Black v. Driveline Retail Merch.

SHIRLEY BLACK et al., each individually and on behalf of all others similarly situated, PLAINTIFFS v. DRIVELINE RETAIL MERCHANDISING, INC., DEFENDANT

No. 4:18-cv-00778-KGB

United States District Court, E.D. Arkansas, Central Division

April 19, 2022

ORDER

Kristine G. Baker, United States District Judge

Before the Court are defendant Driveline Retail Merchandising Inc's (“Driveline”) four motions for summary judgment as to claims filed by plaintiffs Derek Ward, Shirley Black, Rebecca Morris, and Rena McCraw (collectively “plaintiffs”) (Dkt. Nos. 45; 48; 51; 54). Plaintiffs filed individual responses to each motion directed at dismissing their claims, opposing Driveline's motions (Dkt. Nos. 62; 64; 66; 68). For the following reasons, the Court denies Driveline's motions for summary judgment (Dkt. Nos. 45; 48; 51; 54).

I. Factual Background

The Court draws the following facts, unless otherwise cited, from Driveline's statements of undisputed facts and plaintiffs' responses to Driveline's statements of undisputed facts (Dkt. Nos. 46; 49; 52; 55; 63; 65; 67; 69).

On October 29, 2018, Shirley Black, Rebecca Morris, and Rena McCraw, who were then Driveline employees, filed this lawsuit (Dkt. Nos. 65, ¶ 1; 67, ¶ 1; 69, ¶ 1). Driveline employed Ms. McCraw as a master merchandiser, Ms. Black as a merchandiser, and Ms. Morris as a merchandiser; Ms. Morris continues to serve as a merchandiser based on the filings (Dkt. Nos. 65, ¶ 2; 67, ¶ 2; 69, ¶ 2).^[1] Plaintiff Derek Ward, formerly a master merchandiser for Driveline, joined the lawsuit on January 14, 2019 (Dkt. No. 63, ¶ 1).^[2] Plaintiffs allege that Driveline violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and the Arkansas Minimum Wage Act (“AMWA”), Ark. Code Ann. § 11-4-201, et seq., by failing to pay them properly (Dkt. Nos. 63, ¶ 1-2; 65, ¶ 1-2; 67, ¶ 1-2; 69, ¶ 1-2). Specifically, they allege that Driveline failed to compensate them properly for: (1) their morning preparatory work, (2) the first or last 30 miles of their drive time, (3) the actual hours they spent driving, (4) training hours, and (5) impromptu projects referred to by the parties as “non-bill” projects or “non-bills” (Dkt. Nos. 18-3, ¶¶ 3, 7; 62, at 5, 11, 23; 62-5, ¶¶ 7-12; 62-6, ¶¶ 6-11; 62-7, ¶¶ 6-11; 62-8, ¶¶ 6-11; 64, at 8, 14-21; 66, at 1422; 68, at 14-24).

Based on the parties' filings, plaintiffs' responsibilities included: driving to various third-party specialty stores, drug chains, dollar stores, and mass merchandisers to set up displays based on merchandising plans, including resets, updates, audits, seasonal merchandising, and stocking and replenishment of products (Dkt. Nos. 63, ¶ 2; 65, ¶ 2; 67; ¶ 2; 69, ¶ 2). Their workdays started by logging into the Driveline portal to see what work they had been assigned for a given day (Dkt. Nos. 62-5, ¶¶ 8-9; 62-6, ¶¶ 6-7; 62-7, ¶¶ 6-7; 62-8, ¶¶ 6-7; 63, ¶ 19; 65, ¶ 6; 67, ¶¶ 14, 25; 69, ¶ 8).

According to Mr. Ward, these morning preparatory activities included: arranging the projects in their schedules, printing necessary forms, calling stores to confirm scheduled arrival, and occasionally watching videos (Dkt. No. 63, ¶ 19).

Driveline's Terms of Work Acceptance (“Employment Terms”) required each plaintiff to acknowledge that he or she would be compensated for the morning preparatory work and not for the first or last 30 miles of their travel time to a given work site (Dkt. Nos. 63, ¶ 3; 65, ¶ 3; 67, ¶ 3; 69, ¶ 3). Moreover, Driveline required each employee to acknowledge that, when paid for drive time, he or she would not be paid for actual drive time but instead would be compensated based on the estimated time according to Google Maps or some other equivalent mapping application (Dkt. Nos. 18-3, ¶ 7; 63, ¶ 3; 65, ¶ 3; 67, ¶ 3, 69; ¶ 3). Specifically, the relevant portions of the Employment Terms stated:

3. I agree to complete the work within the time allowed for the work, as specified above. I understand and agree that the time allowed for the work includes administrative time (e.g., preparation for routes, completion of work orders, submission of digital photographs, etc.) as well as store time (“instore time”). I further understand and agree that if additional time is needed to complete the work, such additional time must be pre-approved by my Driveline manager in writing. ...

