United States District Court, E.D. California
TODD SHOOK and HERSCHEL BERRINGER, on behalf of himself and others similarly situated, and on behalf of all other “aggrieved” employees, Plaintiffs,
INDIAN RIVER TRANSPORT CO., a Florida Corporation, Defendants.
MEMORANDUM OF DECISION, FINDINGS OF FACT AND
CONCLUSIONS OF LAW
WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE
truck drivers formerly employed by Indian River Transport Co.
(“Indian River”), brought this action on behalf
of themselves and similarly aggrieved employees against
Indian River alleging various violations of California law,
including 1) Labor Code § 226.7 (failure to provide
mandated rest breaks); 2) Labor Code § 226(a) (failure
to provide accurate itemized wage statements); 3) Labor Code
§§ 2699, et seq. (California Private Attorneys
General Act (“PAGA”)) (failure to separately
compensate for rest breaks and unpaid wages); 4) Business
& Professions Code § 17200 (California Unfair
Competition Law); 5) Labor Code §§ 201 and 203
(failure to compensate employees for non-driving work before
and after employees' shifts and failure to timely pay
compensation and wages to former employees); and 6) Labor
Code § 226.2 (failure to provide accurate itemized wage
statements and separately compensate for rest and recovery
periods and other nonproductive time). The gravamen of their
claims is that Indian River violated the California Labor
Code by not providing its drivers with rest breaks, not
compensating them for rest breaks and other time they were
working but not driving, and by providing them with wage
statements that did not include all the information required
by the Labor Code.
two-day bench trial and extended closing arguments, the
matter was submitted to the court for decision. Having
considered the evidence and arguments of counsel, and having
read and considered the briefs, the court finds in favor of
defendant Indian River on all claims. This memorandum
constitutes the court's findings of fact and conclusions
of law pursuant to Federal Rule of Civil Procedure 52(a).
Findings of Fact
Plaintiffs Shook and Berringer and other aggrieved employees
are current and former California-resident drivers
(“California drivers”) employed by Indian River.
Plaintiff Shook worked for Indian River from May to October
2012 and plaintiff Berringer worked for Indian River from
November 2012 to January 2014.
Plaintiffs paid California state income taxes on all their
earnings for Indian River. Plaintiffs also received all their
Indian River wage statements in California.
Indian River is a Florida corporation with its headquarters
in Winter Haven, Florida. Indian River offers liquid
food-grade tank carrier services nationwide, transporting
products such as milk and orange juice.
Indian River's administrative staff and management are
located at Indian River's headquarters in Winter Haven.
The headquarters is responsible for payroll and other back
office functions, including the issuing of wage statements
and the resulting electronic deposits of paychecks, and
drivers are hired out of Winter Haven and trained there. The
Winter Haven facility also has a tank wash and maintenance
facilities. The Winter Haven facility provides 24-hour
dispatch service, including for drivers in the western United
States after hours.
Indian River provides transportation services across the
country. Drivers typically spend several days or weeks away
from home, during which they pick up and drop off product
between suppliers and recipients that are 1-5 days apart. The
area where a driver has his or her residence will normally
determine only the beginning and end of the overall trip.
Thus, a driver who lives in California will usually begin and
end his or her overall trip in California but may spend the
majority of that time outside California. Indian River has
about 25 customers in California.
Although Indian River dispatches most of its trucks out of it
headquarters in Winter Haven, it has facilities in Clovis,
New Mexico and in Turlock, California, with dispatchers in
both locations. There are no drivers based in the Turlock
facility, and its California drivers live throughout
California. The Turlock facility, which is much smaller than
the Winter Haven facility, provides light maintenance for
Indian River trucks and has two dispatchers and only a few
other employees. The Turlock facility also has a small lounge
that drivers may use and parking spots where drivers can
leave their trucks after hours. Drivers may also send
paperwork to Indian River's headquarters from the Turlock
facility, though they were not required to do so and could
submit some, if not all, paperwork at commercial truck rest
stops across the country. The Turlock facility does not have
shower facilities or an indoor restroom for drivers, who may
use a single portable toilet outside the facility.
