Gilmer et al v. Alameda-Contra Costa Transit District

Filing 237

ORDER ON PLAINTIFFS' 209 MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S 216 CROSS-MOTION FOR SUMMARY JUDGMENT. Signed by Judge Claudia Wilken on 11/2/2011. (ndr, COURT STAFF) (Filed on 11/2/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BRIAN GILMER; ANTHONY RODGERS;
DELORIS WILKINS; JERRY WILLIAMS;
and RAYMOND ROBBINS,

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Plaintiffs,

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United States District Court
For the Northern District of California

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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.
________________________________/

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Plaintiffs and their opt-in class are bus drivers who have

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brought a collective action, pursuant to the Fair Labor Standards

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Act (FLSA), against their employer, Defendant Alameda-Contra Costa

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Transit District (AC Transit).

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conditional certification of the collective action.

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The parties stipulated to
In doing so,

AC Transit reserved the right to challenge the certification of

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the collective action at a later time.

On January 15, 2010, this

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Court granted summary judgment for Plaintiffs on the issue of

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liability.

Plaintiffs now move for partial summary judgment,

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contending that there is no material dispute as to various issues

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related to damages.

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cross-moves to decertify the collective action and for summary

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judgment adjudication of certain aspects of the damages

Docket No. 209.

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calculation.
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Docket No. 216.

AC Transit opposes and

BACKGROUND

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2
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I. The Claims
AC Transit operates a number of bus routes throughout Alameda

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and Contra Costa counties.

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pay are set forth in a collective bargaining agreement (CBA)

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Bus drivers’ terms of employment and

entered into by AC Transit and the Amalgamated Transit Union,

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Local 192, AFL-CIO.

Drivers do not submit time cards or punch

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time clocks to keep track of their hours worked.

The time drivers

United States District Court
For the Northern District of California

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spend driving buses is tracked by an electronic system.

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At issue in this case is travel time of two types.

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is "start-end" travel time: the time spent returning from the

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ending point of a daily assignment back to the starting point.

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Section 54.01 of the CBA defines start-end travel time as

The first

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resulting from drivers “reporting for duty or checking in at the
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home terminal or at some other place differing from the relief
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point by reasons of the District’s requirement to do so."

Philip

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Monrad Declaration,1 Ex. K, CBA § 54.01.

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at different locations than where they began, irrespective of

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whether they actually return to their starting point at the end of

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the day, they are paid at their straight time rate for the

If drivers’ shifts end

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"scheduled running time" that it would take them to return to the
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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

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or BART that it takes to travel on public transit from one

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location to another during peak travel times, which are the

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morning and evening rush hours.

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walking to the bus stop or BART station, waiting for the bus or

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It does not include time spent

BART or transferring between buses or BART trains.

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The second type of travel time at issue is "split-shift"
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travel time.

Section 54.02 of the CBA defines split-shift travel

United States District Court
For the Northern District of California

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time as travel time resulting from "unpaid breaks in split runs

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where the second part of the run picks up at a point different

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from where the first part leaves off."

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§ 54.02.

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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,

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travel.

Id. at § 62.

Plaintiffs’ claims regarding split-shift

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travel time relate to travel time between the ending point of the
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first part of a split run and the starting point of the second

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part of the run, when the break between the two parts is more than

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sixty minutes.

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scheduled running time for travel between the end point of the

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first run and the starting point of the second run.

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Drivers are paid straight time rates for the

About twenty-

five percent of all drivers’ runs are split, with breaks in excess

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of sixty minutes.

When the Court refers to split-shift travel

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time below it refers to split-shift travel time with breaks in
excess of sixty minutes, unless otherwise noted.

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3

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AC Transit does not regulate how drivers spend their time

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between shifts or how they travel between the ending point of the

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first part and the starting point of the second part.

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5
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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

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between the runs, would continue to be paid at straight time
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9

"except when such travel causes a driver’s total work time to

United States District Court
For the Northern District of California

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exceed 8 hours per day or 40 hours per week, in which case such

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overtime travel shall be compensated at straight time, plus 15% as

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an overtime premium."

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modification, AC Transit has paid Plaintiffs a fifteen percent

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overtime premium for start-end and split-shift travel time when

Monrad Dec., Ex. KK at 4:3-13.

Since this

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this travel causes the total hours worked to exceed eight hours
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per day or forty hours per week.

AC Transit does not pay a

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premium of time and one-half based on this time.

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Plaintiffs argue that they are entitled to overtime pay at

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the rate of time and one-half of their regular rate of pay, the

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rate the FLSA requires, based on the "scheduled running time" of

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start-end travel time and actual split-shift travel time that

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results in work time in excess of forty hours per week.

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Plaintiffs seek damages for the difference between what they were
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actually paid for start-end and split-shift travel time and what
they should have been paid as required by the FLSA.

