Julian v. Swift Transportation Inc.

          ORDER

          Honorable Roslyn O. Silver, Senior United States District Judge.

         Plaintiffs are a group of approximately 10, 000 truck drivers who worked as “trainee drivers” for Defendant Swift Transportation Co. of Arizona, LLC. Plaintiffs were not paid for attending the first day of a mandatory three-day orientation nor were they paid for many hours during a behind-the-wheel training period. Swift seeks summary judgment that Plaintiffs were not entitled to pay for the first day of orientation. Both parties seek summary judgment regarding Plaintiffs' unpaid hours during the behind-the-wheel training period.

         BACKGROUND

         The parties have filed cross-motions for summary judgment, requiring the facts be viewed in different ways depending on which motion is being evaluated. See Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). Only Swift moved for summary judgment regarding the first day of orientation, meaning the facts regarding that issue must be viewed in the light most favorable to Plaintiffs. Both parties moved for summary judgment regarding the alleged unpaid hours during behind- the-wheel training, requiring the Court view the facts relevant to that issue in the light most favorable to each party, depending on which motion is being assessed. Fortunately, many background facts are undisputed. Therefore, the following represents the undisputed facts unless otherwise noted.

         Swift “provides long-haul transportation services . . . throughout the continental United States and Canada.” (Doc. 26 at 8). Swift operates at least 18, 000 trucks and has at least 14, 000 drivers. (Doc. 26 at 8); (Doc. 193 at 22). To ensure an adequate supply of qualified drivers, Swift maintains a large driver training program.^[1] At any given time, Swift has more than 1, 000 individuals participating in its driver training program. (Doc. 157 at 9).

         In general, Swift's driver training program consists of three parts. First, trainees attend a three-day orientation at one of Swift's “terminals.” During that orientation trainees learn about Swift and what is expected of them as drivers. (Doc. 192-5 at 5). Second, trainees spend four to six weeks in “behind-the-wheel training with an assigned mentor hauling and delivering freight as part of a two-driver team.” (Doc. 191 at 6). Third, after completing the behind-the-wheel training period, trainees take a written test, performance test, and road test. (Doc. 157-2 at 3). If the trainees complete the orientation, behind-the-wheel training, and pass the tests, they are entitled to work as solo drivers. The present suit focuses on aspects of the orientation and behind-the-wheel training.

         A. Three Days of Orientation

         At the time Plaintiffs applied to work for Swift, most applications were submitted online. (Doc. 157-2 at 2). Once Swift received an application, it conducted a preliminary review and “[i]f the application [was] approved, ” Swift contacted the individual and told him to report to a Swift terminal for three days of orientation. (Doc. 157-2 at 2). Swift has not explained what it meant for an application to be “approved” but Swift is adamant that it did not mean the applicant had been “hired” at that point. Rather, Swift contends the preliminary “approval” merely indicated the applicant should appear at a terminal for more processing and possible hiring. It is undisputed, however, that the preliminary “approval” often meant Swift had confirmed the applicant possessed some of the required qualifications to work as a driver.

         Once an individual was “approved, ” Swift sent the individual an email containing “the details about the orientation.” (Doc. 192-1 at 23, 34). An example of that email shows Swift promised to reimburse the individual for travel to the orientation's location and that Swift would pay for his hotel room and provide a lunch each day of the orientation. The individual was directed to bring his Class A Commercial Driver's Licenses, pen and paper, medical examination reports, and his Social Security Card. (Doc. 192-1 at 34). The email stressed the individual should bring “clothing-enough for 7-14 days” and to “[b]e prepared to leave from orientation for up to 6 weeks for training with mentor!!” (Doc. 192-1 at 34). The email also warned the individual that if Swift discovered “alcohol/drugs” or “a person of the opposite sex” in his hotel room, the individual would be “terminated and sent home immediately.” (Doc. 192-1 at 34) (emphasis added).

