1017-00004 · Entities. Aurelius Global Media Group · Class Certification

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES — CENTRAL DISTRICT

MARISOL FUENTES, DEREK HALLORAN, and YESENIA PADILLA, individually and on behalf of all others similarly situated,

Plaintiffs,

AURELIUS MEDIA AMERICAS INC.,

Defendant.

Lead Case No. 22STCV38214 (Consolidated with 22STCV39501)

Assigned for All Purposes to: Hon. Raymond Escobedo, Dept. 34

DECLARATION OF KAREN FONG IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

Date: July 12, 2023

Time: 10:00 a.m. Dept.: 34

DECLARATION OF KAREN FONG IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

I, Karen Fong, declare as follows:

1. My name is Karen Fong. I am over the age of eighteen years and am competent to testify to the matters set forth in this declaration. I make this declaration based upon my personal knowledge and upon my review of business records of Aurelius Media Americas Inc. ("AMA") that are maintained in the ordinary course of business under my supervision and control. If called as a witness, I could and would competently testify to the matters stated herein. I am currently employed by AMA as its Payroll Manager, a position I have held since October 2018. In this capacity, I am responsible for overseeing all aspects of payroll processing and timekeeping administration for AMA's United States workforce. Prior to joining AMA, I held payroll administration and timekeeping systems positions at two other entertainment industry employers over a period of approximately eleven years, during which time I gained extensive experience with electronic timekeeping platforms, payroll processing cycles, wage and hour compliance procedures, and the maintenance and integrity of payroll data. I have been asked by counsel for AMA to provide this declaration in connection with Defendant's opposition to Plaintiffs' motion for class certification, for the purpose of describing AMA's payroll infrastructure, its electronic timekeeping system, the operation of that system's auto-deduction and attestation features, and the payroll and timekeeping data that AMA has produced in this litigation.

2. AMA is a Delaware corporation qualified to do business in the State of California, with its principal office located at 8500 Sunset Boulevard, Suite 1400, West Hollywood, California 90069. AMA is a wholly owned subsidiary of Aurelius Global Media Group PLC, a public limited company incorporated in England and Wales under Companies House Registration Number 08412667. AMA employs approximately 3,200 employees in the United States, of whom approximately 2,400 are based in the State of California. Of those California-based employees, approximately 1,850 were classified as non-exempt, hourly employees at some point during the putative class period, which Plaintiffs have defined as November 1, 2018 through the present. AMA operates seven California production facilities and fourteen distinct show units across those facilities. In my capacity as Payroll Manager, I oversee payroll processing for all AMA employees in the United States, including all California-based non-exempt hourly workers who are the subject of Plaintiffs' class certification motion.

3. AMA's payroll processor and electronic timekeeping system provider is NovaPay Solutions Inc., a payroll and human capital management company located at 2200 Powell Street, Suite 600, Emeryville, California 94608. NovaPay Solutions has served as AMA's payroll processor since January 1, 2019. The specific timekeeping system utilized by AMA is the NovaPay Solutions "TimeTrack Pro" system, which is an electronic punch-in/punch-out timekeeping platform. Prior to January 1, 2019, AMA utilized a manual time-sheet system in which non-exempt employees recorded their daily start times, end times, and meal period times on paper time sheets, which were then submitted to their supervisors for approval and forwarded to the payroll department for manual data entry and processing. The transition from the manual time-sheet system to the TimeTrack Pro electronic system was implemented in two waves across AMA's seven California facilities, as follows:

(a) First Wave (January 2019): The TimeTrack Pro system was deployed at four facilities: Facility 1 (8500 Sunset Boulevard, West Hollywood — headquarters and post-production operations); Facility 3 (15301 Ventura Boulevard, Sherman Oaks — digital content operations); Facility 5 (1438 North Gower Street, Hollywood — scripted development operations); and Facility 6 (2120 Colorado Avenue, Santa Monica — e-commerce studio operations). These four facilities transitioned to TimeTrack Pro effective January 1, 2019.

(b) Second Wave (March 2019): The TimeTrack Pro system was deployed at the remaining three facilities: Facility 2 (4024 Penmark Strategy Partners Avenue, Studio City — Stage A and Stage B, unscripted production operations); Facility 4 (3800 West Alameda Avenue, Burbank — live events and field production operations); and Facility 7 (888 North Sepulveda Boulevard, El Segundo — post-production annex operations). These three facilities transitioned to TimeTrack Pro effective March 1, 2019.

The key custodian for electronically stored information ("ESI") at NovaPay Solutions in connection with this matter is Marcus Yee, Director of Client Data Services. Mr. Yee was the principal NovaPay representative responsible for the data extractions performed in response to AMA's discovery obligations in this litigation.

4. The TimeTrack Pro system functions as follows with respect to daily shift recording and meal period deductions. Non-exempt employees clock in and clock out for each shift by scanning a proximity badge or entering individual login credentials at a TimeTrack Pro terminal located at each AMA facility. The system records the exact clock-in time and clock-out time for each shift to the nearest minute. The system then calculates the total hours worked for the shift based on those recorded clock-in and clock-out times. The TimeTrack Pro system includes an automatic meal period deduction feature, which I will refer to in this declaration as the "auto-deduction" feature. The auto-deduction feature operates as follows: for any shift recorded at six hours or more in duration, the system automatically deducts thirty (30) minutes from the employee's total recorded hours for that shift. This deduction is based on the assumption that the employee took a compliant, duty-free, thirty-minute meal period during the shift. The deduction is applied at the sixth hour of the shift — that is, at hour 6.0 of the shift, the system deducts 0.5 hours from the employee's total compensable time. This auto-deduction is applied uniformly across all AMA facilities and all show units. It is a system-wide configuration setting within the TimeTrack Pro platform and is not a facility-specific or show-unit-specific setting. In other words, every non-exempt employee at every AMA California facility is subject to the same auto-deduction logic.

