Petrone et al v. Werner Enterprises, Inc. et al

Filing 52

MEMORANDUM AND ORDER granting 23 Plaintiffs' Motion to Certify Class. No later than July 25, 2013, plaintiffs' counsel shall furnish the Court with information upon which the Court can determine the appropriate appointment of counsel under Rule 23(g). Ordered by Senior Judge Lyle E. Strom. (JAB)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
PHILLIP PETRONE, on behalf of
himself and all those
similarly situated, BRIAN
PANKZ, on behalf of himself
and all those similarly
situated, STEWART FISHER, on
behalf of himself and all
those similarly situated, and
JASBIR SINGH, on behalf of
himself and all those
similarly situated,

)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
WERNER ENTERPRISES, INC., and )
DRIVERS MANAGEMENT, LLC
)
)
Defendants.
)
______________________________)

8:12CV307

MEMORANDUM AND ORDER

This matter is before the Court on the motion of
plaintiffs to certify a class for their state law claims under
Rule 23 (Filing No. 23).
I. Background
Plaintiffs have requested certification of “a class
that includes all drivers who have been employed in Defendants’
Student Driver Program during the period from five years prior to
the filing of Plaintiffs’ Complaint until present.”
24, 10).

(Filing No.

Plaintiffs contend that all employees who participated

in the Student Driver Program were subject to a common
compensation calculation system that was programmed to consider
only the time for which the drivers indicated they were “on duty”

and to exclude from calculations any time for which the drivers
indicated they were “off duty.”

Plaintiffs contend that such a

system is problematic because the drivers were instructed to log
“on duty” and “off duty” time in accordance not with statutory
wage definitions or contractual compensation arrangements but
with definitions used by the Department of Transportation to
limit the amount of time that a particular driver is allowed to
drive without rest.

Plaintiffs’ state-law theories include

violation of Nebraska’s Hour and Wage Act (Neb. Rev. Stat. §§ 481201 to 48-1209), violation of Nebraska’s Wage Payment and
Collection Act (Neb. Rev. Stat. §§ 48-1228 to 48-1232), unjust
enrichment, breach of an implied contract, and breach of an
express contract.

Though the underlying facts apply to all

theories of recovery, the class action certification issues
differ.
II. Legal Standard
For certification of a class under Federal Rule of
Civil Procedure 23, plaintiffs must show that:
(1) the class is so numerous that
joinder of all members is
impracticable;
(2) there are questions of law or
fact common to the class;
(3) the claims or defenses of the
representative parties are typical
of the claims or defenses of the
class; and

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(4) the representative parties will
fairly and adequately protect the
interests of the class.
FEDERAL RULE OF CIVIL PROCEDURE 23(a).
In addition, plaintiffs must satisfy one of the three
requirements in Rule 23(b).

In the present case, plaintiffs

claim class action status under 23(b)(3) for which the Court must
find “that questions of law or fact common to class members
predominate over any questions affecting only individual members,
and that a class action is superior to other available methods
for fairly and efficiently adjudicating the controversy.”
A class action “may only be certified if the trial
court is satisfied, after a rigorous analysis, that the
prerequisites of Rule 23(a) have been satisfied.”
of Sw. v. Falcon, 457 U.S. 147, 161 (1982).

Gen. Tel. Co.

Such analysis cannot

be conducted “without reasonable specificity” in the plaintiffs’
pleadings.

Id. (quoting Johnson v. Georgia Hwy Express, Inc.,

417 F.2d 1122, 1126 (5th Cir. 1969)).

In addition, rigorous

analysis “may require the court to resolve disputes going to the
factual setting of the case, and such disputes may overlap the
merits.”
2005).

Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir.
“Nonetheless, such disputes may be resolved only insofar

as resolution is necessary to determine the nature of the
evidence that would be sufficient, if the plaintiff's general

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allegations were true, to make out a prima facie case for the
class.”

Id.

III. Analysis
A. Numerosity
The Eighth Circuit has refused to set an arbitrary
number at which joinder of all members becomes impracticable.
See Paxton v. Union Nat. Bank, 688 F.2d 552, 559 (8th Cir. 1982).
Rather, the Circuit considers the number of individuals in the
class, the magnitude of monetary damages for individual claims,
the practical inconvenience of individualized litigation, and
“any other factor relevant to the practicability of joining all
the putative class members.”

