Julian v. Swift Transp. Co.

Decision Date28 December 2018
Docket NumberNo. CV-16-00576-PHX-ROS,CV-16-00576-PHX-ROS
Citation360 F.Supp.3d 932
Parties Pamela JULIAN, Plaintiff, v. SWIFT TRANSPORTATION COMPANY INCORPORATED, et al., Defendants.
CourtU.S. District Court — District of Arizona

Garrett Webster Wotkyns, Schneider Wallace Cottrell Konecky LLP, Scottsdale, AZ, Gary W. Aber, Aber Baker & Over, Wilmington, DE, Joshua G. Konecky, Nathan B. Piller, Schneider Wallace Cottrell Konecky Wotkyns LLP, Emeryville, CA, for Plaintiff.

Angela Joy Rafoth, Kristin E. Hutchins, Richard Howard Rahm, Littler Mendelson PC, San Francisco, CA, Kristy Leah Peters, Littler Mendelson PC, Alison Pulaski Carter, Catherine Christine Burns, David T. Barton, Burns Barton LLP, Phoenix, AZ, for Defendants.


Honorable Roslyn O. Silver, Senior United States District Judge

Plaintiffs are a group of approximately 10,000 truck drivers who worked as "trainee drivers" for Defendant Swift Transportation Co. of Arizona, LLC. Plaintiffs were not paid for attending the first day of a mandatory three-day orientation nor were they paid for many hours during a behind-the-wheel training period. Swift seeks summary judgment that Plaintiffs were not entitled to pay for the first day of orientation. Both parties seek summary judgment regarding Plaintiffs' unpaid hours during the behind-the-wheel training period.


The parties have filed cross-motions for summary judgment, requiring the facts be viewed in different ways depending on which motion is being evaluated. See Fair Hous. Council of Riverside Cty., Inc. v. Riverside Two , 249 F.3d 1132, 1136 (9th Cir. 2001). Only Swift moved for summary judgment regarding the first day of orientation, meaning the facts regarding that issue must be viewed in the light most favorable to Plaintiffs. Both parties moved for summary judgment regarding the alleged unpaid hours during behind-the-wheel training, requiring the Court view the facts relevant to that issue in the light most favorable to each party, depending on which motion is being assessed. Fortunately, many background facts are undisputed. Therefore, the following represents the undisputed facts unless otherwise noted.

Swift "provides long-haul transportation services ... throughout the continental United States and Canada." (Doc. 26 at 8). Swift operates at least 18,000 trucks and has at least 14,000 drivers. (Doc. 26 at 8); (Doc. 193 at 22). To ensure an adequate supply of qualified drivers, Swift maintains a large driver training program.1 At any given time, Swift has more than 1,000 individuals participating in its driver training program. (Doc. 157 at 9).

In general, Swift's driver training program consists of three parts. First, trainees attend a three-day orientation at one of Swift's "terminals." During that orientation trainees learn about Swift and what is expected of them as drivers. (Doc. 192-5 at 5). Second, trainees spend four to six weeks in "behind-the-wheel training with an assigned mentor hauling and delivering freight as part of a two-driver team." (Doc. 191 at 6). Third, after completing the behind-the-wheel training period, trainees take a written test, performance test, and road test. (Doc. 157-2 at 3). If the trainees complete the orientation, behind-the-wheel training, and pass the tests, they are entitled to work as solo drivers. The present suit focuses on aspects of the orientation and behind-the-wheel training.

A. Three Days of Orientation

At the time Plaintiffs applied to work for Swift, most applications were submitted online. (Doc. 157-2 at 2). Once Swift received an application, it conducted a preliminary review and "[i]f the application [was] approved," Swift contacted the individual and told him to report to a Swift terminal for three days of orientation. (Doc. 157-2 at 2). Swift has not explained what it meant for an application to be "approved" but Swift is adamant that it did not mean the applicant had been "hired" at that point. Rather, Swift contends the preliminary "approval" merely indicated the applicant should appear at a terminal for more processing and possible hiring. It is undisputed, however, that the preliminary "approval" often meant Swift had confirmed the applicant possessed some of the required qualifications to work as a driver.

Once an individual was "approved," Swift sent the individual an email containing "the details about the orientation." (Doc. 192-1 at 23, 34). An example of that email shows Swift promised to reimburse the individual for travel to the orientation's location and that Swift would pay for his hotel room and provide a lunch each day of the orientation. The individual was directed to bring his Class A Commercial Driver's Licenses, pen and paper, medical examination reports, and his Social Security Card. (Doc. 192-1 at 34). The email stressed the individual should bring "clothing–enough for 7-14 days" and to "[b]e prepared to leave from orientation for up to 6 weeks for training with mentor!!" (Doc. 192-1 at 34). The email also warned the individual that if Swift discovered "alcohol/drugs" or "a person of the opposite sex" in his hotel room, the individual would be "terminated and sent home immediately." (Doc. 192-1 at 34) (emphasis added).

