Jones v. Hoffberger Moving Services LLCJones v. Hoffberger Moving Services LLC
MEMORANDUM
This action was brought by Plaintiffs Herbert Jones, Joseph Jones, Rodney McFadden, and Raymond Green (collectively “Named Plaintiffs”) against Hoff-berger Moving Services LLC (“HMS”), Margaret A. Hoffberger, and Michael S. Hoffberger (collectively with HMS, “Defendants”) (1) as a putative collective action for failing to pay wages due under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 206 et seq., on behalf of the Named Plaintiffs and similarly situated employees of the Defendants; and (2) as an action on behalf of the Named Plaintiffs only for violations of the Maryland Wage Payment and Collection Act (“MWPCA”) and the Maryland Wage and Hour Law (“MWHL”). {See Second Amend. Compl., ECF No. 47.) Now pending before the Court is Defеndants’ motion for summary judgment (Def. MSJ, ECF No. 132), Plaintiffs’ cross-motion for summary judgment (PI. Cross-MSJ, ECF No. 137), and Plaintiffs’ motion to strike Defendants’ affidavits (ECF No. 140). The issues have been briefed
A. BACKGROUND
HMS is a “commercial moving and storage company,” and Michael and Margaret Hoffberger are its co-owners. (Second Amend. Compl. ¶¶ 8-10.) Plaintiffs are current and former HMS employees who have worked primarily as “helpers,” responsible for loading and unloading Defendants’ trucks. (Id. ¶¶ 8,13.)
During the now contested period of employment, Plaintiffs would travel to HMS jobsites and were paid hourly to move “furniture, boxes, and other materials” for Defendants’ clients “commercial, non-profit, and governmental businesses.” (Id. ¶¶ 5, 30.) To transport employees to job-sites, Defendants offered a van service every morning from the HMS warehouse to jobsites. (See PI. Cross-MSJ at 21.) If employees wished to use Defendants’ van service, they were required to arrive at the warehouse at a time specified by the company’s dispatcher. (Id.) Occasionally, employees who had arrived at the warehouse to use Defendants’ van service were asked to load moving equipment, “suсh as dollies, crates, padding, and masonite floor covers,” onto the moving trucks. (Id.) Plaintiffs were compensated for such work time if Plaintiffs filled out timesheets indicating that they had done warehouse work. (See generally id. at 27-29.)
Plaintiffs contend, however, that they have spent regular and substantial amounts of additional time working for Defendants without proper compensation, in violation of the FLSA. Many employees spent unpaid time at the warehouse each morning, waiting to be transported to job-sites. While waiting, Plaintiffs would sometimes be assigned to particular job-sites for that day (Second Amend. Compl. ¶ 38), and Plaintiffs would sometimes help load trucks with moving equipment, but without signing the warehouse time sheet. (PI. Cross-MSJ at 24.) In all instances, Plaintiffs were not compensated for warehouse waiting time.
In addition, Plaintiffs were typically not compensated for travel time from the warehouse to jobsites. (Second Amend. Compl. ¶ 40.) Plaintiffs also contend that in using Defendants’ van service, vans would regularly arrive at jobsites approximately thirty minutes before Defendants’ moving trucks. (PI. Cross-MSJ at 33.) Plaintiffs argue that they were directed only to log their start time after the moving truck had arrived, and so were not compensated for wait time at the jobsite. (Id.) Finally, Plaintiffs were not compensated for time spent traveling back to the warehousе to pick up paychecks. (Id. at 34.)
B. THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 132 and 137)
1. Legal Standard
“The court shall grant summary judgment if the movant shows 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); Celotex Corp. v. Catrett,
2. The FLSA and Portal-to-Portal Act
Congress enacted the FLSA in 1938 to establish a federal minimum wage and to mandate that employees be compensated for overtime. Within a decade, and in response to “a flood of litigation,” Congress enacted the Portal-to-Portal Act. Integrity Staffing Solutions, Inc. v. Busk, — U.S. -,
To determine an employer’s liability for unpaid wages and overtime, the key inquiry is whether such activities are properly labeled “principal activities” under the Portal-to-Portal Act. The Supreme Court has interpreted the term “principal activity” to “embrace[ ] all activities which are an integral and indispensable part of the principal activities.” Steiner v. Mitchell,
In the near sixty years since Steiner, lower сourts have attempted to give meaning to the words “integral and indispensable.” Many courts, including the Fourth Circuit, introduced tests that looked to whether such activities were required by company policy, or whether they predominantly benefited the employer. See, e.g., Perez v. Mountaire Farms, Inc.,
In December 2014, the Supreme Court revisited the meaning of “integral and indispensable,” and offered a more precise, albeit more restrictive, view. Integrity Staffing,
The Supreme Court illustrated the application of this test by reviewing its application to the Court’s precedent: Employers are liable for time that battery plant workers spend showering and changing clothes after working with toxic materials, Steiner,
An employer may be liable for unpaid work even if activities are not found to be integral and indispensable to an employee’s principal work. The Portal-to-Portal Act also imposes liability on an employer for unpaid compensation “if such activity is compensable by either — (1) an express provision of a written or nonwritten contract ...; or (2) a custom or practice.... ” 29 U.S.C. § 254(b). .
