# Regina Haro v. Kaiser Foundation Hospitals

> District Court, C.D. California · September 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10038938

## Case

- **Court:** District Court, C.D. California
- **Decided:** September 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10038938

## How later opinions describe it (automated extraction)

- explaining that when “state . . . law purports to define the meaning of the contract relationship, that law is preempted”

## Opinion text

CUENNTITREADL S DTIASTTERSIC DTI SOTFR CICATL ICFOOURRNTIA
CIVIL MINUTES - GENERAL
Case No. CV 20-6006-GW-JCx Date September 3, 2020
Title Regina Haro v. Kaiser Foundation Hospitals, et al.

Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE
Javier Gonzalez Terri A. Hourigan
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Vincent C. Granberry Christian J. Rowley
PROCEEDINGS: TELEPHONIC HEARING ON PLAINTIFF'S MOTION TO REMAND
THE ACTION TO STATE COURT AND REQUEST FOR ATTORNEYS'
FEES IN THE AMOUNT OF $10,450 [14]
Court hears oral argument. The Tentative circulated and attached, is adopted as the Court’s Final Ruling.
The Court GRANTS/DENIES IN PART the motion. The Court remands the case back to state court, but
denies Haro’s request for an award of attorney fees.

: 30
Regina Haro v. Kaiser Foundation Hospitals; Case No. 2:20-cv-06006-GW-(JCx)
Tentative Ruling on Motion to Remand

I. Background1
In response to the ongoing COVID-19 pandemic, Kaiser Foundation Hospitals began
requiring some its hourly employees to arrive at least 15 minutes prior to the start of their shift so
that they could undergo medical screenings before being allowed into their worksites. The
employees were not compensated for this time. Regina Haro, a Kaiser employee, filed this
putative class action on behalf of other hourly Kaiser employees in California state court,
alleging that this policy violated the state minimum wage laws. Kaiser removed the case to
federal court, arguing that there were two separate grounds for federal question jurisdiction:
complete preemption under either the Public Readiness and Emergency Preparedness Act
(“PREP”) or the Labor Management Relations Act (“LMRA”). Before the Court is Haro’s
motion to remand.
II. Legal Standard
Federal courts operate under the presumption that they do not have jurisdiction over
state-law causes of action. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
The party seeking removal has the burden of showing that the federal court has jurisdiction over
the matter and that removal is proper. See Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
Federal courts strictly construe the removal statute against removal jurisdiction and must reject
jurisdiction “if there is any doubt as to the right of removal in the first instance.” Libhart v.
Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979).
The presence of federal-question jurisdiction is governed by the “well-pleaded complaint
rule,” which provides that federal jurisdiction exists only when a federal question is presented on
the face of the plaintiff’s properly pleaded complaint. See Caterpillar, Inc. v. Williams, 482 U.S.
386, 392 (1987). This rule makes a plaintiff the master of his complaint: it allows him to avoid
federal jurisdiction by relying exclusively on state law. It is “settled law that a case may not be
removed to federal court on the basis of a federal defense, including a defense of preemption,
even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede

1 The following abbreviations are used for the filings: (1) Declaration Under the PREP Act for Medical
Countermeasures Against COVID-19 (“COVID-19 Decl.”), ECF No. 6, Exh. B; (2) Defendant’s Opposition to
Plaintiff’s Motion to Remand (“Opp.”), ECF No. 18; (3) SEIU-UHW CBA (“UHW-CBA”), ECF No. 18-1, Exh. G.
that the federal defense is the only question truly at issue.” Franchise Tax Bd. of Cal. v.
Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 14 (1983).
There are, however, cases where the well-pleaded compliant rule gives way to “complete
preemption” by federal statute. The Supreme Court has concluded that the preemptive force of
some federal statutes is so strong that they “completely preempt” an area of state law. See
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987). In those cases, any claim
purportedly based on that preempted state law is considered, from its inception, a federal claim,
and therefore arises under federal law. See Franchise Tax Bd., 463 U.S. at 24.
III. Discussion
A. Whether PREP completely preempts this action
PREP is invoked when the Secretary of the Department of Health and Human Services
issues a declaration determining that a disease or other health condition constitutes an ongoing
public health emergency. 42 U.S.C. § 247d-6d(b). If the Secretary determines that there is such
an emergency, he “may make a declaration, through publication in the Federal Register,
recommending . . . the manufacture, testing, development, distribution, administration, or use of
one or more covered countermeasures, and stating that [42 U.S.C. § 247d-6d(a)] is in effect with
respect to the activities so recommended.” Id. The Secretary has issued such a declaration for
the ongoing COVID-19 pandemic. See COVID-19 Decl.
Once invoked, PREP provides that “a covered person shall be immune from suit and
liability under Federal and State law with respect to all claims for loss caused by, arising out of,
relating to, or resulting from the administration to or the use by an individual of a covered
countermeasure.” 42 U.S.C. § 247d-6d(a)(1). This immunity is broad. It applies to “any claim
for loss that has a causal relationship with the administration to or use by an individual of a
covered countermeasure, including a causal relationship with the design, development, clinical
testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing,
promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, or use of
such countermeasure.” Id. at § 247d-6d(a)(2)(B).
“Covered countermeasures” under the PREP Act cover drugs, biological products, or
devices that are designed to diagnose, mitigate, prevent, or treat harm from the public health
emergency. Id. at § 247d-6d(i)(1). The COVID-19 declaration more specifically defines
covered countermeasures as “any antiviral, any other drug, any biologic, any diagnostic, any
other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19 . . . or
any device used in the administration of any such product, and all components and constituent
materials of any such product.” PREP Decl., 85 Fed. Reg. at 15,202. “Administration” and
“use” are not defined in the act, but the Secretary’s COVID-19 declaration states that
“administration” of covered countermeasures “means physical provision of the countermeasures
to recipients, or activities and decisions directly relating to public and private delivery,
distribution and dispensing of the countermeasures to recipients, management and operation of
countermeasure programs, or management and operation of locations for purpose of distributing
and dispensing countermeasures.” Id.
PREP preempts state laws that create different standards regarding covered
countermeasures:
During the effective period of a declaration under subsection (b), or at any
time with respect to conduct undertaken in accordance with such declaration, no
State or political subdivision of a State may establish, enforce, or continue in
effect with respect to a covered countermeasure any provision of law or legal
requirement that—
(A) is different from, or is in conflict with, any requirement applicable
under this section; and
(B) relates to the design, development, clinical testing or investigation,
formulation, manufacture, distribution, sale, donation, purchase, marketing,
promotion, packaging, labeling, licensing, use, any other aspect of safety or
efficacy, or the prescribing, dispensing, or administration by qualified persons of
the covered countermeasure, or to any matter included in a requirement applicable
to the covered countermeasure under this section or any other provision of this
chapter, or under the Federal Food, Drug, and Cosmetic Act.
42 U.S.C. § 247d-6d(b)(8). In sum, PREP creates immunity for all claims of loss causally
connected to the administration or use of covered countermeasures, which are certain drugs,
biological products, or devices.
The Court has not found any binding authority holding that PREP completely preempts
claims such as Haro’s, but that does not matter here as the Court finds that Haro’s minimum
wage claim is not causally connected to any of Kaiser’s covered countermeasures. Haro’s
minimum wage claim is simple: Kaiser requires its employees to show up 15 minutes in advance
of their shift start-times to go through COVID-19 screening procedures, but is not compensating
the employees for this additional time. Kaiser argues that its medical screeners use various
personal protective equipment, such as masks and face shields, and therefore its screening
process is a use of a covered countermeasure. However, Haro’s minimum wage claim is not
causally connected to the screening procedures themselves, but rather the requirement that
employees show up 15 minutes before their shifts start. Kaiser could just as easily have
implemented the screenings without the requirement that employees show up early. In that case,
the screening procedures would simply have occurred while employees were on the clock and
Haro would not have a minimum-wage claim. For these reasons, the Court finds that complete
preemption by PREP cannot provide federal question jurisdiction here.
B. Whether LMRA completely preempts this action
Section 301(a) of the LMRA provides:
Suits for violation of contracts between an employer and a labor organization
representing employees in an industry affecting commerce as defined in this
chapter, or between any such labor organizations, may be brought in any district
court of the United States having jurisdiction of the parties, without respect to the
amount in controversy or without regard to the citizenship of the parties.
29 U.S.C. § 185(a). Section 301 completely preempts state law claims centered on the
enforcement of collective bargaining agreements (“CBAs”). See Franchise Tax Bd., 436 U.S. at
23 (“The pre-emptive force of § 301 is so powerful as to displace any entirely state cause of
action ‘for violations of contracts between an employer and a labor organization.’ Any such suit
is purely a creature of federal law, notwithstanding the fact that state law would provide a cause
