Boone Amazon MTN To Dismiss

Case 1:21-cv-00241-DAD-BAM Document 24 Filed 06/03/21 Page 1 of 32
1 KATHERINE V.A. SMITH, SBN 247866

[email protected]
2 BRADLEY J. HAMBURGER, SBN 266916
[email protected]
3 GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
4 Los Angeles, CA 90071-3197
Telephone: 213.229.7000
5 Facsimile: 213.229.7520
6 JASON C. SCHWARTZ (admitted pro hac vice)

[email protected]
7 ANDREW G.I. KILBERG (admitted pro hac vice)
[email protected]
8 CLAIRE L. CHAPLA (SBN 314255)
[email protected]
9 GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
10 Washington, DC 20036-5306
Telephone: 202.955.8500
11 Facsimile: 202.467.0539
12 Attorneys for Defendant

AMAZON.COM SERVICES LLC
13
UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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FRESNO DIVISION
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HEATHER BOONE and ROXANNE Case No. 1:21-cv-00241-DAD-BAM
17 RIVERA, on behalf of themselves and all
others similarly situated NOTICE OF MOTION AND MOTION BY
18 DEFENDANT AMAZON.COM SERVICES LLC
Plaintiffs, TO DISMISS PURSUANT TO RULE 12(B)(1)
19 AND 12(B)(6); MEMORANDUM OF POINTS
v. AND AUTHORITIES
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AMAZON.COM SERVICES, LLC, Hearing:
21 Date: July 6, 2021
Defendant. Time: 9:30 AM
22 Place: Courtroom 5
Judge: Judge Dale A. Drozd
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DEFENDANT’S NOTICE OF MOTION, MOTION
TO DISMISS, AND MEMO IN SUPPORT
1 NOTICE OF MOTION AND MOTION TO DISMISS
2 PLEASE TAKE NOTICE that on July 6, 2021, at 9:30 a.m., or as soon thereafter as the matter
3 may be heard, in Courtroom 5, 7th Floor, at 2500 Tulare Street Fresno, CA 93721-4516, before the
4 Honorable Dale A. Drozd, Defendant Amazon.com Services LLC (“Amazon”), by and through its
5 counsel of record, will and hereby does move the Court to enter an order dismissing Plaintiffs Heather
6 Boone and Roxanne Rivera’s first, second, third, fourth, fifth, and sixth causes of action for failure to
7 state a claim under Rule 12(b)(6) and Plaintiffs’ third claim under Rule 12(b)(1) for lack of subject-
8 matter jurisdiction.
9 Amazon moves to dismiss all of Plaintiffs’ causes of action for failure to state a claim under
10 Rule 12(b)(6). Plaintiffs failed to plead facts sufficient to establish any plausible claims. First, Plain-
11 tiffs’ claims in their first, second, and sixth causes of action that time spent waiting for and undergoing
12 COVID-19 screenings is compensable under the Fair Labor Standards Act and California law fail as a
13 matter of law; COVID-19 screenings do not satisfy either law’s test for when an activity must be com-
14 pensated. Plaintiffs’ third cause of action alleging Amazon issued inaccurate wage statements fails for
15 multiple reasons. Plaintiffs lack standing to bring this claim and it thus should be dismissed under Rule
16 12(b)(1). Moreover, the claim fails under Rule 12(b)(6) because it is entirely derivative of Plaintiffs’
17 other insufficiently pled claims, is foreclosed under California law, and lacks sufficient allegations that
18 any violation was willful. Plaintiffs’ fourth cause of action seeking waiting time penalties also should
19 be dismissed as derivative of Plaintiffs’ other insufficiently pled claims and because Plaintiffs have
20 failed to adequately allege that any violation of the California Labor Code was willful. Plaintiffs’ fifth
21 cause of action under California’s Unfair Competition Law should also be dismissed because this cause
22 of action is derivative of Plaintiffs’ other claims and because Plaintiffs do not—and cannot—establish
23 that they lack an adequate remedy at law that would justify the Court providing them with equitable
24 relief.
25 This motion is made following the conference of counsel pursuant to the Court’s standing order,
26 which took place via telephone on May 27, 2021.
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1 DEFENDANT’S NOTICE OF MOTION, MOTION
1 Dated: June 3, 2021
2 JASON C. SCHWARTZ
GIBSON, DUNN & CRUTCHER LLP
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By: /s/ Jason C. Schwartz
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6 Attorney for Defendant Amazon.com Services LLC

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TABLE OF CONTENTS
1
Page
2
3 I. INTRODUCTION ............................................................................................................................. 1
4 II. BACKGROUND .............................................................................................................................. 2
5 A. Plaintiffs’ Allegations and Causes of Action ................................................................ 2
6 B. Public Health Measures to Stop the Spread of COVID-19 ........................................... 4
7 III. STANDARD OF REVIEW ............................................................................................................ 5
8 IV. ARGUMENT .................................................................................................................................. 6
9 A. Time Spent in and Waiting for COVID Screenings Is Not Compensable

(Claims 1, 2, & 6).......................................................................................................... 6
10
1. Time Spent in and Waiting for COVID-19 Screenings Is Not
11 Compensable Under the FLSA ......................................................................... 6
12 a. COVID-19 Screenings Are Not “Work” Under the FLSA ................... 7
13 b. COVID-19 Screening Is “Preliminary to” Associates’ Principal

Activities ............................................................................................... 9
14
c. Time Spent in COVID-19 Screenings Is De Minimis. ........................ 12
15
2. Time Spent in and Waiting for COVID-19 Screenings Is Not
16 Compensable “Hours Worked” Under California Law .................................. 14
17 B. Plaintiffs Have Failed to State a Claim for Unpaid Overtime (Claim 2) .................... 18
18 C. Plaintiffs’ Wage Statement Claim is Derivative, They Lack Standing to Bring

the Claim, and the FAC Fails to State the Essential Elements of the Claim
19 (Claim 3) ..................................................................................................................... 19
20 D. Plaintiffs’ Claim for Waiting Time Penalties Is Foreclosed Because Plaintiffs

Do Not and Cannot Allege Willfulness (Count 4) ...................................................... 21
21
E. Plaintiffs’ Claim Under the UCL Should Be Dismissed as Derivative of
22 Plaintiffs’ Other Failed Claims and Because Plaintiffs Have Not Alleged that
the Available Legal Remedies Are Inadequate (Claim 5) .......................................... 22
23
V. CONCLUSION .............................................................................................................................. 23
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i DEFENDANT’S NOTICE OF MOTION, MOTION
TABLE OF AUTHORITIES
1
Page(s)
2
3 CASES
4 Aguilar v. Mgmt. & Training Corp.,
948 F.3d 1270 (10th Cir. 2020).......................................................................................................11
5
Alvarez v. IBP, Inc.,
6
339 F.3d 894 (9th Cir. 2003).................................................................................................6, 13, 14
7
Amaral v. Cintas Corp. No. 2,
8 163 Cal. App. 4th 1157 (2008) .......................................................................................................22
9 Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680 (1946) ..........................................................................................................1, 6, 12, 13
10
Ashcroft v. Iqbal,
11
556 U.S. 662 (2009) ..........................................................................................................................5
12
Bamonte v. City of Mesa,
13 598 F.3d 1217 (9th Cir. 2010).......................................................................................................6, 7
14 Barnhill v. Robert Saunders & Co.,

125 Cal. App. 3d 1 (1981)...............................................................................................................21
15
Bell Atl. Corp. v. Twombly,
16 550 U.S. 544 (2007) ......................................................................................................................5, 6
17
Blue Chip Stamps v. Manor Drug Stores,
18 421 U.S. 723 (1975) ..........................................................................................................................5
19 Bonilla v. Baker Concrete Constr., Inc.,

487 F.3d 1340 (11th Cir. 2007).....................................................................................................8, 9
20
Brinker Rest. Corp. v. Superior Court,
21 53 Cal. 4th 1004 (2012) ..................................................................................................................18
22 Ceja-Corona v. CVS Pharmacy, Inc.,
23 2013 WL 796649 (E.D. Cal. Mar. 4, 2013) ................................................................................6, 13
24 Cervantez v. Celestica Corp.,

253 F.R.D. 562 (C.D. Cal. 2008) ....................................................................................................16
25
Chagoya v. City of Chicago,
26 992 F.3d 607 (7th Cir. 2021)...........................................................................................................12
27 Christensen v. Harris Cty.,
28 529 U.S. 576 (2000) ........................................................................................................................11
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ii DEFENDANT’S NOTICE OF MOTION, MOTION
1
Page(s)
2
3 Dawson v. Hitco Carbon Composites, Inc,

2017 WL 7806358 (C.D. Cal. May 5, 2017) ..................................................................................21
4
Diaz v. Grill Concepts Servs., Inc.,
5 23 Cal. App. 5th 859 (2018) ...........................................................................................................21
6
Dinkel v. MedStar Health Inc.,
7 99 F. Supp. 3d 37 (D.D.C. 2015) ....................................................................................................12
8 Dutta v. State Farm Mut. Auto. Ins. Co.,

895 F.3d 1166 (9th Cir. 2018).........................................................................................................20
9
Eclectic Props. East, LLC v. Marcus & Millichap Co.,
10 751 F.3d 990 (9th Cir. 2014).............................................................................................................5
11
Ellis v. Costco Wholesale Corp.,
12 657 F.3d 970 (9th Cir. 2011)...........................................................................................................22
13 Franklin v. Gwinnett Cty. Pub. Sch.,

