Bonilla v. Baker Concrete Construction, Inc.
487 F.3d 1340
11th Cir.
2007
Check Treatment
Docket

*1 BLACK, Before BARKETT and KRAVITCH, Circuit Judges. KRAVITCH, Circuit Judge: This case concerns whether time work- ers spent traveling on employer-provided transportation to a secure construction site going through security screening is compensable under the Fair Labor Standards (“FLSA”), seq. et § 201 Appellants Percy Bonilla, et al. (“appellants”), plaintiffs in the underly- ing dispute, appeal the district court’s *2 end of each or beginning at the ap- either favor in order summary judgment given were instructions day. No Con- work Concrete Baker pellee-defendant, carried any tools nor were supervisors careful the After (“appellee”). struction, Inc. kept were the tools briefs, argument, buses oral the on the consideration at in signed record, Appellants we AFFIRM sites. the the work in at evidence and in- their received then and order. site work court’s the district the the the end of day. At the for structions BACKGROUND I. before sign out would appellants day, airport the workers leave bus to boarding construction the were Appellants for security gate. a subcontractor appellee, the through employed the Turner-Austin, for contractor lead the appellee claim appellants Although Interna- at project Terminal North on work did supervisors Turner-Austin or ap- (“MIA project”) Airport tional (head security gate at the vehicles the March until November proximately appellants supervision), general counts 2003.1 any responsibil- they had claim that not inside sites work to reach their In order re- arriving their at duties or ities to required were appellants airport, the to their show than other sites spective checkpoint security single through pass and car- security gate at the identification ride authorized then tarmac the to includ- safety equipment, personal their ry site. work particular to their vans or buses hat, and work a hard safety goggles, unau- prohibit regulations FAA Because contractors’ the to Appellants point boots. tarmac secured the vehicles thorized the Construc- airport, with the agreement buses free provided area, Turner-Austin (“CRR”), that Requirements Related tion other appellants transport vans per- display employees requires parking employee from the free workers a condition equipment safety sonal through and on gate security the lot job Appel- site. transported to being Appel- sites. separate each there claim appellants’ disputes lee park required were not lants re- were evidence any was required lot, they were but employee safety personal carry quired au- single through the facility enter the bus. on equipment then ride security entrance thorized for by appellee paid were authorized contractors’ or vans. riding the buses security gate was work sites. various appellee, allegations no were There public lots parking public other near Turner-Austin, any representative meet free to stop; bus with discussed ever appellee security gate vehicle authorized for paid would lot whether parking than at rather buses, authorized riding the for or waiting Riding Turner-Aus- away. miles several by appellants requests way any there nor were authorized tin’s time. construction for paid to access workers through the passing sites DISCUSSION II. gate. grant court’s the district review We la- any did Gibson de novo. summary vehicles, riding waiting bor em- any joint had appellee nor employed summary judg- granted court district ruling appeal- relationship. This ployer Ca- Jose Plaintiff appellee regarding ment to ed. was never that Cabrera ground brera RTC, Cir.1995). work, to their then appeal This presents statuto- afterwards is compensable. IBP, ry interpretation. 4(a) Alvarez, Inc. 21, 37, Por- 126 S.Ct. 514, 525, Act, tal-to-Portal 254(a), U.S.C. L.Ed.2d 288 (“[A]ny ex- *3 empts activity is ‘integral certain indispensable’ activities from compensation to a ‘principal activity’ FLSA, under the is itself a ‘principal §§ 29 U.S.C. 201 et seq. activity’ 254(a)] under [29 § U.S.C. us is appel- whether Moreover, Portal-to-Portal Act. during lants’ time spent riding the or buses going continuous workday, any walking time that through airport security constitutes such occurs after the beginning employ- an exception. The Act exempts the follow- ee’s first principal activity is excluded from ing from compensation: activities the scope of the provision, a result (1) walking, riding, or traveling to and FLSA.”). covered from the place actual performance the principal activity or activities which a) Travel Claim employee such is employed to perform, The district court found that it is “undisputed that the place actual per (2) activities which are preliminary to or formance of the principal activity or activi postliminary to said principal activity or ties which [appellee] employed [appellants] activities, the Project jobsite at MIA’s Terminal,” North and that which it occur “is either prior to the time on also undisputed that [appellants] any particular did workday at which such perform any work either waiting when employee commences, or subsequent to the buses or were riding the any particular workday at buses.” We nothing find in the record to which ceases, he such principal activity contradict this conclusion. As stated or activities .... above, parties disagree as to whether 254(a).2 § appellants were required to carry their Under plain meaning of personal safety section gear on the buses. But we 254(a), this pivots case on whether do not appel- find dispute to be material to lants are engaging any the issue at hand work-related because our analysis of activity before arriving their work Portal-to-Portal Act sites would be the inside