United States District Court, N.D. Illinois, Eastern Division
JOSE PIZANO, on behalf of himself and other similarly situated individuals, Plaintiff,
BIG TOP & PARTY RENTALS, LLC d/b/a/ BIG TOP TENT & PARTY RENTALS, LLC, and MARLENE LEONARD, individually, Defendants.
MEMORANDUM OPINION AND ORDER
M. DOW, JR UNITED STATES DISTRICT JUDGE.
December 7, 2016, the parties agreed to brief the threshold
question of whether “ride time” can be
compensable time for purposes of calculating overtime wages
under the Fair Labor Standards Act, 29 U.S.C. § 201
et seq., as amended, and the Illinois Minimum Wage
Law, 820 ILSC 105/1, et seq. Based on those
submissions [42, 47, 48], the Court concludes that
“ride time” can be compensable. This case is set
for further status on May 4, 2017, at 9:30 a.m. to discuss
scheduling, additional motion practice, and the possibility
Big Top & Party Rentals, LLC, and its owner, Defendant
Marlene Leonard, “provide tents, tables, chairs,
lighting, staging, dance floors, and other equipment to
clients for events such as weddings and festivals” in
Illinois, Wisconsin, and Indiana. [42, at 2; 47, at 2.]
Plaintiff Jose Pizano was one of Defendants' regular
seasonal employees, working from May to October each year
from 2012 through 2015. [47, at 2.] According to Plaintiff,
he and other employees would “go to Defendants'
worksite each day, load Defendants' trucks with the
necessary tents, and other supplies for the day, and travel
to the clients' sites to install the tents as well as any
other requested equipment.” [42, at 2.]
alleges that he regularly worked in excess of forty hours a
week, but was not paid overtime compensation for all of this
time. [1, ¶¶ 10-11.] Specifically, he was not
compensated for work that includes “time loading trucks
at the beginning of the day, unloading trucks and the end of
the day, and traveling from job to job and installing
tents.” [42, at 2.] He alleges that he and other
workers would “punch in each day before beginning to
load Defendant's trucks and punched out at the end of
each day after unloading the truck and cleaning off
tools.” Id. at 2-3.
dispute these facts (and, obviously, any liability). They
argue that Defendants had three crews, two of which travel to
various sites in Illinois, Wisconsin, and Indiana, while the
third remains at Defendants' warehouse. [47, at 3.]
According to Defendants, the third crew has exclusive
responsibility for loading and unloading the trucks.
Id. The other two crews are given a
“ride” to the first morning job site in a fully
loaded company truck, and they start their work day only upon
arrival at the job site. Id. During their truck
ride, “almost all of the crew” make personal
phone calls, sleep, or snack. Id. at 4. “The
employees perform no work whatsoever prior to and after their
‘ride' to and from the first and last job
site.” Id. Nevertheless, Defendants pay these
workers at their regular rate for this “ride
time.” Id. at 1, 3.
parties requested to brief a narrow issue: whether, as a
matter of law, ride time can be compensable under the Fair
Labor Standards Act, 29 U.S.C. § 201 et seq.,
as amended (“FLSA”), and the Illinois Minimum
Wage Law, 820 ILSC 105/1, et seq.
(“IMWL”). The answer to that narrow question is yes.
FLSA requires employers to pay overtime to certain employees
who work more than 40 hours in a work week.” Kellar
v. Summit Seating Inc., 664 F.3d 169, 173 (7th Cir.
2011). In 1947, Congress amended the FLSA through the
Portal-to-Portal Act to eliminate liability under the FLSA
for employers' “activities which are preliminary to
or postliminary to [the] principal activity or activities
[that an employee is hired to perform], which occur either
prior to the time on any particular workday at which such
employee commences, or subsequent to the time on any
particular workday at which he ceases, such principal
[activities].” 29 U.S.C. § 254(a). Department of
Labor regulations explain, however, that this amendment
“did not alter what is known as the ‘continuous
workday rule, ' under which compensable time comprises
‘the period between the commencement and completion on
the same workday of an employee's principal activity or
activities [, ] whether or not the employee engages in work
throughout all of that period.” Sandifer v. U.S.
Steel Corp., 134 S.Ct. 870, 875 (2014) (quoting 12 Fed.
Reg. 7658 (1947); 29 CFR § 790.6(b) (2013)).
performed either before or after the regular work shift, on
or off the production line, are compensable under the [FLSA]
if those activities are an integral and indispensable part of
the principal activities.” Steiner v.
Mitchell, 350 U.S. 247, 256 (1956). “An activity
is * * * integral and indispensable to the principal
activities that an employee is employed to perform if it is
an intrinsic element of those activities and one with which
the employee cannot dispense if he is to perform his
principal activities.” Integrity Staffing
Sols., Inc. v. Busk, 135 S.Ct. 513, 517 (2014).
Department of Labor regulations speak directly to whether
travel time is compensable. See 29 C.F.R. § 785.38. In
particular, Section 785.38 provides that
Time spent by an employee in travel as part of his principal
activity, such as travel from job site to job site during the
workday, must be counted as hours worked. Where an employee
is required to report at a meeting place to receive
instructions or to perform other work there, or to pick up
and to carry tools, the travel from the designated place to
the work place is part of the day's work, and must be
counted as hours worked regardless of contract, custom, or
practice. If an employee normally finishes his work on the
premises at 5 p.m. and is sent to another job which he
finishes at 8 p.m. and is required to return to his
employer's premises arriving at 9 p.m., all of the time
is working time. However, if the employee goes home instead
of returning to his employer's premises, the travel after
8 p.m. is home-to-work travel and is not hours worked.
courts have explained that “[p]reparation or cleanup
constitutes principal activity if it is an integral part of
the employee's work” and thus the worker's
“travel time to a job site after preparation or from a
job site before cleanup would be time covered by the
statutes.” O'Brien v. Encotech Const.,
2004 WL 609798, at *4 (N.D. Ill. Mar. 23, 2004); accord
Guzman v. Laredo Sys., Inc., 2012 WL 5197792, at *4
(N.D. Ill. Oct. 19, 2012) (granting summary for plaintiffs on
FLSA claim where the undisputed facts showed that
“before traveling to the jobsite, the plaintiffs were
required to gather together the tools they would need based
on the assignment they received”). Moreover,
“time spent traveling from jobsite to jobsite” is
“integral and indispensable” to a principal
activity, and therefore compensable under the FLSA. Perez
v. Super Maid, LLC, 55 F.Supp.3d 1065, 1079 (N.D. Ill.
2014) (finding that paying a “predetermined amount for
each cleaning job regardless of * * * the time spent
traveling to that ...