I am aware that the auto-deduction was configured to trigger at the six-hour threshold. However, I understand that IWC Wage Order 12 (Motion Picture Industry), which governs AMA's production employees, requires that a meal period be provided for shifts exceeding five hours, consistent with California Labor Code section 512. The six-hour threshold at which the auto-deduction was configured to trigger was therefore inconsistent with the five-hour legal requirement under the applicable wage order and statute. This threshold discrepancy was identified in approximately November 2022 during an internal review of AMA's timekeeping practices that was conducted in connection with this litigation. Upon identification of this discrepancy, AMA directed NovaPay Solutions to correct the auto-deduction trigger threshold from six hours to five hours. That correction was implemented and became effective in December 2022. Prior to December 2022, employees who worked shifts between five and six hours in duration did not receive an auto-deduction and were not prompted by the system to report whether they had taken a meal period.

Additionally, the TimeTrack Pro system does not apply a second automatic deduction for shifts exceeding ten hours. Under California law, employees who work more than ten hours in a day are entitled to a second thirty-minute meal period. However, the auto-deduction feature was configured to apply only a single thirty-minute deduction per shift. Employees who worked shifts exceeding ten hours were expected to manually adjust their time entries to reflect a second meal period, or their supervisors were expected to manage the scheduling and recording of second meal periods for those shifts. There was no automated system-level mechanism within TimeTrack Pro to ensure that second meal periods were recorded or that a second deduction was applied.

5. In addition to the auto-deduction feature described above, the TimeTrack Pro system includes an optional feature called the "Missed Meal Attestation" feature. This feature is designed to allow employees to report, at the point of clocking out, that they missed or were unable to take a compliant thirty-minute, duty-free meal period during their shift. The feature operates as follows: at the time clock terminal, when an employee clocks out at the end of a shift, the employee may select an option — displayed as a button or menu item on the terminal screen — to report that he or she missed a meal period or was unable to take a compliant thirty-minute meal period during the shift. When an employee activates the Missed Meal Attestation for a given shift, the TimeTrack Pro system performs the following actions automatically:

(a) The system overrides the thirty-minute auto-deduction that would otherwise have been applied to that shift, restoring the deducted thirty minutes to the employee's total recorded compensable hours for the shift;

(b) The system adds back the thirty minutes of time to the employee's total compensable hours, such that the employee is paid for all time from clock-in to clock-out without any meal period deduction;

(c) The system flags the shift for a one-hour meal period premium payment at the employee's regular rate of pay, as required under California Labor Code section 226.7; and

(d) The premium payment is processed and included in the employee's next regularly scheduled bi-weekly pay cycle.

The Missed Meal Attestation feature was designed to provide a mechanism to ensure that employees who did not receive a compliant meal period during a shift were properly compensated with the premium payment required under California Labor Code section 226.7. I was personally involved in the implementation of the TimeTrack Pro system at AMA's facilities, including the March 2019 second-wave rollout. I can confirm that the activation of the Missed Meal Attestation feature was part of the implementation checklist that was used during the rollout process to ensure that all system features were properly configured at each facility.

6. Despite the Missed Meal Attestation feature being part of the implementation checklist, the feature was not activated at all seven of AMA's California facilities. Based on my review of the TimeTrack Pro system configuration records, the activation status of the Missed Meal Attestation feature at each of AMA's seven California facilities was as follows:

(a) Facilities where the Missed Meal Attestation feature was ACTIVATED (First-Wave Rollout, January 2019):

(i) Facility 1 — 8500 Sunset Boulevard, West Hollywood (headquarters and post-production operations): ACTIVATED as of January 1, 2019.

(ii) Facility 3 — 15301 Ventura Boulevard, Sherman Oaks (digital content operations): ACTIVATED as of January 1, 2019.

(iii) Facility 5 — 1438 North Gower Street, Hollywood (scripted development operations): ACTIVATED as of January 1, 2019.

(iv) Facility 6 — 2120 Colorado Avenue, Santa Monica (e-commerce studio operations): ACTIVATED as of January 1, 2019.

(b) Facilities where the Missed Meal Attestation feature was NOT ACTIVATED (Second-Wave Rollout, March 2019):

(i) Facility 2 — 4024 Penmark Strategy Partners Avenue, Studio City (Stage A and Stage B — unscripted production operations): NOT ACTIVATED from March 2019 through December 2022.

(ii) Facility 4 — 3800 West Alameda Avenue, Burbank (live events and field production operations): NOT ACTIVATED from March 2019 through December 2022.

(iii) Facility 7 — 888 North Sepulveda Boulevard, El Segundo (post-production annex operations): NOT ACTIVATED from March 2019 through December 2022.

At Facilities 2, 4, and 7, because the Missed Meal Attestation feature was not activated, there was no electronic mechanism available within the TimeTrack Pro system for employees at those facilities to report missed or shortened meal periods at the time clock terminal. Employees at Facilities 2, 4, and 7 who wished to report that they had missed a meal period or were denied a compliant meal break would have had to manually report the missed meal to their immediate supervisors or directly to the payroll department so that a manual time entry adjustment and premium payment could be processed.

