By BEA LEWIS, for THE LACONIA DAILY SUN
CONCORD — Against the backdrop of a threatened labor strike, a class-action lawsuit filed against First Student by 40 bus drivers and driver assistants claiming the company failed to pay them for all hours worked, including overtime, and doesn't keep accurate time records, is advancing.
The suit filed in August in U.S. District Court in Concord, claims First Student violated the Fair Labor Standards Act by not paying its employees owed straight time as well as time and a half for overtime.
The complaint also charges that the company estimates its payroll based on time stamps provided through equipment that produces electronic vehicle inspections reports mandated by federal Department of Transportation regulations.
When First Student is hired to bus students, the company estimates the time it will take to drive each route under the terms of the contract. These estimated route times are imputed into a computer program named FOCUS. The estimated route times are compiled for each driver to create a "standard hours" estimate of the projected time the employee will work for a given week. At the start of each work day, the FOCUS system generates an agenda of bus route tasks that must be performed and a
driver is assigned to each route.
The plaintiffs claim the company under-reports the hours that they worked and doesn't compensate drivers for the time they spend waiting to be assigned a route, completing a pre-trip inspection of their bus and for a post-trip inspection. Drivers are also "off the clock" when they complete a "sleeping child" sweep of their buses. They additionally charge that the company shifts the time incurred during charter bus trips to a later pay period to avoid having to pay overtime.
Attorney Shawn Sullivan of Concord, who represents the plaintiffs, asserts that the company's compensation policy and practices for its drivers "is a calculated choice in risking the chance of prosecution against cumulative savings for wages due and owing."
The alleged violations, Sullivan claims, didn't happen as the result of any mistaken impression of applicable but law, but rather were "willful," as the company had previously been "warned of the impropriety of their conduct."
During and before 2013, the plaintiffs who are all New Hampshire residents, were employed as bus drivers and driver assistants in worked transporting students to public schools and extracurricular activities.
Between 2013 and the time the suit was filed, First Student operated or continues to operate out of about a dozen bus yards in New Hampshire located in Belmont, Bristol, Derry, Exeter, Hillsboro, Milford, Moultonborough, Nashua, North Hampton, Plaistow, Salem and Tilton.
Freedom of Information Act requests reveal that over a 10-year span the U.S. Department of Labor has investigated First Students multiple times, and that on at least six occasions was found to have violated FLSA, the suit says.
• In 2009, following a "self-audit," the company was ordered to pay back-pay wages and overtime totaling $420,428.61 to school bus dispatchers at its Englewood, N.J. facility.
• A USDOE investigation report dated Feb. 24, 2004, regarding First Student's contention that school bus drivers at its Hudson
facility were exempt from overtime under FLSA was rejected. They were found to owe overtime back wages of $5,245.
• An investigative report dated Oct. 15, 2003 by the New Hampshire Department of Labor shows First Student was assessed a $100 fine for failure to pay wages to employees at its Belmont facility who were engaged in in-service training, meetings, pre-trip inspections and post-trip inspections.
• An investigative report dated Aug. 24, 2006, by the NHDOL shows First Student was ordered to pay $500 for having its drivers pay highway tolls with their own money.
• An investigative report dated March 19, 2009, by the NHDOL shows First Student was ordered to pay a $4,800 penalty for failing to maintain proper records at its Milford facility.
• An investigative report dated May 9, 2013, regarding multiple locations in New Hampshire, First Student was ordered to pay
a $8,000 penalty for failure to pay wages as required and failure to maintain proper records.
• Following a wage pay demand dated May 31, 2002, in Candia, a hearing officer ordered First Student to pay $23.63 in unpaid wages.
• Following a wage pay demand dated Dec. 2, 2005, in North Sutton, a hearing officer order First Student to pay $697.49 in unpaid wages.
• Following a wage pay demand dated Aug. 17, 2007, in Sutton, a hearing officer ordered First Student to pay $1,569.15 in unpaid wages.
• Following a wage pay demand dated April 21, 2008, in Milford, a hearing officer ordered First Student to pay $379.75 in unpaid wages.
• Following a wage pay demand dated Aug. 25, 2010, in Nashua, a hearing officer ordered First Student to pay $801.20 in unpaid wages.
• Following a wage pay demand dated Jan. 27, 2011, in Swanzey, a hearing officer ordered First Student to pay $1,809.29 in unpaid wages.
The plaintiffs are Darryl Gould, Luz Maria Alicea, Matthew LaFave, Sara Gladstone, Meighan Broderick, Jaimie Blombach, Pamela Johnson, Lisa Harvey, Robert Selvitella, Jr., Anthony Scopa, Dawn Marrotle, Lesa Warner, Bessie Geddes, Lisa Cady, Judy Petrain, Cynthia Cormier, Sandra Sawyer, Dawn Bonnell, Kathleen Shakley, Angela Fisher, Paula Allison, Claudette Poulin, Kryssalis Mercado-Rivera, Deborah Foley, Linda Morin, Patricia Carey, Brenda Courcy, Michele Porter, Diane Courcy, Danielle Bowes, Christopher Rechkemmer, Marjorie Paul, Jessica Keyza, Lisa Quinto, Sonya "Lizzie" Dowling, Rene Joyal, Penelope
Belanger, Michelle Brooks and Richard J. Stairs.
The plaintiffs are seeking actual damages including back pay, award of attorney's fees and legal costs, accrued interest.
First Student filed a motion to dismiss for failure to state a claim on Oct. 28. The plaintiffs have until Dec. 11 to file a response.