Amaral v. Cintas Corp. No. 2 (163 Cal. App. 4th 1157, 2008)

Opinion

McGUINESS, P. J.

— These appeals concern the constitutionality and application of a living wage ordinance enacted by the City of Hayward (City) and incorporated into its municipal contracts. Although Cintas entered into such contracts with the City, it did not provide the minimum wages or benefits required by the ordinance to employees who worked in the company’s stockroom or laundry production facilities, which are located outside of the City. Plaintiffs, representing a class of such employees, sued Cintas for violations of the living wage ordinance, Labor Code section 200 et seq., Business and Professions Code section 17200 and breach of contract. The trial court rejected Cintas’s challenges to the constitutionality of the ordinance and, on cross-motions for summary judgment or summary adjudication, found that Cintas violated the ordinance, breached its contracts with the City, and violated several Labor Code provisions as well as Business and Professions Code section 17200. The court awarded back wages and unpaid benefits, imposed penalties for the Labor Code violations pursuant to the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.), and awarded plaintiffs statutory attorney fees and costs. Cintas challenges nearly every aspect of these rulings on appeal. In separate cross-appeals, plaintiffs dispute the trial court’s finding that Cintas’s conduct was not “willful,” challenge the court’s calculation of penalties, and claim they are entitled to recover additional costs.

We conclude the trial court correctly decided all of the numerous legal issues presented. Accordingly, we affirm the judgment and postjudgment orders in their entirety.

BACKGROUND

During the period from July 1999 through the end of June 2003, the City contracted with Cintas for certain uniform and linen services. Cintas leased the City a variety of uniform garments as well as janitorial items such as shop towels and other towels, mops and industrial doormats. Cintas drivers collected soiled items from various City departments every week and delivered them to a Cintas facility for laundering. During the contract period, items from the City were processed at Cintas plants located in Union City and San Leandro. Cintas production workers would first unload items from the truck and sort them into bins by category (i.e., garments, towels and mats). The items were not separated by customer; instead, the garments and other items collected from the City were, mixed with items from multiple other Cintas customers. Next, the items would be laundered, steamed or pressed (as necessary), inspected for damage, sorted again, and loaded back onto trucks for delivery. Cintas also maintained a stockroom in San Leandro. Stockroom workers filled requests for replacement garments, repaired damaged garments, and either applied or removed customer-requested logos and labels for the garments. Like production workers, Cintas employees in the stockroom worked on items for many different customers each day.

In April 1999, the City adopted the Hayward Living Wage Ordinance (LWO). (Hayward Ord. No. 99-03, adding ch. 2, art. 14, § 2-14.010 et seq. to Hayward Mun. Code.) In connection with this ordinance, the Hayward City Council made the following findings: “a. The City awards many contracts to private firms which provide services and labor to City government and to the public. [¶] b. Experience indicates that many City contractors who provide services and labor pay their employees . . . wages at or slightly above the minimum required by federal and state minimum wage laws. [¶] c. Payment of inadequate compensation does not provide affected employees with resources sufficient to afford a decent standard of living in Hayward. [¶] d. The City intends to require contractors to provide a minimum level of compensation that will improve the level of services rendered to and for the City. [¶] e. Based upon public comment, testimony and studies, the City Council finds that the wage levels set by this ordinance are minimum compensation levels required to afford a decent standard of living in Hayward.” (Hayward Ord. No. 99-03, at § 1.)

The LWO, which applies to all service contracts entered with the City on or after July 1, 1999, requires covered contractors to pay their employees at least $8 per hour if health benefits are provided, or $9.25 per hour if no health benefits are provided. (Hayward Mun. Code, § 2-14.020, subds. (a), (c).) The ordinance defines “employee” as “any individual employed by a service contractor on or under the authority of any contract for services with the City or proposal for such contract.” (Hayward Mun. Code, § 2-14.010, subd. (c).) A “service contract” triggering obligations under the LWO is defined as “any contract with the City, including a purchase order,” involving an expenditure in excess of $25,000 for any of several enumerated services, including “[j]anitorial and custodial” services and “[l]aundry services.” (Hayward Mun. Code, § 2-14-010, subd. (f).)

Two months before the ordinance went into effect, the City’s purchasing manager Ralph Costa sent Cintas a complete copy of the newly adopted LWO. In the facsimile cover sheet for this transmission, Costa reminded Cintas that the City intended to “add language to the renewal PO [purchase order] indicating that the contract is subject to the requirements of the ordinance.” On June 9, 1999, the City followed up with a form letter stating that the City’s renewable purchase order with Cintas was subject to the LWO and explaining the LWO’s requirements. The letter asked vendors to indicate whether they would comply with the ordinance, warning that a refusal to comply would result in the vendor’s contract or purchase order being cancelled. Dion Doshier, the general manager of Cintas’s Union City plant, checked a box certifying that Cintas would comply with the LWO and returned the signed letter to the City. Doshier did not recall reading the LWO when he first certified that Cintas would comply with it. He did not discuss its requirements with a representative of the City or with anyone at Cintas; rather, Doshier assumed the contract was being renewed under the same terms and conditions as had previously applied.

The following year, on June 2, 2000, the City sent a letter informing Cintas of the new hourly minimum wages required under the LWO (based on cost of living adjustments). Once again, a representative of Cintas signed and returned the letter, certifying that Cintas would comply with the LWO. In addition, purchase orders from the City covering the period from July 1, 1999, through June 30, 2003, were stamped with the statement, “CINTAS agrees to comply with The City of Hayward Living Wage Ordinance . . . .” Meanwhile, no one at Cintas contacted the City with questions about its requirements or applicability.

In late May 2003, the City contacted Cintas about renewing its purchase order. When Matthew Ketchem, the general manager of Cintas’s San Leandro plant, reviewed the paperwork forwarded by the City, he noticed statements requiring compliance with the Hayward Living Wage Ordinance. Ketchem asked around throughout the service department, but no one knew what the LWO was and no one had contacted the City to find out. Ketchem contacted his supervisor, a regional vice-president based in Seattle, Washington, and was told to terminate the contract. By letter of July 3, 2003, Cintas terminated its contract with the City. Throughout the period from 1999 to 2003, revenue from the City of Hayward contract constituted less than 1 percent of the total revenue Cintas received from all customers serviced at the Union City and San Leandro facilities.

