ORDER
Plaintiffs Johnny Brantley and Robert M. Pou brought this action against their former employer, Ferrell Electric Inc., and its owner and president, James N. Ferrell, to recover unpaid overtime wages pursuant to the Fair Labor Standards Act (“FLSA” or “the Act”), 29 U.S.C. § 201 et seq. Defendants now move for summary judgment and to strike evidence submitted by Plaintiffs in support of their brief in opposition. For the reasons that follow, the Court DENIES Defendants’ motions to strike (Doc. 100, 101, 102, 103) with one exception (Doc. 99) and DENIES Defendants’ motion for summary judgment on all grounds (Doc. 85).
I.MOTIONS TO STRIKE
Defendants move to strike the declarations of Plaintiff Brantley, Plaintiff Pou, Jasen Adams, Lance Barnes, and Martin Menefee, as well as any accompanying exhibits. (Docs. 99, 100, 101, 102, 103.) The parties have expended a great deal of time and energy filing and responding to these motions,
Nevertheless, given that Plaintiffs submitted the challenged declarations in opposition to Defendants’ motion for summary judgment, the declarations must comply with the requirements of Federal Rule of Civil Procedure Rule 56(c)(4). Rule 56(c)(4) makes it plain that such declarations “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall affirmatively show that the affiant is competent to testify to the matters stated therein.” Defendants present a litany of objections, largely unsupported by any authority from this circuit, which include the following:
1. Paragraph-by-paragraph objections based on the Federal Rules of Evidence;
2. The declarations are not based on personal knowledge;
3. The declarations contain only con-clusory allegations;
4. The declarations were not disclosed during discovery;
5. The sham affidavit rule applies; and
6. The declarations do not satisfy the verifications requirements of 28 U.S.C. § 1746.
The Court takes notice of the complaints set forth in 1 through 3. A specific ruling on each objection is unnecessary, as the emphasis placed on each of the challenged statements is implicit in the Court’s ruling on summary judgment. The Court is capable of reviewing the relevant evidence, as required by the summary judgment standard and other binding precedent,
As the remaining, complaints affect the admissibility of the supporting declarations in their entirety, the Court addresses each in turn. Plaintiffs do- not contest Defendants’ objections to the declaration of Mr. Menefee but have failed to withdraw, it, (Doc. 108-2 at 1.) Thus, the Court GRANTS Defendants’ Motion to Strike Mr. Menefee’s declaration. (Doc. 99.)
A. The Sham Affidavit Rule
Defendants argue that the Court should strike Plaintiff Brantley’s and Plaintiff Pou’s post-deposition, post-motion
For all of the statements that the Defendants say violate the sham affidavit rule— which they have “argued” by slapping a label in a chart of objections — Defendants fail to point to any unequivocal question or answer in Plaintiffs’ depositions that directly contradict any statement in Plaintiffs’ declarations. The Court will not scour hundreds of pages of deposition testimony to search for evidence that might bolster Defendants’ argument.
Defendants appear to take the most offense to sections of Plaintiffs’ declarations that set forth in great.detail “Calculation[s] of Unrecorded Compensable Time.” (Doc. 89-1, ¶¶ 29-35; DOC 90-1, ¶¶ 26-32; Doc. 102 at 9; Doc. 103 at 9.) Defendants argue that
Plaintiffs’ affidavits make no mention why they now provide detailed, data driven estimates of the number of unpaid overtime wages they worked. During discovery, Plaintiffs swore that they could not come up with a reasonable estimate for the number of hours owed.... Plaintiffs could not identify any specific weeks they had worked more than 40 hours yet not been properly paid.
(DOC. 102 at 9; Doc. 103 at 9.)
The Court fails to see the relevance of Plaintiffs’ precise damages calculations at this stage. As discussed infra, Anderson v. Mt. Clemens Pottery Co.,
[t]he employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of ... the Act. And even where the lack of accurate records grows out of a bona fide mistake as-to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances.
Id. at 688,
Moreover, by Plaintiffs’ counsel’s own admission, Plaintiffs’ sworn declarations were made in part to attempt to rebut Defendants’ argument that the challenged travel time was de minimis. (Doc. 108-2 at 12-13; Defs.’ Br. at 16 (“The few minutes [Plaintiffs] may have spent ... driving from a job site at the end of a day is de minimis; in the event that' the Court finds that the time constitutes work' it is not compensable as de minimis.”); see J. Ferrell Dep., Doc. 83, at 27-75 (reviewing each of Plaintiffs’ timesheets and testifying that travel time rarely exceeded ten minutes for each address or worksite identified).) Such an attempt to rebut issues that Defendants raised is perfectly legitimate on Plaintiffs’ part. The Court, therefore, will not exclude the declarations on this basis.
B. Failure to Disclose During Discovery
Defendants raise a number of arguments related to purported discovery violations that should result in the Court ignoring all of the supporting declarations. To summarize, (1) Jasen Adams’ name was not included in Plaintiffs’ initial disclosures as an individual likely to have discoverable
As a threshold matter, Defendants seek to exclude at least two of the declarations solely because they did not have the opportunity to scrutinize them during discovery. (See Doc. 100 at 2 (“This Court should strike the Declaration of -Jasen Adams in its entirety as the Declaration was not disclosed to the Defendants until the time of filing .... [and] was not properly produced in discovery.”); Doc. 101 at 4 (“This Court should strike the Declaration of Lance Barnes in its entirety as the Declaration was not disclosed to the Defendants until the time of filing ... and was not previously produced in discovery.”).) “Recent cases have generally held that draft affidavits, and communications with counsel relating to affidavits, are covered by the work-product rule.” 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 n. 23 (3d ed.2010) (citing Randleman v. Fidelity Nat’l Title Insur. Co.,
1. Jasen Adams’ and Lance Barnes’ Declarations
A failure to identify a witness as required by Federal Rule of Civil Procedure 26(a) and (e) bars a party from offering that witness “to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1) (emphasis added). “The burden of establishing that á failure to disclose was substantially justified or harmless rests on the nondis-closing party.” Mitchell v. Ford Motor Co.,
District courts have broad discretion to determine whether a violation of Rule, 26(a)(2) is harmless. Thornton,
The Court finds the surprise to Defendants is marginal given their contemporaneous litigation history with Mr. Adams and Mr. Barnes. Despite Defendants’ apparent outrage, Mr, Adams’ and Mr. Barnes’ name arose no less than fifteen times in Plaintiffs’ depositions — taken by Defendants months before the close of discovery — often within the content of Defendants’ own questions. Moreover, the importance of the evidence is minimal. Plaintiffs cite Mr. Adams’ declaration only twice (Pls.’ Resp. at 15, 21) and reference Mr. Barnes’ declaration four times in three pages of twenty-four (id. at 14, 15, 21). Even cursory review reveals that these citations are largely repetitive of Plaintiffs’ own testimony about the unwritten policies in place at Ferrell Electric governing the work day and compensation. Plaintiffs’ partial non-compliance with Rule 26(a) and (e) caused no discernible harm to Defendants and therefore does not warrant exclusion of Mr. Adams’ and Mr. Barnes’ declarations under Rule 37(c)(1).