the airport same regardless. tarmac. If See Danskine v. Dade merely Fire Dep’t, “actual 1292-93 (11th Cir.2001) place (“A performance factual dispute is genu activ- ine only if the ities]” before beginning evidence is such that a activity, 254(a)(1) then reasonable section factfinder could return a exempts such ver travel- dict ing for the non-moving (internal party.”) compensation under the FLSA. quotations But, omitted). and citation if appellants, by boarding buses, going through security, or carrying their Department of Labor has issued personal safety equipment, are engaging in interpretive statements giving examples of work-related that is “integral and non-compensable travel 254(a). § 254(a) § terms of are limited have prohibits identification and unautho- 254(b), § which allows provid- rized vehicles within airport. The CRR ed contract or custom. only But the evi- does not amount to a contract or custom that dence that point regarding cus- 254(a). would limit § the effect of CRR, is the tom requires workers to 254(b) § not assert applies either. consid- normally be would workday and promulgated statements These ac- “postliminary” or “preliminary” au- ered did not Congress regulations an (1) riding by or walking to issue of Labor tivities Secretary thorize gate plant ex- scope of the between employee regarding regulations oth- 790.1(c); lathe, Gon- see workbench employee’s 29 C.F.R. emptions. his place U.S. actual Oregon, er zales (“Def- (2006) (2) activities; riding L.Ed.2d Chevron, howev- outly- with in accordance town between on buses erence appears when er, factory where the is warranted mine or agen- authority to the delegated riding on buses Congress employed; *4 the carrying rules make to cy generally particu- to a camp logging trains from interpre- agency law, that the and of force operations logging the which lar site at promulgated was claiming deference tation being conducted. actually are (citation authority.”) that of in the exercise 790.7(f). § 29 C.F.R. omitted). quotation and 254(a)(1) of section language plain The examples however, Here, the illustrative traveling riding, “walking, excludes due given and should persuasive of place actual from the and Co.,& Skidmore See deference. Swift activities.” activity or 161, 164, 89 140, 65 spent time regarding the claim appellants’ interpreta- (1944) (“[R]ulings, 124 L.Ed. and before both employer on the the Administrator opinions tions and squarely point fits security check the after controlling upon Act, this under the and statutory exception, this within authority, of their by reason the courts the statute interpretation administrative in- and experience body of constitute addresses specifically also liti- and courts to which judgment formed site. work and from the transportation guidance. for resort may properly gants required were the workers fact that partic- in a such weight se- after the transportation authorized ride thorough- upon the depend will case ular transportation but the curity gate consideration, validi- in its evident ness relevant is not optional security gate was consistency with reasoning, ty of its even case because this outcome and pronouncements, and later earlier from exempted time is mandatory travel per- give power which factors under compensation control.”). lacking power suade, if ap- hold We therefore Act. interpretation the DOL’s spent pellants directly to issue 254(a) speaks § check and both hand: under exempt from point or travel- riding, walking, Examples FLSA.3 outside may performed ing which work, noting Portal-to-Por also and issue addressed have 3. Circuits employ protect "properly exemptions Co., Servicing tal Well See Smith Aztec concur. commuting for responsibility from Cir.2006) (holding ers (10th F.3d 1274 462 trivial, aspects non-onerous relatively exempt from Mexico in New gas-drillers maintenance preparation, preliminary ranged compensation for FLSA Vega Gasper, up"); clean hours three-and-a-half thirty minutes work hours 1994) the four (holding that Cir. City Transit v. New York way); Reich each employer’s bus traveling on their 1995) ers (2d (holding Auth., Cir. day was not each compen- commutes dog handlers’ Corp., Constr. Act); v. Tidewater Ralph dogs bring into just because sable b) FAA, Security Screening required by appellee Claim had no discretion as whether its spent riding Unlike the time would be screened. See 49 C.F.R. vehicles, employer 1540.17; § see also Civil Aviation Securi- spent going through airport security is not Rules, (Feb. ty Fed.Reg. 254(a)(1), exempted under so must 2002). although screening So security screening if this determine is ex necessary for the empted provision.4 under another work, appellee primarily— did not 254(a)(2) exempts “activities pre which are particularly—benefit or even from the se- liminary postliminary princi to or to said curity regime. pal activity Supreme or activities.” The interpreted apply Court has this section to Appellants place great weight on the princi necessity when before or after the of going through screening pal “integral not an jobs. order to do their But indispensable part activi test is not a test but-for ties for which necessity. covered workmen are em of causal fact that cer- “[T]he ployed specifically and are not excluded tain preshift necessary activities are *5 [254(a)(1)].” Mitchell, Steiner engage in their principal ac- 247, 256, 330, 335, 350 U.S. 76 S.Ct. 100 tivities does not mean that preshift (1956). L.Ed. 267 ‘integral activities are indispensable’ ‘principal activity’ to a under Steiner.” analyzed The Fifth former Circuit sev- IBP, at U.S. S.Ct. at 518. eral prelim- factors determine whether If necessity mere causal was sufficient