Plaintiff alleged she was not paid minimum wages due under California law, in part due to the failure of ADP, which provided payroll expertise and processing services to plaintiff’s employer, to accurately compute and report her wages.  Held:  (1) Plaintiff cannot state claims against ADP for violation of the FLSA or Labor Code sections requiring payment of minimum wages since ADP, as payroll processor, was not plaintiff’s employer.  See Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419.  (2) For the same reason, plaintiff cannot state claims against ADP for employment discrimination, wrongful termination in violation of public policy, or for violation of the UCL.  (3) However, plaintiff did state a breach of contract claim against ADP based on the theory that she and other employees were third party beneficiaries of her employer’s contract with ADP since that contract delegated to ADP the employer’s duty to supply employment information and benefits to the employees.  Plaintiff alleged ADP breached its contractual duties by repeatedly failing to determine that plaintiff was entitled to overtime and double overtime compensation.  (3) Plaintiff also stated a viable negligent misrepresentation claim against ADP for misstating her wages in the earnings statements it provided to her.  Allegedly, the underpayment of plaintiff’s wages was due to ADP’s miscalculations; ADP was not just reporting the employer’s wage payments.  (4) Plaintiff stated a claim for professional negligence against ADP based on her status as a creditor third party beneficiary of her employer’s contract with ADP.

California Court of Appeal, Second District, Division 4 (Manella, J.); November 4, 2016; 2016 WL 6554981