I cannot recall who was specifically responsible for activating — or for failing to activate — the Missed Meal Attestation feature at each facility during the second-wave rollout in March 2019. The implementation checklist was managed by multiple individuals across AMA's human resources and payroll departments, and I do not have a specific recollection of who was assigned the task of confirming feature activation at Facilities 2, 4, and 7. I can confirm, however, that the activation of the Missed Meal Attestation feature was controlled by AMA, not by NovaPay Solutions. NovaPay's role was to configure the TimeTrack Pro system as directed by AMA; the decision to activate or deactivate specific features at specific facilities was an AMA decision.

I am aware that Lorraine Okafor, AMA's Senior Vice President of Human Resources, has testified in deposition that she became aware of the deactivation of the Missed Meal Attestation feature at Facilities 2, 4, and 7 in approximately November 2022, during the same internal review that identified the auto-deduction threshold discrepancy described in Paragraph 4 above. This internal review was conducted in connection with this litigation. Upon learning of the deactivation, AMA directed NovaPay Solutions to immediately activate the Missed Meal Attestation feature at all three facilities. The activation was completed in December 2022, and the feature has been operational at all seven AMA California facilities since that time.

7. In connection with this litigation, I have reviewed and compiled data from the TimeTrack Pro system regarding the usage of the Missed Meal Attestation feature at the four facilities where the feature was activated during the class period. The data I reviewed covers the period from January 1, 2019 through October 31, 2023, which corresponds to the class period as modified during settlement discussions between the parties. The usage rates set forth below are expressed as a percentage of total eligible shifts — that is, shifts of six hours or more in duration where the auto-deduction was applied — at each of the four facilities where the Missed Meal Attestation feature was active:

These usage rates demonstrate that at each of the four facilities where the Missed Meal Attestation feature was activated, the vast majority of eligible shifts — between 95.9% and 98.2% of all eligible shifts — did not generate a Missed Meal Attestation. In other words, employees did not report a missed meal on those shifts. Across all four active facilities during the class period, the total number of shifts on which an employee activated the Missed Meal Attestation feature was approximately 18,400 out of approximately 612,000 total auto-deducted shifts, yielding an overall attestation usage rate of approximately 3.0%. For each of those approximately 18,400 attestation-recorded shifts, the one-hour meal period premium was calculated and paid to the employee in the next regularly scheduled bi-weekly pay cycle, as described in greater detail in Paragraph 8 below.

8. With respect to payroll processing of meal period premiums, the process operates as follows. When the Missed Meal Attestation feature is triggered by an employee at the time clock terminal, the TimeTrack Pro system generates a payroll flag that is transmitted to my payroll team as part of the regular bi-weekly payroll cycle data feed. My team reviews the flagged shifts during payroll processing to confirm that the premium is properly calculated and applied. The premium payment equals one additional hour of pay at the employee's regular rate of pay for the shift in question, consistent with the requirements of California Labor Code section 226.7. I can confirm, based on my review of AMA's payroll records, that all attestation-triggered meal period premiums were paid to the affected employees in the pay period immediately following the shift on which the attestation was recorded. No attestation-triggered premium payments were withheld, delayed beyond the next pay period, or denied by the payroll department during the class period. To the extent Plaintiffs contend that meal period premiums were not paid, I am not aware of any instance in which a properly triggered attestation did not result in a timely premium payment.

I note, however, that my payroll team did not independently audit or verify whether employees who did not submit a Missed Meal Attestation for a given shift actually received a compliant, duty-free, thirty-minute meal period during that shift. The auto-deduction was applied as the system default for all eligible shifts, and the Missed Meal Attestation was the mechanism by which an employee could override that default. In the absence of an attestation, the payroll system treated the shift as one in which a compliant meal period had been taken, and no premium was generated or paid.

9. With respect to rest period tracking, the TimeTrack Pro system does not record rest periods. The system does not capture or store any data reflecting the start time, end time, duration, or occurrence of rest periods taken by non-exempt employees during their shifts. This is consistent with standard practice in the payroll industry. Under California law, rest periods are treated as paid time and are not required to be separately recorded by the employer. Accordingly, AMA does not have systematic electronic data reflecting when, where, or whether individual employees took rest periods during their shifts. My payroll data cannot be used to determine, on a class-wide basis, whether rest periods were provided to or taken by putative class members. Any determination regarding whether a specific employee was provided with or denied a rest period on a specific shift would require examination of evidence other than the TimeTrack Pro timekeeping data, such as testimony from the employee and his or her supervisor, facility schedules, and call sheets or production schedules for the applicable show unit.

10. With respect to overtime and off-the-clock time, the TimeTrack Pro system calculates overtime automatically based on the recorded clock-in and clock-out times for each employee, consistent with California overtime rules. Specifically, the system applies the following overtime calculations: compensation at one and one-half times (1.5×) the employee's regular rate of pay for hours worked in excess of eight hours in a single workday; compensation at double (2×) the employee's regular rate of pay for hours worked in excess of twelve hours in a single workday; compensation at one and one-half times (1.5×) the employee's regular rate of pay for the first eight hours worked on the seventh consecutive day of work in a single workweek; and compensation at double (2×) the employee's regular rate of pay for hours worked in excess of eight hours on the seventh consecutive day of work in a single workweek.

