Walker v. Osterman Propane LLC, Civil Action No. 17-10416-PBS

• Decision Date: 21 October 2019
• Docket Number: Civil Action No. 17-10416-PBS
• Citation: 411 F.Supp.3d 100
• Parties: Daniel WALKER and Robert Piskadlo, on behalf of themselves and all others similarly situated, Plaintiffs, v. OSTERMAN PROPANE LLC and Vincent Osterman, Defendants.
• Court: U.S. District Court — District of Massachusetts

411 F.Supp.3d 100

Daniel WALKER and Robert Piskadlo, on behalf of themselves and all others similarly situated, Plaintiffs,

v.OSTERMAN PROPANE LLC and Vincent Osterman, Defendants.

Civil Action No. 17-10416-PBS

United States District Court, D. Massachusetts.

Filed October 21, 2019

Eric R. LeBlanc, Todd J. Bennett, Craig D. Levey, Lauren B. Haskins, Michaela C. May, Bennett & Belfort PC, Cambridge, MA, for Plaintiffs.

Anthony S. Califano, Barry J. Miller, Bridget Bourque Maricich, Michael E. Steinberg, Molly Clayton Mooney, Seyfarth Shaw, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

Saris, C.J.

INTRODUCTION

Osterman Propane LLC ("Osterman") is a propane delivery company with eleven branches in Massachusetts. Daniel Walker and Robert Piskadlo ("Plaintiffs") are former employees of Osterman. Plaintiffs filed a class action complaint alleging that Osterman underpaid its propane delivery drivers in violation of the Massachusetts Wage Act, Mass. Gen. Laws ch. 149 § 148. They seek to certify a class of "all current and former propane delivery drivers in Massachusetts employed by Osterman Propane from February 4, 2014 through the present."

Plaintiffs put forth two theories for why they and other putative class members have been systematically underpaid by Osterman. First, they allege that Osterman automatically deducted a half-hour lunch break from drivers' reported time, even though Osterman knew or should have known that drivers did not always take a break. Second, Plaintiffs argue that drivers are not fully relieved of work duties during ostensible lunch breaks and so should always be paid for that half hour.

After hearing, the Court ALLOWS Plaintiffs' motion for class certification (Dkt. No. 112) based on their second theory of liability only.

FACTUAL BACKGROUND

I. The Parties

Osterman is primarily a propane delivery company formerly owned by Vincent Osterman. There are eleven Osterman branches throughout Massachusetts:

Adams, Ashburnham, Bridgewater, Lee, Methuen, Northbridge, Palmer, Southbridge, Sterling, Sunderland, and Taunton. Osterman describes its business model as "decentralized" and "branch-based." Dkt. No. 122 at 6. The company touts one of its strengths as "flexibility" due to "few standard policies." Dkt. No. 113-6 at 12.

Named plaintiff Daniel Walker was a delivery driver employed at Osterman's Methuen branch from January 5, 2015 to September 21, 2016. The second named plaintiff, Robert Piskadlo, worked as a delivery driver and then service technician also in the Methuen branch from November 14, 2012 to September 1, 2017.

II. Osterman's Company Policies and Practices

a. Hours and Timesheets

Osterman's propane delivery drivers are typically scheduled for eight-and-a-half hour shifts from 7:00 am to 3:30 pm, Monday through Friday. Drivers are paid one-and-a-half times their regular rate for all hours worked in excess of forty hours per week. From October to April, which is the "busy season" for propane delivery, drivers often log overtime hours by working longer than their assigned shift or working on the weekend.

Drivers report their hours on timesheets, which they complete at the end of each day and submit weekly to their branch manager. Each branch provides its own timesheets. Except for a period in which the Methuen branch used punch cards to corroborate drivers' time in and out, drivers complete their timesheets on the honor system. The branch manager reviews the timesheets and then a designated person at each branch — often also the manager — manually inputs the hours into the company's payroll system, Workday. Osterman's Employee Handbook instructs employees to consult their branch managers about their hours and how to complete their timesheets.

b. Meal Break Policies and Practices

Plaintiffs contend that Osterman has an unwritten but company-wide policy to automatically deduct half an hour from a driver's reported hours even when the driver does not take a lunch break. Plaintiffs present sample timesheets from ten of the eleven branches that contain text across the top, "LUNCH HOURS ARE DEDUCTED." Dkt. No. 113-23. A timesheet from the remaining branch contains text at the bottom reading: "Lunches will be deducted unless you indicate ‘No Lunch’ on time sheet. ‘NO LUNCH’ must be pre-approved by manager." Id. at 11.

