Gilmer et al v. Alameda-Contra Costa Transit District

Filing 237


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 BRIAN GILMER; ANTHONY RODGERS; DELORIS WILKINS; JERRY WILLIAMS; and RAYMOND ROBBINS, 6 Plaintiffs, 7 8 9 United States District Court For the Northern District of California 10 No. C 08-05186 CW ORDER ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT (Docket Nos. 209 and 216) v. ALAMEDA-CONTRA COSTA TRANSIT DISTRICT, Defendant. ________________________________/ 11 12 Plaintiffs and their opt-in class are bus drivers who have 13 brought a collective action, pursuant to the Fair Labor Standards 14 Act (FLSA), against their employer, Defendant Alameda-Contra Costa 15 Transit District (AC Transit). 16 conditional certification of the collective action. 17 The parties stipulated to In doing so, AC Transit reserved the right to challenge the certification of 18 the collective action at a later time. On January 15, 2010, this 19 20 Court granted summary judgment for Plaintiffs on the issue of 21 liability. Plaintiffs now move for partial summary judgment, 22 contending that there is no material dispute as to various issues 23 related to damages. 24 cross-moves to decertify the collective action and for summary 25 judgment adjudication of certain aspects of the damages Docket No. 209. 26 calculation. 27 28 Docket No. 216. AC Transit opposes and BACKGROUND 1 2 3 I. The Claims AC Transit operates a number of bus routes throughout Alameda 4 and Contra Costa counties. 5 pay are set forth in a collective bargaining agreement (CBA) 6 Bus drivers’ terms of employment and entered into by AC Transit and the Amalgamated Transit Union, 7 Local 192, AFL-CIO. Drivers do not submit time cards or punch 8 9 time clocks to keep track of their hours worked. The time drivers United States District Court For the Northern District of California 10 spend driving buses is tracked by an electronic system. 11 At issue in this case is travel time of two types. 12 is "start-end" travel time: the time spent returning from the 13 ending point of a daily assignment back to the starting point. 14 Section 54.01 of the CBA defines start-end travel time as The first 15 resulting from drivers “reporting for duty or checking in at the 16 home terminal or at some other place differing from the relief 17 18 point by reasons of the District’s requirement to do so." Philip 19 Monrad Declaration,1 Ex. K, CBA § 54.01. 20 at different locations than where they began, irrespective of 21 whether they actually return to their starting point at the end of 22 the day, they are paid at their straight time rate for the If drivers’ shifts end 23 "scheduled running time" that it would take them to return to the 24 25 26 27 28 starting point on public transit (i.e. a different bus or BART). All ending points are located near bus stops or BART stations. 1 Unless otherwise indicated, the Monrad Declaration is the declaration submitted on May 19, 2011. 2 1 The "scheduled running time" is the time published by AC Transit 2 or BART that it takes to travel on public transit from one 3 location to another during peak travel times, which are the 4 morning and evening rush hours. 5 walking to the bus stop or BART station, waiting for the bus or 6 It does not include time spent BART or transferring between buses or BART trains. 7 The second type of travel time at issue is "split-shift" 8 9 travel time. Section 54.02 of the CBA defines split-shift travel United States District Court For the Northern District of California 10 time as travel time resulting from "unpaid breaks in split runs 11 where the second part of the run picks up at a point different 12 from where the first part leaves off." 13 § 54.02. 14 it is paid as regular time worked, including any time spent in Monrad Dec., Ex. K, CBA When the break between parts is sixty minutes or less, 15 travel. Id. at § 62. Plaintiffs’ claims regarding split-shift 16 travel time relate to travel time between the ending point of the 17 18 first part of a split run and the starting point of the second 19 part of the run, when the break between the two parts is more than 20 sixty minutes. 21 scheduled running time for travel between the end point of the 22 first run and the starting point of the second run. 23 Drivers are paid straight time rates for the About twenty- five percent of all drivers’ runs are split, with breaks in excess 24 of sixty minutes. When the Court refers to split-shift travel 25 26 27 time below it refers to split-shift travel time with breaks in excess of sixty minutes, unless otherwise noted. 28 3 1 AC Transit does not regulate how drivers spend their time 2 between shifts or how they travel between the ending point of the 3 first part and the starting point of the second part. 4 5 6 On June 11, 2008 the CBA was modified to add section 54.04, providing that start-end travel time and split-shift travel time, where there is an unpaid break of more than sixty minutes in 7 between the runs, would continue to be paid at straight time 8 9 "except when such travel causes a driver’s total work time to United States District Court For the Northern District of California 10 exceed 8 hours per day or 40 hours per week, in which case such 11 overtime travel shall be compensated at straight time, plus 15% as 12 an overtime premium." 13 modification, AC Transit has paid Plaintiffs a fifteen percent 14 overtime premium for start-end and split-shift travel time when Monrad Dec., Ex. KK at 4:3-13. Since this 15 this travel causes the total hours worked to exceed eight hours 16 per day or forty hours per week. AC Transit does not pay a 17 18 premium of time and one-half based on this time. 19 Plaintiffs argue that they are entitled to overtime pay at 20 the rate of time and one-half of their regular rate of pay, the 21 rate the FLSA requires, based on the "scheduled running time" of 22 start-end travel time and actual split-shift travel time that 23 results in work time in excess of forty hours per week. 24 Plaintiffs seek damages for the difference between what they were 25 26 27 actually paid for start-end and split-shift travel time and what they should have been paid as required by the FLSA. 28 4 1 2 II. Background of the Dispute Since at least 2003, Plaintiffs, the union and AC Transit 3 have engaged in communications, negotiations, arbitration and 4 lawsuits to address AC Transit's compliance with contractual and 5 statutory wage and hour requirements, including the FLSA overtime 6 dispute at issue in this action. See Monrad Dec. at ¶ 14. On 7 August 14, 2004, the union and four named bus driver plaintiffs 8 9 (who are four of the five named Plaintiffs here) filed in Alameda United States District Court For the Northern District of California 10 County Superior Court a Class Action Complaint for Breach of 11 Contract, Violation of California Labor Code and IWC Wage Orders 12 and Fair Labor Standards Act for Wages and Compensation Earned, 13 But Not Paid. 14 Plaintiff's counsel here. Id. at ¶ 15. The plaintiffs were represented by Following a September 14, 2004 15 agreement with AC Transit to dismiss the class action without 16 prejudice and toll the plaintiffs' claims, the plaintiffs 17 18 submitted to AC Transit a Position Statement in a further attempt 19 to resolve the claims informally. 