The Court is well aware of the many conflicts that arose during discovery and does not in any way condone Plaintiffs’ approach to Mr. Adams’ and Mr. Barnes’ declarations, which toes the line of candor and flouts the spirit of the Federal Rules. But there is no allegation or evidence whatsoever of willful-noncompliance or bad faith on the -part of Plaintiffs that would warrant exclusion either. See OFS Fitel, LLC v. Epstein, Becker & Green, P.C.,
' 2. Damages Calculations
Defendants broadly contend that Plaintiffs’ declarations “[are] based on information which Defendants have ' repeatedly requested both before. litigation and throughout discovery in this matter[.]” (Doc. 102 at 4; Doc. 103 at 4.) They somewhat clarify that. Plaintiffs “repeatedly] fail[ed] to concisely and .correctly provide the Defendants with their calculation of alleged damages prior to the close of discovery,” and “Plaintiffs failure to do so precludes, them from using, this evidence now to avoid summary judgment.” (Id.) Defendants complain that Plaintiffs’ depositions “contained either no estimates or only -conclusory estimates.” (Doc. 102 at 6; Doc. 103 at 6.) To the extent the Court can discern, therefore, Defendants object that Plaintiffs present a reduced estimate of damages, which they accomplished by calculating return travel time with infor-ipation on the timesheets in both parties’ possession and Google Maps. (See Doc. 102 at 6 n. 1; Doc. 103-at 6 n. 1.)
The Court states only that instead of attempting to resolve this purported Rule 26(e)(1) dispute during discovery and' cure any surprise or harm Defendants felt they had suffered, Defendants moved for summary judgment — effectively seeking the harshest sanction available. Defendants never moved the Court for an order requiring any more detailed response to any specific interrogatory; the motions to compel on the record (Docs. 59, 61) do not speak to damages’ in any sense. Defendants had every opportunity to raise this issue with the Magistrate Judge, who held two telephone.conferences to address the parties’ numerous discovery issues — one of which lasted nearly an hour. (See Docs. 56, 64-65.) The Court finds that none of the Abdulla factors weigh in favor of excluding the declarations to the extent they address Plaintiffs’damages.
C. Veriñcation Pursuant to 28 U.S.C. § 1746
When ruling on summary judgment, the Court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits submitted by the parties. See Fed.R.Civ.P. 56(c). An affidavit is “[a] voluntary declaration of facts written down and sworn to by the declarant, [usu]ally before an officer authorized to administer oaths.” Black’s Law Dictionary 68 (10th ed.2009). Pursuant to 28 U.S.C. § 1746, for purposes of summary judgment, an unsworn declaration may be given the same force and effect as an affidavit if it is signed and dated and includes language in substantially the following form: “I declare (or certify, verify, or state) under penalty of perjury ... that the foregoing is true and correct. Executed on (date). (Signature).”
Defendants’ final ground for striking the supporting declarations is that they do not comply with 28 U.S.C. § 1746. Specifically,, the supporting declarations start with the statement “Personally appeared the undersigned, (Name), who with knowledge of the penalty for perjury stqtes that the following facts are true of my own personal knowledge” and end with the appropriate signature. (See Docs. 89-1, 90-1, 91-1, 92-1 (emphasis added).) Defendants argue that counsel’s omission of the prepositional phrase “under penalty, of perjury” constitutes a complete failure to comply with 28 U.S.C. § 1746 and precludes the Court from giving the supporting declarations any probative effect.
All of this could have been avoided by Plaintiffs’ use, verbatim; of the language set out in 28 U.S.C. § 1746. Indeed, in response to Defendants’ motions to strike,
II. BACKGROUND
A. The Work Day
On January 20, 2014,
The work day at Ferrell Electric began at 7:00 AM and concluded at 3:30 PM. (Brantley Dep. at 37, 41; J. Ferrell Dep.
On the other hand, Dock King, the residential project manager, testified that the employees’ day began at 7:00 AM, as it took him “a few minutes to get [his] notes from the previous day, plus the emails and additional notes that. [he] may have received after hours,” compile them, and finish the schedule, for. the day’s work after arriving, (King Dep. at 8-9.) He further affirmed, as did Mr. Ferrell, that.there was not a line of employees waiting to start work at 6:45 AM or 6:50 AM. (Id. at 15; J. Ferrell Dep. at 102.)
Before the teams leave the shop premises, the supervisor “give[s] them orders for the day” on a task sheet. (Brantley Dep. at 60, 84; King Dep. at 5, 7.) The employees then “get whatever it is they need out of the warehouse” and load up the truck. (J. Ferrell Dep. at 8; see also Brantley Dep. at 39 (‘We’d go in there and get laid out for the day on what you were going to be doing and you would be loading the truck.”), 42-43, 84.) The employees provided and loaded their own-hand tools, but “some stuff’ — “[w]hat ever could be locked up” — was stored on the truck or van overnight and available for usé in the morning. (Brantley Dep. at 59, 84, 87). Mr. King and Mir. Ferrell both testified that it took the teams ten minutes or less to load up. (J. Ferrell Dep. at 12; King Dep. at 11.)