         The email did not state whether the individual would be compensated for attending the orientation. During depositions, some plaintiffs stated they did not expect to be paid. But other plaintiffs have submitted declarations stating they were told by Swift employees that they would be paid “for all three days of orientation.”^[2] (Doc. 192-1 at 23); (Doc. 192-1 at 38); (Doc. 192-1 at 65); (Doc. 192-1 at 85). Attendance at all three days was mandatory. (Doc. 192-1 at 23).

         The three-day orientation followed a standard format. The first day began at 7:00 a.m. with a “Welcome Vid[eo].” (Doc. 192-12 at 2). The day then proceeded with a safety message and explanations of Swift's “Expectations & Code of Conduct.” (Doc. 192-12 at 2). During these initial presentations, Swift conducted a “Whiteboard discussion and brainstorm” about the meaning of Swift's slogan “Delivering a Better Life.” (Doc. 192-11 at 10). That presentation explained the slogan was meant to illustrate Swift's intent to “Deliver a Better Life to four big groups of people: Employees, Customers, Communities and Shareholders.” (Doc. 192-11 at 12). Each of those groups was then discussed in more detail, with special emphasis placed on the unique attributes of Swift and the benefits of working for Swift.

         After the “Whiteboard discussion, ” Swift played videos on topics such as “Driver Wellness” and “Driver Qualifications” while individuals completed drug screenings, physicals, and road tests. Every individual was required to complete a drug screening but some individuals were not required to get a physical or complete the road test. The first day ended at approximately 3:45 p.m. after presentations regarding “Safe Work Methods” and “Haz-Mat Training.” (Doc. 192-12 at 2). Individuals were not paid for any portion of the first day because, in Swift's view, no one had been “hired” at that time.

         Swift explains it did not compensate individuals for the first day because it was a “qualification day.” (Doc. 192-5 at 6). According to Swift, the activities on the first day consisted only of those that “qualify [individuals] to go work for another carrier.” That is, “everything [individuals] do on day 1 is something they can use elsewhere as well.” (Doc. 192-5 at 6). Plaintiffs have a different view of the first day. According to one plaintiff, all the information covered on the first day “was related to Swift, its history and its policies.” (Doc. 192-1 at 13). That information was not something he could use “when working for some other employer.” (Doc. 192-1 at 13). Another plaintiff describes the first day as “focused on reinforcing Swift's rules and expectations, on-time deliveries, and customer service policies.” That plaintiff claimed he would not be able to use the information he received on the first day “for [his] own benefit when working for some other employer.” (Doc. 192-1 at 24). Viewed in the light most favorable to Plaintiffs, the majority of the first day involved Swift-specific information.

         The second and third days of orientation covered additional topics such as Swift's history, how drivers would be paid, Swift's policies regarding inappropriate conduct, and how drivers should plan their trips. (Doc. 192-12 at 2). Swift considered the individuals “employees” as of the start of the second day and paid the trainees for the second and third days. Swift explains it compensated the trainees for the second and third days because those days covered Swift-specific information. (Doc. 192-5 at 7).

         B. Behind-the-Wheel Training

         At some point during the three days of orientation each trainee was assigned a “mentor” to work with during the four to six weeks of behind-the-wheel training. Trainees began working with their mentor immediately after the end of orientation. Swift expected trainees would spend the behind-the-wheel training period driving as much as possible while also preparing to take the final tests that would qualify them to work as solo drivers. Trainees were tasked with “learning by observing the mentor, helping him, and studying written training materials.” (Doc. 192-1 at 51-52). Each trainee and his mentor worked as a driving team, meaning one individual drove while the other rested.^[3] (Doc. 159-2 at 35, 46).

