Just the other day, I posted about an off-the-clock class action that involved field technicians. In this off-the-clock FLSA collective action, bus drivers claimed that they were not compensated for time that spent driving routes to become familiar with those routes. They must have had a case because a federal judge has now approved a settlement between the Chicago Transit Authority (“CTA”) and the class of bus operators in which these plaintiffs will realize some recovery. The case is entitled Reyes v. Chicago Transit Authority and had been filed in federal court in the Northern District of Illinois.
The settlement will compel the CTA to pay out up to $300,000 to resolve the plaintiffs’ claims. The CTA will also pay $350,000 in attorneys fees. The entire issue involved claims of worked, but unpaid for, time. It appears that the drivers engaged in a practice labeled “cushioning,” which entails their driving various routes that they shifted over to, so they could learn the routes. Therefore, the service would run efficiently and not be impacted. There were approximately 1100 current/ former bus operators who opted in to join the lawsuit (which was filed in February 2010.)
The Complaint charged that the CTA shut down a garage as part of a restructuring plan to deal with a budget crisis. Some employees were laid off, others were transferred to different garages which meant that routes had to be changed. The plaintiffs allege that the drivers who selected a new garage were ordered to learn (i.e. drive) every route operating from that garage and the drivers staying in their existing garage were mandated to train (i.e. drive) any routes transferred to that garage.
Not only were the drivers required to drive the new routes, the Complaint alleges they were supposed to do it outside of their regular shift and working hours. The plaintiffs allege that the CTA stated that it would not pay any compensation for this extra driving work
Employers must be very wary of such off-the-clock work. As I have often stated, if there is any element of employer compulsion in the activity, then the employees feel they must comply with the directive, even though they are not paid, or else they will (possibly) lose their jobs. If the “work” at issue or being directed is at all related to the primary job (as this work obviously was) a court or an agency will certainly find this time to be compensable. If the work is preliminary or postliminary and directly tied to performance of the main job, it will be compensable.
There is an explosion of such cases in recent years and I expect more. Careful monitoring of workplace rules and practices is essential. If an activity is found to be “work,” it is better to deal with that issue sooner rather than later, such as when standing in front of a federal judge (or jury). .