In assessing whether Defendants violated the FLSA, the Court will consider each of Plaintiffs’ claimed categories of unpaid work in succession. The Court will first assess 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. If not, the Court will assess whether such work is nonetheless compensable under § 254(b) of the Portal-to-Portal Act, if
3. Application of § 254(a) of the Portal-to-Portal Act
Plaintiffs contend that Defendants violated the FLSA
As a threshold matter, the Court holds that no reasonable jury could find that Plaintiffs were em/ployed to wait at the warehouse, travel to jobsites, wait at job-sites, or pick up paychecks. See Integrity Staffing,
“Whether an activity is preliminary or postliminary to principal activities for the purposes of § 254(a)(2) of the Portal-to-Portal Act is a mixed question of law and fact because the prеcise nature of the employee’s duties is a question of fact, while application of the FLSA to those duties is a question of law.” Baker v. Barnard Const. Co., Inc.,
a. Wait time at the warehouse
Plaintiffs are not entitled to compensation for time spent waiting at the warehouse before traveling to jobsites. Crucially, Defendants “could have eliminated the [wait time] altogether without impairing the employees’ ability to complete their work,” and thus Plaintiffs’ wait time is not indispensable. Integrity Staffing,
Granted, evidence suggests that Defendants relied on and benefitted from Plaintiffs’ presence at the warehouse; Defendants used Plaintiffs’ availability to reassign jobsite assignments or to direct employees to perform warehouse work. (See generally Pl. Cross-MSJ at 26-82.) Further, evidence suggests that employees were virtually required to use Defendants’ van service, and so Plaintiffs had no choice but to wait at the warehouse each morning. (See generally id. at 20-26.)
These facts do not aid Plaintiffs’ claims, though. The Supreme Court expressly directed that courts should neither consider simply “whether the activity is for the benefit of the employer,” nor should courts focus “on whether an employer required a particular activity.” Integrity Staffing,
Accordingly, Plaintiffs’ cross-motion for summary judgment will be denied, and Defendants’ motion for summary judgment will be granted, on the issue of pre-travel warehouse wait time. This holding extends to time spent waiting at the warehouse: (a) before Plaintiffs performed warehouse work; and (b) on those occasions where Plaintiffs were paid for subsequent travel time.
That holding aside, Plaintiffs have raised genuine issues of material fact as to whether all employees were compensated for time spent working at the warehousе. Plaintiffs allege that, on occasion, individuals would load moving trucks with moving equipment without being paid. (See Pl. Cross-MSJ at 28-29.) This occasional warehouse work was not “the productive work that the employee [was] employed to perform,” Integrity Staffing,
Both parties agree that some employees would occasionally do work at the warehouse, lifting equipment into the moving trucks. (See Pl. Cross-MSJ at 28-29.; ECF No. 143 at 14-16.) Both parties also appear to agree that employees were compensated for warehouse work as long as they filled out warehouse work timesheets according to company policy. (See Pl. Cross-MSJ at 28-29; ECF No. 143 at 14-16.) The parties disagree, however, about whether Defendants are liable for unpaid compensation where Plaintiffs allegedly worked in the warehouse but failed to fill out a warehouse work timesheet. The Court holds that both Defendants’ and Plaintiffs’ motions for summary judgment will be denied on this issue because genuine issues of material fact remain.
Plaintiffs should be compensated for time spent lifting and carrying moving equipment ontо trucks regardless of whether Plaintiffs followed Defendants’ time keeping protocol. Under the FLSA, “[w]ork not requested but suffered or permitted is work time.” 29 C.F.R. § 785.11. “If [t]he employer knows or has reason to believe that [the employee] is continuing to work[, then] the time is working time.” Id.; see also Bailey v. Cnty. of Georgetown,
b. Travel time from the warehouse to jobsites
Plaintiffs are not entitled to compensation for travel time to and from the warehouse, unless Plaintiffs performed a principal activity prior to such travel. Commuting time is expressly exempted from the FLSA by § 254(a)(1) of the Portal-to-Portal Act. This is so even where employees are dependent on employer-provided transportation. In Ralph v. Tidewater Constr. Corp.,
Plaintiffs rely on 29 C.F.R. § 785.38 to bolster their claim for travel time, which in relevant part states: “Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day’s work....” 29 C.F.R. •§ 785.38. The Court has carefully considered this language, and finds that it gives further meaning to the Supreme Court’s reasoning in Integrity Staffing. The regulation illustrates one example of an integral and indispensable activity, one that would be compensable as a principal activity. The facts in the instant matter are distinguishable, however.