20 2009 Declaration by Philip Monrad (10/1/09 Monrad Dec.) at ¶ 18, 21 Ex. 17. 22 start-end travel time and split-shift travel time were compensable 23 Id. at ¶ 16, Ex. M; October 1, The statement explained why, in the plaintiffs' view, "hours worked" subject to FLSA requirements. 24 On March 18, 2005, the plaintiffs' counsel wrote to AC 25 26 Transit's counsel, including its Chief Labor Counsel Marcia Hoyt, 27 General Counsel Kenneth Scheidg and outside counsel Michael Loeb, 28 of Bingham McCutchen, LLP. Monrad Dec., Ex. W. 5 In the letter the 1 plaintiffs' counsel insisted that AC Transit owed split-shift 2 travel time pay at the overtime rate of time and one-half of the 3 straight time pay rate when that travel time was in excess of 4 forty hours per week.2 5 The letter acknowledged that AC Transit relied on United Transp. Union Local 1745 v. City of Albuquerque, 6 178 F.3d 1109 (10th Cir. 1999), in defending the legality of its 7 8 pay practices, and challenged that reliance. On December 27, 2005, the parties in the 2004 state court 10 United States District Court For the Northern District of California 9 class action entered into a Settlement Agreement as to certain 11 claims and provided a framework for resolving the remaining 12 claims, including claims for overtime pay under the FLSA. 13 Dec. at ¶ 17. 14 Monrad In the 2005 agreement, the parties agreed "to submit their claims for breach of the collective bargaining 15 agreement to binding arbitration before Arbitrator R. Douglas 16 17 Collins on January 18 and 25, 2006." Id., Ex. N at 1-2. The 18 parties further agreed that the issue presented for arbitration 19 was 20 Has A-C Transit District violated Section 54.0 of the Collective Bargaining Agreement by failing to pay travel time to bus operators who drive regular scheduled runs which result in different starting and ending points; and if so, what is the appropriate remedy? 21 22 23 24 25 26 27 28 2 The substantive argument in the letter was limited to AC Transit's liability for split-shift travel time, but at the letter's conclusion, counsel for the plaintiffs reasserted that AC Transit was also liable for time and one-half overtime pay for start-end travel time. 6 1 Id. 2 "Report time & Turn-In time and drug testing time claims," the 3 plaintiffs retained their "right to refile, serve and litigate 4 their statutory claims after receipt of Arbitrator Collins' 5 award," and a tolling agreement continued to apply to those 6 The 2005 Settlement Agreement also provided that, except for claims.3 Id. The plaintiffs and AC Transit held a one-day 7 8 9 arbitration hearing before Arbitrator Collins on January 18, 2006. On August 7, 2006, Arbitrator Collins issued his Opinion and United States District Court For the Northern District of California 10 Award resolving the January 2006 arbitration, finding that AC 11 Transit had violated section 54.0 of the CBA by failing to pay bus 12 drivers anything for start-end and split-shift travel time. 13 Monrad Dec., Ex. R. 14 Arbitrator Collins ordered AC Transit to pay start-end and split-shift travel time, retroactive to October 24, 15 2003, and henceforth. Id. at 15. The determination of which 16 17 18 employees were entitled to retroactive pay and the computation of the amounts owed was remanded to the parties. Id. 19 20 21 22 23 24 25 26 27 28 3 The 2005 Settlement Agreement was not submitted for court approval. See Monrad Dec. at ¶ 17-18. However, AC Transit wished to have judicial confirmation of the 2005 Settlement Agreement. Id. at ¶ 18. To that end, the plaintiffs in the 2004 state court class action, represented by the same counsel, filed a second lawsuit on behalf of themselves and the same class as before, on April 3, 2006, again in Alameda County Superior Court. Id. At AC Transit's request, on June 13, 2006, the parties executed a "Settlement Agreement and Release of Claims," setting forth the same terms as the 2005 Settlement Agreement, and submitted it to the Alameda County Superior Court with a request for judicial approval. Id.; Monrad Dec., Ex. O. The 2006 Settlement Agreement was approved by the court on November 8, 2006. Monrad Dec., Exs. O, P. 7 1 After the August 2006 arbitration award was issued, the 2 plaintiffs and AC Transit met and conferred regarding how AC 3 Transit would implement the requirements of the award. 4 Monrad Dec. at ¶ 29. 5 made lump sum payments to drivers, but the plaintiffs disputed AC 6 10/1/09 In approximately September 2007, AC Transit Transit's calculations. 7 In addition, counsel for the plaintiffs continued to assert 8 9 AC Transit's legal obligation to include start-end and split-shift United States District Court For the Northern District of California 10 travel time as part of its calculation of overtime pay under the 11 FLSA. 12 letter to Ms. Hoyt, asserting that AC Transit's failure to provide 13 time and one-half overtime pay for start-end and split-shift 14 travel time violated the FLSA. On September 29, 2006, counsel for the plaintiffs sent a Monrad Dec., Ex. T. 15 On April 10, 2007, AC Transit, the union and the four named 16 plaintiffs entered into a "Settlement Agreement Regarding Travel 17 18 Time." 19 Settlement Agreement acknowledged Arbitrator Collins' August 7, 20 2006 Award and stated that "the Parties have met and conferred 21 regarding implementation of this Arbitration Award, and also 22 Plaintiffs' remaining statutory claims relating to travel time." 23 Monrad Decl., Ex. S. Id. at 2. The general recitals of the 2007 The parties agreed to resolve the implementation of the 24 Arbitration Award and the plaintiffs' remaining statutory claims 25 26 27 in one integrated document. The agreement fully implemented the portion of the arbitrator's award ordering AC Transit to pay 28 8 1 retroactive back pay from October 24, 2003 through August 7, 2006. 2 Under the heading "Compromise & Release," the agreement stated, 3 This Settlement compromises and releases any and all claims arising from Plaintiffs' allegation that the District failed to pay travel time to bus drivers who drive regular scheduled runs which result in different starting and ending points, including different portions of split runs, in settlement of Plaintiffs' FLSA and IWC Wage Order 9 claims regarding such travel time, for the period from September 1, 2001 through and including (but not beyond) August 7, 2006. Plaintiffs preserve their right to pursue statutory travel time claims for any period after August 7, 2006. 