A federal court has granted class-action status to a lawsuit accusing Swift Transportation of failing to provide overtime pay to employee drivers who live in Washington state.
Judge Robert J. Bryan of the Western District of Washington federal court approved the class-action lawsuit on Monday, Dec. 9. The lawsuit was filed by David Carlson, a Swift driver accusing the mega carrier of violating Washington state overtime pay laws.
Washington state law requires companies to pay employees 1.5 times their regular rate for time worked beyond 40 hours a week. However, an exemption applies to interstate truck drivers if the “compensation system” is “reasonably equivalent” to that overtime pay requirement.
Like most truck drivers, Swift employee drivers are paid on a per-mile or per-delivery basis each week. Pay is based on hours recorded as on-duty (not driving) or driving. Drivers are eligible for detention time pay, as well as stop pay for making additional stops during a trip.
Swift notes in court documents that considering truckers typically work more than 40 hours a week, it sets its mileage-based pay rate to include overtime compensation. What is considered overtime compensation is the heart of the case.
Reasonable equivalence
Washington state law requires motor carriers to pay truck drivers a “reasonable equivalence” of the general overtime pay of 1.5 times the base pay rate.
Swift is pointing to similar cases that found that state law does not require an additional or separate rate of pay. Rather, compensation for expected overtime can be baked into truckers’ per-mile rate. But what is the base rate of pay from which that is calculated?
According to court documents submitted by Swift, the Washington Department of Labor and Industries has accepted the hourly rate trucking companies pay their local or short-haul drivers as the base rate of pay when evaluating whether a compensation system like a mileage rate satisfies the “reasonable equivalence” requirement.
Regardless, court precedent established that a carrier does not need to establish a separate base pay rate for non-overtime work. That same case also found that drivers are not entitled to be notified about the baked-in overtime pay and that the base pay rate can be established retroactively.
Plaintiffs cite a different case that found that state law “mandates that truck drivers must obtain extra compensation for hours worked over 40 hours per week.” They claim Swift admits drivers are not given extra pay above their trip pay or beyond 40 hours a week. However, Swift counterargues that “extra compensation” means either actual overtime pay or the reasonable equivalent.
What time is compensable?
There is also the question of what is considered “hours worked?”
State law defines “hours worked” as “all hours during which the employee is authorized or required by the employer to be on duty on the employer’s premises or at a prescribed workplace.” Swift argues that drivers are paid for hours logged as “on duty” or “driving,” thus satisfying state law.
Plaintiffs point to a Department of Labor clarification expanding on that definition to include “all work requested, suffered, permitted, or allowed while on duty on the employer’s premises or at a prescribed workplace, and includes travel time, training and meeting time, wait time, on-call time, preparatory and concluding time, and may include meal periods.” It also includes “time spent driving a company-provided vehicle.”
According to documents submitted by Swift, the drivers are claiming all time spent away from home, including sleeper berth time, should be calculated as hours worked. The carrier points out that during all off-duty or sleeper berth time, drivers are not required or expected to respond to company messages or calls. Drivers are not required to sleep in the sleeper berth, either. Both of those policies suggest the company has no control over drivers during those times.
Last year, the First Circuit Court of Appeals ruled that trucking companies must pay team drivers for time spent in sleeper berths in excess of eight hours. However, Washington state falls under the jurisdiction of the Ninth Circuit.
‘Washington-based’ drivers
Lastly, there’s an issue of who is considered a “Washington-based” Swift driver.
Court precedent states that Washington’s wage laws apply to “Washington-based” interstate truck drivers. One case rejected the idea that a driver’s mere residence in Washington renders them Washington-based.
How a court defines “Washington-based” could tip the scales in favor of Swift.
The carrier points out that drivers who live in Washington spend the vast majority of their time outside of the Evergreen State. On top of that, most drivers that live in Washington are assigned a home terminal in either Lewiston, Idaho, or Troutdale, Ore. Neither of those states have overtime pay laws similar to Washington, creating a conflict when deciding which state law controls in this case.
Drivers point to a four-prong test to determine which state has controlling power:
- Place where the injury occurred
- Place where the conduct causing the injury occurred
- Domicile, residence, nationality, place of incorporation and place of business of the parties
- Place where the relationship, if any, between the parties is centered
They argue the first two have minimal weight, whereas the third prong is more significant. Therefore, the residence of the Swift drivers moves the case to use Washington state law.
Also, Washington has a unique law requiring out-of-state companies to pay workers residing in the state according to the state’s wage and hour laws. Therefore, when the relationship is centered in Washington, the interests and public policies of Washington override those of other states.
With class certification granted, the case will proceed and apply to all truck drivers employed by Swift who have been Washington residents at any time since April 21, 2020.
GOT Truckers Act
A bill currently floating around in Congress could end any confusion related to overtime pay for truck drivers.
The GOT Truckers Act would amend the Fair Labor Standards Act of 1938 to require that truckers receive overtime compensation when they work more than 40 hours in a week.
Although the bill would apply only to company drivers, the Owner-Operator Independent Drivers Association contends that forcing shippers and receivers to value a trucker’s time would create change throughout the industry.
“America’s truckers keep our nation’s economy moving, and without the hard work of these men and women, our supply chain would grind to a halt,” OOIDA President Todd Spencer said. “Unbelievably, trucking is one of the only professions in America that is denied guaranteed overtime pay. We are way past due as a nation in valuing the sacrifices that truckers make every single day. This starts with simply paying truckers for all of the time they work.”
As of Thursday, Dec. 12, the House version introduced by Rep. Jefferson Van Drew, R-N.J., has three co-sponsors, including two Democrats and one Republican. The Senate version introduced by Sen. Alex Padilla, D-Calif., has five co-sponsors.
To ask your lawmaker to endorse the GOT Truckers Act, go to FightingForTruckers.com. LL
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