Taylor v. C6 Disposal Systems, Inc.

Western District of Texas, txwd-5:2019-cv-00347

Exhibit A

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3 Exhibit A IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CHARLES TAYLOR, § Individually and on behalf of all § others similarly situated § § PLAINTIFF, § § v. § CIV. ACTION NO. 5:19-CV-00347-ESC § C6 DISPOSAL SYSTEMS, INC., § § DEFENDANT. § DECLARATION OF JORGE CANTU I, Jorge Cantu, declare as follows: 1. My name is Jorge Cantu. I am over the age of twenty-one (21) and competent to make this declaration. I have personal knowledge that the information stated herein is true and correct. 2. I am the owner and president of Defendant C6 Disposal, Inc ("C6"). I have been the owner and president of C6 since it was founded in 1998. 3. In my position, I have personal knowledge regarding C6's general business operations and C6's pay practices and corporate policies and procedures, including those related to wage and hour issues and timekeeping, as well as the circumstances surrounding Charles Taylor's employment, termination, and schedule. 4. C6 provides waste collection and disposal services in the San Antonio area. There are three types of waste disposal drivers who work for C6: those who service roll- off containers ("Roll-Off Drivers"), those who service front and side load dumpsters ("Front/Side Load Drivers"), and those who service residential customers via curbside 3 pickup of bins of trash ("Residential Drivers"). Generally, these three types of drivers have very different job requirements and pay provisions, as detailed below. 5. Roll-Off Drivers deal primarily with the removal of construction and demolition debris. They operate a straight truck with a tilt frame assembly that allows them to pick and put down a large rectangular box meant for the removal of debris from the construction jobsites. The Roll-Off Driver position is unique in that after his first assignment of the day the driver must call the C6 dispatcher to request his next assignment (i.e., address of jobsite, placement instructions and what landfill to go to). Roll-Off Drivers thus completely control their own schedule and how/when they will take their required 30-minute lunch break. Most Roll-Off Drivers will make multiple trips to the landfill each day. 6. Roll-Off Drivers are paid the greater of a base hourly rate (currently $18/hr., previously $14/hr. - $16/hr.) or an hourly rate that is calculated through an incentive plan. To calculate the incentive plan rate, each task involved in the Roll-Off Driver's job is awarded points/minutes. These points are determined by distance from the local landfills and time allotted to perform required tasks. Tasks include pre- and post-trip vehicle inspections as well as deliveries, relocations, swap outs/exchanges and finals (swap outs and finals would include trips to area landfills) throughout the day. At the end of the week a driver's total points are divided by total hours worked to calculate the incentive rate. The applicable hourly rate (base or incentive) is then used as straight time for the driver's first 40 hours and multiplied by 1.5 to determine the driver's overtime rate for hours worked over 40. 3 7. Conversely, Front/Side Load Drivers operate off of predetermined routes to empty dumpsters that service businesses, apartment complexes, and other commercial establishments. These routes consist of 35 - 100 stops. Front/Side Load Drivers follow their routes, emptying dumpsters into their trucks until they are full. Once the truck is full, Front/Side Load Drivers will make a trip to the landfill to empty their trucks. Most Front/Side Load Drivers will make two trips to the landfill each day. 8. Front/Side Load Drivers are paid the greater of a base hourly rate (currently $18/hr., previously $14/hr. - $16/hr.) or an hourly rate that is calculated through an incentive plan. However, unlike Roll-Off Drivers, the incentive plan rate for Front/Side Load Drivers is calculated based on the number of yards of trash they are able to collect rather than on the number of tasks completed. At the end of the week total yardage collected is divided by total hours worked to calculate the incentive rate. The applicable hourly rate (base or incentive) is then used as straight time for the driver's first 40 hours and multiplied by 1.5 to determine the driver's overtime rate for hours worked over 40. 