United States District Court, N.D. Illinois, Eastern Division
JASON PIETRZYCKI, on behalf of himself and all other plaintiffs similarly situated, Plaintiff,
HEIGHTS TOWER SERVICE, INC., and MARK MOTTER, Defendants.
MEMORANDUM OPINION AND ORDER
Jeffrey T. Gilbert United States Magistrate Judge.
Jason Pietrzycki (“Pietrzycki”), on behalf of
himself and others similarly situated, has sued Defendant
Heights Tower Service, Inc. (“HTS”) and Defendant
Mark Motter (“Motter”) (collectively,
“Defendants”) for allegedly underpaying some of
HTS's employees for overtime in violation of the Illinois
Minimum Wage Law (“the IMWL”), 820 Ill. Comp.
Stat. § 105/1 et seq., and the Fair Labor
Standards Act (“the FLSA”), 29 U.S.C. § 201
et seq. Second Amended Complaint, [ECF No. 74]. The
Court has certified a class under Federal Rule of Civil
Procedure 23 for the IMWL claim and a collective action under
29 U.S.C. § 216(b) for the FLSA claim. Memorandum
Opinion and Order, [ECF No. 108]; Pietrzycki v. Heights
Tower Serv., Inc., 197 F.Supp.3d 1007 (N.D. Ill. 2016).
Throughout this Memorandum Opinion and Order, the Court will
refer collectively to the class members and the collective
action members as “Plaintiffs.”
matter is now before the Court on three motions. The parties
have filed cross-motions for summary judgment.
Plaintiffs' Motion for Summary Judgment
(“Plaintiffs' SJ Motion”), [ECF No. 132];
Defendants' Motion for Summary Judgment
(“Defendants' SJ Motion”), [ECF No. 142].
Defendants also have filed a motion to decertify the Rule 23
class action and the FLSA collective action. Defendants'
Second Amended Motion to Decertify the FLSA Collective Action
and Motion to Decertify the Rule 23(a) Class Action
(“Defendants' Motion to Decertify”), [ECF No.
140]. The parties have briefed these motions and the Court
heard oral argument. For the reasons stated below,
Plaintiffs' Motion for Summary Judgment [ECF No. 132] is
denied, Defendants' Motion for Summary Judgment [ECF No.
142] is denied, and Defendants' Motion to Decertify [ECF
No. 140] is denied. As the Court notes throughout this
Memorandum Opinion, the record developed by the parties in
discovery-or at least the record as presented in support of
the parties' respective motions-is not adequate to
justify granting any of the motions now before the Court.
services cellular communication towers
(“towers”). Plaintiff's Statement of
Undisputed Material Facts in Support of His Motion for
Summary Judgment (“Plaintiffs' SoF”), [ECF
No. 134], ¶ 4; Defendants' Statement of Undisputed
Material Facts in Support of Their Motion for Summary
Judgment (“Defendants' SoF”), [ECF No. 143],
¶ 3. Motter is HTS's president and sole owner.
Plaintiffs' SoF, [ECF No. 134], ¶ 2. Plaintiffs are
current and former foremen and tower technicians employed by
HTS and Motter. Id. ¶¶ 1, 2;
Defendants' SoF, [ECF No. 143], ¶ 1.
HTS sends a four-person crew consisting of one foreman and
three tower technicians to work on each tower. Defendants
Heights Tower Service, Inc. and Mark Motter's Memorandum
of Law in Support of Collective Action Decertification and in
Opposition to Plaintiff's Motion for Class Certification
(“Defendants' Prior Decertification Brief”),
[ECF No. 94], at 8. At the tower, foremen and tower
technicians install, repair, upgrade, and maintain towers and
related equipment. Defendants' SoF, [ECF No. 143], ¶
3; Pietrzycki, 197 F.Supp.3d at 1012. Foremen also
are responsible for assigning work, supervising tower
technicians, and tracking the work performed.
Pietrzycki, 197 F.Supp.3d at 1012. The differences
between the roles of foreman and tower technician are not
material to the resolution of the motions now before the
Court. To save a few words, the Court will refer to foremen
and tower technicians as “employees” (or
“employee, ” as appropriate).
record how much time employees work in a given week, HTS
relies on foremen to fill out daily activity reports
(“DARs”) for their respective crews.