On June 23, 2003, plaintiffs filed a class action complaint against Cintas based on the company’s failure to compensate its Union City and San Leandro employees at hourly rates required by the LWO. The complaint alleged Cintas violated the LWO and associated Labor Code provisions (Lab. Code, §§ 204, 227.3), engaged in an unfair and unlawful business practice (Bus. & Prof. Code, § 17200), and breached its contract with the City of Hayward. After the Legislature enacted the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.), which permits aggrieved employees to recover Labor Code penalties that previously could be pursued only by the Labor Commissioner, plaintiffs amended their complaint to seek additional penalties. The trial court certified a class consisting of all production and stockroom workers employed by Cintas at its facilities in Union City and San Leandro between July 1, 1999, and June 30, 2003. The court also permitted the City of Hayward to intervene as a plaintiff.

Early in the proceedings, Cintas moved for summary judgment on the ground that the City lacked authority to regulate wages for work performed outside of Hayward’s territorial boundaries. (Cal. Const., art. XI, § 7.) The trial court denied the motion, concluding application of the LWO was a proper exercise of the City’s contracting power. After the case proceeded through discovery, on September 23, 2005, the court ruled on cross-motions for summary judgment or summary adjudication filed by Cintas, the City and plaintiffs. Specifically, the court determined the LWO was not unconstitutional on its face or as applied to Cintas and was not so ambiguous as to render the contract between Cintas and the City unenforceable. The court interpreted the LWO as applying to all hours worked by class members during the contract period and therefore concluded Cintas violated the LWO and Business and Professions Code section 17200 and breached its contract with the City. On these claims, the court awarded plaintiffs $790,489 in unpaid hourly wages and $14,254 in unpaid vacation benefits. The court also rejected Cintas’s retroactivity arguments and concluded plaintiffs could rely on the Private Attorneys General Act to obtain Labor Code penalties applicable to conduct that occurred before its enactment. However, because the court determined Cintas’s violation of the LWO was not willful, it declined to impose the higher penalty rates plaintiffs sought. The court ordered Cintas to pay a total of $258,900 in penalties for violations of Labor Code former sections 210, 225.5 and section 227.3.

After the parties entered a stipulation to resolve certain matters for purposes of facilitating an appeal (see Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 400-402 [87 Cal.Rptr.2d 453, 981 P.2d 79]), judgment was entered in favor of plaintiffs and the City of Hayward. Cintas filed a notice of appeal from the judgment, and plaintiffs cross-appealed.

Plaintiffs moved to recover their costs and attorney fees, based on Code of Civil Procedure section 1021.5 and fee-shifting provisions of the LWO and Labor Code. This motion was granted in part and denied in part. The trial court awarded fees of $1,199,550, calculated using a lodestar amount of $727,000 and a multiplier of 1.65, plus fees of $60,611 for work on the fee motion itself. The court also awarded $498 in nonstatutory costs but denied plaintiffs’ attempt to recover additional litigation expenses. As before, Cintas filed a notice of appeal from the order granting attorney fees, and plaintiffs cross-appealed. We consolidated all of the appeals and cross-appeals for briefing, oral argument and decision.

DISCUSSION

Most of the issues were summarily adjudicated below based on undisputed facts; accordingly, they are subject to de novo review on appeal. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)

I. Constitutionality of the LWO

A. Extraterritoriality

Cintas’s first constitutional challenge to the LWO rests on article XI, section 7 of the California Constitution, a provision which Cintas contends prohibits attempts by a municipality to exercise power outside its territorial boundaries. However, the language of the provision and cases interpreting it make it clear the prohibition applies only where a local government exercises its regulatory or police power, as opposed to its contracting or proprietary power. (Burns Internat. Security Services Corp. v. County of Los Angeles (2004) 123 Cal.App.4th 162, 168 [19 Cal.Rptr.3d 776] (Burns).)

Article 11, section 7 states that a “county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (Cal. Const., art. XI, § 7.) The Supreme Court summarized this provision as meaning: “A municipal corporation has generally no extraterritorial powers of regulation. It may not exercise its governmental functions beyond its corporate boundaries. [Citations.]” (City of Oakland v. Brock (1937) 8 Cal.2d 639, 641 [67 P.2d 344], italics added; see also Stanislaus Co. etc. Assn. v. Stanislaus (1937) 8 Cal.2d 378, 383-384 [65 P.2d 1305] [observing that a county’s “authority to enact police ordinances for sanitation or health” is as broad as the Legislature’s except insofar as it is limited by art. XI, § 7].) However, the court recognized long ago that “municipalities may exercise certain extraterritorial powers when the possession and exercise of such powers are essential to the proper conduct of the affairs of the municipality.” (In re Blois (1918) 179 Cal. 291, 296 [176 P. 449]; see also City of Oakland v. Burns (1956) 46 Cal.2d 401, 407 [296 P.2d 333] [“When a governmental entity is authorized to exercise a power purely proprietary, the law leans to the theory that it has full power to perform it in the same efficient manner as a private person would.”].)

It is beyond dispute that City, as a charter city, has the power to enter contracts to carry out its necessary functions and may place conditions or specifications on the bidding for such contracts. (Carruth v. City of Madera (1965) 233 Cal.App.2d 688, 695 [43 Cal.Rptr. 855]; see also First Street Plaza Partners v. City of Los Angeles (1998) 65 Cal.App.4th 650, 661 [76 Cal.Rptr.2d 626] [the manner in which a city contracts is a “municipal affair” subject to control by the city’s charter].) The question we must decide is whether application of the LWO to Cintas is an appropriate exercise of the City’s contracting power, or whether it is an inappropriate attempt by the City to extend its police powers extraterritorially. Two cases involving similar challenges to municipal contracts inform our answer.

