Rex BAKER; Joseph N. Bordelon; Charlie E. Bradshaw, Jr.; Larry Cunningham; Denny Hensley; Steven D. Hensley; Leonard L. Mahan; Mack D. Mantle; Ray E. Fowler, Plaintiffs, and Alan Boyd; William R. Clarence; Gary Coon; Robert Cornett, Jr.; Tracy R. Mcmanus; Eddie Miller; Gerald Miller; David L. Robinson; James D. Spears, Jr.; Dennis Stiles; Gary Miller, Sr., Plaintiffs-Appellants, v. BARNARD CONSTRUCTION CO., INC.; Davy McKee Corporation; Flint Engineering & Construction Company; Mountain West Fabrication Plants & Stations, Inc.; Pioneer Contracting Company, Inc., Defendants, and Four-Way Company, Inc.; Foutz & Bursum Construction Company, Inc., Defendants-Appellees.
No. 96-2223.
United States Court of Appeals, Tenth Circuit.
June 18, 1998.
145 F.3d 1214
Defendant has not demonstrated the district court misunderstood the guidelines or its authority to act under the guidelines and, therefore, we lack jurisdiction to review the district court‘s discretionary decision not to depart downward. See Banta, 127 F.3d at 983 n. 1.
IV.
We REMAND to the district court for resentencing by a different judge based on the government‘s violation of the plea agreement, and DISMISS for lack of jurisdiction defendant‘s claim that the district court abused its discretion in denying downward departure based on pre-indictment delay.
David N. Mark, Seattle, Washington (K. Lee Peifer, Albuquerque, New Mexico, with him on the briefs), for Plaintiffs-Appellants.
Thomas J. Hynes of Hynes, Hale & Gurley, Farmington, New Mexico, for Defendants-Appellees.
Before BRISCOE, MCKAY, and LUCERO, Circuit Judges.
MCKAY, Circuit Judge.
As part of the terms of Plaintiffs’ employment, Defendants required Plaintiffs to provide their own fueled and stocked welding rigs each work day. Plaintiffs were compensated by a “split-check system” which divided their hourly rate into labor compensation and rental compensation for the welding rigs. Defendants then equated Plaintiffs’ labor compensation rate with the “regular rate” used to determine overtime rates under the FLSA.
At trial, the jury returned a verdict in favor of Defendants on each of Plaintiffs’ claims. After the trial court denied Plaintiffs’ motion for a new trial pursuant to
Plaintiffs assert on appeal that the district court erroneously instructed the jury that Plaintiffs could waive their overtime rights by agreeing with Defendants that the rig rental fee would compensate them for travel time associated with refueling and restocking the welding rigs. See Appellants’ App. at 59, Instr. No. 9. Because Plaintiffs objected to Instruction Nine at trial, we rеview the instruction de novo. See United States v. Pappert, 112 F.3d 1073, 1076 (10th Cir.1997). Instruction Nine reads, in pertinent part:
[T]o award damages to Plaintiffs as a result of travel time Plaintiffs [sic] claim
was necessary to refuel and restock their welding rigs, you must find both that: (1) travel back from the job site was integral and indispensable to the principle [sic] activity or activities for which Plaintiffs were hired, and
(2) the parties made no mutual agreement that the rig rental fee would compensate Plainiffs [sic] for travel time associated with refueling and restocking their welding rigs.
Appellants’ App. at 59. We agrеe with Plaintiffs that if their travel time was integral and indispensable to the principal activities for which they were hired, no mutual agreement could waive the application of the FLSA minimum wage and overtime provisions to that work.
Under Instruction Nine, Plaintiffs must first prove that their return travel from a job site is compensable under the Portal-to-Portal Act, codified at
The second part of Instruction Nine requires Plaintiffs to prove that “the parties made no mutual agreement that the rig rental fee would compensate Plainiffs [sic] for travel time associated with refueling and restocking their welding rigs.” Appellants’ App. at 59. We hold that this instruction incorrectly stated the law because travel time meeting the “integral and indispensable” test must be сompensated pursuant to the FLSA regardless of any employer-employee agreement. If Plaintiffs’ travel time associated with refueling and restocking the rigs is integral and indispensable, the disputed agreement in this case would violate the FLSA.