At the end of the day, each team “tried to load up and leave at 3:30 from the job site.” (Brantley Dep. at 86.) Upon returning to the shop, Plaintiff Brantley testified. that the team must fill out their timesheets, “[ujnload the stuff that’s on the truck that somebody could steal,” like “[ejlectrical wire or anything that could be damaged from the weather,” but the Ferrell Electric’s tools would stay on the truck. (Id. at 87; Brantley Decl. ¶ 19.) Mr. Pou added that “[r]oughly three out of five days [he] would have to unload stuff ... because it was leftover supplies” and “every day [he] worked for Ferrell [he] would ... help unload other employees’ trucks.” (Pou Decl. ¶ 18.) Supplies also could be properly secured in a van. (Id. ¶ 17.)
Mr. Brantley also had to “see and go talk to management and find out what is going on for tomorrow and let them know where we stand for the next day so they could plan.” (Brantley Dep. at 88, 94 (“I was told by Dominic that after our day ended and we got back to the shop that we needed to be in there talking to them and letting them know what’s going on because people were leaving and getting in their trucks and going home”); Brantley Decl. ¶ 20 (“In a meeting Mr. Migilionico told electricians that they had to report to him every day before leaving to go home for the day.”); see also Pou Decl. ¶ 19.)
In contrast, Mr. Ferrell explained that the employees only take from the warehouse what they will consume at the job site, “so there shouldn’t be anything to put
B. Use of Company Vehicles & Equipment
A number of Ferrell Electric policies were in place about use of the company trucks, tools, and equipment during Plaintiffs’ tenure. Before July 2012, the Ferrell Electric policy manual provided that “[i]n the event that Ferreil Electric, Inc. provides tools or equipment, the employee(s) is responsible for the return of those items in the same condition to the shop at the end of each day.” (Pre-2012 Policy Manual at 8.) It further stated that “[a]ny excess materials’ shall be put back on the warehouse shelves and not left in the trucks.” (Id. at 10 (emphasis added).) With respect to company vehicles, the July 2012 policy manual outlined that personal use could be pre-arranged but was otherwise “strictly prohibited,” and “Management must approve use of employee’s vehicles' for business purposes.” (Id.) According tó Mr. Ferrell, this manual was drafted in approximately 1995. (J. Ferrell Dep. at 91.)
Upon hire in July 2012, Andrew Wilson, Ferrell Electric’s office manager, overhauled the policy manual. (See J. Ferrell Dep. at 108.) In addition to the provisions just described (see July 2012 Policy Manual at 7-9), Mr. Wilson included the following: “All employees, if they would prefer not to drive their own car, may arrive at the shop at 7:00am and ride with your crew to the jobsite” (id. at 4). More specifically, “[h’Jelpers [were] not required to arrive at the shop or ride in the company truck to any of the jobsites. Helpers [could] take their own cars, at their convenience, as long as they arrive for work at the designated start time.” (Id.) At least one employee, however, was deemed “responsible for driving the Ferrell Electric [c]ompany truck,” and he was required to “meet at the Ferrell shop at 7:00am to gather tools, materials, and schedule for the day.” (Id.) Anyone -could drive the company vehicle, as long as they had a driver’s license and “were covered under the insurance.” (Brantley Dep. at 41; 2012 Policy Manual at 4; Pre-2012 Policy Manual at 10.)
Similarly, Plaintiff Brantley testified that employees were allowed to drive independently to the job site, so long as “you discussed it with whoever was in charge at that time” and there was “a stipulation of how are you going to get your material and tools there.” (Brantley Dep. at 38.) Bringing your own car did not require permission, “but if you wanted to drive, ... you had to tell somebody.” (Id. at 85.) Plaintiff Pou added that he was not allowed to drive his own truck to a job once after the company van broke down. (Pou Dep. at 17.) Employees were free to be picked up from the job site or depart early in their .own vehicles “if [they] had a reason to leave” (Brantley Dep. at 40-41; see also J. Ferrell Dep. at 89-90; King Dep. at 19), which Plaintiffs did more than once (Brantley Dep. at 85; Pou Dep. at 32). Both Plaintiffs also drove Ferrell Electric trucks home from the job site on more
Plaintiff Brantley estimates that he drove or . rode in the company truck back from the last job site all but ten times .during his tenure. (Brantley Decl. ¶ 14.) Plaintiff Pou estimates that he drove or rode in the company truck back from the last job site all but one week during which he received permission from Mr. Ferrell to take the van straight: home on., account of car trouble. (Pou Decl. ¶ 13.).
C. Timesheets & Compensation Policies
Ferrell Electric did -not use a time clock, but rather relied exclusively on its employees to fill out their own paper timesheets at the end of each day. (Brantley Dep. at 71; J. Ferrell Dep. at 10, 104; Pou Dep. at 34; Wilson Dep. at. 12-13, 19, 21; July 2012 Policy Manual at 4; Pre-2012 Policy Manual at 6.). According to the pre-2012 policy manual, employees were to be “paid for travel to the job each day but travel is NOT paid back to the shop in the evening.” (Pre-2012 Policy Manual at 6.) Thus, if an employee left the job site at 3:00 PM, that is when the job stopped, not when the employee' reached the shop if they chose to return with the company truck. (Id.) In the same way, for out-of-town work, travel was paid “only on the trip to the job[;] travel home in the eve ning/next day is not paid.” (Id.)
The July 2012 policy manual departed dramatically from this posture. First,- it set forth that the driver of the company truck “will be paid their usual wages for the drive from the shop to the job site, and their usual wages for the time to drive back at the end of the day. ” (July 2012 Policy Manual at 4 (emphasis added).) Helpers and other hourly employees are “not paid for the time to drive their own cars to the job or home,” and all employees who choose to ride with the crew to the jobsite “will be paid whenever the work begins- on the jobsite and whenever it ends on the jobsite.” (Id. (emphasis added).) Second, the July 2012 policy manual provided that employees “will also be paid for any time spent loading the truck, if you aré requested to do so. If this involves only a few minutes or seconds, the DOL regulations leave it up to you as to whéther you want to record this time.” (Id.)
