By Irene Spezzamonte Law360 (August 24, 2022, 2:03 PM EDT) — A proposed wage and hour class action against a construction company involves questions of state law and is not preempted by the Labor Management Relations Act, a California federal judge said, sending the case back to state court.

U.S. Magistrate Judge Laurel Beeler on Tuesday denied Gonsalves & Santucci Inc.’s motion to dismiss a former construction worker’s suit claiming several wage and hour violations, including unpaid wages for off-the-clock work, saying that the allegations don’t require an analysis of a collective bargaining agreement. Therefore, Judge Beeler said, the suit is not preempted by Section 301 of the Labor Management Relations Act.

“The CBA has dispute procedures, but the plaintiff can raise – and the court can resolve — the dispute under state law without interpreting the CBA,” Judge Beeler said. “It is a straightforward task of determining the hours worked and calculating whether the plaintiff was paid minimum wage for those hours.”

Gonsalves & Santucci urged the court in July to dismiss Elmer N. Rodriguez’s second amended complaint, saying that the worker failed to factually support his claims even after the court dismissed an earlier version of the suit.Additionally, the company said most of Rodriguez’s claims are preempted by Section 301 of the LMRA, which allows recourse for CBA violations.

Rodriguez rejected that argument, saying that his claims don’t require an analysis of the CBA.Even if the court would side with the company, the waiting-time penalty claims cannot be dismissed “because there is no CBA-based exemption for an employer’s duty to timely pay all wages due,” Rodriguez said. Overall, Rodriguez accused Gonsalves & Santucci of not paying minimum wage, not providing accurate wage statements, not paying all wages due on termination and unfair competition under California law.

Judge Beeler said Tuesday that while his first complaint had claims that were preempted by the LMRA, “the pared-down case is much simpler” because it alleges that Rodriguez and other workers were not paid for the work they performed before and after their shifts, leading to unpaid minimum wage.

Because the accurate wage statements, the wages due on termination and unfair competition claims are all derivative of the minimum wage one, Rodriguez’s suit can still stand, Judge Beeler said.

Judge Beeler also turned down the company’s argument that the CBA governs the employment relationship it had with Rodriguez, including what work is compensable, saying that state law also directs what work is compensable.

“And even if in some sense the CBA governs the employment relationship, the LMRA will not displace state law where state law concurrently and comprehensively governs those aspects of the employment relationship that are the subject of the plaintiff’s claims,” Judge Beeler said.

Judge Beeler said that given that the LMRA doesn’t preempt Rodriguez’s suit, the court doesn’t have subject matter jurisdiction. She remanded the proposed class action to Contra Costa County Superior Court, where the worker first sued.

Rodriguez sued Gonsalves & Santucci in August 2021, and the company removed the lawsuit to federal court in October.

Rodriguez, who worked for the company from February 2020 to December 2020, claimed that he and other workers were required to perform off-the-clock work that led to unpaid overtime, were not able to take meal and rest breaks, received inaccurate wage statements and did not receive all their wages after termination.

The court dismissed the first complaint in January but gave Rodriguez a chance to amend it.

The LMRA still preempted the first amended complaint, the court ruled in April, giving Rodriguez a chance to file a second amended complaint, which was the one at stake in Tuesday’s decision.

Jeffrey C. Bils of Bibiyan Law Group PC, who is representing Rodriguez, said Wednesday, “The court’s ruling is a powerful reminder that California law does not allow employers to bargain around their statutory duty to pay for all hours of work that their employees perform.”

Representatives for Gonsalves & Santucci did not immediately respond to a request for comment Wednesday.

Rodriguez is represented by David D. Bibiyan, Jeffrey C. Bils and Diego Aviles of Bibiyan Law Group PC.

Gonsalves & Santucci is represented by Gregory G. Iskander and Renee C. Feldman of Littler Mendelson PC.

The case is Rodriguez v. Gonsalves & Santucci Inc., case number 3:21-cv-07874, in the U.S. District Court for the Northern District of California.

–Additional reporting by Max Kutner. Editing by Neil Cohen.

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David Bibiyan is a distinguished attorney at Tomorrow Law, renowned for his expertise in employment law. With a strong focus on representing employees in various workplace disputes, he has become a trusted advocate for those facing discrimination, harassment, wrongful termination, and wage and hour issues. Bibiyan’s approach is characterized by a deep understanding of both state and federal employment laws, ensuring that his clients receive knowledgeable and effective representation. His commitment to justice is evident in his dedication to each case, where he meticulously works to secure the best possible outcomes for his clients. Bibiyan’s reputation is built on a foundation of successful case resolutions, marked by his skillful negotiation and, when necessary, aggressive litigation strategies. His work at Tomorrow Law reflects a genuine passion for defending workers’ rights and promoting fair employment practices.

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