Julian v. Swift Transportation Inc.

          ORDER

          ROSLYN O. SILVER UNITED STATES DISTRICT JUDGE.

         Plaintiffs believe they should have been paid for attending the first day of a three-day orientation to become drivers for Swift Transportation Co. of Arizona, LLC. Plaintiffs also believe they should have been paid for the time they spent studying during their behind-the-wheel training period. There are genuine disputes of material fact whether Swift should have paid Plaintiffs for the first day of orientation but Plaintiffs are entitled to summary judgment that the time they spent studying should have been compensated.

         BACKGROUND

         Individuals wishing to work as drivers for Swift submitted applications online. If Swift “approved” an application, it contacted the individual and told him to report to a Swift terminal for a three-day orientation. Swift paid for the individual's travel to the terminal and paid for the individual's hotel room during the orientation. When telling an individual where to report, Swift also told him to bring extra clothing and “[b]e prepared to leave from orientation for up to 6 weeks for training with mentor.” Swift warned the individuals attending the orientation that they might be “terminated and sent home immediately” if they did not comply with all of Swift's policies. Swift promised to pay some individuals for all three days but did not make this promise to everyone. Thus, while some individuals arrived at the orientation expecting to be paid for all three days, others arrived expecting they would be paid only for the second and third days.

         The parties disagree on what occurred during the first day of orientation. According to Swift, “most” of the first day was “spent on drug tests, driving tests, and medical exams.” Those tests were necessary to ensure the individuals were legally qualified to work as drivers. (Doc. 216 at 12). Plaintiffs agree some time was spent on those tasks but assert the majority of the first day was spent on “Swift-specific” information, such as Swift's “Expectations & Code of Conduct, ” the meaning of Swift's motto, and the role drivers play in accomplishing Swift's goals. (Doc. 213 at 11). There are genuine disagreements about what occurred on the first day but, viewed in the light most favorable to Swift, a reasonable jury could conclude the first day was primarily focused on ensuring the individuals were qualified to work as drivers.

         The record does not establish whether Swift promised individuals long-term employment prior to the first day of orientation. In support of their view that individuals attended orientation believing it was the first stage of long-term employment, Plaintiffs point to Swift's communications with the individuals before they arrived at orientation. Those communications included a warning that non-compliance with Swift's policies might lead to “termination, ” seemingly indicating the individuals had already been hired.^[1]In addition, some individuals attending the first day had recently completed the “Swift Academy” to obtain their commercial driver's license. Those individuals were expecting to have the tuition for that program taken out of their subsequent paychecks. (Doc. 207 at 12). Thus, those individuals likely expected the orientation was simply the start of permanent employment. The parties have not, however, identified the formal promises, if any, made to those individuals nor have the parties identified the percentage of individuals attending the first day of orientation who came from the Swift Academy.

         In support of its view that the individuals attended orientation without expectation of long-term employment Swift points to a communication where Swift informed individuals prior to the first day that it held “new applicants” to the same standards it held its employees. Swift cites that reference to “applicants” as evidence it did not view the attendees at the first day as already employed by Swift. Swift also points to evidence that “approximately 25-30% of those who start Swift's orientation are not hired.” (Doc. 216-4 at 2). Swift admits it “hired” the individuals as of the second day of orientation. Therefore, up to 30% of the individuals who reported for the first day of orientation were immediately disqualified and did not attend the second day of orientation. The fact that 30% of the individuals did not progress to the second day supports Swift's position that the first day was a continuation of the application process.

         Once Plaintiffs completed their three-day orientation, they began their behind-the-wheel training with a mentor. During that training, Plaintiffs were expected to study materials provided by Swift to prepare for three Swift-specific tests. Those tests were administered at the end of the behind-the-wheel training and Plaintiffs had to obtain passing scores to remain working for Swift. It is undisputed that Swift instructed Plaintiffs “that during their time on the road, whenever legally possible, they must be on duty, not driving and engaged in the learning process; actively studying.” (Doc. 216-5 at 16). Swift explains its intent was for Plaintiffs to study only during “paid ‘on duty' time.” (Doc. 216-5 at 17). Swift states it never instructed Plaintiffs to study while they were logged as “sleeper berth.” There is admissible evidence, however, that Plaintiffs studied while logged as “sleeper berth.” (Doc. 159-2 at 110-111). And there is admissible evidence that Plaintiffs' mentors knew such studying was taking place. (Doc. 159-2 at 110-111). Accordingly, based on the parties' briefing, the present disagreement is not whether Plaintiffs studied while logged as “sleeper berth, ” but whether Plaintiff should have been paid for that time.