Alioto’s Fish Co. v. Human Rights Com. of San Francisco (1981) 120 Cal.App.3d 594 [174 Cal.Rptr. 763] (Alioto’s) concerned a San Francisco municipal ordinance prohibiting discrimination in employment. This provision, which was incorporated into all leases of city-owned land, required contractors to agree that they would not discriminate on the basis of race, color, religion, ancestry, national origin, age, sex or sexual orientation and that they would take affirmative action to ensure applicants were employed and retained in accordance with these nondiscriminatory principles. (Id. at pp. 600-601.) Several lessees challenged the ordinance, claiming it was preempted by state antidiscrimination laws. (Id. at p. 603.) Although Division Two of this court concluded the Legislature had “[cjertainly . . . evinced an intent to occupy a major portion of the field of employment discrimination” (id. at p. 604), the court upheld the San Francisco ordinance because it was “an exercise of the City’s contracting power” (id. at p. 605). The court observed: “The ordinance does not ban discrimination in employment but merely prescribes certain provisions in City contracts. Those who find such provisions burdensome may simply refuse to contract.” (Ibid.)

Although the issue of extraterritorial effects did not arise in Alioto’s, a more recent decision confirms that such effects do not invalidate an otherwise appropriate exercise of a local government’s contracting authority. In Burns, supra, 123 Cal.App.4th at page 165, the court considered a challenge under article XI, section 7 of the California Constitution to a Los Angeles County ordinance requiring that parties contracting with the county provide at least five days of paid leave for jury duty to their permanent, full-time employees. Contractors were required to have a written policy to this effect and to certify their compliance with this policy to the county. (Burns, at pp. 165-166.) A national provider of security services sought to renew its contracts with the county but certified only that the company would provide the required paid jury duty leave to full-time employees “ ‘assigned to perform any services on the . . . contract.’ ” (Id. at p. 166.) The county rejected this proposal, determined the provider was not in compliance with the ordinance, and awarded the contracts to another provider. (Ibid.) The contractor sued, alleging this determination was based on its refusal to certify that it would provide at least five days of paid jury leave to all full-time employees who were California residents, regardless of whether they lived in Los Angeles County or whether they would provide any service under the contracts with the county. (Ibid.)

In sustaining the county’s demurrer, the trial court in Bums concluded the Los Angeles County ordinance was valid “even if interpreted to require contracting parties to provide at least five days of paid jury duty leave to all of its employees who reside in California regardless of whether the employees would be providing service under any County contract.” (Burns, supra, 123 Cal.App.4th at p. 167.) The appellate court agreed. (Id. at p. 172.) Based on the analysis in Alioto’s, as well as two federal decisions applying California law, the court in Burns considered the determinative question in an extraterritoriality analysis to be whether the challenged ordinance represents an exercise of the municipality’s contracting power or its regulatory power. (Burns, supra, 123 Cal.App.4th at p. 169.) Because no evidence suggested Los Angeles County was “attempting to enlarge its powers or regulate outside its boundaries under the guise of seeking bids for security services,” the court concluded the county was “simply specifying the type of employer with which it wishes to do business,” and the ordinance was a permissible exercise of the county’s contracting power. (Id. at p. 172.)

The same is true here. The LWO does not purport to regulate conduct outside of Hayward’s boundaries; rather, it specifies certain conduct the City wants its contracting partners to follow. It does not matter, for constitutional purposes, whether contractors may have to perform this required conduct outside the City’s boundaries. The point is that the City’s only action is proprietary: It is the decision to enter a contract, or not, depending on whether the contractor agrees to pay its employees a living wage. Although the LWO may have extraterritorial effects when contractors must pay a living wage to employees who live or perform work outside of the City, these effects do not render the City’s exercise of its contracting power unconstitutional. (See Air Transport v. City and County of San Francisco, supra, 992 F.Supp. at p. 1159 [holding city ordinance requiring contractors to pay domestic partnership benefits does not violate California Constitution even though it may have nationwide extraterritorial effects when applied to airlines that contract with the San Francisco International Airport].) Like the Los Angeles ordinance requiring contractors to provide all California employees with paid leave for jury duty (Burns, supra, 123 Cal.App.4th at pp. 165, 167-172), the LWO reflects the City’s policy decision about the type of employer with whom it wishes to contract. If Cintas did not want to pay its employees the wages specified in the LWO, it could simply have declined to renew its contract with the City (as it eventually did in 2003).

Nevertheless, Cintas contends the LWO is not proprietary in nature, but is a veiled attempt by the City to regulate outside its boundaries. Cintas argues the City’s goal of helping individuals enjoy a better standard of living in Hayward is a regulatory objective that is unrelated to the City’s “market interest” in procuring goods and services. However, Cintas’s self-serving characterization of what is in the City’s proprietary interest ignores the City Council’s express finding that “requir[ing] contractors to provide a minimum level of compensation . . . will improve the level of services rendered to and for the City.” (Hayward Ord. No. 99-03, § 1(d).) Thus, the City found enactment of the LWO would serve its proprietary interest in obtaining quality services.

Cintas also argues the regulatory nature of the LWO is belied by the fact that it prescribes more than just contractual remedies in the event of a violation. It is true that, unlike the ordinances at issue in Bums and Alioto ’s, the LWO purports to give employees a private right of action against their employer for violation of the LWO. (Hayward Mun. Code, § 2-14.040, subd. (a).) However, it does so by requiring each service contractor to agree to submit to a civil action by aggrieved employees. (Id., § 2-14.040, subd. (b).) The requirements of the LWO, and the enforcement mechanisms it provides, reach beyond the City’s boundaries only to the extent that outside parties choose to contract with the City. The fact that some enforcement measures, such as employee lawsuits or fines (id., § 2-14.040, subd. (e)), go beyond traditional contract remedies does not convert the City’s exercise of contracting power into an extraterritorial regulation. Companies that wish to avoid the LWO’s enforcement measures can do so simply by choosing not to bid on service contracts with the City.

