1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LARRY HURST, individually and on 

behalf of all similarly situated,

No. 3:15-cv-00021-HZ

Plaintiff,

OPINION & ORDER

v.

FIRST STUDENT, INC., a foreign

corporation,

Defendant.

David Arthur Schuck 

Karen A. Moore 

Schuck Law, LLC 

10013 NE Hazel Dell Avenue 

Suite 178 

Vancouver, WA 98685 

Attorneys for Plaintiff

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Douglas E. Smith 

Littler Mendelson P.C. 

One Union Square 

600 University Street 

Suite 3200 

Seattle, WA 98101-3122 

Jennifer Neth Warberg & LeiLani J. Hart

Littler Mendelson P.C.

121 SW Morrison 

Suite 900 

Portland, OR 97204 

Attorneys for Defendants

HERNÁNDEZ, District Judge:

Plaintiff Larry Hurst initially filed this class action in Multnomah County claiming that 

Defendant First Student, Inc. (“First Student”) failed and refused to pay him and similarly 

situated individuals for hours spent during driver training and orientation. Specifically, Hurst 

seeks unpaid minimum wages and a civil penalty for all current and former employees of First 

Student. First Student subsequently removed the case to this Court.

First Student now moves for partial summary judgment against the civil penalty portion 

of Hurst’s claim because he is time-barred from collecting a civil penalty by the applicable threeyear statute of limitations. Without a valid civil penalty claim, First Student argues, Hurst cannot 

represent a class of individuals entitled to a civil penalty because he lacks standing and cannot 

satisfy the typicality and adequacy requirements of Federal Rule of Civil Procedure (“Rule”) 23. 

Thus, First Student also seeks an order decertifying the civil penalty portion of the class. 

The Oregon statutes at issue contain a single cause of action imposing liability on an 

employer who fails to pay the minimum wage for all hours worked; the unpaid minimum wage 

damages and the civil penalty are simply different measures of damages for the same employer 

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misconduct. Accordingly, First Student’s motion for summary judgment against Hurst’s civil 

penalty “claim” is denied. Hurst can continue to represent a class of individuals seeking to hold 

First Student liable for failing to pay minimum wages during driver training because he meets 

the standing, typicality and adequacy requirements for being a class representative.

BACKGROUND

In late July 2008, Hurst applied for employment with First Student. Hurst Deposition, 

ECF No. 24–1, at 5–6. Shortly thereafter, he attended First Student’s training program which 

consisted of training on company policies, scenario analysis, first aid, and pre-trip bus 

inspections. Id. at 8–9. First Student did not pay Hurst any wages for his time spent completing 

the training program. Id. at 15. Hurst began driving buses for First Student when the new school 

year began in September 2008, but only worked for approximately one month until he was 

terminated by mutual agreement on October 1, 2008. Id. at 4.

Hurst filed his complaint in the Circuit Court of the State of Oregon for the County of 

Multnomah in April 2013 alleging that he and similarly situated individuals were entitled to 

unpaid minimum wages and a civil penalty under ORS 653.055. Defendant’s Notice of Removal 

of Action, Attachment A, ECF No. 6, at 9–12. The judge certified the case as a class action on 

behalf of

[a]ll persons who attended the bus driver training programs of First Student, Inc. 

(or its predecessor Laidlaw International, Inc.) for bus driver employees or 

prospective employees in Oregon, between April 29, 2007 and April 29, 2013. 

The claims for which the class is to be certified are those stated in plaintiff 

Hurst’s complaint in this action arising under state wage and hour laws to recover 

unpaid wages and civil penalties.

Id. at 346. Hurst is the sole class representative. First Student removed the action to this Court on 

January 5, 2015, asserting that the case satisfied the amount-in-controversy and diversity 

jurisdictional requirements of the Class Action Fairness Act. 28 U.S.C. § 1332(d)(2). First 

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Student seeks summary judgment against the civil penalty portion of Hurst case and an order 

decertifying the civil penalty class. 

DISCUSSION

I. Statutory Analysis

First Student asks for summary judgment against Hurst’s civil penalty claim because he

is time-barred from collecting the civil penalty. Implicit in First Student’s argument is the 

assertion that Hurst’s claim against First Student can be split into two separate causes of action: 

one for unpaid minimum wages and one for an additional civil penalty. An examination of the 

relevant Oregon statutes reveals, however, that the unpaid minimum wages and the civil penalty 

are merely distinct types of damages, not separate claims. 