         ANALYSIS

         Plaintiffs believe they should have been paid for the first day of orientation because, in their view, the first day of orientation was devoted almost entirely to Swift-specific information. Plaintiffs also argue they should have been paid for the time they spent studying while logged as “sleeper berth” because the studying was a necessary part of their job and Swift either knew or should have known that they were studying while logged as “sleeper berth.” Swift believes both of these issues should be resolved via a trial.

         I. There are Disputes of Fact When Plaintiffs Became Employees

         Determining when Plaintiffs became “employees”-and thereby entitled to be paid under the Fair Labor Standards Act (“FLSA”)-requires an evaluation of the “economic reality” of the parties' relationship as of the first day of orientation. Hale v. State of Ariz., 993 F.2d 1387, 1393 (9th Cir. 1993). As explained in the prior Order, the Ninth Circuit has used different multi-factor tests for determining employment status. (Doc. 207 at 10). But an unpublished Ninth Circuit decision addressing a factual scenario very similar to the present one appears to be the best guidance available.

         In Nance v. May Trucking Company, 685 Fed.Appx. 602 (9th Cir. 2017), the Ninth Circuit addressed whether truck drivers should have been compensated for attending “a mandatory, three-day, orientation program.” Id. at 604. In the panel's view, the crucial facts for resolving that issue were that the drivers attended “the three-day orientation without expectation of pay” and the drivers were “not guaranteed work upon completion of the program.” Id. Based on those facts, the orientation was the trucking company's “method of ascertaining its drivers' training and abilities.” Id. Thus, the “orientation program [was] a job application process” and the drivers were not entitled to pay. Id. at 604-05.

         Focusing on the same two factors of “expectation of pay” and “job prospects upon completion, ” there are genuine disputes of fact regarding the FLSA's application to the first day of orientation. Regarding Plaintiffs' “expectation of pay, ” some Plaintiffs were promised pay but others were not. In fact, some Plaintiffs attended the first day knowing they would not be paid. (Doc. 216-2 at 6). The present record does not explain what attendees generally believed regarding their entitlement to pay. In other words, the present record does not disclose whether each side has cherry-picked individuals who were promised pay or individuals who knew they would not be paid. None of the individuals have been examined and cross-examined in front of a fact-finder regarding their expectations. And because there are more than 10, 000 Plaintiffs, reliance on a cold record to determine the veracity of a few individuals' expectations is especially inappropriate.

         As for “job prospects upon completion, ” the evidence viewed in the light most favorable to Swift shows there are also disputes of material fact regarding those expectations. As explored in the Court's prior Order, some of Swift's communications with Plaintiffs can be read as indicating that attendance at the orientation was merely the first day of long-term employment. But those communications did not explicitly promise long-term employment and a reasonable jury might conclude those communications did not implicitly promise such employment. In addition, up to 30% of the individuals who attended the first day of orientation were immediately dismissed. If accurate, that supports Swift view that the first day was primarily aimed at determining individuals' eligibility to work and was not merely the first day of expected long-term employment.

         Viewed in the light most favorable to Swift, there are genuine disputes of fact regarding the two factors the court of appeals invoked in Nance. Beyond those two factors, there are also disputes of fact regarding other aspects of the first day that prevent summary judgment. For example, there are disputes of fact regarding what happened on the first day. Swift had a model schedule for the first day but the actual contents of that day appears to have varied from terminal to terminal. (Doc. 216-5 at 11). Some Plaintiffs described the first day of orientation as involving no activities beyond basic qualification tests.^[2] In contrast, other Plaintiffs testified the first day largely tracked Swift's model schedule.^[3] A fact-finder must determine what actually occurred on the first day and whether the “economic reality” of that day is that of employee-employer or applicant-employer.

         The uncertainty regarding what occurred on the first day, together with the uncertainty regarding Plaintiffs' expectations regarding pay and long-term employment, means the Court cannot resolve the compensability of the first day as a matter of law. This aspect of Plaintiffs' claim must go to trial.

         II. Studying Was Compensable

         Plaintiffs believe they should have been paid for the time they were logged as “sleeper berth” but were studying in preparation for the Swift-specific final tests. It is undisputed Swift, and Plaintiffs' mentors, stressed to Plaintiffs the importance of studying and preparing for the final tests. (Doc. 216-2 at 174). It is also undisputed some Plaintiffs studied during the behind-the-wheel training, including while they were logged as “sleeper berth.” Swift did not require Plaintiffs spend a specific amount of time studying but neither did Swift prohibit Plaintiffs from studying while they were logged as “sleeper berth.”

         In the previous Order the Court concluded the correct approach to Plaintiffs' studying time was to evaluate the studying ...