503 U.S. 60 (1992) ..........................................................................................................................22
14
Frlekin v. Apple Inc.,
15 48 Cal. 5th 1038 (2020) ............................................................................................................14, 15
16 Frlekin v. Apple Inc.,
17 8 Cal. 5th 1038 (Cal. 2020) .............................................................................................1, 16, 17, 18
18 Gibbs v. City of N.Y.,

87 F. Supp. 3d 482 (S.D.N.Y. 2015) .................................................................................................7
19
Gorman v. Consol. Edison Corp.,
20 488 F.3d 586 (2d Cir. 2007) ............................................................................................................10
21 Griffin v. Sachs Electric Co.,
390 F. Supp. 3d 1070 (N.D. Cal. 2019) ....................................................................................15, 16
22
23 Harris v. Best Buy Stores, L.P.,

2018 WL 984220 (N.D. Cal. Feb. 20, 2018) ..................................................................................19
24
IBP, Inc. v. Alvarez,
25 546 U.S. 21 (2005) ................................................................................................................1, 12, 13
26 Integrity Staffing Solutions, Inc. v. Busk,
574 U.S. 27 (2014) ........................................................................................................1, 6, 9, 10, 12
27
28 Johnson v. Winco Foods, LLC,

2018 WL 6017012 (C.D. Cal. Apr. 2, 2018) ..................................................................................21
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iii DEFENDANT’S NOTICE OF MOTION, MOTION
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Page(s)
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3 Kazi v. PNC Bank, N.A.,

2021 WL 965372 (N.D. Cal. Mar. 15, 2021) ..................................................................................20
4
Kirchner v. First Advantage Background Servs. Corp.,
5 2016 WL 6766944 (E.D. Cal. Nov. 14, 2016) ................................................................................19
6
Krauss v. Wal-Mart, Inc.,
7 2019 WL 6170770 (E.D. Cal. Nov. 20, 2019) ................................................................................21
8 Landers v. Quality Commc’ns, Inc.,

771 F.3d 638 (9th Cir. 2014).......................................................................................................5, 18
9
Leone v. Mobil Oil Corp.,
10 523 F.2d 1153 (D.C. Cir. 1975) ........................................................................................................7
11
Lindow v. United States,
12 738 F.2d 1057 (9th Cir. 1984)...................................................................................................13, 14
13 Loc. 1605 Amalgamated Transit Union, AFL-CIO v. Cent. Contra Costa Cty. Transit Auth.,
73 F. Supp. 2d 1117 (N.D. Cal. 1999) ..............................................................................................7
14
Madera Police Officers Ass’n v. City of Madera,
15 36 Cal. 3d 403 (1984) ...............................................................................................................15, 16
16 Makinen v. City of N.Y.,
17 53 F. Supp. 3d 676 (S.D.N.Y. 2014) .................................................................................................7
18 Maldonado v. Epsilon Plastics, Inc.,

22 Cal. App. 5th 1308 (2018) .....................................................................................................2, 20
19
Martinez v. Combs,
20 49 Cal. 4th 35 (2010) ......................................................................................................................17
21 Mays v. Wal-Mart Stores, Inc.,
804 F. App’x 641 (9th Cir. 2020) ...................................................................................................20
22
23 Morillion v. Royal Packing Co.,

22 Cal. 4th 575 (2000) ..................................................................................................15, 16, 17, 18
24
Nakahata v. New York-Presbyterian Healthcare Sys., Inc.,
25 723 F.3d 192 (2d Cir. 2013) ............................................................................................................18
26 Nationwide Biweekly Admin., Inc. v. Superior Court,
9 Cal. 5th 279 (2020) ......................................................................................................................22
27
28 Nature v. United States,

250 F. Supp. 3d 634 (E.D. Cal. 2017) .............................................................................................12
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iv DEFENDANT’S NOTICE OF MOTION, MOTION
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Page(s)
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3 Nicolas v. Uber,
2021 WL 2016161 (N.D. Cal. May 20, 2021) ................................................................................19
4
Price v. Starbucks Corp.,
5 192 Cal. App. 4th 1136 (2011) .......................................................................................................22
6
Saini v. Motion Recruitment Partners, LLC,
7 2017 WL 1536276 (C.D. Cal. Mar. 6, 2017) ..................................................................................17
8 Skidmore v. Swift & Co.,

323 U.S. 134 (1944) ........................................................................................................................11
9
Snowden v. Cty. of Valaveras,
10 2019 WL 4829480 (E.D. Cal. Sept. 30, 2019) ..................................................................................2
11
Sonner v. Premier Nutrition Corp.,
12 971 F.3d 834 (9th Cir. 2020).......................................................................................................2, 22
13 Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) ....................................................................................................................20
14
Starr v. Baca,
15 652 F.3d 1202 (9th Cir. 2011)...........................................................................................................5
16 Steiner v. Mitchell,
17 350 U.S. 247 (1956) ........................................................................................................................10
18 Tan v. GrubHub, Inc.,