No reasonable jury could find that Plaintiffs were required to meet at the warehouse to receive instructions. Rather, Plaintiffs were given job assignments the afternoon before each workday, (see, e.g., ECF No. 137-12 at 1; ECF No. 137-13 at 3; ECF No. 137-14 at 66-67, 69, 77), and some employees testified that they were allowed to go directly to jobsites without Defendants’ objection, (see, e.g., ECF No. 137-15 at 6; ECF No. 137-19 at 4-5;
For these reasons, the Court will deny Plaintiffs’ cross-motion for summary judgment, and grant Defendants’ motion for summary judgment, as they pertain to Plaintiffs’ claims for travel time, with one narrow exception. Plaintiffs may still seek unpaid travel time wages for those employees who worked in the warehouse before traveling to jobsites, as discussed in Section B.3.a supra.
c. Wait time at jobsites
There are genuine issues of material fact as to whether Plaintiffs were properly compensated for time spent at the jobsite each morning, waiting for Defendants’ moving truck and equipment to arrive. Plaintiffs allege that the employee transport vans would regularly arrive at jobsites well before the moving trucks that carried equipment, and employees could not begin work without equipment. (See PL Cross-MSJ at 33-34.) Defendants have contested this allegation and claim thаt Plaintiffs were paid as soon as they arrived at the jobsite, regardless of the moving truck’s presence. (See ECF No. 143 at 21-22.)
The Court finds that Plaintiffs are entitled to be paid the moment they arrived at the jobsite if they arrived by Defendants’ van service. Once employees arrived at the day’s jobsite, Plaintiffs time spent waiting became a principal activity, integral and indispensable to the performance of the work that Plaintiffs were employed to perform. Plaintiffs were “engaged to wait,” a compensable activity. See 29 C.F.R. § 790.7(h) (citing Skidmore v. Swift & Co.,
d. Time spent picking up paychecks
Plaintiffs are not entitled to compensation for time spent collecting paychecks.- Such activity is squarely within the definition of an exempt, postliminary activity under the Portal-to-Portal Act. See 29 C.F.R. § 790.7(g) (“Other types of activities which ... when performed under the conditions normally present, would be considered ‘preliminary and postliminary’ activities, include ... waiting in line to receive pay checks.”).. Plaintiffs present no evidence or authority to suggest that the instant action is unique compared to “the conditions normally present.” Id. Thus, the Court holds that no reasonable jury could find that time spent picking up paychecks is integral and indispensable to the work Plaintiffs were employed to perform. For this reason, the Court will grant Defendants’ motion for summary judgment on Plaintiffs’ claim for unpaid time spent picking up paychecks.
4. Application of § 254(b) of the Portal-to-Portal Act
Plaintiffs argue, in the alternative, that Defendants are liable for unpaid travel time based on a contract, custom, or practice pursuant to § 254(b) of the Portal-to-Portal Act. After carеful review, the Court holds that no reasonable jury could find that the activities in question are com-pensable by contract, or by custom or practice, under § 254(b) of the Portal-to-Portal Act.
First, there is no written or nonwritten contract. Plaintiffs base their argument under § 254(b)(1) on a discretionary policy
5. Summary of Findings Under the Portal-to-Portal Act
Taken together, Plaintiffs case will be narrowed substantially by the Court’s holdings. Plaintiffs may continue to seek compensation for instances where employees were not paid while working at the warehouse, and also for those same employees’ subsequent travel time. Further, Plaintiffs may continue to seek compensation for wait time at jobsites, when Defendants’ moving trucks were delayed. Aside from these remaining claims, Defendants’ motion for summary judgment on Plaintiffs’ FLSA claims is granted.
6. Claims Against Margaret Hoffberger
Defendants’ motion for summary judgment also seeks to dismiss all claims against Margaret Hoffberger, on the theory that Ms. Hoffberger is not an “employer” within the meaning of the FLSA, MWPCA, or MWHL.
The FLSA treats as an employer “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The FLSA’s provisions “should be broadly interpreted and applied to effectuate its goals,” Purdham v. Fairfax Co. Sch. Bd.,
[a] consistent factor in cases from other circuits has been operational controlover the individuals claiming to have been employees. The Second Circuit has noted the relevant factors to consider include “‘whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.’ ” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132 , 139 (2d Cir.1999). That court also observed that none of the four factors is dispositive and that a court should consider the totality of circumstances. Id. However, the Herman opinion further noted that it is not necessary to employer status to monitor employees continuously. Instead, “[cjontrol may be restricted, or exercised only occasionally.” Id.
