The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
DAVID BROWNE, ANTONIO
CALDWELL, and LUCRETIA HALL,
on behalf of themselves and
others similarly situated PLAINTIFFS
V. CASE NO. 5:16-CV-5366
P.A.M. TRANSPORT, INC., et al. DEFENDANTS
SUPPLEMENTAL OPINION AND ORDER
On January 17, 2020, the Court granted Plaintiffs summary judgment on their
claims for minimum wage for all time logged as “driving” and “on duty not driving” and rest
breaks of twenty minutes of less under both the federal Fair Labor Standards Act (“FLSA”)
and the Arkansas Minimum Wage Act (“AMWA’). (Doc. 216). The Court also held that
“violations of [the FLSA and the AMWA] are measured from the regular pay day on which
an employer fails to pay at least minimum wage for every hour worked during the
corresponding pay period.” /d. at 19. The Court observed that “[nJeither the FLSA nor the
AMWA require a specific frequency of pay, so an employer is free to set his own regular
pay day intervals.” /d. Finding that the issue was not adequately briefed, on January 22,
2020, the Court directed the parties to file supplemental briefing on “the issue of when
PAM'’s ‘regular pay day’ falls for the purposes of calculating damages on the minimum
wage claims.” (Doc. 219, p. 2). The Parties were instructed to rely only on the summary
judgment record and not to provide any supplemental testimony. Plaintiffs and
Defendants each filed a Supplemental Brief at Docs. 245 and 244 respectively.
As the Court noted in its Order of January 17, it is undisputed that workweeks for
P.A.M. Transport, Inc. (“PAM”) begin at 12:01 am on Saturday and run until midnight on
Friday and that payroll is issued on Thursday. Plaintiffs argue that PAM violated state and
federal minimum wage laws when it failed to pay drivers for all hours worked between
Saturday and Friday on the following Thursday. In creating his damages calculations,
Plaintiffs’ expert, Dr. Robert Speakman, included damages for all the weeks in which
minimum wage was not paid to a driver on the Thursday immediately following the week
in which the hours were worked. However, Dr. Speakman also noted that there were
circumstances in which drivers were paid for those hours on a subsequent Thursday,
which he termed “Late Payments Made after Payday for Sub-Minimum Wage Weeks”
(“Late Payments”). For example, where a driver began a load during one workweek and
completed it during the following workweek, what Dr. Speakman terms a “cross-week
load,” the entire load was paid on the Thursday after the week in which the load was
completed and the driver's paperwork submitted. Dr. Speakman’s calculation of Late
Payments also includes instances where amounts that had been deducted by PAM from
drivers’ pay to be placed in an escrow account were returned to a driver following her
separation from the company.
Defendants argue that any damages for unpaid wages owed to drivers should be
reduced by the amount of these Late Payments. Wages that were paid on subsequent
Thursdays, Defendants assert, cannot be considered unpaid wages for which drivers
must be compensated, and awarding drivers damages for an amount they have already
been paid would be to award them double damages. Plaintiffs respond that Defendants
should not receive “credit” for these Late Payments because they were just that, late
payments. Plaintiffs assert that if the employer is permitted to pay employees on a ‘sliding
scale system where pay is never actually due until a certain task is completed,” it would
undermine completely the purpose and function of the minimum wage laws. (Doc. 245,
p. 5). Employers could choose to pay employees at any time and an employee would
never know when a violation had occurred and the statute of limitations for seeking
redress began to accrue.
The Court agrees that a sliding scale system is not appropriate and an employer
must have “objective calendar-based pay periods,” id., as Plaintiffs put it, so that an
employee knows when her wages are owed and when her cause of action accrues under
the minimum wage laws. PAM’s Payroll Procedure, as described in its Driver Manual, the
contents of which are not disputed, reads in relevant part as follows:
Driver payroll will be issued each Thursday. . . . Over-the-road drivers will
be paid on loads for which signed bills of lading have been scanned by
Monday at 10:00 a.m. Central time and were emptied during the pay week
(Friday at midnight through Friday at midnight, Central time).
(Doc. 162-2, p. 26). From this, the Court can conclude that PAM’s “regular pay day” is
defined as the Thursday after the load is emptied and the driver uploads the required
paperwork.
The Court does not believe that it is permissible for PAM to withhold the minimum
wage from drivers while it is awaiting paperwork. PAM needs the bills of lading not to
calculate the hours worked by the driver and the wages she is owed but rather for its own
business purposes—to ensure PAM is paid by the customer. PAM is making a business
decision to withhold minimum wages solely to compel compliance with administrative
needs. The Court understands that PAM itself may not be paid by the customer without
the bills of lading and having drivers upload them is therefore important to PAM's
business. PAM is free to discipline drivers who fail to provide the bills of lading by, for
example, reprimanding or even terminating them, but it may not withhold the minimum
wage for hours worked as a form of discipline.' It is undisputed that PAM had the ability
to track the position of its trucks using the Qualcomm Electronic On Board Recording
system. (Docs. 161 & 168, {] 30). Therefore, PAM did not need the drivers’ paperwork in
order to calculate the wages owed. This requirement served only to shift the business risk
from the company to the individual driver.
Eliminating the paperwork requirement as impermissible still leaves PAM’s policy
of paying on the Thursday of the week after the load is emptied. The Court sees no reason
that PAM cannot set its pay periods and regular pay day in this way. The FLSA and
AMWA permit PAM to set its own regular pay days, and the policy laid out in the Driver
Manual establishes that PAM’s policy was to pay drivers on the Thursday after the load
was completed rather than the Thursday of the week after the miles were driven. This is
an “objective, calendar-based pay period” that allows a driver to know when wages are
due to her pursuant to the company’s policy and when a cause of action to enforce a
minimum wage violation accrues. In Biggs v. Wilson, the Ninth Circuit cautioned that
“[uJniess there is a due date after which minimum wages become unpaid, imposing
liability for both unpaid minimum wages and liquidated damages would be meaningless.”