Plaintiffs' SoF, [ECF No. 134], ¶ 16;
Defendants' SoF, [ECF No. 143], ¶ 20. A DAR reports
each crew member's start time, end time, “work
hours, ” and “travel hours.”
Plaintiffs' SoF, [ECF No. 134], ¶¶ 17-19;
Sample DAR, [ECF No. 134-5]. HTS then collects the
information recorded in the DARs and uses it to prepare
Employee Job Detail Reports, Timecard Lists, and Payroll
Stubs. Plaintiffs' SoF, [ECF No. 134], ¶ 20.
services towers in at least seven states, Illinois, Ohio,
Wisconsin, Kentucky, Pennsylvania, Georgia, and South Dakota.
Plaintiffs' SoF, [ECF No. 134], ¶ 7; Defendants'
SoF, [ECF No. 143], ¶ 6. Most of HTS's business is
concentrated in the first three states, which collectively
accounted for 97% of its business in 2014. Plaintiffs'
SoF, [ECF No. 134], ¶ 7; Defendants' SoF, [ECF No.
143], ¶ 6. HTS has warehouses in Yorkville, Illinois,
and Mount Vernon, Ohio. Defendants' Prior Decertification
Brief, [ECF No. 94], at 7. HTS's employees reside in
Illinois, Ohio, Wisconsin, and Michigan. Id. at 8.
To get to or from a tower on a given day, employees may have
to travel a significant distance. Plaintiffs' SoF, [ECF
No. 134], ¶ 10.
case has to do with the time that employees spend traveling
to and from towers. Employees' travel options can be
broken into two categories. First, employees are allowed to
arrange their own transportation if they want to do so.
Defendants' SoF, [ECF No. 143], ¶ 5; see
also Plaintiffs' Combined Reply in Support of Their
Motion for Summary Judgment and in Response to the
Defendants' Motion for Summary Judgment
(“Plaintiffs' Combined Brief”), [ECF No.
147], at 3. Typically, this involves driving a personal
vehicle or riding in another crew member's personal
vehicle. Alternatively, HTS provides a free transportation
option, allowing a crew's members to travel in an
HTS-owned truck (“HTS truck”) to and from their
tower. See Plaintiffs' SoF, [ECF No. 134],
¶¶ 6, 11; Defendants' SoF, [ECF No. 143],
¶¶ 5, 7. One member of the crew, typically the
foreman, drives the HTS truck and all other crew members who
opt to travel in the HTS truck ride as passengers. If
employees want to travel in an HTS truck, HTS requires them
to meet at a designated location-normally an HTS warehouse at
the start of the day-by a certain time. See
Defendants' Memorandum of Law in Support of Their Motion
for Summary Judgment (“Defendants' Opening SJ
Brief”), [ECF No. 144], at 6; Defendants' Reply in
Support of Their Motion for Summary Judgment
(“Defendants' SJ Reply”), [ECF No. 156], at 7
n.3. It seems that employees usually choose to travel in an
HTS truck and only infrequently arrange to travel in a
personal vehicle. Plaintiff's SoF, [ECF No. 134], ¶
approximately 2012, HTS decided to implement the travel time
compensation arrangement at issue in this case by paying $10
per hour for travel hours (the “Drive Time
Rate”). See Id. ¶¶ 8, 10;
Defendants' SoF, [ECF No. 143], ¶¶ 7, 13. HTS
took this step so that it could remain
compensation-competitive and attract employees.
Plaintiffs' SoF, [ECF No. 134], ¶ 9; Defendants'
SoF, [ECF No. 143], ¶ 12. HTS and Motter intended the
new arrangement to be a uniform policy applied in a
consistent manner. Defendants' SJ Reply, [ECF No. 156],
at 2; see also Defendants' Motion to Decertify,
[ECF No. 140], at 14 (stating “Defendants expected one
application on [sic] the Drive Time [Rate]”).