171 F. Supp. 3d 998 (N.D. Cal. 2016) ............................................................................................18
19
Tavares v. Cargill Inc.,
20 2019 WL 2918061 (E.D. Cal. July 8, 2019) ...................................................................................19
21 Wheat v. J.B. Hunt Transp., Inc.,
2016 WL 1397673 (C.D. Cal. Apr. 5, 2016) ....................................................................................7
22
23 Wolfe v. Strankman,
392 F.3d 358 (9th Cir. 2004).............................................................................................................5
24
Xiao Lu Ma v. Sessions,
25 907 F.3d 1191 (9th Cir. 2018).........................................................................................................11
26 Yamaha Corp. of Am. v. State Bd. of Equalization,
19 Cal. 4th 1 (1998) ........................................................................................................................18
27
28 Young v. Beard,
2015 WL 1021278 (E.D. Cal. Mar. 9, 2015) ..................................................................................13
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v DEFENDANT’S NOTICE OF MOTION, MOTION
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Page(s)
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3 STATUTES
4 29 U.S.C. § 254 ...................................................................................................................................6, 9
5 Cal. Bus. & Prof. Code § 17200 et seq. ..................................................................................................4
6 REGULATIONS
7 29 C.F.R. § 790.7 ..............................................................................................................................6, 13
8 Cal. Code Regs. tit. 8, § 3205 .................................................................................................................4
9 Cal. Code Regs. tit. 8, § 11070 .............................................................................................................14
10 Cal. Code Regs. tit. 8, § 13520 .............................................................................................................21
11 Cal. Lab. Code § 226 ............................................................................................................................20
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vi DEFENDANT’S NOTICE OF MOTION, MOTION
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This lawsuit is a misguided attempt to hold Amazon.com Services LLC (“Amazon”) liable for
4 actions it took to keep its associates and the community-at-large safe during the COVID-19 pandemic
5 in accordance with government-mandated requirements. Plaintiffs Heather Boone and Roxanne Rivera
6 have sued on behalf of a sprawling putative California class and nationwide collective group, alleging
7 that Amazon associates should have been paid for time they allegedly spent in pre-shift COVID-19
8 screenings, and asserting a bevy of derivative claims based on that core allegation. The Court should
9 dismiss these meritless and insufficiently alleged claims.
10 First, Plaintiffs seek to recover under the Fair Labor Standards Act (“FLSA”) for time spent in
11 and waiting for COVID-19 screenings. But only time spent on work is compensable under the FLSA—
12 i.e., activities controlled or required by the employer that primarily benefit the employer. COVID-19
13 screenings are not conducted primarily for Amazon’s benefit, but rather are California-mandated health
14 precautions designed to ensure the wellbeing and safety of all Amazon associates and the community-
15 at-large, and thus do not constitute compensable work time. Even if the screenings primarily benefit
16 Amazon, however, they are preliminary to the principal activities for which Amazon fulfillment center
17 associates are employed and therefore are not compensable under the Portal-to-Portal Act. See Integ-
18 rity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 35 (2014). It is also abundantly clear that the time
19 associates spend waiting to be screened is not compensable, see IBP, Inc. v. Alvarez, 546 U.S. 21, 41–
20 42 (2005), and Plaintiffs have failed to allege any facts demonstrating that the time employees spend
21 being screened, when separated from the time allegedly spent waiting to be screened, is anything other
22 than de minimis, see Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946). Plaintiffs’ claims
23 under California law for time spent waiting for and in COVID-19 screenings fail for similar reasons.
24 Under the test for compensable time established in Frlekin v. Apple Inc., 8 Cal. 5th 1038 (Cal. 2020),
25 Amazon does not exercise the requisite level of control over its associates during the screenings to
26 make that time constitute “hours worked.”
27 Second, Plaintiffs’ claim that they are due statutory penalties under California law for allegedly
28 inaccurate wage statements also suffers from myriad deficiencies. The claim is entirely derivative of
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1 Plaintiffs’ other insufficiently pled claims. Moreover, Plaintiffs have failed to allege an injury-in-fact
2 resulting from the allegedly inaccurate wage statements and thus lack Article III standing to pursue this
3 claim. Plaintiffs also must show actual injury to state a claim under California Labor Code section 226
4 based on a failure to document wages they claim they were owed but not paid. See Maldonado v.
5 Epsilon Plastics, Inc., 22 Cal. App. 5th 1308, 1337 (2018) (“The purpose of section 226 is to document
6 the paid wages to ensure the employee is fully informed regarding the calculation of those wages.”
7 (quotation marks omitted)). Even if the wage statements were legally deficient, relief would still be
8 unavailable because Plaintiffs have provided no factual allegations from which the Court can infer that
9 any error on the wage statements was the result of willful conduct on Amazon’s part.
10 Third, Plaintiffs seek waiting time penalties under California law. But this claim, too, is deriv-
11 ative and should be dismissed in light of Plaintiffs’ failure to adequately plead their other claims. Plain-
12 tiffs also offer only conclusory allegations about whether Amazon willfully denied them all wages due
13 at the time they were discharged, a necessary prerequisite for recovery. And all of the disputed pay-
14 ments are clearly the subject of good faith disagreements, which bars assessment of penalties.
15 Finally, Plaintiffs seek equitable relief under California’s Unfair Competition Law (“UCL”).
16 But they fail to allege that the legal remedies available to them are inadequate, thereby dooming the
17 prayer for equitable relief. Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020). This
18 claim also fails because it is derivative of the other claims.
19 For all of these reasons, the Court should dismiss Plaintiffs’ First Amended Complaint (“FAC”)
20 in its entirety, with prejudice, because further amendment would be futile. See, e.g., Snowden v. Cty.
21 of Valaveras, 2019 WL 4829480, at *9 (E.D. Cal. Sept. 30, 2019) (Drozd, J.) (dismissing a FAC with
22 prejudice where “amendment is futile”).
23 II. BACKGROUND
24 A. Plaintiffs’ Allegations and Causes of Action
25 Plaintiffs Heather Boone and Roxanne Rivera filed this action against Amazon on behalf of
26 themselves, a putative California class, and a putative nationwide collective under the FLSA. Plaintiffs
27 later amended their complaint to remove certain claims related to alleged security screening and the
28 calculation of overtime rates of pay. The California class is defined as “[a]ll current and former hourly
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1 paid employees of Amazon who underwent a COVID-19 screening during at least one week in the
2 four-year period before the filing of this Complaint to the present.” FAC ¶ 54 (the “California Class”).
3 The FLSA collective is defined as “[a]ll current and former hourly paid employees of Amazon who
4 underwent a COVID-19 screening during at least one week in the three-year period before the filing of
5 this Complaint to the present.” Id. ¶ 64 (the “FLSA Collective”).1 Plaintiff Boone alleges that she
6 worked for Amazon from June 2018 through July 2020 and that her job duties included “gathering
7 packages from the Amazon warehouse, scanning them, placing them in boxes, and labelling the items.”
8 Id. ¶ 24. Plaintiff Rivera alleges that she worked for Amazon from November 2018 to January 2019,
9 and again from May 2020 to October 2020, and that her job duties included “gathering items and plac-
10 ing them in the right location in the warehouse.” Id. ¶ 25.
11 Plaintiffs allege that Amazon has required its associates to be screened for symptoms of
12 COVID-19 before they may clock-in for their shifts. Id. ¶ 27. They allege that Amazon has used two
13 processes for COVID-19 screenings. Under one process, associates “approach a security booth,” where
14 they “swipe[] [their] employee badge[s],” and are asked a handful of questions; they then have their
15 temperature taken by a body scanner, after which they may proceed to clock-in. Id. ¶¶ 28–29. Under
16 the other process, associates allegedly “form a line,” then “one by one” are asked a handful of questions
17 while having their temperature taken manually by another associate; if there is a red flag, the associate
18 is moved to another area and asked some additional questions. Id. ¶¶ 30–31. According to the FAC,
19 “The amount of time it takes to undergo the COVID-19 examination is approximately 10 minutes to
20 15 minutes on average. This amount of time could be longer depending upon the number of other
21 Amazon employees in line for the COVID-19 screening.” Id. ¶ 32.
22 Plaintiffs assert six causes of action. Claims 1 through 4 allege violations of the California
23 Labor Code on behalf of themselves and the California Class they purport to represent, including:
24 (1) failure to pay all hours worked in violation of California Labor Code sections 204, 1194, 1194.2,
25 1197, 1197.1, and 1198 (FAC ¶¶ 83, 85); (2) failure to pay overtime in violation of Wage Order No.
26
27 1
Plaintiffs’ claims are all dependent on screening associates for COVID-19 upon entry to Amazon
28 facilities “[f]ollowing the outbreak of the Coronavirus.” FAC ¶ 22. Amazon notes that that class
definitions are thus temporally overbroad, given the COVID-19 pandemic did not begin until 2020.
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1 4-2001 and California Labor Code sections 510, 558, and 1194 (FAC ¶ 90); (3) failure to furnish wage
2 statements in violation of California Labor Code section 226 (FAC ¶ 98); and (4) failure to pay all
3 wages upon separation from employment in violation of California Labor Code sections 201, 202, 203,
4 and 218 (FAC ¶ 104). Claim 5 seeks equitable relief under the UCL, Cal. Bus. & Prof. Code § 17200
5 et seq., on behalf of Plaintiffs and the California Class. FAC ¶¶ 109–11. Finally, claim 6 alleges
6 violations of the FLSA on behalf of Plaintiffs and the FLSA Collective they purport to represent for
7 failure to pay overtime. Id. ¶ 116.
8 B. Public Health Measures to Stop the Spread of COVID-19
9 Central to Plaintiffs’ claims are the measures Amazon has taken to help combat the spread of
10 COVID-19—measures which have been extensively shaped and in many instances dictated by guid-
11 ance and regulations issued by public health authorities. Under regulations promulgated by the Cali-
12 fornia Division of Occupational Safety and Health (“Cal/OSHA”) that took effect on December 1,
13 2020, all employers are required to “develop and implement a process for screening employees for and
14 responding to employees with COVID-19 symptoms.” Cal. Code Regs. tit. 8, § 3205(c)(2)(B). Before
15 that, guidance issued jointly by both Cal/OSHA and the California Department of Public Health
16 (“CDPH”) as far back as July 2020 instructed businesses operating in nearly every industry to “provide
17 temperature and/or symptom screenings for all workers at the beginning of their shift and any vendors,
18 contractors, or other workers entering the establishment,” or, as an alternative, to require workers to
19 self-screen at home before leaving for the workplace. Amazon’s Request for Judicial Notice (“RJN”),
20 Ex. 1, CDPH and Cal/OSHA, Industry guidance to reduce risk. And starting in April 2020, the City