to inary postliminary activities are so constitute a compensable activity, all com- “integral and indispensable” as to be muting would compensable be it is compensable. Elec., Inc., Dunlop City a practical necessity workers to 394, Cir.1976).5 527 F.2d 398-400 from jobs. travel their homes to their If (1) The factors are: considered is Portal-to-Portal Act to have activity whether the is required by the meaning all, at cannot terms be swal- (2) employer, activity whether the is nec- by an lowed all-inclusive definition of “inte- essary for the employee his gral indispensable.”6 duties, her whether activi- IBP, ty primarily the employer. benefits In Supreme Id. addressed Court 401. at In this screening spent was whether the time waiting to don (4th Cir.1966) (holding 361 F.2d 806 legislative history that 6. The of the Portal-to-Por- spent traveling time employ- workers on an tal scope exemp- Act underscores the er's boat to a construction site was not com- 1946, compensation. tions the Su- Act). pensable under preme Court decided Anderson v. Mt. Clemens Co., Pottery holding enti- specifically 4. district court ruled that tled they spent time for the spent security screening time in was not com- walking from the time clock to the worksta- FLSA, pensable under and the 680, 690-91, 1187, tion. 328 U.S. 66 S.Ct. appealed regarding the court's order the con- 1194, (1946). year L.Ed. 1515 time, logically tested includes decided, Congress passed Anderson was spent security the entire time screening. in specifically exempting Portal-to-Portal Act employer's 5. The time—even within the adopted prece- Eleventh Circuit has premises—from compensation require- dent the decisions FLSA of the former Fifth Circuit 1, prior yet engaged rendered ments when the October 1981. See Bon- workers had not Prichard, Ala., IBP, City productive activity. ner in See at 546 U.S. (11th Cir.1981) (erabanc). at 519. employer, and that the screen employer’s clothing protective productive in la engaging FAA in is premises mandated this case the Portal-to- compensable under bor was compensable not hold work. We therefore IBP, 126 S.Ct. Portal Act. spent going held, part, in that the at 518. The Court mandatory through security screening protec spent waiting don workers is FLSA not under the be necessary productive labor gear tive “integral not screening cause that indispensable” “integral not itself indispensable” IBP, activity.” “principal to a U.S. IBP, Steiner, Dunlop. 42, 126 S.Ct. at 528. interpreted has circuit This III. CONCLUSION in published opinion Act above, stated AF- For reasons IBP.7 Supreme Court decided since grant FIRM the district court’s of sum- statutory language exemptions mary in this case. analytical dis not allow for clean does those activities that tinction between BLACK, Judge, concurring: Circuit and those I agree in result. I concur clear to us from are not. But Appellants are entitled compensa- history language and Act’s tion trav- nonmandatory must work in the benefit for the Furthermore, rely inter- unpublished decision Burton concerned the interpreting pretation the Portal-to-Portal this court of an amendment *6 Hillsborough County, v. 181 Fed. Act. Burton this relevant to case. Burton examined (11th Cir.2006) (unpublished). Un Appx. 829 Employee Commuting Flexibility Act of controlling published opinions are not author amended the ity persuasive insofar as adding following language: legal analysis See United States warrants. subsection, purposes For of this use of Rodriquez-Lopez, 1138 n. employer’s em- vehicle for travel an Cir.2004). persuasive be Burton is ployee performed an em- activities materially different from cause facts are ployee which are incidental to use case. commuting shall not be such vehicle for Burton, county employees' duties re- In part employee’s considered quired county to drive the them activities if use of such vehicle for public locations and and from various works commuting the normal area is within always county a se- vehicle to return employer’s business establishment county facility overnight. This court cured employer’s use vehicle and the employees spent driv- found that subject agreement part to an county to the ing from the secured location representa- employer and the compensable under various work sites was employee. tive of such up delivering picking FLSA because 254(a). county county lots was Although applied the same the Burton court employees' integral indispensable to the analysis that is Burton, Fed.Appx. at activities. here, addition, at issue Burton’s conclusion vehi- In Burton found that the 837. spent by employees driving em- cles served as offices for those satellite jobs sup- ployees county does to do their the various sites vehicles is necessary for the work were locked port and tools in this case. Not the same conclusion Burton, county driv- easily in the vehicles. Id. only are the relevant facts in Burton merely part the vehicles distinguishable, an un- emphasize that as principal place employees’ commute published analysis does not Burton's job aspect of that but rather an us. bind performance. eling from the parking lot to the security

checkpoint. They also not entitled to

compensation for the mandatory time

spent from the checkpoint to their job

official sites.

UNITED America, STATES of

Plaintiff-Appellee,

Terry PRESLEY, Lee Defendant-

Appellant.

United America, States of

Plaintiff-Appellee,

Terry Presley, Lee Defendant-

Appellant.

Nos. 05-16779.

United States Court of Appeals,

Eleventh Circuit.

May

Michael Robert Ufferman (Court-Ap- pointed), Michael Ufferman Firm, Law P.A., Tallahassee, FL, for Presley. E. Bryan Wilson, Terry Flynn, Tallahas- see, FL, for U.S.