Full opinion text
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DIRECTING CLERK TO STRIKE PLAINTIFFS’ UNAUTHORIZED SURREPLY MARGARET M. MORROW, District Judge. On November 28, 2006, David Heffel-finger, Andrew Hinds, and Rodney Dwyre filed this class action against Electronic Data Systems Corporation (“EDS”) in Los Angeles Superior Court, alleging that EDS had failed to pay overtime to certain classes of information technology workers in its California facilities. EDS removed the action on January 9, 2007, invoking federal jurisdiction under the Class Action Fairness Act of 2005, Pub.L. No. 109-2, § 4(a), 119 Stat. 9 (codified in relevant part at 28 U.S.C. § 1332(d)(2)). Plaintiffs’ complaint alleges four state law claims: (1) unpaid overtime in violation of the California Labor Code, (2) failure to provide meal and rest periods in violation of the California Labor Code, (3) waiting penalties under the California Labor Code based on unpaid overtime, and (4) unfair competition in violation of California’s Business and Professions Code § 17200. On January 7, 2008, the court certified the following class under Rule 23(b) (3): “[A]ll current and former employees who were employed within the State of California by [EDS] as Data Base Administrators, Senior Systems Administrators, Systems Engineers, and Information Analysts (hereinafter referred to collectively as ‘Information Technology Workers’) during the period commencing four years prior to the filing of this Complaint and ending on the date of judgment, who performed work in excess of eight hours in one day and/or forty hours in one week, and did not receive overtime compensation as required by Labor Code, Section 510, and Wage Order No. 4-2001, Section 3... ,” EDS sought leave from the Ninth Circuit to appeal the certification order under Rule 23(f), and filed a motion to stay the case pending appeal. On March 14, 2008, the Ninth Circuit denied EDS’s application, mooting its motion to stay. On April 21, 2008, EDS filed a motion for summary judgment and a motion to decertify the class. This order addresses both motions. I. FACTUAL BACKGROUND A. Undisputed Facts 1. The Structure of EDS EDS is a leader in the global information services industry; one aspect of EDS’s work is to manage computers, networks, information-processing facilities, and projects for customers. EDS’s California customer base is diverse, including such entities as the United States Department of Defense (“DOD”), Medi-Cal, various commercial airlines, San Diego County Health and Human Services, Toshiba, Le-novo/IBM, and Sony/Ericsson. Some of EDS’s California employees work from home, while others work at locations owned either by EDS or by the customer to whose account the employee is assigned. EDS employs Information Technology workers (“IT workers”) in four relevant job codes at multiple locations in the state. a. Seaside Location Heffelfinger and Hinds worked at a facility in Seaside, California. The Seaside facility is owned by the Department of Defense (“DOD”); approximately 300 EDS employees work there, together with a number of DOD employees and other contractors. The Seaside facility houses the Defense Manpower Data Center (“DMDC”), which is a subsidiary program of DOD. DMDC is responsible for a database that keeps track of armed services members, retirees, and dependents. The EDS employees working at DMDC’s Seaside facility are divided into teams, each of which works on one or more of the areas within EDS’s responsibility; each team has a Team Lead, who is typically an employee in either the Information Specialist Senior or Systems-Administrator Senior Job Code. b. Ranch Cordova EDS employees at Rancho Cordova work for several EDS customers that provide services to public assistance recipients in California, including Medi-Cal. Specifically, they support the production system for processing claims, working either in “technical delivery” (developing software) or “service delivery” (improving existing software). Several of the System Administrator Seniors and Information Analysts who work at Rancho Cordova have “Technical Lead” responsibility. c. Cerritos Most EDS employees in the relevant job codes who report to managers at the Cer-ritos location work from home or at other locations owned by EDS customers. Some work for GEARS, a Los Angeles County welfare program. EDS is responsible for managing GEARS’s information databases, determining its business requirements, and assisting it with software upgrades. Other employees at the Cerri-tos location perform work for various airlines. The airlines use a common software program, and EDS is responsible for customizing and maintaining the program for them. d. San Diego EDS employees also work at a site in San Diego owned by Northrop Grumman (“Northrop”). Northrop has a contract with San Diego County that concerns the provision of social services; EDS is Nor-throps’ subcontractor, responsible for providing operational and developmental support for various Health and Human Services (“HHS”) software applications. EDS employees in San Diego monitor the county’s HHS computer system and track events such as visits by social workers and mental health services provided to persons on public assistance. e. Irvine Employees at EDS’s Irvine facility work with EDS-owned software applications that track warranty claims processing for a number of EDS customers. They can and routinely do work from home, and have broad discretion both in and out of the office to plan projects, formulate solutions, and allocate their time and resources. Irvine-based employees gather and develop customer requirements, and work with customers in an interactive, creative process to formulate solutions for potential future problems. 2. The IT Workers a. Named Plaintiffs i. David Heffelfinger Heffelfinger is a former EDS employee who worked exclusively at the Seaside facility on the DMDC account. Heffelfinger was within the Database Administrator job code. The parties dispute many of the details of Heffelfinger’s duties. The essential outlines of his job, however, are not controverted. Heffelfinger received a degree in telecommunications, multimedia, and applied computing, and took additional courses in a number of programming and technical areas. To further his education and stay current with technology, Heffel-finger regularly attended trade shows, conferences, and training seminars. In the course of his employment, Heffelfinger served as DOD’s representative to outside entities that developed software for the agency, to ensure that their software was compatible and complied with DOD’s network protocols. Heffelfinger recommended changes to the government’s hardware systems that were accepted approximately fifty percent of the time. As a Team Lead, he was responsible for managing other team members by coordinating and directing their work, determining and meeting schedules, deciding when to refer an issue to his superior or to a vendor, dealing with DOD representatives, and providing Tier III and Tier IV support. Heffelfinger represented the team in various meetings; monitored