Id. at 559-60.

Plaintiffs allege that the putative class consists of
at least 41,000 truck drivers.

This number is based on an

affidavit from one of defendants’ employees that was filed in the
related FLSA case.

In that affidavit, the employee stated that

“[d]uring the three years before the initial complaint was filed,
41,826 individuals participated in Werner’s student driver
program.”

It is also clear from the pleadings that potential

plaintiffs will be widely dispersed geographically, making
joinder more difficult.

See Boyd v. Ozark Air Lines, Inc., 568

F.2d 50, 55 (8th Cir. 1977) (noting that geographical dispersion
should be considered in numerosity analysis).

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Thus, the Court

finds that plaintiffs have established the impracticability of
joining all members of the class.
B. Commonality
Because the plaintiffs have pursued this class action
under Rule 23(b)(3), the issue of commonality is addressed below
under Rule 23(b)(3)’s more stringent standard.
C. Typicality
“A class representative must be part of the class and
possess the same interest and suffer the same injury as the class
members.”

Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1539

(8th Cir. 1996) (internal quotation omitted) (quoting Gen. Tel.
Co. of Sw. v. Falcon, 457 U.S. 147, 156 (1982)).

“The burden is

fairly easily met so long as other class members have claims
similar to the named plaintiff.”

Id. at 1540 (internal quotation

omitted) (quoting DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174
(8th Cir. 1995)).

“Factual variations in the individual claims

will not normally preclude class certification if the claim
arises from the same event or course of conduct as the class
claims, and gives rise to the same legal or remedial theory.”
Id.
Here, the named plaintiffs allege claims stemming from
the same conduct as other class members:

defendants’ systematic

denial of compensation for breaks and certain periods of sleeperberth time which, subject to general commonality concerns

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discussed below, are identical to the claims of other potential
class members.

Nothing about the class representatives’ claims

mark them as unique.

Plaintiffs have met their burden on the

typicality requirement.
D. Adequacy
“The focus of Rule 23(a)(4) is whether:

(1) the class

representatives have common interests with the members of the
class, and (2) whether the class representatives will vigorously
prosecute the interests of the class through qualified counsel.”
Paxton v. Union Nat. Bank, 688 F.2d 552, 562-63 (8th Cir. 1982)
(citing Gonzales v. Cassidy, 474 F.2d 67, 72 (6th Cir.1973)).
“[The] inquiry serves to uncover conflicts of interest between
named parties and the class they seek to represent.”

Amchem

Prod., Inc. v. Windsor, 521 U.S. 591, 594 (1997).
“Representatives must be part of the class and possess the same
interest and suffer the same injury as the class members.”

Id.

at 594-95.
Here the common practice of the defendants served to
deprive both named plaintiffs and other class members of wages
for allegedly compensable work time.

Nothing about the

representatives’ legal claims or factual circumstances suggest
that the representatives’ interests in pursuing the litigation
will diverge from the class as a whole.

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E. 23(b)(3)
Plaintiffs must also satisfy one of the three
subsections of Rule 23(b).

Plaintiffs have pressed their claim

under Rule 23(b)(3) which requires “that the questions of law or
fact common to class members predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy.”
1. Wage Payment and Collection Act
The Wage Payment and Collection Act only provides for
regular payment of wages that are otherwise due and penalties for
failing to comply.

See Neb. Rev. Stat. § 48-1230, 48-1231.

Thus, liability under the WPCA will turn on whether Nebraska law
otherwise provides for compensation based on plaintiffs’ alleged
facts.

If there is an underlying basis for payment, the WPCA

will be triggered for all plaintiffs, though the exact amount
owed may differ.
2. Wage and Hour Act
On their face, plaintiffs’ claims suggest a common
injury among the class members:

trainees in Werner’s program

logged their time in the same way, compensation for all class
members was calculated in the same way based on those logs, and
the compensation calculation violated Nebraska statutes when it
failed to compensate for certain periods logged as “off duty”

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which, though they did not constitute active work time, are
nonetheless compensable.
Defendants argue that the minimum wage claim depends on
individualized showings that the workers were engaged in
activities that primarily benefitted the defendants during the
“off duty” periods.

