SAUNDRA BROWN ARMSTRONG, District Judge.
Plaintiff Charles Burden ("Burden") filed the instant putative wage and hour
The parties concede that there are no material disputes of fact in this case. See Reply at 1, Dkt. 57; Pl.'s Mot. for Class Certification at 7, Dkt. 28. The salient facts are summarized below only insofar as they are relevant to the Court's determination of whether SelectQuote is entitled to judgment as a matter of law.
SelectQuote is an independent life insurance sales agency founded in San Francisco in 1984. Singh Decl. ¶ 3, Dkt. 35. According to SelectQuote, it radically changed the manner in which term life insurance policies are marketed and sold. Traditionally, such policies were offered through captive life insurance agents who worked exclusively for the insurance companies that employed them. Id. ¶ 5. These agents were responsible for developing their own sales leads, and selling policies through in-home, face-to-face transactions. Id. SelectQuote claims it changed the method of selling term life insurance policies by applying the direct marketing approach used for property and casualty insurance policies. Id. ¶¶ 4-5. Using internally-generated sales leads, SelectQuote agents contact prospective customers by telephone, as opposed to in person. Id. ¶ 5.
Burden worked as a SelectQuote insurance sales agent from approximately March 2004 until January 26, 2009. Answer ¶ 6, Dkt. 23. During the course of his employment, Burden's compensation was governed by two versions of Select-Quote's Agent Variable Compensation Plan (the "Variable Plan"). First Kubin Decl. Ex. 1 ("Burden Dep.") at 70:12-71:19, Dkt. 37. Agents working under the Variable Plan were classified as exempt from California and federal overtime laws, and were allowed to work overtime. Id. Ex. 2 ("Malik Dep.") at 41:4-42:8. At all relevant times while Burden worked under the Variable Plan (i.e., from the beginning of the limitations period on February 9, 2006 until his termination on January 26, 2009), his total earnings exceeded one and one-half times the applicable California and federal minimum wages. Compare Burden Dep. at 117:17-118:8, 119:13-121:20, with Industrial Welfare Commission, History of California Minimum Wage, available at http://www.dir.ca.gov/iwc/minimumwagehistory.htm, and Wage and Hour Division, U.S. Dep't of Labor, History of Federal Minimum Wage Rates Under the Fair Labor Standards Act, 1938-2009, http://www.dol.gov/whd/minwage/chart.htm.
While employed by SelectQuote, Burden worked under two versions of the Variable plan, one adopted in 2005 (the "2005 Plan") and the other adopted in 2007 (the "2007 Plan"). Burden worked under the 2005 Plan from February 9, 2006, through March 31, 2007. Malik Decl. ¶¶ 4, 6. Under the 2005 Plan, agents such as Burden
All SelectQuote agents participating in the 2005 Plan received a monthly draw of $3,333.33 ($40,000 per year). Id. at 2. Recognizing the lengthy insurance application process and the amount of time before a policy becomes "in force," SelectQuote paid its agents an advance (referred to as an "ARS Advance") for every application where a completed medical exam had been received by the carrier. Id. at 1. To calculate the ARS Advance, SelectQuote created a table listing eleven types of leads (i.e., advertising calls, web e-mails, etc.), with an assigned dollar value for each type of lead. Id. at 4. To determine an agent's ARS Advance for a given month, Select-Quote would first multiply the assigned value for a given lead type by the number of sales generated by the particular type of lead. Id. at 3-4. From this aggregate sum, SelectQuote subtracted the $3,333.33 monthly draw previously paid to the agent. Id. at 2. As long as the earned ARS Advance exceeded the draw, the agent kept the excess. See id. If the monthly draw exceeded the ARS Advance, SelectQuote recouped the difference. See id. at 2, 21.
In addition to reconciling the ARS Advances with the monthly draw, SelectQuote later reconciled the ARS Advances with the actual commission the agent earned on in-force policies. Malik Dep. at 67:17-68:4; Malik Decl. ¶ 9. If the commission earned exceeded the ARS Advance, SelectQuote paid the agent the difference. See Second Kubin Decl. Ex. B at 11, Dkt. 42. But if the ARS Advance exceeded the commission earned, SelectQuote recouped the difference. See id.; Malik Dep. at 67:17-68:4. After SelectQuote recouped any unearned portions of an agent's monthly draw and ARS Advances, the agent's actual compensation would reflect earned percentage commissions on in-force premiums plus any unrelated components of compensation. See Malik Dep. at 67:17-25; Malik Decl. ¶ 9.
