Petrone v. Werner Enterprises, Inc. et al

Filing 83

MEMORANDUM AND ORDER - Case No. 8:12CV307 is consolidated with the present case. All pending motions in case No. 8:12CV307 are denied without prejudice. Plaintiffs' motion 67 for leave to file a second amended complaint is granted. Plaintiffs& #039; motion 52 for conditional class certification is granted. Defendant shall provide any response as provided for in this order by October 22, 2012. 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,

)
)
Plaintiff,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC
)
)
Defendants.
)
______________________________)
PHILLIP PETRONE,
)
)
Plaintiff,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC
)
)
Defendants.
)
______________________________)

8:11CV401

8:12CV307

MEMORANDUM AND ORDER

This matter is before the Court on plaintiffs’ motion
for conditional certification of this case as a collective action
under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.
(Filing No. 52), plaintiffs’ motion for leave to amend their
complaint (Filing No. 67); and the Court’s order to show cause
why this case should not be consolidated with case number
8:12CV307 (Filing No. 72).

Because of the overlapping nature of

the issues, the Court finds it necessary to address all three
simultaneously.

I. Consolidation
The facts in the present case are almost, if not
precisely, identical to the facts of the later filed case.
Judicial economy weighs heavily in favor of consolidation.
Though the present case has had some discovery and substantial
briefing, the issues have been limited to conditional
certification -- a procedural hurdle in FLSA jurisprudence that
is not required for Nebraska’s state hour and wage law.
Regardless, if conditional certification were pursued for the
state law claim, the similarity in the underlying facts and
allegations would make further discovery on the issue
unnecessary.

The Court recognizes that the expanded factual

pleadings in the later filed case complicate this assessment, but
the Court’s order regarding the pending motion to amend makes
this point moot.
II. Leave to Amend the Complaint
Leave to amend should be freely given “when justice so
requires.”

Fed. R. Civ. P. 15(a)(2).

absolute right to amend.”

However, “[t]here is no

Becker v. Univ. of Neb. at Omaha, 191

F.3d 904, 908 (8th Cir. 1999).

“A denial of leave to amend may

be justified by ‘undue delay, bad faith on the part of the moving
party, futility of the amendment or unfair prejudice to the
opposing party.’”

Amrine v. Brooks, 522 F.3d 823, 833 (8th Cir.

2008) (quoting United States ex rel. Joshi v. St. Luke’s Hosp.,

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Inc., 441 F.3d 552, 557 (8th Cir. 2006).

“The burden of proof of

prejudice is on the party opposing the amendment.”

Roberson v.

Hayti Police Dept., 241 F.3d 992, 995 (8th Cir. 2001).

On the

other hand, “[i]f a party files for leave to amend outside of the
court's scheduling order, the party must show cause to modify the
schedule.”

Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th

Cir. 2008).
There are no indications of undue delay or bad faith in
pursuing discovery at a diligent pace.

No deadline has been set

by this Court for amended complaints or discovery.

While it is

true that the Court’s deadline for a motion on conditional
certification implies that discovery related to that motion will
be completed by that date, plaintiffs assert that no further
discovery will be necessary to support its motion for conditional
certification.

Thus, there is no prejudice to the defendant in

allowing an amendment to the pleading that relies on the same
basic underlying facts as the original allegations.

Following

this order, both sides will have the opportunity to pursue
additional discovery regarding both the issue of class
certification and the underlying merits of the case.
III. Conditional Certification
Plaintiffs allege that defendant’s policies regarding
its training program systematically under compensate newly hired
drivers that participate in that program in violation of the

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FLSA.

Further, plaintiffs allege that they were under-

compensated due to those policies and all participants in the
training program were similarly under-compensated.

Defendant

argues that, considering the clarity of its written policies,
plaintiff’s evidence is insufficient to establish a company wide
policy or practice that would indicate additional similarly
situated plaintiffs.

Defendants further aver that any

underpayment to plaintiffs was due to plaintiffs’ failure to
follow written company policy when recording their time.
A. Factual Background
Defendants operate a six to eight week Student Driver
Program as part of the training and orientation for new drivers.
Part of the training consists of driving a scheduled route with a
trainer during which the trainee assists in the driving, fueling,
maintenance, and communications with defendant.

Defendants

compensate trainees with the higher of $50 per day or $7.25 per
“on-duty” hour.

Plaintiffs contend that defendants

inappropriately designate significant amounts of legally
compensable time as “off-duty” leading to under-compensation in
violation of the FLSA.

Specifically, plaintiffs complain of

three separate types of violations:

(1) a practice of failing to

compensate drivers for breaks of less than 20 minutes; (2) a
practice of failing to compensate for time employees spend
communicating with Werner headquarters via the Qualcomm system;

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and (3) a practice of failing to compensate for sleeping periods
in excess of eight hours in violation of the continuous workday
rule.
B. Applicable Law
The FLSA authorizes claims “by any one or more
employees for and in [sic] behalf of himself or themselves and
other employees similarly situated.”