B. Vagueness

Cintas also argues the LWO is so vague that it violates due process under the federal and state Constitutions. “[D]ue process of law is violated by ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ [Citations.]” (Britt v. City of Pomona (1990) 223 Cal.App.3d 265, 278 [272 Cal.Rptr. 724].) Before we consider this constitutional issue, however, we must address Cintas’s challenge to a related evidentiary ruling.

1. City Officials’ Testimony on LWO Properly Excluded

In the trial court, Cintas attempted to support its arguments on the vagueness of the LWO and on the interpretation of the LWO, should it be applied, with statements made by City employees. In particular, Cintas relied on statements from acting assistant city manager, Perry Carter, whom the City had designated as its person most knowledgeable for deposition (Code Civ. Proc., § 2025.230) about the interpretation, application and enforcement of the LWO. Among other things, Carter stated in deposition that he could “certainly see” why contractors might find certain aspects of the LWO’s application ambiguous. The trial court excluded this evidence on the ground that the statements were inadmissible opinion testimony on a legal issue. Nevertheless, Cintas continues to rely heavily on such testimony and statements made by City officials to support its argument that the LWO is unconstitutionally vague.

The trial court’s ruling was correct. Opinion evidence about the meaning of a statute, whether from a lay person or a purported expert, has long been held inadmissible. (People v. Torres (1995) 33 Cal.App.4th 37, 45-46 [39 Cal.Rptr.2d 103]; see also In re Brian J. (2007) 150 Cal.App.4th 97, 120-121 [58 Cal.Rptr.3d 246].) Whether the LWO is so vague and ambiguous that it offends due process, and how the terms of the LWO should be interpreted, are legal questions for the court to decide, and the opinions of City officials on these matters were of little to no relevance. (See People v. Torres, supra, 33 Cal.App.4th at p. 46; see also County of Yolo v. Los Rios Community College Dist. (1992) 5 Cal.App.4th 1242, 1257 [7 Cal.Rptr.2d 647] [refusing to defer to opinions of county clerk and economics expert regarding meaning of statutory terms because statutory interpretation is ultimately the responsibility of the court].) Cintas complains the trial court’s ruling gave insufficient weight to the fact that Carter was designated to speak as the City’s representative in regard to the LWO, but it cites no authority suggesting this designation makes any difference to the admissibility of the evidence. In fact, the law is contrary. “It is well settled that the testimony or opinions of individual members of a legislative body are inadmissible for purposes of interpreting a statute. [Citation.]” (County of Santa Cruz v. City of Watsonville (1985) 177 Cal.App.3d 831, 842 [223 Cal.Rptr. 272]; see also City of Los Angeles v. Superior Court (1985) 170 Cal.App.3d 744, 752-753 [216 Cal.Rptr. 311] [opinions of individual city council members regarding interpretation of ordinance were not relevant for discovery purposes despite claim that the ordinance was ambiguous].)

2. LWO Not Unconstitutionally Vague

We turn now to Cintas’s claim that the LWO is impermissibly vague.

The underlying concern of a vagueness challenge “is the core due process requirement of adequate notice.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1115 [60 Cal.Rptr.2d 277, 929 P.2d 596] (Acuna).) “A vague statute cannot be upheld because ‘ “we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” ’ (Cranston v. City of Richmond (1985) 40 Cal.3d 755, 763 [221 Cal.Rptr. 779, 710 P.2d 845].) ‘A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions . . . .’ (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484 [171 P.2d 21].)” (Ortiz v. Lyon Management Group, Inc. (2007) 157 Cal.App.4th 604, 613 [69 Cal.Rptr.3d 66].)

The Supreme Court has articulated two guiding principles for evaluating vagueness claims. “The first principle is derived from the concrete necessity that abstract legal commands must be applied in a specific context. A contextual application of otherwise unqualified legal language may supply the clue to a law’s meaning, giving facially standardless language a constitutionally sufficient concreteness. Indeed, in evaluating challenges based on claims of vagueness, the [United States Supreme Court] has said ‘[t]he particular context is all important.’ [Citation.]” (Acuna, supra, 14 Cal.4th at p. 1116.) Such context, our high court has observed, properly includes the purpose or objectives that the challenged law was designed to serve. (Id. at p. 1118; see also Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1107 [40 Cal.Rptr.2d 402, 892 P.2d 1145].)

“The second guiding principle is the notion of ‘reasonable specificity’ [citation] or ‘ “ ‘[reasonable certainty.’ ” ’ [Citations.] . . . ‘[F]ew words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no' more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.’ [Citation.]” (Acuna, supra, 14 Cal.4th at p. 1117.) Thus, “ ‘ “[a] statute will not be held void for uncertainty if any reasonable and practical construction can be given its language.” [Citation.] It will be upheld if its terms may be made reasonably certain by reference to other definable sources,’ including ‘reference to other [statutes or] code provisions’ [citations]. Other ‘definable sources’ also include judicial decisions and common law [citations], legislative history, and other portions of the legislation. [Citations.] Finally, and sometimes most importantly, common sense is also to be considered. [Citations.]” (Personal Watercraft Coalition v. Marin County Bd. of Supervisors (2002) 100 Cal.App.4th 129, 139 [122 Cal.Rptr.2d 425].)

In applying these two principles to analyze the LWO, we respect “the strong presumption that legislative enactments ‘must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] . . .’ (Lockheed Aircraft Corp. v. Superior Court[, supra,] 28 Cal.2d [at p. 484].)” (Walker v. Superior Court (1988) 47 Cal.3d 112, 143 [253 Cal.Rptr. 1, 763 P.2d 852]; accord, Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1107.) Moreover, because the LWO regulates business behavior, constitutional requirements are more relaxed than they are for statutes that are penal in nature. (Hoffman Estates v. Flipside, Hoffman Estates (1982) 455 U.S. 489, 498 [71 L.Ed.2d 362, 102 S.Ct. 1186].) “[Economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process. The Court has also expressed greater tolerance of enactments with civil rather than criminal penalties because the consequences of imprecision are qualitatively less severe.” (Id. at pp. 498-499, fns. omitted; see also Barclays Bank Internal Ltd. v. Franchise Tax Bd. (1992) 10 Cal.App.4th 1742, 1759 [14 Cal.Rptr.2d 537] [“Vagueness is less a concern if an enterprise has the ability to clarify the meaning of an economic regulation in advance by resort to an administrative process.”].)

