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Gould v. First Student Management, LLC

United States District Court, D. New Hampshire

August 29, 2017

Darryl Gould, et al.
First Student Management, LLC, et al. Opinion No. 2017 DNH 161



         A group 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.

         I. BACKGROUND

         First 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, 17, 25-26.

         To 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.

         The 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.

         The 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.

         The 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.

         The 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.”


         To 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.

         In 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 . . . .”).

         III. ANALYSIS

         The 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 turn.[1]

         A. ...

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