29 U.S.C. § 216(b).

Neither the FLSA itself nor the Eighth Circuit have defined
“similarly situated.”

Schleipfer v. Mitek Corp., 1:06CV109 CDP,

2007 WL 2485007, *3 (E.D. Mo. Aug. 29, 2007).

However, the

practice of district courts in the circuit is to apply a two step
approach in making a determination.

See, e.g., Littlefield v.

Dealer Warranty Servs., LLC, 679 F.Supp.2d 1014, 1016-17.
First, early in the litigation process, the class is
conditionally certified upon plaintiffs’ showing that the
proposed class is similarly situated.
burden at [this] stage is not onerous.”

Id.
Id.

“The plaintiff’s
Conditional

certification allows plaintiffs to move forward with
identification of proposed class members and notification of the
opportunity to opt-in.

Once, the proposed class members have

been identified and have voiced their consent to participation
and discovery has closed, defendants have the opportunity to move
for decertification of the class.

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See Littlefield, 679 F.Supp.2d

at 1017.

At that point, “the court must determine whether the

plaintiffs are, in fact, similarly situated.”

Id.

C. Analysis
Under the Fair Labor Standards Act, employers must
compensate employees with at least a specified minimum wage for
every hour worked.

29 U.S.C. § 206(a).

Short rest periods of

less than 20 minutes “must be counted as hours worked.”
C.F.R. § 785.18.

29

Where an employee is required to report at a

place of work at a specific time, time spent waiting to begin is
compensable.

29 U.S.C. § 790.6.

“Under certain conditions an

employee is considered to be working even though some of his time
is spent in sleeping.”

29 C.F.R. § 785.20.

Where an employee is

on duty for 24 hours or more, the most that can be ascribed to
eating and sleeping (non-compensated time) is 8 hours.

29 C.F.R.

§ 785.22.
Plaintiff claims violations of these rules for all
employees in the purported class can be gleaned from the
following facts:

employees are directed to log their “duty

status” in the Qualcomm system according to a set of rules and
definitions in Werner’s employee manual.

The manual includes the

following four definitions:
1. Off Duty (Section 395.8) The
period of time the Driver is
Off-Duty and has no responsibility
to the carrier, equipment, or
cargo. Driver is relieved from all
responsibility for his vehicle
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during meal, coffee, and routine
stops, providing that said vehicle
is legally and safely parked and
keys for the vehicle are in the
driver’s possession. The break
must be a minimum of 30 minutes in
duration. . . .
2. Sleeper Berth (Section 395.1)
The time the Driver spends resting
in the sleeper berth.
3. Driving (Sections 395.2 and
395.3) DRIVE and DRIVING TIME shall
include all time spent at the
driving controls of a motor vehicle
in operation.
4. On Duty - Not Driving (Sections
395.2 and 395.3) On-duty time means
all time from the time a Driver
begins to work or is required to be
in readiness to work until the time
the Driver is relieved from work
and all responsibility for
performing work. . . .
The Qualcomm entries become the basis for compensation as
follows:
Werner's drivers track their daily
activities by indicating, through
entries in the computerized
Qualcomm message systems in their
trucks, whether the activity is
on-duty or off-duty. The drivers'
electronic Qualcomm messages are
then transmitted to a corresponding
Qualcomm message system at Werner's
headquarters. The Qualcomm
messages received by Werner's
Qualcomm system are then
electronically transmitted to
Werner's electronic Driver Log
system, which automatically
calculates the hours worked by each
driver by reading the messages
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transmitted from the Qualcomm
system in each truck.
(Def. Ans. To Inter. No. 11).

Plaintiffs also provide examples

of periods for which they were compensated according to the log
entries.
Plaintiffs have provided evidence that defendant
employed a system of tracking compensable hours that failed to
comply with the compensation requirements of the FLSA.

Such

evidence satisfies the plaintiffs’ initial burden of showing that
the purported class is similarly situated and provides the basis
for conditional class certification.
The Court recognizes that defendant has not taken the
opportunity to respond to plaintiffs’ supplemental brief.

As

this order relies heavily on the facts as characterized in that
brief and issues of consolidation may be affected, this will be
only a provisional order which gives defendant time to respond.
Pending defendant’s brief regarding the issues raised in
plaintiffs’ supplemental brief,
IT IS ORDERED:
1) Case No. 8:12CV307 is consolidated with the present
case.

All pending motions in case No. 8:12CV307 are denied

without prejudice.
2) Plaintiffs’ motion for leave to file a second
amended complaint is granted.

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3) Plaintiffs’ motion for conditional class
certification is granted.
4) Defendant shall provide any response as provided for
in this order by October 22, 2012.
DATED this 11th day of October, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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