There are several statutes at play in this case: ORS 653.025, ORS 653.055, and ORS 

652.150. ORS 653.025 establishes the minimum wage for the State of Oregon. Proving a 

violation of ORS 653.025 requires two elements: “[f]irst, the plaintiff was employed by the 

defendant; and second, the plaintiff performed the work for which he or she was not 

compensated at the applicable minimum wage rate.” Chard v. Beauty-N-Beast Salon, 148 Or. 

App. 623, 627, 941 P.2d 611, 613 (1997) overruled on other grounds by Cejas Commercial 

Interiors, Inc. v. Torres-Lizama, 260 Or. App. 87, 316 P.3d 389 (2013). 

ORS 653.055 provides statutory remedies to employees whose employers fail to pay the 

minimum wage established by ORS 653.025. The full text of ORS 653.055 is set out below: 

//

//

//

//

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(1) Any employer who pays an employee less than the wages to which the 

employee is entitled under ORS 653.010 to 653.261 is liable to the employee 

affected:

(a) For the full amount of the wages, less any amount actually paid to the 

employee by the employer; and

(b) For civil penalties provided in ORS 652.150.

ORS 653.055.

On a plain reading of these statutes, there is a single act by an employer— failing to pay a 

minimum wage for all hours worked as required by ORS 653.025—that establishes an 

employer’s liability. See State v. Gaines, 346 Or. 160 (2003) (requiring courts to first look at the

plain language when interpreting Oregon statutes). In other words, once a plaintiff proves a 

violation of Oregon’s minimum wage law, ORS 653.055 provides that the employer is liable for 

(a) unpaid minimum wages and (b) a civil penalty as provided in ORS 652.150. See Hurger v. 

Hyatt Lake Resort, Inc., 170 Or. App. 320, 327, 13 P.3d 123, 126 (2000) (explaining that “ORS 

653.055 provides that a violation of the minimum wage laws can give rise to a penalty 

under ORS 652.150.”). While First Student is correct that the two statutory subsections have 

different statutes of limitations—six years for the unpaid wages and three years for the civil 

penalty—First Student offers no authority for the proposition that different limitations periods 

create distinct causes of action. See ORS 12.080(1); ORS 12.100(2). In light of the plain reading 

of the statutes, the Court declines to adopt First Student’s line of reasoning.

Additionally, Oregon courts have analyzed the civil penalty under ORS 652.150 as a 

form of damages. Wilson v. Smurfit Newsprint Corp., 197 Or. App. 648, 673, 107 P.3d 61, 76 

(2005) rev. dismissed, 122 P.3d 65 (Or. 2005) (“the amount of damages at issue in this case, that 

is, the penalty wages, is readily ascertainable.”). That further supports the Court’s conclusion 

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that the civil penalty is one type of damages that can arise from an employer’s failure to pay a 

minimum wage and not, as First Student impliedly asserts, a separate claim or cause of action. 

II. Other Class Challenges

The Court’s conclusion that there is a single claim with two different and distinct 

damages necessarily resolves First Student’s other challenges to Hurst’s ability to represent the 

current wage claim class. 

First Student argues that Hurst lacks standing to represent the civil penalty portion of the 

class. Standing requires that (1) the plaintiff suffered an injury in fact, (2) the injury is “fairly 

traceable” to the challenged conduct, and (3) the injury is “likely” to be “redressed by a 

favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (citation and 

internal quotations omitted). In a class action, standing is satisfied if at least one named plaintiff 

meets the requirements. See Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir. 2001). Hurst is the 

only named plaintiff in this case. With regard to injury in fact, Hurst claims he did not receive 

any wages for the time he spent in First Student’s training program. Hurst’s claimed injury traces 

to First Student’s challenged conduct: failure to pay individuals for time spent in its training 

program. Finally, Hurst’s injury will be redressed by a favorable decision because if First 

Student violated Oregon’s minimum wage requirement, the law requires redress of Hurst’s 

claimed injury through payment of damages. Whether other members of the class may be 

entitled to more damages than Hurst can recover has no bearing on the standing analysis.

First Student also challenges the typicality and adequacy of Hurst as the sole class 

representative because he is individually time-barred from collecting civil penalty damages. See

Fed. R. Civ. P. 23(a) (setting the requirements for class action: (1) numerosity, (2) commonality, 

(3) typicality, and (4) adequacy). 

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Typicality tests “whether other members have the same or similar injury, whether the 

action is based on conduct which is not unique to the named plaintiffs, and whether other class 

members have been injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 

F.2d 497, 508 (9th Cir. 1992) (citation omitted). Class members’ claims also must “depend upon 

a common contention such that determination of its truth or falsity will resolve an issue that is 

central to the validity of each claim in one stroke.” Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 

1165 (9th Cir. 2014) (internal citations omitted); see also See General Telephone Co. of Sw. v. 

