Petrone v. Werner Enterprises, Inc. et al

Filing 395

MEMORANDUM AND ORDER - Defendants' motion (Filing No. 378) for reconsideration of the August 3, 2015, Order (Filing No. 347) is granted in part. The portion of the Courts August 3, 2015, Order granting summary judgment in favor of the plaintif fs on the NWPCA claims is vacated. Plaintiffs' NWPCA claims are dismissed with prejudice. Defendant's motion to reconsider the NWHA claims is denied. Member Cases: 8:11-cv-00401-LES-FG3, 8:12-cv-00307-LES-FG3. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)
PHILLIP PETRONE, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)

8:11CV401

8:12CV307

MEMORANDUM AND ORDER

This matter is before the Court on defendants’ motion
to reconsider filed pursuant to Federal Rule of Civil Procedure
54(b) (Filing No. 3781).

The plaintiffs filed a brief in

opposition to the motion (Filing No. 383), to which to defendants
replied (Filing No. 385).

After reviewing the motion, briefs,

and applicable law, the Court finds as follows.

1

All filing numbers reference the filing number in Case No.
8:11CV401 (“Petrone I”), unless otherwise indicated.

Background
Defendants Werner Enterprises, Inc. and Drivers
Management, LLC (collectively “Werner”) operate an approximately
eight-week Student Driver Program as part of the training and
orientation for new drivers.

Plaintiff Philip Petrone filed this

action on September 14, 2011, asserting minimum wage violations
under the Fair Labor Standards Act (“FLSA”) and Pennsylvania
state law.

In addition, violations under the Nebraska Wage

Payment and Collection Act (“NWPCA”) and the Nebraska Wage and
Hour Act (“NWHA”) were asserted.

The plaintiffs claimed that

Werner was required under law to pay them for off-duty time spent
in the sleeper berth and on breaks.

The plaintiffs and

defendants filed cross-motions for summary judgment.

On August

3, 2015, the Court granted the plaintiffs’ motion for summary
judgment on the FLSA, NWPCA, and the NWHA claims.
On August 26, 2015, the Eighth Circuit Court of Appeals
filed two opinions holding that employees could not use the NWPCA
to enforce their rights under the FLSA.

See Acosta v. Tyson

Foods, Inc., 800 F.3d 468 (8th Cir. 2015); Gomez v. Tyson Foods,
Inc., 799 F.3d 1192 (8th Cir. 2015).

In both cases, the Eighth

Circuit reversed and remanded the district court’s order granting
summary judgment in favor of the employees and directed the
district court to enter judgment for the employer.
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Standard of Review
Rule 54(b) provides that:

“any order or other

decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the
parties . . . may be revised at any time before the entry of
judgment adjudicating all the claims and all the parties’ rights
and liabilities.”

Fed.R.Civ.P. 54(b).

Generally, a court may

amend or reconsider any ruling under Rule 54(b) to correct any
“‘clearly’ or ‘manifestly’ erroneous findings of facts or
conclusions of law.”

Allstate Ins. Co. v. Weber, No.

1:05cv00039, 2007 WL 1427598, at *2 (E.D. Ark. May 11,
2007)(quoting Doctor John’s, Inc. v. City of Sioux City, Iowa,
456 F.Supp.2d 1074, 1075 (N.D. Iowa 2006)).

District courts have

substantial discretion in deciding whether to reconsider an
interlocutory order under Rule 54(b).

Wells’ Dairy Inc. v.

Travelers Indem. Co. of Ill., 336 F.Supp.2d 906, 909 (N.D. Iowa
2004).
Nebraska Wage Statutes
The NWPCA provides for regular payment of wages that
are otherwise due and penalties for failing to comply.
Neb.Rev.Stat. § 48-1230, 48-1231.

See

Under the NWPCA, wages are

defined as “compensation for labor or services rendered by an
employee . . . when previously agreed to and conditions
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stipulated have been met.”
added).

Neb.Rev.Stat. § 48-1229(6)(emphasis

In Acosta, the Eighth Circuit applied the case of

Freeman v. Central States Health and Life Co., 2 Neb.App. 803,
515 N.W.2d 131 (1994) to resolve the issue of whether a wage is
“previously agreed to” under the NWPCA when a federal statute,
the FLSA, requires compensation to which the parties did not
previously agree.

Acosta, 800 F.3d at 474.

In Freeman, the

Nebraska court held that “a party cannot use the Nebraska Wage
Act to enforce rights that it may possess under the FLSA.”
Freeman, 515 N.W.2d at 135.

Therefore, an employee’s claim for

unpaid wages under the NWPCA must previously be agreed to and the
underpayment under the FLSA does not establish that an employer
previously agreed to pay the employee.
The NWHA establishes a minimum wage and safeguards
“existing minimum wage compensation standards which are adequate
to maintain the health, efficiency and general well-being of
workers against the unfair competition of wage and hours
standards which do not provide adequate standards of living.”
Neb.Rev.Stat. § 48-1201.

This Court previously concluded that

“the NWHA was intended to have substantially the same coverage as
the FLSA.” (Filing No. 52, at 10, 8:12CV307).

