Vega v. All My Sons Bus. Dev.

• Decision Date: 31 January 2022
• Docket Number: CV-20-00284-TUC-RCC
• Parties: Jose A Vega, Plaintiff, v. All My Sons Business Development LLC, et al., Defendants.
• Court: U.S. District Court — District of Arizona

Jose A Vega, Plaintiff, v. All My Sons Business Development LLC, et al., Defendants.

No. CV-20-00284-TUC-RCC

United States District Court, D. Arizona

January 31, 2022

ORDER

Honorable Raner C. Collins, Senior United States District Judge.

Pending before the Court are Plaintiff Jose A. Vega's Motion for FLSA Conditional Class Certification (Doc. 47), Motion for Rule 23 Class Action Certification (Doc. 54), and Motion to Strike (Doc. 84). Also pending is Defendants All My Sons Business Development LLC, All My Sons Moving & Storage of Tucson LLC, and All My Sons Moving & Storage of Phoenix LLC's (collectively “All My Sons”) Motion for Judgment on the Pleadings on Plaintiff's Paid Sick Time Claims. (Doc. 69.) The matters have been fully briefed. (Docs. 47, 54, 62, 69-71, 75, 77-78, 80, 83-84, 87-88.)

I. Background

On July 2, 2020, Vega filed a collective action and class action complaint on behalf of himself and others similarly situated against All My Sons for violating the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-19 (Counts I, II); state wage laws, Arizona Revised Statutes (“A.R.S.”) §§ 23-363-65 (Count III) and A.R.S. §§ 23-350-62 (Count IV); and state paid sick time laws, A.R.S. §§ 23-371-81 (Count V). (Doc. 1.) In summary, Vega alleges that All My Sons fail to pay helpers minimum wage for all hours worked by requiring them to perform duties that do not count towards their hourly pay.

(Id.) He further alleges that All My Sons fail to pay time and a half for overtime hours worked. (Id.) Lastly, Vega alleges that All My Sons fail to provide notice of accrued paid sick time. (Id.) As a result employees remain unaware when they have earned paid sick time, which Vega asserts entitles them to civil penalties. (Id.)

All My Sons do business as a nationwide moving company with locations in Phoenix and Tucson. (Id. at 3-4, 9; Doc. 62 at 2.) All My Sons Tucson operates out of a local dispatch center. (Doc. 47 at 4.) In May 2020, All My Sons Tucson hired Vega to work as a “helper, ” assisting drivers with moves by loading and unloading customer property. (Id.; Doc. 62 at 2.) Vega worked for All My Sons Tucson until July 2020. (Doc. 47 at 4.)

II. FLSA Conditional Certification

On March 16, 2021, Vega moved to conditionally certify a collective action pursuant to § 216(b) of the FLSA. The potential opt-in plaintiffs include approximately 200 current and former helpers who worked at All My Sons Tucson during the statutory period. (Id. at 2.) According to Vega, helpers employed between July 2, 2017 and the present are eligible to opt in to the collective action. (Id.) The collective would seek to recover all unpaid wages owed under the FLSA, including minimum and overtime wages. (Id.)

Vega argues that helpers at All My Sons Tucson are similarly situated because they perform the same tasks pursuant to the same written compensation policies, including the All My Sons Employee Handbook and Payroll Policy. (Id. at 4, 8, 11.) He also underscores that helpers go through the same hiring and training process. (Id. at 4, 8.) At All My Sons Tucson, helpers also work under the same local management-Ricky Yarbrough, General Manager, and Jayson Nevins, Assistant Manager. (Id. at 8; Doc. 60 at 19.) Yarbrough took over operations at All My Sons Tucson halfway through Vega's employment in June 2020. (Doc. 60 at 71.)

All My Sons pay helpers each week based on an hourly rate, nondiscretionary bonuses, and tips. (Id. at 35, 48.) Vega's hourly rate was $12. (Doc. 1 at 9.) The All My Sons Payroll Policy looks at work “performed for and billed to a customer, and [is] not based strictly on hours worked.” (Doc. 47-4 at 7.) It states,

Instead of setting an hourly rate at minimum wage and paying from the time [helpers] arrive at [the] All My Sons facility in the morning until the time [helpers] leave at the end of the day, [their] total pay is set above minimum wage. Subject to applicable regulations, not all time [helpers] are in the vehicle is considered working time . . . . [The] ‘[c]lock starts' when you arrive at the customer location and obtain the customer's initials next to the start time. The ‘clock stops' when you finish the move at the customer's new location and obtain the customer's initials next to stop time.

(Id.) The Payroll Policy further dictates that “[h]elpers will be paid an additional 30 minutes for travel time for the day, per job performed.” (Id.) Yarbrough and Nevins track hours for All My Sons Tucson using the Client Management System. (Doc. 60 at 58.) A member of the crew calls the dispatch center to notify management about start and stop times as well as any unpaid breaks the crew takes. (Id. at 57-58.)