Burden worked under the 2007 Plan from April 1, 2007, until SelectQuote terminated his employment on January 26, 2009. See Malik Decl. ¶¶ 6-8. The 2007 Plan continued to advance agents a monthly draw. Second Kubin Decl. Ex. F at 1, Ex. G at 1, Dkt. 42. However, the 2007 Plan eliminated the ARS Advances. Malik Decl. ¶ 9; Burden Dep. at 110:14-19. Rather than paying out ARS Advances and later reconciling them with percentage commissions, the 2007 Plan simply paid out a monthly commission for each policy sold the previous month. Malik Decl. ¶ 9; Second Kubin Decl. Ex. F at 1, Ex. G at 1. The percentage commissions paid under the 2007 Plan were essentially identical to those paid under the 2005 Plan, Malik Decl. ¶ 9, and the 2007 Plan reconciled the draw with earned commissions on a monthly basis, Second Kubin Decl. Ex. F at 1, Ex. G at 1.
On February 19, 2010, Burden filed a class action lawsuit against SelectQuote in San Francisco County Superior Court. Notice of Removal ("Removal") Ex. A at 10, Dkt. 1. He alleged that SelectQuote
SelectQuote removed the action to this Court on December 30, 2010, Removal ¶ 1, and it answered the FAC on April 18, 2011, Answer at 1. Burden filed a Motion for Class Certification on May 25, 2011. Pl.'s Mot. for Class Certification. Select-Quote filed a Motion for Summary Judgment less than a week later. Mot. Summ. J. ("Mot."), Dkt. 34. On July 19, 2011, 2011 WL 2885016, the Court issued an order holding Burden's Motion for Class Certification in abeyance pending adjudication of SelectQuote's Motion for Summary Judgment. Order Re-setting Hearings at 3, Dkt. 50. Burden filed his Opposition to SelectQuote's Motion for Summary Judgment on August 5, 2011. Opp'n, Dkt. 53. SelectQuote filed a redacted Reply on August 23, 2011. Redacted Reply. The parties have fully briefed the Motion for Summary Judgment, and it is ripe for adjudication.
Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment on some or all of the claims or defenses presented in an action. Fed. R.Civ.P. 56(a). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. Where, as here, there is no genuine dispute as to any issue of material fact, see Pl.'s Mot. for Class Certification at 7, the Court may grant summary judgment or partial summary judgment as to any cause of action if the moving party is entitled to judgment as a matter of law, see Fed.R.Civ.P. 56(a); see also Smith v. Califano, 597 F.2d 152, 155 n. 4 (9th Cir.1979) (finding summary judgment appropriate where parties agreed on material facts and dispute rested on interpretation of statutes and regulations).
Burden's first cause of action alleges that SelectQuote violated California Labor Code section 510 and California Wage Order 4-2001 by failing to pay overtime wages to him and other SelectQuote agents participating in the 2005 Plan. FAC ¶¶ 16-17. California law generally requires overtime pay for employees who work in excess of eight hours in a workday or forty hours in a workweek. Cal. Lab. Code § 510(a); 8 Cal.Code Regs. § 11040(3)(A). Those requirements, however, do not apply to any employee (1) "whose earnings exceed one and one-half (1½) times the minimum wage," if (2) "more than half (½) of that employee's compensation represents commissions." 8 Cal.Code Regs. § 11040(3)(D).
SelectQuote argues that it properly classified Burden as exempt from California overtime laws. Mot. Summ. J. at 10-14. Courts construe narrowly the exemptions from California's "statutory mandatory overtime provisions," and SelectQuote bears the burden of proving Burden was properly classified, See Ramirez v. Yosemite
It is undisputed that Burden's earnings exceeded one and one-half times the California minimum wage during the period he worked under the 2005 Plan. In 2006, California's minimum wage was $6.75 per hour. Industrial Welfare Commission, History of California Minimum Wage, available at http://www.dir.ca.gov/iwc/minimumwagehistory.htm. In 2007, California's minimum wage increased to $7.50 per hour. Id. Burden concedes that his compensation under the 2005 Plan was effectively $10.13 per hour for 2006 and $11.25 per hour for 2007 — amounts which exceed one and onehalf times the minimum wage in effect at that time. See Burden Dep. at 118:6-8, 120:2-5. Therefore, SelectQuote has established the first element required to prove that Burden was exempt from California's overtime pay requirements. See 8 Cal.Code Regs. § 11040, subd. 3(D).