The TimeTrack Pro system does not record any work performed before an employee clocks in at the beginning of a shift or after an employee clocks out at the end of a shift. If an employee performed work before clocking in or after clocking out — commonly referred to as "off-the-clock" work — that time would not appear in the TimeTrack Pro data and would not be reflected in the employee's compensable hours. Such time would not be compensated unless the employee or the employee's supervisor manually adjusted the time entry in the system to add the unreported time. I am not aware of any systematic policy or practice at AMA requiring employees to adjust time entries for pre-shift or post-shift work, beyond AMA's general timekeeping policy, which states that "all work time must be recorded" and that employees "should clock in when they begin work and clock out when they finish." The existence, extent, and circumstances of any off-the-clock work would vary from employee to employee, shift to shift, facility to facility, and show unit to show unit, and cannot be determined from the TimeTrack Pro data.

11. In connection with this litigation, AMA has produced timekeeping and payroll data from the TimeTrack Pro system to Plaintiffs through NovaPay Solutions. The total AMA document production in this matter has been approximately 147,832 documents, comprising approximately 1.2 million pages. This production includes the TimeTrack Pro data extracts containing the timekeeping and payroll data that I have described in this declaration. The data was extracted from the TimeTrack Pro system by Marcus Yee, Director of Client Data Services at NovaPay Solutions, and was produced to Plaintiffs in delimited text format (CSV files) suitable for database analysis. The format and manner of production was consistent with the ESI Protocol Stipulation entered by the Court on January 13, 2023. I have personally reviewed the extracted data for accuracy by comparing representative samples of the extracted records against the corresponding records in the live TimeTrack Pro system. Based on that review, I can confirm that the extracted data is a true and correct representation of AMA's TimeTrack Pro records for the class period.

12. The payroll and timekeeping data produced in this litigation reflect significant variation in shift lengths, overtime frequency, and meal period timing across AMA's seven California facilities and fourteen show units. These variations are inherent in the nature of AMA's operations, which span a range of production types with differing scheduling demands. By way of example, and based on my review of the TimeTrack Pro data:

(a) Studio-based show units, such as those operating at Facility 1 in West Hollywood, tend to have more uniform shift lengths in the range of eight to ten hours, with relatively consistent meal period timing. The regularity of these shifts reflects the structured nature of post-production work, which generally takes place in editing bays and studio environments with predictable daily schedules.

(b) Field-based show units, such as the show unit for "Summit Challenge" coordinated from Facility 4 in Burbank, have extended shoot days that frequently exceed twelve hours. These field-based productions involve location shooting, travel time, and unpredictable production conditions that create greater variability in meal period timing and frequency. The TimeTrack Pro data for field-based show units reflects a higher incidence of shifts exceeding ten hours and a wider range of shift durations compared to studio-based units.

(c) Post-production operations, including those at Facilities 1, 5, and 7, tend to have regular office-hour schedules with standard meal break patterns. Employees in post-production roles generally work shifts that approximate standard business hours, with fewer instances of extended shifts or irregular meal period scheduling.

The payroll data also reflect variation in the frequency of overtime hours across different show units, reflecting the different production schedules and deadlines applicable to each show unit. Some show units have concentrated periods of intensive production activity during which overtime hours are frequent, followed by periods of reduced activity with minimal overtime. Other show units maintain more consistent schedules throughout the year. These variations are documented in the TimeTrack Pro data extracts that have been produced to Plaintiffs in this litigation and would require individualized analysis to assess on a per-employee, per-shift basis.

13. Based on my personal knowledge and my review of AMA's payroll and timekeeping records, I offer the following conclusions:

(a) The auto-deduction mechanism in the TimeTrack Pro system was applied uniformly across all seven AMA California facilities as a timekeeping system feature. It functioned as an automated payroll processing tool and was not itself a substantive meal period policy dictating whether, when, or how employees were provided with meal periods.

(b) The Missed Meal Attestation feature, at the four facilities where it was activated, provided a mechanism by which employees could report missed or non-compliant meal periods and receive the one-hour premium payment required by California Labor Code section 226.7. Where the feature was activated, it functioned as designed during the class period.

(c) The attestation usage rates at the four active facilities were low, ranging from 1.8% to 4.1% of eligible shifts. These low usage rates are consistent with the conclusion that the majority of employees at those facilities took compliant meal periods during the class period. Only approximately 3.0% of all eligible, auto-deducted shifts across the four active facilities generated a Missed Meal Attestation.

(d) The payroll and timekeeping data reflect significant variation across AMA's seven facilities and fourteen show units in terms of shift lengths, overtime frequency, meal period timing, and production schedules. These variations would require individualized, employee-by-employee and shift-by-shift analysis to determine whether any specific employee was denied a compliant meal period on any specific shift. The data do not support a uniform, class-wide determination on these issues.

(e) The TimeTrack Pro system does not record rest periods or off-the-clock work. Accordingly, the payroll and timekeeping data cannot be used to make class-wide determinations regarding Plaintiffs' rest period claims or off-the-clock work claims. Any assessment of those claims would likewise require individualized inquiry.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 14, 2023, at West Hollywood, California.

________________________________________

Karen Fong Payroll Manager Aurelius Media Americas Inc.