The email did not state whether the individual would be compensated for attending the orientation. During depositions, some plaintiffs stated they did not expect to be paid. But other plaintiffs have submitted declarations stating they were told by Swift employees that they would be paid "for all three days of orientation."2

(Doc. 192-1 at 23); (Doc. 192-1 at 38); (Doc. 192-1 at 65); (Doc. 192-1 at 85). Attendance at all three days was mandatory. (Doc. 192-1 at 23).

The three-day orientation followed a standard format. The first day began at 7:00 a.m. with a "Welcome Vid[eo]." (Doc. 192-12 at 2). The day then proceeded with a safety message and explanations of Swift's "Expectations & Code of Conduct." (Doc. 192-12 at 2). During these initial presentations, Swift conducted a "Whiteboard discussion and brainstorm" about the meaning of Swift's slogan "Delivering a Better Life." (Doc. 192-11 at 10). That presentation explained the slogan was meant to illustrate Swift's intent to "Deliver a Better Life to four big groups of people: Employees, Customers, Communities and Shareholders." (Doc. 192-11 at 12). Each of those groups was then discussed in more detail, with special emphasis placed on the unique attributes of Swift and the benefits of working for Swift.

After the "Whiteboard discussion," Swift played videos on topics such as "Driver Wellness" and "Driver Qualifications" while individuals completed drug screenings, physicals, and road tests. Every individual was required to complete a drug screening but some individuals were not required to get a physical or complete the road test. The first day ended at approximately 3:45 p.m. after presentations regarding "Safe Work Methods" and "Haz-Mat Training." (Doc. 192-12 at 2). Individuals were not paid for any portion of the first day because, in Swift's view, no one had been "hired" at that time.

Swift explains it did not compensate individuals for the first day because it was a "qualification day." (Doc. 192-5 at 6). According to Swift, the activities on the first day consisted only of those that "qualify [individuals] to go work for another carrier." That is, "everything [individuals] do on day 1 is something they can use elsewhere as well." (Doc. 192-5 at 6). Plaintiffs have a different view of the first day. According to one plaintiff, all the information covered on the first day "was related to Swift, its history and its policies." (Doc. 192-1 at 13). That information was not something he could use "when working for some other employer." (Doc. 192-1 at 13). Another plaintiff describes the first day as "focused on reinforcing Swift's rules and expectations, on-time deliveries, and customer service policies." That plaintiff claimed he would not be able to use the information he received on the first day "for [his] own benefit when working for some other employer." (Doc. 192-1 at 24). Viewed in the light most favorable to Plaintiffs, the majority of the first day involved Swift-specific information.

The second and third days of orientation covered additional topics such as Swift's history, how drivers would be paid, Swift's policies regarding inappropriate conduct, and how drivers should plan their trips. (Doc. 192-12 at 2). Swift considered the individuals "employees" as of the start of the second day and paid the trainees for the second and third days. Swift explains it compensated the trainees for the second and third days because those days covered Swift-specific information. (Doc. 192-5 at 7).

B. Behind-the-Wheel Training

At some point during the three days of orientation each trainee was assigned a "mentor" to work with during the four to six weeks of behind-the-wheel training. Trainees began working with their mentor immediately after the end of orientation. Swift expected trainees would spend the behind-the-wheel training period driving as much as possible while also preparing to take the final tests that would qualify them to work as solo drivers. Trainees were tasked with "learning by observing the mentor, helping him, and studying written training materials." (Doc. 192-1 at 51-52). Each trainee and his mentor worked as a driving team, meaning one individual drove while the other rested.3 (Doc. 159-2 at 35, 46).

Part of the behind-the-wheel training was ensuring trainees knew how to comply with the governing Department of Transportation ("DOT") regulations regarding the logging of time. Pursuant to DOT regulations, all truck drivers are required to track their time using an "electronic logging device," which is sometimes referred to as the "Qualcomm." 49 C.F.R. 395.8(a)(1)(i) (requiring truck drivers use electronic logging devices). Using that device, trainees had to log their time in one of four statuses: Driving, On Duty Not Driving, Off Duty, or Sleeper Berth. 49 C.F.R. § 395.8(b)...

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