The parties' dispute centers on the second element for the overtime exemption; namely, whether more than half of Burden's compensation represents "commissions." See id. In California, "[c]ommission wages are compensation paid to any person for services rendered in the sale of such employer's property or services and based proportionately upon the amount or value thereof." Cal. Lab.Code § 204.1; see also Ramirez, 20 Cal.4th at 803, 85 Cal.Rptr.2d 844, 978 P.2d 2. Burden does not dispute that SelectQuote paid him for services rendered in the sale of its property or services, but instead, challenges whether SelectQuote paid him "commissions" as defined in California Labor Code section 204.1. See Opp'n at 4-6.
As established above, "commissions" must be based proportionately on the "amount or value" of the property or services an employee sells. See Cal. Lab. Code § 204.1. In order to be a commission based proportionately upon "value," see Cal. Lab.Code § 204. 1, compensation "must be a percent of the price of the product or service," see Keyes Motors, Inc. v. Div. of Labor Standards Enforcement, 197 Cal.App.3d 557, 563, 242 Cal.Rptr. 873 (1987). A commission is based proportionately upon an "amount" where an employer pays an employee a uniform fee for each unit of property or service sold. See Areso v. CarMax, Inc., 195 Cal.App.4th 996, 1006-09, 124 Cal.Rptr.3d 785 (2011), pet'n for review denied, No. 5194365, slip op. at 1 (Cal. Aug. 31, 2011).
Here, the record establishes that Burden's incentive compensation under the 2005 Plan was calculated based on a percentage of the premiums of the policies he sold that became "in force," i.e., policies
Even assuming arguendo that Burden's ARS Advances constituted his actual commissions — which they did not — the advances nevertheless satisfy the definition of "commission" for purposes of California's overtime laws. See Areso, 195 Cal. App.4th at 1006-09, 124 Cal.Rptr.3d 785. In Areso, the court noted that California Labor Code section 204.1 requires commission wages to be "`based proportionately upon the amount or value' of the property or services sold." Id. at 1006, 124 Cal.Rptr.3d 785 (emphasis in original). Because Keyes defined proportionality based only on "value," the Areso court interpreted section 204.1's reference to the term "amount" as an issue of first impression. Id. at 1007, 124 Cal.Rptr.3d 785. The court held that commission wages could also be "based proportionately on the amount (number) of property or services sold by the employee." Id. (emphasis in original).
Under Burden's interpretation of the Plan, ARS Advances are precisely the type of "uniform fee" for each unit of property or service sold that Areso held to constitute commission compensation. See id. at 1006-09, 124 Cal.Rptr.3d 785. For each policy sold, SelectQuote paid Burden a uniform ARS Advance based on the type of lead that generated the sale. Burden argues that the Court should not apply Areso to his case, as Areso "would allow every fixed amount of incentive compensation per lead type or Globe policy to be a `commission.'" Opp'n at 6. He is partially
Having established that Burden's commissions include his reconciled ARS Advances and monthly draw plus any additional commission paid after reconciliation, the Court must now determine whether those payments constitute greater than half of Burden's total compensation. See Cal.Code Regs., tit. 8, § 11040, subd. 3(D). They clearly do. From February 9, 2006 — the beginning of the limitations period — through December 31, 2006, nearly eighty-eight percent of Burden's total earnings came from commissions. Malik Dep. ¶ 4. From January 1, 2007, through March 31, 2007 — the last day Burden worked under the 2005 Plan — nearly sixty percent of his total earnings came from commissions. Id. ¶ 6.
In sum, SelectQuote has demonstrated that it properly classified Burden as exempt under Wage Order 4-2001. See Cal. Code Regs., tit. 8, § 11040(3)(D). At all relevant times, his earnings exceeded one and one-half times the California minimum wage, and greater than half of his total compensation came from commissions. Cf. id. Therefore, SelectQuote is entitled to summary judgment on Plaintiffs first cause of action. See Fed.R.Civ.P. 56(a).
Burden's second cause of action alleges that SelectQuote violated the FLSA by misclassifying him and other agents working under the 2005 and 2007 Plans as exempt employees. FAC ¶ 22-23. The sole issue presented with respect to Burden's FLSA claim is whether SelectQuote is entitled to seek the shelter of the "retail or service establishment" exemption afforded under 29 U.S.C. § 207(i).
