus 26 was still recruiting” and recruiting took up about “80%” of the employee’s time).) However, even if such individuals perform similar roles to Recruiters, only those in the Recruiter role are putative 27 class members. Moreover, Defendant put forth no evidence indicating TEK has the same 1 the customer.” (Id. ¶¶ 23-24.) She also “deliver[s]” the client’s performance feedback to the 2 consultant when required. (Id. ¶ 25.) Her testimony thus aligns with that of Brian Larsen, one of 3 Plaintiffs’ declarants, who worked as a Recruiter for TEK form July 2021 until September 2022. 4 (Dkt. No. 64-1 at 1058.) He also describes his job as “to search for, contact, and screen candidates 5 whose job experience and skill sets matched the criteria listed in the Requirement.” (Id. at 1060.) 6 If he found a match, he “sent the candidate’s resume and information about the candidate to the 7 Account Manager,” and the Account Manager then decided “which candidates, if any, would be 8 forwarded to TEKsystems’ client.” (Id. at 1062.) Another of Plaintiffs’ declarants explained he 9 was a “middleman” and would “communicate the orders of the client” to consultants on the job. 10 (Id. at 1071.) Variations in how TEK’s Recruiters accomplish their primary job duty of screening 11 candidates and finding matches for job requirements do not overcome Plaintiffs’ evidence 12 indicating all Recruiters’ primary job duties can be determined through common proof. See 13 Roseman v. Bloomberg L.P., No. 14-CV-2657 (DLC), 2017 WL 4217150, at *7 (S.D.N.Y. Sept. 14 21, 2017), aff’d, No. 14-CV-2657 (DLC), 2018 WL 1470587 (S.D.N.Y. Mar. 23, 2018) (“The 15 evidence of differences among the daily routines of the proposed class members or the differences 16 in their auxiliary duties do not overcome the plaintiffs’ evidence that the primary duty of the class 17 members can be determined through generalized proof because that primary duty is consistent 18 across the class.”); Dobrosky v. Arthur J. Gallagher Serv. Co., LLC, No. ED-CV-130646-JGB- 19 SPx, 2014 WL 10988092, at *13 (C.D. Cal. July 30, 2014) (in analyzing whether exercising 20 discretion and independence leads itself to class-wide proof, holding “variations” that “do not 21 modify the tasks performed by the Class Members” are “not material to the class certification 22 analysis”). 23 TEK also argues the Recruiter role has changed in a variety of ways since the start of the 24 proposed class period, January 28, 2018, and these changes mean the question of whether 25 Recruiters exercise independent discretion and judgment cannot be answered on a class-wide 26 basis. Indeed, Recruiters have become more specialized over time, (Dkt. Nos. 64-4 at 119; 64-1 at 27 211 (explaining prior to 2021, Recruiters “weren’t as specialized” as they are “now”)), and have 1 November of 2020, TEK’s senior vice president of talent delivery, Garrett Haycock (Dkt. No. 64-1 2 at 309), indicated Recruiters would begin “skill specialization.” (Dkt. Nos. 64-4 at 119; 64-1 at 3 211 (explaining prior to 2021, Recruiters “weren’t as specialized” as they are “now”).) He 4 explained previously, recruiting was “mainly handled by local recruiters” and recruiting was 5 “treated like an entry-level role.” (Dkt. No. 64-4 at 120.) However, TEK was moving into the 6 “new reality” of a “virtual environment.” (Id. at 121.) In doing so, TEK planned to develop 7 “hyper-specialized recruiters” who “aren’t limited by geography.” (Id. at 122.) By September of 8 2023, “all” the “recruiters in California” were “aligned to specialized teams.” (Dkt. No. 64-1 at 9 158.) Such specialized Recruiters may exercise marginally more discretion and independent 10 judgment than non-specialized Recruiters. (Dkt. No. 68-7 ¶ 15 (“There are unique aspects to work 11 in this specialized area that impact the way the team learns about and help create [requirements]. . 12 . as I have established my knowledge and competency as a specialized Recruiter with the Account 13 Managers I work with, they have trusted me to present candidates to the customer on my own.”).) 