The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION (Document 17)
On April 20, 2012, Plaintiff Don Clayton ("Plaintiff"), individually and on behalf of himself and all others similarly situated, filed the instant motion for class certification. The motion was heard on June 15, 2012, before the Honorable Dennis L. Beck, United States Magistrate Judge. Michael Malk appeared on behalf of Plaintiff. Ellen Bronchetti appeared on behalf of Defendant Knight Transportation, Inc. ("Defendant" or "Knight").
Plaintiff filed this class action in Tulare County Superior Court on March 8, 2011, based on allegations that Defendant failed to pay its California truck drivers minimum wage for time spent during orientation. Defendant removed the action to this Court on May 6, 2011, based on the Class Action Fairness Act. 28 U.S.C. § 1332(d).
According to the Complaint, Plaintiff was employed by Defendant from August 2008 through December 2008 as a truck driver based in Tulare, California. He alleges that from August 2008 through the end of his employment, he was not paid minimum wage for hours worked during orientation.
The Complaint defines the Class as: All current and former truck drivers employed by Knight Transportation, Inc., who were based on the State of California, and who participated and/or attended an orientation during the period from March 9, 2007, through the present (the "Class Period").
The Complaint alleges that Plaintiff and members of the Class "worked for three days in connection with attending orientation" for Defendant. Complaint, ¶ 18. Defendant compensated drivers for these three days with a flat rate of $30, and, later in the Class Period, $50. Plaintiff alleges, however, that drivers spent 19 hours over three days and therefore were not paid minimum wage. Based on these allegations, Plaintiff alleges causes of action under state law for
(1) Failure to pay minimum wage for time worked in orientation, Cal. Labor Code §§ 1194, 1194.2; (2) Failure to pay wages upon separation of employment, Cal. Labor Code §§ 201-203;
(3) Failure to issue accurate itemized wage statements, Cal. Labor Code §§ 226, 226.3; and (4) Unfair business practices, Cal. Bus. & Prof. Code § 17200, et seq. Plaintiff filed this motion to certify the class under Rule 23(a) and 23(b)(3) on April 20, 2012. Defendant opposed the motion on June 1, 2012, and Plaintiff filed his reply on June 8, 2012.
In support of his motion, Plaintiff contends that Defendant typically conducted at least one orientation per week at each of its two California locations in Tulare and Fontana. There are no differences between the orientations conducted at the two locations. Deposition of Michael Hitchcock ("Hitchcock Dep."), 11:9-12. Although the structure of the orientation program has changed during the Class Period, the length has remained consistent at three days, "give or take one-half day." Deposition of William Johnson ("Johnson Dec."), 20:10-18; Hitchcock Dep., 32:12-15.
Knight requires its applicants to complete a lengthy job application, and performs a background check and investigates the accuracy of the application before applicants are invited to orientation. Hitchcock Dep. 21:8-14; 55:7-55:19. Orientation is closed to those not interested in working for Knight. Knight puts its drivers through orientation because it intends to hire them. Johnson Dep. 22:6-17. Drivers keep a log of their time at orientation, as required by the Department of Transportation ("DOT") and they complete an application package, which includes an IRS W-2 form, a driver's agreement, EDD paperwork and a form authorizing direct deposit. Johnson Dep., 34:24-35:9; 48:25-49:12; Hitchcock Dep., 38:8-22. The payment for attending was typically a total of $100, but it was reduced to $50 at some point during the class period. Johnson Dep., 58:16-22.*fn1
In opposition, Defendant explains that California-based drivers are typically "based" out of Tulare or Fontana, though most of them haul freight throughout the United States. Drivers based in California do not necessarily reside in California and do not frequently haul freight in California. Declaration of Timothy Pollock ("Pollock Decl."), ¶ 3-5. Moreover, some drivers based out of Fontana attended orientation in Phoenix, Arizona. Puneet Bawa Deposition ("Bawa Dep."), 27:15-19, 28:3-13.
Drivers must meet basic DOT requirements to drive a commercial truck, and at Knight, most of these basic requirements are frequently, but not always, determined during the recruiting phase of the application process. Declaration of Danielle Phillipson ("Phillipson Decl.") at ¶¶ 4-5. If the applicant is not disqualified, Knight will invite the applicant to its orientation, where it will determine if the drivers are actually qualified under more detailed DOT regulations. This includes DOT mandated physical examinations, drug screen, road tests, background checks and employment verifications. Hitchcock Decl., ¶ 5, Pollock Decl., ¶ 7.
At orientation, drivers complete the qualification procedure and Knight determines whether to extend an offer of employment. Phillipson Decl., ¶¶ 4-5. Drivers are usually advised, during recruiting or orientation, that they are not hired until they satisfy all DOT requirements and complete orientation. Phillipson Dec., ¶¶ 22-23.
Defendant submits that orientations have changed dramatically over the proposed class period.*fn2 From 2007 to July 2008, Knight's orientation materials were based on the Driving Associates Policies and Procedures Manual, along with any other information the local terminals used. Hitchcock Decl., ¶ 7. Each terminal had a great deal of discretion on how to present this information, including content and time spent on content. Hitchcock Dep., 14:3-8; Hitchcock Decl., ¶¶ 7-8.
In July 2008, Knight implemented a PowerPoint presentation for orientations at California terminals. This allowed for more consistency, though local terminals continued to have discretion on how to present the materials and could add location-specific topics. Hitchcock Dep., 31:1-6.
In May 2011, Knight incorporated the use of an internet-based orientation course, which could be used in place of the classroom portion. Applicants can use this in any location and on their own time schedule, though they still need to go to the terminal for examinations and screenings. Phillipson Decl., ¶ 10. Applicants could also decide to attend in-class orientation at a terminal, where either the PowerPoint presentation or on-line material is used. Phillipson Decl., ¶ 11.
Defendant contends that the length of orientation has also changed over the class period, as has the days on which orientation takes place. Hitchcock Dep., 32:12-33:14, 33:21-34:15; Phillipson Decl., ¶¶ 15-16, 20. The length of sessions depends on class size, the experience of attendees, class needs, availability of presenters and the ...