21 of Fresno (where the facility Plaintiff Boone alleges she worked at is located), ordered all “Essential
22 and Authorized Businesses” to establish a process for “screening employees and visitors, but not cus-
23 tomers,” in accordance with guidelines set by Fresno County. RJN, Ex. 2, City of Fresno Emergency
24 Order 2020-13.
25 Cal/OSHA began citing employers for COVID-related violations—including for failures to im-
26 plement proper screening procedures for employees—far before its COVID-specific regulation was
27 promulgated. See RJN, Ex. 3, Citations for COVID-19 Related Violations; RJN, Ex. 4, Cal/OSHA
28 Issues Citations to Multiple Employers for COVID-19 Violations. And since at least May 2020, the
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1 Centers for Disease Control and Prevention (“CDC”) has urged employers to consider implementing
2 COVID-19 screening. See RJN, Ex. 5, Guidance for Businesses and Employers Responding to Coro-
3 navirus Disease 2019 (COVID-19).
4 III. STANDARD OF REVIEW
5 In order to avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), “a complaint must
6 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
8 (2007)). Similarly, under Rule 12(b)(1), a defendant may “assert that[ ] the allegations contained in a
9 complaint are insufficient on their face to invoke federal jurisdiction.” Wolfe v. Strankman, 392 F.3d
10 358, 362 (9th Cir. 2004). Although a court assessing the sufficiency of a complaint must accept factual
11 allegations as true, this rule is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “[A] com-
12 plaint that offers ‘labels and conclusions, . . . a formulaic recitation of the elements of a cause of ac-
13 tion[,]’ or ‘naked assertion[s]’ devoid of ‘further factual enhancement’ will not suffice.” Landers v.
14 Quality Commc’ns, Inc., 771 F.3d 638, 641 (9th Cir. 2014) (quoting Twombly, 550 U.S. at 555, 557).
15 Moreover, the factual allegations “must be enough to raise a right to relief above the speculative level,”
16 and they must do more than “create[] a suspicion of a legally cognizable right of action.” Twombly,
17 550 U.S. at 555 (internal quotation marks and citation omitted). Rather, a plaintiff must allege the
18 “kind of factual allegations that ‘nudg[e] their claims across the line from conceivable to plausible.’”
19 Eclectic Props. East, LLC v. Marcus & Millichap Co., 751 F.3d 990, 997 (9th Cir. 2014) (quoting
20 Twombly, 550 U.S. at 570). In conducting its analysis, a court must “draw on its judicial experience
21 and common sense.” Iqbal, 556 U.S. at 679. It acts as a gatekeeper to ensure that, based on the plain-
22 tiff’s claims, “it is not unfair to require the opposing party to be subjected to the expense of discovery
23 and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
24 These standards exist to ensure that a plaintiff “with a largely groundless claim” cannot simply
25 “take up the time of a number of other people,” by pursuing a suit without even the “reasonably founded
26 hope that the [discovery] process will reveal relevant evidence.” Starr, 652 F.3d at 1213 (citing Blue
27 Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741 (1975)). Concerns related to unnecessary ex-
28 pense and the waste of time and judicial resources are particularly relevant where, as here, Plaintiffs
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1 purport to represent a large class alleging violations that span over a period of years. See Twombly,
2 550 U.S. at 559. It is only by “taking care to require allegations” to meet a plausibility standard that
3 courts can adequately guard against these significant risks. Id.
4 IV. ARGUMENT
5 A. Time Spent in and Waiting for COVID Screenings Is Not Compensable (Claims 1, 2, & 6)
6 Plaintiffs allege that Amazon owes them pay under the FLSA and the California Labor Code
7 for time spent in COVID-19 screenings before they clock in for work, as well as any time associates
8 spend waiting in line for such screenings. Plaintiffs have failed to state a claim under Rule 12(b)(6)
9 because they have not plausibly alleged that Amazon’s COVID-19 screenings are compensable time
10 under either federal or state law.
11 1. Time Spent in and Waiting for COVID-19 Screenings Is Not Compensable Under
12 the FLSA
13 The Ninth Circuit applies “a three-step approach to determine when an activity was compensa-
14 ble within the definitions of the FLSA and the Portal[-]to-Portal Act.” Ceja-Corona v. CVS Pharmacy,
15 Inc., 2013 WL 796649, at *4 (E.D. Cal. Mar. 4, 2013) (citing Bamonte v. City of Mesa, 598 F.3d 1217,
16 1224 (9th Cir. 2010)). “The three steps are (1) whether the activity constituted ‘work,’ (2) whether the
17 activity was an ‘integral and indispensable’ duty, and (3) whether the activity was de minimis.” Id.
18 Plaintiffs’ claim that time spent waiting for and undergoing COVID-19 screening is compen-
19 sable under the FLSA fails at each step. First, because Amazon associates do not undergo COVID-19
20 screening for the primary purpose of benefiting Amazon, the screenings are not “work” for which
21 compensation may be owed under the FLSA. See Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir.
22 2003). Second, even if COVID-19 screening is “work,” it is “preliminary” to “the principal activity or
23 activities which such employee is employed to perform,” and thus non-compensable under the Portal-
24 to-Portal Act. 29 U.S.C. § 254(a); see Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 35 (2014).
25 Third, any time spent waiting for COVID-19 screening is not compensable under the FLSA, see 29
26 C.F.R. § 790.7(g), and the FAC fails to allege that the time it takes Amazon associates to complete the
27 actual COVID-19 screenings is anything more than de minimis, see Anderson v. Mt. Clemens Pottery
28 Co., 328 U.S. 680, 692 (1946).
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1 a. COVID-19 Screenings Are Not “Work” Under the FLSA
2 The test for whether an activity constitutes “work,” and therefore must be compensated, under
3 the FLSA “contains two conjunctive components—activity that is controlled or required by the em-
4 ployer, and that is pursued necessarily and primarily for the benefit of the employer.” Bamonte v. City
5 of Mesa, 598 F.3d 1217, 1224–25 (9th Cir. 2010) (citations omitted). Both prongs must be met for an
6 activity to be compensable work. Id. COVID-19 screenings do not satisfy this test because they are
7 not conducted primarily for Amazon’s benefit. The FAC’s conclusory allegation to the contrary is not
8 supported by facts that make the assertion plausible. See FAC ¶¶ 40–41. Rather, COVID-19 screen-
9 ings are part of a nationwide public health initiative that transcends any particular interest Amazon may
10 have; while they incidentally benefit Amazon, they also benefit its associates and, indeed, the commu-
11 nity as a whole. The screenings are thus not compensable under the FLSA.
12 An activity is not primarily for the benefit of the employer under the FLSA where any benefit
13 the employer receives is only incidental, or where the employer and its employees benefit more or less
14 equally from the activity, including when the activity is related to employee health and safety. See,
15 e.g., Leone v. Mobil Oil Corp., 523 F.2d 1153, 1163 (D.C. Cir. 1975) (employees’ accompaniment of
16 OSHA inspectors around employer’s facility was not primarily for the employer’s benefit despite “fur-
17 thering industrial safety benefits”); Wheat v. J.B. Hunt Transp., Inc., 2016 WL 1397673, at *4 (C.D.
18 Cal. Apr. 5, 2016) (truck drivers’ sleep apnea testing pursuant to federal requirements and employer’s
19 internal policies was not primarily for the benefit of the employer); Gibbs v. City of N.Y., 87 F. Supp.
20 3d 482, 493–95 (S.D.N.Y. 2015) (counseling sessions that police officers with alcohol problems were
21 required to complete were not compensable); Makinen v. City of N.Y., 53 F. Supp. 3d 676, 698–99
22 (S.D.N.Y. 2014) (employer-mandated alcohol rehabilitation treatments were not primarily for the po-
23 lice department’s benefit); Loc. 1605 Amalgamated Transit Union, AFL-CIO v. Cent. Contra Costa
24 Cty. Transit Auth., 73 F. Supp. 2d 1117, 1124 (N.D. Cal. 1999) (that the employer “received incidental
25 benefits” from workers’ collective bargaining activities and paid them for time spent in negotiations
26 before a strike began does not mean that negotiating activities “after the strike were pursued primarily
27 for [the employer’s] benefit”).
28
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1 COVID-19 screenings first and foremost benefit Amazon associates by detecting whether they
2 are ill and in need of medical attention, as well as by preventing associates from putting their colleagues
3 at risk. While Plaintiffs are correct that a COVID-19 outbreak at an Amazon fulfillment center would
4 be disruptive to business operations, see FAC ¶ 41–43, Amazon would by no means be the only, or
5 even the primary, entity to suffer from such an incident; employees, and the general public, would as
6 well. Steps to stop the spread of COVID-19—like the screenings Plaintiffs have based their claims on
7 here—are designed to detect and prevent the society-wide spread of a contagious disease. While Am-
8 azon benefits from measures to reduce the spread of COVID-19, it does so in the same way all members
9 of the public benefit from responsible precautions to slow the spread of the virus. See RJN, Ex. 6,
10 OSHA Guidance on Preparing Workplaces for COVID-19 (“To reduce the impact of COVID-19 out-
11 break conditions on businesses, workers, customers, and the public, it is important for all employers to
12 plan now for COVID-19.”). That is why federal, state, and local authorities directed all members of
13 the public for over a year to do their part to mitigate the risk posed by the virus, whether that be by
14 requiring individuals to wear masks when they are in public, requiring businesses to screen employees
15 before they start work each day, or even requiring non-essential workers to stay at home. Because the
16 pandemic threatens all members of the community, it has necessitated preventive action by everyone
17 for everyone’s benefit.
18 The fact that Amazon’s COVID-19 screenings are conducted in accordance with regulations
19 and guidelines issued by California state agencies and the CDC underscores that these screenings ben-
20 efit Amazon associates and the public at large, and are not undertaken primarily for Amazon’s benefit.
21 As outlined above, the CDC issued guidance as early as May 2020, and California public health au-
22 thorities issued guidance as early as July 2020, urging employers to screen their employees at work;
23 California regulation now requires such screenings. See supra 4–5. Courts have held, in analogous
24 circumstances, that government-mandated workplace screenings are not conducted primarily for the
25 employer’s benefit. In Bonilla v. Baker Concrete Construction, Inc., 487 F.3d 1340 (11th Cir. 2007),
26 for example, the court determined that mandatory security screenings of construction workers at the
27 Miami International Airport were not compensable time. The screenings at issue were required by the
28 Federal Aviation Administration; the employer could not choose whether its employees were screened.
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1 For that reason, the court concluded that the employer “did not primarily—or even particularly—ben-
2 efit from the security regime.” Id. at 1344. In other words, though the screenings were “necessary”
3 for workers to access their jobsite, they were required by the government to achieve purposes that did
4 not primarily benefit the employer. Id.
5 Similar reasoning applies here. Amazon is compelled—and previously was at the very least
6 strongly encouraged—by state authorities to engage in COVID-19 screening of its associates to address
7 broader public health concerns that transcend Amazon’s business interests and advance the interests of
8 workers and the public-at-large. As the CDPH and Cal/OSHA explained in guidance for logistics and
9 warehousing facilities, the recommended measures were designed “to support a safe, clean environ-
10 ment for workers.” RJN, Ex. 7, CDPH & Cal/OSHA, COVID-19 Industry Guidance: Logistics &
11 Warehousing Facilities. Time spent waiting for and undergoing COVID-19 screening thus is not
12 “work” under the FLSA.
13 b. COVID-19 Screening Is “Preliminary to” Associates’ Principal Activities
14 COVID-19 screening also is not compensable for a separate reason: under the Portal-to-Portal
