Ninth Circuit denies Walmart’s rehearing request in trucker wage case

February 21, 2020

Tyson Fisher


Despite support from the American Trucking Associations, the Ninth Circuit Court of Appeals has denied Walmart’s request for a rehearing or hearing en banc in a $55 million trucker wage lawsuit.

On Thursday, Feb. 20, a three-judge panel for the Ninth Circuit denied both a rehearing and a hearing en banc request from Walmart. On Jan. 6, the federal appeals court upheld a lower court’s decision to award Walmart truck drivers in California $54.6 million in lost wages in addition to nearly $6 million in restitution.

The decision was made with a 2-1 vote. Judges Jacqueline H. Nguyen and Eugene E. Siler voted to deny the request. Judge Diarmuid F. O’Scannlain was the lone vote to grant the petition. The full Ninth Circuit was advised of the request. However, not a single judge requested a vote for an en banc hearing.

Less than a month ago, ATA filed an amicus brief in support of Walmart.

Together with the California Trucking Association, CRST Expedited and U.S. Xpress, ATA explained to the court it has “a strong interest in the outcome of this case, which has major implications for the treatment of time that drivers spend off-duty in a truck’s sleeper berth under California wage law.”

“Given the magnitude of the panel’s error and the confusion it will engender, rehearing is urgently warranted,” ATA wrote.

The main issue being argued is whether or not Walmart has complete control of the driver when determining whether layover time is compensable under California law. Both a federal district and appellate court determined that based on the language in Walmart’s pay manual, drivers can lose their job for not sleeping in their cab, thus establishing control.

Company policy states that drivers must park at a safe and secure location, typically a distribution center. According to oral arguments, drivers cannot conduct personal errands. If drivers want to leave the cab, they must first receive permission. Truckers hauling an expensive load rarely receive that permission.

“Whether Walmart’s written policy was to require permission for an at-home layover (as plaintiffs contend and as the panel concluded) or merely gave the company discretion over whether to pay an inconvenience fee for an at-home layover (as Walmart contends), it indisputably did not prohibit at-home layovers altogether, and as such stops far short of the level of control that was dispositive in Bono and Morillion,” ATA argued.

The court was not persuaded.

From here, Walmart can petition to the U.S. Supreme Court or accept the $55 million verdict.