         Part of the behind-the-wheel training was ensuring trainees knew how to comply with the governing Department of Transportation (“DOT”) regulations regarding the logging of time. Pursuant to DOT regulations, all truck drivers are required to track their time using an “electronic logging device, ” which is sometimes referred to as the “Qualcomm.” 49 C.F.R. 395.8(a)(1)(i) (requiring truck drivers use electronic logging devices). Using that device, trainees had to log their time in one of four statuses: Driving, On Duty Not Driving, Off Duty, or Sleeper Berth. 49 C.F.R. § 395.8(b). In general, time spent at the driving controls had to be logged as “driving, ” time spent performing other work (e.g., fueling, trip planning) had to be logged as “on duty not driving, ” time where no work was being performed had to be logged as “off duty, ” and time spent in the truck's sleeper berth had to be logged as “sleeper berth.”

         The DOT regulations impose a complicated scheme regarding the maximum amount of time a driver can log in the “driving” or “on duty not driving” statuses. 49 C.F.R. § 395.3. Somewhat simplified, a driver cannot be logged as “driving” or “on duty not driving” for more than “70 hours in any period of 8 consecutive days.” 49 C.F.R. § 395.3(b)(2). In addition, a driver cannot be logged as “driving” for more than 11 hours “during a period of 14 consecutive hours after coming on duty.” 49 C.F.R. § 395.3(a). After exhausting one's available driving time, a driver must take “10 consecutive hours off duty.” Id.

         According to Plaintiffs, Swift assigned deliveries to the trainees and their mentors that had very “tight delivery deadline[s], ” which required the trainees and mentors drive right up to the maximum hours allowed by the DOT regulations. (Doc. 192-1 at 15). Those delivery deadlines meant the trucks were moving as much as legally possible. Because a mentor and his trainee could each drive up to 11 hours per day, it was technically possible for a truck to remain in motion 22 hours each day. In fact, if a mentor wished to exhaust the “70 hours within 8 days” limit as soon as possible, a truck could remain in motion for 22 hours a day for up to 6 days straight.

         Some plaintiffs describe their trucks as “moving almost 24/7.” (Doc. 192-1 at 15); (Doc. 192-1 at 26). One plaintiff, being slightly more precise, states the truck was in motion for “22 hours per day.” (Doc. 192-1 at 50). According to some plaintiffs, the only times their trucks were not moving involved “pre- and post-trip inspections, refueling, a 30-minute rest break, and other road stops here and there.” (Doc. 192-1 at 16). The length of the refueling and road stops was unpredictable and one plaintiff states he never knew “when we would get back out on the road.” (Doc. 192-1 at 16-17). For some plaintiffs this meant the truck did not stop for them to use restrooms. One plaintiff explains he “ended up having to relieve [himself] using plastic bottles that [his] mentor kept in the truck for that purpose.” (Doc. 192-1 at 27). Another plaintiff explains his mentor's desire to stop as little as possible meant the plaintiff and his mentor “urinated off of off ramps” instead of taking the time to stop at locations with restrooms. (Doc. 192-1 at 42). Even the relatively rare times the trucks stopped, Plaintiffs were required to “stay ready and engaged” because at any moment they “could be asked to fuel the truck or do repairs on the truck.” (Doc. 192-1 at 46).

         Declarations from certain plaintiffs paint a consistent picture of working, or being ready to be called upon to perform work, around the clock. Mentors and trainees were effectively living out of the trucks. During one trainee's five weeks of behind-the-wheel training, he was on the road for all but three days. For those three days, he was required to wait in a hotel while his mentor visited his family. (Doc. 192-1 at 16). Another trainee describes his behind-the-wheel training as lasting four to six weeks. During that period, he was on the road and living out of the truck for all but two days. (Doc. 192-1 at 27).

         Mentors and trainees were compensated differently. Mentors were paid based on each mile driven, whether by the mentor or by the trainee. (Doc. 159-2 at 49). Trainees were paid $9.50 per hour for all time they logged as “driving” and minimum wage for all time they logged as “on duty not driving.”^[4] (Doc. 159-2 at 13). Swift did not pay trainees for any time they logged as “off duty” or “sleeper berth.” (Doc. 159-2 at 14).