9. Residential Drivers' job requirements and pay provisions are very different than those of Roll-Off Drivers and Front/Side Load Drivers. After performing a pre-trip inspection of their trucks, Residential Drivers operate off of predetermined routes through residential areas to pick up trash from curbside bins. These routes consist of 450 - 850 homes/stops. Once the truck is full, Residential Drivers will make a trip to the landfill to empty their trucks. Most Residential Drivers will make one trip to the landfill each day. 10. Prior to October 2018 and currently, Residential Drivers are paid strictly on an hourly basis (currently $14 to $16/hr., previously $12/hr. - $14/hr.). Between October 2018 and June 2019, Residential Drivers were paid a day rate ranging from $140.00 per 3 day to $160.00 per day depending on the drivers' experience and ability. At the end of the week the total of the week's day rates was divided by total hours worked, to determine the driver's hourly rate. At all times, Residential Drivers' applicable hourly rate is then used as straight time for the drivers first 40 hours and multiplied by 1.5 to determine the drivers overtime rate for any hours worked over 40. 11. Since April 2016, C6 has provided employment opportunity to approximately 34 Roll-Off Drivers, 28 Front/Side Load Drivers, and 48 Residential Drivers. 12. All C6 drivers, including Plaintiff, Santana, and Garibay, were paid on an hourly basis as described above and received compensation at a rate of one and one- half times their regular rate for all reported hours worked over 40 per week, excluding the thirty-minute lunch break required by federal regulations as well as company policy (except when informed that a driver was unable to take his lunch break). 13. Plaintiff was solely a Roll-Off Driver during his most recent period of employment with C6, from May 2015 to April 2017. Tommy Santana ("Santana") was solely a Roll-Off Driver during his most recent period of employment with C6, from October 2015 to October 2016. Jerry Garibay ("Garibay") was a Residential Driver with C6 from September 2016 to March 2017 and then worked as a Roll-Off Driver for C6 from March 2017 to June 2017. 14. All C6 drivers, including Plaintiff, Santana, and Garibay, were and are required to clock-in immediately upon entering the C6 facility and clock-out at the end of their workday upon leaving the facility. 3 15. C6 has a strict company policy requiring that all drivers take a half-hour lunch break. However, all C6 drivers, including Plaintiff, Santana and Garibay, are informed that if they work through their lunch period, they are to advise management of that fact so they can be compensated for that working time. 16. All C6 drivers, including Plaintiff, Santana and Garibay, acknowledge in writing their receipt and understanding of the company policy handbook, which makes it clear that they will be relieved of duty for 30 minutes a day for a lunch break. See, Attachment 1 (signed acknowledgements and p. 17 of company handbook). 17. All C6 drivers, including Plaintiff, Santana and Garibay, sign additional documentation acknowledging C6's policy of requiring its drivers to take a 30-minute lunch break every day. See, Attachment 2. 18. C6's required 30-minute lunch break policy is consistent with Federal Motor Carrier Safety Act regulations, which require drivers of large vehicles to take an uninterrupted 30-minute break at least once every 8 hours. See, 49 CFR § 395.3(a)(3)(ii). Since C6 drivers typically work at least 10-12 hours per day, the required 30-minute lunch break policy is an important safety rule which protects the public, the drivers, and the company from dangerously tired drivers causing harm to persons and property. 