the status of its projects; and insured that team members completed their assignments. As he described it, team members “did the heavy lifting work, and when they needed to make a technical decision going one way or the other, [he] resolved disputes.” Heffelfinger also attended meetings of the Seaside Technical Review Board (“TRB”) once a week and provided input on such technical matters as whether to install or replace network software applications. It is undisputed that he generally determined how to spend his work days. ii. Andrew Hinds Like Heffelfinger, Andrew Hinds is a former EDS employee who worked at the Seaside facility. Hinds was a Systems Administrator Senior on Heffelfinger’s team who served as backup Team Lead. He was responsible for high-level problem-solving and for implementing specialized tools with respect to the Oracle data base. Hinds provided solutions for DOD’s technical issues; this included leading/coordinating operational support and implementation for DOD’s database administration. Hinds was the “point man” with respect to all technical issues regarding DOD’s “common access card system.” iii. Rodney Dwyre Rodney Dwyre is a former EDS employee who worked for four years at EDS’s Rancho Cordova facility on the Medi-Cal account. His job code when hired was “Systems Engineer”; eventually, he became an “Information Analyst.” Dwyre was highly skilled, and an expert in CICS applications, including some that he wrote himself. Beginning in 2005, Dwyre became a “Technical Team Lead” on a specialized assignment for Medi-Cal, working on the “Healthcare Common Procedure Coding System” (“HCPCS”). As Technical Team Lead, he oversaw team members, distributed assignments, and followed up to ensure that assignments were completed to Medi-Cal’s satisfaction. The HCPCS project was critical to Medical’s business operations. It was a highly visible and important project that if not implemented correctly, would have “crash[ed] the whole claims processing system.” As Technical Team Lead, Dwyre was the “main analyst” on the project. He held weekly team meetings to discuss progress. He also reviewed results with Medi-Cal, which gave input and sometimes asked that additional tests be run. Dwyre then assigned a specific team member to make the requested change. Dwyre interacted with the client and led team meetings; he testified that customers paid attention to his opinions. Dwyre, on his own initiative, worked to simplify and clarify the HCPCS technical guide and add content improvements. He did this because he felt it was necessary, and he drew on his expertise with the project to make the improvements. In addition to his involvement in the HCPCS project, Dwyre worked as an Information Analyst on other Medi-Cal projects that involved compliance with the federal Healthcare Accountability and Portability Act of 1996 (“HIPAA”). Dwyre wrote three or four new CICS programs that created a new CICS subsystem for provider enrollment. Dwyre identified the work he needed to do each day to complete his assigned projects. He interacted with his supervisor largely to keep her informed of the status of his work or to discuss human resources issues; his supervisors did not have the technical knowledge necessary to direct him in accomplishing his project goals. b. IT Workers in General Each of the named plaintiffs performed non-manual office work. As a general matter, all of the IT employees who are class members work to ensure that customer network hardware is structured and configured to run the various computer systems and applications EDS customers use efficiently. All IT workers employed by EDS provide Tier III and Tier IV support, and routinely meet with clients and advise them on best practices. B. Disputed Facts Although many relevant facts are undisputed, including the specific job responsibilities of the named plaintiffs and other IT workers, the parties characterize the nature of the work in distinctly different fashions. EDS asserts that its IT workers performed “complex” or “difficult” tasks that require “discretion.” Although plaintiffs do not respond directly to this assertion in their statement of genuine issues, they, consistently characterize the tasks class members perform as non-complex and involving little or no discretion. The manner in which the parties characterize the employees’ job requirements does not control whether the employees were or were not exempt from California’s overtime requirements as a legal matter. Rather, it is the nature of the job duties themselves, which is undisputed, which controls resolution of the key legal question. 1. IT Workers in General As noted, EDS contends that its IT workers “define and describe” best practices for their clients, and provide Tier III and IV support, which requires “a high level of discretion and independent judgment.” It relies in this regard on the declaration of Mike Randall, which was submitted in opposition to plaintiffs’ motion for class certification. Plaintiffs counter with Heffelfinger’s declaration, which states that “[n]o duties performed for the customer required a high degree of discretion or independent judgment, and there was no discretion exercised in the carrying out of duties at the Seaside location.” More specifically, Heffelfinger states that “[a]ll decisions that affected changes to the network, software, or structure of the systems at DMDC had to have both government oversight and approval pri- or to being implemented. There was a ‘Change Review Board’ at the Seaside facility which had to approve all changes.... All decisions that would require discretion and independent judgment would have to be taken to the client ... for a decision about which course of action to take.” Heffelfinger’s testimony mirrors that of Dwyer, who states: “Any ‘discretion or independent judgment’ I had in my job (1) was minor and supervised and (2) was limited for the most part to technical issues. What I would call ‘high level decisions’ were decided way above my level. In my 25 years of programming I never made what I would consider a ‘high level decision’ as a programmer, and even rarely as an analyst. Examples of typical decisions are: Whether to use an IF or an EVALUATE statement in COBOL; or whether to use a binary or serial search. Software customization is rarely ‘extremely difficult,’ especially to experienced programmers and does not, in my experience, require the making of ‘numerous high level decisions with a great deal of initiative, independent judgment, planning and discretion.’ ” Similarly, Hinds testified that at Seaside, IT workers “could exercise only limited discretion and independent judgment, typically about technical matters, and under supervision of management.” This generalized dispute concerning the level of discretion and judgment exercised by members of the class is replicated in the parties’ arguments regarding the individual job codes at issue. 