HTS's new plan, employees should receive at least some
compensation for all of the time that they spend traveling in
an HTS truck. Time spent driving an HTS vehicle should be
recorded as normal work hours. Defendants' Motion to
Decertify, [ECF No. 140], at 12. Time spent riding as
passengers normally should be recorded as travel hours.
Id. at 9. Passengers' time should be recorded as
normal work hours, though, if the passengers perform work in
the truck while traveling. Defendants Heights Tower Service,
Inc. and Mark Motter's Reply in Support of Their Second
Motion to Decertify the FLSA Collective Action and Motion to
Decertify the Rule 23(a) Class Action (“Defendants'
Decertification Reply”), [ECF No. 152], at 3-4, 9.
Passengers' time also should be recorded as normal work
hours if they perform what Defendants call
“substantial” work before getting in the truck at
the start of the day or after exiting it at the end of the
day. Id. Even under this new compensation
arrangement, the time that employees spend traveling in
personal vehicles-regardless of whether the employees drive
or ride as passengers-should not be recorded as either work
hours or travel hours. Defendants' Motion to Decertify,
[ECF No. 140], at 9; see also Id. at 12.
parties dispute whether HTS consistently paid the Drive Time
Rate in accordance with this plan. Plaintiffs say HTS largely
followed it except that HTS also usually recorded the time
spent traveling in personal vehicles as travel hours.
Defendants, however, claim foremen distorted HTS's
intended policy by recording “travel hours” on
DARs in a haphazard and inconsistent manner. The Court will
address this dispute-including whether it presents a genuine
issue of material fact within the meaning of Federal Rule of
Civil Procedure 56-later in this Memorandum Opinion.
parties agree that HTS treated all time that it recorded as
travel hours and paid at the Drive Time Rate in a consistent
manner when calculating how much overtime compensation to pay
employees. When determining how many hours employees worked
in a given week, HTS excluded all time that was recorded as
travel hours and paid at the Drive Time Rate. Plaintiffs'
SoF, [ECF No. 134], ¶ 21; Defendants' SoF, [ECF No.
143], ¶¶ 22, 24. When calculating the overtime rate
of pay for employees, HTS excluded all payments at the Drive
Time Rate of $10 per hour, and just multiplied employees'
regular wages by 1.5. Plaintiffs' SoF, [ECF No. 134],
¶ 23; Defendants' SoF, [ECF No. 143], ¶ 23. It
is these two overtime compensation practices that are at
issue in this lawsuit.
August 25, 2014, Pietrzycki filed the original complaint in
this case on behalf of himself and similarly situated
persons. Collective Action Complaint, [ECF No. 1]. A little
less than one year later, Pietrzycki filed the Second Amended
Complaint, which is the extant complaint at the present time.
Second Amended Complaint, [ECF No. 74]. The Second Amended
Complaint asserts two counts. Count I is brought under the
FLSA and Count II under the IMWL. Both counts allege
Defendants underpaid Plaintiffs for their overtime work.
Plaintiffs now have refined their case to two claims, which
are identical under the two statutes. Plaintiff's
Memorandum of Law in Support of His Motion for Summary
Judgment (“Plaintiffs' Opening SJ Brief”),
[ECF No. 133], at 1-2; Pietrzycki, 197 F.Supp.3d at
1017. First, Plaintiffs claim HTS should have counted Drive
Time as “hours worked” for the purposes of
determining how many overtime hours Plaintiffs worked.
Second, Plaintiffs claim HTS should have included the amounts
paid at the Drive Time Rate when determining each
Plaintiff's regular rate.
April 1, 2015, at the joint request of the parties, the Court
conditionally certified a FLSA collective action. Order
Authorizing Notice to Similarly Situated Persons pursuant to
29 U.S.C. § 216(b), [ECF No. 34]. The following year,
Pietrzycki moved to certify a Rule 23 class and Defendants
moved to decertify the collective action.
Pietrzycki, 197 F.Supp.3d at 1011. Based on the
parties' arguments and the record then before it, the
Court certified, under Federal Rules of Civil Procedure
23(b)(2) and (3), “a class of Illinois workers under
the IMWL that is comprised of ‘all current and former
HTS Tower Technicians and Foremen who received compensation
for Drive Time as reflected in HTS's payroll records and
who worked in Illinois since August 25, 2011, '”
and denied the motion to decertify the collective action.
