United States District Court, D. Arizona
O. SILVER UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.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.
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
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.
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.
There are Disputes of Fact When Plaintiffs Became
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.
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.
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.
“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.
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. In contrast,
other Plaintiffs testified the first day largely tracked
Swift's model schedule. 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.
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.
Studying Was Compensable
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
previous Order the Court concluded the correct approach to
Plaintiffs' studying time was to evaluate the studying