2. Database Administrators and Systems Administrator-Seniors It is undisputed that EDS Database Administrators and Systems Administrator Seniors are involved in designing system architecture. It is also undisputed that employees in these job codes write computer code. The parties’ principal dispute concerns the extent to which the administrators exercise independent judgment and perform high level work. EDS asserts that Database Administrators and System Administrator Seniors address complex design challenges related to database architecture and provide a high degree of customization to meet customers’ needs. Plaintiffs dispute this, citing Heffelfínger’s and Hinds’ declarations. Heffelfinger states that, although he “presented logical representations of network design,” DOD always took his presentations under advisement to “plan[ ] out the proper hardware and implementation details.” He reports that “any customization [had] to be proposed and approved by the customer prior to implementation.” Notably, Heffelfinger does not dispute that he (and inferentially employees in these job codes) presented architectural solutions and proposed customization. He merely contends that the client made the final decision as to what program would be implemented. At root, therefore, plaintiffs’ dispute with EDS regarding the level of work perform by the administrators concerns the fact that customer approval was required to proceed. Heffelfinger describes his general duties as a database administrator in the following terms: “I was responsible for the design and integrity of the data base structures in a multi-user environment, developing and enforcing data base standards and procedures, analyzing data and process requirements, leading or participating in logical and physical data base design, reviewing system and programming designs to ensure efficient use of data base resources, maintaining control programs required for accessing a data base, interfacing with operations data base support group on production problems and data base management issues, monitoring data base performance statistics and recommending improvements, advising systems engineers and updating management on data base concepts and techniques, and researching new data base technologies.” Hinds, who was a Senior Systems Administrator, provides less detail, noting that he “essentially maintained and managed the ‘Oracle’ database application so that the system was ‘up and running.’ In that regard, [he] participated in operational support and implementation activities for client databases, back up, recovery, configuration, upgrades, patches, assigning roles, creating users, and general trouble shooting.” 3. Information Analysts It is undisputed that EDS Information Analysts write code and solve network and software issues. Information Analysts sometimes develop software and other times improve existing software. The parties agree that the analysts create and implement new capacities for customers’ databases to improve functionality as the customer needs. EDS contends that they also (1) have broad discretion to plan projects, formulate solutions, and allocate their time and resources; (2) work with customers to determine their business requirements and develop or upgrade software to meet customers’ needs; (3) gather and develop customer requirements and work with customers in an interactive and creative process to formulate solutions for future problems; and (4) exercise discretion in the creation of code to solve problems without creating new problems in the software or network. Plaintiffs dispute each of these assertions. As noted, Dwyre asserts that his discretion was limited. As concerns working with customers, Dwyre states that “most Information Analysts received their business requirements from other EDS employees,” and that when he met with customers, he was always accompanied by “[o]ther senior EDS staff.” As for “gathering requirements” and working with customers to formulate solutions, Dwyre reports that he was given DOD’s requirements and was responsible for “implementing and effectuating their policy.” He states he was “never given the opportunity to ‘make recommendations’ about a[] new system,” and that he “usually found out about such decisions after the fact.” In addition to disputing EDS’s description of the level of discretion and responsibility Information Analysts exercised, plaintiffs provide a detailed description of analysts’ duties that EDS does not dispute. Dwyre states: “My job was to create or modify a program to meet the business requirements of the customer. My job was highly technical and involved, under general direction, conceptualizing, designing, constructing, testing, and implementing portions of business and information technology solutions through application of appropriate software development life cycle methodology, interacting with the customer to gain an understanding of the business environment and the technical context, defining the scope, plans and deliverables for assigned projects, collecting, identifying, defining and organizing detailed user and information technology requirements, coordinating and collaborating with others in analyzing collected requirements to ensure plans and identified solutions met customer needs and expectations, confirming and projecting plans and delivera-bles with the customer, participating in technology solution implementations, upgrades, enhancements, and conversions, understanding and using appropriate tools to analyze, identify and resolve business and/or technical problems, applying metrics to monitor performance and measure key project criteria, preparing system documentation and staying current on emerging tools, techniques, and technologies, developing and maintaining data processing applications to [meet] customer business needs, coding, testing and implementing computer programs in development and maintenance modes, developing system and programming specifications, designing] data processing solutions based on business needs and technical considerations, researching and resolving application production problems, monitoring application performance and performing run time improvement functions.” 4. The Named Plaintiffs The named plaintiffs’ declarations describe their job responsibilities. EDS, however, proffers deposition testimony by plaintiffs that it contends is in conflict with their declarations. To the extent this is true, plaintiffs’ declarations cannot be used to create a genuine issue of material fact defeating summary judgment. See United States v. TRW Rifle 7.62X51mm Caliber, One Model 14 Serial 593006, 447 F.3d 686, 692 n. 10 (9th Cir.2006) (“Brown cannot create a genuine issue of material fact by submitting a contradictory declaration, which appears to be offered to avoid summary judgment”); Silas v. Babbitt, 96 F.3d 355, 358 (9th Cir.1996) (“One cannot create an issue of fact by simply contradicting one’s own previous statement”); Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir.1991) (“The general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony”). Where a party opposing summary judgment proffers a declaration that contradicts or seeks to explain earlier deposition testimony, the court must make a factual determination as to whether the declaration is an attempt to create a “sham” issue of fact and avoid summary judgment. Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266-67 (9th Cir.1991) (limiting the rule first articulated in Radobenko v. Automated Equip. Corp., 520 F.2d 540, 543-44 (9th Cir.1975)). An affidavit is not a sham if (1) it “merely elaborates] upon, explainfs] or clarif[ies] prior testimony” (Messick v. Horizon Indust., Inc., 62 F.3d 1227, 1231 (9th Cir.1995)); (2) if “the witness was confused at that time of the earlier testimony and provides an explanation for the confusion” (Pacific Ins. Co. v. Kent, 120 F.Supp.2d 1205, 1213 (C.D.Cal.2000) (citing Kennedy, 952 F.2d at 266)); or (3) if the declaration concerns newly discovered evidence (id.). Here, as noted below, plaintiffs’ declarations do not “flatly contradict” their earlier deposition testimony, but rather explain or clarify that testimony. a. Heffelfinger The parties dispute the proper interpretation of a number of Heffelfinger’s statements at deposition regarding his duties. For example, Heffelfinger stated that “we needed to determine where ... data was going to be housed, what database we were going to use to do it in, whether or not those databases needed to be upgraded to a new version to support the types of tasks they needed to do, and whether or not we needed to stand up a brand-new database to support this new application.” EDS asserts that Heffelfinger testified he “decided” these issues, while plaintiffs cite Heffelfinger’s declaration, in which he contends he did not have ultimate decision-making authority. EDS similarly asserts that Heffelfinger testified during his deposition that he “made decisions on behalf of the DOD as to when additional storage space should be purchased for the network.” ■ In fact, Heffelfinger testified that he “told the system administrators when we needed more disk space, when we were running out of disk space for our stuff. So we need to buy more disks to house the database on or, you know, the server is running out of disk space.” This testimony suggests a reporting function rather than a decision-making function. Consequently, the court views Hef-felfinger’s statement in his declaration that he did not “decide” issues a clarification or explanation of his deposition testimony rather than a contradiction. In fact, Heffelfinger’s deposition testimony is essentially consistent with his declaration. Heffelfinger testified, for example, that “the high level guidance[] as to what direction we would go in was provided generally by [DMDC employees] and so I came up with what I would call the vision or strategic direction that were were to move in. And then my team was responsible for coming up with the strategic implementation or — I’m sorry — the tactical implementation of those strategic directives.... The hardware that we were to deploy was laid out for us. The — which containers were going to be stood up was already essentially decided for us. The URLs that were going to be used were already decided. We didn’t make the final decisions on any of those things. What we did was provide technical input along the way, but the government made the final decision as to how things were going to be carried out.” This testimony reinforces the undisputed fact that Heffelfinger (and other IT workers) exercised a certain degree of strategic and technical autonomy but left final decisions to the client. b. Dwyre Based on Dwyre’s description of his role as technical team lead, EDS contends he (1) received high level tasks from the Project Manager (his supervisor); (2) figured out the scope of the project; (3) prioritized the order in which the work had to be done; (4) assigned tasks to team members; (5) reviewed their work; and (6) directed them to redo or fix it if it was done poorly. Plaintiffs counter with citations to Dwyre’s declaration. In the declaration, however, Dwyre merely states that he “never hired or fired anyone” that “no [ ]one ‘reported’ to [him], and [that he] never conducted any performance evaluations.” These statements do not directly contradict his deposition testimony or refute EDS’s evidence. As with Heffel-finger, it is clear that Dwyre describes a situation in which IT workers had some technical autonomy but had to work within the constraints of their client’s policies and subject to the client’s approval. 5. Conclusion Although the parties proffer a multitude of disputed and undisputed facts, the core of their disagreement is relatively simple. The parties agree that class members perform an assortment of technical programming tasks, many of which require varying degrees of creativity, technical expertise, individual responsibility, and initiative. The parties also appear to agree that class members advised EDS’s clients, but that it was the clients themselves who made final decisions. The parties primary dispute concerns how central class members’ tasks were to the operation of their clients’ business and how much discretion the workers exercised in performing those tasks. This disagreement neatly tracks the legal question on which resolution of this case depends. Indeed, reviewing the evidence, it is clear that the parties’ real dispute concerns the legal import of class members’ duties, not the extent or substance of those duties as a factual matter. II. DISCUSSION A. Legal Standard Governing Summary Judgment A motion for summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.Peoc. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party’s case. See id. If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See T.W. Electric Service, Inc. v. Pacific Electric Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir.1987). The evidence presented by the parties must be admissible. Fed.R.Civ.ProC. 56(e). In addition, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979); see also Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 56 (2d Cir.1985). B. California’s Overtime Law and the Administrative Exemption “California Labor Code § 510 requires overtime pay for any work over eight hours in one workday, over 40 hours in one workweek, or on the seventh day of work in one workweek subject to certain exceptions.” Sepulveda v. Wal-Mart Stores, Inc., 237 F.R.D. 229, 241 (C.D.Cal.2006). The Industrial Welfare Commission (“IWC”) is empowered to create exceptions from these statutory overtime requirements for “executive, administrative, and professional employees, provided that the employee is primarily engaged in the duties that meet the test of the exemption, customarily and regularly exercises discretion and independent judgment in performing those duties, and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” Cal. Lab.Code § 515(a). The IWC exercised its authority to promulgate exceptions in Wage Order 4-2001. This order provides that, for the administrative exemption to apply, “[t]he employee must (1) perform ‘office or non-manual work directly related to management policies or general business operations’ of the employer or its customers, (2) ‘customarily and regularly exercise[ ] discretion