19. All C6 drivers, including Plaintiff and Garibay, sign documentation acknowledging C6's policy of requiring its drivers to comply with all rules and regulations for driving commercial vehicles imposed by the State of Texas, Department of Transportation, and Federal Motor Carrier Safety Administration which include the requirement to take a 30-minute lunch break every day as noted above. See, Attachment 3. C6 is unable to locate Santana's signed acknowledgment at this time. 3 20. All C6 drivers, including Plaintiff, Santana and Garibay, sign time sheets on a daily basis which confirm that they had been "relieved of duty for one half hour for meals," which C6 relies upon when calculating its drivers' compensation. See, Attachment 4. Roll-Off Drivers and Front/Side Load Drivers are eligible for an incentive pay rate that is calculated by reference to the number of tasks performed or yards of trash picked up per hour, so if a driver works through lunch without telling C6 he can actually increase his hourly rate via the incentive plan. 21. If a driver ever tells C6 that he was unable to take his lunch break, C6 pays that driver for the amount of time that he claimed to have worked through lunch and gives him a (usually verbal) counseling for violating federal regulations and company policy regarding the operation of commercial vehicles. If that driver continues to violate federal regulations and company policy by not taking his mandatory 30-minute lunch break, C6 would pay him for the amount of time that he claimed he had worked through lunch and then terminate his employment for repeatedly violating company policy and federal regulations regarding the operation of commercial vehicles. But such a repeated violation of company policy has never occurred and thus no C6 driver has been terminated for failing to take the mandatory 30-minute lunch break, and any driver who has informed C6 that he was unable to take his lunch break has been paid for the time he claimed to have worked through lunch. 22. Neither Plaintiff nor Garribay ever told C6 that they were not taking their required 30-minute lunch break. In 2015, on approximately two occasions Santana did inform C6 that he had not taken his lunch break as required, and C6 paid him for the time he claimed to have worked through lunch. See, Attachment 5. 3 23. All C6 unitsare equippedwithGPStracking.However,GPSis usedby C6 solelyfor the purposeof responding callsfromcustomers, to complaint determining the locationof driversin the eventtheyneedassistance, and investigating trafficaccidents. C6 doesnot useGPStrackingto verifywhetherdriversaretakingtheirlunchbreakor to keeptrackof timeworkedby drivers,becausethe GPSsystemis not reliably othenryise accurateon a realtimebasisandsometimes showsa vehiclestoppedwhenit is not. C6 insteadrelieson its employeesto puncha time clock at the CGfacilitiesand to be forthright andhonestwhentheyrepeatedly certifythattheywilltake,aretaking,andhave takentheirmandatory lunchbreak. 30-minute 24. At no time have I ever permitted,sutfered,encouraged, or requiredany driverto skiptheirlunchbreakor workthroughtheirlunchbreakor notto stopfor their lunchbreak. And I haveneverheardany otheremployeeof C6 do so. lf so, they themselves wouldhavebeencounseled and/orreprimanded. 25. I am a custodianof recordsfor C6. The documentsattachedto this declaration as Attachments 1-5weremadeat or nearthe timeoccurrence of the matters setforthby,or frominformation by,a personwithknowledge transmitted of thosematters; were kept in the courseof C6's regularlyconductedactivity;and were madeby C6's regularly activityas a regularpractice. conducted to 28 U.S.C.S 1746,I declareunderpenaltyof perjurythattheforegoing Pursuant { is trueandcorrect. Executed on July10,2019, ntu ident,C6 Disposal Systems, Inc. 3 (\. Attachment 1 EXHIBIT D EMPLOYEE ACKOWLEDGMENT OF RECEIPT OF EMPLOYEE HANDBOOK l C hMt~ TJl.-Jltr---, do hereby acknowledgment receipt of C-6's Employee Handbook dated March 2004. My signature further acknowledges receipt of this handbook containing the company's policies. Questions about these policies wil l be addressed w ith my supervisor. /- f?-D7 EMPLOYEE SIGNATURE DATE SIGNED WITNESSED BY: PRINT NAME DATE TffiS COPY TO BE PLACED IN EMPLOYEE FILE 37 3 EXHIBIT D EMPLOYEE ACKOWLEDGMENT OF RECEIPT OF EMPLOYEE HANDBOOK _µ.