Enacted by Congress in 1938, the FLSA requires employers to pay employees a regular hourly rate for up to forty hours a week and overtime compensation at a rate of one and one-half times the regular rate for hours worked in excess of forty. See 29 U.S.C. § 207(a)(1). At the time of its enactment, the FLSA contained a nowrepealed exemption for "any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce." 29 U.S.C. § 213(a)(2) (repealed by Pub. L. No. 101-157 (1989)). Although the Act did not define "retail or service establishment," in 1941, the Department of Labor ("DOL") issued an interpretive bulletin regarding the scope and applicability of § 213(a)(2). See In re Wells Fargo Home Mortg. Overtime Pay Litig., No. C 06-1770 MHP, 2008 WL 2441930, *3 (N.D.Cal.
In 1961, Congress enacted the exemption which is now at issue, § 7(i) of the FLSA, now codified as 29 U.S.C. § 207(i). Pub. L. 87-30, 75 Stat. 65 (1961) (originally enacted as 29 U.S.C. § 207(h)). Section 7(i), often referred to as the "retail or service exception," provides:
29 U.S.C. § 207(i) (emphasis added). The legislative history following the 1961 amendment indicates that Congress intended that, for purposes of § 207(i), the term "retail or service establishment" is defined as set forth in § 213(a)(2). See 29 C.F.R. §§ 779.24, 779.312, 779.411.
The DOL's interpretive regulations identify three characteristics of a retail or service establishment: (1) it typically "sells goods or services to the general public," (2) "serves the everyday needs of the community in which it is located," and (3) "performs a function in the business organization of the Nation which is at the very end of the stream of distribution, disposing in small quantities of the products and skills of such organization and does not take part in the manufacturing process." 29 C.F.R. § 779.318(a). DOL regulations also provides a "partial list" of establishments "to which the retail concept does not apply," such as accounting firms, brokers, building contractors, common carriers, insurance brokers and agents, doctors, dentists, pharmacists, and other medical providers, schools, telephone companies, and travel agencies. Id. § 779.317 (emphasis added). These types of businesses are deemed to fall outside the ambit of the exemption afforded by the retail or service exemption. See Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 295, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959).
Section 779.317 expressly identifies "insurance" as being among the "list of establishments to which the retail concept does not apply." 29 C.F.R. § 779.317 (identifying: "Brokers, custom house; freight brokers; insurance brokers, stock or commodity brokers" and "Insurance; mutual, stock and fraternal benefit, including insurance brokers, agents, and claims adjustment offices.") (emphasis added). SelectQuote acknowledges that "[i]nsurance" and "insurance brokers" are expressly identified in § 779.317, but nonetheless asserts that § 779.317 is inapposite because it is operating a "new type of business" that is "not covered by the Insurance Industry exclusion from the `retail concept' in the FLSA regulations." Mot. at 18.
As support for its position, SelectQuote relies principally on two out-of-circuit cases, which ostensibly concluded that a business lacking a retail concept under § 779.317 may nonetheless qualify for the retail or service exemption. Mot. at 18-19. In Hodgson v. Centralized Servs., Inc., 457 F.2d 824 (4th Cir.1972), the court held that an income tax preparation service qualified as a retail or service establishment under the FLSA, notwithstanding a prior DOL interpretation stating that "accounting firms" lacked the retail concept. Id., 457 F.2d at 827. In reaching its decision, the court noted that the DOL'S pre-1949 exclusion of "accounting firms" should not "arbitrarily embrace the unsophisticated business activities of the defendants in an area of service which came into being and had developed throughout the country only during the past decade." Id.
In Selz v. Investools, Inc., No. 2:09-CV-1042 TS, 2011 WL 285801 (D.Utah Jan. 27, 2011), the court ruled that a company that marketed products and services to educate individuals on how to personally invest in exchange markets online and aid them in doing so did not qualify as one of the specific establishments exempt from the retail exception. While noting that that § 779.317 specifies that educational institutions, finance companies and investment counseling firms lack a retail concept, the employer, "as a marketer of materials that teach and aid individuals to do their own financial investing, does not fit into the traditional concept of an educational institution, such as a for-profit university; a finance company, such as a bank; or an investment counseling firm." Id. at *6 (emphasis added). The court concluded that "marketing tools to aid individuals in independently investing personal funds is its own industry" and therefore § 779.317 was not a bar to the FLSA exemption afforded under 29 U.S.C. § 317(i). Id.