15 Act, screening is “preliminary to” “the principal activity or activities” Amazon associates are “em-
16 ployed to perform.” 29 U.S.C. § 254(a). The Supreme Court made clear in Integrity Staffing Solutions,
17 Inc. v. Busk that, even if an activity is work-related, it is not compensable unless it is either a principal
18 activity the employee is employed to perform or “integral and indispensable to” principal activities,
19 meaning it is “an intrinsic element of those [principal] activities and one with which the employee
20 cannot dispense if he is to perform those activities.” 574 U.S. at 35. According to Plaintiffs’ allega-
21 tions, their principal work-related activities consisted of “gathering packages from the Amazon ware-
22 house, scanning them, placing them in boxes, and labelling the items”; “gathering items from the
23 shelves in the warehouses and putting the items in carts”; and “gathering items and placing them in the
24 right location in the warehouse.” FAC ¶¶ 24–25. Undergoing COVID-19 screening is not a principal
25 activity for which they were employed. Plaintiffs’ half-hearted, conclusory assertion that “the
26 [COVID-19] screening was necessary to ensure that the Plaintiffs and Class Members” could safely
27 “serve the customers of Amazon” (id. ¶ 41) does not demonstrate otherwise.
28
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1 Amazon’s COVID-19 screening is “preliminary” because it is not intrinsically tied to the pri-
2 mary activity for which the worker is employed and associates’ jobs could be performed without the
3 screening. Busk, 574 U.S. at 36 (“The integral and indispensable test is tied to the productive work
4 that the employee is employed to perform.”); see also Steiner v. Mitchell, 350 U.S. 247, 255 (1956).
5 COVID-19 screening is not a function of, or dictated by the specific nature of, the job the worker is
6 performing. In Busk, for example, the Court held that security screenings of workers who “retrieve
7 products from warehouse shelves and package those products for shipment to Amazon customers” were
8 preliminary because “[t]he screenings were not an intrinsic element of retrieving products from ware-
9 house shelves or packaging them for shipment” and the company “could have eliminated the screenings
10 altogether without impairing the employees’ ability to complete their work.” 574 U.S. at 35. The same
11 is true of COVID-19 screenings.
12 The lack of a close nexus to “the productive work that the employee is employed to perform,”
13 Busk, 574 U.S. at 36, is further demonstrated by that fact that COVID-19 screenings are a general
14 precaution required by the State of California for nearly all employers, and long recommended by the
15 CDC for all employers, see supra at 4–5. As noted above, California guidelines on screening apply
16 across nearly all industries and recommend that visitors to worksites be screened, too. Such generalized
17 screening procedures are not tied to or dictated by the principal activities fulfillment center associates
18 are employed perform. See, e.g., Gorman v. Consol. Edison Corp., 488 F.3d 586, 593–94 (2d Cir.
19 2007) (time spent undergoing entry security screenings at a nuclear power plant was not compensable
20 “because the security measures at entry are required (to one degree or another) for everyone entering
21 the plant—regardless of what an employee does . . . —and including visitors”). The COVID-19 screen-
22 ings alleged by Plaintiffs are plainly non-compensable “preliminary” activities.
23 Recent governmental guidance does not dictate otherwise. In FAQs published online, the De-
24 partment of Labor’s Wage and Hour Division (“WHD”) stated that, for some employees, “undergoing
25 a temperature check before they begin work must be paid because it is necessary for their jobs.” RJN,
26 Ex. 8, COVID-19 and the Fair Labor Standards Act Questions and Answers. WHD gave as an example
27 a “nurse who performs direct patient care services at a hospital,” explaining that such a worker may
28
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1 have to be compensated because the screening is needed for her “to safely and effectively perform her
2 job during the pandemic,” and is therefore “integral and indispensable” to her work. Id.
3 This informal guidance is entirely consistent with the conclusion that time spent by Amazon
4 associates undergoing COVID-19 screenings is not compensable. The work of a nurse caring for pa-
5 tients is health-oriented and involves the provision of care to patients, including patients suffering from
6 COVID-19. In such circumstances, then, it may well be the case that COVID-19 screenings are integral
7 and indispensable to nurses’ principal work activities. Unlike with nurses, however, COVID-19
8 screenings for Amazon associates are in no way a function of or directly related to the particular job
9 duties they perform. They are therefore not integral or indispensable to associates’ principal activities.
10 This distinction is consistent with recent caselaw, too. In Aguilar v. Mgmt. & Training Corp., 948 F.3d
11 1270 (10th Cir. 2020), for example, the Tenth Circuit concluded that security screenings underwent by
12 detention guards employed at a prison were compensable, distinguishing Busk’s holding that security
13 screenings are not compensable for warehouse workers. The Court reasoned that while “an employer’s
14 general desire to keep its employees safe has no clear or obvious connection to the particular activities
15 those employees are employed to perform,” the work of detention guards is security-oriented, the se-
16 curity screenings are thus directly “tied to” the work they perform, and time spent in those screening
17 was therefore compensable. Id. at 1278.
18 In any event, the WHD FAQ is informal and does “not warrant Chevron-style deference.”
19 Christensen v. Harris Cty., 529 U.S. 576, 587 (2000). Rather, the FAQ is “‘entitled to respect’ . . . ,
20 but only to the extent that [its] interpretation[] ha[s] the ‘power to persuade.’” Id. (quoting Skidmore
21 v. Swift & Co., 323 U.S. 134, 140 (1944)). That persuasive power may be demonstrated by “the thor-
22 oughness evident in [the document’s] consideration, the validity of its reasoning, [and] its consistency
23 with earlier and later pronouncements.” Skidmore, 323 U.S. at 140. The FAQ’s reasoning is “cursory”
24 and “offer[s] no explanation for its conclusion” beyond providing the one example concerning nurses.
25 Xiao Lu Ma v. Sessions, 907 F.3d 1191, 1196 (9th Cir. 2018).
26 Moreover, the standard WHD appears to rely upon is at least questionable. The FAQ suggests
27 that an activity is “integral and indispensable” and thus compensable under the Portal-to-Portal Act if
28 it is “necessary” for a worker to “safely and effectively perform her job.” But that standard is drawn
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1 from the concurrence in Busk. See 574 U.S. at 37–38; Dinkel v. MedStar Health Inc., 99 F. Supp. 3d
2 37, 41–42 (D.D.C. 2015) (explaining that the “safely and effectively” “test is nowhere to be found in
3 the Court’s opinion itself”). And it is too open-ended. The Supreme Court has held that “the fact that
4 certain preshift activities are necessary for employees to engage in their principal activities does not
5 mean that those preshift activities are ‘integral and indispensable’ to a ‘principal activity.’” IBP, Inc.
6 v. Alvarez, 546 U.S. 21, 40 (2005). This is true even where the activity necessitated by the employee’s
7 job is safety related. See Chagoya v. City of Chicago, 992 F.3d 607, 623 (7th Cir. 2021) (holding that
8 employer’s “directive that its officers take the precautions necessary to ensure the safe and secure stor-
9 age of the weapons and equipment” they use in their work was not “integral and indispensable” to their
10 principal activities because it was “very far removed, both logically and practically, from the [employ-
11 ees’] principal activity”). In other words, contrary to what the FAQs may suggest, the fact that a given
12 activity may be necessary to promote on-the-job safety is not dispositive regarding compensability.
13 See Dinkel, 99 F. Supp. 3d at 41–43 (holding that healthcare workers’ uniform maintenance activities
14 undertaken to control the spread of infection were not compensable because it “would [not] be so unsafe
15 as to be effectively impossible to carry out their jobs without their uniform maintenance activities,”
16 and because the activities did not have the “sort of intimate relationship with [the workers’] principal
17 activities” needed to make an activity integral and indispensable). For all of these reasons, the FAQ
18 holds limited persuasive value. See, e.g., Nature v. United States, 250 F. Supp. 3d 634, 639 n.3 (E.D.
19 Cal. 2017) (Drozd, J.) (declining to defer to National Park Service FAQs).
20 c. Time Spent in COVID-19 Screenings Is De Minimis.
21 Finally, even if COVID-19 screenings were integral and indispensable to Plaintiffs’ principal
22 work activities (which they are not), Plaintiffs have failed to allege that the screenings themselves––
23 when considered apart from the time spent waiting to undergo screening––are more than “de minimis,”
24 meaning the “employee is required to give up a substantial measure of his time and effort” on the
25 activity. Anderson, 328 U.S. at 692 (1946). By ignoring the distinction between waiting time and time
26 spent undergoing screening, and offering no allegations regarding the amount of time spent actually
27 undergoing screenings, the FAC provides no plausible basis to infer that Plaintiffs have a viable claim.
28
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1 First, time spent waiting to be screened is decidedly not compensable under the FLSA. U.S.
2 Department of Labor regulations make clear that time spent waiting in line to begin principal work
3 activities is not compensable. See 29 C.F.R. § 790.7(g) (time spent “checking in and out and waiting
4 in line to do so” are “preliminary” and “postliminary” activities). The Supreme Court also has recog-
5 nized that time employees spend waiting to perform a task that itself may be intrinsic and indispensable
6 to their principal work activities is not compensable because the waiting period is “two steps removed”
7 from the principal activities. IBP, Inc. v. Alvarez, 546 U.S. 21, 42 (2005). The Court reasoned that if
8 such waiting time were compensable there would be “no limiting principle” to distinguish activities
9 that are plainly non-compensable under the Portal-to-Portal Act, such as walking from a time clock to
10 the worksite. Id. at 41. In consequence, even if COVID-19 screenings themselves were compensable,
11 any time Amazon associates spend waiting to be screened would not be.
12 In order to state a claim, therefore, the FAC needed to allege facts sufficient to plausibly support
13 the conclusion that time spent in COVID-19 screenings is more than de minimis. See Ceja-Corona,
14 2013 WL 796649, at *7 (granting motion to dismiss on de minimis grounds where “complaint is devoid
15 of the necessary details”). “When the matter in issue concerns only a few seconds or minutes of work
16 beyond the scheduled working hours,” it is not compensable under the FLSA. Alvarez, 339 F.3d at
17 903 (quoting Anderson, 328 U.S. at 692). In determining whether otherwise compensable time is de
18 minimis, the Ninth Circuit considers three factors: “(1) the practical administrative difficulty of record-
19 ing the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the
20 additional work.” Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984). Although “[n]o rigid
21 rule can be applied with mathematical certainty,” “[m]ost courts have found daily periods of approxi-
22 mately 10 minutes de minimis even though otherwise compensable.” Id. at 1062; see Young v. Beard,
23 2015 WL 1021278, at *11 (E.D. Cal. Mar. 9, 2015) (“Ten minutes often serves as a rule of thumb.”).
24 The FAC gives no indication that COVID-19 screenings themselves take any appreciable
25 amount of time. Indeed, the factual allegations indicate that the time spent in screenings was negligible.
26 Plaintiffs allege that it takes “10 to 15 minutes on average”––inclusive of time spent waiting––to com-
27 plete a COVID-19 screening, and that the time varies depending on how long the wait is. FAC ¶ 32.
28 The screenings themselves are alleged to involve answering a small handful of simple questions and
