United States District Court, D. Arizona
Honorable Roslyn O. Silver, Senior United States District
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.
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
“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. At any given
time, Swift has more than 1, 000 individuals participating in
its driver training program. (Doc. 157 at 9).
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.
Three Days of Orientation
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.
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).
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.” (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).
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.
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.
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.
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).
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. (Doc. 159-2 at 35, 46).
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
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.”
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.
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).
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).
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.” (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).
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).
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).
“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
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.
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.” The Court will address each contention
First Day of Orientation
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.
When Individuals Were Hired
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).
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.
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. 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
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.
first the issue of expectation of pay, Swift argues there
must be an “express or implied” agreement for
compensation. (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
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
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.
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.
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.
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.” (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.
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.
First Day of Orientation as Non-Compensable Training
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
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 ...