         To comply with the DOT regulations regarding maximum driving time and minimum rest time, Plaintiffs spent substantial periods of time in the sleeper berth while their mentors drove. A “forensic review” of driver logs showed “[t]rainees were logged as ‘sleeper berth' for more than 10 hours on 64% of their workdays, more than 12 hours on 47% of their workdays, and more than 15 hours on 27% of their workdays.” (Doc. 191 at 40).

         During the many hours Plaintiffs were logged as “sleeper berth, ” they claim they were subject to interruptions, up to “8 to 10 times per day.” (Doc. 192-1 at 68). For example, one plaintiff states his truck “would often arrive at the shipper while [he] was supposed to be asleep.” (Doc. 192-1 at 19). Upon arriving, he had to leave the sleeper berth and “accompany [his] mentor to the shipping office.” (Doc. 192-1 at 19). Another plaintiff explains his “truck would often receive alerts on the truck's electronic ‘Qualcomm' system that required [his] prompt response.” (Doc. 192-1 at 31). Those alerts required he “get out of the sleeper berth and get on the phone.” (Doc. 192-1 at 31). And another plaintiff recounts a situation where he was in the sleeper berth when his truck needed a repair. That required he leave the sleeper berth and complete the repair. (Doc. 192-1 at 47).

         Plaintiffs' “sleeper berth” time was the time Plaintiffs used to study and prepare for the final tests. (Doc. 192-1 at 43, 50). Swift concedes Plaintiffs spent time studying while they were logged as “sleeper berth.” (Doc. 191 at 32). Swift believes such studying was not “compensable” but Swift's own witnesses were not completely clear when describing why studying time was not compensable. One Swift employee witness explained that whether trainees would be compensated for studying was “totally up to [the trainees].” When trainees were “sitting up in front studying, they [could] be on duty not driving.” In that situation, the trainees would be paid for their time. “But when [trainees were] in the sleeper berth, they do as they wish when they're in the back; that's their time, ” meaning studying time in the sleeper berth was not compensable. (Doc. 185-2 at 5). Another Swift employee witness explained a trainee should be “on duty” when he was “using [Swift's training materials] book to reference something [he was] doing . . . as a work function.” But trainees “taking their personal time . . . to read through the [training materials]” was not compensable. (Doc. 159-2 at 166-167).

         C. Procedural History

         In December 2015, Plaintiff Pamela Julian filed the present suit on behalf of herself and other individuals who had gone through Swift's three days of orientation and behind-the-wheel training. According to the complaint, Swift's compensation scheme resulted in trainees receiving less than minimum wage for all hours worked. After Swift answered the complaint, the Court certified a collective action covering all individuals “currently or formerly employed by Swift as a Trainee . . . at any time from January 6, 2014 to the present.” (Doc. 103 at 10). Notice was disseminated and, eventually, over 10, 000 individuals filed consents to join the collective action. (Doc. 140 at 2). In August 2018, Plaintiffs and Swift filed cross-motions for summary judgment.

         ANALYSIS

         Plaintiffs believe the Fair Labor Standards Act (“FLSA”) entitles them to pay for the first day of orientation, any hours in excess of eight they were required to log as “sleeper berth, ” time spent studying or performing other work while logged as “sleeper berth, ” and short breaks of 5 to 20 minutes that were logged as “off duty.”^[5] The Court will address each contention in turn.

         I. First Day of Orientation

         Swift seeks summary judgment that Plaintiffs were not entitled to pay for the first day of orientation. Swift offers two arguments. First, job applicants are not entitled to be paid and Swift did not hire anyone until the end of the first day of orientation. (Doc. 157 at 19). Second, individuals need not be compensated for certain types of “training” and the first day of orientation qualified as a non-compensable type of training. (Doc. 157 at 20). Based on the present briefing, there are genuine disputes of material fact that prevent Swift from prevailing on either argument.

