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Pietrzycki v. Heights Tower Service, Inc.

United States District Court, N.D. Illinois, Eastern Division

November 29, 2017

JASON PIETRZYCKI, on behalf of himself and all other plaintiffs similarly situated, Plaintiff,
v.
HEIGHTS TOWER SERVICE, INC., and MARK MOTTER, Defendants.

          MEMORANDUM OPINION AND ORDER

          Jeffrey T. Gilbert United States Magistrate Judge.

         Plaintiff 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.”

         This 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.

         I. BACKGROUND

         1. Background Facts

         HTS 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.

         Typically, 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).[1]

         To 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.

         HTS 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.

         This 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.[2] Plaintiff's SoF, [ECF No. 134], ¶ 6.

         In 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]”).

         Under 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.

         The 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.

         The 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.

         2. Procedural History

         On 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.

         On 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].

         II. LEGAL STANDARD

         1. Summary Judgment

         Summary 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. 2013).

         2. Decertification

         “Under 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. 27, 2014).

         Under 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).

         A party 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.

         III. DISCUSSION

         Plaintiffs 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.

         1.The Parties' Cross-Motions for Summary Judgment

         Both parties have moved for summary judgment. Before turning to the merits of the parties' motions, one preliminary issue must be addressed.

         Plaintiffs 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 Cir. 2005).

         Plaintiffs 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.

         Now the Court can address the merits of parties' arguments.

         A. Plaintiffs' Hours Worked Claim

         Plaintiffs 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.[3]

         To 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.[4] 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).

         Plaintiffs 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).

         Department 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 travel.

         Plaintiffs' 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.

         As 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 Section III(1)(C).

         The 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).[5] 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.

         Two 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.

         The 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.

         In 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.

         Plaintiffs 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 ...


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