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1 having one’s temperature taken. Id. ¶¶ 28–30. It is implausible that those activities took 10 to 15
2 minutes on average. And even assuming that the majority of this time was not spent waiting, which is
3 implausible, it is clear “as a matter of logic” that the few minutes Plaintiffs spent in COVID-19 screen-
4 ings is below the 10-minute threshold courts typically rely on to differentiate compensable time from
5 de minimis time. Alvarez, 339 F.3d at 904. Further, the COVID-19 screenings are a short-term, emer-
6 gency measure, meaning Plaintiffs’ aggregate claims are not substantial enough to render the time spent
7 in the screenings anything other than de minimis. See Lindow, 738 F.2d at 1063. The indeterminacy
8 of exactly how long Plaintiffs spent in the COVID-19 screenings on any given day also points to the
9 conclusion that the time should be treated as de minimis, as does the lack of any allegation suggesting
10 it was practicable to record the time spent in just COVID-19 screening. See Id.
11 In sum, Plaintiffs’ allegations conflate time spent in COVID-19 screening with time spent wait-
12 ing to be screened. FAC ¶ 32. But waiting time is unquestionably not compensable even if COVID-19
13 screening time is. The FAC is therefore devoid of any allegations about the actual amount of work
14 Plaintiffs engaged in without being compensated. What scant allegations Plaintiffs do make indicate
15 that, whatever amount of time they spent in COVID-19 screenings, it was de minimis, and therefore
16 not compensable.
17 * * *
18 For all of these reasons, time spent waiting for or undergoing COVID-19 screening is not com-
19 pensable under the FLSA.
20 2. Time Spent in and Waiting for COVID-19 Screenings Is Not Compensable “Hours
Worked” Under California Law
21
Time spent undergoing and waiting for COVID-19 screenings also is not compensable under
22
California law. The California Supreme Court has held that only certain time spent on activities where
23
the employee is under the control of the employer is compensable.2 See Frlekin v. Apple Inc., 48 Cal.
24
25 2
Unlike the FLSA, which provides no definition of “work,” California law defines what constitutes
“hours worked” for purposes of its minimum wage and overtime requirements. As applicable here,
26
California regulations define “hours worked” to mean “the time during which an employee is sub-
27 ject to the control of an employer, and includes all the time the employee is suffered or permitted
to work, whether or not required to do so.” Cal. Code Regs. tit. 8, § 11070. Although in some
28 ways related, the tests for what constitutes “work” under Federal and California law are different
(Cont’d on next page)
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1 5th 1038, 1046 (2020). “The level of the employer’s control over its employees, rather than the mere
2 fact that the employer requires the employees’ activity, is determinative.” Morillion v. Royal Packing
3 Co., 22 Cal. 4th 575, 587 (2000). “[A]t least with regard to cases involving onsite employer-controlled
4 activities, the mandatory nature of an activity is not the only factor to consider . . . . [C]ourts may and
5 should consider additional relevant factors—including, but not limited to, the location of the activity,
6 the degree of the employer’s control, whether the activity primarily benefits the employee or employer,
7 and whether the activity is enforced through disciplinary measures—when evaluating such employer-
8 controlled conduct.” Frlekin, 48 Cal. 5th at 1056. Here, applying these factors to the alleged facts
9 shows that time Amazon associates spent in COVID-19 screenings is decidedly not compensable.
10 COVID-19 screening is not primarily for Amazon’s benefit, it is required by California regulations
11 (and was strongly encouraged by both the state and federal governments before regulations were
12 adopted), and it takes place before employees fully enter onto the work premises.
13 As explained above, COVID-19 screenings are not primarily for Amazon’s benefit. See supra
14 at 7–9. To reiterate, Amazon does not implement COVID-19 precautions to advance a particular busi-
15 ness purpose or serve some other objective of unique interest to Amazon. Rather, like all businesses
16 and individuals during the pandemic, Amazon has done its part to advance a nationwide public health
17 initiative directed by government authorities and designed to produce benefits common to everyone.
18 In fact, the company has adopted industry-leading COVID-19 safety measures well beyond the screen-
19 ing of associates. Simply put, the screening is not “imposed primarily for the benefit of the employer.”
20 Madera Police Officers Ass’n v. City of Madera, 36 Cal. 3d 403, 410 (1984).
21 That COVID-19 screening is required by California and before that was strongly encouraged
22 by state authorities confirms that the screening is not primarily for the benefit of Amazon and that
23 Amazon’s control is minimal. See supra at 8–9. Amazon’s COVID-19 screening is analogous to the
24 facts of Griffin v. Sachs Electric Co., 390 F. Supp. 3d 1070, 1089–90 (N.D. Cal. 2019). In Griffin,
25
in significant respects. Morillion v. Royal Packing Co., 22 Cal. 4th 575, 590 (2000) (“While one
26
of our lower courts has recognized the ‘parallel’ nature of the federal and state definitions of ‘hours
27 worked,’ the [California Department of Labor Standards Enforcement] has underscored the sub-
stantial differences between the federal and state definitions in numerous advice letters.”). Whether
28 or not an activity is “controlled” by an employer for purposes of California law therefore says little
about whether or not the activity counts as “work” under the FLSA.
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1 employees had to travel along an access road after passing through a security gate to get to their
2 worksite. While on the access road, employees were required to follow rules “fundamentally no dif-
3 ferent than limitations imposed on travel through other types of premises,” many of which “originated”
4 with “the State of California,” not the employer. Id. at 1089. The court concluded that travel time on
5 the access road was therefore not compensable under California law, because the requirements were
6 “not atypical on an employer’s premises” and were “safety-oriented in nature.” Id. at 1089–90. That
7 description fits COVID-19 screening to a tee. COVID-19 screening at Amazon facilities is safety-
8 oriented and intended to comply with generally applicable government policy and is not “primarily
9 directed” to benefiting the employer. Madera, 36 Cal. 3d at 409. As noted above, these screening
10 procedures are required of many different types of businesses and public places. In fact, this Court has
11 issued orders to prevent individuals with COVID symptoms from entering courthouses in the Eastern
12 District of California. See RJN Ex. 9, General Order No. 610, Restrictions on Visitors to Eastern
13 District of California Courthouses.
14 Amazon’s minimal control over associates is confirmed by the fact that the alleged screenings
15 occur before associates’ shifts and before they fully enter the worksite. In Morillion, the court ex-
16 plained that time spent by employees commuting to the worksite is non-compensable where the em-
17 ployer does not restrict what employees can do in the moments leading up to their arrival and entry at
18 the worksite. See 22 Cal. 4th at 586. Time spent being screened in a non-invasive fashion before
19 actually entering the employer’s premises is analogous. See Griffin, 390 F. Supp. 3d at 1089–90; Cer-
20 vantez v. Celestica Corp., 253 F.R.D. 562, 571 (C.D. Cal. 2008) (“[A] pre-shift security line require-
21 ment . . . may be more akin to time spent in an ordinary commute, where employees may choose to
22 start earlier or later depending on their own judgment.”). Amazon’s control over associates is minimal
23 as they pass through and wait for COVID-19 screening.
24 Plaintiffs’ analogy to the California Supreme Court’s decision in Frlekin is misplaced. See
25 FAC ¶ 38. In Frlekin, the plaintiffs alleged that mandatory security screenings conducted by the em-
26 ployer as employees left for the day consisted of, among other things, intrusive bag checks under the
27 close supervision of managers in order to detect theft. 8 Cal. 5th at 1056. Given those allegations, the
28 court emphasized that “the employer-controlled activity primarily serve[d] the employer’s interests”—
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1 i.e., the “searches promote[d] [the employer’s] interest in loss prevention.” Id. at 1052–53. Amazon’s
2 COVID-19 screenings—designed to advance, and dictated by, public health objectives—are thus a far
3 cry from exit screenings “to detect and deter theft.” Id. at 1052.
4 Moreover, Amazon’s COVID-19 screenings occur at the beginning of the workday before Am-
5 azon associates are permitted to enter the worksite, whereas in Frlekin workers were not permitted to
6 leave the worksite until they had completed screening, which allegedly required employees to wait as
7 long as 45 minutes before a screening occurred. 8 Cal. 5th at 1044. Because Amazon associates are
8 not “confined to the premises until” the COVID-19 screening, they are subject to a lesser degree of
9 control than the workers in Frlekin. Id. at 1051. As the court in Frlekin emphasized, the employees
10 there were allegedly required to perform very specific tasks, “including opening their bags, unzipping
11 internal compartments, removing their personal Apple technology devices and technology cards, and
12 proving ownership of such items.” Id. Nothing similar is alleged here. Rather, Plaintiffs allege that
13 Amazon associates were required to answer a handful of short questions and have their temperature
14 taken. FAC ¶¶ 28–31. These actions are entirely passive and exhibit much less control by the employer
15 than the security screening in Frlekin.
16 Under California law, time spent on a work activity can also be compensable, even if the em-
17 ployer does not exercise control over the employee, if the employer has “suffered or permitted” the
18 person to work. See Morillion, 22 Cal. 4th at 584. Under this standard, the relevant question is whether
19 the employer was aware that the employee was engaged in work activities and failed to stop her from
20 doing so. Martinez v. Combs, 49 Cal. 4th 35, 70 (2010). “The test lacks relevance where the primary
21 issue is whether the plaintiff’s activities constituted work in the first place.” Saini v. Motion Recruit-
22 ment Partners, LLC, 2017 WL 1536276, at *11 (C.D. Cal. Mar. 6, 2017). Since the central question
23 raised by Plaintiffs’ FAC is whether COVID-19 screening constitutes work at all, not whether Amazon
24 was aware of the screenings, the “suffered or permitted” to work test does not apply.
25 Amazon is aware that an informal FAQ posted online in late July 2020 by the California De-
26 partment of Industrial Relations (“DIR”) asserts that “[e]mployers that require their workers to com-
27 plete a medical check in order to begin a shift, even if it is recommended under public health orders,
28 must compensate workers for that time worked.” RJN, Ex. 10, Safe Reopening FAQs for Workers and
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Crutcher LLP
1 Employers. This guidance, however, is not legally binding. See Brinker Rest. Corp. v. Superior Court,
2 53 Cal. 4th 1004, 1029 n.11 (2012). At best, it is entitled to something approximating Skidmore def-
3 erence. See Yamaha Corp. of Am. v. State Bd. of Equalization, 19 Cal. 4th 1, 14–15 (1998). Under
4 that rubric, the DIR FAQ is entitled to little, if any, weight. Moreover, the DIR’s analysis of this novel
5 legal question is both cursory and erroneous; in fact, it is contrary to California Supreme Court prece-
6 dent. Specifically, the FAQ reasons that because COVID-19 screening is required, employees are un-
7 der the control of the employer. But the California Supreme Court has repeatedly held that the “fact
8 that the employer requires the employees’ activity” is not “determinative,” Morillion, 22 Cal. 4th at
9 587, but merely “probative,” Frlekin, 8 Cal. 5th at 1056. The Court should follow the decisions of the
10 California Supreme Court, not the DIR’s informal FAQ that misinterprets those decisions, and hold
11 that COVID-19 screenings are not compensable time under California law.
12 B. Plaintiffs Have Failed to State a Claim for Unpaid Overtime (Claim 2)

