Transportation 39

After the Eastern District of Arkansas decertified the conditional class of bus drivers on federal claims and denied class certification with regard to state claims in Douglas v. First Student, Inc., 9-cv-652, a group of 87 of the opt-in plaintiffs and potential class members from Douglas filed an action for their individual claims on November 16, 2012  in Abbott, et. al. v. First Student, Inc., 12-cv-726 (E.D. Ark.).  The bus drivers are now each seeking individual relief for unpaid wages and unpaid overtime under both the Fair Labor Standards Act and the Arkansas Minimum Wage Act as joined plaintiffs with common counsel.  This action by the plaintiffs and their counsel represents one means by which class plaintiffs will attempt to aggressively continue pursuit of their claims even after decertification or denial of certification on a class basis.

Northern District of California Judge Ronald M. Whyte denied a motion for class certification on September 7, 2012 with regard to a class of truck drivers from CEVA Freight, LLC seeking to be classified as employees instead of independent contractors.  Judge Whyte found that the circumstances for the owner-operators were too individualized to allow for them to proceed with their misclassification action as a class.  Some of the owner-operators hired their own teams to operate trucks while others operated their own trucks--these types of differences in circumstances were enough for the Judge to deny the motion.  The owner-operator plaintiffs claimed that, as a result of the misclassification, they were owed overtime, as well as meal breaks and other benefits.  With this ruling, the owner-operator plaintiffs would have to pursue their claims of misclassification individually, pending any appeal to the 9th Circuit Court of Appeals.  The case has been ongoing in federal court since 2005.

As we discussed in prior entries at this site, the NLRB recently promulgated regulations requiring all employers to post workplace notices informing employees of their rights under the National Labor Relations Act.  The National Association of Manufacturers ("NAM") challenged the NLRB's ability to require the posters in court; more specifically, the lawsuit stated that (1) the NLRB did not have the power to label a failure to display the poster as an "unfair labor practice"; and (2) the NLRB did not have the right to find that the statute of limitations on an unfair labor practices action could be tolled if an employer did not display the required poster.  While the District of Columbia District Court found the NLRB could require employers to display the posters as of April 30, 2012, the court agreed with NAM that the NLRB does not possess the power to define an action as an unfair labor practice, nor to toll the statute of limitations on an unfair labor practice.

As alluded to in our previous post, the California Supreme Court now officially decided to delay its ruling in the case of Brinker Restaurant Corp. v. Superior Court, No. S166350 until specific supplemental briefing is submitted.  The Court is allowing both sides until January 3, 2011, to respond to an amicus curiae brief filed by the California Employment Law Council (“CELC”).  The CELC’s amicus brief addresses whether a ruling on the so-called “rolling 5” issue (see our prior post for details) will apply retroactively or only prospectively.  Each side will have 10 days in which to reply to the other side’s response.  The statutory 90-day clock will restart on January 13, 2012, giving the Court until April 12, 2012 to issue its decision.  Questions regarding the impact of the decision or California’s meal and rest break rules should be directed to Jim Hanson.