Defendants premise their argument on the

language of Nebraska’s minimum wage statute which defines wages
as “remuneration for personal services.”
1202(5).

Neb. Rev. Stat. § 48-

Defendants argue that the statutory language requires

compensation only for services rendered, not per se categories of
off-duty time as are compensable under Department of Labor
regulations for the FLSA.

Defendants contend that even if some

“off duty” time is compensable, the statutory language would
require individualized showings that the employee spent time for
the primary benefit of Werner while logged as “off duty.”
Plaintiffs insist that no such showing is necessary
because the time spent in the sleeper berth and the short breaks
taken by the drivers were compensable as a matter of law.

To

support this contention, plaintiffs urge the Court to view the
United States Department of Labor’s regulations as “persuasive
authority” in interpreting Nebraska’s Wage and Hour Act.
DOL’s regulations require compensation, under certain

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The

circumstances, for periods in which the employee is not actively
working.1
If such breaks are not per se compensable under the
Nebraska Wage and Hour statute, plaintiffs’ “common contention”
regarding the injury they suffered dissolves into individualized
inquiries regarding how each plaintiff spent “off duty” time and
whether it was for the benefit of Werner.

Thus, the predominance

analysis, as well as the commonality analysis, hinge on
interpretation of Nebraska’s Wage and Hour Act.

No Nebraska

1

“Rest periods of short duration, running from 5 minutes to
about 20 minutes, are common in industry. They promote the
efficiency of the employee and are customarily paid for as
working time. They must be counted as hours worked. Compensable
time of rest periods may not be offset against other working time
such as compensable waiting time or on-call time.” 29 C.F.R.
§ 785.18.
“An employee who is required to be on duty for less than 24
hours is working even though he is permitted to sleep or engage
in other personal activities when not busy. A telephone
operator, for example, who is required to be on duty for
specified hours is working even though she is permitted to sleep
when not busy answering calls. It makes no difference that she
is furnished facilities for sleeping. Her time is given to her
employer. She is required to be on duty and the time is
worktime.” 29 C.F.R. § 785.21.
“Where an employee is required to be on duty for 24 hours or
more, the employer and the employee may agree to exclude bona
fide meal periods and a bona fide regularly scheduled sleeping
period of not more than 8 hours from hours worked, provided
adequate sleeping facilities are furnished by the employer and
the employee can usually enjoy an uninterrupted night's sleep.
If sleeping period is of more than 8 hours, only 8 hours will be
credited. Where no expressed or implied agreement to the
contrary is present, the 8 hours of sleeping time and lunch
periods constitute hours worked.” 29 C.F.R. § 785.22.
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cases are determinative of this issue.

Neither do any cases give

the Court guidance as to whether the Nebraska Supreme Court would
look to DOL regulations in interpreting the scope of the Nebraska
Wage and Hour Act.

However, the Court finds sufficient evidence

from the language, purpose, and legislative history of the
Nebraska statute to conclude that the NWHA was intended to have
substantially the same coverage as the FLSA.
First, the NWHA was passed with heightened awareness of
employees that would not be covered under the FLSA:

“It was

brought out in the hearing that there would be a large number of
employees not covered by the Federal Wage-Hour-law effective
February 1, 1967.

The Committee felt that this group of

employees needed some protection establishing a minimum wage.”
(Committee Statement on LB 35; Jan. 18, 1967).

It was in this

spirit that the Nebraska legislature crafted and passed the
Nebraska Wage and Hour Act to expand the coverage of minimum wage
requirements to employees not reached by the FLSA.

In the floor

debate, the chairman of the Labor Committee explained, “It is a
bill primarily designed to improve the welfare of the unfortunate
people who are caught in a gray area where even the Federal
Government excludes them.” (Sen. Danner, Floor Debate of LB 35,
p. 82, Jan. 24, 1967).

It is unlikely that the Nebraska

legislature, in passing a bill to expand coverage to more of the
state’s employees, intended to craft a bill that offered less

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protection than the parallel federal statue on which it was
based.
Parallel coverage is also supported by the NWHA’s
policy statement, which mirrors the language of the FLSA.
Compare, 29 U.S.C. § 202 (“existence . . . of labor conditions
detrimental to the maintenance of the minimum standard of living
necessary for health, efficiency, and general well-being of
workers”) with, Neb. Rev. Stat. § 48-1201 (“safeguard 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”).