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4

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II. Background of the Dispute
Since at least 2003, Plaintiffs, the union and AC Transit

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have engaged in communications, negotiations, arbitration and

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lawsuits to address AC Transit's compliance with contractual and

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statutory wage and hour requirements, including the FLSA overtime

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dispute at issue in this action.

See Monrad Dec. at ¶ 14.

On

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August 14, 2004, the union and four named bus driver plaintiffs
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(who are four of the five named Plaintiffs here) filed in Alameda

United States District Court
For the Northern District of California

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County Superior Court a Class Action Complaint for Breach of

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Contract, Violation of California Labor Code and IWC Wage Orders

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and Fair Labor Standards Act for Wages and Compensation Earned,

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But Not Paid.

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Plaintiff's counsel here.

Id. at ¶ 15.

The plaintiffs were represented by

Following a September 14, 2004

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agreement with AC Transit to dismiss the class action without
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prejudice and toll the plaintiffs' claims, the plaintiffs
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18

submitted to AC Transit a Position Statement in a further attempt

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to resolve the claims informally.

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2009 Declaration by Philip Monrad (10/1/09 Monrad Dec.) at ¶ 18,

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Ex. 17.

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start-end travel time and split-shift travel time were compensable

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Id. at ¶ 16, Ex. M; October 1,

The statement explained why, in the plaintiffs' view,

"hours worked" subject to FLSA requirements.

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On March 18, 2005, the plaintiffs' counsel wrote to AC
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Transit's counsel, including its Chief Labor Counsel Marcia Hoyt,

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General Counsel Kenneth Scheidg and outside counsel Michael Loeb,

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of Bingham McCutchen, LLP.

Monrad Dec., Ex. W.
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In the letter the

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plaintiffs' counsel insisted that AC Transit owed split-shift

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travel time pay at the overtime rate of time and one-half of the

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straight time pay rate when that travel time was in excess of

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forty hours per week.2

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The letter acknowledged that AC Transit

relied on United Transp. Union Local 1745 v. City of Albuquerque,

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178 F.3d 1109 (10th Cir. 1999), in defending the legality of its
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pay practices, and challenged that reliance.
On December 27, 2005, the parties in the 2004 state court

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United States District Court
For the Northern District of California

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class action entered into a Settlement Agreement as to certain

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claims and provided a framework for resolving the remaining

12

claims, including claims for overtime pay under the FLSA.

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Dec. at ¶ 17.

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Monrad

In the 2005 agreement, the parties agreed "to

submit their claims for breach of the collective bargaining

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agreement to binding arbitration before Arbitrator R. Douglas
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Collins on January 18 and 25, 2006."

Id., Ex. N at 1-2.

The

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parties further agreed that the issue presented for arbitration

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was

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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?

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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.
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1

Id.

2

"Report time & Turn-In time and drug testing time claims," the

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plaintiffs retained their "right to refile, serve and litigate

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their statutory claims after receipt of Arbitrator Collins'

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award," and a tolling agreement continued to apply to those

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The 2005 Settlement Agreement also provided that, except for

claims.3

Id.

The plaintiffs and AC Transit held a one-day

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8
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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

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Award resolving the January 2006 arbitration, finding that AC

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Transit had violated section 54.0 of the CBA by failing to pay bus

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drivers anything for start-end and split-shift travel time.

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Monrad Dec., Ex. R.

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Arbitrator Collins ordered AC Transit to pay

start-end and split-shift travel time, retroactive to October 24,

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2003, and henceforth.

Id. at 15.

The determination of which

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employees were entitled to retroactive pay and the computation of
the amounts owed was remanded to the parties.

Id.

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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.
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After the August 2006 arbitration award was issued, the

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plaintiffs and AC Transit met and conferred regarding how AC

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Transit would implement the requirements of the award.

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Monrad Dec. at ¶ 29.

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made lump sum payments to drivers, but the plaintiffs disputed AC

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10/1/09

In approximately September 2007, AC Transit

Transit's calculations.

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In addition, counsel for the plaintiffs continued to assert
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AC Transit's legal obligation to include start-end and split-shift

United States District Court
For the Northern District of California

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travel time as part of its calculation of overtime pay under the

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FLSA.

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letter to Ms. Hoyt, asserting that AC Transit's failure to provide

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time and one-half overtime pay for start-end and split-shift

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travel time violated the FLSA.

On September 29, 2006, counsel for the plaintiffs sent a

Monrad Dec., Ex. T.

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On April 10, 2007, AC Transit, the union and the four named
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plaintiffs entered into a "Settlement Agreement Regarding Travel
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18

Time."

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Settlement Agreement acknowledged Arbitrator Collins' August 7,

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2006 Award and stated that "the Parties have met and conferred

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regarding implementation of this Arbitration Award, and also

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Plaintiffs' remaining statutory claims relating to travel time."