1 F.3d 1537, 1539 (9th Cir. 1993). In its Order of January 17, this Court agreed that “[t]he
only logical point that wages become ‘unpaid’ is when they are not paid at the time work
' To the extent that PAM argues that drivers have agreed to this policy by signing their
Drivers Manuals and accepting employment with PAM, the Court notes that the minimum
wage requirements of the FLSA cannot be waived. See Copeland v. ABB, Inc., 521 F.3d
1010, 1014 (8th Cir. 2008).
has been done, the minimum wage is due, and wages are ordinarily paid—on payday.”
Id. The Court's holding now satisfies these concerns. PAM’s “regular pay day” can be
considered the Thursday after a load is completed—a clearly defined and objectively
knowable date for the employee to determine if her employer has violated the minimum
wage laws.
Just because PAM chose to pay drivers each week in deference to drivers’
preferences does not mean PAM was required to pay drivers for all hours worked in the
previous week, so long as they were paid pursuant to a clearly defined policy. Such a
ruling does not run afoul of any authority cited by the parties or of which the Court is
aware. The FLSA implementing regulations require that each workweek stand alone for
the purposes of calculating overtime compensation, forbidding the averaging of hours
across weeks, 29 C.F.R. § 778.104, but that raises no concern here because truck drivers
are exempt from the overtime requirements of the FLSA. PAM must pay each driver
minimum wage for every hour worked during each workweek, but it is permitted to do so
pursuant to a regular policy of paying drivers on the Thursday following the week in which
the load was emptied rather than the Thursday after the hours are worked.”
The Court therefore requires revised calculations separating out the amounts that
were lumped into the Late Payment category in Dr. Speakman’s initial report to enable
the Court to enter judgment on the amount of damages owed on this claim. Since the
Court concludes that PAM’s “regular pay day” is the Thursday after a load is emptied,
2 This also sets the date for calculating the statute of limitations for Plaintiffs’ minimum
wage Claims. If a Plaintiff is not paid minimum wage for the hours worked under a load on
the Thursday of the week after that load is completed, her cause of action under the FLSA
and the AMWA begins to accrue on that Thursday.
Plaintiffs’ damages on their claim for minimum wage for all time logged as “driving” and
“on duty not driving” and rest breaks of twenty minutes of less under the FLSA and the
AMWA do not include payments for cross-week loads made on the Thursday of the week
after the load was completed. This amount will be credited against Dr. Speakman’'s
calculation of the minimum wage damages in Column 1. However, PAM is liable for
damages for weeks when a driver was not paid pursuant to this policy, for example
because she had not uploaded a bill of lading. Wages that were paid affer the Thursday
of the week after a load was completed should be separated out and will not be credited
against the Column 1 damages owed to Plaintiffs.4
Since the Court denied Plaintiffs’ motion for summary judgment on their claim that
Defendants’ violations were willful, the Court will include only two years of FLSA claims
at this time. Should the jury be presented with the issue of willfulness and make an
affirmative finding, the Plaintiffs will be entitled to a third year of damages under the FLSA
on this claim. Plaintiffs also seek liquidated damages equal to the amount of damages.
The Eighth Circuit instructs that “[a]Jn award of liquidated damages under § 216(b) is
mandatory unless the employer can show good faith and reasonable grounds for
believing that it was not in violation of the FLSA.” Braswell v. City of El Dorado, 187 F.3d
3 The Court does not perceive the calculation of Column 1 to be disputed. Plaintiffs will
be permitted to update the amount before the final award.
4 The issue of whether the escrow payments were validly deducted from drivers’
paychecks was not presented to the Court at summary judgment. Therefore, the Court's
ruling does not resolve whether those deductions were permissible and if not, whether
PAM would be entitled to an offset for the amount that was returned to drivers after
separation from PAM. The amount that was returned to drivers once they no longer
worked for PAM should be separated out from the Late Payment category for the
purposes of the calculating the damages on the minimum wage claim.
954, 957 (8th Cir. 1999).5 Once a violation of the wage-and-hour laws is established, the
district court is tasked with determining whether liquidated damages are to be awarded
and in what amount. See, e.g., Chao v. Barbeque Ventures, LLC, 547 F.3d 938, 940, 943
(8th Cir. 2008). Since liquidated damages are an issue for the judge and not the jury, the
Court will defer a final ruling on these damages until after trial.
The Parties are requested to file a joint supplement reflecting the revised
calculations, separating out the Late Payments as described by the Court above, no later
than February 13, 2020. To the extent that making these revisions is not feasible in the
time allotted, or if the Parties agree with the Court's assessment that this is purely a matter
of arithmetic and not an issue subject to dispute, the Parties may confer and alert the
Court to a more appropriate deadline, including postponement until after trial.
Finally, seeing no dispute on the calculation of damages on Plaintiffs’ separate
wage advance claims under Ark. Code Ann. § 11-4-402(a), the Court will enter judgment
in the amount of $1,995,063, for the period of December 6, 2013 through May 31, 2019.
Plaintiffs will be permitted to provide updated calculations before the final amount is
awarded.
IT IS SO ORDERED on this 6th day of February, 2920. a
a KR
UNI Rete bear JUDGE
5 The applicable version of the AMWA’s liquidated damages provision, Ark. Code Ann. §
11-4-218(a), is materially identical to the FLSA and is applied in according to the same
standard. See Fochtman v. DARP, Inc., 2019 WL 4740510, at *12 n.17 (W.D. Ark. Sept.
27, 2019).