~~~=.i....,~~_..;..:,·do hereby acknowledgment 1 receipt of C-6 s Employee Handbook· dated M c 2004. My signature further acknowledges receipt of this handbook.containing the company's policie. Questions about these policies will be addressed with my supervisor. WITNESSED BY: DATE TffiS COPY TO BE PLACED IN EMPLOYEE Ffi..E -36- 3 EXHIBIT D EMPL:OYEE ACKOWLEDGMENT OF RECEIPT OF EMPLOYEE HANDBOOK I 1,,)exru~@ri\co, l,,,, do hereby acknowledgment receipt of C-6's Employee Handbook dated Marc ZQ04. My 'signature further acknowledges receipt of this handbook containing the company's policies. Questions about these policies will be addressed with my supervisor. ~f\;\11\'o>. PLOY SIGNATURE} () f4-0C\-2D/<o DATE SIGNED i I WITNESSED BY: DATE cSrGNATiJRE QFITNESS THIS COPY TO BE PLACED IN EMPLOYEE FILE - 34 - 3 X. OPERATIONS POLICIES a. Hours Of Operation -- By being ready, willing and able to serve customers efficiently at any time and competing fairly in the marketplace and providing a quality service, we increase the opportunity for maintaining a steady flow of work. Therefore, hours for office employees are from 8:00 a.m. to 5:00 p.m., Monday through Friday. A one hour lunch period will be arranged by your supervisor. Lunch breaks for all office employees will be assigned by the department manager. In order to facilitate the smooth flow of business and to adequately cover the phones, lunch breaks will usually be staggered and may change to meet the needs of C-6 Disposal. No formal rest breaks for office personnel are scheduled. However, you may get a beverage of your choice from the kitchen area and return to your workstation. Lunch breaks for drivers are required and will consist of 30 minutes during the course of the daily route or activities. Failure to take a lunch break without prior approval will result in disciplinary action. b. Time Sheets -- Each manager is responsible for keeping a summary time sheet on all personnel under his supervision. The time sheet is used for payroll records that must be maintained accurately at all times. Each driver will be required to submit daily reports of hours worked and activities on a C-6 approved form. Each employee must sign his time sheet. Any discrepancies between the two documents should be resolved by the department manager before transmittal to the Payroll Department for payment. If you cannot be at work due to sickness, jury duty, or other excusable circumstance, please call notify your supervisor in advance. If you will be late in arriving at your job, notify your supervisor personally. In the event of a disabling sickness or accident while performing your duties, notify your supervisor immediately. If you are a non-exempt employee, your supervisor will see that your time out is noted on your time sheet. c. Pay Day -- All hourly employees will be paid weekly, each Friday. Salaried employees will be paid bimonthly. For paydays falling on a Saturday or holiday, you will be paid the prior business day. For paydays falling on a Sunday, you will be paid the following business day. If you are absent on pay day and someone else is to pick up your check, it will not be released without a signed, handwritten note from you authorizing the named person to pick it up. The person designated to pick up your check will be asked to produce identification satisfactory to management; otherwise, your check will not be released. Any deviations from this procedure must have prior approval of an officer of C-6 Disposal. Vacation pay will be paid on the regular pay cycle. If you resign, final settlement of services or wages will be made no earlier than the next regular pay cycle, or in accordance with state law, whichever is sooner. If you are terminated, you will be issued a check on the next regular payday, or in accordance with applicable state law, whichever is earlier. d. Use of Electronic Mail – Electronic mail has become a necessary tool for most workplaces and as such can become a problem with excessive use or abuse of this media. To prevent the misuse or abuse of this media, C-6 has developed a policy specifically intended to provide guidance for all users. This policy is attached as Exhibit C. - 17 - 3 Attachment 2 Memorandum From: Jorge Cantu To: All Drivers Date: September 1, 2007 Subject Company Policy- Driver Training & Lunch Break Please be advised ... Effective immediately, aH new/current drivers will have to be certified by a C-6 Driver Trainer. Forms must be completed in accordance with- the new policy, and will be acknowledged by both,fhe driver -and trainer. In addition all hourly employees are relieved for lunch break for 30 minutes per day. x~ Date: 0"1 ~Is I I I I I I j i I I I I -45 - I I I 3 Memorandum From: Jorge Cantu To: All Drivers Date: September 1, 2007 Subject: Company Policy - Driver Training & Lunch Break Pfease be advised ... Effective immediately, all new/current drivers will have to be