4 5 6 7 8 9 United States District Court For the Northern District of California 10 Id. 11 After the 2007 Settlement Agreement, the plaintiffs continued 12 13 to assert their position that they were entitled to overtime pay 14 for travel time in accordance with the FLSA. 15 counsel for the plaintiffs wrote to Ms. Hoyt, reiterating the view 16 that start-end and split-shift travel time must be counted toward 17 overtime as a matter of non-negotiable right under the FLSA. 18 Monrad Dec., Exs. U. 19 On June 17, 2007, The current five named Plaintiffs filed the present action on 20 November 17, 2008. On January 15, 2010, this Court held, on the 21 22 23 24 25 26 27 parties' cross motions for summary judgment, Start-end and split-shift travel time is compensable as hours worked under the FLSA and must be included in calculating hours worked for overtime purposes. Start-end travel time shall be calculated based on scheduled running time; and split-shift travel shall be calculated based on actual travel time, which will be determined at the damages phase of this action. Order at 25. 28 9 1 Plaintiffs retained the Litigation and Forensic Consulting 2 Services Group of Hemming Morse, Inc., to produce an expert report 3 calculating damages. 4 work history data, provided electronically by AC Transit to 5 Plaintiffs, for 1,316 of the 1,360 members of the Plaintiff class 6 Plaintiff's expert analyzed the payroll and for the period between November 17, 2005 and October 31, 2010. 7 Declaration of David Breshears, ¶ 3. AC Transit had not yet 8 9 provided data for fifteen of the 1,360 class members. To United States District Court For the Northern District of California 10 calculate the damages amounts, the expert, pursuant to Plaintiffs' 11 counsel's instructions, used data based on twenty-four different 12 types of earnings. 13 14 Id. at ¶ 5, Ex. 2 at 17. The present summary judgment motions raise various issues related to damages. 15 LEGAL STANDARD 16 Summary judgment is properly granted when no genuine and 17 18 disputed issues of material fact remain, and when, viewing the 19 evidence most favorably to the non-moving party, the movant is 20 clearly entitled to prevail as a matter of law. 21 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 22 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 23 Fed. R. Civ. P. 1987). 24 The moving party bears the burden of showing that there is no 25 26 material factual dispute. Therefore, the court must regard as 27 true the opposing party’s evidence, if it is supported by 28 affidavits or other evidentiary material. 10 Celotex, 477 U.S. at 1 324; Eisenberg, 815 F.2d 1285, 1289 (9th Cir. 1987). 2 must draw all reasonable inferences in favor of the party against 3 whom summary judgment is sought. 4 Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. 5 Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 6 The court Matsushita Elec. Indus. Co. v. 1991). 7 Material facts which would preclude entry of summary judgment 8 9 are those which, under applicable substantive law, may affect the United States District Court For the Northern District of California 10 outcome of the case. The substantive law will identify which 11 facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 12 242, 248 (1986). 13 14 DISCUSSION I. Motion to Decertify 15 The FLSA authorizes workers to sue for unpaid overtime wages 16 on their own behalf and on behalf of "other employees similarly 17 18 situated." 19 under Federal Rule of Civil Procedure Rule 23, collective actions 20 brought under the FLSA require that each individual member “opt 21 in" by filing a written consent. 22 23 29 U.S.C. § 216(b). Unlike class actions brought See id. The FLSA does not define "similarly situated," nor has the Ninth Circuit defined it. Although courts have used various 24 approaches to determine whether plaintiffs are "similarly 25 26 situated," district courts in this circuit have employed the ad 27 hoc, two-tiered approach. See Wynn v. National Broadcasting Co., 28 Inc., 234 F. Supp. 2d 1067, 1082 (C.D. Cal. 2002); see also 11 1 Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102-03 2 (10th Cir. 2001) (discussing three different approaches district 3 courts have used to determine whether potential plaintiffs are 4 “similarly situated" and finding that the ad hoc approach is 5 arguably the best of the three approaches); Hipp v. Liberty Nat. 6 Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001) (finding the 7 two-tiered approach to certification of § 216(b) opt-in classes to 8 9 United States District Court For the Northern District of California 10 be an effective tool for district courts to use). According to this ad hoc framework, at the initial notice 11 stage, for purposes of conditional certification, the court 12 requires little more than substantial allegations, supported by 13 declarations or discovery, that "the putative class members were 14 together the victims of a single decision, policy, or plan." 15 Wynn, 234 F. Supp. 2d at 1082. As noted earlier, the parties in 16 this action stipulated to conditional certification of the 17 18 collective action. 19 largely complete, generally on a motion for decertification by the 20 defendant. 21 (N.D. Cal. 2009). 22 "including the disparate factual and employment settings of the 23 The second stage occurs after discovery is Lewis v. Wells Fargo & Co., 669 F. Supp. 2d 1124, 1127 Then the court weighs several factors, individual plaintiffs; the various defenses available to the 24 defendant which appear to be individual to each plaintiff; 25 26 27 fairness and procedural considerations; and whether the plaintiffs made any required filings before instituting suit." 28 12 Id. (citing 1 Thiessen, 267 F.3d at 1102-03). 2 liability has been decided. 3 Ordinarily this occurs before AC Transit argues that disparate factual circumstances exist 4 due to evidence that certain opt-in Plaintiffs never worked more 5 than forty hours in a week driving buses and may not have incurred 6 damages resulting from AC Transit's overtime compensation 7 policies. In addition, certain drivers did not engage in split- 8 9 shift travel, and others did not participate in start-end travel. United States District Court For the Northern District of California 10 However, the Court has already determined that AC Transit's 11 overtime policy with respect to start-end and split shift travel 12 violated the FLSA. 13 simply relate to damages. 14 justify decertification of this collective action. The differences that AC Transit has identified Variations in damages awards do not See Local 15 Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas 16 Sands, Inc., 244 F.3d 1152, 1163 (9th Cir. 2001) (holding that 17 18 variations in damages for individual class members and proof as to 19 whether they worked on a certain day do not defeat predominance 20 under Rule 23(b)(3)); see also Blackie v. Barrack, 524 F.2d 891, 21 905 (9th Cir. 1975) (holding, in the context of a securities class 22 action, that the "amount of damages is invariably an individual 23 question and does not defeat class action treatment" under Rule 24 23's test for the predominance of common issues over individual 25 26 questions of damages). 