Id. at 1026. After the Court's ruling,
Defendants sought additional discovery, which they were
permitted to take. Joint Status Report, [ECF No. 110]; Minute
Entry Dated 8/5/16, [ECF No. 111]. This was followed by the
current round of motion practice. The Court heard oral
argument on the pending motions on July 31, 2017. Minute
Entry Dated 7/31/17, [ECF No. 161].
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); see also Cincinnati Life Ins. Co. v. Beyrer,
722 F.3d 939, 951 (7th Cir. 2013). In deciding a motion for
summary judgment, the court “review[s] the evidence in
the record in the light most favorable to the non-moving
party and draw[s] all reasonable inferences in its
favor.” NES Rental Holdings, Inc. v. Steine Cold
Storage, Inc., 714 F.3d 449, 452 (7th Cir. 2013);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). The party opposing the motion for summary
judgment “gets the benefit of all facts that a
reasonable jury might find.” Loudermilk v. Best
Pallet Co., LLC, 636 F.3d 312, 314 (7th Cir. 2011).
However, the opposing party cannot rely on mere conclusions
and allegations to create factual issues. Balderston v.
Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d
309, 320 (7th Cir. 2003). Nor can speculation be used
“to manufacture a genuine issue of fact.”
Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir.
2008). The court will grant summary judgment “if no
reasonable trier of fact could find in favor of the
non-moving party.” Hoppe v. Lewis Univ., 692
F.3d 833, 838 (7th Cir. 2012); see also Northbound Group,
Inc. v. Norvax, Inc., 5 F.Supp.3d 956, 966-67 (N.D. Ill.
Section 216(b) of the FLSA, employees may bring a collective
action on behalf of themselves and other ‘similarly
situated' employees against employers who violate the
Act's minimum wage or overtime provisions.”
Smallwood v. Illinois Bell Tel. Co., 710 F.Supp.2d
746, 750 (N.D. Ill. 2010). A collective action under the FLSA
is different from a class action certified under Federal Rule
of Civil Procedure 23. Flores v. Lifeway Foods,
Inc., 289 F.Supp.2d 1042, 1044 (N.D. Ill. 2003). But
“the case law has largely merged the standards.”
Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 772
(7th Cir. 2013). Therefore, when deciding whether to
decertify a collective action and a class action in one
lawsuit, the court treats them as a single class action and
applies the Rule 23 standards. See Dekeyser v.
Tyssenkrupp Waupaca, Inc., 860 F.3d 918, 920 (7th Cir.
2017) (noting collective actions “are very similar to
the more familiar Rule 23 class actions” and
“analyz[ing] the two classes together”); see
also Sanchez v. Roka Akor Chicago LLC, 2016 WL 74668, at
*5 (N.D. Ill. Jan. 7, 2016); Elder v. Comcast Corp.,
2015 WL 3475968, at *5 (N.D. Ill. June 1, 2015); Dailey
v. Groupon, Inc., 2014 WL 4379232, at *4 (N.D. Ill. Aug.
Federal Rule of Civil Procedure 23(c)(1)(C), “[a]n
order that grants or denies class certification may be
altered or amended before final judgment.” Fed.R.Civ.P.
23(c)(1)(C). After granting certification, the court
“remains under a continuing obligation to review
whether proceeding as a class action is appropriate.”
Shurland v. Bacci Cafe & Pizzeria on Ogden,
Inc., 271 F.R.D. 139, 142 (N.D. Ill. 2010) (quoting
Ellis v. Elgin Riverboat Resort, 217 F.R.D. 415, 419
(N.D. Ill. 2003)). When a party moves to decertify a class,
“the party seeking class certification ‘bears the
burden of producing a record demonstrating the continued
propriety of maintaining the class action.'”
