2011 lawsuit by school bus drivers in mediation

Alleges contractors did not pay full hours worked

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.