and independent judgment,’ (3) ‘perform[ ] under only general supervision work along specialized or technical lines requiring special training’ or ‘execute [ ] under only general supervision special assignments and tasks,’ (4) be engaged in the activities meeting the test for the exemption at least 50 percent of the time, and (5) earn twice the state’s minimum wage.” Eicher v. Advanced Business Integrators, Inc., 151 Cal.App.4th 1363, 1371-72, 61 Cal.Rptr.3d 114 (2007) (citing 8 Cal. Admin. Code § 11040(A)(2)(a)(I), (b), (d), ffi). Because these elements are stated in the conjunctive, “each ... must be satisfied to find the employee exempt as an administrative employee.” Id. at 1372, 61 Cal.Rptr.3d 114. California’s exemption has been construed in the same manner as the administrative exemption under the federal Fair Labor Standards Act (“FLSA”). See Combs v. Skyriver Communications, Inc., 159 Cal.App.4th 1242, 1255, 72 Cal.Rptr.3d 171 (2008) (stating that California’s administrative exemption “closely parallels the federal regulatory definition of the same exception,” and citing 29 U.S.C. § 213(a)(1) (“any employee employed in a bona fide executive, administrative, or professional capacity” is exempt from the FLSA’s minimum wage and hour requirements)); id. at 1256, 72 Cal.Rptr.3d 171 (noting that the federal regulations are “expressly incorporated in IWC Wage Order No. 4-2001”); see also Medapalli v. Maximus, Inc., No. CIV. S-06-2774 FCD EFB, 2008 WL 958045, *5 (E.D.Cal. April 8, 2008) (“IWC Wage Order No. 4-2001 expressly incorporates certain regulations of the Federal Labor Standards Act (“FLSA”) effective as of the date the wage order was issued”); 8 Cal.Code Regs. § 11040(l)(A)(2)(f) (“The activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. Sections 541.201-205, 541.207-208, 541.210, and 541.215”). The Department of Labor has promulgated regulations defining the scope of exemptions under the FLSA. Its definition of “administrative capacity” is similar to that found in Wage Order No. 4-2001. See Combs, 159 Cal.App.4th at 1255, 72 Cal.Rptr.3d 171 (“Th[e] [federal] regulation provides, similarly to IWC Wage Order No. 4-2001, that a person ‘employed in a bona fide administrative capacity’ is an employee whose ‘primary duty’ is ‘the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, ’ ” quoting 29 C.F.R. § 541.200(a)(2) (emphasis original)). Unlike the Wage Order, however, the federal regulations include interpretative guidelines that explain the terms they use. 29 C.F.R. § 541.201, for example, “is devoted entirely to explaining the meaning of the phrase ‘directly related to management policies or general business operations,’ a phrase used in the administrative exemption provisions of [the Wage Order].” Id. Section 541.201 provides that “[t]o qualify for the administrative exemption, an employee’s primary duty must be the performance of work directly related to the management or general business operations of the employer or the employer’s customers.” 29 C.F.R. § 541.201(a). It distinguishes between work “directly related to assisting with the running or servicing of the business ... [and] work[ ] on a manufacturing production line or selling a product in a retail or service establishment.” Id. Courts interpreting this language have emphasized that “[e]mployees who work as advisors and consultants to an employer’s customers may qualify for the administrative exemption.” Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 598, 2008 WL 818617, *11 (E.D.Cal.2008); see id. (“The regulations interpreting the Wage Orders expressly contemplate[ ] that ‘many persons employed as advisory specialists and consultants of various kinds [including] ... tax experts’ may qualify for the exemption”); Gallegos v. Equity Title Co. of America, Inc., 484 F.Supp.2d 589, 594 (W.D.Tex.2007) (“The test of ‘directly related to management policies or general business operations’ is met by many persons employed as advisory specialists and consultants of various kinds, credit managers, safety directors, claim agents and adjusters, wage-rate analysts, tax experts, account executives of advertising agencies, customers’ brokers in stock exchange firms, promotion men, and many others,” citing 29 C.F.R. § 541.205(c)(1)); LaCourse v. GRS III, L.L.C., No. 05-75618, 2006 WL 3694623, *17 (E.D.Mich. Dec. 13, 2006) (“The regulations specifically recognize that sometimes a company contracts its employees out to work at another company’s facility. Such employees may qualify as exempt administrative employees by doing work related to the general business operations of the company at which they are assigned”). The regulations identify certain categories of work that constitute “work directly related to management or general business operations.” Such work “includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations, government relations; computer network, internet and database administration; legal and regulatory compliance; and similar activities.” Id., § 541.201(b) (emphasis added). The federal regulations’ interpretive guidance regarding “exercise of discretion and independent judgment with respect to matters of significance” is also expressly incorporated in the Wage Order. See Combs, 159 Cal.App.4th at 1256, 72 Cal.Rptr.3d 171 (citing 29 C.F.R. § 541.202(a) & 8 CauCode Regs. § 11040(l)(A)(2)(f)). The regulation explains that “the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered.” 29 C.F.R. § 541.202(a). “The term ‘matters of significance’ refers to the level of importance or consequence of the work performed.” Id. In addition to these definitions, § 541.202(b) provides a non-exhaustive list of factors to be considered in determining whether a given employee exercises discretion or independent judgment. While the regulations require that “discretion and independent judgment” be evaluated “in light of all the facts involved in the particular employment situation ...,” certain of the factors identified are relevant here: (1) “whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices;” (2) “whether the employee carries out major assignments in conducting the operations of the business;” (3) “whether the employee performs work that affects business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business;” (4) “whether the employee provides consultation or expert advice to management;” and (5) “whether the employee investigates and resolves matters of significance on behalf of management.” 29 C.F.R. § 541.202(b). The regulations also address whether an employee can exercise discretion and independent judgment even if he or she lacks final decision-making authority. Section 541.202 states: “The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level. Thus, the term ‘discretion and independent judgment’ does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. The decisions made as a result of the exercise of discretion and independent judgment may consist of recommendations for action rather than the actual taking of action. The fact that an employee’s decision may be subject to review and that upon occasion the decisions are revised or reversed after review does not mean that the employee is not exercising discretion and independent judgment.” 