Farmer v. DirectSat USA, LLC, 2013 WL 2457956, at *2
(N.D. Ill. June 6, 2013) (quoting Ellis, 217 F.R.D.
at 419); see also Jacks v. DirectSat USA, LLC, 2015
WL 1087897, at *1 (N.D. Ill. Mar. 10, 2015).
seeking class certification must prove that the class meets
the four requirements of Rule 23(a) and at least one of the
three alternatives provided in Rule 23(b). Costello v.
BeavEx, Inc., 810 F.3d 1045, 1059 (7th Cir. 2016). Rule
23(a) requires numerosity, typicality, commonality, and
adequacy of representation. Messner v. Northshore Univ.
HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). Only
two of Rule 23(b)'s alternatives are relevant to this
case. Under Rule 23(b)(2), certification is proper
“when the plaintiffs' primary goal is not monetary
relief, but rather to require the defendant to do or not do
something that would benefit the whole class.”
Chicago Teachers Union, Local No. 1 v. Bd. of Educ. of
City of Chicago, 797 F.3d 426, 441 (7th Cir. 2015).
Under Rule 23(b)(3), certification is proper when questions
of law or fact common to the members of the proposed class
predominate over questions affecting only individual class
members, and a class action is superior to other methods of
resolving the controversy. Messner, 669 F.3d at 811.
and Defendants have filed cross-motions for summary judgment.
Defendants also have filed a motion to decertify. The Court
will address the motions for summary judgment and then turn
to the motion to decertify.
Parties' Cross-Motions for Summary Judgment
parties have moved for summary judgment. Before turning to
the merits of the parties' motions, one preliminary issue
must be addressed.
argue the Court should strike Defendants' Statement of
Undisputed Material Facts in Support of Their Motion for
Summary Judgment [ECF No. 143] and Defendants' Response
to Plaintiff's Statement of (Allegedly) Undisputed
Material Facts [ECF No. 146] because they do not comply with
Local Rule 56.1. Local Rule 56.1 requires a party moving for
summary judgment to submit a statement of material facts with
“specific references to the affidavits, parts of the
record, and other supporting materials relied upon to support
the facts.” N.D.Ill. R. 56.1(a). Then, “the party
opposing the motion for summary judgment is required to file
and serve ‘a concise response to the movant's
statement that shall contain . . . a response to each
numbered paragraph in the moving party's statement,
including, in the case of any disagreement, specific
references to the affidavits, parts of the record, and other
supporting materials relied upon.'” Curtis v.
Costco Wholesale Corp., 807 F.3d 215, 218 (7th Cir.
2015) (quoting N.D.Ill. R. 56.1(b)(3)(B)). Because Local Rule
56.1 serves an important function by organizing evidence and
identifying disputed facts, the district court has the
discretion to require strict compliance. Flint v. City of
Belvidere, 791 F.3d 764, 767 (7th Cir. 2015); F.T.C.
v. Bay Area Bus. Council, Inc., 423 F.3d 627, 633 (7th
criticize Defendants' Local Rule 56.1(a) and (b)
statements in several ways. Plaintiffs say, among other
things, that they are argumentative, contain multiple facts
in each paragraph, and lack support for specific statements.
In the Court's view, Defendants' statements do leave
something to be desired. But most of the paragraphs in
Defendants' statements are two sentences or shorter, are
supported by appropriate citations, and are not filled with
conjecture and legal arguments. More fundamentally,
Defendants' statements are sufficient to serve the
purpose of Local Rule 56.1 because they lay out for the Court
Defendants' version of the material facts and the
evidence upon which they rely. There is no indication that
Defendants' statements were so deficient as to prejudice
Plaintiffs by frustrating their ability to litigate the
summary judgment motions. Therefore, the Court will not
strike Defendants' Local Rule 56.1 statements.
Court can address the merits of parties' arguments.
Plaintiffs' Hours Worked Claim
claim Defendants violated the IMWL and the FLSA by
undercounting the number of overtime hours they worked.
See 820 Ill. Comp. Stat. 105/4a; 29 U.S.C. §
207(a)(1). It is undisputed that HTS did not count the
“travel hours” that were recorded on DARs and for
which HTS paid the Drive Time Rate when computing how many
hours its employees worked. Plaintiffs' SoF, [ECF No.