Nebraska’s

adoption of common language to describe the Nebraska Wage and
Hour Act’s common purpose, further suggests that Nebraska’s
legislature was attempting to provide the same protections as the
federal law.

The NWHA’s reference to safeguarding “existing

minimum wage compensation standards” further confirms that the
NWHA was intended to build upon the standards guaranteed in the
FLSA rather than depart from them.

Id.

Finally, the Department of Labor’s regulations are
themselves based on interpretations of the FLSA by federal
courts.

See, e.g., Armour & Co. v. Wantock, 323 U.S. 126, 131-32

(1944) (rejecting a definition of “working time” limited to
periods of physical exertion); Mitchell v. Greinetz, 235 F.2d 621

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(10th Cir. 1956) (finding breaks compensable).

Notably, the

courts’ interpretations of “work time” looked past the literal
association with periods of exertion to find breaks and waiting
periods compensable under the FLSA.

The NWHA’s “remuneration for

personal services” is capable of the same interpretation, and the
legislative history cited above counsels toward consistency with
federal law.
The Court finds that the Nebraska statute should
provide coverage co-extensive with the FLSA for these periods
because such break time is for the primary benefit of the
employer.

Just as the breaks in Armour and Mitchell contributed

to the safety and efficiency of the employers in those cases, the
Department of Labor has determined that breaks of the kind at
issue in the present case are compensable if they meet certain
criteria.

The Court finds these determinations and the case law

from which they derive to be persuasive precedent.
3. Contract Theories
Defendants argue that all the plaintiffs’ contract
theories will require individual assessment of whether a contract
term providing for payment of “off duty” time existed between the
parties.

According to plaintiffs, their “claims rest on the

assertion that in the state of Nebraska, any agreement between a
truck driver and a trucking company for work in exchange for
wages has an implicit term – either via an implied or explicit

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term in the agreement or via a quasi-contract unjust enrichment
theory - that he or she receive at least the minimum wage as
required by Nebraska state law for all hours worked.”
(Plaintiffs’ Reply Brief, Filing No. 49, at 20).

No Nebraska

precedents support this contention, and the Court sees no reason
to adopt it.

To the contrary, to allow every statutory claim to

be shoe-horned into a contract theory would undermine
distinctions and limitations regarding administrative procedures,
available remedies, and statutes of limitations placed in the
statutes by the legislature.
Any remaining contract theory must rely on evidence of
“services . . . rendered in expectation that the other party
would pay [and] accept[ance of] the services with knowledge of
that expectation.”

Tracy v. Tracy, 7 Neb. App. 143, 149, 581

N.W.2d 96, 101 (1998).

The parities subjective expectations are

highly individualized fact questions, leaving no substantial
common questions with regard to these claims.
4. Damages
If plaintiffs establish liability, they will have to
address the damages of each plaintiff according to the timing and
circumstances of “off duty” time logged by each plaintiff.
Though the amount of damages will be highly individualized to
each plaintiff, the process of calculating compensation using the
driver’s logs will be fairly uniform.

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IV. Conclusion
Having reviewed the major elements of the claims and
the issues presented, the Court finds that the common issues
predominate over the individualized concerns.

Major issue of law

and fact can be resolved in a single trial, preserving judicial
resources and the resources of the parties.

The Court also finds

that given the efficiency of litigating the common questions of
the remaining claims in a single suit, class action is a superior
method of adjudicating the controversy.

Because the statute of

limitations for the remaining claims extends back only four
years, the inclusion dates of the proposed class must be duly
limited.

See Neb. Rev. Stat. § 25-206 (“[A]n action upon a

liability created by statute, other than a forfeiture or penalty,
can only be brought within four years.”).
IT IS ORDERED:
1) Certification of a class that includes all drivers
who have been employed in defendants’ Student Driver Program
during the period from four years prior to the filing of
plaintiffs’ complaint until present is granted.
2) Class certification is limited to claims under
Nebraska’s Wage and Hour Act and Nebraska’s Wage Payment and
Collection Act.
3) No later than July 25, 2013, plaintiffs’ counsel
shall furnish the Court with information upon which the Court can

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determine the appropriate appointment of counsel under Rule
23(g).
DATED this 10th day of July, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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