27 Furthermore, the drivers' use of different modes of 28 transportation and variations in travel patterns, which would 13 1 affect the amount of Plaintiffs' actual travel time on a given 2 day, do not support decertification. 3 devised a methodology for calculating damages for each opt-in 4 Plaintiff based on AC Transit's detailed records of Plaintiffs' 5 work histories and compensation. 6 Plaintiffs' expert has AC Transit lacks data regarding Plaintiffs' actual start-end and split-shift travel time or what 7 methods of transportation were used on a given day. Not 8 9 United States District Court For the Northern District of California 10 11 surprisingly, the deposed Plaintiffs are unable to recall these details. In lieu of direct evidence of actual travel time, Plaintiffs' 12 damages expert utilized data from a service provided by a 13 partnership of government agencies to generate estimates of travel 14 time on public transit in the Bay Area. The partnership of public 15 agencies that provides this service is led by the Metropolitan 16 Transportation Commission,4 the California Highway Patrol, and the 17 18 California Department of Transportation.5 19 assumed that the service provided an accurate measurement of 20 actual travel time and relied on the same service to conduct his 21 own analysis. 22 AC Transit's expert Breshears Dec., Ex. 3 at ¶ 6. Although Plaintiffs' reliance on travel time data from this 23 online service may lead to underpayment of some Plaintiffs and 24 25 26 4 The Metropolitan Transportation Commission was established by the California Legislature to operate as the transportation planning, coordinating and financing agency for the nine-county San Francisco Bay Area. See Cal. Govt. Code § 66502. 27 5 28 14 1 overpayment of others, a reliable approximation of damages is 2 permitted where a defendant has failed to keep records. 3 v. Mt. Clemens Pottery Co., 328 U.S. 680, 688 (1946) ("If the 4 employer fails to produce such evidence [of the precise amount of 5 work performed], the court may then award damages to the employee, 6 even though the result be only approximate."). Anderson Ruling otherwise 7 would permit AC Transit to shield itself from Plaintiffs' recovery 8 9 of damages based on its failure to keep records of the actual See id. at 687 ("The solution [to the United States District Court For the Northern District of California 10 travel time amounts. 11 absence of records], however, is not to penalize the employee by 12 denying him any recovery on the ground that he is unable to prove 13 the precise extent of uncompensated work."). 14 That Plaintiffs were in a position to keep records of their 15 travel time and mode of transportation does not change the result. 16 Anderson recognized, "Employees seldom keep such records [of their 17 18 work time] themselves; even if they do, the records may be and 19 frequently are untrustworthy." 20 burden on employers to track such information. 21 analogous to Anderson because both cases involved employer 22 policies that withheld compensation for periods of time in which 23 Instead, the Court placed the Id. This case is the plaintiff-employees were "traveling," either on foot to a work 24 station or by bus, personal vehicle or other mode, as part of 25 26 start-end or split-shift travel, as required by their employers 27 and necessarily for the purposes of benefiting their employers' 28 business. 15 Reed v. County of Orange, 266 F.R.D. 446 (C.D. Cal 2010), 1 2 does not support decertification of the collective action. 3 the court considered the defendant Orange County Sheriff's 4 Department's motion to decertify the FLSA collective action at the 5 liability stage of the litigation. 6 There, The court found that Sheriff’s deputies were not similarly situated with respect to their claims 7 based on pre-shift and post-shift activities, work taken home, 8 9 meal period violations and a purported departmental policy United States District Court For the Northern District of California 10 requiring uncompensated work off-the-clock. Individual 11 circumstances varied significantly in that the deputies held a 12 wide range of assignments, including patrol, jail, court, 13 transportation, administrative, investigative and other 14 specialized assignments. The multitude of assignments placed the 15 deputies in various cities and unincorporated areas, pursuant to 16 contracts for police patrol services. The assignments exposed the 17 18 deputies to different supervisors and widely divergent work-place 19 practices and conditions, such that they were not similarly 20 situated. 21 precluded the defendant from asserting available defenses. 22 23 Use of the collective action procedure would have Here it is apparent that Plaintiffs' FLSA action is directed at particular compensation policies that indisputably govern their 24 pay. The differences in modes of transportation and variations in 25 26 travel time do not negate that a uniform policy clearly applies to 27 Plaintiffs. Notably, the court in Reed declined to decertify the 28 FLSA collective action to the extent it was based on the Sheriff's 16 1 Department's admitted policy of not compensating deputies for 2 donning and doffing uniforms and protective gear. 3 Id. at 463-64. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), does 4 not stand for the proposition that an employer is entitled to an 5 individualized determination of an employee's claim for back pay 6 in all instances in which a claim is brought as a collective or 7 class action. Plaintiffs in this case are not situated 8 9 dissimilarly to one another, as the plaintiffs were found to be in The plaintiffs in Dukes were allegedly denied promotions, United States District Court For the Northern District of California 10 Dukes. 11 pursuant to a policy that permitted managers to exercise wide 12 discretion in selecting employees for promotion to management. 13 The variations in the modes of travel of Plaintiffs here, which 14 affect the extent of AC Transit's liability for unpaid travel 15 time, are more limited than the discretionary decision-making that 16 led to failures to promote employees in Dukes. 17 18 Similarly, Vinole v. Countrywide Home Loans, Inc. does not 19 apply to this action. 20 certification denied, pursuant to Rule 23(b)(3)'s predominance 21 test, because plaintiffs had not alleged or produced evidence of a 22 policy governing employees' use of time, work duties or 23 571 F.3d 935, 947 (9th Cir. 2009) (class experiences that would diminish the need for individualized 24 inquiry). There is no question that the pay practices challenged 25 26 27 in this case resulted from uniform policies, rather than discretionary decisions. 28 17 1 In re Methionine Antitrust Litigation, 204 F.R.D. 161 (N.D. 2 Cal. 2001), is also inapposite. 