The practical effect of the updated manual’s provisions largely, is in dispute. Plaintiff Brantley signed an acknowledgment that he received the updated policy manual in August 2012 (see Wilson Dep. at 15-46 & Ex. 2), but declares that he only received one manual during his employment and it was the pre-2012 version (Brantley Decl. ¶¶ 24-26). There is .no evidence in the reeord about what version, if any, .Plaintiff Pou received. In any case, Plaintiffs aver that they “never, were informed by anyone” that they were supposed to be . paid for or include, on their timesheets minutes spent loading the trucks or communicating with supervisors at the beginning of the workday. (Brantley Decl. ¶¶ 9-10; Pou Decl. ¶¶ 5-6; see also Pou Dep. at 33 (explaining that, he “never thought anything about [the¡pay] until the lawsuit came up” because he did not know “anything could be done about it").)
Plaintiff Brantley “never” asked about being paid for the time between 6:45 AM and 7:00 AM, as someone instructed him to initiate his-time records at 7:00 AM, only at the point of heading to the first job site. (Brantley Dep. at 42, _ 46-47; Brantley Decl. ¶ 11.) Similarly, his colleague Jessie Swygert and supervisor Mr.. Migilionico
On the other hand, Mr. Wilson, the office manager, affirmed that “Ferrell is paying guys from the time they leave 413 Vaughn till the time they get back at night” and the employees “should be” building in the return travel time on their timesheet entries. (Wilson Dep. at 24.) He further testified that the employees were instructed to “start their time for the day” “when they arrive.” (Id. at 27.) Mr. Ferrell affirmed that if the employees followed his instructions, they would have been listing the time “[f]rom the time they left the shop till the time they got back to the shop and everything in between.”
D. Plaintiffs’ Work Schedules & Compensation
Over the course of his employment with Ferrell Electric, Plaintiff Brantley estimates his hours likely averaged 40 per week. (Brantley Dep. at 50-51.) He could not testify to how many days he loaded the truck in the morning without any help from his team, but averred that “[e]ach- day [he] worked for Ferrell Electric, [he] arrived at or before 6:45 am to start loading trucks, except- for the few times [he] ran late, which was less than 10 times during [his] entire employment.” (Id. at 60-61; Brantley Decl. ¶ 4 (emphasis added).) He also helped unload “[a]lmost every day” and would spend an average of fifteen minutes doing so. (Brantley Decl. ¶¶ 15, 19.) As “the majority of the time” his team arrived at thé warehouse around 4:00 PM, he estimates that hi's return travel was “on average 30 minutes.” (Brantley Dep. at 61.)
Plaintiff Pou testified that he worked “40 plus” hours per week. (Pou Dep. at 22.) He asserts that he arrived to load the trucks with material in the morning anytime between 6:00 AM and 6:45 AM (Pou Dep. at 16), except for about five times that he ran late (Pou Decl. ¶ 4). He estimates, the return from the last job site of the day to the shop was 30 minutes — no matter the location — because of traffic. (Pou Dep. at 23.) Although he made no mention of post-return travel duties during
It is undisputed that Ferrell Electric paid overtime to the extent the employees reported it. (J. Ferrell Dep. at 104; Pou Dep. at 22, 44.)
III. MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment on the following claims and issues: (1) whether James N. Ferrell was Plaintiffs’ “employer” within the meaning of the FLSA; (2) whether Defendants are liable for unpaid overtime compénsation under the FLSA; (3) whether Defendants, therefore, are also liable for liquidated damages; and, finally, (4) whether Defendants’ violation of the FLSA was “willful.”
The Court first considers whether Defendants are entitled to 'judgment as a matter of law on Plaintiffs’ claims for overtime compensation. Specifically, Defendants contend that Plaintiffs cannot meet their prima facie burden of proving that they worked overtime and were not compensated for that effort because “each testified that they truthfully and/or accurately recorded their time spent working” and were paid for all reported hours. (Defs.’ Br. at 3.) Defendants further assert that even if such unpaid wages exist, Plaintiffs’ “off-the-clock” morning' activities and return travel time are not compensable under the Act. Resolution of these issues may resolve several other issues — namely, Defendants’ liability for liquidated damages and whether their violation of the FLSA, if any, was “willful.” The Court then considers whether Mr. Ferrell is 'an “employer” subject to the FLSA.
A. Standard of Review
Summary judgment is appropriate only if “there is no genuine dispute as t’o any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Facts are “material” if they could affect the outcome of the suit under the governing substantive law, Anderson v. Liberty Lobby, Inc.,
The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett,
If—and only if — the movant carries its initial .burden, the non-movant may avoid summary judgment only by “demons-trat[ing] that there is indeed a material issue of fact that precludes summary judgment.” Id. When the non-movant bears the burden of proof at trial, the non-mov-ant must tailor its .response to the method by which the movant carried its. initial burden. If the movant presents evidence affirmatively negating a material fact, the nori-movant “must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated.” Fitzpatrick,
The Clerk gave Plaintiffs appropriate notice of Defendants’ motion for. summary judgment and informed them of the summary judgment rules, including the right to file affidavits or other materials in opposition and the consequences of default. (Doc. 86.) Thus, the notice requirements of Griffith v. Wainwright,
B. Discussion
1. Prima Facie Burden
Under § 207 of the FLSA, “an employer may not employ his -employee for a workweek longer than‘forty hours unless his employee receives overtime compensation at a rate not less than one and a half times his regular rate.”, Allen v. Bd. of Pub. Educ. for Bibb Cnty.,
Thus, to prevail on & claim for unpaid overtime compensation, the plaintiff bears the initial burden to demonstrate that; (1) he or she worked overtime without compensation, and (2) the employer knew or should have known .of the overtime work. Id. at 1314-15 (citing Reich v. Dep’t of Conservation & Nat. Res.,
a. Whether Plaintiffs Worked Overtime Without Compensation
“The remedial, nature of [the FLSA] and the great public policy which it embodies ... militate against making [the prima facie] burden an impossible hurdle for the employee.” Anderson,
Defendants contend that Plaintiffs are unable to demonstrate that they performed uncompensated overtime work. They assert that “cursory review of the undisputed time records in . this case reflects that each Plaintiff was properly paid overtime during those weeks they reported working in excess of forty hours.” (Defs.’ Br. at 8.) They, further argue that Plaintiffs’ claims are barred “by their own ádmissions that they were not owed for the time in the morning before work began” and “consistent” testimony “that they kept truthful and accurate records of time sheets.” (Id.) Rehashing the arguments presented in the motions to strike, Defendants lastly' contend that Plaintiffs “came forward with so' little evidence during discovery” and “did not even begin to calculate these'figures until after their depositions.” (Defs.’ Reply at 6-7.) Thus, according to Defendants, “Plaintiffs’ untimely and" improper affidavits are. not enough to avoid summary, judgment.” (Id.) As is apparent, Defendants’ sweeping proclamations are conclusory. They are devoid of citations to the record beyond identifying four exhibits containing hundreds of pages of timesheets and payroll records. Moreover, in the Court’s judgment, Plaintiffs’ purported admissions and related testimony do not state what Defendants want them to connote when properly viewed in context.