Facility	Location	Attestation Usage Rate (% of Eligible Shifts)
Facility 1	8500 Sunset Blvd., West Hollywood (HQ & post-production)	2.3%
Facility 3	15301 Ventura Blvd., Sherman Oaks (digital content)	4.1%
Facility 5	1438 N. Gower St., Hollywood (scripted development)	1.8%
Facility 6	2120 Colorado Ave., Santa Monica (e-commerce studio)	3.7%

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES — CENTRAL DISTRICT
MARISOL FUENTES, DEREK HALLORAN, and YESENIA PADILLA, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
AURELIUS MEDIA AMERICAS INC.,
Defendant.
Lead Case No. 22STCV38214 (Consolidated with 22STCV39501)
Assigned for All Purposes to: Hon. Raymond Escobedo, Dept. 34
DECLARATION OF KAREN FONG IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
Date: July 12, 2023
Time: 10:00 a.m. Dept.: 34
DECLARATION OF KAREN FONG IN OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
I, Karen Fong, declare as follows:
1. My name is Karen Fong. I am over the age of eighteen years and am competent to testify to the matters set forth in this declaration. I make this declaration based upon my personal knowledge and upon my review of business records of Aurelius Media Americas Inc. ("AMA") that are maintained in the ordinary course of business under my supervision and control. If called as a witness, I could and would competently testify to the matters stated herein. I am currently employed by AMA as its Payroll Manager, a position I have held since October 2018. In this capacity, I am responsible for overseeing all aspects of payroll processing and timekeeping administration for AMA's United States workforce. Prior to joining AMA, I held payroll administration and timekeeping systems positions at two other entertainment industry employers over a period of approximately eleven years, during which time I gained extensive experience with electronic timekeeping platforms, payroll processing cycles, wage and hour compliance procedures, and the maintenance and integrity of payroll data. I have been asked by counsel for AMA to provide this declaration in connection with Defendant's opposition to Plaintiffs' motion for class certification, for the purpose of describing AMA's payroll infrastructure, its electronic timekeeping system, the operation of that system's auto-deduction and attestation features, and the payroll and timekeeping data that AMA has produced in this litigation.
2. AMA is a Delaware corporation qualified to do business in the State of California, with its principal office located at 8500 Sunset Boulevard, Suite 1400, West Hollywood, California 90069. AMA is a wholly owned subsidiary of Aurelius Global Media Group PLC, a public limited company incorporated in England and Wales under Companies House Registration Number 08412667. AMA employs approximately 3,200 employees in the United States, of whom approximately 2,400 are based in the State of California. Of those California-based employees, approximately 1,850 were classified as non-exempt, hourly employees at some point during the putative class period, which Plaintiffs have defined as November 1, 2018 through the present. AMA operates seven California production facilities and fourteen distinct show units across those facilities. In my capacity as Payroll Manager, I oversee payroll processing for all AMA employees in the United States, including all California-based non-exempt hourly workers who are the subject of Plaintiffs' class certification motion.
3. AMA's payroll processor and electronic timekeeping system provider is NovaPay Solutions Inc., a payroll and human capital management company located at 2200 Powell Street, Suite 600, Emeryville, California 94608. NovaPay Solutions has served as AMA's payroll processor since January 1, 2019. The specific timekeeping system utilized by AMA is the NovaPay Solutions "TimeTrack Pro" system, which is an electronic punch-in/punch-out timekeeping platform. Prior to January 1, 2019, AMA utilized a manual time-sheet system in which non-exempt employees recorded their daily start times, end times, and meal period times on paper time sheets, which were then submitted to their supervisors for approval and forwarded to the payroll department for manual data entry and processing. The transition from the manual time-sheet system to the TimeTrack Pro electronic system was implemented in two waves across AMA's seven California facilities, as follows:
(a) First Wave (January 2019): The TimeTrack Pro system was deployed at four facilities: Facility 1 (8500 Sunset Boulevard, West Hollywood — headquarters and post-production operations); Facility 3 (15301 Ventura Boulevard, Sherman Oaks — digital content operations); Facility 5 (1438 North Gower Street, Hollywood — scripted development operations); and Facility 6 (2120 Colorado Avenue, Santa Monica — e-commerce studio operations). These four facilities transitioned to TimeTrack Pro effective January 1, 2019.
(b) Second Wave (March 2019): The TimeTrack Pro system was deployed at the remaining three facilities: Facility 2 (4024 Penmark Strategy Partners Avenue, Studio City — Stage A and Stage B, unscripted production operations); Facility 4 (3800 West Alameda Avenue, Burbank — live events and field production operations); and Facility 7 (888 North Sepulveda Boulevard, El Segundo — post-production annex operations). These three facilities transitioned to TimeTrack Pro effective March 1, 2019.
The key custodian for electronically stored information ("ESI") at NovaPay Solutions in connection with this matter is Marcus Yee, Director of Client Data Services. Mr. Yee was the principal NovaPay representative responsible for the data extractions performed in response to AMA's discovery obligations in this litigation.
4. The TimeTrack Pro system functions as follows with respect to daily shift recording and meal period deductions. Non-exempt employees clock in and clock out for each shift by scanning a proximity badge or entering individual login credentials at a TimeTrack Pro terminal located at each AMA facility. The system records the exact clock-in time and clock-out time for each shift to the nearest minute. The system then calculates the total hours worked for the shift based on those recorded clock-in and clock-out times. The TimeTrack Pro system includes an automatic meal period deduction feature, which I will refer to in this declaration as the "auto-deduction" feature. The auto-deduction feature operates as follows: for any shift recorded at six hours or more in duration, the system automatically deducts thirty (30) minutes from the employee's total recorded hours for that shift. This deduction is based on the assumption that the employee took a compliant, duty-free, thirty-minute meal period during the shift. The deduction is applied at the sixth hour of the shift — that is, at hour 6.0 of the shift, the system deducts 0.5 hours from the employee's total compensable time. This auto-deduction is applied uniformly across all AMA facilities and all show units. It is a system-wide configuration setting within the TimeTrack Pro platform and is not a facility-specific or show-unit-specific setting. In other words, every non-exempt employee at every AMA California facility is subject to the same auto-deduction logic.
