SCOTT NANCE and FREDERICK FREEDMAN, individuals on behalf of themselves, all others similarly situated, and the general public, Plaintiffs,
MAY TRUCKING COMPANY, an Idaho corporation, and DOES 1 through 100, Defendants.
Allison H. Goddard, James Patterson, Patterson Law Group, APC San Diego, CA, Steve D. Larson, Jennifer S. Wagner, Stoll Stoll Berne Lokting & Shlachter, Portland, OR, Attorneys for Plaintiffs.
Adam C. Smedstad, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Chicago, IL, James H. Hanson, Kelli M. Block, R. Jay Taylor, Jr., Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis, IN, Kim T. Buckley, Esler Stephens & Buckley, Portland, OR, Attorneys for Defendants.
OPINION & ORDER
MARCO A. HERNANDEZ, District Judge.
Plaintiffs Scott Nance and Frederick Freedman are former employees of Defendant May Trucking Company. Plaintiffs allege claims for minimum wage violations, improper deduction of wages, and failure to pay wages upon termination. Plaintiffs sue on behalf of themselves and others similarly situated. The court previously granted in part Plaintiffs' motion for class certification.
Before the court are the parties' motions for summary judgment. Plaintiffs move on two issues: (1) Oregon law should apply to the Oregon Class claims, and (2) time spent in the sleeper berth of a moving truck is compensable. Defendant moves on two issues as well: (1) Plaintiffs were not employees at the time of orientation, and thus there is no minimum wage violation, and (2) Plaintiffs were paid the minimum wage or more as participants in the Entry Level Driver Program. In the alternative, if the court finds that summary judgment cannot be granted on the Entry Level Driver Program claim, Defendant requests summary judgment on the issue that for all class members, time spent in the sleeper berth is not compensable.
Based on the reasons to follow, I deny Plaintiffs' motion for partial summary judgment , grant Defendant's motion for summary judgment , and deny Defendant's motion to strike .
Defendant May Trucking Company is a for-hire motor carrier that provides trucking services nationwide. Smith Decl.  ¶ 2. The company is headquartered in Brooks, Oregon and operates terminals in Arizona, Colorado, Florida, Idaho, Indiana, and Utah. Id. at ¶ 3. May Trucking has a fleet of 800 trucks and employs about 870 over-the-road truck drivers-drivers who make deliveries nationwide. Id.
May Trucking requires all applicants to attend an orientation. Pls.' Supplemental App'x  ("PSA") Ex. 17 at 2. Only applicants who have demonstrated minimum qualifications will be invited to the orientation. PSA Ex. 18 at 34. Plaintiff Scott Nance attended orientation in Oregon beginning August 30, 2011. Def.'s Mem. Supp. Mot. Summ. J. ("Def.'s MSJ") Ex. H at 17. At the orientation, Nance completed a "Driver Qualification Form" and agreed to drug and alcohol testing. Def.'s MSJ Ex. C at 2. The form also included statements that Nance understood that the filling out the form "does not obligate May Trucking Company in any way" and that the form must be signed to "commence with the qualification process with May Trucking Company." Id . Nance signed the form on August 30, 2010. Id . After the two-day orientation, Nance entered the Entry Level Driver ("ELD") Program. Def.'s MSJ Ex. H at 13. As a trainee in the ELD Program, Nance was assigned a trainer, whom he shadowed. Id. at 12. Nance was paid $50 per day as a trainee. Def.'s MSJ Ex. C at 3.
Plaintiff Frederick Freedman went through a similar application process with May Trucking. He signed the Drive Qualification Form on December 13, 2010. Def.'s MSJ Ex. D at 2. However, Freedman did not pass the mandatory physical on the first day of orientation because of his high blood pressure. Def.'s MSJ Ex. G at 11-12. Freedman decided to complete the orientation, even though he understood that he would not be hired until after he passed the physical. Id. at 13, 14. He later passed the physical. Id. at 21. On February 27, 2011, Freedman was assigned a trainer and entered the ELD Program. Id. at 25. Freedman was paid $50 per day as a trainee. Smith Decl. ¶ 15.
Plaintiffs are no longer employed with May Trucking. Nance worked for May Trucking for about six weeks; and Freedman worked for about five months. Id. at ¶ 16.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial responsibility of informing the court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to present "specific facts" showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik , 559 F.3d 924, 927-28 (9th Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the pleadings and designate facts showing an issue for trial. Bias v. Moynihan , 508 F.3d 1212, 1218 (9th Cir. 2007) (citing Celotex , 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v. Connell , 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc. , 658 F.3d 1108, 1112 (9th Cir. 2011).
If the factual context makes the nonmoving party's claim as to the existence of a material issue of fact implausible, that party must come forward with more persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).
Plaintiffs move for partial summary judgment on two issues: (1) Oregon law should apply to the Oregon Class claims, and (2) time spent in the sleeper berth of a moving truck is compensable. Defendant moves for partial summary judgment on two issues: (1) Plaintiffs were not employees at the time of orientation, and thus there is no minimum wage violation, and (2) Plaintiffs were paid the minimum wage or more as participants in the Entry Level Driver Program. In the alternative, if the court finds that summary judgment cannot be granted on the Entry Level Driver Program claim, Defendant requests summary judgment on the issue that for all class members, time spent in the sleeper berth is not compensable.
I. Minimum Wage Violation - Unpaid Orientation
In their first and second claims, Plaintiffs Nance and Freedman allege that May Trucking violated the Fair Labor Standards Act ("FLSA") and Oregon minimum wage laws, 29 U.S.C. § 206 and ORS § 653.025, when it did not pay for time spent at the orientation. Third Am. Compl. ¶¶ 38, 61. May Trucking counters that Nance and Freedman were not employees at the time of orientation. Def.'s MSJ 8.
FLSA defines "employee" as "any individual employed by an employer." 29 U.S.C. § 203(e). "Employ" is defined as "to suffer or permit to work." Id. at § 203(g). "[T]he [Oregon] legislature adopted the FLSA's definition of employ' for the purpose of the state minimum wage laws as including to suffer or permit to work.'" Dinicola v. State , 268 P.3d 632, 642 (Or. Ct. App. 2011); see ORS § 653.010(2) (definition of "employ"). There is no definition of "employee" under the Oregon minimum wage statute. Thus, for both ...