14 However, the evidence suggests even Specialized Recruiters perform the same general 15 tasks, with about the same amount of independence and discretion, as non-specialized Recruiters. 16 (Dkt. No. 68-16 ¶ 21 (“Even though I am part of a specialized team now, I still take the same 17 approach I did before in terms of sourcing and deciding which candidates to move forward 18 with.”).) And even if Specialized Recruiters search for candidates using different methods than 19 non-specialized Recruiters, Recruiters uniformly must present their selected candidates to Account 20 Managers, who decide whether to move forward with that candidate. (Dkt Nos. 68-5 ¶ 29; 68-7 ¶¶ 21 9, 23; 68-10 ¶ 19; 68-13 ¶ 17; 68-17 ¶ 19.) Recruiters, as a class, “lack discretion to take any 22 affirmative action that could bind others.” Metrow v. Liberty Mut. Managed Care LLC, No. ED- 23 CV-161133-JGB-KKx, 2017 WL 4786093, at *14 (C.D. Cal. May 1, 2017). 24 Further, to satisfy the administrative exemption, Recruiters must “primarily,” meaning 25 more than half their time, exercise independence and discretion. Cal. Code Regs. tit. 8, § 26 11040(2)(N). Even those Recruiter declarants who describe exercising independence and 27 discretion in speaking directly to clients about candidates indicate such interactions constitute a 1 with the customer . . . [on] at least two calls . . . per month, and other Recruiters on the team are 2 doing the same”; 68-10 ¶ 13 (“Depending on the situation, I will join the Account Manager for 3 calls with TEK clients to gather information about requirements” ); 68-13 ¶ 8 (“I routinely 4 participate in the calls that an Account Manager has with the client’s hiring manager to go over the 5 requisitions, and I sometimes contact the hiring manager myself.”); 68-17 ¶ 14 (“At least one or 6 two times a month, I will join an Account Manager on a call with a hiring manager at a TEK 7 client. . . I sometimes join calls with a customer’s hiring manager to present the credentials of 8 specific candidates that I have identified as well”).) So, while Plaintiffs’ Recruiter declarants may 9 never interact directly with clients and Defendant’s Recruiter declarants may work directly with 10 clients once or twice a month, that difference is not material to the answer of whether Recruiters 11 primarily exercise independence and discretion. See Metrow, 2017 WL 4786093, at *12 (“The 12 Court does not find the variation in the complexity of potential cases or client preferences 13 sufficient to defeat predominance since the Parties agree that 71% of [proposed class members] 14 spend their time on the same five tasks.”). 15 TEK’s citation to DeLodder v. Aerotek, Inc., No. CV-0806044-DMG-AGRx, 2010 WL 16 11506881, at *2 (C.D. Cal. Aug. 16, 2010), aff’d, 471 F. App’x 804 (9th Cir. 2012), is also 17 unavailing. The defendant in DeLodder was “an international staffing company that provides 18 technical, professional and industrial recruiting and staffing services to customer companies in 19 eight different industries.” DeLodder, 2010 WL 11506881, at *2. Much like this case, the 20 plaintiffs alleged the defendant misclassified Recruiters as exempt, and therefore the defendant 21 illegally failed to pay the Recruiters overtime compensation or provide meal and rest periods. Id. 22 The plaintiffs moved to certify a class of “individuals employed by Aerotek as Recruiters in 23 California, regardless of their office location or their functional division.” Id. The court 24 considered whether such Recruiters exercised discretion and independent judgment according to 25 the California Industrial Welfare Commission Wage Order.4 Id. at * 13. The court concluded the 26 4 As described by the Ninth Circuit memorandum affirming DeLodder, the district court in 27 DeLodder appears to cite the 2004 version of the federal regulations rather than the 2001 version 1 “question can only be answered on an individualized basis” because the “degree of discretion 2 exercised by Recruiters varies at nearly every step of the recruiting process.” Id. The court 3 explained Recruiters had different processes for finding candidates, some Recruiters conducted 4 phone