Cintas complains of three specific areas of ambiguity in the LWO: (1) whether a service contractor must pay employees the LWO rate for all hours worked, or only for time spent working on a Hayward contract; (2) whether the LWO applies to work performed outside of the City; and (3) whether the LWO applies to employees who do not work “directly” on Hayward projects. These three areas all boil down to questions about how the LWO should be interpreted to apply to the somewhat unusual situation of a service contractor that performed work in geographical locations outside the City and comingled work employees performed on the City’s contract with work performed for all other customers. The ordinance itself does not mention where work covered by the LWO is to be performed or which of an employee’s hours may or may not be subject to the LWO. It simply states that service contractors such as Cintas must pay their employees certain minimum wages, where “employee” is defined as a person “employed ... on or under the authority of’ a service contract with the City. (Hayward Mun. Code, § 2-14.010, subd. (c).) Thus, the “ambiguities” Cintas complains of do not arise from the language of the LWO itself, but rather from Cintas’s attempt to impose limits on the application of the ordinance. As our Supreme Court has explained, however, “the mere fact that a new statute requires interpretation does not make it unconstitutionally vague.” (People v. Hazelton (1996) 14 Cal.4th 101, 109 [58 Cal.Rptr.2d 443, 926 P.2d 423], fn. omitted.)

In passing the LWO, “[t]he City intended] to require contractors to provide a minimum level of compensation that will improve the level of services rendered to and for the City.” (Hayward Ord. No. 99-03, § 1(d), adding ch. 2, art. 14, § 2-14.010 et seq. to Hayward Mun. Code.) In other words, the City wanted employees who provide services to the City under service contracts to be paid a living wage because it believed payment of this wage would improve the quality of services such employees render. The City Council’s statement of intent, along with a provision in the LWO stating that the ordinance should be applied to the City’s service contracts “[t]o the maximum extent permitted by law” (Hayward Mun. Code, § 2-14.020, subd. (b)), indicates the LWO applies — -just as its language states — to all employees who work on or under a service contract with the City. There is no inherent vagueness in the statutory language, and adopting the plain meaning of this language serves the broad remedial purpose the City Council evidently intended.

It is true that the terms of the LWO do not spell out precisely how the ordinance will apply in situations where contractors perform work outside of the City or commingle an employee’s contract-related work with work for other customers. However, due process “does not . . . require that statutes must be drafted with the precision of a laser.” (Personal Watercraft Coalition v. Marin County Bd. of Supervisors, supra, 100 Cal.App.4th at p. 138.) “ ‘ “Reasonable certainty is all that is required. . . .” [Citation.] . . .’ [Citations].” (Id. at p. 139, quoting American Civil Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 218 [28 Cal.Rptr. 700, 379 P.2d 4].) Because the LWO authorizes the city manager to develop and implement administrative policies for applying the ordinance (Hayward Mun. Code, § 2-14-050, subd. (a)), the City apparently intended to adopt regulations to clarify how the law applies in various situations. (See generally Aguiar v. Cintas Corp. No. 2 (2006) 144 Cal.App.4th 121, 125-127 [50 Cal.Rptr.3d 135] [describing a very similar living wage ordinance adopted by the City of Los Angeles and related administrative regulations the city promulgated].) However, the absence of such regulations does not, standing alone, render the LWO unconstitutionally vague. Cintas’s argument to this effect rests on a tautology, because “a determination that a statutory scheme cannot be implemented without administrative regulations is essentially [the same as] a determination that the statutory scheme, standing alone, is too vague or indefinite to be enforced.” (Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 503 [120 Cal.Rptr.2d 197].)

Considering the purpose for which the LWO was enacted, it is “ ‘ “reasonable and practical” ’ ” to construe its language as requiring payment of a living wage to all employees who perform work for the City under a service contract. (Personal Watercraft Coalition v. Marin County Bd. of Supervisors, supra, 100 Cal.App.4th at p. 139; see also Kumar v. Superior Court (2007) 149 Cal.App.4th 543, 549 [57 Cal.Rptr.3d 72] [in considering vagueness challenge, court must give statute a liberal, practical and commonsense construction].) Nor are the terms of the LWO so indefinite or esoteric that a person of ordinary intelligence would have to guess at their meaning. (See Britt v. City of Pomona, supra, 223 Cal.App.3d at p. 278.) Cintas did not express confusion about the application of the LWO before this litigation, and undisputed evidence indicates that, despite letters inviting questions from contractors about the LWO, Cintas never asked the City what it needed to do to comply with the ordinance. In general, “[a] person wondering whether a contemplated course of conduct is within a statutory prohibition is under a duty of inquiry to determine whether the latter will reach the former.” (Personal Watercraft Coalition v. Marin County Bd. of Supervisors, supra, 100 Cal.App.4th at p. 139.) We do not consider Cintas’s failure to inquire about the LWO to be fatal to its vagueness claim, because no “definable sources” such as regulations or court decisions were available to explain the LWO’s application in this specific context (see ibid.); however, the company’s apparent failure to ask anyone about the proper application of the LWO undermines its current claim that the ordinance’s terms are hopelessly ambiguous.

II. Interpretation of LWO for Class Members’ Claims

Having rejected Cintas’s challenges to the constitutionality of the LWO, we now consider whether the trial court properly interpreted the requirements of the ordinance. Because Cintas’s claims in this regard raise issues of law, they are subject to de novo review. (People ex rel Kennedy v. Beaumont Investment, Ltd. (2003) 111 Cal.App.4th 102, 113 [3 Cal.Rptr.3d 429].)