Falcon, 457 U.S. 147, 157–58, n.13 (1982) (holding that the commonality and typicality 

requirements “tend to merge”).

In this case, the common contention is whether First Student employed Hurst and those 

similarly situated during its training program and failed to pay them a minimum wage. The 

answer to this question establishes whether First Student is liable for damages to the entire class.

Hurst meets the typicality requirement because an employer’s single act or course of conduct 

which gives rise to class members’ claims is sufficient to show typicality. See Delgado v. Del 

Monte Fresh Produce, N.A., Inc., 260 Or. App. 480, 490, 317 P.3d 419, 424-25 review denied,

355 Or. 380, 328 P.3d 696 (2014) (“All class members’ claims, including the class 

representatives’ claims, were dependent upon the same practice or course-of-conduct evidence to 

prove [a minimum wage violation]. On that basis, we conclude that the claims of the class 

representatives are typical of the class.”).

Adequacy requires that the representative plaintiff not have “conflicts of interest with the 

proposed class[.]” Capps v. U.S. Bank Nat’l Ass’n, 2009 WL 5149135, *5 (D. Or. Dec. 28, 

2009) (citation and internal quotations omitted).1 First Student contends that Hurst’s inability to 

 1 Adequacy also requires competency of plaintiff’s council. Capps, 2009 WL 5149135, at *5. First 

Student does not contest the competency of Hurst’s counsel so the Court does not address this issue.

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collect a civil penalty creates a conflict with class members who are entitled to the penalty. As 

previously discussed, once an employee-plaintiff proves a violation of Oregon’s minimum wage 

law, the employer-defendant is liable for unpaid minimum wages and is potentially liable for a 

civil penalty. Collection of the civil penalty is limited by a three-year statute of limitations. ORS 

12.100(2). Hurst does not dispute that he is outside the limitations period. 

The only difference, however, between Hurst and the individuals who are within the 

statute of limitations is the amount of damages they can collect if First Student is liable for 

failing to pay a minimum wage. Under Ninth Circuit law, the measure of damages is not a 

disabling conflict. See Yokoyama v. Midland Nat'l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir. 

2010). “So long as the plaintiffs were harmed by the same conduct, disparities in how or by how 

much they were harmed [does] not defeat class certification.” Jimenez, 765 F.3d at 1165. 

“[D]amages determinations are individual in nearly all wage-and-hour class actions” and “to 

decertify a class on the issue of damages or restitution may well be effectively to sound the 

death-knell of the class action device.” Leyva v. Medline Indus. Inc., 716 F.3d 510, 513–14 (9th 

Cir. 2013) (internal citation and quotation marks omitted).

First Student is correct that to collect the civil penalty, a plaintiff must show that the 

employer “willfully fails to pay any wages or compensation” due when employment ceased. 

ORS 652.150. Under ORS 652.150, “‘willful’ does not necessarily imply malice toward the 

other party, but merely that the acting party acted intentionally.” Kline v. Arcadis, Geraghty & 

Miller, Inc., No. CIV. 98-593-HA, 2000 WL 924687, at *8 (D. Or. June 22, 2000). Thus, a

plaintiff can show willfulness by proving the underlying facts for a minimum wage claim: 

employment by the defendant and lack of payment. See Santiago v. Tamarack Tree Co., No. CV06-1811-HU, 2007 WL 3171159 (D. Or. July 13, 2007) report and recommendation adopted as 

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modified, No. 06-CV-1811-HU, 2007 WL 3171137 (D. Or. Oct. 24, 2007) (concluding that an 

employer willfully failed to pay wages upon termination because its former employee never 

received wages due for work performed); see also Or. ex rel. Nilsen v. Johnston, 233 Or. 103, 

108, 377 P.2d 331, 333 (1962) (“[Willfulness] amounts to nothing more than this: That the 

person knows what he is doing, intends to do what he is doing, and is a free agent.”). Assuming 

that Hurst can show First Student is liable to the class for failing to pay a minimum wage, the 

Court can easily address the question of willfulness at the damages phase.

ORDER

For the reasons stated, Defendant’s motion for an order granting summary judgment on 

Plaintiff’s individual claim for civil penalties and decertifying the civil penalty portion of the 

class [23] is DENIED.

IT IS SO ORDERED.

Dated this day of October, 2015.

 

MARCO A. HERNÁNDEZ

United States District Judge

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