To defeat summary judgment, Plaintiffs respond that their timesheets do not re-fléct the number of'hours they worked: although “truthful and accurate,” they are incomplete. (See Brantley Dep. at 76-76, 85; Brantley Decl. ¶¶ 12, 21; Pou Dep. at 54-55.) It is undisputed that Ferrell Electric'did not use an electronic or mechanical time clock but rather issued its employees paper timesheets, which it expected them to fill out at the end of each day and turn in at the end of the each week. (Brantley Dep. at 71; J. Ferrell Dep. at 10, 104; Pou Dep. at 34; Wilson Dep. at 12-13, 19, 21.)
Plaintiffs avérred, however, that they “never were informed by anyone” that they were supposed to be paid for or include on their timesheets minutes spent loading the trucks or communicating with supervisors at the beginning of the workday. (Brantley Decl. ¶¶ 9-10; Pou Decl. ¶¶ 5-6; see also Pou Dep., at 33.) In fact, to the contrary, Plaintiffs both declared that they received express instructions — ; from multiple sources — to begin recording their time at 7:00 AM and to exclude return travel time. (See Brantley Decl. ¶¶ 11, 23, 27, 28; Pou Decl. ¶¶ 9, 11, 22, 23.) Defendants dispute or deny the foregoing factual assertions. (See J. Ferrell Dep. at 96, 97; Wilson Dep. at 24, 27.) But if true, these facts indicate that Ferrell Electric’s time records cannot be trusted.
In addition to challenging the accuracy of the records of their working time, Plaintiffs made statements regarding .the amount and extent of their uncompensated work in deposition testimony taken by Defendants and declarations.
Upon returning to the shop at the end of the day, Plaintiff Brantley testified that he had to fill out his timesheet, “[u]nload the stuff that’s on the truck that somebody could steal,” like “[electrical wire or anything that could be damaged from the weather.” (Brantley Dep. at 87; Brantley Decl. ¶ 19.) Mr. Brantley also was obligated, in his role as lead electrician, to “see and go talk to management and find out what is going on for tomorrow and let them know where we stand for the next day so they could plan.” (Brantley Dep. at 88, 94 (“I was told by Dominic that after our day ended and we got back to the shop that we needed to be in there talking to them and letting them know what’s going on because people were leaving and getting in their trucks and. going home”); Brantley Decl. ¶ 20 (“In a meeting Mr. Migilionico told electricians that they had to report in to him every day before leaving to go home for the day.”); see also Pou Decl. ¶ 19.) Here too Plaintiff Pou echoed Plaintiff Brantley: although only three out of five days he spent time unloading his own truck, every afternoon required some collaboration to unload and secure materials. (See Pou Decl. ¶¶ 4, 18.) Based on
Viewing the record in the light most favorable to Plaintiffs, Defendants are not entitled to summary judgment based on Plaintiffs’ lack of documentation and inability to state with precision the number of uncompensated hours they worked and the dates .on which that work was performed. It is possible that Plaintiffs’ burden at trial may ultimately be met with evidence other than precise, written documentation. The record contains weekly time sheets from both Plaintiff Brantley and Plaintiff Pou that document the hours spent and tasks completed on each job site. Both testified they did not record and thus were not compensated for carrying out the morning’s preparations, traveling back to the shop, unloading and storing unused materials, and exchanging information with supervisors, which they did on a daily basis with limited exceptions. Some such exceptions were “triggered” by reference to discrete events, such as Plaintiffs’ car trouble or appointments. See Allen,
b. Whether Defendants Knew■ or Should Have known of the Overtime Work
At summary judgment, it is Defendants’ burden to support the motion by reference to materials on file that demonstrate-the absence of any genuine issue of material fact as to its knowledge, whether actual or constructive, of-Plaintiffs’ overtime work. Defendants do not present any argument or evideiice on this issue. Therefore, the Court will not address the merits of the second element of Plaintiffs’ prima facie case.
2. Compensability
Inherent in Plaintiffs’ claims that they are due overtime compensation under the FLSA is the burden to present evidence from which a reasonable jury could conclude that the work is compensable. See Knight v. Allstar Bldg. Materials, Inc., No. 6:08-cv-457-ORL-22DAB,
(1) walking, riding, or traveling to and from the actual place of performance of’the principal activity or activities which such employee is employed to perform, and
(2) activities which are preliminary to or ' postliminary to said principal activity or activities, which occur either prior to the time oh any particular workday af which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.11
Id.