“We interpret ordinances by the same rules applicable to statutes. [Citation.]” (Carson Harbor Village, Ltd. v. City of Carson Mobilehome Park Rental Review Bd. (1999) 70 Cal.App.4th 281, 290 [82 Cal.Rptr.2d 569].) CLese rules are well established. “When faced with a question of statutory Interpretation, we look first to the language of the statute. [Citation.] In Interpreting that language, we strive to give effect and significance to every gvord and phrase. [Citation.]” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1284-1285 [48 Cal.Rptr.3d 183, 141 P.3d 288].) These words “are to be given their plain and commonsense meaning. [Citation.]” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103 [56 Cal.Rptr.3d 880, 155 P.3d 284].) More generally, the Supreme Court has held that “statutes governing conditions of employment are to be construed broadly in favor of protecting employees. [Citations.]” (Ibid.; see also Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 702 [166 Cal.Rptr. 331, 613 P.2d 579] [statutes regulating wages, hours and working conditions must be liberally construed to promote their remedial objectives].)

A. LWO Applies to the Cintas Contracts with Hayward

The City repeatedly advised Cintas, by letter and by statements stamped on the purchase orders, that its contracts with the company were subject to Cintas’s compliance with the LWO, and Cintas twice certified that it would comply with the ordinance. Nevertheless, despite its previous promise to comply, Cintas now argues the LWO does not apply to these contracts.

First, Cintas contends the plaintiff class members do not fit the LWO’s definition of employees because they rendered a service to Cintas, not to the City. According to Cintas, to be employed “on or under the authority” of a service contract “requires some agreement between the contracting parties as to the employment of individuals.” This argument is waived because it was not presented to the trial court. (9 Witlcin, Cal. Procedure (4th ed. 1997) Appeal, § 394, pp. 444-445.) It is also nonsensical. The LWO defines a covered employee as “any individual employed by a service contractor on or under the authority of any contract for services with the City . . . .” (Hayward Mun. Code, § 2-14.010, subd. (c).) Plaintiffs were employed by Cintas, a “service contractor.” When they laundered and maintained uniforms used by the City, plaintiffs were carrying out Cintas’s obligations under service contracts with the City. Accordingly, these employees were working “on or under the authority of” a service contract. It makes no difference that the uniforms themselves were owned by Cintas and not the City; the point is that plaintiffs’ work for Cintas provided a service to the City that the City had contracted with Cintas to receive. Since it can be argued that many employees provide services to their employers, not their employers’ customers, Cintas’s interpretation would render the LWO inapplicable to many, if not all, contractors due to circumstances outside the City’s control. Such a result would undermine the broad remedial purpose of the ordinance.

Second, in an argument that was developed in the trial court but reduced to no more than a parenthetical comment in appellants’ opening brief, Cintas suggests the LWO does not apply because Cintas’s “leasing of garments and other goods to Hayward, and periodic cleaning” of those items did not constitute “laundry services,” as defined in the ordinance. (See Hayward Mun. Code, § 2-14-010, subd. (f) [defining covered service contracts as including, inter alia, contracts for “[Ijaundry services”].) This issue also merits little discussion. “A reviewing court need not consider alleged error when the appellant merely complains of it without pertinent argument. [Citation.]” (Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d 1072, 1090 [234 Cal.Rptr. 835]; see also San Mateo County Coastal Landowners' Assn. v. County of San Mateo (1995) 38 Cal.App.4th 523, 559 [45 Cal.Rptr.2d 117] [issue not supported by argument or citation of authority is waived].) As the trial court observed, Cintas’s claim that it did not render “laundry services,” or that the term “laundry services” is too vague to be enforceable, is belied by the company’s own admission in discovery that it provided “laundry services” under a purchase contract with the City. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22 [112 Cal.Rptr. 786, 520 P.2d 10] [party is bound by admissions]; see also Kaufman v. ACS Systems, Inc. (2003) 110 Cal.App.4th 886, 921 [2 Cal.Rptr.3d 296] [party’s admission in discovery makes it “unlikely” the party was “ever in the dark” about the meaning of an allegedly vague term].) Cintas’s argument also fails because, as noted above, the company was repeatedly told that its contracts with the City were subject to the LWO and it twice agreed to comply. In light of Cintas’s own admissions, as well as the plain language of the statute, the trial court properly concluded the LWO applied to the service contracts between Cintas and the City.

B. LWO Covers All Hours of Employees Who Worked on the Contracts

Cintas next contends plaintiff class members have no claim under the LWO because the ordinance dictates a minimum level of pay only with respect to the time an employee spends working on a service contract. According to Cintas, the time any plaintiff spent working on items for the City was de minimis.

We start with the language of the ordinance. “If the statutory language is clear and unambiguous our inquiry ends.” (Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at p. 1103.) The LWO states: 1‘Service contractors subject to this Ordinance shall pay their employees a Ivage of no less than eight dollars ($8.00) per hour, if health benefits are paid lo the employees, or nine dollars and twenty-five cents ($9.25) per hour if no [such health benefits are paid.” (Hayward Mun. Code, § 2-14.020, subd. (c).) For purposes of the ordinance, an employee is defined as “any individual employed by a service contractor on or under the authority of any contract for services with the City . . . .” (Hayward Mun. Code, § 2-14.010, subd. (c).) Considering these two provisions together, the plain language of the ordinance requires contractors to compensate every individual they employ to perform work on or under a service contract with Hayward with a wage of at least $9.25 per hour, or $8 per hour if the employer provides health benefits.

The definition of a covered employee as someone working “on or under the authority of’ a service contract limits the scope of a contractor’s obligation in one respect, because it means the contractor need not pay all of its employees the required wage, but only those employees who do work for the City. However, no provision of the LWO limits the contractor’s obligation further, as Cintas suggests, by mandating a living wage only for the time an employee spends performing tasks related to the service contract with Hayward. If the City had intended to restrict the application of the LWO in this manner, it could have easily inserted the phrase “for hours worked on the contract” in the subdivision describing the ordinance’s “Living Wage Requirements” (Hayward Mun. Code, § 2-14.020, subd. (c)). (Cf. Aguiar v. Cintas Corp. No. 2, supra, 144 Cal.App.4th at p. 127 [describing a regulation limiting application of the Los Angeles living wage ordinance to employees who have worked at least 20 hours during the month on a service contract].) It did not. The LWO provision requiring contractors to give covered employees a minimum number of compensated days off also fails to distinguish between employees based on the amount of time worked on a City contract. (Hayward Mun. Code, § 2-14.020, subd. (d).) This subdivision provides that “[p]art time employees shall accrue such days at a rate proportional to full time employees.” (Ibid.) If the City had intended to impose the limitation Cintas now urges, it could have stated that employees not fully engaged in work on or under a service contract would also accrue compensated days off at a proportional rate. It did not.