13
Even leaving aside the fact that Plaintiffs’ time spent in and waiting for COVID-19 screenings
14
is not compensable under either the FLSA or California law, Plaintiffs fail to state a claim for unpaid
15
overtime. Under Landers, “a plaintiff asserting a claim to overtime payments must allege that she
16
worked more than forty hours in a given workweek without being compensated for the overtime hours
17
worked during that workweek.” 771 F.3d at 644–45 (emphases added). A complaint that lacks “suffi-
18
cient detail about the length and frequency of [Plaintiffs’] unpaid work to support a reasonable infer-
19
ence that [they] worked more than forty hours in a given week” must be dismissed for failure to state
20
a claim. Id. at 646 (quoting Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192,
21
201 (2d Cir. 2013)). This pleading standard applies to both Plaintiffs’ FLSA and California claims.
22
See Tan v. GrubHub, Inc., 171 F. Supp. 3d 998, 1007 n.3 (N.D. Cal. 2016) (“[A]lthough Landers
23
discussed overtime claims asserted under the FLSA, its reasoning applies to overtime claims asserted
24
under the California Labor Code, as well.”).
25
Plaintiffs have not met this standard. Even after amending their complaint, Plaintiffs still fail
26
to allege the hours they worked and the overtime they claim they are owed with the level of specificity
27
required by Landers. The FAC alleges that Plaintiff Boone normally worked ten-hour shifts four days
28
a week, and that Plaintiff Rivera worked from “approximately 6 pm to 5 am” on “a rotation that was
Gibson, Dunn &
Crutcher LLP
1 four days straight followed by three days off.” FAC ¶¶ 24–25. But Plaintiff Rivera does not allege a
2 single “given workweek” when she believes she should have been paid overtime. And while Plaintiff
3 Boone generally claims that she worked overtime “during the first and second weeks of May 2020”
4 (id. ¶ 24), neither she nor Plaintiff Rivera alleges “the amount of overtime they believe they are owed.”
5 Nicolas v. Uber, 2021 WL 2016161, at *9 (N.D. Cal. May 20, 2021). Absent such allegations, Plaintiffs
6 do not (and cannot) state any claim for overtime pay.
7 C. Plaintiffs’ Wage Statement Claim is Derivative, They Lack Standing to Bring the Claim,
and the FAC Fails to State the Essential Elements of the Claim (Claim 3)
8
9 Plaintiffs allege that Amazon “knowingly and intentionally failed to furnish and continues to
10 fail to furnish Plaintiffs and each California Class Member with timely, itemized wage statements that
11 accurately reflect—among other things—the total number of hours worked, hourly rates, and wages
12 earned, as mandated by the California Labor Code § 226(a).” FAC ¶ 98. This claim should be dis-
13 missed for four independent reasons: (1) this claim is derivative of claims 1 and 2, neither of which are
14 cognizable, rendering the wage statement claim also not cognizable; (2) Plaintiffs have failed to allege
15 an injury-in-fact and thus lack Article III standing; (3) Plaintiffs have failed to state a valid claim enti-
16 tling them to relief because all inaccuracies they allege in the wage statements Amazon issued to them
17 are based on disputed payments, and they make no allegation of actual injuries they sustained; and
18 (4) the FAC lacks any factual assertions to support Plaintiffs’ claims that Amazon knowingly and in-
19 tentionally failed to provide accurate wage statements, an essential element of a claim under sec-
20 tion 226.
21 First, Plaintiffs’ section 226 claim should be dismissed because it is derivative of claims 1 and
22 2, both of which have failed to state a claim. See Tavares v. Cargill Inc., 2019 WL 2918061, at *7
23 (E.D. Cal. July 8, 2019) (Drozd, J.) (dismissing derivative wage statement claims where underlying
24 claims failed); see also Harris v. Best Buy Stores, L.P., 2018 WL 984220, at *9 (N.D. Cal. Feb. 20,
25 2018) (same).
26 Second, the FAC lacks sufficient allegations to show that Plaintiffs have Article III standing to
27 bring a claim based on the supposed inaccuracies of their wage statements. The claim thus should be
28 dismissed under Rule 12(b)(1). See Kirchner v. First Advantage Background Servs. Corp., 2016 WL
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Crutcher LLP
1 6766944, at *1–*2 (E.D. Cal. Nov. 14, 2016). Alleging a violation of section 226, without more, does
2 not demonstrate that Plaintiffs suffered a “concrete” and “real” injury-in-fact for purposes of Article
3 III standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548–49 (2016). Rather, “in order to satisfy
4 Article III’s standing requirement, a plaintiff seeking damages for the violation of a statutory right must
5 not only plausibly allege the violation but must also plausibly allege a ‘concrete’ injury causally con-
6 nected to the violation.” Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1172 (9th Cir. 2018).
7 Here, Plaintiffs have not alleged a cognizable injury resulting from the purportedly inaccurate wage
8 statements. See FAC ¶¶ 98–100. That warrants dismissal of the section 226 claim. See Mays v. Wal-
9 Mart Stores, Inc., 804 F. App’x 641, 643 (9th Cir. 2020) (dismissing claim for relief under section 226
10 because the complaint failed to “allege any real-world consequences flowing, or even potentially flow-
11 ing, from the violation”).
12 Third, a failure to display disputed wages on a wage statement does not entitle an employee to
13 a presumption of injury under section 226. See Cal. Lab. Code § 226(e)(2). If the alleged inaccuracy
14 underlying a claim under section 226 is based on disputed wages, an “individualized showing[] of ac-
15 tual harm” is needed for a claim to succeed. Kazi v. PNC Bank, N.A., 2021 WL 965372, at *21 (N.D.
16 Cal. Mar. 15, 2021); see also Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308, 1337 (2018)
17 (“The purpose of section 226 is to document the paid wages to ensure the employee is fully informed
18 regarding the calculation of those wages.” (quotation marks omitted)). There is nothing in the FAC to
19 suggest that the alleged section 226 violations are based on anything other than a failure to include the
20 disputed payments in the wage statements. And the FAC makes no reference to any actual injury the
21 supposed inaccuracies in the wage statement caused. Because Plaintiffs cannot rely on section 226’s
22 presumption of injury, they have thus failed to state all the essential elements of their claim.
23 Fourth, relief under section 226 is available only where the injury suffered is the “result of a
24 knowing and intentional failure by an employer to comply” with the statute. Cal. Lab. Code
25 § 226(e)(1). The FAC “offers nothing more than a single conclusory statement that Defendant [‘know-
26 ingly and intentionally’] failed to provide accurate wage statements, without any facts to support the
27 inference that Defendant was aware of the information required on a wage statement as it pertained to
28
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Crutcher LLP
1 Plaintiff[s] and the putative class, but intentionally chose to omit it.” Dawson v. Hitco Carbon Com-
2 posites, Inc, 2017 WL 7806358, at *6 (C.D. Cal. May 5, 2017); see FAC ¶ 98.
3 D. Plaintiffs’ Claim for Waiting Time Penalties Is Foreclosed Because Plaintiffs Do Not and
Cannot Allege Willfulness (Count 4)
4
5 Plaintiffs seek waiting time penalties under California Labor Code section 203, alleging that
6 Amazon failed to pay them all wages they were owed at the time they were discharged in violation of
7 sections 201 and 202. FAC ¶ 104. This claim fails for multiple reasons.
8 To begin, Plaintiffs’ section 203 claim is derivative of their claims that they were owed gap and
9 overtime pay. The gap and overtime pay claims fail; therefore, the derivative section 203 claim also
10 fails. See Krauss v. Wal-Mart, Inc., 2019 WL 6170770, at *3 (E.D. Cal. Nov. 20, 2019) (“Because
11 Plaintiff's underlying causes of actions fail, this derivative claim [for waiting time penalties] fails as
12 well.”).
13 Moreover, Plaintiffs offer merely conclusory allegations that Amazon knowingly and willfully
14 violated sections 201 and 202, see, e.g., FAC ¶ 104, even though that is an essential element of a claim
15 for waiting time penalties under section 203. Such allegations are insufficient to allege a viable sec-
16 tion 203 claim. See, e.g., Johnson v. Winco Foods, LLC, 2018 WL 6017012, at *16 (C.D. Cal. Apr. 2,
17 2018) (“Such a conclusory allegation merely parrots the statutory language without providing any de-
18 tails to suggest that Defendants intentionally failed to pay upon termination the wages allegedly owed
19 to Plaintiff and other class members.”).
20 At the very least, the claims brought in the FAC are plainly subject to good faith disagreement.
21 Cal. Code Regs. tit. 8, § 13520 (“[A] good faith dispute that any wages are due will preclude imposition
22 of waiting time penalties under Section 203.”); see also Diaz v. Grill Concepts Servs., Inc., 23 Cal.
23 App. 5th 859, 868 (2018) (“an employer's failure to pay is not willful if that failure is due to . . . uncer-
24 tainty in the law”); Barnhill v. Robert Saunders & Co., 125 Cal. App. 3d 1, 8 (1981). Amazon is aware
25 of no court decision anywhere in the country holding that time spent waiting for and undergoing
26 COVID-19 screening is compensable under either the FLSA or California law. And, as explained
27 above, the DIR’s statement in an online FAQ that COVID-19 screening time is compensable is infor-
28 mal, non-binding, and legally erroneous. Nor is the legal question posed by application of wage and
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Crutcher LLP
1 hour laws to such screenings closely analogous to existing precedents. That is reason enough to con-
2 clude that any failure to pay wages owed for time spent in COVID-19 screenings was not willful, even
3 assuming the Court ultimately rejects Amazon’s argument that such screenings are not compensable.
4 See Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1202 (2008) (declining to find violation of
5 section 203 willful where the disputed wage payments presented “complicated issues of first-impres-
6 sion”).
7 E. Plaintiffs’ Claim Under the UCL Should Be Dismissed as Derivative of Plaintiffs’ Other
Failed Claims and Because Plaintiffs Have Not Alleged that the Available Legal Remedies
8
Are Inadequate (Claim 5)
9 Plaintiffs’ UCL claim is entirely derivative of their other claims for relief. Because each of
10 their other claims is defective and must be dismissed, their UCL claim also necessarily fails. See, e.g.,
11 Price v. Starbucks Corp., 192 Cal. App. 4th 1136, 1147 (2011) (“Because the underlying causes of
12 action fail, the derivative UCL . . . claim[ ] also fails.”).
13 Plaintiffs also cannot pursue relief pursuant to the UCL because they expressly claim entitle-
14 ment to numerous remedies at law and make no allegations that those remedies are inadequate. “[I]t is
15 axiomatic that a court should determine the adequacy of a remedy in law before resorting to equitable
16 relief.” Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 75–76 (1992). The Ninth Circuit recently
17 explained that this principle requires district courts to dismiss claims for equitable relief under the UCL
18 absent a showing by the plaintiff that she “lacks an adequate remedy at law.” Sonner v. Premier Nu-
19 trition Corp., 971 F.3d 834, 844 (9th Cir. 2020); see also Nationwide Biweekly Admin., Inc. v. Superior
20 Court, 9 Cal. 5th 279, 292 (2020) (holding that UCL claims “are equitable in nature”). Plaintiffs have
21 not and cannot make that showing; thus, their UCL claim should be dismissed.
22 Further, while Plaintiffs also purport to seek “injunctive and preventive relief” as part of their
23 UCL claim, see FAC ¶ 110, they allege that they are former employees, meaning they lack standing to
24 obtain such prospective remedies, see Ellis v. Costco Wholesale Corp., 657 F.3d 970, 988 (9th Cir.
25 2011) (“[O]nly current employees have standing to seek injunctive relief.”).3
26
27 3
Plaintiffs’ FAC deleted the original Complaint’s request for injunctive relief from the prayer, but
28 the FAC’s fifth claim continues to refer to “all other injunctive and preventive relief authorized by
Business and Professions Code §§ 17202 and 17203.”
Gibson, Dunn &
Crutcher LLP
1 V. CONCLUSION
2 Amazon respectfully requests that the Court dismiss the entirety of Plaintiffs’ FAC.
4 Dated: June 3, 2021
5 JASON C. SCHWARTZ
GIBSON, DUNN & CRUTCHER LLP
6
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By: /s/ Jason C. Schwartz
8
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Attorney for Defendant Amazon.com Services LLC
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Crutcher LLP