3 certify a putative class of indirect purchasers in an antitrust 4 lawsuit because their expert evidence failed to account for a 5 subset of indirect purchasers who resold the price-fixed product, 6 There the court declined to passing along the price-increase to later purchasers. In this 7 respect the expert evidence failed to establish class-wide injury 8 9 United States District Court For the Northern District of California 10 11 and damages. Here, however, Plaintiffs were similarly governed by the challenged compensation policies. AC Transit further asserts that allowing this lawsuit to 12 proceed as a collective action will preclude it from any 13 meaningful opportunity to raise available defenses. 14 AC Transit contends that the collective action process will Specifically, 15 prevent it from disputing the actual amount of individual drivers' 16 split-shift travel. As explained earlier, AC Transit does not 17 18 have such individualized records, and neither do Plaintiffs. 19 Transit bears the burden of maintaining records of its employees' 20 hours worked and failure to do so opens the door to assessing 21 damages by a reliable but approximate method. 22 at 687-88. 23 AC Anderson, 328 U.S. Contrary to AC Transit's assertion, it may pursue a de 24 minimis defense in the context of a collective action. Indeed, it 25 26 has mounted such a defense through its cross-motion that it is 27 entitled to judgment as a matter of law that no Plaintiff can 28 recover for certain claimed time that it argues is de minimis. 18 1 Furthermore, Plaintiffs' expert has made clear that he can easily 2 modify the damages calculation to remove claims for particular 3 days in which a Plaintiff is owed for fewer than ten minutes of 4 unpaid travel time. 5 6 Finally, AC Transit contends that fairness and procedural considerations require decertification because neither the Court 7 nor AC Transit approved the notice to potential opt-in Plaintiffs. 8 9 AC Transit stipulated to conditional certification of the United States District Court For the Northern District of California 10 collective action and notification to class members. AC Transit 11 did not condition its stipulation on approval of the notice 12 content and implementation plan. 13 specific attack on the notice process. 14 work histories and payroll records will enable it to verify the AC Transit has not made any Presumably AC Transit's 15 eligibility of any opt-in Plaintiff seeking a recovery. 16 AC Transit's motion to decertify this collective action is 17 18 denied. 19 II. Willfulness and Liquidated Damages 20 A. Willfulness 21 Plaintiffs renew their earlier motion for summary judgment 22 23 that AC Transit engaged in willful violations of the FLSA. In general, FLSA claims are subject to a two-year statute of 24 limitations. 29 U.S.C. § 255(a). However, the limitations period 25 26 may be extended to three years for a claim "arising out of a 27 willful violation" of the statute. 28 is willful if the employer 'knew or showed reckless disregard for 19 Id. "A violation of the FLSA 1 the matter of whether its conduct was prohibited by the [FLSA].'" 2 Chao v. A-1 Med. Servs., Inc., 346 F.3d 908, 918 (9th Cir. 2003) 3 (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 4 (1988)). 5 in determining its legal obligation" under the FLSA, its action is 6 "If an employer acts unreasonably, but not recklessly, not willful. McLaughlin, 486 U.S. at 135 n.13. 7 In its January 15, 2010 Order, this Court found that 8 9 Plaintiffs had presented enough evidence to allow a jury United States District Court For the Northern District of California 10 reasonably to conclude that AC Transit acted willfully in its 11 violations of the FLSA, but denied Plaintiffs' motion for summary 12 judgment on this issue because AC Transit also presented evidence 13 that it did not act willfully. 14 and submitted a declaration by its Assistant General Counsel Carol At that time AC Transit argued, 15 Babington attesting, that its in-house counsel had been aware of, 16 and had relied upon, authorities, including, among others, United 17 18 Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109 19 (10th Cir. 1999); Leahy v. City of Chicago, 96 F.3d 228 (7th Cir. 20 1996); and Johnson v. RGIS Inventory Specialists, 554 F. Supp. 2d 21 693, 702 (E.D. Tex. 2007), in support of its position with respect 22 to compensation of travel time. 23 Subsequently, Plaintiffs sought further discovery on the 24 willfulness issue, specifically, a request for admission that AC 25 26 Transit did not rely on advice of counsel in continuing not to 27 treat start-end and split-shift travel as "hours worked" subject 28 to FLSA requirements. After a magistrate judge granted 20 1 Plaintiffs' motion for a further response, AC Transit disavowed 2 any intention to rely on advice of counsel as a defense to 3 Plaintiffs' claim that it willfully violated the FLSA, in effect 4 preserving its attorney-client privilege. 5 6 In response to Plaintiffs' renewed motion for summary judgment of willfulness, AC Transit cross-moves for a ruling that 7 a finding of willfulness is precluded by the record. AC Transit 8 9 contends that such a ruling is warranted because (1) it relied on United States District Court For the Northern District of California 10 substantial legal authority, namely, that cited in its prior 11 briefing in connection with the parties' 2009 cross-motions for 12 summary judgment on liability and the March 18, 2005 letter from 13 Plaintiffs' counsel, and (2) AC Transit's compensation practices 14 were adopted in the CBA, which was approved by Plaintiffs' union. 15 The substantial legal authority defense is not the same as 16 the advice of counsel defense. See Huss v. City of Huntington 17 18 Beach, 317 F. Supp. 2d 1151, 1161 (C.D. Cal. 2000) ("where an 19 employer has relied on substantial legal authority or upon the 20 advice of counsel, a finding of willfulness may be precluded as a 21 matter of law"); Serv. Emp. Int'l Union, Local 102 v. Cnty. of San 22 Diego, 60 F.3d 1346 (9th Cir. 1994). 23 Therefore, the Court considers evidence that supports a finding that AC Transit's 24 managers, apart from their counsel, relied on substantial legal 25 26 authority. AC Transit General Manager Rick Fernandez testified 27 that he was aware of the Albuquerque case. 28 letter sent by Plaintiff's counsel to AC Transit's counsel makes 21 The March 18, 2005 1 clear that Albuquerque provided the basis upon which AC Transit 2 believed that its practices were lawful. 3 judgment, facts must be construed in favor of the non-moving 4 party. 5 advice of counsel defense, a jury could infer that AC Transit's 6 On a motion for summary Accordingly, even though AC Transit has disavowed its managers also relied on Albuquerque. Plaintiffs point to the fact 7 that Fernandez could not recall the details of the case at the 8 9 time of his deposition, but this does not preclude an inference United States District Court For the Northern District of California 10 that he previously understood the case and relied on it. Although 11 this Court found Albuquerque's reasoning unpersuasive, the 12 decision provides some authority for AC Transit's position. 