29 C.F.R. § 541.202(c). In this context, the regulations specifically provide that a management consultant who has “made a study of the operations of a business and who has drawn a proposed change in organization” is exempt despite the fact that his plan is subject to review and revision by his superiors before it is submitted to the client. Id. The regulations also indicate what does not constitute the exercise of “discretion and independent judgment.” The employee must do “more than ... use [his] skill in applying well-established techniques, procedures or specific standards described in manuals or other sources.... [or] perform[ ] other mechanical, repetitive, recurrent or routine work.” 29 C.F.R. § 541.202(e). In addition to administrative employees, California exempts workers in the computer software field who are paid on an hourly basis if they meet the following criteria: (1) they are primarily engaged in work that is intellectual or creative requiring the exercise of discretion and independent judgment; (2) they are primarily engaged in the application, design, analysis, testing, or creation of computer programs; (3) they are highly skilled and proficient in the theoretical and practical application of specialized information to computer systems; and (4) their hourly rate of pay is not less than a statutorily set minimum which is adjusted yearly to accommodate inflation. See Cal. Lab.Code § 515.5;8 Cal.Code Regs. § 11040(l)(A)(3)(h). EDS argues that some portion of the putative class falls under either of the administrative and computer software exemptions. California’s overtime statutes are remedial in nature. Thus, exemptions are interpreted narrowly to protect employees. See Ramirez v. Yosemite Water Co., Inc., 20 Cal.4th 785, 794, 85 Cal.Rptr.2d 844, 978 P.2d 2 (1999) (“under California law, exemptions from statutory mandatory overtime provisions are narrowly construed”); Eicher, 151 Cal.App.4th at 1374, 61 Cal.Rptr.3d 114 (“The command to interpret exemption statutes narrowly to protect employees leads us to believe such an expansive interpretation is not appropriate”). Furthermore, reliance on an exemption is an affirmative defense, such that the employer bears the burden of proving the employee is exempt. See Ramirez, 20 Cal.4th at 794-95, 85 Cal.Rptr.2d 844, 978 P.2d 2. C. The Administrative/Production Worker Dichotomy Plaintiffs rely heavily on the concept, present in both the federal and state law, of a dichotomy between administrative and production employees. This dichotomy was recognized by the California Court of Appeal in Bell v. Farmers Ins. Exchange, 87 Cal.App.4th 805, 820, 105 Cal.Rptr.2d 59 (2001), which stated that “[t]hough it offers a broad distinction demanding further refinement in some cases, the administrative/production worker dichotomy, as elucidated by federal decisions, has proven to be a useful approach.” Bell noted that the dichotomy was well-established in federal law, and distinguished administrative employees — “who are usually described as employees performing work ‘directly related to management policies or general business operations of his employer or his employer’s customers’ ” — from production employees — “who have been described as ‘those whose primary duty is producing the commodity or commodities, whether goods or services, that the enterprise exists to produce.’ ” Id. In Bell, a class of insurance claims representatives sued their employer for unpaid overtime, and defendant countered that they were exempt administrative employees. The court held that, as claims representatives, plaintiffs performed the “sole mission” of the offices where they worked. Consequently, it concluded that they were production workers. See id. at 826, 105 Cal.Rptr.2d 59 (“Our review of the undisputed evidence places the work of the claims representatives squarely on the production side of the administrative/production worker dichotomy. The undisputed evidence establishes that claims adjusting is the sole mission of the 70 branch claims offices where the plaintiffs worked. The claims representatives are fully engaged in performing the day-to-day activities of that important component of the business”). Although acknowledging that “the administrative/production worker dichotomy is a somewhat gross distinction that may not be dispositive in many cases,” and that in some cases claims representatives might perform work that qualified as administrative, the court relied on the employer’s description of the decisions plaintiffs made as “routine and unimportant,” and concluded that their status as production workers placed them outside the administrative exemption to California’s overtime law. See id. at 827-28, 105 Cal.Rptr.2d 59. State and federal courts following Bell have grappled with how much weight, if any, to ascribe to the dichotomy under California law. Plaintiffs rely principally on two cases applying the dichotomy to similar facts. The first of these is Bothell v. Phase Metrics, Inc., 299 F.3d 1120 (9th Cir.2002). Bothell was an engineer who worked for Phase Metrics, a company that designed, manufactured, and sold robotic test and inspection equipment. Id. at 1122-28. Bothell sued the company for unpaid overtime, and Phase Metrics asserted that he was an exempt administrative employee. The district court utilized the dichotomy between administration and production workers in analyzing the claim; it found that Bothell’s work was “ancillary” to Phase Metric’s main activities and thus that he was an administrative rather than a production worker. See id. at 1126. The Ninth Circuit noted that the dichotomy “is useful only to the extent that it helps clarify the phrase ‘work directly related to the management policies or general business operations’ ” of the company or a customer. Id. (quoting Webster v. Public School Employees of Washington, Inc., 247 F.3d 910, 916 (2001)). It cautioned, therefore, that it should be employed as an analytical tool “only to the extent it clarifies the analysis.” Id. at 1127; see id. (“Only when work falls ‘squarely on the ‘production’ side of the fine,’ has the administration/production dichotomy been determinative,” quoting Reich v. State of New York, 3 F.3d 581, 587-88 (2d Cir.1993)). Indeed, the court rejected the district court’s invocation of the dichotomy, and looked directly to the regulations in analyzing the nature of Bothell’s employment. It determined that evidence in the record supported the conclusion that Bothell was a “highly skilled repairman who, rather than traveling from job-site to job-site, was assigned to a specific facility and charged with keeping its equipment in good working order.” Id. at 1128. “If Bothell was essentially a repairman,” the court stated, “then he did not engage in ‘running the business itself or determining its overall course or policies.’ ” Id. (quoting Bratt v. County of Los Angeles, 912 F.2d 1066, 1070 (9th Cir.1990)); see id. (“In short, Bothell’s work should not be labeled ‘administrative’ merely because Phase Metrics chose to provide on-site customer service to a few select customers, rather than as a separate product line. A fact-specific inquiry is needed”). Although Bothell discussed the dichotomy, therefore, the Ninth Circuit ultimately did not use it in deciding whether Bothell was exempt. Plaintiffs also rely heavily on Eicher which, unlike Bothell, applied the dichotomy under California law. In Eicher, the court considered whether a consultant for a software company, who provided customer service and training on specialized software to clients, was properly exempted from state overtime requirements. After noting Bell’s caution that the dichotomy is necessarily not determinative, and that “a careful analysis of the employees’ duties may be necessary to determine exempt or nonexempt status in other cases,” it concluded that Eicher performed the core, day-to-day business of his employer, ABI. Specifically, it found that he “implement[ed] the ABI MasterMind product at customer venues and support[ed] the customers, whether at the customer venues or in the ABI office.” Eicher, 151 Cal.App.4th at 1373, 61 Cal.Rptr.3d 114. As a result, the court concluded, Eicher’s duties “were comparable to those of the claims representatives in Bell.” Id. Although Eicher had to learn his customers’ management policies and business operations to perform his work, he did so “only to implement the software in the most beneficial way for the customers and not to participate in policy-making or alter the general operation of the business.” Id. Consequently, the court held, he was essentially a production employee because he performed the work ABI was hired to do for its customers. See id. Although the court noted that Eicher often served as ABI’s “point person” with clients, it concluded that he was not exempt because he “engaged in the core day-to-day business of ABI” and “had no personal effect on the policy or general business operations of ABI or its customers.” Id. at 1375, 61 Cal.Rptr.3d 114. Although Bell and Eicher indicate that the dichotomy can assist to some extent in analyzing the nature of a particular worker’s employment, other cases express greater skepticism regarding its utility. In Combs, decided after Eicher, the Fourth District Court of Appeal examined the applicability of the dichotomy in cases involving information technology workers. The defendant in Combs was a wireless internet provider. Combs, the plaintiff, was responsible for “maintaining the well being of the network.” Combs, 159 Cal.App.4th at 1247, 72 Cal.Rptr.3d 171. He sued challenging his exempt classification. After a bench trial, the court found for defendant. See id. at 1249-50, 72 Cal.Rptr.3d 171. The appeals court began its analysis by noting that the Bell court had “strongly admonished ... that the ... dichotomy [might] not be dispositive in many cases involving a claim of administrative exemption, and in fact warned that the dichotomy should be applied with great caution.” Id. at 1260, 72 Cal.Rptr.3d 171. It observed additionally that the Bell “court’s creation of the administrative/production worker dichotomy was necessitated by the fact that former IWC Wage Order No. 4 lacked any reference to [the] applicable federal regulations, and also lacked the detailed definition of the administrative exemption now found in IWC Wage Order No. 4-2001.” Id. The court held there was no need to utilize the dichotomy as an analytical tool because the amended Wage Order “expressly incorporate^] applicable federal regulations and set[ ] forth a set of specific elements that, if proved, [would] establish that an employee is a ‘person employed in an administrative capacity’ for purposes of the administrative exemption set forth therein.” Id. at 1260-61, 72 Cal.Rptr.3d 171. The court also noted that “the wide variations in Combs’s job responsibilities called for ‘finer distinctions than the ... administrative/production worker dichotomy provides.’ ” Id. at 1261, 72 Cal.Rptr.3d 171. Thus, it utilized the specific elements outlined in the state and federal regulations to determine whether plaintiff was exempt. Specifically, it examined whether: (1) plaintiffs work was directly related to [his employer’s] management policies or general business operations; (2) plaintiff exercised discretion and independent judgment; and (3) his job duties took up more than half of his day. Id. at 1263, 72 Cal.Rptr.3d 171. Combs did not involve an employee working for an external client. Courts examining such situations have declined to utilize the dichotomy because both California and federal regulations specifically state that consultants may be exempt. See Campbell, 253 F.R.D. at 599 n. 10, 2008 WL 818617 at * 11 n. 10 (noting the language of the federal and state regulations, and concluding that “plaintiffs’ reliance on the administrative/production worker dichotomy is less than helpful”). Noting that the regulations identify a tax consultant as one type of worker who qualifies for the administrative exemption, the Campbell court remarked upon the manner in which this example “blur[red] th[e] dichotomy [between administrative and production workers.] The tax consultant’s work directly relates to the client’s business operations, but the tax consultant’s duties also relate to producing the commodity of his or her enterprise, tax advice. Similarly, an auditor’s work directly relates to the client’s business operations, but the commodity of the auditor’s enterprise is audit advice.” M Campbell stands for the proposition that consultants or outside contractors do not fall outside the administrative exemption simply because they provide the service their company is hired to provide; rather, to the extent their work involves the management policies or general business operations of their employer’s clients, they are squarely within the regulatory definition of an administrative employee. See Webster, 247 F.3d at 916 (noting that a “sensible application of the administrative work/production dichotomy” supported a finding that a labor union field representative, who assisted bargaining units who were his employer’s clients negotiate collective bargaining agreements, was engaged in administrative work, because “the purpose of the dichotomy is to clarify the meaning of ‘work directly related to the management policies or general business operations,’ not to frustrate the purpose and spirit of the entire exemption”). As Combs and Campbell reflect, the dichotomy is often of limited use outside of the manufacturing context in which it was devised. See Roe-Midgett v. CC Services, 512 F.3d 865, 872 (7th Cir.2008) (“[T]he so-called production/administrative dichotomy- — -a concept that has an industrial age genesis — is only useful by analogy in the modern service-industry context. ‘The typical example of the ... dichotomy is a factory setting where the ‘production’ employees work on the line running machines, while the administrative employees work in an office communicating with the customers and doing paperwork,’ ” quoting Shaw v. Prentice