134], ¶ 21; Defendants' SoF, [ECF No. 143],
¶¶ 22, 24. The parties' dispute focuses on
whether those hours, which the Court will call “Drive
Time, ” must be counted when deciding how much overtime
Plaintiffs worked. That, in turn, is relevant to whether
Plaintiffs were paid in accordance with the law for any
overtime hours worked.
determine if an employee surpasses the 40-hour overtime
threshold, an “employer must total all the hours worked
by the employee for him in that workweek.” 29 C.F.R.
§ 778.103. The term “hours worked” includes
“all time during which an employee is suffered or
permitted to work whether or not he is required to do
so.” 29 C.F.R. § 778.223. The FLSA does not define
“work.” Musch v. Domtar Indus., Inc.,
587 F.3d 857, 859 (7th Cir. 2009). The Supreme Court, though,
has provided significant guidance about the meaning of that
crucial term. In 1944, the Supreme Court “described
‘work or employment' as ‘physical or mental
exertion (whether burdensome or not) controlled or required
by the employer and pursued necessarily and primarily for the
benefit of the employer and his business.'”
IBP, Inc. v. Alvarez, 546 U.S. 21, 25 (2005)
(quoting Tennessee Coal, Iron & R. Co. v. Muscoda
Local No. 123, 321 U.S. 590, 598 (1944)). In a
subsequent opinion that same year, the Supreme Court
“clarified that ‘exertion' was not in fact
necessary for an activity to constitute ‘work'
under the FLSA” and that “an employer, if he
chooses, may hire a man to do nothing, or to do nothing but
wait for something to happen.” Id. (quoting
Armour & Co. v. Wantock, 323 U.S. 126, 133
(1944)). Then, in 1946, the Supreme Court “defined
‘the statutory workweek' to ‘includ[e] all
time during which an employee is necessarily required to be
on the employer's premises, on duty or at a prescribed
workplace.'” Id. (quoting Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 690- 91 (1946)).
The Seventh Circuit has noted that, in light of the Supreme
Court's decisions, “[b]y definition,
‘work' is performed not for the employee's
‘convenience, ' but for the employer's
benefit.” Kellar v. Summit Seating Inc., 664
F.3d 169, 176 (7th Cir. 2011).
contend Defendants bear the burden of proving Drive Time is
not hours worked. But Plaintiffs bear the burden to prove
that they performed overtime work for which they were not
properly compensated. Melton v. Tippecanoe Cty., 838
F.3d 814, 818 (7th Cir. 2016); Kellar, 664 F.3d at
173; Brown v. Family Dollar Stores of IN, LP, 534
F.3d 593, 594 (7th Cir. 2008). Only after Plaintiffs have
established that they actually performed uncompensated work
do Defendants “bear the burden of proving that an
exception applies to the general rule that work is
compensable under the FLSA.'” Pietrzycki,
197 F.Supp.3d at 1023 (quoting DeKeyser v. Thyssenkrupp
Waupaca, Inc., 747 F.Supp.2d 1043, 1051 (E.D. Wis.
2010)) (internal quotation marks omitted).
of Labor regulations state that “[t]he principles which
apply in determining whether or not time spent in travel is
working time depend upon the kind of travel involved.”
29 C.F.R. § 785.33. Travel between jobsites and travel
during which an employee does work must be counted as hours
worked. 29 C.F.R. § 785.38; 29 C.F.R. § 785.41.
Time spent in certain other types of travel also must be
counted as hours worked. See 29 C.F.R. §
785.36-40. “[O]rdinary travel from home to work,
” though, “need not be counted as hours
worked.” 29 C.F.R. § 785.34 (internal citation
omitted); see also 29 C.F.R. § 785.35
(“An employee who travels from home before his regular
workday and returns to his home at the end of the workday is
engaged in ordinary home to work travel which is a normal
incident of employment. Normal travel from home to work is
not worktime.”). “This rule applies even where
employees travel together to a work site, either in an
employee's vehicle or a company-owned vehicle . . .