13 AC Transit also argues that it relied on the collective 14 bargaining agreement and believed that its practices were lawful 15 or the union would not have agreed to them. A reasonable jury 16 could find that such reliance was reasonable. On the other hand, 17 18 a reasonable jury could find to the contrary in light of the 19 union's consistent position and vigorous efforts asserting that 20 the pay practices violated the FLSA. 21 does not warrant summarily adjudicating the issue of willfulness 22 in favor of either party. 23 Accordingly, this evidence Plaintiffs are not entitled to partial summary judgment that 24 AC Transit violated the FLSA willfully with respect to its pay 25 26 27 practices. Nor is AC Transit entitled to a ruling that a finding of willful violation of the FLSA is precluded as a matter of law. 28 22 1 B. Liquidated Damages 2 For violations of the FLSA’s overtime wage provisions, 3 employers “shall be liable to the . . . employees affected in the 4 amount of . . . unpaid overtime compensation, as the case may be, 5 and in an additional equal amount as liquidated damages." 6 29 U.S.C. § 216(b); see Overnight Motor Transp. Co. v. Missel, 316 7 U.S. 572, 583-84 (1942) (observing that FLSA liquidated damages 8 9 are not penalties exacted by law but, rather, compensation to the United States District Court For the Northern District of California 10 employee occasioned by the delay in receiving wages due). 11 However, under 29 U.S.C. § 260, courts need not award liquidated 12 damages in every instance, but instead retain discretion to 13 withhold a liquidated damages award, or to award less than the 14 statutory liquidated damages total, where an employer shows that 15 it "acted in subjective ‘good faith’ and had objectively 16 ‘reasonable grounds’ for believing that the acts or omissions 17 18 giving rise to the failure did not violate the FLSA." 19 IBP Inc., 339 F.3d 894, 909 (9th Cir. 2003) (citing Herman v. RSR 20 Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999), and 29 C.F.R. 21 § 790.17(i) n.110). 22 23 Alvarez v. Just as AC Transit argues it did not willfully violate the FLSA, it argues that it acted in good faith and on objectively 24 reasonable grounds. For the reasons explained above, AC Transit 25 26 has demonstrated sufficient facts that a fact-finder could find 27 that it acted with the good faith belief that its pay practices 28 were lawful. Accordingly, Plaintiffs' motion for partial summary 23 1 judgment that they are entitled, as a matter of law, to liquidated 2 damages is denied. 3 request for summary adjudication of the issue in its favor. 4 award of liquidated damages is a matter reserved for the Court's 5 discretion, and the Court will make its determination after trial. 6 Likewise, the Court denies AC Transit's The III. Damages Calculations 7 A. Regular Rate Calculation and Elapsed Time Premium 8 The FLSA's overtime provision requires that an employer 9 United States District Court For the Northern District of California 10 compensate its employee for work in excess of forty hours per week 11 "at a rate not less than one and one-half times the regular rate 12 at which he is employed." 13 Court interprets 'regular rate' to mean 'the hourly rate actually 14 paid the employee for the normal, non-overtime workweek for which 29 U.S.C. § 207(a)(1). "The Supreme 15 he is employed.'" Parth v. Pomona Valley Hosp. Medical Center, 16 630 F.3d 794, 799 (9th Cir. 2010). Here, Plaintiffs' "regular 17 18 rate of pay" is not necessarily their base straight time hourly 19 rate. 20 types of earnings that they have asked their damages expert to 21 include in his regular rate of pay calculation are properly 22 included as a matter of law. 23 Plaintiffs seek an order that the twenty-four identified AC Transit objects only to the inclusion of "elapsed" or 24 "spread" time premiums. Pay for elapsed time is a premium paid to 25 26 a bus driver when the elapsed time, or "spread," between her 27 start-time and end-time for the day exceeds ten hours. 28 Dec., Ex. K, CBA at ¶ 66.03. See Monrad AC Transit argues that elapsed time 24 1 pay should not be included in the regular time calculation, but 2 instead should be treated as a credit to offset overtime 3 compensation due. 4 5 6 The FLSA deems the "regular rate" to include "all remuneration for employment paid to, or on behalf of, the employee," with eight exceptions. 29 U.S.C. § 207(e)(1)-(8). In 7 turn, section 207(h)(1) of the FLSA provides that sums that are 8 9 not included in the regular rate shall not be creditable towards United States District Court For the Northern District of California 10 overtime compensation, except that "[e]xtra compensation paid as 11 described in paragraphs (5), (6), and (7) of subsection (e) shall 12 be creditable toward overtime compensation payable pursuant to 13 this section." 14 elapsed time pay should be treated as a credit against owed 29 U.S.C. § 207(h)(1)-(2). AC Transit argues that 15 overtime compensation because it is covered by section 207(e)(7). 16 Section 207(e)(7) states that 17 18 19 20 21 22 23 extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective-bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding eight hours) or workweek (not exceeding the maximum workweek applicable to such employee under subsection (a) of this section[)], where such premium rate is not less than one and one-half times the rate established in good faith by the contract or agreement for like work performed during such workday or workweek . . . 24 29 U.S.C. § 207(e)(7). The implementing regulation for this 25 26 27 provision refers to this type of pay as "clock pattern" premium pay and explains, 28 25 To qualify as an overtime premium under section 7(e)(7) the premium must be paid because the work was performed during hours “outside of the hours established * * * as the basic * * * workday or workweek" and not for some other reason. Thus, if the basic workday is established in good faith as the hours from 8 a.m. to 5 p.m. a premium of time and onehalf paid for hours between 5 p.m. and 8 a.m. would qualify as an overtime premium. However, where the contract does not provide for the payment of a premium except for work between midnight and 6 a.m. the premium would not qualify under this section since it is not a premium paid for work outside the established workday but only for certain special hours outside the established workday, in most instances because they are undesirable hours. Similarly, where payments of premium rates for work are made after 5 p.m. only if the employee has not had a meal period or rest period, they are not regarded as overtime premiums; they are premiums paid because of undesirable working conditions. 1 2 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 29 C.F.R. § 778.204(b) (stars in original). 