interviews using “stock questions” while others were “more freewheeling,” some Recruiters 5 “had the discretion to negotiate pay rates with a candidate,” some “Recruiters were at liberty to 6 make recommendations to clients as to the pay rates clients proposed to offer,” and “some 7 Recruiters recommended candidates to customer companies without any oversight” while others 8 “presented candidates to their [supervisors] only and made no recommendations to clients.” Id. 9 This case differs in several respects from DeLodder. First, the proposed class in DeLodder 10 involved Recruiters finding candidates for a wide variety of jobs in various industries, including 11 both technical and non-technical roles. Indeed, much of the diversity among Recruiters identified 12 by the DeLodder court resulted from different practices in different industries. See id. (“In-person 13 interviews varied widely depending on the functional office in which the Recruiter worked; non- 14 technical divisions usually had short and formulaic interviews, while technical divisions usually 15 had longer and more open-ended interviews that depended more heavily on the Recruiter’s 16 discretion in steering the conversation.”). In contrast, TEK Recruiters are all recruiting for IT 17 positions, eliminating much of those variations. Further, the record shows Recruiters’ experience 18 at TEK is far more uniform than in DeLodder. For example, the DeLodder court found some 19 Recruiters “recommended candidates to customer companies without any oversight.” Id. In 20 contrast, the declarations submitted by Defendant indicate Recruiters uniformly present candidates 21 to Account Managers, who decide whether to move forward with that candidate. (Dkt. Nos. 68-5 22 ¶ 29 (“I start by presenting the candidate to the Account Manager”); 68-7 ¶¶ 9, 23 (“If I decided 23 the candidate was a good fit for the [requirement], I would present their credentials to the Account 24 Manager.”); 68-10 ¶ 19 (“I just show [the Account Managers] the resumes of the candidates I have 25 chosen and they will trust me on the assessment of the individual. . . . The Account Manager many 26 times agrees with my recommendation whether to present the candidate to TEK’s client.”); 68-13 27 ¶ 17 (“When I meet with the Account Manager to present a candidate, I summarize my assessment 1 17 ¶ 19 (“If I decide that a candidate is a good match for a customer’s job requirements, I will 2 present the candidate’s credentials to the Account Manager. . . . The Account Manager makes the 3 final decision whether to submit the candidate to the customer.”).) 4 So, while some variation exists between Recruiters, that variation does not impact the 5 answer to whether Recruiters customarily and regularly exercise discretion and independent 6 judgment. So, this question can be answered on a class-wide basis. 7 3. Whether Recruiters Perform under Only General Supervision 8 For the administrative exemption to apply, TEK must also establish Recruiters are “‘under 9 only general supervision’ while either: (1) performing work along specialized or technical lines 10 requiring special training, experience, or knowledge, or (2) executing special assignments and 11 tasks.” Campbell v. PricewaterhouseCoopers, LLP, 642 F.3d 820, 831 (9th Cir. 2011) (quoting 12 Cal. Code Regs. tit. 8, § 11040(1)(A)(2)). “The ‘general supervision’ requirement has not 13 received much interpretation.” Campbell, 642 F.3d at 831; see also Lopez v. Liberty Mut. Ins. Co., 14 No. 2:14-CV-05576-AB-JCx, 2019 WL 4605706, at *5 (C.D. Cal. July 25, 2019) (quoting 15 Campbell to explain the lack of authority on “general supervision,” and explaining “[s]ince 16 [Campbell], the Ninth Circuit has issued several memorandum dispositions applying Campbell but 17 distinguishing the cases on the facts.”) Courts have considered factors such as whether the 18 employees “are expected to, and do, perform their work with little or no daily oversight; plan and 19 prioritize their own work and daily schedules; and make decisions . . . independently.” Lopez, 20 2019 WL 4605706, at *6; see also Gallardo v. AIG Domestic Claims, Inc., 629 F. App’x 783, 785 21 (9th Cir. 2015) (concluding an employee worked under only general supervision because he “spent 22 most of his time working independently with little day-to-day oversight,” and the “majority of 23 [employee’s] work provided significant freedom and latitude to act.”). 