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Monrad Decl., Ex. S.

Id. at 2.

The general recitals of the 2007

The parties agreed to resolve the implementation of the

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Arbitration Award and the plaintiffs' remaining statutory claims
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in one integrated document.

The agreement fully implemented the

portion of the arbitrator's award ordering AC Transit to pay

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8

1

retroactive back pay from October 24, 2003 through August 7, 2006.

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Under the heading "Compromise & Release," the agreement stated,

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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.

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United States District Court
For the Northern District of California

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Id.

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After the 2007 Settlement Agreement, the plaintiffs continued
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to assert their position that they were entitled to overtime pay

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for travel time in accordance with the FLSA.

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counsel for the plaintiffs wrote to Ms. Hoyt, reiterating the view

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that start-end and split-shift travel time must be counted toward

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overtime as a matter of non-negotiable right under the FLSA.

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Monrad Dec., Exs. U.

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On June 17, 2007,

The current five named Plaintiffs filed the present action on

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November 17, 2008.

On January 15, 2010, this Court held, on the

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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.

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9

1

Plaintiffs retained the Litigation and Forensic Consulting

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Services Group of Hemming Morse, Inc., to produce an expert report

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calculating damages.

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work history data, provided electronically by AC Transit to

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Plaintiffs, for 1,316 of the 1,360 members of the Plaintiff class

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Plaintiff's expert analyzed the payroll and

for the period between November 17, 2005 and October 31, 2010.

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Declaration of David Breshears, ¶ 3.

AC Transit had not yet

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9

provided data for fifteen of the 1,360 class members.

To

United States District Court
For the Northern District of California

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calculate the damages amounts, the expert, pursuant to Plaintiffs'

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counsel's instructions, used data based on twenty-four different

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types of earnings.

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Id. at ¶ 5, Ex. 2 at 17.

The present summary judgment motions raise various issues
related to damages.

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LEGAL STANDARD
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Summary judgment is properly granted when no genuine and
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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).

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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

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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.

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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
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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.

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242, 248 (1986).

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14

DISCUSSION
I. Motion to Decertify

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The FLSA authorizes workers to sue for unpaid overtime wages
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on their own behalf and on behalf of "other employees similarly
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18

situated."

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under Federal Rule of Civil Procedure Rule 23, collective actions

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brought under the FLSA require that each individual member “opt

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in" by filing a written consent.

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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
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26

situated," district courts in this circuit have employed the ad

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hoc, two-tiered approach.

See Wynn v. National Broadcasting Co.,

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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.

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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
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18

collective action.

19

largely complete, generally on a motion for decertification by the

20

defendant.

21

(N.D. Cal. 2009).

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"including the disparate factual and employment settings of the

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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;
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26
27

fairness and procedural considerations; and whether the plaintiffs
made any required filings before instituting suit."

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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

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violated the FLSA.

13

simply relate to damages.

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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,

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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
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26

questions of damages).

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Furthermore, the drivers' use of different modes of

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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

http://511.org/about-511-who-we-are.asp
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
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number of Plaintiffs in this action, leading to a substantial

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aggregated amount of uncompensated time.

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the position that administrative difficulty thwarted recording or
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AC Transit did not take

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paying for small amounts of split-shift travel time.

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Transit's position has been that it is not required under the FLSA

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to compensate such time.

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of calculating travel times expeditiously.

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Transit's de minimis defense is a request that the Court disregard

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Rather, AC

Plaintiffs' expert has provided a method
In this respect, AC

small amounts of uncompensated overtime because they are small

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amounts when disaggregated.

AC Transit's motion for summary

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9

United States District Court
For the Northern District of California

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adjudication that it is entitled to a de minimis defense is
denied.

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CONCLUSION

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AC Transit's motion to decertify the collective action is

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denied.

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Transit's violations were willful and in bad faith is denied.

Plaintiffs' motion for partial summary judgment that AC
AC

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Transit's motion for partial summary judgment that it did not
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willfully violate the FLSA, but acted in good faith, is denied.
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AC Transit has not opposed Plaintiffs' inclusion of the twenty-

19

four types of earnings in the regular rate calculation, except the

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elapsed time premium.

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included in the regular rate calculation and, thus, is not

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creditable against overtime compensation owed.

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The elapsed time premium is properly

Accordingly, all

twenty-four types of earnings are includable in the calculation of

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the regular rate of pay.

Plaintiffs are entitled to include in

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their damages calculation compensation at their straight time rate

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of pay for unpaid travel time incurred before they worked forty

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hours in a week, in those weeks when they are owed overtime
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1

damages for travel time.

2

judgment, based on the 2007 settlement agreement, precluding

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Plaintiffs' recovery for claims prior to August 8, 2006, is

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granted.

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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.
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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: 11/2/2011

CLAUDIA WILKEN
United States District Judge

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