14 Here the elapsed time premiums were established by contract, 15 but there is no uniform workday by which to determine whether work 16 was performed outside of an established workday. Because the 17 18 elapsed time premiums are paid due to the spread between the 19 start-time and end-time, and not due to work performed outside the 20 normal working day, they amount to a premium paid for undesirable 21 working conditions. 22 creditable against overtime compensation owed by AC Transit, and 23 Thus, elapsed time premiums are not are properly included in the calculation of Plaintiffs' regular 24 rate. 25 26 27 28 26 B. Other Claimed Credits Against Overtime Compensation Owed 1 1. Premium Pay for Work on Scheduled Day Off 2 3 AC Transit asserts that premium pay for work on a scheduled 4 day off should be credited to any calculation of overtime owed. 5 Plaintiffs do not dispute that, as a general matter, AC Transit 6 may credit premiums paid for work on "regular days of rest." 7 However, Plaintiffs contend that they cannot respond to this 8 9 argument because AC Transit provides no explanation of which United States District Court For the Northern District of California 10 contractual provision or payroll earning code its argument refers 11 to. 12 its reply brief, its cross-motion for partial summary judgment on 13 this issue is granted because it appears undisputed that it may 14 credit premiums paid to drivers for working a regularly scheduled Although AC Transit did not provide a further explanation in 15 day off. 16 2. Aggregated versus Workweek Limitation to Offset 17 Plaintiffs argue that offsets against unpaid wages due must 18 19 be calculated on a weekly basis, not applied in the aggregate 20 against unpaid wages earned during the entire period of the 21 lawsuit. 22 on this point, and the Ninth Circuit has not directly addressed 23 The FLSA and its implementing regulations are not clear it. 24 The reasoning in Herman v. Fabri-Centers of America, Inc. is 25 26 persuasive. 308 F.3d 580 (6th Cir. 2002). In Herman the Sixth 27 Circuit analyzed the FLSA's legislative history, its implementing 28 regulations and related case law, arriving at the conclusion that 27 1 contract premiums to offset overtime owed to employees applied 2 only to the same workweek or work period as the missed overtime. 3 See also Howard v. City of Springfield, Ill., 274 F.3d 1141, 1149 4 (7th Cir. 2001) (holding that "the district court erred in 5 allowing the blanket application of all [§ 207] premium payments 6 to all overtime liabilities"). 7 Kolheim v. Glynn County, 915 F.2d 1473, 1481 (11th Cir. 8 9 1990), a case cited by AC Transit, did not grapple with the United States District Court For the Northern District of California 10 legislative history indicating the remedial purposes of the FLSA, 11 nor did it address regulatory language or case law related to the 12 issue. 13 (E.D. Cal.), is not persuasive because it is a decision granting 14 final approval to a FLSA settlement. Murrillo v. Pacific Gas and Electric, 2010 WL 2889728 Furthermore, it makes a 15 conclusory and incorrect statement, citing only Farris v. County 16 of Riverside, 667 F. Supp. 2d 1151, 1164-65 (C.D. Cal. 2009), that 17 18 a majority of courts reduce overtime obligations by any extra 19 compensation received across the entire period of the lawsuit. 20 Farris did not address this issue because the plaintiffs there did 21 not argue that credits for premium pay could only be applied to 22 offset unpaid overtime earned within the same workweek or pay 23 period in which the premium pay was earned. 24 Finally, Singer v. City of Waco, Tex., 324 F.3d 813, 828 (5th 25 26 Cir. 2003), is an out-of-circuit decision that is unpersuasive. 27 Singer held that overpayments could be credited towards unpaid 28 overtime earned in other pay periods, reasoning that the 28 1 overpayments could be construed as "pre-payments" for shortfalls 2 in overtime pay in subsequent work periods. 3 acknowledged, but disregarded, a regulatory provision upon which 4 Herman relied--29 C.F.R. § 778.106, which states, "The general 5 rule is that overtime compensation earned in a particular workweek 6 The Fifth Circuit must be paid on the regular pay day for the period in which such 7 workweek ends." Singer's ruling contravened FLSA policy and other 8 9 Fifth Circuit law indicating that an employer violates the FLSA United States District Court For the Northern District of California 10 not only by failing to pay overtime compensation but also by 11 delaying payment of overtime compensation. 12 Drug Co., Inc., 821 F.2d 251, 271 (5th Cir. 1987). 13 14 See Halferty v. Pulse Partial summary judgment is granted in favor of Plaintiffs that offsets must be calculated on a weekly basis and may not be 15 aggregated over the entire period of the suit. 16 C. Overtime Before August 7, 2006 17 18 Plaintiffs' complaint states claims on behalf of all bus 19 drivers employed by AC Transit since August 7, 2006 who filed opt- 20 in consents. 21 damages calculations amounts claimed to be owed for the period 22 prior to August 8, 2006. 23 However, Plaintiffs' expert has included in his AC Transit claims that the April 10, 2007 settlement agreement bars Plaintiffs from recovering any 24 damages prior to August 8, 2006. AC Transit is correct that the 25 26 2007 agreement releases Plaintiffs' FLSA claims for start-end and 27 split-shift travel time for the period from September 1, 2001 28 through August 7, 2006. Monrad Dec., Ex. 2. 29 1 Pursuant to the 2005 and 2006 Settlement Agreements, the 2 arbitration was limited to the plaintiffs' contract claims, and 3 did not resolve the FLSA claims, which the plaintiffs retained 4 their right to litigate after the issuance of the arbitrator's 5 opinion. 6 Monrad Dec., Ex. R at 9. Arbitrator Collins' August 7, 2006 opinion and award found violations only of the CBA. However, 7 in the 2007 Settlement Agreement, the plaintiffs relinquished 8 9 their FLSA claims for the period prior to August 8, 2006, in United States District Court For the Northern District of California 10 exchange for an agreement as to how the August 7, 2006 arbitration 11 award would be implemented. 12 implementation of the award had been hampered by ongoing disputes 13 between AC Transit and the plaintiffs. 14 Monrad Dec., Ex. S at ¶ C. The Although the 2007 release was not given in the context of a 15 FLSA lawsuit or approved by a court, Plaintiffs have not 16 established grounds for disregarding it now. Cf. Lynn's Food 17 18 Stores, Inc. v. U.S. by and through U.S. Dept. of Labor, 679 F.2d 19 1350, 1354 (5th Cir. 1982) ("Settlements may be permissible in the 20 context of a suit brought by employees under the FLSA for back 21 wages because initiation of the action by the employees provides 22 some assurance of an adversarial context.") 23 The 2007 agreement was reached in an adversarial context with Plaintiffs' union 24 represented by counsel and it appears reasonable. AC Transit's 25 26 27 motion for partial summary judgment that Plaintiffs may not recover for FLSA claims prior to August 8, 2006 is granted. 