24 Plaintiffs’ Recruiter declarants’ testimony and TEK’s corporate testimony support a 25 finding by a preponderance of the evidence that Recruiters were all supervised to a similar degree. 26 The Recruiters state they “worked under the daily and constant supervision of TEKsystems’ 27 managers,” including Account Managers and Recruiter Leads. (Dkt. No. 64-1 at 1025, 1034, 1 (Id. at 200 (“All California offices have a pit where recruiters sit” and Account Managers talk with 2 recruiters “multiple times per day”), 1025, 1034, 1042, 1050, 1059, 1067.) Further, all describe 3 “Red Zone” meetings occurring either every day or three times per week in which managers 4 assigned requirements to Recruiters and required Recruiters to “report[] on the work activities 5 [they] performed the prior day.” (Id. at 197 (Red Zone meetings are either daily or three times per 6 week), 1025-26, 1034-35, 1042. 1050, 1059, 1067, 1075.) They indicate they “never spoke to 7 TEKsystems’ clients without an Account Manager or Account Lead present.” (Id. at 184 8 (explaining the Account Manager is “almost always involved” with the discussion to get 9 requirements from the client and Recruiters “sometimes” get to be a part of that conversation), 10 1025, 1037, 1045, 1053, 1062, 1070, 1078.) 11 While the way performance metrics for Recruiters was calculated changed over the 12 proposed class period, (Dkt. No. 64-1 at 170-177 (explaining the shift in July 2022 from requiring 13 “30 interactions,” to “a Recruiter Score Card” which weighed at the most “meaningful 14 expectations”)), Recruiters’ activities were closely monitored throughout the period. Plaintiffs’ 15 Recruiter declarants describe being measured by “numerous metrics” including required weekly 16 numbers of “G2s,” or informational calls with candidates, “reference checks, meetings or meals 17 with candidates, and the number of candidates that Account Managers submitted to a TEKsystems 18 client.” (Id. at 1027, 1036. 1044, 1052, 1061, 1069, 1077.) The required numbers “were the same 19 in every branch in TEKsystems for recruiters.” (Id. at 170.) Supervisors closely tracked 20 Recruiters’ “spread”—or the net profit from each successfully placed consultant, indicating the 21 difference between what TEK bills the customer and what TEK pays, including the consultant’s 22 salary and the costs associated with finding the consultant for the position—and in some cases 23 displayed spread amounts in the office “from best to worst for everyone to see.” (Id. at 1027, 24 1036, 1052, 1061, 1069, 1077.) TEK’s internal database allows leaders to see metrics such as 25 “spread,” “how many consultants” Recruiters talk to, and candidate “submittals” to clients “on a 26 daily basis.” (Id. at 201.) Each week Recruiters’ supervisors get a report on how each Recruiter is 27 doing. (Id. at 165.) 1 screening, and selecting candidates for submission” so “Recruiters were held to account and 2 overseen on whether they got results, but not as to how those results were achieved.” (Dkt. No. 68 3 at 44-45.) Even accepting this as true, Defendant has put forth no evidence that this is true on an 4 individualized, as opposed to class-wide basis. Indeed, the evidence suggests all Recruiters were 5 held to the same performance metric standards, all California Recruiters did their work in a “pit,” 6 with supervisors “close by,”5 all Recruiters were assigned requirements from supervisors, and 7 supervisors, rather than Recruiters, decided which candidates got sent to the clients. 