According to Vega, the Payroll Policy results in helpers working various unpaid hours each week. (Doc. 1 at 6; Doc. 47 at 5-6.) He alleges that helpers are required to arrive at the dispatch center each morning to perform preliminary tasks including picking up the tablet, loading the truck with packing supplies, and filling up the gas tank. (Doc. 1 at 9; Doc. 71 at 2.) The crew, consisting of helpers and a driver, then travel to the first customer job site where they must conduct a walkthrough before the customer initials the paperwork to mark the official start time. (Doc. 1 at 9-10; Doc. 71 at 3.) Vega also asserts that helpers often work through their unpaid lunch hour and attend mandatory trainings for which they are not compensated. (Doc. 1 at 12; Doc. 71 at 3.) In total, Vega maintains that All My Sons do not compensate helpers for: (1) hours worked at the dispatch center, (2) travel time to the first customer job site, (3) travel time between job sites, (4) travel time returning to the dispatch center at the end of the day, and (5) work performed at job sites off the clock. (Doc. 47 at 6.)

Vega estimates that he worked approximately two and a half hours per day performing required tasks for which All My Sons did not pay him. (Id.) For example, in one illustrative week, he alleges that he worked 40 hours but All My Sons only paid him for 24 hours at his $12 hourly rate. (Id. at 7; Doc. 1 at 11.) This means that Vega earned $7.20 an hour for 40 hours worked. Therefore, Vega argues that his total hours worked versus the hours for which All My Sons paid him demonstrate that helpers earn less than the minimum wage required by the FLSA. (Doc. 1 at 11.)

He also alleges that All My Sons does not pay overtime wages at a rate of time and a half when helpers work more than 40 hours a week. (Id. at 12.) For example, Vega states that he worked 60 hours in one week, but his paystub shows that he was only paid for 45.75 hours at his normal $12 hourly rate. (Doc. 47 at 7.)

In response, All My Sons argue that Vega cannot meet his burden to conditionally certify an FLSA collective action because his personal claims lack merit, and he has no knowledge of how All My Sons compensate other helpers. (See generally Doc. 62.)

First, All My Sons contend that helpers are exempt from the relevant minimum wage and overtime provisions of the FLSA by the Motor Carrier Act (“MCA”). (Id. at 8.) All My Sons emphasize that the Payroll Policy states, “the work and hours of Drivers and Helpers are governed by the ‘Motor Carrier Act' which allows motor carriers to have pay plans that are not tied to total hours, such as paying by the mile or load.” (Id. at 3.) Thus, All My Sons claim that the only relevant question is whether Vega was paid at least the federal minimum wage of $7.25 an hour. (Id. at 5-6.) They assert that All My Sons have never paid Vega or any helper less than $7.25 an hour. (Id. at 6, 18.)

Second, All My Sons argue that All My Sons Tucson does not strictly follow the written Payroll Policy. (Id. at 4.) Yarbrough claims that he routinely pays more than the 30-minute travel time outlined in the Payroll Policy because he “adds time based on the time the Helpers leave the [dispatch center in] Tucson in the morning and the time they return.” (Id.) The actual travel time is tracked either by electronic log in the company-owned trucks or by information provided by the crew if they are using a rental truck. (Doc. 60 at 68.) All My Sons stress that Vega acknowledged he had been paid for more than 30 minutes of travel time “[o]nce or twice.” (Doc. 62 at 11; Doc. 62-1 at 14.)

All My Sons also assert that helpers in Tucson are sometimes paid for travel time they do not actually travel. (Doc. 62 at 4.) According to Yarbrough, helpers are not required to arrive at the dispatch center in the morning despite Vega's assertions. (Id.) He states that drivers frequently pick helpers up on the way to the first job site in the company truck because many helpers do not own cars. (Id.) The helpers are nonetheless compensated for the travel time as if they had left from the dispatch center. (Id.) Yarbrough also asserts that helpers who do arrive at the dispatch center in the morning do not have work to perform before leaving on their first job because the managers prepare the trucks ahead of time. (Id.) According to Yarbrough, All My Sons Tucson goes so far as to compensate helpers for hours they do not actually work because he pays helpers a two-hour minimum per move even if the move takes less than two hours. (Id. at 5.)

Finally, All My Sons urge the Court to apply a higher standard when considering whether to conditionally certify this collective action because Vega and two All My Sons managers have already been deposed. (Id. at 6.)

A. Standard of Review

The FLSA sets minimum wage at $7.25 an hour. 29 U.S.C. § 206(a)(1)(C). It also requires employers to pay employees at one and a half times their regular hourly rate for overtime hours worked. 29 U.S.C. § 207.

Under the FLSA, an employee may bring a collective action to enforce the...