As previously described, Plaintiffs assert they were not compensated for three cate
To prevail Plaintiffs must prove that the time spent engaged in each of the activities identified above were not merely preliminary and postliminary activities, but rather “principal activities,” which embraces those tasks that are “integral and indispensable” to their duties as electricians. See Steiner v. Mitchell,
In December 2014, the Supreme Court revisited the meaning of “integral and indispensable” and offered a more precise, albeit more restrictive, view. Integrity Staffing Solutions, Inc. v. Busk, - U.S. -,
Whether a particular activity is “integral and indispensable” under the FLSA is a question of law, Anderson v. Perdue Farms, Inc.,
In assessing whether Defendants violated the FLSA, the Court will consider each of Plaintiffs’ claimed categories of unpaid work in turn. The Court addresses whether such time is exempted under § 254(a) of the Portal-to-Portal Act by asking whether the claimed unpaid work is Plaintiffs’ “principal” activity or if the work is “integral and indispensable” to the performance of such principal activities,
a. Morning Activities
As a preliminary matter, Defendants do not dispute that the employees loaded the trucks with supplies in the morning and made other necessary preparations.’ (See J. Ferrell Dep. at 11, 14, 94; King Dep. at 5-6, 11.) Rather, the thrust of the parties’ disagreement is at what time Plaintiffs commenced these activities, whether Defendants required Plaintiffs to carry them out, and how long they took — none "of which impact whether, as a matter of statutory interpretation, they constitute “integral and indispensable” work. Simply, there is no factual dispute about the nature of Plaintiffs’ duties with respect to these activities that requires a determination by the trier of fact before the Court can address the legal question at hand. Thus, applying the test set forth in Integrity Staffing, this Court finds Plaintiffs’ collection of the day’s work 'assignments and necessary supplies is compensable “work” as a matter of law.
To be sure, Plaintiffs’ “morning activities” were not the “principal activity or activities which [the] employee[s] [are] employed to perform.” 29 U.S.C. § 254(a). Ferrell Electric did not employ its workers to retrieve sockets and wire from the warehouse and load those implements on Ferrell Electric trucks for delivery to. sites in the field, but to install, service, and repair electrical equipment.
These tasks, though preparatory, were “integral and indispensable” to the performance of Plaintiffs’ productive work as electricians: intrinsic in installing, servicing, and repairing electrical equipment is (1) obtaining the order to do so; (2) obtaining instructions on the scope of such work; and (3) collecting and loading the specific parts necessary to complete the work. See Dunlop,
Ferrell Electric could not have eliminated Plaintiffs’ morning activities altogether without debilitating, if not preventing, their ability to carry out and successfully complete their duties as residential electricians. The fact that Ferrell Electric conceivably could have devised a way to eliminate the necessity of these morning tasks and may do so in the future does not change their nature or their relationship to the principal activity in this case.
The only issue remaining is whether such activities, decidedly within the range of compensable work, required so little time as to be de minimis. (See Defs.’ Br. at 15-16.) The Supreme Court in -Anderson explained the de minimis rule as follows:
When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded. Split-second absurdities are not justified by the actualities .of working conditions or by the policy of the Fair Labor Standards Act. ■ It is only when an employee is required to give up a substantial measure of his time and effort that compen-sable working time is involved.
First, Defendants have not shown — or even argued — that any administrative impracticality prevented them from counting the challenged morning time. It appears plausible to the Court, as in Burton, that Ferrell Electric could instead simply record the .time at which each electrician picked up their orders and supplies at the beginning of the day instead of dictating that the beginning of the workday is 7:00 AM.
There is a factual dispute, however, as to whether the time Plaintiffs spent engaged in the morning’s activities amounts to more than a “trifle.” Through no fault of their own, the exact amount of time Plaintiffs were shorted is impossible to precisely measure. - Mr. Ferrell and Mr. King testified that such activities required less than ten minutes or maybe ten minutes, but did not proffer any precise number in response to the single question asked by Plaintiffs’ counsel. (J. Ferrell Dep. at 12; King Dep. at 11.) Plaintiff Brantley presents evidence, however, that he spent a full fifteen minutes most every day over the course of 118 weeks
b. Evening Activities
Defendants do not present any argument about whether Plaintiffs’ “evening activities” — unloading materials and reporting to supervisors — are compensable. (See Defs.’ Br. at 6 (“Here, it is clear that the time spent by Plaintiffs in waiting for the facility to open and traveling back to the facility was not integral to principal work activities (the acts of performing the duties of an electrician) as a matter of law.”), 12 (stating that'“Plaintiffs are really seeking to be paid from [sic] commuting”); 15 (“Even if the time spent loading Ferrell Electric, Inc. trucks or returning from the last job site' of the day was compensable, ... Plaintiffs cannot recover for it because it is de minimis”).) Accordingly, the Court will not address, these activities on the merits, nor Plaintiffs’ responsive arguments thereto.
c. Return Travel Time
The Portal-to-Portal Act did not -eliminate employer liability for all work-related travel. See Burton,
Defendants argue that the time Plaintiffs spent traveling from the last job site back to the shop is merely extended work-to-home .travel, which is exempted under, the plain language of-the Pqrtal-to-Portal Act. They emphasize that they did not require Plaintiffs to return to the.shop at the end of each day, but rather “Plaintiffs simply chose to do s.o.” (Defs.’ Br. at 11-12.), Defendants support this assertion with testimony that Plaintiffs and other employees had the right to take their own transportation to the job site, were free to return directly home from the last job site, and on occasion drove Ferrell Electric trucks home at the end of the work day directly from the site. Even if Plaintiffs’ return commute is considered work, Defendants argue that such time was de min-imis.
Plaintiffs attempt to classify the time they spent in the company trucks as work time instead of travel time because “they were transporting Defendants’ materials back -to the Ferrell facility for safekeeping and Defendants needed the Ferrell vehicles- to be returned to the Ferrell facility as qpposed to being abandoned for the night at a jobsite.” (Pls.’ Resp. at 6.) They argue that a jury could infer Defendants had “commonsense security concerns, especially in light the fact that Ferrell’s facility has a- chainlink fence around it which Ferrell can lock [ ] at night” and “Ferrell employees would have gotten in trouble if they had ever left a Ferrell Electric truck at a jobsite.” (Id. at 6 n. 9 (citing J. Ferrell Dep. at 6-7; Pou Decl. ¶ 14).)