It might also have been possible to infer an intent to restrict the wage requirements to actual hours worked on a service contract if the LWO included any recordkeeping requirements. Because the ordinance does not require contractors to keep track of the amount of time any employee has spent on work related to a service contract with the City, it is reasonable to infer the City intended to require LWO compensation for all hours worked by those employees a contractor assigns to work on a City contract. Without such records, it would be impossible for the City to audit a contractor’s compliance with the LWO, as Cintas construes it. (See Hayward Mun. Codej § 2-14.040, subd. (d) [giving City authority to “investigate and address’,]!, alleged violations].) Cintas’s construction would also render the computatioii of compensated days off (Hayward Mun. Code, § 2-14.020, subd. (d)|_ confusing or, in the absence of detailed time records, impossible.

The trial court’s interpretation — that LWO requirements apply to all hours worked by employees who are covered by the ordinance, and not just hours worked on a City contract — is also most consistent with the remedial purpose of the law. “ ‘The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.]’ (Dyna-Med, Inc. v. Fair Employment & Housing Com. [(1987)] 43 Cal.3d [1379,] 1387 [241 Cal.Rptr. 67, 743 P.2d 1323].)” (People ex rel Kennedy v. Beaumont Investment, Ltd., supra, 111 Cal.App.4th at p. 113.) The City found that it would obtain improved services from contractors whose employees are compensated at a level sufficient to allow them “to afford a decent standard of living in Hayward.” (Hayward Ord. No. 99-03, § 1(c).) To this end, the LWO states that its requirements are to be applied “[t]o the maximum extent permitted by law.” (Hayward Mun. Code, § 2-14.020, subd. (b).) This is not to say that the City’s contractors must necessarily compensate all of their employees in accordance with the LWO. A contractor with many employees might choose to limit its obligations by segregating City contract work and assigning this work to a smaller subset of employees. That it did not occur to Cintas to do so does not require us to reach a different interpretation of the ordinance.

Finally, Cintas again points to statements by City officials as evidence supporting a contrary interpretation of the ordinance. “Only when the statute’s language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation. [Citation.]” (Murphy v. Kenneth Cole Productions, Inc., supra, 40 Cal.4th at p. 1103.) Even assuming the language of the LWO is sufficiently ambiguous to permit resort to extrinsic sources of interpretation, such sources do not properly include opinions offered by governmental employees. A court seeking to interpret an ambiguous statute may consult a variety of extrinsic sources, “such as the ostensible objectives to be achieved by the statute, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction and the statutory scheme of which the statute is a part. [Citations.]” (Id. at p. 1105.) In contrast, as we have discussed, statements by individuals who may have been involved in the passage of the law are not relevant for the purpose of interpreting the law. (County of Santa Cruz v. City of Watsonville, supra, 177 Cal.App.3d at p. 842; City of Los Angeles v. Superior Court, supra, 170 Cal.App.3d at pp. 752-753.)

C. All Class Members Are “Employees” Under the LWO

In a related point, Cintas complains the trial court erred in shifting the burden to require Cintas to prove which of its employees worked on the City contracts. Cintas asserts there was no showing that any class member worked for more than a de minimis amount of time on these contracts, and thus Cintas argues no evidence supports a finding that plaintiffs were “employees” entitled to the benefits of the LWO.

Undisputed evidence establishes that Cintas did not separate work related to the City contracts from work performed for other customers. No employees were specifically assigned to process City items, and, since these items were not tagged or identified in any distinct way in the production process, it is impossible to tell in retrospect which Cintas employees performed work on the City contracts. Because work on the City contracts was distributed among all Cintas employees, the general manager of Cintas’s San Leandro plant observed that “[a]lmost any production worker might [have] work[ed] on Hayward’s laundry or linens.” Based on this evidence, the trial court found: “the most likely state of affairs is that every employee in the class worked for some amount of time on the City contract and .. . there is no way of knowing whether the amount of work — in terms of time, revenue generated, pounds of laundry, or any other measurement — was large, small, or non-existent for any given class member.” (Fn. omitted.)

Cintas does not dispute the factual basis of this finding. Indeed, the company admitted in response to plaintiffs’ summary judgment motion that it has “no records or other data establishing which Union City or San Leandro Class Members worked on Contract Items during the Class Period.” Instead, Cintas claims the trial court committed legal error by shifting the burden of proof to it to prove which class members did no work on the City contracts and thus were not entitled to be compensated under the LWO.

In general, “[ejxcept as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500.) On occasion, however, courts may alter the normal allocation of the burden of proof. (National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1346 [133 Cal.Rptr.2d 207]; see, e.g., Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1670 [3 Cal.Rptr.3d 279] [burden of proof on issue of causation will be shifted to the defendant when circumstances make it impossible for the plaintiff to prove its case].) “ ‘In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact.’ [Citation.]” (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 660-661 [25 Cal.Rptr.2d 109, 863 P.2d 179].)

One long-standing application of burden shifting occurs in the wage and hour context when an employer’s compensation records are so incomplete or inaccurate that an employee cannot prove his or her damages. When the United States Supreme Court addressed this problem with regard to claims under the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.), it observed that the remedial nature of the statute and public policy “militate against making [the evidentiary burden] an impossible hurdle for the employee.” (Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 687 [90 L.Ed. 1515, 66 S.Ct. 1187] (Anderson).) Considering that an employer has a statutory duty to maintain proper records of wages, hours and work conditions and is in the best position to know salient facts about the nature and amount of work performed, the court concluded it is appropriate to shift the burden of proof to the employer. (Id. at pp. 687-688.) Specifically, once an employee proves he or she “has in fact performed work” that was improperly compensated, and presents enough evidence to allow an inference as to the amount of this work, the burden shifts to the employer to prove the precise amount of work performed or to negate the inference drawn from the employee’s evidence. (Ibid.) The high court observed that applying the normal burden of proof in such circumstances would unfairly penalize an employee for the employer’s failure to keep proper records and would allow the employer to keep the benefits of the employee’s labors without paying full compensation. (Id. at p. 687.)

