On November 6, 2008, the Ninth Circuit Court of Appeal, issued an opinion in Oracle v. Sullivan, 547 F.3d 1177 (9th Cir. 2008), which came to three important conclusions regarding the reach of California law, including the following:

First, California's overtime laws may apply to nonresident employees (in the case itself, individuals from Arizona and Colorado were involved) for those periods of time that the employees temporarily work in California;

Second, the court found that a company that has a sufficient presence in the state, such as Oracle, can be required to comply with California law without violating that employer's due process rights; and

Third, the court found that California's unfair competition law does not apply to acts based on alleged federal wage law violations that occur outside of the state.  

This opinion was reported in our earlier blog posting, Federal Court Finds California Law Applies to Out Of State Workers.

The parties sought to have the opinion reviewed by the Ninth Circuit en banc. On February 17, 2009, the Ninth Circuit withdrew the original opinion and declined the parties' request to consider issues en banc. Instead the Court certified a request to the California Supreme Court, pursuant to California Rule of Court 8.548. As previously reported, the Ninth Circuit sought to have the California Supreme Court consider three questions:

First, whether the California Labor Code applies to overtime work performed in California for a California-based employer by out-of-state plaintiffs, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week;

Second, whether California Business and Professions Code section 17200 applies to overtime work described in question one.

Third, whether California Business and Professions Code section 17200 applies to overtime work performed outside of California for a California-based employer by out-of-state plaintiffs in the circumstances of this case if the employer failed to comply with the overtime provisions of the FLSA. Sullivan v. Oracle Corp., 557 F.3d 979 (9th Cir. Feb. 17, 2009).

On April 22, 2009, the California Supreme Court granted the request to certify issues pursuant to California Rule of Court 8.548. Specifically, the Court stated the following: "The request, made pursuant to California Rules of Court, rule 8.548, that this court decide questions of California law in a matter pending in the United States Court of Appeals for the Ninth Circuit is granted. For purposes of briefing and oral argument, plaintiffs Donald Sullivan et al. are deemed petitioners in this court. Corrigan, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ."

At this point, the original decision (found at Sullivan v. Oracle Corp., 547 F.3d 1177 (9th Cir. 2008)) is no longer good law, and the California Supreme Court has yet to issue a briefing schedule.

This blog posting was authored by Jim E. Hart.