In support of this position, Plaintiffs cite Burton and Sec’y of Labor, U.S. Dep’t of Labor v. E.R. Field, Inc.,
to drive their personal vehicles to a county parking site to retrieve a county vehicle before going to the first work site of the day. At the end of each workday the County required the employees to return the county vehicle to the parking site, not only because the employees obviously needed to get back their personal vehicles, but also because the County required its vehicles to be stored in secure locations overnight. The County understandably did not want its vehicles left at unattended work sites overnight as they would be vulnerable to theft or vandalism. The County also did not permit its employees to drive the county vehicles home because they sought to avoid the costs associated with potential abuse of the vehicles for personal or unofficial use.
Id. at 837.
In affirming the district court’s decision that the return travel time was compensa-ble, the’court emphasized, “[ultimately, the employees who used the county vehicles had ho choice but to begin and end their work day not at a work site, but at a county parking facility.” Id. Even though “the employees certainly benefited from the use of county vehicles — including the money saved by not having to use their personal vehicles” — storing the county vehicle at a designated county parking site “solely benefited the County, and acted as an inconvenient detour, for the employees who at the end of the workday could not drive directly home.” Id. Picking up, delivering, and driving the vehicles were “not merely part of the employees’ commute to
In E.R. Field, Inc., the employer hired a master electrician to perform électrical work at various construction sites.
Although the Court finds the reasoning in Field to be sparse in depth and citation to authority, the Eleventh Circuit in analyzing Field itself inferred that “[tjhe fact that employees were required to return the vehicle was enough to make the time compensable.” Burton,
Defendants attempt to distinguish Burton by arguing those employees,’ unlike their own; were required to drive their personal vehicles to the parking site to retrieve the employer’s vehicle and were required to return the vehicle to the parking site for safekeeping. (Defs.’ Reply at 4-5.) "But this response merely reveals that genuine issues of material fact remain about the activity of Ferrell Electric employees after the completion of work at the final job site that preclude summary judgment in .Defendants’ favor. Defendants’ position, supported by testimony, is that Ferrell Electric employees are completely free to go wherever they want and, are not required to check out or return any equipment to their starting point. Plaintiffs’ position is the opposite: Plaintiffs’ testimony and declarations, as well as certain provisions in the 2012 policy manual, reveal that Ferrell Electric employees must return the truck and materials, unload them, and exchange information with supervisors about the day’s progress as a matter of course before heading home.
When there .is no clear line between the end of an employee’s work and the beginning of that same employee’s commute,-the touchstone is the language of the Portal-to-Portal Act distinguishing between an. employee’s principal activity and non-priri-
In one sentence, Defendants contend that even if Plaintiffs’ return from a job site at the end of a day is compensable, it is de minimis. (See Defs.’ Br. at 16.) As the Court discussed before, it is Defendants’ burden to support their motion by reference to materials on file that demonstrate the absence of any genuine issue of material fact on each challenged issue. On the applicability of the de minimis exception to Plaintiffs’ return'travel time, Defendants have presented nothing more than a legal conclusion. Accordingly, to the extent Defendants seek a ruling that Plaintiffs’ return travel time was de min-imis, it is DENIED.
3. Statute of Limitations
The statute of limitations for claims seeking unpaid overtime wages generally is two years, but if the claim is one “arising out of a willful violation,” another year is added to it. 29 U.S.C. § 255(a). Defendants seek a ruling that the FLSA two-year statute of limitations applies in this case based on their ’ assertion that Plaintiffs have done no more than “set forth conclusory assertions that Defendants intentionally misled and deceived’ [them] regarding their rights under the FLSA” and thus cannot meet their burden at trial. (Defs.’ Br. at 19.) To establish that the violation of the Act was willful in order to extend the limitations period, the employee must prove by a preponderance of the evidence that his employer either knew that its conduct was prohibited by the statute or showed reckless disregard about whether it was Alvarez Perez v. Sanford-Orlando Kennel Club, Inc.,
Defendants claim that they posted the legally required notices, paid Plaintiffs for all hours reported, and instructed Plaintiffs to report all hours worked. (Defs.’ Br. at 19-20.) They further contend, without citing to any authority, that they “are protected from a third year of potential FLSA exposure because they relied entirely upon the Plaintiffs to report their own hours.” (Id.) Plaintiffs have presented evidence, however, from which a jury could infer that Mr. Ferrell “buried his head in the sand” to his and the company’s FLSA duties.. (Pls.’ Resp. at 19.) For instance, Plaintiffs elicited testimony from Mr. Ferrell that he was not aware “legally that [he] was supposed to keep, quote, accurate record of [his] employees’ time” as opposed to merely saving records submitted by his employees. (J, Ferrell Dep. at 9-10; see also Wilson Dep. at 26 (Q: “Do you know that the employer is supposed to keep accurate time records?” A: “I know that we are supposed to allow our guys to have the opportunity to keep equal time— correct time records as in any company.”).) Mr. Wilson testified that he did not know who gave the employees instructions about
The Court concludes that a reasonable jury could find a willful violation by Defendants here. See Davila v. Menendez,
4.- Liquidated Damages
An employee ordinarily is entitled to liquidáted damages if his or her employer violated the minimum wage laws. Davila,
Where there is a factual dispute about whether the employer’s violation of the FLSA is “willful” for purposes of the three-year period of limitations, as here, the district court is required to await the finding of the jury before making a determination as to “good faith” in the context of-liquidated damages. Davila, 717 F.3d at 1186. If the jury finds that Defendants acted willfully, they are precluded from invoking the “good faith” defense because “willfulness” and “good faith” are mutually exclusive. See Davila, 717 F.3d at 1186; Alvarez Perez,
5. James N. Ferrell’s Individual Liability
The FLSA creates a private right of action, against any “employer” who violates its ’ minimum-wage or, overtime provisions. 29 U.S.C. § 216(b). The Act defines the term “employer” broadly to include “both the employer for whom the employee directly works as well as ‘.any person acting directly or indirectly in the interests of an employer in relation to an employee.’ ” Lamonica, 711 F.3d at 1309 (citing Josendis v. Wall to Wall Residence Repairs, Inc.,
In Patel,
Yet again, the absence of argument'and citation to the record by Defendants dictates that their motion for summary judgment must be denied. Defendants state:
[T]he deposition testimony showed that Dock King, Drew Williamson, or Kevin Hink were the managers who directly supervised the Plaintiffs, who gave them day to day supervision, and who had operational control. Furthermore, there is no evidence - that -James N. Ferrell exercised any direct operational control over either Plaintiff, who directly reported to these managers for Ferrell Electric, Inc.