SelectQuote claims that like the businesses in Hodgson and Selz, it too has developed a business model that is not encompassed in § 779.317. According to SelectQuote, its direct marketing approach "turned the life insurance industry on its head" by having its agents contact prospective
SelectQuote's self-aggrandizing arguments for avoiding the preclusive effect of § 779.317 are unavailing. In both Hodgson and Selz, the type of businesses operated by the defendants did not previously exist. In Hodgson, the court noted that the defendant's tax preparation service had then only come into existence within a relatively recent period of time. 457 F.2d at 827. Likewise, in Selz, the court focused on the fact that the defendant's business of selling do-it-yourself investment materials did not fall under the rubric of a bank, finance company or educational institution. 2011 WL 285801, at *6. In contrast, Select-Quote's business bears none of the hallmarks of a new type of business establishment. Although SelectQuote has changed the method by which an agent sells life insurance — namely, directly by telephone instead of face-to-face — the fact remains that SelectQuote is still selling life insurance.
Moreover, SelectQuote's own statements purporting to explain why its business supposedly is so revolutionary underscores the logical flaws in its argument. Section 779.317 identifies "Insurance" and "insurance brokers" — not "life insurance" or "term life insurance" — as establishments lacking a retail concept. See 29 C.F.R. § 779.317. Ironically, what SelectQuote claims to be "new" is not new at all; rather, as SelectQuote itself acknowledges, it simply is employing direct marketing methods that have long been used in the property and casualty insurance business. Singh Decl. ¶ 5. In other words, Select-Quote has made life insurance sales more like the traditional insurance brokerages, which clearly are within the scope of § 779.317. In Hodgson and Selz, the defendants changed a specifically-listed industry so fundamentally as to distinguish it from an industry listed in section 779.317. See Selz, 2011 WL 285801, at *6; Hodgson, 457 F.2d at 827. The logic of those cases does not apply in cases such as the present, where a company simply has changed its business to be more like a business which indisputably falls within the scope of § 779.317. For these reasons, the Court finds that SelectQuote falls within the insurance brokerage industry that section 779.317 finds to lack the requisite retail concept to qualify for an exemption from the FLSA's overtime requirements.
As an alternative matter, Select-Quote argues that the Court should decline to apply § 779.317 on the ground that it lacks a rational basis for concluding that insurance establishments are not exempt as a retail or service establishment. Mot. at 20-22. According to SelectQuote, "[s]ection 779.317 is an `antiquated interpretation' that does not take into account the fundamental changes over the past four decades regarding what is considered a `retail or service establishment,' and it should not preclude SelectQuote from applying the section 7(i) exemption to Burden." Id. at 22.
To support its position, SelectQuote points to cases where courts have declined to defer to the DOL's list of non-retail establishments set forth in § 779.317 where there is no discernable rational basis for the DOL's determination that type of business lacks a retail concept. See Martin v. The Refrigeration Sch., Inc., 968 F.2d 3
In light of the above, the Court finds that § 779.317 is a persuasive embodiment of the Department of Labor's "body of experience and informed judgment." See Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The Court further finds that SelectQuote has not shown "plainly and unmistakably" that Burden's exemption was within the "terms and spirit" of the FLSA. See Arnold, 361 U.S. at 392, 80 S.Ct. 453. As an insurance broker, SelectQuote is not a "retail or service establishment" and thus is not exempt from the FLSA's overtime requirements. See 29 U.S.C. § 207(a); 29 C.F.R. § 779.317. Therefore, SelectQuote is not entitled to summary judgment of Burden's second cause of action. See Fed.R.Civ.P. 56(a).
SelectQuote argues that Burden's third cause of action for failure to pay all wages owed upon termination and fourth cause of action for unfair competition must fail because they are derivative of his overtime claims. See Mot. at 23; Reply at 14. Because Burden's second cause of action survives SelectQuote summary judgment motion, SelectQuote is not entitled to judgment as a matter of law on Burden's derivative claims to the extent they are predicated on the FLSA. Cf. Steinhebel v. L.A. Times Commc'ns, LLC, 126 Cal.App.4th 696, 712, 24 Cal.Rptr.3d 351 (2005). Therefore, the Court finds that SelectQuote is not entitled to summary judgment as to Burden's third and fourth causes of action.
For the reasons stated above,
IT IS HEREBY ORDERED THAT
1. SelectQuote's motion for summary judgment is GRANTED as to Plaintiff's first cause of action and DENIED as to all other claims.
2. The parties shall appear for a telephonic Case Management Conference on
3. This Order terminates Docket 34 and 55.
IT IS SO ORDERED.