Wednesday, May 26, 2010
Northern District Certifies Wage Class Arising Out Of Unpaid Temp Agency Interviews: Sullivan v. Kelly Services, Inc.
On April 27, 2010, Northern District Court Judge, Claudia Wilken, certified a proposed class action in Sullivan v. Kelly Services, Inc., 2010 U.S. Dist. LEXIS 50623 (N.D. Cal. Apr. 27, 2010), arising out of the temporary staffing agency’s failure to pay individuals for time spent interviewing with the staffing agency’s customers. While the proposition that a colorable wage claim could exist for attending job interviews seems, at first blush, untenable, the action actually arose out of a prior action wherein Kelly Services successfully obtained summary judgment on a Section 203 waiting time penalty claim based on the argument that persons whose temporary job assignment had ended were not discharged within the meaning of Labor Code Section 201. See id., at 6-7. In other words, by successfully arguing that the plaintiff continued to be an employee by virtue of the fact she went on multiple job interviews for other temporary assignments after her temp position ended, Kelly Services opened itself to liability for unpaid wages for these subsequent job interviews (oops!). Prior to moving for certification, the Court granted plaintiff’s summary judgment motion on her claims under Labor Code § 1194 and the UCL for the time she spent attending interviews with Kelly customers. See id., at 8. However, there did not appear to be any objection by defense counsel as to a post-merits-ruling certification motion.