I am aware that the auto-deduction was configured to trigger at the six-hour threshold. However, I understand that IWC Wage Order 12 (Motion Picture Industry), which governs AMA's production employees, requires that a meal period be provided for shifts exceeding five hours, consistent with California Labor Code section 512. The six-hour threshold at which the auto-deduction was configured to trigger was therefore inconsistent with the five-hour legal requirement under the applicable wage order and statute. This threshold discrepancy was identified in approximately November 2022 during an internal review of AMA's timekeeping practices that was conducted in connection with this litigation. Upon identification of this discrepancy, AMA directed NovaPay Solutions to correct the auto-deduction trigger threshold from six hours to five hours. That correction was implemented and became effective in December 2022. Prior to December 2022, employees who worked shifts between five and six hours in duration did not receive an auto-deduction and were not prompted by the system to report whether they had taken a meal period.
Additionally, the TimeTrack Pro system does not apply a second automatic deduction for shifts exceeding ten hours. Under California law, employees who work more than ten hours in a day are entitled to a second thirty-minute meal period. However, the auto-deduction feature was configured to apply only a single thirty-minute deduction per shift. Employees who worked shifts exceeding ten hours were expected to manually adjust their time entries to reflect a second meal period, or their supervisors were expected to manage the scheduling and recording of second meal periods for those shifts. There was no automated system-level mechanism within TimeTrack Pro to ensure that second meal periods were recorded or that a second deduction was applied.
5. In addition to the auto-deduction feature described above, the TimeTrack Pro system includes an optional feature called the "Missed Meal Attestation" feature. This feature is designed to allow employees to report, at the point of clocking out, that they missed or were unable to take a compliant thirty-minute, duty-free meal period during their shift. The feature operates as follows: at the time clock terminal, when an employee clocks out at the end of a shift, the employee may select an option — displayed as a button or menu item on the terminal screen — to report that he or she missed a meal period or was unable to take a compliant thirty-minute meal period during the shift. When an employee activates the Missed Meal Attestation for a given shift, the TimeTrack Pro system performs the following actions automatically:
(a) The system overrides the thirty-minute auto-deduction that would otherwise have been applied to that shift, restoring the deducted thirty minutes to the employee's total recorded compensable hours for the shift;
(b) The system adds back the thirty minutes of time to the employee's total compensable hours, such that the employee is paid for all time from clock-in to clock-out without any meal period deduction;
(c) The system flags the shift for a one-hour meal period premium payment at the employee's regular rate of pay, as required under California Labor Code section 226.7; and
(d) The premium payment is processed and included in the employee's next regularly scheduled bi-weekly pay cycle.
The Missed Meal Attestation feature was designed to provide a mechanism to ensure that employees who did not receive a compliant meal period during a shift were properly compensated with the premium payment required under California Labor Code section 226.7. I was personally involved in the implementation of the TimeTrack Pro system at AMA's facilities, including the March 2019 second-wave rollout. I can confirm that the activation of the Missed Meal Attestation feature was part of the implementation checklist that was used during the rollout process to ensure that all system features were properly configured at each facility.
6. Despite the Missed Meal Attestation feature being part of the implementation checklist, the feature was not activated at all seven of AMA's California facilities. Based on my review of the TimeTrack Pro system configuration records, the activation status of the Missed Meal Attestation feature at each of AMA's seven California facilities was as follows:
(a) Facilities where the Missed Meal Attestation feature was ACTIVATED (First-Wave Rollout, January 2019):
(i) Facility 1 — 8500 Sunset Boulevard, West Hollywood (headquarters and post-production operations): ACTIVATED as of January 1, 2019.
(ii) Facility 3 — 15301 Ventura Boulevard, Sherman Oaks (digital content operations): ACTIVATED as of January 1, 2019.
(iii) Facility 5 — 1438 North Gower Street, Hollywood (scripted development operations): ACTIVATED as of January 1, 2019.
(iv) Facility 6 — 2120 Colorado Avenue, Santa Monica (e-commerce studio operations): ACTIVATED as of January 1, 2019.
(b) Facilities where the Missed Meal Attestation feature was NOT ACTIVATED (Second-Wave Rollout, March 2019):
(i) Facility 2 — 4024 Penmark Strategy Partners Avenue, Studio City (Stage A and Stage B — unscripted production operations): NOT ACTIVATED from March 2019 through December 2022.
(ii) Facility 4 — 3800 West Alameda Avenue, Burbank (live events and field production operations): NOT ACTIVATED from March 2019 through December 2022.
(iii) Facility 7 — 888 North Sepulveda Boulevard, El Segundo (post-production annex operations): NOT ACTIVATED from March 2019 through December 2022.
At Facilities 2, 4, and 7, because the Missed Meal Attestation feature was not activated, there was no electronic mechanism available within the TimeTrack Pro system for employees at those facilities to report missed or shortened meal periods at the time clock terminal. Employees at Facilities 2, 4, and 7 who wished to report that they had missed a meal period or were denied a compliant meal break would have had to manually report the missed meal to their immediate supervisors or directly to the payroll department so that a manual time entry adjustment and premium payment could be processed.
I cannot recall who was specifically responsible for activating — or for failing to activate — the Missed Meal Attestation feature at each facility during the second-wave rollout in March 2019. The implementation checklist was managed by multiple individuals across AMA's human resources and payroll departments, and I do not have a specific recollection of who was assigned the task of confirming feature activation at Facilities 2, 4, and 7. I can confirm, however, that the activation of the Missed Meal Attestation feature was controlled by AMA, not by NovaPay Solutions. NovaPay's role was to configure the TimeTrack Pro system as directed by AMA; the decision to activate or deactivate specific features at specific facilities was an AMA decision.