Relying on Anderson, California courts have shifted the burden of proof to employers when inadequate records prevent employees from proving their claims for unpaid overtime hours (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 726-728 [245 Cal.Rptr. 36]) and unpaid meal and rest breaks (Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 961-963 [35 Cal.Rptr.3d 243]). Anderson's reasoning has also been applied to permit class action plaintiffs to prove their damages for unpaid overtime by the use of statistical sampling. (Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 746-751 [9 Cal.Rptr.3d 544].)

In addition, California has long approved of burden shifting outside the wage and hour context when the parties have unequal access to evidence necessary to prove a disputed issue. “ ‘Where the evidence necessary to establish a fact essential to a claim lies peculiarly within the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence on the issue although it is not the party asserting the claim.’ [Citations.]” (Sanchez v. Unemployment Ins. Appeals Bd. (1977) 20 Cal.3d 55, 71 [141 Cal.Rptr. 146, 569 P.2d 740] (Sanchez).) In Sanchez, the issue concerned an unemployment insurance claimant’s ability to prove she was “ ‘available for work’ ” in a “ ‘substantial field of employment.’ ” (Id. at pp. 71-72.) Because this inquiry requires expert testimony about the size and nature of the labor market, facts which are “ ‘peculiarly within the knowledge and competence’ ” of the Department of Employment Development, the Supreme Court concluded it was appropriate to shift the burden of proof on this aspect of the issue to the department. (Id. at p. 71.)

It makes sense to apply burden shifting in this case because, as plaintiffs’ employer, Cintas is in the best position to know which class members worked on the City contracts and at which times. Although the LWO imposes no recordkeeping requirements as such, the entire aim of the ordinance is to require contractors to pay a living wage to employees who work on service contracts with the City. Thus, if a contractor does not wish to compensate all its employees in accordance with the LWO, the onus is on the contractor to segregate work on City contracts and assign it to specific employees, or at least to keep records of which employees perform contract-related work. Given Cintas’s control over workflow and its greater knowledge about the obligations imposed by the LWO, it would be unrealistic and unfair to expect individual class members to prove they performed work related to the City contracts.

Cintas attempts to distinguish the numerous precedents in favor of burden shifting by arguing that in all of these cases the employer had a duty to maintain records, whereas the LWO does not explicitly impose such a duty. However, the underlying rationale for burden shifting is not the employer’s duty of recordkeeping but the “fundamental principle of American jurisprudence that for every wrong there is a remedy, and that, unless countered by public policy, an injured party should be compensated for all damage proximately caused by the wrongdoer. [Citations.]” (Hernandez v. Mendoza, supra, 199 Cal.App.3d at p. 726.) Where essential facts necessary to proof lie within the exclusive knowledge or control of one party, “fundamental fairness” is what justifies shifting the burden of proof to this party. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 36 [130 Cal.Rptr.2d 860]; see also Hernandez v. Mendoza, supra, 199 Cal.App.3d at pp. 726-727 [where fact of damage is certain and only uncertainty concerns the amount of damage, “it would be a perversion of justice to deny all relief to the injured person, thereby relieving the wrongdoer from making any restitution for his wrongful act”].) The court must take account of numerous factors in determining whether it is appropriate to shift the burden of proof (see Lakin v. Watkins Associated Industries, supra, 6 Cal.4th at pp. 660-661), and the absence of an express duty of recordkeeping is not dispositive. On the contrary, “ ‘In determining the incidence of the burden of proof, “the truth is that there is not and cannot be any one general solvent for all cases. It is merely a question of policy and fairness based on experience in the different situations.” ’ [Citations.]” (Wolf v. Superior Court, supra, 107 Cal.App.4th at pp. 35-36; cf. Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1193-1194 [77 Cal.Rptr.2d 537, 959 P.2d 1213] [burden shift not appropriate where it would impair public policy and take burden away from the party with superior knowledge and information on the issue].)

In addressing the exact same facts regarding Cintas’s failure to segregate work to comply with a living wage ordinance, Division Seven of the Second District Court of Appeal relied on the precedents we have discussed and concluded burden shifting was appropriate. (Aguiar v. Cintas Corp. No. 2, supra, 144 Cal.App.4th at pp. 134-135.) The Los Angeles ordinance in question applied only to employees who had worked at least 20 hours per month on a covered contract, and Cintas argued this 20-hour rule created a distinction between the plaintiffs sufficient to defeat treatment of their claims in a class action. (Id. at pp. 133-134.) The appellate court concluded this difference could be remedied by use of subclasses, and it went on to note that the problem of identifying which employees are covered by the ordinance would rightly fall on Cintas: “To the extent questions arise later in the litigation about how to determine which putative class members worked at least 20 hours per month on the DWP [Department of Water and Power] contracts, or whether their schedules varied from month to month, that burden falls on Cintas. It was Cintas’s business decision to commingle DWP items with those of other customers and to allow all employees to work on the items at each substation (for example, sorting, hanging, folding) as they were processed through the plant.” (Id. at p. 134, italics added.) Because Cintas’s business decision likewise created the difficulty of determining which class members worked on the City contracts in this case, we too conclude Cintas must bear the burden of proof on the issue. In other words, Cintas has the burden of negating the inference plaintiffs established that they worked on the City contracts and were thus covered by the LWO.

Finally, we reject Cintas’s assertion that the LWO does not apply at all because the evidence suggests no individual class member worked more than a de minimis amount on items related to the City contracts. The LWO contains no exception to its requirements when the amount of an employee’s work on a contract is arguably very small or de minimis. Be