Serrano v. Aerotek, Inc.

230 Cal. Rptr. 3d 802, 21 Cal. App. 5th 773
CourtCalifornia Court of Appeal, 5th District
DecidedMarch 9, 2018
DocketA149187
StatusPublished
Cited by20 cases

This text of 230 Cal. Rptr. 3d 802 (Serrano v. Aerotek, Inc.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Serrano v. Aerotek, Inc., 230 Cal. Rptr. 3d 802, 21 Cal. App. 5th 773 (Cal. Ct. App. 2018).

Opinion

Humes, P.J.

*775Plaintiff Norma Serrano brought this lawsuit against her former employer, Aerotek, Inc., which placed her as a temporary employee *776with its client, Bay Bread, LLC. She raised four causes of action against Aerotek and Bay Bread based on their alleged failure to provide meal periods. On appeal, she challenges an order granting summary judgment to Aerotek, arguing the trial court erred by determining that Aerotek satisfied its own duty to provide meal periods and was not liable for any meal period violations by Bay Bread. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Aerotek is a staffing agency that places temporary employees with its clients. Bay Bread operates a food production facility in South San Francisco. In September 2010, Aerotek and Bay Bread entered a contract under which Aerotek provided temporary employees to work at Bay Bread. The contract stated that temporary employees would work "under [Bay Bread's] management and supervision at a facility or in an environment controlled by [Bay Bread]" and that it was Bay Bread's "responsibility to control, manage and supervise the work" these employees were assigned to perform under the contract.

*804The contract also contained a clause under which Bay Bread agreed to "comply with applicable federal, state, and local laws in connection with the services provided by [Aerotek] hereunder."

Aerotek's policies that applied to temporary employees on assignment with clients were set forth in an employee handbook. In relevant part, Aerotek's meal period policy required the following:

After a work period of more than 5 hours, an hourly employee must be provided an uninterrupted 30-minute off-duty meal break. This meal period must begin no later than the end of the employee's 5th hour of work, and the employee is expected to take this meal break in full. If, however, an employee's workday is no more than 6 hours, the employee may elect to waive the off-duty meal period in advance by written agreement with the company.
[¶] ... [¶]
An employee should be relieved from all duties during these 30-minute meal breaks, and the employee must accurately record the time of day he or she began and ended the meal period. A meal period during which the employee is relieved of all duties is not considered time worked and thus the employee will not be paid for the meal break.
[¶] ... [¶]
If at any time an employee believes that someone is preventing him or her from taking, or interfering with the employee's ability to take an authorized ... meal period, the employee immediately should report the matter to their Aerotek Representative. The employee will suffer no retaliation for reporting this matter.

*777Bay Bread set the schedules that Aerotek temporary employees worked and managed their shifts, including the taking of meal breaks. Bay Bread had its own meal period policy that applied to its employees but not Aerotek's temporary employees. David Razon, who was deposed as Bay Bread's "person most knowledgeable," testified that every Aerotek temporary employee who worked at Bay Bread received the Aerotek employee handbook and went through an orientation. These orientations took place at Bay Bread and were conducted by both Aerotek and Bay Bread representatives. Aerotek representatives conducted training on Aerotek's employment policies, including its meal period policy.1 Bay Bread representatives familiarized temporary employees with the Bay Bread facility and instructed them on Bay Bread's policies, including issues of "safety[,] security, [and] compliance."

Razon was not familiar with Aerotek's policy, which he considered not "relevant" because Bay Bread "ran [its] shifts in such a way that everyone got a break compliant with state law." According to Razon, two considerations informed when Aerotek temporary employees took their meal breaks: the need to "ensur[e] that everyone got an uninterrupted meal break by the time five hours of their shift elapsed" and "workflow," for example, "when things needed to come in and out of the oven. We can't go take a break and let the cookies burn."

During the time period at issue, Aerotek employed an on-site account manager, David Scott, who worked in an administrative building on Bay Bread's site, across the parking lot from the production facility where the temporary employees worked. Scott visited the production facility twice a *805day for "walk-throughs," which typically lasted 10 to 15 minutes. According to him, it would have been impossible to monitor whether and when Aerotek temporary employees took their meal breaks, and he was not responsible for this type of supervision. Scott did review the time records of Aerotek temporary employees for "missed clock-in and clock-outs," but he was not tasked with looking for meal period violations. He would then send the time records to Aerotek's field support group to be used in issuing paychecks, and that group did not have the responsibility to look for meal period issues either. In contrast, Razon indicated that it was "Bay Bread's expectation that ... Scott would have been reviewing ... Aerotek [temporary] employees' time records to ensure that those employees were taking ... compliant meal breaks."

Aerotek hired Serrano to work as a temporary hourly employee at Bay Bread from September 10 to October 4, 2012, and from January 16 to April *77830, 2013. Both times, she signed forms acknowledging she had received Aerotek's employee handbook and "underst[ood] that [she] should consult [her] supervisor or the Human Resources Department regarding any questions not answered in the handbook." Both times, she also signed forms waiving a meal period on any day she worked no more than six hours, and she never revoked those waivers.

Serrano worked in Bay Bread's production facility. Scott estimated that "as many as 200 Aerotek temporary employees" and "as many as 100 Bay Bread employees" worked at the facility during the periods she was employed there. Her time records show that on several days on which she worked more than six hours, she took her meal breaks more than five hours after beginning work or, in a couple instances, did not take a meal break at all.2 Scott stated that Serrano approached him once to discuss a conflict she had with a Bay Bread employee, but she never questioned him "about the meal period policy or about when meal periods were available." Nor did she "ever share any concern with [him] about meal[ ] periods ... [or] ever report that she was being prevented from taking compliant meal[ ] periods. Indeed, at no time before or during [her] employment did any Aerotek employee ever share any concern with [him] about meal periods at Bay Bread ... [or] ever contend that they had been prevented from taking compliant meal[ ] periods."

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Cite This Page — Counsel Stack

Bluebook (online)
230 Cal. Rptr. 3d 802, 21 Cal. App. 5th 773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/serrano-v-aerotek-inc-calctapp5d-2018.