of action in the absence of § 301.”).
Section 301 completely preempts state law claims even in some instances where the
plaintiffs have not alleged a breach of contract, if the plaintiffs’ claim is either grounded in the
provisions of the labor contract or requires interpretation of it. See Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 210 (1985) (“If the policies that animate [Section] 301 are to be given their
proper range, . . . the preemptive effect of [Section] 301 must extend beyond suits alleging
contract violations.”). This is so that parties are not able “to evade the requirements of Section
301 by relabeling their contract claims as claims for tortious breach of contract” or some other
state cause of action, and thus “elevate form over substance.” Id. at 211.
To determine whether Section 301 completely preempts non-breach-of-contract state law
claims, courts follow a two-step process. See Burnside v. Kiewit Pacific Corp., 491 F.3d 1053,
1060 (9th Cir. 2007). First, a court determines whether the asserted cause of action involves a
right conferred upon an employee by state law or by a CBA. If the right exists solely as a result
of the CBA, then the claim is preempted. Id. If, however, the right exists independently of the
CBA, a court must consider whether it is nevertheless “substantially dependent on analysis of a
collective-bargaining agreement.” See Caterpillar, Inc. v. Williams, 482 U.S. 386, 394 (quoting
Int’l Bhd. of Elec. Workers v. Hechler, 481 U.S. 851, 859 n. 3 (1987)); see also Lueck, 471 U.S.
at 213 (explaining that when “state . . . law purports to define the meaning of the contract
relationship, that law is preempted”). If an analysis of the right is substantially dependent on an
analysis of the CBA, then the claim is preempted by Section 301; if not, then the claim can
proceed under state law.
It is clear that Haro’s minimum wage claim arises under state law, and so whether or not
Section 301 completely preempts it depends on whether analyzing her claim substantially
depends on analyzing the CBA between Kaiser and Haro’s representative, Service Employees
International Union-United Healthcare Workers West (“UHW”). Tracing the line of
“demarcation between preempted claims and those that survive [Section] 301’s reach” is not a
task that always “lends itself to analytical precision.” Cramer v. Consol. Freightways, Inc., 255
F.3d 683, 691 (9th Cir. 2001). To determine whether a state law right is “substantially
dependent” on the terms of a CBA, a court must decide whether the claim can be resolved by
“looking to” versus “interpreting” the CBA. Id. at 691. If the latter, the claim is preempted; if
the former, it is not.
Haro’s minimum wage claim is based on the California Labor Code and Industrial
Welfare Commission (“IWC”) wage order No. 5-2001 (“Wage Order 5), which requires that
“[e]very employer shall pay to each employee wages . . . for all hours worked.” Cal. Code
Regs., tit. 8, § 11050.4(A). “Hours worked” is defined as “time during which an employee is
subject 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.” Id., § 11050.2(K).
Haro’s claim therefore turns on whether or not she and the putative class members were
“subject to the control” of Kaiser during those 15-minute periods that they were required to show
for ahead of their work shifts. The question of employer control is an issue of state law that does
not depend on a CBA. See, e.g., Frlekin v. Apple Inc., 8 Cal.5th 1038, 1042 (2020) (holding that
as a matter of California law, “time spent on the employer’s premises waiting for, and
undergoing, required exit searches of packages, bags, or personal technology devices voluntarily
brought to work purely for personal convenience by employees” was “compensable as ‘hours
worked’ within the meaning of [the applicable IWC wage order]”).
Kaiser argues that resolving the minimum wage claim will require the Court to look to
the CBA between it and UHW to determine whether it “allow[s] Kaiser to implement such a 15-
minute policy or practice as to Plaintiff and other UHW members.” Opp. at 19. It relies on the
scheduling provision in the CBA which provides that:
Schedules of starting and quitting times and days off of Employees will be posted
by the Employer four (4) weeks in advance in the Southern California Region and
fourteen (14) days in advance in the Northern California Region subject to
emergency situation changes. Such schedules will be maintained on a weekly
basis and will be posted in a location readily accessible to all department
Employees.
UHW-CBA ¶ 309. According to Kaiser, it is “contractually prohibited from requiring any
bargaining unit employee to perform work before or after their scheduled shift without first
satisfying the requirements set out in the CBA.” Opp. at 4-5.
The Court is not persuaded by Kaiser’s argument. Under California law, the right to be
paid a minimum wage for all time worked cannot be waived. See Cal. Lab. Code § 1194(a)
(“Notwithstanding any agreement to work for a lesser wage, any employee receiving less than
the legal minimum wage . . . is entitled to recover in a civil action the unpaid balance . . . .”).
Therefore there is no need for the Court to examine the CBA to determine if Kaiser’s policy of
not compensating employees for the 15-minutes is permitted under its terms – such a waiver is
prohibited by California statute.2 With her minimum wage claim, Haro is not complaining about
Kaiser’s scheduling of her shifts, but about the fact that she is not being paid at all for those 15
minutes spent going through the screening process. The only issue to be decided is whether the
putative class members are subject to Kaiser’s control during these 15 minutes. If the answer is
yes, then they are entitled to compensation for that time.
For these reasons, the Court finds that Section 301 does not provide complete preemption
here. Given the same conclusion with Kaiser’s argument under PREP, the Court finds that there
is no federal question jurisdiction and that the case must be remanded back to state court.
C. Haro’s request for attorney fees
“Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only
where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v.

2 Even if the right to a minimum wage for all time worked could be waived, that would not change the
outcome as “a court may look to the CBA to determine whether it contains a clear and unmistakable waiver of state
law rights without triggering [Section] 301 preemption.” Cramer, 255 F.3d at 692.
Franklin Capital Corp., 546 U.S. 132, 141 (2005). Between the scarce PREP case law and the
presence of a CBA in this suit, the Court does not believe that Kaiser lacked an objectively
reasonable basis for seeking removal.
IV. Conclusion
Based on the foregoing discussion, the Court GRANTS/DENIES IN PART the motion.
The Court remands the case back to state court, but denies Haro’s request for an award of
attorney fees.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10038938. Public record. Not legal advice.