2011 law­suit by school bus driv­ers in me­di­a­tion

Al­leges con­trac­tors did not pay full hours worked

Maryland Independent - - Front Page - By JAMIE ANFENSON-COMEAU jan­fen­son-comeau@somd­news.com

More than 60 Charles County bus driv­ers and at­ten­dants have joined a class ac­tion law­suit origi- nally filed in 2011 that al­leges bus con­trac­tors vi- olated Mary­land law by not pay­ing driv­ers and at­ten­dants for all hours worked.

Named as de­fen­dants are the Charles County Board of Ed­u­ca­tion and the 26 bus com­pa­nies the school sys­tem con­tracts with to pro­vide trans­porta­tion ser­vices for its stu­dents.

The mul­ti­ple sides met in me­di­a­tion Nov. 3 in an

ef­fort to work out a deal be­fore the case heads

to court in March 2017. Plain­tiff at­tor­ney Scott Con­well of Crofton said no deal was reached, but all sides are sched­uled to re­turn to the ne­go­ti­a­tion ta­ble Nov. 28.

Cur­rently, 63 bus driv- ers and at­ten­dants have signed on as plain­tiffs in the class ac­tion law­suit, Con­well said.

The law­suit al­leges that bus driv­ers and at-

ten­dants were not paid for ac­tual hours worked, but were paid based on a “time and mileage sheet,” pro­vided by the school sys­tem, which cal­cu­lated hours worked based on bus mileage.

The suit al­leges that bus con­trac­tors re­fused to record ac­tual time worked by driv­ers and at­ten­dants, which in­cluded time spent warm- ing up the bus, clean­ing, main­tain­ing and fu­el­ing the bus, and time spent in heavy traf­fic, and ac- tively dis­cour­aged driv­ers and at­ten­dants from record­ing their hours worked.

As such, the suit al- leges that driv­ers are owed over­time for hours they worked be­yond a 40-hour work­week.

Mark Koch of Koch Truck­ing Inc., pres­i­dent of the Charles County School Bus Con­trac­tor’s As­so­ci­a­tion, said the travel times in the time and mileage sheet are “worst-case” sce­nar­ios, and that his driv­ers get paid based on ei­ther the time and mileage sheet or their hours worked, which­ever is greater.

Koch said the real is­sue is the time be­tween runs, when he said driv­ers are on their own time.

“They’re free to do what they want,” Koch said. “They’re not en­ti­tled to pay in the time be­tween runs, that’s crazy.”

In an email, Con­well dis­agreed, say­ing that the time be­tween runs is not “free time” for driv- ers, and cited sev­eral le­gal ex­am­ples.

Con­well wrote that “... in this case, ob­vi­ously, a mass trans­porta­tion driv- er who had to be some­where in the mid­dle of the work­day, in [one] hour or so after lunch, could not do al­most any­thing, for ex­am­ple,

go­ing to a restau­rant, in most cases any­thing pro­duc­tive at home, have a drink, do any sig­nif­i­cant per­sonal shop­ping, sleep, go to a sport­ing or other ac­tiv­ity, stay with chil­dren, etc.”

The suit also al­leges that some bus con­trac- tors with­held em­ploy- ees’ pay with­out their con­sent and paid it out dur­ing the sum­mer months with the in­tent of thwart­ing em­ploy­ees from fil­ing for unem- ploy­ment.

Koch said his driv­ers have the op­tion of sign­ing up to have their pay dis­trib­uted dur­ing the sum­mer.

“They can file for un­em­ploy­ment — that’s their choice,” Koch said. “I have some driv­ers that opt to get paid through­out the year and some who get paid as they go.”

The law­suit was ini­tially filed in the U.S. Fourth Cir­cuit Court Oct. 28, 2011. The school sys­tem moved to be dis­missed from the suit on the grounds that as a branch of state govern­ment it was im­mune un­der the 11th Amend­ment to the U.S. Con­sti­tu­tion, which grants states “sov­er­eign im­mu­nity” in most cases.

The fed­eral district court de­nied the school sys­tem’s mo­tion, but the sys­tem ap­pealed to the U.S. Court of Ap­peals for the Fourth Cir­cuit, which found in fa­vor of the school sys­tem and re­moved it from the suit. The bus con­trac- tors then filed to dis­miss on the grounds that they could not ad­e­quately present their case with­out the school sys­tem, un­der Fed­eral Rules of Civil Pro­ce­dure Rule 19.

The Fourth Cir­cuit Court dis­missed the case in de­fer­ral to state court.

The case was re­filed in the U.S. Cir­cuit Court for Charles County in June 2015, and has now en­tered the dis­cov­ery phase of the trial pro­ceed­ings.

In Fe­bru­ary 2016, the U.S. Cir­cuit Court dis­missed the school board un­der sov­er­eign im­mu­nity in re­gards to li­a­bil­ity for mone­tary dam­ages, but the board is still a de­fen­dant in the suit in re­gards to in­junc­tive and declara­tory re­lief, mean­ing the court could de­cide the board’s prac­tices are un­law­ful and must be changed.

“The al­le­ga­tion at its core is not con­sis­tent with Mary­land Fair La­bor Stan­dards Law,” said Ed­mund O’Meally, at­tor­ney for the school board. “We be­lieve that our prac­tices are in ac­cor­dance with law. We don’t be­lieve that we’ve done any­thing wrong. Also, they are the con­trac­tors’ em­ploy­ees, not ours.”

A hear­ing in the case is set for March 20, 2017, with pre-trial mo­tions set for March 10, ac­cord­ing to an on­line search of court case records.

The suit cal­cu­lates that each bus driver is owed $17,820 per year in lost hours. The statute of lim­i­ta­tions al­lows dam­ages for only three years prior to the first fil­ing of the suit.

Un­der Mary­land state law, dam­ages in cases in­volv­ing wage theft are tripled, which would equal $53,460 per year per driver. There are ap­prox­i­mately 270 bus driv­ers with the school sys­tem.

The suit also re­quests rec­om­pense for driv­ers and at­ten­dants who were al­legedly re­tal­i­ated against by their em­ploy­ers.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.