.” Wren v. RGIS Inventory
Specialists, 2009 WL 2612307, at *6 (N.D. Cal. Aug. 24,
2009). This rule also applies even when an employee works
“at different job sites” instead of at a fixed
location. 29 C.F.R. § 785.35. Therefore, Plaintiffs must
show that Drive Time involves more than ordinary home-to-work
first and main argument is that HTS had a custom or practice
of paying employees for Drive Time and entered into a
nonwritten contract to pay them for Drive Time. Plaintiffs
contend that, under an amendment to the FLSA called the
Portal-to-Portal Act of 1947 (the “PPA”), 29
U.S.C. § 254, this custom, practice, or contract is
sufficient to make all Drive Time into hours worked. In
response, Defendants assert HTS did not have a custom,
practice, or contract of compensating for Drive Time.
Defendants also say that, in any event, Drive Time cannot
count as hours worked because the activity of riding as a
passenger in a vehicle is not work.
discussed below, even though the Court agrees with Plaintiffs
that HTS had a custom, practice, or contract with its
employees to compensate them for traveling as passengers in
an HTS truck or other vehicle to and from a jobsite, the
Court disagrees that the existence of such a custom,
practice, or contract automatically makes Drive Time into
hours worked under the PPA as a matter of law. Neither party
addresses this issue very well in their written submissions.
The PPA, however, does not turn ordinary home-to-work
commuting into hours worked and Plaintiffs have not shown in
their summary judgment filings that Drive Time should be
characterized as anything other than ordinary home-to-work
travel based on the record developed in support of their
summary judgment motion. The Court will first discuss
Plaintiffs' hours worked and regular rate claims and then
address Defendants' argument that the PPA provides them
with a defense to Plaintiffs' claims. See infra
Court's analysis of Plaintiffs' claims is as follows.
29 U.S.C. § 254(d) is the only provision of the PPA that
affects “the determination of hours worked.” 29
C.F.R. § 790.5. Subsection (d) provides that “in
determining the time for which an employer employs an
employee with respect to” the activities described in
§ 254(a), “there shall be counted . . . only that
time during which the employee engages in any such activity
which is compensable within the meaning of” §
254(b) and (c). 29 U.S.C. § 254(d). Because §
254(b) does not make any activity into compensable work in
the first instance, see Kuebel v. Black & Decker
Inc., 643 F.3d 352, 360 (2d Cir. 2011), § 254(d)
“does not make such time hours worked under the [FLSA],
if it would not be so counted” if the PPA never were
passed. 29 C.F.R. § 790.7; see also 29 C.F.R.
§ 790.5. “The general rule . . . is and always
has been that the FLSA does not treat ordinary
home-to-job-site travel as compensable.”
Kuebel, 643 F.3d at 360; see Shearer v. Edger
Associates Inc., 2015 WL 9274928, at *4 (M.D. Fla. Dec.
18, 2015); Gilmer v. Alameda-Contra Costa Transit
Dist., 2010 WL 289299, at *5 (N.D. Cal. Jan. 15, 2010);
Wren, 2009 WL 2612307, at *7; Johnson, 554
F.Supp.2d at 708; 29 C.F.R. § 785.34; see also
Walling v. Mid-Continent Pipe Line Co., 143 F.2d 308,
311 (10th Cir. 1944); Harrington v. Empire Const.
Co., 71 F.Supp. 324, 333 (D. Md. 1947),
modified, 167 F.2d 389 (4th Cir. 1948); Chepard
v. May, 71 F.Supp. 389, 393 (S.D.N.Y. 1947); Bulot
v. Freeport Sulphur Co., 45 F.Supp. 380, 381 (E.D. La.
1942). In other words, a custom, practice, or contract of
paying for ordinary home-to-work commuting cannot make that
travel time into hours worked if it would not have been
characterized as such before Congress passed the PPA.
courts have addressed the exact argument raised by Plaintiffs
in somewhat factually similar scenarios. In Johnson v.
RGIS Inventory Specialists, the plaintiff employee's
job was to travel to retail stores to count merchandise. 554
F.Supp.2d 693, 696 (E.D. Tex. 2007). About half of the time
the plaintiff worked at “local” stores, and the
other half of the time she worked at “travel”
stores (i.e., those more than 20 miles away).