Indian River hires and employs drivers nationwide, of which
there are 600-650 at any time. In 2016, Indian River had
approximately 50 drivers at any particular time who were
residing in California. Indian River drivers are dispatched
based upon freight demands and the location of drivers at the
time of demand, not their place of residence. Defendant
estimates that based on fuel and tax records, Indian River
drivers, including those living in California, spend on
average 15-30% of their time driving in California.
While some California drivers spend almost no time in
California, others spend nearly half their time in the state
in any particular pay period. These figures vary from driver
to driver and from one week to the next, depending on driver
preferences and demand.
Until September 5, 2016, all Indian River drivers throughout
the United States were generally only paid
“piece-rate” or per mile driven, at a rate of
approximately $.41 per mile. Plaintiffs and other drivers
were not separately paid for rest breaks or paid for rest
breaks at all. Plaintiffs were also not paid for other
“nonproductive” time related to their work as
drivers, including time spent on pre- and post-trip safety
inspections, fueling, loading and unloading, waiting time
before loading and unloading, tank washes, and waiting time
before the tank washes. Defendant's compensation system
was the same for all of its drivers.
Until September 5, 2016, Indian River wage statements
identified the dates of each trip during the weekly pay
period, and the rate and dollar amount paid for that trip.
The wage statements did not list the actual hours worked,
whether driving, on duty but not driving, or while on break,
though drivers recorded such time on daily logs. The wage
statements also did not list any hourly rates for drivers,
with the exception of certain hourly work not at issue in
this case. (See Pls.' Exs. 1-2.)
Indian River drivers were informed of their obligations to
comply with federal regulations regarding rest breaks and the
penalties that would result from failure to comply.
Specifically, drivers were informed of federal regulations
requiring drivers to take a 30-minute, off-duty break within
8 hours of coming on duty, to not exceed more than 11 hours
of driving in a 14-hour period, and to be off-duty for at
least 10 hours after 14 hours of work. Drivers were also
informed of federal regulations prohibiting working more than
70 hours in an 8-day period. Drivers were also required to
maintain 30-day and daily logs (prior to the implementation
of electronic logs) recording hours driving, hours on-duty
but not driving, and hours off-duty. Indian River drivers
were warned of the punishments that Indian River would impose
for failure to comply with federal regulations. (See, e.g.,
Pls.' Ex. A-10 (Indian River employee handbook).)
Defendant did not schedule rest breaks for its drivers, as
drivers were permitted and encouraged to take rest breaks for
safety and comfort reasons when they wanted. Defendant's
rest break policy was the same for all its drivers, and
Indian River drivers understood that they were free to take
breaks as desired.
Indian River did not discourage its drivers from taking rest
breaks. In that regard, the court does not find the testimony
of Jeffrey Pilon credible to the extent that he claimed he
was punished four times in connection with taking rest
breaks. Even assuming Mr. Pilon was punished in connection
with his rest breaks as he claimed, those isolated episodes
do not establish that Indian River discouraged any other
drivers from taking rest breaks, including plaintiffs Shook
and Berringer. The court finds the testimony of all other
witnesses to be substantially credible.
Indian River drivers were not specifically informed of
California law regarding rest breaks prior to September 5,
2016. However, plaintiffs' Complaint does not assert any
cause of action based on Indian River's failure to inform
plaintiffs or its California drivers of California law
regarding rest breaks. Nor does their Complaint raise any
allegation to that effect.
September 5, 2014, plaintiffs filed the present action
against Indian River.
June 27, 2016, Indian River provided written notice to the
California Department of Industrial Relations of its intent
to make payments to current and former California drivers
under California Labor Code § 226.2's “Safe
Harbor” provision. (See Def.'s Ex. F-1.)
Indian River modified its compensation and payroll system for
California drivers on September 5, 2016 in order to comply
with California law. Indian River reduced the piece-rate paid
per mile from $.41 to $.14 and now compensates its California
drivers separately for rest periods and other nonproductive
time at $11.00 per hour. The transition to the new
compensation structure and payroll system, in order to
separately track, account for, and pay for productive and
nonproductive time, was a lengthy process. The court does not
find that the delay in transitioning to this new compensation