If the jury found that Plaintiffs’ return travel time is integral and indispensable to the principal activities for which Plaintiffs were hired, Plaintiffs’ travel time would be compensable unless another section of the FLSA provided an exception to the Portal-to-Portal payment requirements or approved of an alternative pay arrangement.1 See DA & S Oil Well Servicing, Inc. v. Mitchell, 262 F.2d 552, 554-55 (10th Cir.1958). In other words, regardless of whether employer-employee agreements classified the return travel associated with maintaining the rigs as noncompensable or compensated through rig rental, if payment for that return travel is required by the FLSA, Defendants must apply the minimum wage and overtime provisions of the FLSA to that return travel. See Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 740, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (The Supreme Court has “frequently emphasized the nonwaivable nature of an individual employee‘s right to a minimum wage and to overtime pay under the Act. Thus, [the Court has] held that FLSA rights cannot be abridged by contract or otherwise waived because this would ‘nullify the purposes’ of the statute and thwart the legislative policies it was designed to effectuate.“) (citations omitted); Dunlop v. Gray-Goto, Inc., 528 F.2d 792, 794-95 (10th Cir.1976) (stating that “private agreement or understanding between the parties cannot circumvent the overtime pay requirements of the Act“).
Section 207(e)(2) lists one of “seven categories of employer payments [that] аre not to be taken into consideration in determining what an employee‘s ‘regular rate’ of pay is.” Dunlop, 528 F.2d at 794; see
Because
We do read section 778.224(b)(1) narrowly because we have consistently followed the Supreme Court‘s instruction that such FLSA exemptions are to be construed narrowly. See Sanders v. Elephant Butte Irrigation Dist., 112 F.3d 468, 470 (10th Cir.1997);
Under Defendants’ interpretation of
Additionally, we cannot harmonize Defendants’ interpretation of section 207(e)(2) with prior Supreme Court opinions addressing integral and indispensable work, such as Mitchell v. King Packing Co., 350 U.S. 260, 262, 76 S.Ct. 337, 100 L.Ed. 282 (1956). In King Packing, the Court held that the policy behind the FLSA would be circumvented if employers could require their employеes to provide equipment requiring daily maintenance without treating that maintenance as labor. The Court would not allow an employer to avoid paying for its employees’ daily labor by requiring the employees to provide sharpened knives. The employer was required to compensate the employees for the time spent sharpening the knives. The payments Defendants argue are covered by the rental agreement are dissimilar in character to those listed in section 207(e)(2).2 We cannot adopt Defendants’ interpretation since it would exaggerate the effect of section 207(e)(2) exemptions and would substantially undermine the purposes of the FLSA by creating loopholes susceptible to significant abuse. Considering the number of industries that require employees to provide their own equipment, see Dole v. Snell, 875 F.2d 802, 810 (10th Cir.1989), Defendants’ interpretation of section 207(e)(2) could allow employers to circumvent the FLSA by allocating many services to rental agreements. It was error for the district court to instruct the jury that Plaintiffs could waive their overtime rights by agreeing with Defendants that the rig rental fee would compensate them for integral and indispensable activities.
Defendants ask us to hold that Plaintiffs’ travel time was not an integral and indispensable part of Plaintiffs’ principal activities and therefore Instruction Nine was not erroneous. They argue that the travel was ordinary home-to-work travel which clearly is not compensable under the Portal-to-Portal Act without a contract or custom of compensation. See
As we have noted, it is “difficult to fix a definite standard for determining what activi-
Defendants also argue that despite the flaw in Instruction Nine, the jury instructions taken as a whole did not mislead the jury. Although Defendants articulate the appropriate standard of review for jury instruсtion challenges, see Mason v. Oklahoma Turnpike Auth., 115 F.3d 1442, 1454 (10th Cir.1997), we cannot hold that the jury in this case was not misled. Nothing in the generalized instructions that Defendants cite would persuade the jury that they could disregard Instruction Nine‘s statement that integral and indispensable travel time could be compensated through a rental agreement instead of according to the FLSA minimum wage and overtime provisions. The jury‘s verdict did not specifically find that Plaintiffs failed to prove that the return travel time was compensable under the “integral and indispensable” standard of the Portal-to-Portal Act. We therefore cannot hold as a matter of law that Plaintiffs’ suit failed for this reason alone. Even if Plaintiffs convinced the jury that the return travel was integral and indispensable to their principal activities, the jury, following the given instructions, would have ruled against Plaintiffs if it believed or was simply unsure whether an agreement was made substituting rig rental fee for minimum wage and overtime. The jury was expressly required to find the absence of such an agreement in order to rule in Plaintiffs’ favor. Because we hаve “substantial doubt that the jury was fairly guided,” United States v. Mullins, 4 F.3d 898, 900 (10th Cir.1993), we hold that the error in Instruction Nine warrants reversal and remand.
