290 F. Supp. 3d 822
E.D. Ill.2017Background
- HTS (Heights Tower Service, Inc.) employs foremen and tower technicians who travel to cell-tower job sites; foremen complete daily activity reports (DARs) recording "work hours" and "travel hours."
- HTS provided an optional company truck; employees usually rode as passengers and HTS paid a $10/hour "Drive Time Rate" (implemented ~2012) for travel hours recorded as such; personal-vehicle travel was generally unpaid per HTS policy.
- HTS excluded DAR-recorded travel hours (and the $10 payments) when computing weekly hours worked and when calculating the overtime regular rate (overtime paid as 1.5 × base wage excluding Drive Time payments).
- Plaintiff Pietrzycki sued on behalf of a Rule 23 Illinois class (IMWL) and a §216(b) FLSA collective, alleging HTS undercounted overtime hours and improperly excluded Drive Time payments from the regular-rate calculation. Motter (owner/president) sought to be held individually liable.
- The court found disputed factual issues about whether Drive Time was ordinary commuting, whether there was a uniform "custom/practice/ nonwritten contract" to pay Drive Time, and about activities at warehouses and during travel, and therefore denied both parties' summary judgment motions and denied decertification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Drive Time (DAR-recorded travel hours) counts as "hours worked" for overtime | Drive Time is compensable because HTS had a uniform practice/ nonwritten contract paying for passenger travel; PPA §254(b) makes such compensated travel "hours worked" unless it is ordinary commuting | Drive Time is ordinary home-to-work commuting (noncompensable under FLSA/ PPA §254(a)); foremen inconsistently recorded travel so no uniform compensable practice exists | Court: Fact issues preclude summary judgment; neither side entitled to judgment. Court found a nonwritten contract and a custom/practice for travel in HTS trucks but insufficient record to treat all Drive Time as non-commuting hours worked. |
| Whether payments at $10 Drive Time Rate must be included in the regular-rate for overtime calculations | Drive Time payments are "remuneration" and must be included in the regular-rate computation | Drive Time payments fall within §207(e)(2) exclusions (travel reimbursements/ similar payments) so may be excluded | Court: Defendants failed to carry burden to show exclusion applies; but because whether Drive Time counts as hours worked is unresolved, regular-rate consequences cannot be adjudicated on summary judgment. |
| Applicability of the Portal-to-Portal Act (PPA) defense | PPA does not shield HTS because custom/practice/contract to pay Drive Time triggers §254(b) liability; PPA can't be used to convert compensable practice into noncompensable commuting | PPA §254(a) exempts travel to/from jobsite; no enforceable custom/practice exists to invoke §254(b), so PPA shields HTS | Court: HTS had a nonwritten contract and a custom/practice to pay for passenger travel in HTS trucks, so PPA does not bar liability on that basis; whether travel is ordinary commuting remains a factual question. |
| Individual liability of Motter (owner) | Motter is an employer with operational control and set pay policy—should be jointly/severally liable | (No meaningful dispute; Defendants conceded Motter is an employer) | Court: Motter jointly and severally liable if HTS is liable (facts regarding Motter’s control undisputed). |
Key Cases Cited
- IBP, Inc. v. Alvarez, 546 U.S. 21 (Sup. Ct. 2005) (defining "work" and explaining continuous-workday/compensable activities principles)
- Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (Sup. Ct. 1946) (defining statutory workweek and compensable employer-directed time)
- Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (Sup. Ct. 1944) (work as exertion controlled/required by employer)
- Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (Sup. Ct. 2014) (Portal-to-Portal Act narrowed earlier precedents on certain preliminary/postliminary activities)
- Kellar v. Summit Seating Inc., 664 F.3d 169 (7th Cir. 2011) (de minimis doctrine and employer knowledge standard in FLSA context)
- Johnson v. RGIS Inventory Specialists, 554 F. Supp. 2d 693 (E.D. Tex. 2007) (employer-provided transport did not render ordinary home-to-work travel compensable despite employer payment)
- Vega v. Gasper, 36 F.3d 417 (5th Cir. 1994) (discussing PPA and ordinary commuting, but court did not address custom/practice issue the same way)
- Kuebel v. Black & Decker Inc., 643 F.3d 352 (2d Cir. 2011) (PPA §254(d) does not convert non-compensable commuting into compensable time)