14 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com How does one attribute time spent before a sale preparing to make a sales call or time spent after a sale completing the paperwork? Ramirez mentioned that the employer argued it would be absurd to exclude those tasks from the “outside sales” calculation, but Ramirez did not explain how those duties should be analyzed under the exemption. What constitutes “away from the employer’s place of business”? Clearly delivering water to a customer’s home qualifies, but what if the employee is in a job where he is making customer contact by telephone? Is any time selling outside the employee’s designated “office” considered time “away from the employer’s place of business”? How does an employer enforce reasonable expectations that its employees spend the majority of their time outside selling? Where the employer encourages selling, but allows the employees to make sales any way they want without tracking their movements, what is the employer’s reasonable expectation as to “outside sales” activity? Because all these questions remain open, there continues to be a great deal of litigation over the outside sales exemption. Separate from the substantive issue of whether a particular employee meets the outside sales exemption, there has been significant litigation over whether outside sales exempt status can be decided collectively on a class basis. Courts have been more willing to deny class certification in these cases where the only question is whether employees who undisputedly focus on sales spend enough of their time “outside” to meet the exemption. Most notably, in a case in which Seyfarth Shaw represented the prevailing defendant, the Ninth Circuit, in Vinole v. Countrywide Home Loans, Inc.,70 affirmed a district court order that the outside sales exempt status of branch loan originators could not be litigated on a collective basis. There was no evidence that Countrywide required its employees to spend a certain amount of time inside, and there was great variation in the testimony as to how different loan originators actually spent their time. The Ninth Circuit explained how this made class certification inappropriate: Plaintiffs seek to minimize the district court’s main concern–that although there are common issues, including uniform classification, the inquiry into each HLC’s exempt status would burden the court.71 The principal factor in determining whether common issues of fact predominate is whether the uniform classification, right or wrong, eases the burden of the individual inquiry. But this is a legitimate concern. Plaintiffs’ claims will require inquiries into how much time each individual HLC spent in or out of the office and how the HLC performed his or her job; all of this where the HLC was granted almost unfettered autonomy to do his or her job. This must be considered along with the lack of issues subject to common proof that would actually ameliorate the need to hold several hundred mini-trials with respect to each HLC’s actual work performance.72 70 571 F.3d 935 (9th Cir. 2009). 71 Id. at 946. 72 Id. at 947 (emphasis added); see also Mevorah v. Wells Fargo Home Mortgage, Inc., 268 F.R.D. 604 (N.D. Cal. Jan. 12, 2010) (on remand after reversal of certification decision for reconsideration, district court denied certification as to class of
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