Without filing a cross-appeal,3 Defendants assert that the district court erred in denying their motion for judgment as a matter of law.4 They contend that any error in the jury instructions was harmless because the travel time issue should never have reached the jury. Although the record provided to review Defendants’ argument is sparse, from such record as was submitted on appeal there was enough evidence to defeat Defendants’ contentions regarding their motion for
We review de novo the district court‘s determination of the motion for judgment as a matter of law. See Mason, 115 F.3d at 1450. In conducting this review, “[t]he evidence and inferences therefrom must be construed most favorably to the nonmoving party.” Wolfgang, 111 F.3d at 1522; see Mason, 115 F.3d at 1450. Since the evidence presented at trial created a genuine factual dispute of whether Plaintiffs’ travel time met the integral and indispensable standard, we cannot hold as a mattеr of law that the return travel was not integral and indispensable. As we previously explained, Plaintiffs’ return travel associated with restocking and refueling the rigs must be compensated according to the FLSA minimum wage and overtime provisions if that travel time is integral and indispensable to the principal activities for which they were hired. Under the deferential standard required when reviewing requests for judgment as a matter of law, Defendants’ motion for judgment as a matter of law on the alleged violations of the FLSA was appropriately denied.
Defendants also argue that their motion for judgment as a matter of law should have been granted because Plaintiffs failed to introduce sufficient evidence for the jury to accurately calculate damages. This court described the burdens of proof for FLSA damages in Donovan v. Simmons Petroleum Corp., stating:
The employee bears the burden of proving he performed work for which he was not properly compensated. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 1192, 90 L.Ed. 1515 (1946). However, employers have a duty to keep accurate records. If employers do not keep accurate records the employee‘s burden is extremely difficult. In order to prevent the employee from being penalized by the employer‘s failure to keep adequate records, the Supreme Court held in Anderson that an employee carries his burden by proving that he has “in fact performed work for which he was improperly compensated and ... [producing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id. Upon such a showing, the burden shifts to the employer to produce evidence of the precise amount of work performed or to negate the reasonableness of the inference drawn from the employee‘s evidence. If the employer does not rebut the employee‘s evidence, then damages may be awarded even though the result is only approximate. The employer cannot complain that the damages lack the precision that would have been possible if the employеr had kept the records required by law. Id. at 687-88, 66 S.Ct. at 1192.
Donovan, 725 F.2d 83, 85-86 (10th Cir.1983); see Metzler v. IBP, Inc., 127 F.3d 959, 965-66 (10th Cir.1997).
In this case, Plaintiffs produced “sufficient evidence to show the amount and extent of [improperly compensated] work as a matter of just and reasonable inference.” Anderson, 328 U.S. at 687, 66 S.Ct. 1187. Defendants attempt to diminish the sufficiency of Plaintiffs’ evidence by criticizing the admissibility of some of it. See Appellees’ Br. at 12-13. However, even if we were to disregard the criticized evidence, the other evidence Plaintiffs produced was sufficient to meet Plaintiffs’ burden of proof. The fact that Plaintiffs did not connect their travel time to any specific job site or specific work day does not mean they failed to introduce sufficient evidence under FLSA case law. The record reflects that Plaintiffs’ employment requires them to travel to pipelines that are various distances from Defendants’ fixed facilities. Defendants concede that Plaintiffs’ travel time ranges from three-fourths of an hour to two hours a day, see Appellees’ Br. at 11, and testimony at trial supports Defendants’ concession. Our review of the reсord reveals that Plaintiffs produced sufficient evidence under the circumstances to shift the burden to Defendants “to produce evidence of the precise amount of work performed or to negate the reasonableness of the inference drawn” from Plaintiffs’ evidence. Donovan, 725 F.2d at 85. We therefore conclude that Defendants cannot prevail on a judgment as a matter of law due to insufficient damages evidence.
REVERSED and REMANDED.
BRISCOE, Circuit Judge, concurring:
I concur in the reversal and remand of this case because of the erroneous giving of Instruction 9. Defendants’ failure to provide an adequate record precludes me from addressing their contentions that the district court erred in denying their motion for judgment as a matter of law.
HENRY L. SOLANO
UNITED STATES ATTORNEY
KATHLEEN M. TAFOYA
ASSISTANT UNITED STATES ATTORNEY