In Sullivan v. Oracle Corporation, 547 F.3d 1177 (9th Cir. 2008), the Ninth Circuit Court of Appeals issued a controversial opinion, holding that non-California residents who perform work in California, even on short-term assignments, are protected by California labor laws. On February 17, 2009, the Ninth Circuit Court of Appeals withdrew its opinion in Sullivan and asked for guidance from the California Supreme Court on the issues presented in the case.

The Sullivan plaintiffs were instructors employed by Oracle to train customers on its software. The instructors traveled to different states, including California, where they worked no more than 36 days in any calendar year. The plaintiffs alleged that Oracle misclassified them as exempt and failed to pay them daily and weekly overtime for the full days they worked in California.

The Ninth Circuit held that California's wage and hour laws, including the daily overtime requirement, applied to the work performed in California by the plaintiffs, even if they were non-residents and the work was sporadic.

The Ninth Circuit certified the following three questions to the California Supreme Court:

1. Does the California Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of 40 hours per week?

2. Does California Business and Professions Code § 17200 (Unfair Competition Law) apply to the overtime work described in question one?

3. Does § 17200 (Unfair Competition Law) apply to overtime work performed outside 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 Fair Labor Standards Act?

If the California Supreme Court decides any or all of the certified questions, the Ninth Circuit will accept and rely on that decision in any further proceedings.

The Supreme Court's review of these questions should provide employers with a clear understanding of the requirements for timekeeping and payment of non-California residents who work temporarily in California.

For more information about this Client Alert, please contact:

Michael Kun
Los Angeles
(310) 557-9501


Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.