The record reflects that the different branches handled lunch breaks in various ways. Timesheets are inconsistent across and within branches during the class period. For example, one timesheet from the Ashburnham branch states only "LUNCH HOURS ARE DEDUCTED" while another from the same branch contains the additional text, "UNLESS YOU INDICATE ‘NO LUNCH’ ON TIME CARD." Dkt. Nos. 113-10 at 4; 113-23 at 5. Two additional timesheets from unspecified branches do not reference a deduction at all.

Drivers had mixed experiences reporting that they had worked through lunch. The record suggests some drivers were able to report they had not taken a break simply by leaving the lunch column blank. In the timesheets for Lee driver Todd Beaudin and Southbridge driver Jeff Langeum, the driver neither indicated a lunch break nor wrote "No Lunch." The totals on those timesheets reflect no deduction of time for a lunch break.

Other drivers had to affirmatively write "No Lunch" or another similar indication. Drivers at the Sterling and Northbridge branches said they routinely marked "No Lunch" days and were paid with no deduction. The record contains timesheets with "No Lunch" indications from all but one branch that are accurately reflected in corresponding Workday records. These include timesheets from both named plaintiffs, who wrote "No Lunch" on several occasions and were paid accordingly.

But some drivers were unable to report "No Lunch" when they had not taken a break. The named plaintiffs, who were drivers at the Methuen branch working under branch manager Mike Smith, reported that Smith discouraged drivers from writing "No Lunch" during the regular work week. Dkt. Nos. 120-27 at 12 ("At one point, some of us wrote ‘no lunch’ on some of our timesheets and [Smith] rejected them and made us cross them off and submit them again the right way, as he called it."); 113-1 at 11 ("[Smith] would yell at us and say, ‘You guys are nickel and diming me. I give it all back to you in the summer, whatever you think you're missing out on in the winter.’ "). Two other drivers at the Methuen branch had similar experiences. Dkt. Nos. 113-21 at 5 ("I almost never took the lunches, but we were supposed to write them down as we did."); 113-14 at 20 ("[Smith] said they deduct a half hour lunch, but there was never any time to take lunch.")

Drivers at other branches were also unable to write "No Lunch" on their timesheets. One driver from Adams testified that his manager told him, "you can't write that you didn't take a lunch on there; you have to take your lunch, even if you don't have time for it." Dkt. No. 113-13 at 8. In Ashburnham, lunch was also deducted whether the driver took a break or not. One driver said he therefore marked his end time each day as half an hour later than he left, so the total hours after the deduction still reflected his actual hours worked.

Osterman's corporate representative testified: "There is not a standardized meal break policy." Dkt. No. 113-3 at 14. Employee handbooks for the relevant period contain no policies or instructions regarding lunch breaks.

Instead, each manager developed their own practices. Mike Smith, the Methuen branch manager, testified that he did nothing to ensure lunch breaks were taken or recorded, relying on the driver to take the break and report it. If a driver did not write "No Lunch," Smith assumed a break was taken and deducted half an hour by manually entering a break from 12:00-12:30 pm into the Workday system. Other managers expressly made lunch breaks optional in the busy season and instructed drivers to mark "No Lunch" if the driver chose to work through. By contrast, branch managers at the Bridgewater and Lee branches reported that unless a driver made an affirmative indication of a lunch break, no break was deducted.

Other branch managers made lunch breaks mandatory. For example, the Ashburnham branch manager instructed drivers to always take a lunch break and to simply complete their shift later, with overtime as appropriate. The Palmer branch manager similarly denied requests to skip lunch based on his understanding that breaks were mandatory.

III. Safety Training and Regulations

Prior to starting with Osterman, all drivers must have a commercial driver's license ("CDL") with a hazardous materials ("Hazmat") endorsement. After their hire, drivers must also take part in Certified Employee Training Programs ("CETP training"). Drivers from all branches attend a centralized CETP training at an Osterman office, run by an Osterman trainer. The CETP training covers rules and regulations regarding propane delivery and safety. A driver is not allowed to do anything during a break that would be "in violation of the CTEP [sic] training." Dkt. No. 113-3 at 17.

The parties agree that, under federal law, propane is a Division 2.1 flammable material and not a Division 1 explosive material. See 49 C.F.R § 173.115. By regulation, propane truck drivers are required to maintain a 100-foot unobstructed view of their vehicles when they are on a public street or highway, or on the shoulder of a public highway. 49 C.F.R. § 397.5(c). However, propane delivery vehicles do not need to be "attended at all times," as they would if transporting an explosive material. 49 C.F.R. § 397.5(a).

Nonetheless, multiple drivers understood they were required to remain within a certain distance — most commonly, 100 feet — and line of sight of their propane delivery vehicle during lunch breaks. Drivers understood these obligations to arise from several different sources; some cited "federal law," others cited "[Department of Transportation (DOT) ] regulations," and another cited instruction from the ...