         A. When Individuals Were Hired

         The text of the FLSA is of little help for determining when, exactly, Plaintiffs were hired. Under the FLSA, an employer must pay minimum wage to each “employee.” 29 U.S.C. § 206(a). The FLSA defines “employee” as “any individual employed by an employer” and the term “employ” is defined as “to suffer or permit to work.” 29 U.S.C. §203(e)(1); 29 U.S.C. § 203(g). When applying these vague definitions, courts have adopted “expansive interpretation[s]” meant “to effectuate the broad remedial purposes of the [FLSA].” Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 754 (9th Cir. 1979). Accordingly, “whether an employer-employee relationship exists does not depend on isolated factors but rather upon the circumstances of the whole activity.” Boucher v. Shaw, 572 F.3d 1087, 1091 (9th Cir. 2009). In other words, “economic reality rather than technical concepts” is what matters for determining whether an individual was an “employee” entitled to compensation. Hale v. State of Ariz., 993 F.2d 1387, 1393 (9th Cir. 1993).

         The Ninth Circuit has outlined factors a court might use in some contexts when deciding if an employment relationship existed. For example, the Ninth Circuit believes six factors are helpful for differentiating between employees and independent contractors. See, e.g., Real, 603 F.2d at 754 (9th Cir. 1979) (listing six factors). Those factors, however, do not necessarily translate to other situations. Hence, in a case involving labor by prisoners, the Ninth Circuit held the six factors did not provide a “useful framework” because the dispute was not whether the individuals were employees or independent contractors. Hale v. State of Ariz., 993 F.2d 1387, 1394 (9th Cir. 1993). Rather than relying on the six factors, the Ninth Circuit looked to the “totality of the circumstances” and concluded the “relationship between prison and prisoner” was not “an employer-employee relationship as contemplated by the FLSA.” Id. at 1395.

         The Ninth Circuit does not appear to have identified a particular test for determining when an employment relationship comes into existence for purposes of the FLSA.^[6] But the Ninth Circuit came close to doing so in an unpublished decision involving a situation very similar to the present case. In Nance v. May Trucking Company, 685 Fed.Appx. 602 (2017), the plaintiffs were truck drivers who were suing their employer for unpaid wages. One of the plaintiffs' claims was that they had not been paid for attending a three-day orientation program. As described by the panel, the first day of orientation consisted of “driving and skills tests.” Id. at 605. The second and third days consisted of “tax and administrative paperwork in a classroom setting” as well as training on “safety policies and regulatory standards.” Id. The employer described the three days as its “method for ascertaining its drivers' training and abilities, ” apparently arguing the plaintiffs were not hired prior to the completion of the three days. Id. The panel accepted the employer's view that the individuals were not hired before completion of the orientation.

         In the panel's view, the three-day orientation program was “a job application process, albeit a lengthy one.” Id. at 604-05. That conclusion was based on two aspects of the orientation program. First, the plaintiffs attended “without expectation of pay other than travel and lodging expenses.” Id. at 605. Second, the plaintiffs were “not guaranteed work upon completion of the program.” Id. While the relevant inquiry undoubtedly was the “economic reality” of the situation, the panel apparently concluded “expectation of pay” and “guarantee of work” were the most relevant factors for determining when the plaintiffs were hired. Applying those two factors here, and looking to other evidence indicative of economic reality, there is a genuine dispute of fact when Plaintiffs were hired.

         Addressing first the issue of expectation of pay, Swift argues there must be an “express or implied” agreement for compensation.^[7] (Doc. 197 at 9). There is evidence Swift promised at least some plaintiffs they would be paid for all three days of orientation. While Swift believes that evidence should be ignored, Swift has not offered a viable basis for doing so. Accordingly, unlike the plaintiffs in Nance, some plaintiffs in this case expected to be paid.

