United States District Court, D. New Hampshire
Darryl Gould, et al.
First Student Management, LLC, et al. Opinion No. 2017 DNH 161
MEMORANDUM AND ORDER
BARBADORO UNITED STATES DISTRICT JUDGE.
of bus drivers and driver assistants has filed a class action
alleging that their employer, First Student Management, LLC
(“First Student”), failed to pay wages due under
the Fair Labor Standards Act (“FLSA”) and New
Hampshire's wage and hour laws. First Student has
challenged the complaint in a motion to dismiss for failure
to state a claim.
Student provides busing services to schools in New Hampshire.
For several years, First Student has employed the plaintiffs
as bus drivers and driver assistants. Their employment
agreement entitles them to compensation “for all time
spent in the service of” First Student, including an
overtime premium of one-and-a-half times their regular rate
for all hours worked over forty in a week. Doc. No. 1 at 6,
track and calculate the compensation due, First Student uses
a computer program. See Id. at 18-22. Upon
contracting with a school district, First Student estimates
the time required to drive each route. Id. at 18.
Estimated route times are then inputted into a computer,
which assigns each driver a daily schedule and projects the
amount of time the driver will work in a given week.
Id. at 19.
drivers base their complaint on three of First Student's
payment practices. First, the drivers claim that they are not
compensated for preliminary and “postliminary”
activities that they must perform before and after driving.
See Id. at 19-20. Before commencing a bus route, the
drivers must appear at First Student's bus yard at a
designated time, wait in line to receive their assignments
and keys, proceed to the buses, and log in to an equipment
inspection system. Id. These activities take
approximately six minutes each day. Id. Although the
preliminary activities are an essential feature of the
drivers' duties, they are not recorded or compensated.
Id. at 19. Similarly, once the drivers complete a
bus route, they must return to the bus yard and again log in
to the inspection system. Id. at 20. At that moment,
their credited working time ends, yet they are still required
to conduct postliminary activities, including inspecting and
cleaning the buses, returning equipment, and reporting issues
to the First Student office. Id. These uncompensated
activities take another six minutes each day. Id.
drivers next claim that First Student substantially
undercompensates its employees by refusing to pay for time
spent on trips that exceed preset limits. Id. at
20-21. Immediately before and after driving a bus route, a
driver must log into a system that tracks the time elapsed
while driving. Id. If the time elapsed falls within
a preset tolerance range, the driver is paid for the
estimated time that First Student established for that
particular route. Id. at 21. If the actual elapsed
time exceeds the tolerance range, the system generates an
exception report. Id. Exception reports are
routinely ignored, with drivers receiving compensation only
for the preassigned estimate, not the amount of time they
actually spent driving. Id.
third way in which First Student allegedly undercompensates
its employees is by miscounting the hours they work on
charter routes. Id. at 22. To evade its obligation
to pay overtime for hours worked above the forty-hour
threshold, First Student sometimes improperly shifts time an
employee devotes to a charter route from one pay period into
a later pay period. Id. First Student also separates
employees' driving time into “Charter” and
“Regular” categories, and refuses to pay any
overtime unless the employee works more than 40 hours in a
week within one or both categories. As a result, an employee
may fail to receive overtime for a given week even if she
works more than forty weekly hours when the time across both
categories is combined. Id. at 23. Compounding this
problem, First Student does not compensate employees for
“dead time” between regular routes and charter
routes. Id. at 22.
drivers assert that First Student uses these payment
practices to avoid its duty to pay both overtime and regular
hourly wages, known as “straight time.”
STANDARD OF REVIEW
survive a motion to dismiss for failure to state a claim,
plaintiffs must make factual allegations sufficient to
“state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is facially plausible if it pleads
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
deciding a motion to dismiss, I employ a two-step approach.
See Ocasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
First, I screen the complaint for statements that
“merely offer legal conclusions couched as fact or
threadbare recitals of the elements of a cause of
action.” Id. (citation, internal quotation
marks, and alterations omitted). A claim consisting of little
more than “allegations that merely parrot the elements
of the cause of action” may be dismissed. Id.
Second, I credit as true all non-conclusory factual
allegations and the reasonable inferences drawn from those
allegations, and then determine if the claim is plausible.
Id. The plausibility requirement “simply calls
for enough fact to raise a reasonable expectation that
discovery will reveal evidence” of illegal conduct.
Twombly, 550 U.S. at 556. The “make-or-break
standard” is that those allegations and inferences,
“taken as true, must state a plausible, not a merely
conceivable, case for relief.”
Sepúlveda-Villarini v. Dep't of Educ.,
628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555
(“Factual allegations must be enough to raise a right
to relief above the speculative level . . . .”).
drivers seek damages for straight time and overtime that
First Student failed to pay them in violation of both New
Hampshire's wage and hour laws and the FLSA. I address
First Student's challenges to each type of claim in