(Defs.’ Br. at 17.) On the other hand,
Viewed in the light most favorable to the Plaintiffs, issues of fact exist regarding the extent of Mr. Ferrell’s control over the company’s day-to-day functions, its financial affairs, and its timekeeping policies that allegedly violate the Act. That certain supervisors may have exercised more control than Mr. Ferrell is not dispositive. See Lamonica,
IV. CONCLUSION
Before the Court summarizes the relevant holdings, further comment is warranted about counsel’s performance.
For the reasons stated herein, the Court DENIES Defendants Ferrell Electric, Inc. and James N. Ferrell’s Motion for Summary Judgment on all grounds. (Doc. 85.) Fact issues exist as to (1) the accuracy and trustworthiness of Defendants’ time records; (2) whether Plaintiffs’ “morning activities” and return travel time are compensable; and (3) whether James N. Ferrell is an “employer” for purposes of the Act.
.For example, the law is clear in this circuit that evidence need not be presented in admissible form at summary judgment as long as the evidence would be admissible at trial. See Jones v. UPS Ground Freight,
. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.1981) (holding Fifth Circuit decisions made on or before September 30, 1981, are binding precedent in Eleventh Circuit).
. Defendants deposed Mr. Brantley on August 21, 2014 and Mr. Pou on September 19, 2014. They signed their supporting declarations on February 18, 2015 and February 19, 2015, respectively, approximately three weeks after Defendants moved for summary judgment.
. Plaintiffs contend that the policy manual at issue — a version in place at Ferrell Electric before July 2012 — "was produced (many times) in discovery,” (Doc. 108-2 at 18 n. 16 (emphasis added).) From the record, this contention appears to be true. Plaintiff Pou’s interrogatory responses included a link to a shared drive on which the policy manual was stored. (Doc. 100-2 at 9; 100-3 at 8.) It is not proper for the Court, by its own investigation, to verify the functionality of the link or the version of the policy manual to which the link was attached, but at the very least, Plaintiffs also used the policy manual at issue as an exhibit during the depositions - of James N. Ferrell, the owner and president of Ferrell Electric, and Andrew Wilson, Ferrell Electric’s office manager, held on December 8, 2014 and December 10, 2014 respectively. (J. Ferrell Dep. Ex. 16; Wilson Dep., Doc. 81, Ex. 16.) The Court concludes that Defendants cannot be harmed by Plaintiffs' purported failure to produce a policy manual, promulgated by Defendants, that always has been in Defendants’ possession.
. There is also a fifth factor: "the nondisclos-ing party’s explanation for its failure to disclose the evidence.” Abdulla,
. See also Tishcon Corp. v. Soundview Commc'ns, Inc., No. CIV.A. 104-CV-524-JEC,
. Plaintiffs first initiated this action on September 6, 2013. Brantley v. Ferrell Electric Inc., No. 1:13-CV-00159, Doc. 1 (S.D.Ga. Sept. 6, 2013). That case was voluntarily dismissed on January 22, 2014, after Plaintiffs failed to timely effect service of process. (Id., Docs. 18, 19.) Plaintiffs subsequently amended their Complaint in this matter to proceed as an individual action as opposed to a class action. (Docs. 35, 38.) Thereafter, the Court dismissed Brannon Stuart and Gary Fletcher as Plaintiffs for failure to prosecute. (Doc. 63.) Most recently, Plaintiffs dismissed Christie C. Ferrell as a defendant. (Doc. 71.)
. At the same time, Mr. Ferrell explained that the first job of the day on the timesheet was recorded as beginning at 7:00 AM no matter what time the employees’ drove off the warehouse lot. (J. Ferrell Dep. at 15-16.) The employees are "on the clock” until 3:30 PM: thus, if Ferrell Electric sends out a truck and the team finishes in six hours, the team comes back to the shop "until somebody releases [them] and says we don’t have anything else for you today.” (Id. at 76.) If the employee returns to the shop and has not worked a full eight hours, Ferrell Electric "give[s] him one or two options [:] [he] can either take the rest of the day home or you can wash the trucks to make the full eight." (Id.)
. The following is not an exhaustive account of the rebuttal evidence presented by Plaintiffs hut is only illustrative.
. For purposes of this subsection, the use of an employer’s vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part, of the employee’s principal activities if the use of
. "The integral and indispensable test, however, is not a but-for test of causal necessity.” Bonilla,
. The interpretive statements issued by the Department of Labor are not controlling, but may guide the Court’s reasoning to the extent they are persuasive. Skidmore v. Swift & Co.,
. 118 weeks represents a period-commensurate with the three-year statute of limitations for "willful” violations of the FLSA. 29 U.S.C. § 255(a).
. Such a determination is a legal one, with the subsidiary findings being issues of fact. Patel,
. Again, the following presentation of evidence is not exhaustive of that presented by Plaintiffs, but is meant: to be illustrative only.
. The Court hereby CAUTIONS Mr. Batson against using excessive, single-spaced foot; notes to evade the 26-page limit for motions filed in this Court. See LR 7.1(a), SDGa. If he continues to use footnotes in this manner, his briefs will, at the Court's discretion, either be rejected as unacceptable for filing or dismissed with leave to be refiled in proper form.
. The Court did not decide whether (1) Defendants had actual or constructive knowledge that Plaintiffs were working overtime without compensation; (2) Plaintiffs' postshift “evening activities” are compensable; and (3) return travel time was de minimis because Defendants did not adequately address these issues in brief.