Bernal v. Trueblue, Inc.
| Decision Date | 25 June 2010 |
| Docket Number | Case No. 1:08-CV-508 |
| Parties | Ami L. BERNAL, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. TRUEBLUE, INC., a Washington corporation, Labor Ready, Inc., a Washington corporation, and Labor Ready Midwest, Inc., a Washington corporation, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Leo L. Clarke, Stephen R. Drew, Thomas Vincent Hubbard, John E. Anding, Theodore J. Westbrook, Drew Cooper & Anding, Grand Rapids, MI, for Plaintiffs.
Kyann C. Kalin, Rao Ongaro LLP, David R. Ongaro, Ongaro Burtt LLP, San Francisco, CA, Michael J. Roth, Law Weathers & Richardson PC, Grand Rapids, MI, for Defendants.
This is a putative collective action brought by seven 1 current or former employees of Defendants Trueblue, Inc., Labor Ready, Inc., and Labor Ready Midwest, Inc. (collectively "Labor Ready") pursuant to the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., and the Michigan Minimum Wage Law ("MWL"), Mich. Comp. Laws § 408.381 et seq. On November 4, 2008, Plaintiffs filed a motion to approve notice to similarly situated individuals (Dkt. No. 18), and on November 7, 2008, Plaintiffs filed a motion to certify a class of all "past and present temporary employees of Labor Ready who worked at various branch offices in Michigan at any time since May 30, 2002 to September 30, 2006." (Dkt. No. 20.) On August 26, 2009, Labor Ready filed a motion for summary judgment on Plaintiffs' claims. (Dkt. No. 45.) Because, in the interest of conserving resources, a court may consider a motion for summary judgment prior to considering a motion for collective action certification, see Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 616 (6th Cir.2002), this opinion addresses Labor Ready's motion for summary judgment. For the reasons that follow, Labor Ready's motion will be granted.
Labor Ready is a temporary employment service that provides human labor, or "employees," to businesses in need, or "customers." Though employees perform work for and subject to the supervision of customers, they are employees of, and paid by, Labor Ready, not the customers. Labor Ready's revenue derives from the difference between the hourly rate at which it charges customers for use of employees' services, and the hourly rate at which it pays employees. This action stems from Labor Ready's practice of paying employeesonly for time spent working at a customer's location, and not for time before arrival to and after departure from a customer's location.
As with most jobs, prospective Labor Ready employees must complete an employment application. Labor Ready verifies that the applicant is authorized to work in the United States and is otherwise qualified prior to extending the applicant an employment offer. Applicants that are given an employment offer are not automatically entitled to specific working hours or a regular paycheck; rather, they are merely added to Labor Ready's eligible workforce, and permitted to request jobs as customers make them available.
Labor Ready employs a so-called "best fit" policy in determining which employee to select to fill a customer's work order. Occasionally, Labor Ready will seek out a particular employee to fill a position. More commonly, Labor Ready selects an employee from a list of employees that "register" to work on the day that work is available.
To register, an employee must appear in person and sign in at a regional Labor Ready dispatch office. Though many do so early in the morning, employees can register at anytime throughout the day, and they are considered for any jobs that become available after they register.2 Though registration does not guarantee an employee a job, it also does not require employees to accept jobs that are offered to them, nor does it require them to remain in the Labor Ready dispatch office or perform any specific tasks while they are there. Plaintiffs testified that, while waiting for an assignment, they were free to watch television, socialize with other workers, read, use the restroom, and even leave the dispatch office and return at their own convenience, if at all. ( E.g., Dkt. No. 46, Ex. B, Gibbs Dep., 80, 137-41.) Pursuant to the "best-fit" policy, Labor Ready reserves the right to prefer employees physically present in the office to those that are not in deciding who to select for a job.
