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Vasquez v. First Student, Inc.

United States District Court, C.D. California

March 12, 2015

IMELDA VASQUEZ, on behalf of herself, all others similarly situated, Plaintiff,


OTIS D. WRIGHT, II, District Judge.


Plaintiff Imelda Vasquez, a former bus driver for Defendant First Student, Inc., moves for class certification of five classes of non-exempt employees of Defendant First Student Inc. (ECF No. 34.) Plaintiff asserts that drivers are paid based upon the activities they perform and not the hours worked, and that this activity-based plan does not account for rest breaks as required by California law. Plaintiff also contends that drivers' wage statements did not comply with California law. Defendants First Student Inc. and First Student Management, LLC (collectively, "Defendants") argue that too many individual issues predominate and therefore class certification is inappropriate. For the reasons discussed below, the Court DENIES Plaintiff's Motion for Class Certification.[1] (ECF No. 34.)


A. Overview of First Student's California Operations

Defendant First Student is a transportation company providing school bus services to school districts across the country. (Opp'n 2.) From March 2009 to date, First Student has operated over 40 locations in California, including 32 locations that are currently active. (Id. ) The California locations provide bus service for both special education students and traditional education students. (Id. at 3.) The locations also provide charter services for multiple school districts and organizations such as the YMCA across California. (Id. )

Defendants First Student Management, LLC is the legal employer of the drivers who work in First Student's California operations ("Drivers"). (Id. ) From March 2009 to date, First Student Management has employed over 8, 000 Drivers through California. (Id. ) The number of Drivers employed at any one facility ranges from a dozen to several hundred. (Id. )

Most California locations have collective bargaining agreements ("CBAs") covering the Drivers. The CBAs include provisions relating to route assignment, hourly wage rates applicable to time worked by Drivers, and minimum hours guarantees. ( See generally ECF No. 37.) Some of the CBAs include provisions specifically addressing rest breaks or requiring the employer to follow all applicable provisions of state law. ( See, e.g., ECF No. 37, Ex. 5.)

At the time of hire and annually thereafter, Drivers are provided with copies of First Student's National Handbook. ( See ECF No. 39.) The National Handbook includes general company-wide policies; however, those policies are superseded by any CBA that may be in place at a First Student location. (Opp'n 4.)

B. Drivers' Compensation

Most Drivers drive either a special education or regular school bus "home to school" route. (Id. ) Some school districts only designate the time a bus is to drop off the students at the school for a route's a.m. run, and the time the bus is to pick up the students at the school for the p.m. run. (Id. ) In these situations, First Student establishes the pick-up times and locations for the route. (Id. ) Other school districts set both the arrival times for the schools and the stop locations for the routes, and some even set the time to drive from the yard to the pick-up location and back. (Id. ) These time points are used to put together both the route schedule and shift schedule for the route. (Id. )

Most locations use a daily bus report ("DBR") form on which the route drivers will record the time they pick up the keys at the beginning of their shift and the time they have completed driving the route, conducted the post-trip inspection, and returned the keys to the dispatch office. ( See ECF No. 39, Ex. 52.) First Student has a general "exception" policy articulated in its National Handbook, where Drivers are to complete an "exception" form if they work more time than their normal scheduled hours. ( See id., Exs. 49, 52.) Consistent with this policy, the payroll departments at the California locations examine all applicable time records submitted by Drivers in order to ensure that Drivers are being correctly paid for all time worked. ( See Sanchez Decl. ¶ 16; ECF No. 38, Exs. 60-82.) All time worked by Drivers is paid at an hourly wage rate. (Opp'n 5.) For each California location, the CBAs describe the different hourly rates. ( See, e.g., Vasquez Decl., Ex. A at FSM001641.)