8 Defendant also contends “the degree of oversight varies significantly” between Recruiters, 9 (Dkt. No. 68 at 44); however, while TEK has established the supervision structure changed over 10 the class period, TEK has not established the level of supervision ever meaningfully changed. In 11 2018, many Recruiters directly reported to an Account Manager. (Dkt. No. 68-12 ¶ 8.) But in 12 more recent years, “TEK has moved away from the model of having a Recruiter supervised by an 13 Account Manager,” and now most Recruiters are supervised by Recruiter Leads or Specialization 14 Leads. (Id.; Dkt. Nos. 68-6 (“About a year or so” after July 2017, a “structure where Recruiters 15 are managed by other Recruiter[ Leads], and not Account Managers, was put in place across all of 16 TEK”); 68-7 ¶¶ 5, 11, 12; 64-1 at 161 (explaining the “specialization lead . . . used to be referred 17 to as the recruiter lead”), 164 (since 2021, Recruiters have been supervised by “specialization 18 lead[s],” a role that was previously referred to as Recruiter Leads).) Much like Account Managers 19 and Recruiter Leads before them, “[s]pecialization leads have two to four recruiters aligned to 20 them.” (Dkt. No. 64-1 at 164.) While the title of the supervisor varies across the class period and 21 class members, Defendants provide no evidence that the amount of supervision varies according to 22 these differences. All Recruiters continued to be measured according to standardized, uniform 23 metrics. All Recruiters must show any potential candidates to Account Managers before sending 24

25 5 Some of Defendant’s declarants indicate post-COVID, some work conditions changed and now some Recruiters work some days remotely. (See, e.g. Dkt. Nos. 68-6 ¶¶ 31-32; 68-17 ¶ 22.) In its 26 briefing, Defendant asserts “remote work . . . became commonplace in response to the COVID-19 pandemic” and “changed many practices.” (Dkt. No. 68 at 16.) However, Defendant presents no 27 evidence of the prevalence of such remote work at TEK as a whole or among Recruiters, and 1 those candidates to clients. Moreover, it is always the client, not the Recruiter, who has the final 2 say over which candidates to hire. 3 So, the determination of whether Recruiters are subject to only general supervision while 4 either: (1) performing work along specialized or technical lines requiring special training, 5 experience, or knowledge, or (2) executing special assignments and tasks is subject to common 6 proof. 7 4. Whether Recruiters Primarily Perform Administrative Duties 8 Finally, to be administratively exempt from overtime requirements, TEK must demonstrate 9 Recruiters are “primarily engaged in duties that meet the test of the exemption,” which requires 10 examining “[t]he work actually performed by the employee during the course of the workweek . . . 11 and the amount of time the employee spends on such work, together with the employer’s realistic 12 expectations and the realistic requirements of the job.” Cal. Code Regs. tit. 8, § 11040(1)(A)(2). 13 For purposes of the administrative exemption, “primarily” “means more than one-half the 14 employee’s work time.” Cal. Code Regs. tit. 8, § 11040(2)(N). So, the Court must consider the 15 actual, day-to-day activities of Recruiters, and consider whether more than half of their work time 16 meets the three requirements of the exemption. In conducting this analysis, the Court will 17 consider “uniform corporate policies” which “often bear heavily on questions of predominance 18 and superiority” and “carry great weight for certification purposes.” In re Wells Fargo Home 19 Mortgage Overtime Pay Litigation, 571 F.3d at 958. “Such centralized rules, to the extent they 20 reflect the realities of the workplace, suggest a uniformity among employees that is susceptible to 21 common proof. Id. at 958–59. 22 Plaintiffs provide sufficient evidence indicating time Recruiters spent on various activities 23 can be determined class wide. For example, Recruiters log their activities into an internal database 24 at TEK. (Dkt. No. 64-1 at 11.) TEK uses uniform metrics for assessing Recruiters’ work, no 25 matter the specialization or management structure. (Id. at 169-70, 1027, 1036. 1044, 1052, 1061, 26 1069, 1077.) The required numbers “were the same in every branch in TEKsystems for 27 recruiters.” (Id. at 170.) As a result, it is likely determining the amount of time Recruiters spend 1 metrics for Recruiters. 