Employees that are given an assignment are expected to arrive at the customer's location prior to the start of the job. The record, however, reveals significant variations from employee to employee and from day to day in the experiences of employees after they accept a work assignment and before they begin work at a customer's location. For each assignment, the customer is required to complete and return to Labor Ready a "work ticket" on behalf of the employee, which is Labor Ready's means of tracking hours worked and payment. If an assignment is expected to last more than one day, Labor Ready issues a "repeat work ticket" which collects information from each day of a multi-day assignment and excuses an employee from having to procure a work ticket on any day covered by the repeat work ticket. If an assignment is not expected to last more than one day, the daily issuance of a separate work ticket is required. Occasionally, Labor Ready will fax the work ticket to the customer, or have a Labor Ready representative drop it off. More commonly, however, Labor Ready will simply provide the work ticket to the employee that accepts the assignment, and have that employee deliver it directly to the customer at the start of the job.
Employees charged with transporting the work ticket either receive the work ticket from Labor Ready at the time they accept their assignment, or make a special trip to Labor Ready to retrieve the work ticket sometime after accepting the assignmentbut before the start of the job. However, whether to receive an assignment, pick up a work ticket, or both, in most cases Labor Ready employees are required to be physically present in the Labor Ready office at least one-hour before the start of the job. Although this "one-hour reporting requirement" appears to be primarily intended to allow Labor Ready to ensure that an employee has been given a work ticket and has sufficient time to commute to a job, Labor Ready also uses this time to "make sure the employees know where they are going," "describe the job," and provide employees with any necessary equipment. (Dkt. No. 50, Ex. A-1, 52.) Labor Ready also uses employees' presence in the office as an opportunity to coordinate rides among employees working at the same or similar locations.
After an employee has been given a work ticket and otherwise cleared for departure, a process known as "dispatch," the employee is free to use the time between dispatch and the start of the job in any manner desired. Dispatched employees may stop for gas and/or a meal on their way to a job site, and employees that have been dispatched several hours to a full day prior to the start of their job can go home, eat, and sleep before traveling to the customer's location. Labor Ready requests only that the employee arrive at the customer's location at the time indicated on the work ticket.
Sometime after completing an assignment, employees are required to return to the appropriate Labor Ready dispatch office, sign out, file the completed work ticket, and collect payment. Employees have the option of returning to the dispatch office immediately following completion of an assignment, but they are not required to do so. Employees often wait several days before returning to the office to sign out and collect payment.
Plaintiffs claim that they should have been paid for time spent waiting in a Labor Ready dispatch office prior and subsequent to receiving an assignment, as well as time spent traveling to and from a customer's location prior and subsequent to completing an assignment. Plaintiffs claim that, by not compensating them for waiting and travel time, Labor Ready paid Plaintiffs an hourly fee below minimum wage, and that Labor Ready was able to avoid paying Plaintiffs for overtime in violation of the FLSA and MWL.
Labor Ready is entitled to summary judgment on Plaintiffs' claims if the pleadings and affidavits "show that there is no genuine issue as to any material fact and that [Labor Ready] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). To withstand a motion for summary judgment, "there must be evidence on which the jury could reasonably find for the [non-moving party]." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Labor Ready moves for summary judgment on the ground that, as a matter of law, it is not required to compensate its employees for waiting and travel time. Whether an employer must compensate for waiting time involves a similar but different legal analysis than whether an employer must compensate for travel time.
Under both federal and state law,3 all employers, including Labor Ready, must pay their employees no less than a statutorily defined rate for each hour that the employer "suffer[s] or permit[s]"the employees to work. 29 U.S.C. §§ 206, 203(g); Mich. Comp. Laws §§ 408.383, 382(d). An employer does not suffer or permit an employee to work unless the employee is engaged in the "principal activity of employment." 29 U.S.C. § 254. Waiting time can be considered part of the principal activity of employment. Chao v. Akron Insulation & Supply, Inc., 184 Fed.Appx. 508, 511 (6th Cir.2006) (unpublished); Vega v. Gasper, 36 F.3d 417, 425 (5th Cir.1994) (citing 29 U.S.C. § 254). Waiting time is part of the principal activity of employment if the workers are "engaged to wait" rather than "waiting to be engaged." 29 C.F.R. §§ 785.14- .16. In determining whether an employee is engaged to...
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