Drivers also have guaranteed minimum hours. Typically, the minimum guarantees are based on whether the driver drives a morning route, a mid-day route, and/or a p.m. route. (Opp'n 6.) Many of the CBAs also have separate minimum guarantees for cover drivers and/or charter drivers. The route assigned to the driver through a bidding process typically determines whether or not a particular driver will receive the guarantee because of the time actually worked by the driver. (Id. ) There are also differences between locations with respect to how many drivers receive guaranteed pay for time they are not performing any duties. ( See Hubbard Decl. ¶ 18 (80 percent of San Jose drivers work less than guarantee); Calhoun Decl. ¶ 13 (60 percent of drivers work less than guarantee); Esber Decl. ¶ 13 (75 percent of the Upland drivers and 60-65 percent of East San Gabriel drivers work less than minimum guarantee).)

C. Driver's Wage Statements

FirstGroup America ("FGA"), Defendants' corporate parent in Cincinnati, utilizes a third-party vendor, ADP, to generate wage statements and paychecks/vouchers for employees of FGA-related entities. (Vogt Decl. ¶ 2.) The wage statements and paychecks/vouchers generated by ADP are provided directly by ADP to the locations where the employees work. (Id. ) The wage statements include required information such as hours worked and hourly rates of pay. ( See ECF No. 34-7, Albert Decl., Ex. A.)

First Student locations in California are placed into one of four different "pay groups." In October 2012 it came to the attention of Defendants that the ADP wage statements for two of the pay groups did not display the beginning date of the payroll period, despite the fact that FGA had previously asked ADP to make sure that the wage statements for all pay groups in California include that information. (Vogt Dec. ¶ 4.) FGA alerted ADP to the issue and by at least December 2012 all ADP wage statements for the impacted pay groups included the beginning date of the pay period. ( Id., Exs. A-B.)

D. Plaintiff's Employment As A Driver

Plaintiff was employed as a driver at the Pasadena location from August 2012 until early 2013. (Vasquez Decl. ¶ 3.) At the time she was hired she received both the CBA and location-specific handbook for the Pasadena location. (Id. ¶ 5.) Plaintiff drove a special needs route for the Alhambra district from August 31, 2012 until October 12, 2012. (Opp'n 8.) She always worked more hours per day/shift than the guarantee included in the Pasadena CBA. Id. Plaintiff alleges that she was never told that she was paid for rest breaks or that she was entitled to a 10-minute rest break if she worked at least 3½ hours in a day. (Vasquez Decl. ¶¶ 4, 6.) She further claims that her wage statements did not include the beginning date of the pay period or reference to any tasks performed during the pay period. (Id. ¶ 7.)

E. Procedural History

On March 7, 2013, Plaintiff filed her original class action complaint in Los Angeles Superior Court, alleging causes of action for: (1) failure to pay minimum wages for all hours worked based on allegations of "off-the-clock" work by class members; (2) failure to provide accurate written wage statements based on failure to pay for the alleged "off-the-clock" work; (3) failure to timely pay all final wages based again on the alleged "off-the-clock" work; and (4) Unfair Competition (Cal. Bus. & Prof. Code §§ 17200, et seq. ) based on the alleged "off-the-clock" work. (Williams Decl. Ex. 1, "Original Complaint.")

On July 10, 2014, Plaintiff requested leave to file a first amended complaint. Plaintiff sought to add two new causes of action: (1) rest period violations of various California Labor Code sections, including Labor Code § 226.7; and (2) civil penalties pursuant to Labor Code § 2628. (Williams Decl., Ex. 37.) The state court granted Plaintiff's motion to amend on July 31, 2014 and on August 7, 2014, Plaintiff filed her First Amended Complaint ("FAC"). (Williams Decl., Ex. 44.)

On August 28, 2014, Defendants filed their Notice of Removal and removed the First Amended Complaint to this Court. (ECF No. 1.) On October 6, 2014, Plaintiff filed her Motion to Remand. (ECF No. 17.) On December 3, 2014, the Court denied Plaintiff's Motion. (ECF No. 33.)

On December 3, 2014, Plaintiff filed this Motion proposing to certify five classes and subclasses: (1) minimum wage class, (2) rest break class, (3) wage statement class, (4) piece-rate wage statement sub-class, and (5) derivative wage statement sub-class. ...

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