I am aware that Lorraine Okafor, AMA's Senior Vice President of Human Resources, has testified in deposition that she became aware of the deactivation of the Missed Meal Attestation feature at Facilities 2, 4, and 7 in approximately November 2022, during the same internal review that identified the auto-deduction threshold discrepancy described in Paragraph 4 above. This internal review was conducted in connection with this litigation. Upon learning of the deactivation, AMA directed NovaPay Solutions to immediately activate the Missed Meal Attestation feature at all three facilities. The activation was completed in December 2022, and the feature has been operational at all seven AMA California facilities since that time.
7. In connection with this litigation, I have reviewed and compiled data from the TimeTrack Pro system regarding the usage of the Missed Meal Attestation feature at the four facilities where the feature was activated during the class period. The data I reviewed covers the period from January 1, 2019 through October 31, 2023, which corresponds to the class period as modified during settlement discussions between the parties. The usage rates set forth below are expressed as a percentage of total eligible shifts — that is, shifts of six hours or more in duration where the auto-deduction was applied — at each of the four facilities where the Missed Meal Attestation feature was active:
These usage rates demonstrate that at each of the four facilities where the Missed Meal Attestation feature was activated, the vast majority of eligible shifts — between 95.9% and 98.2% of all eligible shifts — did not generate a Missed Meal Attestation. In other words, employees did not report a missed meal on those shifts. Across all four active facilities during the class period, the total number of shifts on which an employee activated the Missed Meal Attestation feature was approximately 18,400 out of approximately 612,000 total auto-deducted shifts, yielding an overall attestation usage rate of approximately 3.0%. For each of those approximately 18,400 attestation-recorded shifts, the one-hour meal period premium was calculated and paid to the employee in the next regularly scheduled bi-weekly pay cycle, as described in greater detail in Paragraph 8 below.
8. With respect to payroll processing of meal period premiums, the process operates as follows. When the Missed Meal Attestation feature is triggered by an employee at the time clock terminal, the TimeTrack Pro system generates a payroll flag that is transmitted to my payroll team as part of the regular bi-weekly payroll cycle data feed. My team reviews the flagged shifts during payroll processing to confirm that the premium is properly calculated and applied. The premium payment equals one additional hour of pay at the employee's regular rate of pay for the shift in question, consistent with the requirements of California Labor Code section 226.7. I can confirm, based on my review of AMA's payroll records, that all attestation-triggered meal period premiums were paid to the affected employees in the pay period immediately following the shift on which the attestation was recorded. No attestation-triggered premium payments were withheld, delayed beyond the next pay period, or denied by the payroll department during the class period. To the extent Plaintiffs contend that meal period premiums were not paid, I am not aware of any instance in which a properly triggered attestation did not result in a timely premium payment.
I note, however, that my payroll team did not independently audit or verify whether employees who did not submit a Missed Meal Attestation for a given shift actually received a compliant, duty-free, thirty-minute meal period during that shift. The auto-deduction was applied as the system default for all eligible shifts, and the Missed Meal Attestation was the mechanism by which an employee could override that default. In the absence of an attestation, the payroll system treated the shift as one in which a compliant meal period had been taken, and no premium was generated or paid.
9. With respect to rest period tracking, the TimeTrack Pro system does not record rest periods. The system does not capture or store any data reflecting the start time, end time, duration, or occurrence of rest periods taken by non-exempt employees during their shifts. This is consistent with standard practice in the payroll industry. Under California law, rest periods are treated as paid time and are not required to be separately recorded by the employer. Accordingly, AMA does not have systematic electronic data reflecting when, where, or whether individual employees took rest periods during their shifts. My payroll data cannot be used to determine, on a class-wide basis, whether rest periods were provided to or taken by putative class members. Any determination regarding whether a specific employee was provided with or denied a rest period on a specific shift would require examination of evidence other than the TimeTrack Pro timekeeping data, such as testimony from the employee and his or her supervisor, facility schedules, and call sheets or production schedules for the applicable show unit.
10. With respect to overtime and off-the-clock time, the TimeTrack Pro system calculates overtime automatically based on the recorded clock-in and clock-out times for each employee, consistent with California overtime rules. Specifically, the system applies the following overtime calculations: compensation at one and one-half times (1.5×) the employee's regular rate of pay for hours worked in excess of eight hours in a single workday; compensation at double (2×) the employee's regular rate of pay for hours worked in excess of twelve hours in a single workday; compensation at one and one-half times (1.5×) the employee's regular rate of pay for the first eight hours worked on the seventh consecutive day of work in a single workweek; and compensation at double (2×) the employee's regular rate of pay for hours worked in excess of eight hours on the seventh consecutive day of work in a single workweek.