The Eighth Circuit

did not address the NWHA in either Acosta or Gomez.

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Discussion
Werner moves this Court to reconsider its summary
judgment order in light of the Eighth Circuit’s rulings in Acosta
and Gomez.

Under the new Eighth Circuit precedent, Werner argues

that the plaintiffs have failed to establish a claim under the
NWPCA.

In addition, Werner claims that the Eighth Circuit’s

ruling in Acosta and Gomez also suggests that the plaintiffs’
NWHA claims should be dismissed.

The plaintiffs argue that

Acosta and Gomez are inapposite to this case, and do not provide
a basis for reconsideration.
In ruling on previous orders, this Court relied on the
district court’s opinions in Acosta and Gomez.

Acosta and Gomez

were both class actions for unpaid wages, not solely overtime,
under the FLSA and Nebraska wage and hour laws.

In this case,

the plaintiffs seek unpaid wages under the FLSA and Nebraska wage
and hour laws for off-duty time spent in the sleeper berth and on
breaks.

Therefore, the Eighth Circuit’s recent rulings in Acosta

and Gomez are instructive to this Court.

To determine whether

summary judgment was proper for the state law claims in light of
the new Eighth Circuit precedent, the Court will discuss both
Nebraska statutes in turn.

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I. Nebraska Wage Payment and Collection Act
Under the NWPCA, wages are defined as compensation for
labor or services when previously agreed to between the employer
and employee.

See Neb.Rev.Stat. § 48-1229.

In Acosta, the

employees claimed that “the amount of time for which they were
paid based on their classification was insufficient under the
FLSA.”

Acosta, 800 F.3d at 473.

On appeal, the employees argued

that multiple documents met the NWPCA’s requirement that
compensation be “previously” agreed upon. Id. at 474.

However,

the Circuit Court found the documents to be insufficient to show
an agreement between the employer and the employees.

Id.

In

Gomez, the terms of employment were governed by a collective
bargaining agreement which did not specify compensation for the
activities at issue.

Gomez, 799 F.3d at 1195.

The Eighth Circuit concluded that the Freeman case was
the best evidence of Nebraska law to determine whether a
violation under the FLSA would satisfy the NWPCA’s requirement
that wages were “previously agreed to.”

Acosta, 800 F.3d at 474.

The plaintiffs in Freeman sought compensation under the NWPCA for
work time from 38.75 to 40 hours per week, both for regular
hourly wage and overtime compensation.
135.

Freeman, 515 N.W.2d at

The Nebraska court found that there was no previous

agreement for such compensation as required by the NWPCA.
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Id.

In addition, the Nebraska court concluded that “a party cannot
use the Nebraska Wage Act to enforce rights that it may possess
under the FLSA.”

Id.

In this case, the plaintiffs have failed to show that
the employees previously agreed to wages as required by the
NWPCA.

Moreover, the defendants cite to deposition testimony in

which plaintiffs and class members admit that they were never
told they would be paid for off-duty sleeper berth or break time.
(See Filing No. 320, Ex. 1-B, p. 16:1-9; Ex. 1.E, pp. 25:8-12,
40:11-16; Ex. 1.D, pp. 54:16-19, 55:5-13; Ex. 1.I, pp. 18:1719:13; Ex. 1.K, p. 19:15-22).

The plaintiffs were specifically

told that they would not be compensated for off-duty time.

The

Court finds that off-duty time spent in the sleeper berth or on
break was not compensation that was “previously agreed to” as
required by the NWPCA.

As a result, the Court will enter summary

judgment in favor of the defendants for the NWPCA claims.
II.

Nebraska Wage and Hour Act
The Eighth Circuit did not address the NWHA in either

Acosta or Gomez.

In this case, the defendants argue that the

Eighth Circuit’s remanding for entry of judgment in favor of the
employer in Gomez demonstrates that the Circuit rejected the
district court’s conclusion that the NWHA is parallel to the
FLSA.

The plaintiffs argue that Acosta and Gomez only dealt with
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the narrow issue of whether the NWPCA could be used to collect
unpaid wages that are only due by virtue of a statutory violation
of the FLSA.
The Eighth Circuit did not address the issue of whether
the NWHA provides parallel coverage as the FLSA.

This Court

previously conducted an extensive analysis into the language,
purpose, and legislative history of the NWHA, and concluded that
the NWHA was intended to have substantially the same coverage as
the FLSA (See Filing No. 52 at 10-12, 8:12CV307).

As a result,

the Court will deny the defendants’ motion to reconsider the NWHA
claims.

Accordingly,
IT IS ORDERED:
1) Defendants’ motion (Filing No. 378) for

reconsideration of the August 3, 2015, Order (Filing No. 347) is
granted in part.

The portion of the Court’s August 3, 2015,

Order granting summary judgment in favor of the plaintiffs on the
NWPCA claims is vacated.
2) Plaintiffs’ NWPCA claims are dismissed with
prejudice.

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3) Defendant’s motion to reconsider the NWHA claims is
denied.
DATED this 18th day of April, 2016.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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