Hall Computer Publ’g Inc., 151 F.3d 640, 644 (7th Cir.1998)); Savage v. UNITE HERE, No. 05 Civ. 10812(LTS)(DCF), 2008 WL 1790402, *7 (S.D.N.Y. Apr. 17, 2008) (“[C]ourts have recognized that the administration/production dichotomy is merely illustrative — unless the work falls squarely on the production side — and may be of limited assistance outside the manufacturing context,” citing cases); see also Kohl v. Woodlands Fire Dept., 440 F.Supp.2d 626, 636 (S.D.Tex. 2006) (“The analytic difficulty of applying the ‘production/administration’ distinction has led some courts to question whether the dichotomy is analytically helpful in the context of modern service industries.... The revised 2004 Department of Labor regulations have moved away from this dichotomy in the context of service industries”). The work at issue in this case is far removed from the “manufacturing context” in which the dichotomy was devised. This observation supports the admonition in Bothell that the dichotomy is “but one analytical tool, to be used only to the extent it clarifies the analysis.” Bothell, 299 F.3d at 1127. This appears to be true in the present case. This case does not involve the traditional manufacturing context in which the dichotomy was developed. Rather, as in Campbell, the workers in question function effectively as consultants, assisting their clients in the design and implementation of software systems. As a result, the court heeds the admonition of the Bothell, Eicher and Bell courts that the dichotomy is not determinative, and should be used only to the extent it helps clarify application of the controlling regulations. The court is also mindful of Combs’ caution that the Bell court created the dichotomy because the version of the Wage Order it applied did not incorporate federal regulations or identify specific factual elements that are hallmarks of administrative work. As the current Wage Order does both these things, the court must closely analyze the duties of the IT workers who are class members under the Wage Order and the federal interpretive regulations it incorporates. D. Whether the Class Members are Exempt To prevail on its motion for summary judgment, EDS must prove (1) that class members’ duties and responsibilities involve “[t]he performance of office or non-manual work directly related to the management policies or general business operations of [EDS] or [EDS’s] customers” (8 Cal.Code Regs. § 11040(l)(A)(2)(a) (I)); (2) that they “customarily and regularly exercise[] discretion and independent judgment” (id. § 11040(1)(A)(2) (b)); (3) that class members “perform! ] under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge” (id. § 11040(1)(A) (2)(d)); and (4) that they are “ ‘primarily engaged in duties that meet the test of the exemption’ as those activities are construed in the FLSA regulations incorporated in IWC Wage Order No. 4-2001.’ ” Combs, 159 Cal.App.4th at 1251, 72 Cal.Rptr.3d 171 (quoting 8 Cal.Code Regs. § 11040(l)(A)(2)(f)). As noted, each of these elements must be satisfied before an employee will be found to be exempt. See Eicher, 151 Cal.App.4th at 1372, 61 Cal. Rptr.3d 114 (“Stated in the conjunctive, each of the ... elements must be satisfied to find the employee exempt as an administrative employee”). 1. Office or Non-Manual Work Directly Related to the Management Policies or Business Operations of EDS or its Customers As noted, there is no disagreement that class members perform office or non-manual work. What is disputed is whether their work is “directly related to the management policies or business operations” of EDS’s customers. Plaintiffs’ argument on this point merges with their argument respecting the administrative/production work dichotomy. Plaintiffs assert that EDS “has the burden on summary judgment of proving that there is no genuine issue of material fact that Class members are not production employees, i.e., it must prove that the primary duty of Class members is not to produce the goods or services that EDS exists to produce.” For the reasons stated above, the court concludes that this is the wrong standard to apply. The question is not whether class members are “production” employees, but rather whether their work is directly related to the management policies or business operations of EDS’s customers. In assessing what constitutes work “directly related to management policies or business operations” of EDS’s clients, California law directs courts to the federal interpretive regulations. The state regulations incorporate 29 C.F.R. § 541.201(a), which “provides that the phrase ‘directly related to the management or general business operations’ refers to the type of work performed by the employee.” Combs, 159 Cal.App.4th at 1264, 72 Cal.Rptr.3d 171. Such work “includes, but is not limited to, work in functional areas such as ... computer network, internet and database administration.” 29 C.F.R. § 541.201(b). California Courts that have addressed the question have held that employees engaged in network, internet or database administration performed work “directly related to management policies or business operations.” In Combs, for example, the court noted that Combs’ job consisted, inter alia, of “maintaining the well being of [his employer’s] network.” Combs, 159 Cal.App.4th at 1265, 72 Cal.Rptr.3d 171. Although Combs performed other listed in § 541.201(b), the court based its conclusion regarding the administrative nature of his job in part on Combs’ involvement in network administration. Id. The California Court of Appeal, in an unpublished decision, reached a similar conclusion on facts that closely parallel this case. The plaintiff in Paul v. One Touch Technologies Corp., No. G037407, 2007 WL 1786259 (Cal.App.2007) (Unpub.Disp.), was employed by One Touch, “a ‘designer, creator[,] ... installer and service company for electronic medical records.’ ” Id. at *1. Paul served “as a consultant and ‘advisory specialist’ to [One Touch’s] clients, in which capacity he assisted in the development and configuration of software for [One Touch’s] clients and continually advised on how to functionally integrate it into their computer systems.... [Paul’s] responsibilities [included] configuring the settings for the customers’ Information Technology (IT) environments, each of which was unique_” Id. at *4. In holding that Paul’s work was “directly related to management policies and business operations,” the Paul court emphasized § 541.201(b)’s reference to “computer network, internet and database administration.” Id. at *3. Even courts that have not cited the regulation have generally held that employees who perform tasks similar to those performed by class members here engaged in work that was “directly related to management policies and business operations.” Notably, in Booth v. Electronic Data Systems, 799 F.Supp. 1086 (D.Kan.1992), plaintiff was an EDS employee who worked in the systems engineering development program. The district court found, without analysis, that because plaintiffs “ultimate function as a systems engineer was to assist EDS customers ... [he] was at a