The TimeTrack Pro system does not record any work performed before an employee clocks in at the beginning of a shift or after an employee clocks out at the end of a shift. If an employee performed work before clocking in or after clocking out — commonly referred to as "off-the-clock" work — that time would not appear in the TimeTrack Pro data and would not be reflected in the employee's compensable hours. Such time would not be compensated unless the employee or the employee's supervisor manually adjusted the time entry in the system to add the unreported time. I am not aware of any systematic policy or practice at AMA requiring employees to adjust time entries for pre-shift or post-shift work, beyond AMA's general timekeeping policy, which states that "all work time must be recorded" and that employees "should clock in when they begin work and clock out when they finish." The existence, extent, and circumstances of any off-the-clock work would vary from employee to employee, shift to shift, facility to facility, and show unit to show unit, and cannot be determined from the TimeTrack Pro data.
11. In connection with this litigation, AMA has produced timekeeping and payroll data from the TimeTrack Pro system to Plaintiffs through NovaPay Solutions. The total AMA document production in this matter has been approximately 147,832 documents, comprising approximately 1.2 million pages. This production includes the TimeTrack Pro data extracts containing the timekeeping and payroll data that I have described in this declaration. The data was extracted from the TimeTrack Pro system by Marcus Yee, Director of Client Data Services at NovaPay Solutions, and was produced to Plaintiffs in delimited text format (CSV files) suitable for database analysis. The format and manner of production was consistent with the ESI Protocol Stipulation entered by the Court on January 13, 2023. I have personally reviewed the extracted data for accuracy by comparing representative samples of the extracted records against the corresponding records in the live TimeTrack Pro system. Based on that review, I can confirm that the extracted data is a true and correct representation of AMA's TimeTrack Pro records for the class period.
12. The payroll and timekeeping data produced in this litigation reflect significant variation in shift lengths, overtime frequency, and meal period timing across AMA's seven California facilities and fourteen show units. These variations are inherent in the nature of AMA's operations, which span a range of production types with differing scheduling demands. By way of example, and based on my review of the TimeTrack Pro data:
(a) Studio-based show units, such as those operating at Facility 1 in West Hollywood, tend to have more uniform shift lengths in the range of eight to ten hours, with relatively consistent meal period timing. The regularity of these shifts reflects the structured nature of post-production work, which generally takes place in editing bays and studio environments with predictable daily schedules.
(b) Field-based show units, such as the show unit for "Summit Challenge" coordinated from Facility 4 in Burbank, have extended shoot days that frequently exceed twelve hours. These field-based productions involve location shooting, travel time, and unpredictable production conditions that create greater variability in meal period timing and frequency. The TimeTrack Pro data for field-based show units reflects a higher incidence of shifts exceeding ten hours and a wider range of shift durations compared to studio-based units.
(c) Post-production operations, including those at Facilities 1, 5, and 7, tend to have regular office-hour schedules with standard meal break patterns. Employees in post-production roles generally work shifts that approximate standard business hours, with fewer instances of extended shifts or irregular meal period scheduling.
The payroll data also reflect variation in the frequency of overtime hours across different show units, reflecting the different production schedules and deadlines applicable to each show unit. Some show units have concentrated periods of intensive production activity during which overtime hours are frequent, followed by periods of reduced activity with minimal overtime. Other show units maintain more consistent schedules throughout the year. These variations are documented in the TimeTrack Pro data extracts that have been produced to Plaintiffs in this litigation and would require individualized analysis to assess on a per-employee, per-shift basis.
13. Based on my personal knowledge and my review of AMA's payroll and timekeeping records, I offer the following conclusions:
(a) The auto-deduction mechanism in the TimeTrack Pro system was applied uniformly across all seven AMA California facilities as a timekeeping system feature. It functioned as an automated payroll processing tool and was not itself a substantive meal period policy dictating whether, when, or how employees were provided with meal periods.
(b) The Missed Meal Attestation feature, at the four facilities where it was activated, provided a mechanism by which employees could report missed or non-compliant meal periods and receive the one-hour premium payment required by California Labor Code section 226.7. Where the feature was activated, it functioned as designed during the class period.
(c) The attestation usage rates at the four active facilities were low, ranging from 1.8% to 4.1% of eligible shifts. These low usage rates are consistent with the conclusion that the majority of employees at those facilities took compliant meal periods during the class period. Only approximately 3.0% of all eligible, auto-deducted shifts across the four active facilities generated a Missed Meal Attestation.
(d) The payroll and timekeeping data reflect significant variation across AMA's seven facilities and fourteen show units in terms of shift lengths, overtime frequency, meal period timing, and production schedules. These variations would require individualized, employee-by-employee and shift-by-shift analysis to determine whether any specific employee was denied a compliant meal period on any specific shift. The data do not support a uniform, class-wide determination on these issues.
(e) The TimeTrack Pro system does not record rest periods or off-the-clock work. Accordingly, the payroll and timekeeping data cannot be used to make class-wide determinations regarding Plaintiffs' rest period claims or off-the-clock work claims. Any assessment of those claims would likewise require individualized inquiry.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 14, 2023, at West Hollywood, California.
________________________________________
Karen Fong Payroll Manager Aurelius Media Americas Inc.
Facility | Location | Attestation Usage Rate (% of Eligible Shifts)
Facility 1 | 8500 Sunset Blvd., West Hollywood (HQ & post-production) | 2.3%
Facility 3 | 15301 Ventura Blvd., Sherman Oaks (digital content) | 4.1%
Facility 5 | 1438 N. Gower St., Hollywood (scripted development) | 1.8%
Facility 6 | 2120 Colorado Ave., Santa Monica (e-commerce studio) | 3.7%

SUPERIOR COURT OF THE STATE OF CALIFORNIA

AURELIUS MEDIA AMERICAS INC.,

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Parties

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