Id. To help employees get to travel stores, the
defendant employer provided a free transportation option that
employees could choose (but were not required) to take.
Id. If an employee wanted to drive in the
employer-provided vans, she had to arrive at a designated
meet site by a designated time. Id. at 696-97.
Before March 2004, the employer paid employees for the time
spent traveling in the employer's vans at a rate less
than their regular wage. Id. at 697. Then, in March
2004, the employer stopped paying anything for the first and
last hour spent traveling in the employer's vans and paid
the minimum wage for all other travel time. Id. The
plaintiff sued the employer, claiming, among other things,
that the time she spent traveling in the employer's vans
was compensable under the FLSA.
court recognized that “[n]ormal travel from home to
work is not worktime” under the FLSA. Id. at
703 (quoting 29 C.F.R. § 785.35). The court explained
that, whether travel is “normal” turns on
“a subjective standard, defined by what is usual within
the confines of a particular employment relationship.”
Id. (quoting Kavanagh v. Grand Union Co.,
192 F.3d 269, 272 (2d Cir. 1999)). As the court put it,
“home-to-work travel that is ‘a contemplated,
normal occurrence' of the employment is viewed as
‘normal travel'” under the relevant
regulation. Id. (quoting Smith v. Aztec Well
Servicing Co., 462 F.3d 1274, 1287 n.3 (10th Cir.
2006)). The court concluded the plaintiff's travel to and
from stores, as a general matter, “was ordinary
home-to-work-and-back travel.” Id. at 704. The
court noted that the defendant's decision to provide a
free commuting option did not alter this fact. Id.
at 705. The court also rejected plaintiff's argument that
ordinary commuting counted as “hours worked” when
an employer has a custom, practice, or contract of
compensating for that activity. Id. at 706-08. In
doing so, the court explained that “ordinary
home-to-work travel was not viewed as hours worked even
prior to the enactment of the [PPA], ” and, therefore,
that “the travel at issue . . . did not qualify as
hours worked, even if [the defendant] had a custom or
practice of paying for it.” Id. at 707.
Wren v. RGIS Inventory Specialists, a different
court dealt with a very similar case against the same
defendant employer. 2009 WL 2612307, at *3. The plaintiff
employee claimed the post-March 2004 policy violated the FLSA
because, among other reasons, the travel time counted as
hours worked. The court recognized travel between home and
work is a normal incident of employment and does not count as
hours worked. Id. at *6. The court explained this
rule applies even when employees travel together in an
employer-provided vehicle. Id. The court ultimately
concluded the travel at issue in that case constituted no
more than ordinary home-to-work travel. Id. at *7.
The court then went on to reject the plaintiff's argument
that the defendant employer's policy of paying for travel
made that time into worktime, reaffirming that a custom or
practice does not make time into hours worked when the time
would not count as hours worked in the absence of the policy.
Id. at *7-8.
rely on three cases to support their argument that a custom,
practice, or contract of compensating for travel time can
make that time count as hours worked. None of the cases
actually supports this proposition. In Raper v.
State, the Iowa Supreme Court case never addressed
whether the plaintiff peace officers' travel time would
have counted as hours worked in the absence of the PPA,
possibly because the state patrol regulations relevant to the
plaintiffs' claims in that case provided the peace
officers were “on duty at any time they [were] in
uniform or in a state vehicle.” 688 N.W.2d 29, 46 (Iowa
2004). Instead, the court focused on the narrower factual
question of whether there was a custom or practice of paying
for the travel time at issue. Id. at 46. Similarly,
in Marshall v. R & M Erectors, Incorporated,
there is no indication that the defendants disputed whether
the travel time at issue counted as hours worked and the
court never explicitly addressed the issue. 29 F.Supp. 771,
776-79 (D. Del. 1977). Finally, Plaintiffs over-read the
statement in Vega v. Gasper that “[o]rdinary
home-to-work travel is clearly not compensable under the
[PPA] unless a contract or custom of compensation exists
between the employer and the employees.” 36 F.3d at