28 30 1 D. Overtime Gap Time 2 Plaintiffs seek summary adjudication that their damages 3 calculation may include compensation at their straight time rate 4 of pay for unpaid travel time incurred before they had accrued 5 forty hours in a given week, in those weeks when they are owed 6 overtime damages for travel time incurred in excess of forty 7 hours. This occurs when their actual split shift travel time 8 9 exceeds the scheduled running time for which they are paid at United States District Court For the Northern District of California 10 straight time rates. The Ninth Circuit authorized such an award 11 of overtime damages in Donovan v. Crisostomo, 689 F.2d 869, 876 12 (9th Cir. 1982). 13 FLSA only permitted recovery for unpaid minimum wages or unpaid 14 overtime wages, not underpaid wages resulting from a kickback There the defendant-appellants argued that the 15 scheme which failed to result in wages falling below the minimum 16 wage. Id. However, the court reasoned that if the employer were 17 18 permitted to reduce straight time pay during overtime weeks, "the 19 employer could effectively eliminate the premium paid for 20 overtime," undermining the policy goals of the FLSA’s overtime 21 provision. 22 23 AC Transit argues that Plaintiffs may not recover for such amounts because Plaintiffs failed to plead for recovery of such 24 amounts specifically in their complaint. Donovan rejected this 25 26 precise argument because it considered the unpaid straight time 27 "an integral part of the overtime violation." 28 Donovan does not require more specific pleading to recover for 31 Id. at 876 n.14. 1 unpaid wages that do not amount to unpaid minimum or overtime 2 wages, where recovery is contingent on a FLSA claim that has been 3 alleged. 4 Plaintiffs may include in their damages calculation unpaid travel 5 time at the straight time rate of pay, incurred before they have 6 Plaintiffs' motion for summary adjudication is granted; worked forty hours, in those weeks when they are owed overtime 7 damages for travel time incurred resulting in a work week in 8 9 excess of forty hours. United States District Court For the Northern District of California 10 E. De Minimis Claims 11 An employer may assert a defense against recovery for a FLSA 12 violation where the wage claim is de minimis. 13 U.S. at 692; Alvarez, 339 F.3d at 903-04 (holding that the time to 14 perform certain tasks was de minimis and, thus, non-compensable). See Anderson, 328 15 This Court's January 15, 2010 Order denied AC Transit's motion for 16 summary judgment, based on the de minimis doctrine, on Plaintiffs' 17 18 split-shift travel claims. 19 claims for split-shift travel were de minimis because, averaged 20 across a ninety-six week period, they amounted to less than a 21 minute per day per driver. 22 on such daily averages when they masked uncompensated overtime 23 AC Transit argued that Plaintiffs' The Court found it misleading to focus amounts that were not insubstantial. Id. Here, AC Transit 24 presents a different de minimis argument. AC Transit takes issue 25 26 with Plaintiffs' expert's failure to exclude from the damages 27 calculations minimal amounts of overtime due to start-end and 28 split-shift travel time. 32 1 The Court explained in its previous order, "The de minimis 2 rule is concerned with the practical administrative difficulty of 3 recording small amounts of time for payroll purposes." 4 United States, 738 F.2d 1057, 1062 (9th Cir. 1984). 5 minimis rule applies 6 7 8 9 United States District Court For the Northern District of California 10 11 Lindow v. The de only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him. 12 29 C.F.R. § 785.47. 13 employees for even small amounts of daily time unless that time is 14 so minuscule that it cannot, as an administrative matter, be "Employers, therefore, must compensate 15 recorded for payroll purposes." Lindow, 738 F.2d at 1062-63. The 16 Ninth Circuit applies the de minimis rule by considering the 17 18 following factors: "(1) the practical administrative difficulty of 19 recording the additional time; (2) the aggregate amount of 20 compensable time; and (3) the regularity of the additional work." 21 Rutti v. Lojack Corp., Inc., 596 F.3d 1046, 1057 (9th Cir. 2010) 22 (citing Lindow, 738 F.2d at 1063). 23 The Ninth Circuit has not adopted a ten or fifteen minute de minimis rule. Id. at 1058. 24 Split-shift travel was regularly required of a significant 25 26 number of Plaintiffs in this action, leading to a substantial 27 aggregated amount of uncompensated time. 28 the position that administrative difficulty thwarted recording or 33 AC Transit did not take 1 paying for small amounts of split-shift travel time. 2 Transit's position has been that it is not required under the FLSA 3 to compensate such time. 4 of calculating travel times expeditiously. 5 Transit's de minimis defense is a request that the Court disregard 6 Rather, AC Plaintiffs' expert has provided a method In this respect, AC small amounts of uncompensated overtime because they are small 7 amounts when disaggregated. AC Transit's motion for summary 8 9 United States District Court For the Northern District of California 10 adjudication that it is entitled to a de minimis defense is denied. 11 CONCLUSION 12 AC Transit's motion to decertify the collective action is 13 denied. 14 Transit's violations were willful and in bad faith is denied. Plaintiffs' motion for partial summary judgment that AC AC 15 Transit's motion for partial summary judgment that it did not 16 willfully violate the FLSA, but acted in good faith, is denied. 17 18 AC Transit has not opposed Plaintiffs' inclusion of the twenty- 19 four types of earnings in the regular rate calculation, except the 20 elapsed time premium. 21 included in the regular rate calculation and, thus, is not 22 creditable against overtime compensation owed. 23 The elapsed time premium is properly Accordingly, all twenty-four types of earnings are includable in the calculation of 24 the regular rate of pay. Plaintiffs are entitled to include in 25 26 their damages calculation compensation at their straight time rate 27 of pay for unpaid travel time incurred before they worked forty 28 hours in a week, in those weeks when they are owed overtime 34 1 damages for travel time. 2 judgment, based on the 2007 settlement agreement, precluding 3 Plaintiffs' recovery for claims prior to August 8, 2006, is 4 granted. 5 6 AC Transit's motion for partial summary Within two weeks after this order, the parties shall submit a joint or separate statements proposing a plan to resolve the 7 damages phase of the case. 8 9 IT IS SO ORDERED. United States District Court For the Northern District of California 10 11 12 Dated: 11/2/2011 CLAUDIA WILKEN United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35

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