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Case 1:21-cv-00241-DAD-BAM Document 24 Filed 06/03/21 Page 1 of 32

1 KATHERINE V.A. SMITH, SBN 247866

6 JASON C. SCHWARTZ (admitted pro hac vice)

12 Attorneys for Defendant

Gibson, Dunn &

1 NOTICE OF MOTION AND MOTION TO DISMISS

26 which took place via telephone on May 27, 2021.

Gibson, Dunn &

1 Dated: June 3, 2021

6 Attorney for Defendant Amazon.com Services LLC

Gibson, Dunn &

4 II. BACKGROUND .............................................................................................................................. 2

5 A. Plaintiffs’ Allegations and Causes of Action ................................................................ 2

6 B. Public Health Measures to Stop the Spread of COVID-19 ........................................... 4

7 III. STANDARD OF REVIEW ............................................................................................................ 5

8 IV. ARGUMENT .................................................................................................................................. 6

9 A. Time Spent in and Waiting for COVID Screenings Is Not Compensable

12 a. COVID-19 Screenings Are Not “Work” Under the FLSA ................... 7

13 b. COVID-19 Screening Is “Preliminary to” Associates’ Principal

18 C. Plaintiffs’ Wage Statement Claim is Derivative, They Lack Standing to Bring

20 D. Plaintiffs’ Claim for Waiting Time Penalties Is Foreclosed Because Plaintiffs

Gibson, Dunn &

9 Anderson v. Mt. Clemens Pottery Co.,

14 Barnhill v. Robert Saunders & Co.,

19 Bonilla v. Baker Concrete Constr., Inc.,

24 Cervantez v. Celestica Corp.,

Gibson, Dunn &

3 Dawson v. Hitco Carbon Composites, Inc,

8 Dutta v. State Farm Mut. Auto. Ins. Co.,

13 Franklin v. Gwinnett Cty. Pub. Sch.,

18 Gibbs v. City of N.Y.,

23 Harris v. Best Buy Stores, L.P.,

28 Johnson v. Winco Foods, LLC,

3 Kazi v. PNC Bank, N.A.,

8 Landers v. Quality Commc’ns, Inc.,

18 Maldonado v. Epsilon Plastics, Inc.,

23 Morillion v. Royal Packing Co.,

28 Nature v. United States,

8 Skidmore v. Swift & Co.,

13 Spokeo, Inc. v. Robins,

18 Tan v. GrubHub, Inc.,

4 29 U.S.C. § 254 ...................................................................................................................................6, 9

5 Cal. Bus. & Prof. Code § 17200 et seq. ..................................................................................................4

7 29 C.F.R. § 790.7 ..............................................................................................................................6, 13

8 Cal. Code Regs. tit. 8, § 3205 .................................................................................................................4

9 Cal. Code Regs. tit. 8, § 11070 .............................................................................................................14

10 Cal. Code Regs. tit. 8, § 13520 .............................................................................................................21

11 Cal. Lab. Code § 226 ............................................................................................................................20

Gibson, Dunn &

1 MEMORANDUM OF POINTS AND AUTHORITIES

9 dismiss these meritless and insufficiently alleged claims.

26 make that time constitute “hours worked.”

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18 claim also fails because it is derivative of the other claims.

22 prejudice where “amendment is futile”).

24 A. Plaintiffs’ Allegations and Causes of Action

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10 ing them in the right location in the warehouse.” Id. ¶ 25.

21 Amazon employees in line for the COVID-19 screening.” Id. ¶ 32.

7 failure to pay overtime. Id. ¶ 116.

8 B. Public Health Measures to Stop the Spread of COVID-19

Gibson, Dunn &