         As for being guaranteed a job at the end of the orientation, Swift has not offered evidence regarding the number of individuals, if any, who attended the first day but were then told not to return for the second and third. The only available evidence, viewed in the light most favorable to Plaintiffs, indicates individuals attended the orientation expecting a job at the end. That evidence includes the email containing instructions for attending the orientation. The email advised the recipient to bring enough clothing to the orientation so he could immediately begin the behind-the-wheel training. (Doc. 192-1 at 34). The email also threatened the recipient might be “terminated” if he did not comply with Swift's policies. (Doc. 192-1 at 34). Swift has not explained how a mere job applicant could be “terminated” if he did not comply with Swift's policies.

         Further evidence that Swift promised jobs at the end of orientation comes from the training program Swift operated for individuals to obtain their commercial driver's license. That program, known as “Swift Academy, ” included a “tuition program” that was “designed to help [an individual] earn [his] Class A CDL with nearly no upfront cost.” (Doc. 192-7 at 6). The tuition program provided Swift would “cover the upfront cost of tuition” and individuals would then repay the tuition “through installments out of [their] paycheck[s]” when they began “earning . . . income as a Swift Driver.” (Doc. 192-7 at 6). In light of this structure, individuals could have believed they were guaranteed a job with Swift once they completed “Swift Academy.” In that situation, a graduate of “Swift Academy” likely did not think of himself as a job applicant at the time he attended orientation.

         The promise of compensation and the expectation of permanent employment are likely sufficient to defeat Swift's motion for summary judgment regarding the first day of orientation. But even beyond those considerations, other evidence supports the view that the first day of orientation was not merely part of the job application process.

         According to Swift, the first day was devoted to ensuring individuals were qualified to work as drivers. Some individuals, however, were not required to take a physical or complete the road test. And while every individual was required to take a drug test, the drug testing form itself was ambiguous regarding the employment relationship at that time. According to the drug testing form, Swift planned to use the results “in connection with making a decision concerning my application for employment and/or a decision concerning my continued employment at Swift.” (Doc. 192-13 at 6) (emphasis added). An individual filling out that form could reasonably conclude he had already been hired.

         One of Swift's internal manuals also indicated individuals were hired as of the first day of orientation. That manual provided the following explanation why some individuals were not required to complete a road test during orientation: “Newly hired inexperienced drivers who have successfully completed a formal truck driver training program to obtain their CDL within the previous 91 days or less are not required to take a [road test] during orientation.”^[8] (Doc. 192-6 at 4) (emphasis added). Swift does not explain why this manual referred to “[n]ewly hired” individuals if, at the relevant time, the individuals were merely job applicants.

         In sum, the evidence viewed in the light most favorable to Plaintiffs establishes there are genuine disputes of material fact regarding whether Plaintiffs were promised compensation, whether Plaintiffs were guaranteed a job, and how Swift itself viewed Plaintiffs as of the first day of orientation. Swift's first argument in support of not paying for the first day of orientation must be rejected.

         B. First Day of Orientation as Non-Compensable Training

         In addition to arguing individuals were not hired until the end of the first day of orientation, Swift offers an alternative argument that the first day of orientation consisted only of activities that should be classified as non-compensable “training.” Swift claims the first day of orientation was equivalent to the situation presented in the seminal Supreme Court case involving unpaid trainees, Walling v. Portland Terminal Co., 330 U.S. 148 (1947).

         As recently described by the Ninth Circuit, Portland Terminal involved a suit by the Department of Labor “against a railroad for failing to pay its trainees minimum wages under the FLSA.” Benjamin v. B & H Education, Inc., 877 F.3d 1139, 1143 (9th Cir. 2017). “The railroad provided a week-long practical training course to the trainees, who were all prospective yard brakemen.” Id. The trainees were not paid for attending the course and only after completing that course were the trainees “certified” such that they could be hired by the railroad. Id. The Supreme Court concluded the trainees did not qualify as employees of the railroad based on a “number of factors” such as the trainees “did not displace regular employees, ” their work “sometimes impeded the railroad's business, ” and the trainees “never expected remuneration for the ...