2 TEK asserts this data is inconclusive because, while TEK’s internal data indicates the 3 number of each activity performed, “Plaintiffs utterly fail to quantify the time spent” on each 4 activity. (Dkt. No. 68 at 28.) However, the preliminary data provided by Plaintiffs matches other 5 available evidence about the amount of time Recruiters devote to various tasks. TEK’s internal 6 data indicates approximately 72% of Plaintiffs’ activities involved attempting to contact 7 candidates, conduct intakes (or “G2s”), and making calls. (Dkt. No. 64-1 at 984.) Similarly, about 8 66% of Defendant’s Recruiter declarants’ activities were attempting calls, conducting intakes, and 9 making calls. (Dkt. No. 72-4 ¶ 17.) This data is buttressed by the testimony of TEK’s corporate 10 executives, who agree most of Recruiters’ “interactions” are “calling [] consultant[s].” (Dkt. No. 11 64-1 at 205.) Plaintiffs’ declarants agree most of their time was spent “searching for candidates 12 whose skills and job experiences matched a Requirement and reaching out to those candidates to 13 get basic information.” (Id. at 1027 (indicating those actions represented 75% of declarant’s 14 workday, 1036 (“bulk” of workday), 1044 (“greater part” of workday), 1053 (“vast majority” of 15 workday), 1061 (75%), 1069 (“majority” of workday), 1077 (“largest part” of workday).) TEK 16 provides no evidence indicating some Recruiters spent most of their time in tasks other than 17 attempting to contact candidates, conducting intakes, or making calls. For example, while TEK’s 18 Recruiter declarants indicate they interacted with clients more frequently than Plaintiffs’ Recruiter 19 declarants, TEK’s Recruiter declarants nevertheless indicated such interactions were infrequent. 20 (Dkt. No. 68-17 ¶ 14 (meets with hiring managers at TEK clients “[a]t least one or two times a 21 month”).) Finally, TEK does not suggest there is any other superior way to determine how 22 Recruiters spend their time on a day-to-day basis other than their internal data. 23 Thus, the determination of whether Recruiters “primarily” engage in administrative duties 24 is likely to be subject to class-wide proof. 25 * * * 26 In sum, Plaintiffs have shown by a preponderance of the evidence the applicability of 27 California’s administrative exemption to members of the putative class and subclass is susceptible B. Whether Class Action Is Superior to Other Available Methods 1 Federal Rule of Civil Procedure 23(b)(3) requires Plaintiffs demonstrate “a class action is 2 superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. 3 R. Civ. Pro. 23(b)(3). In making this decision, the Rule instructs courts to consider: 4 (A) the class members’ interests in individually controlling the 5 prosecution or defense of separate actions;

6 (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; 7 (C) the desirability or undesirability of concentrating the litigation of 8 the claims in the particular forum; and

9 (D) the likely difficulties in managing a class action. 10 Id. “This list is not exhaustive and other factors may be considered.” Wolin v. Jaguar Land Rover 11 N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010). “The purpose of the superiority requirement is 12 to assure that the class action is the most efficient and effective means of resolving the 13 controversy.” Id. 14 Plaintiffs have established a class action is a superior means of adjudicating this action. 15 First, there is no indication members of the proposed class or subclass desire to individually 16 litigate their claims. Nor does the record show class members have an incentive to do so given the 17 intensive resources required to prosecute these claims. Indeed, “class actions are preferred in 18 wage-and-hour actions when individual employees may forgo pursuing their claims due to fear of 19 retaliation.” Uschold v. NSMG Shared Servs., LLC, 333 F.R.D. 157, 169 (N.D. Cal. 2019). 20 Second, TEK does not argue there is pending other litigation that counsels against the superiority 21 of this class action. Third, the Northern District of California is appropriate for resolving the 22 claims of a California class. 