7. I understand and agree that mileage and drive time (“drive time”) I incur in completing the work will be calculated through the use of a route optimization powered by Google Maps/Map Quest/other similar mapping services (“route optimization”). I further understand and agree that Driveline will not pay drive time, or reimburse mileage, for normal commute from my home to the first store on a given day or from the last store to my home. I further understand that if my home is located more than 30 miles from either the first store on a given day or is located more than 30 miles from the last store, I will be reimbursed for my mileage and paid for drive time incurred beyond the first 30 miles between my home and the first store or beyond the first 30 miles between the last store and my home. Any compensable mileage or drive time between my home and either the first or last store will be calculated by route optimization. ...

(Dkt. No. 18-3, ¶¶ 3, 7) (emphasis added). Each plaintiff disputes that he or she was ever paid for preparatory work, which plaintiffs claim lasted between 15 to 45 minutes, despite Driveline's policy and contentions (Dkt. Nos. 62-5, ¶¶ 9-10; 62-6 ¶¶ 8-9; 62-7 ¶¶ 8-9; 62-8 ¶¶ 8-9; 63, ¶ 19; 65, ¶ 19; 67, ¶ 25; 69, ¶ 8).

Plaintiffs also trained Driveline's new hires and maintain that they were not fully compensated for that work (Dkt. Nos. 63, ¶ 13; 65, ¶ 25; 67, ¶ 27; 69, ¶ 33). Instead of being fully compensated, plaintiffs claim that Driveline split their wages for this work with trainees, paying them effectively half of their actual wage (Dkt. Nos. 63, ¶ 13; 65, ¶ 25; 67, ¶ 27; 69, ¶ 33).

On occasion, projects would pop-up in the middle of the day; plaintiffs refer to these impromptu assignments as “non-bill” projects (Dkt. Nos. 62-5, ¶ 12; 62-6, ¶ 11; 62-7, ¶ 11; 62-8, ¶ 11). Driveline claims it kept detailed records of all of plaintiffs' projects and time spent working (Dkt. No. 47, at 6; 50, at 6-7; 53, at 6; 54 at 6). Plaintiffs maintain that these records are inaccurate and do not account for missing non-bill projects (Dkt. Nos. 62-5, ¶ 12; 62-6, ¶ 11; 62-7, ¶ 11; 628, ¶ 11).

Driveline maintained detailed records of plaintiffs' respective pay throughout their employment (Dkt. No. 47, at 6; 50, at 6-7; 53, at 6; 54 at 6). Driveline claims that these records included specific documentation regarding plaintiffs' compensation for all drive time between stores visited within a workday and compensable mileage for each pay period of their employment, though plaintiffs' dispute this fact (Dkt. No. 47, at 6; 50, at 6-7; 53, at 6; 54 at 6).

II. Legal Standard

A. Summary Judgment Standard

Summary judgment is proper if there is no genuine issue of material fact for trial. UnitedHealth Group Inc. v. Executive Risk Specialty Ins. Co., 870 F.3d 856, 861 (8th Cir. 2017) (citing Fed.R.Civ.P. 56). A court should grant summary judgment when the facts, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the defendant is entitled to entry of judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Johnson RegionalMedical Ctr. v. Halterman, 867 F.3d 1013, 1016 (8th Cir. 2017) (quoting Matsushita Elec. Indus.Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A factual dispute is genuine if the evidence could cause a reasonable fact finder to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). “The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under the prevailing law.” Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).

However, parties opposing a summary judgment motion may not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008), cert. denied, 522 U.S. 1048 (1998). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

B. Requirements Under The FLSA and AMWA

1. General Wage Requirements

The FLSA and the AMWA require employers to pay qualifying employees a set minimum wage for all hours worked and overtime wages of one and one-half times the employee's regular rate. 29 U.S.C. §§ 206, 207, 213; Ark. Code Ann. §§ 11-4-210, 11-4-211. As “[t]he FLSA and the AMWA impose similar minimum wage and overtime requirements on employers and, in cases involving claims brought under both acts, the courts have concluded that their parallel provisions should be interpreted in the same manner.” Cummings v. Bost, Inc., 218 F.Supp.3d 978, 985-86 (W.D. Ark. 2016). For this reason, the Court refers to only the FLSA in the subsequent paragraphs, though its analysis pertains to both statutes.

2. Employer Record Keeping Requirement

The burden of record keeping under the FLSA falls to the employer whose...