certified by a C-6 Driver Trainer. Forms must be completed in accordance with the new policy, and will be acknowledged by both,fhe driver and trainer. In addition aJJ hourly employees are relieved for lunch break for 30 minutes per day. 9/16/!2()1~ Date:- - - - - < -45- • 3 From: Jorge <fantu To: All Driiers I Date: Septe~ber 1, 2007 I Subject: Company Policy - Driver Training & Lunch Break Please be advised ... i I Effective imrjnediately, all new/current drivers will have to be certified by a C-6 Driver Trainer. For~s must be completed in accordance with the new policy, and will be acknowledg~d by both the driver and trainer. I In addition a;11 hourly employees are relieved for lunch break for 30 minutes per day. Date: cg-q-lo{(c - 40- 3 Attachment 3 DISPOSAL SYSTEMS, INC. A 1w1ket1bly hc:uu gurlXIJ;<' .\t'/"\.K(' Employee Safety Contract I, agree I will practice safe driving while operating equipment owned by C-6 Disposal or TEE Leasing LLC. I will follow all rules and regulations for driving vehicles, commercial or otherwise, that are imposed by the: State of Texas, Department of Transportation, and Federal Motor Carrier Safety Administration. I promise to perform a proper pretrip before leaving the office, and subsequent post-trip on my arrival back into the yard before shift end. I promise that I will check my fire extinguisher to ensure it is in proper working order. I promise to check my truck for proper paperwork including: DOT Cab Card, Insurance Certificates, Inspection/Registration information, etc. I agree not to use my cell phone while operating/driving equipment during my employment hours. I agree to follow safe operating procedures, all instruct ions, and company policy given to me for operating assemblies (Frontload, Sideload, Roll-off, Rearload, Residential, Sideload, CD Trucks, Trailers, & Totter Delivery Trucks) to prevent accident or injury to myself or others. I agree to follow safe operating procedures, all instructions, .and company policy to prevent damage to property owned by C6 Disposat Teena Leasing, customers, or the general public. I agree to utilize all personal protective equipment: gloves, safety glasses, safety vest, steel toe boots, high visibility uniforms, hard hats, etc. By signing this document I acknowledge I have read, and understand failure to comply with the above listed items could result in my immediate termination. Signature:~,,</'\ - Name:~~ Date: 2-l'---'l'f (EMPLOv~TION) Date::J/rfa 7 --+- (~/ --- - 65 - 3 DISPOSAL SYSTEMS, INC. A. notice<tbly bc:tter garbc1,.;'' .w:ni<·t.· Employee Safety Contract { I, .:.Tef rjC) fftn 1 btt.,J, agree I will practice safej driving while _operating equipment owned by C-6 Disposal or TEENA Leasing LLC. I will follow all rules and regulations for driving vehicles, commercial or otherwise, that are imposed by the: State of Texas, Department of Transportation, and Federal Motor Carrier Safety Administration. I promise to perform a proper pretrip before leaving the office, and subsequent post-trip on my arrival back into the yard before shift end. I promise that I will check my fire extinguisher to ensure it is in proper working order. I promise to check my truck for proper paperwork including: DOT Cab Card, Insurance Certificates, Inspection/Registration information, etc. I agree not to use my cell phone while operating/driving equipment during my employment hours. I agree to follow safe operating procedures, all instructions, and company policy given to me for operating assemblies (Frontload, Sideload, Roll-off, Rearload, Residential, Sideload, CD Trucks, Trailers, & Totter Delivery Trucks) to prevent accident or injury to myself or others. I agree to follow safe operating procedures, all instructions, and company policy to prevent damage to property owned by C6 Disposal, Teena Leasing, customers, or the general public. I agree to utilize all personal protective equipment: gloves, safety glasses, safety vest, steel toe boots, high visibility uniforms, hard hats, etc. By signing this document I acknowledge I have read, and understand failure to comply with the above listed items could result in my immediate termination. Signature: Signature:,,6 &;~ Name:.~,v;? v_ {:u,&,Date: Cl Z-/ (, - /l ~(SURVISOR ADMINISTERING.MEMO) - 65 - 3 Attachment 4 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 3 Attachment 5 3 3