23 TEK asserts “a class action is not a superior means of conducting this litigation because 24 individual inquiries into the hundreds of class members’ assignments, work schedules, and hours 25 would overwhelm the court and render a class action unmanageable.” (Dkt. No. 68 at 46.) 26 Plaintiff’s proposed class and subclass contain 476 proposed class members and 252 proposed 27 subclass members. (Dkt. No. 64-1 ¶¶ 32-33.) “[C]ourts routinely certify larger and more complex 1 any reasons why this case will be particularly complex or difficult to manage. 2 TEK further insists the “existence, type, and extent of damage varies from person to person 3 . . . therefore individual damages issues predominate.” (Dkt. No. 68 at 46.) However, in the Ninth 4 Circuit, “damage calculations alone cannot defeat certification.” Yokoyama v. Midland Nat. Life 5 Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 2010). “So long as the plaintiffs were harmed by the same 6 conduct, disparities in how or by how much they were harmed [does] not defeat class 7 certification.” Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1168 (9th Cir. 2014) (citing In re 8 Deepwater Horizon, 739 F.3d 790, 810–11 (5th Cir. 2014)); see also Leyva v. Medline Industries, 9 Inc., 716 F.3d 510, 513 (9th Cir. 2013) (holding the district court applied the wrong legal standard 10 in wage and hour action by denying class certification on the grounds individual issues 11 predominated as to damages calculations). Further, Plaintiffs do not intend to rely on individual 12 testimony to establish work hours, but instead the class members’ electronic footprint with TEK’s 13 software. So, even though class and subclass members may have different amounts of damages, 14 individual issues will not overwhelm the common ones and a class action is superior for resolution 15 of this case. 16 *** 17 In sum, Plaintiffs have satisfied by a preponderance of the evidence all the requirements of 18 Rule 23(a) and Rule 23(b)(3). So, the Court certifies Plaintiffs’ proposed class and subclass. 19 IV. APPOINTMENT OF CLASS COUNSEL 20 If a class is certified, the Court “must appoint class counsel.” Fed. R. Civ. P. 23(g)(1). In 21 appointing class counsel, courts must consider: 22 (i) the work counsel has done in identifying or investigating potential claims in the 23 action; 24 (ii) counsel’s experience in handling class actions, other complex litigations, and 25 the types of claims asserted in the action;

26 (iii) counsel’s knowledge of the applicable law; and

27 (iv) the resources that counsel will commit to representing the class. 1 Id. Plaintiffs’ lawyers, Werman Salas P.C., Lichten & Liss-Riordan, P.C., and Olivier & 2 || Schreiber LLP, request appointment as class counsel. Plaintiffs’ attorneys have been involved 3 with this case since its start and have already devoted significant time and resources to this case. 4 || (Dkt. No. 64 19-21.) They have sufficient experience and knowledge to handle this case. (Dkt. 5 || Nos. 64, 65, 66.) So, the Court appoints Plaintiffs’ lawyers as class counsel. 6 CONCLUSION 7 For the reasons discussed above, the Court certifies (1) a class of all current and former 8 Recruiters employed by Defendant in California from January 28, 2018 to the final date of 9 || judgment; and (2) a subclass of all class members who worked for Defendant as Recruiters on or 10 after January 28, 2019 and who are no longer employed by Defendant and have not been 11 employed by Defendant for more than 72 hours. Werman Salas P.C., Lichten & Liss-Riordan, 12 || P.C., and Olivier & Schreiber LLP are appointed as class counsel. 5 13 The parties are directed to meet and confer regarding a proposed class notice. The Court 14 || sets a further case management conference for March 14, 2024 at 1:30 p.m. An updated joint case 3 15 management conference statement is due one week in advance. 16 This Order disposes of Docket No. 63. IT IS SO ORDERED. || Datea: February 13, 2024 19 Pept Salads 4 CQYELINE SCOTT CORLEY nited States District Judge 22 23 24 25 26 27 28