Speert v. Proficio Mortg. Ventures, LLC,
Ms. Hoffberger is the majority owner and managing member of HMS. (Dep. of Margaret Hoffberger, ECF No. 137-10, at 5-7.) Moreover, Michael Hoffberger testified that Margaret had the power to overrule Michael’s decisions, though she never executed that authority. (Dep. of Michael Hoffberger, ECF No. 137-7 at 38-39.) Ms. Hoffberger also testified that she signed employee paychecks up until 2012, when HMS switched over to a “payroll cards” system. (Dep. of Margaret Hoff-berger at 6.)
On these facts, the Court finds that there exists an issue of material fact as to Ms. Hoffberger’s “operational control” over HMS’s employees. Thus, Defendants’ motion for summary judgment to dismiss all claims against Ms. Hoffbergеr will be denied to allow for further fact-finding at trial.
7. Plaintiffs’ Claims for Overtime Wages
Plaintiffs seek summary judgment on claims related to Defendants’ failure to pay overtime from 2010 through 2012. The parties seemingly resolved this very issue through a proposed “Stipulated and Agreed Partial Judgment” (ECF No. 109), which was approved by the Court on April 24, 2014, (ECF No. 118). Now, Plaintiffs make a surprising, although not implausible, allegation that the Offer of Partial Judgment did not fully resolve Plaintiffs’ claim for unpaid overtime wages as to all Plaintiffs and all Defendants. Certainly, it would be odd to settle claims in this piecemeal fashion, but not impossible.
If truly in dispute, as it appears to be, then the Court sees no alternative other than to allow additional discovery, followed by briefing on the question of whether Michael and Margaret Hoffberger were ever liable in their personal capacity, and if so whether they remain liable after the Court approved the parties’ offer of partial judgment, on this narrow claim for unpaid overtime wages.
C. PLAINTIFFS’ MOTION TO STRIKE DEFENDANTS’ AFFIDAVITS (ECF No. 140)
Plaintiffs filed a motion to strike the entirety of four of Defendants’ affidavits, arguing that each affidavit contained conclusory statements and also contradictory testimony. (ECF No. 140.) The Fourth Circuit has limited the value of conclusory or contradictory affidavits by holding that “[a] genuine issue of material fact is not created whеre the only issue of fact is to determine which of the two conflicting versions of the plaintiff’s testimony is correct.” Barwick v. Celotex Corp.,
The Court need not wade into whether Defendants’ affidavits are impermissible, though. The issue is moot because the Court took all facts in the light most favorable to Plaintiff, as noted in footnote 2 supra. In doing so, the Court disregarded Defendants’ affidavits without reaching Plaintiffs’ allegations that the affidavits are improper. Even addressing Plaintiffs’ contentions directly, the Court would find it improper to strike Defendants’ affidavits in their entirety. While components of the affidavits may border on conclusory, the Court finds no “flat contradictions” of material facts. Regardless, the question is moot and the Court’s holdings would be unchanged with or without consideration of Defendants’ affidavits.
D. CONCLUSION
Accordingly, an order shall issue GRANTING IN PART AND DENYING IN PART Defendants’ motion .for summary judgment (ECF No. 132), DENYING Plaintiffs’ cross-motion for summary judgment (ECF No. 137), and DENYING AS MOOT Plaintiffs’ motion to strike Defendants’ affidavits.
ORDER
In accordance with the foregoing memorandum, it is ORDERED as follows:
1.Defendants’ motion for summary judgment (ECF No. 132) is GRANTED IN PART and DENIED IN PART.
a. The Court holds that Defendants are not liable, and therefore issues judgment for Defendants, fоr the following unpaid time:
i.Plaintiffs’ unpaid wait time at the warehouse each morning before traveling to jobsites, excluding those instances where Plaintiffs had previously performed warehouse work.
ii. Plaintiffs’ unpaid travel time from the warehouse to jobsites and back to the warehouse, excluding those instances where Plaintiffs had previously performed warehouse work.
iii. Plaintiffs’ unpaid time spent collecting paychecks.
b. The Court holds that genuine issues of material fact remain as to whether Defendants are liable for the following unpaid time, and so Defendants’ motion is denied as to:
i. Plaintiffs’ unpaid time spent working at the warehouse, and subsequent waiting and travel time.
ii. Plaintiffs’ unpaid wait time at jobsites, before Defendants’ moving truck and equipment had arrived.
2. Plaintiffs’ cross-motion for summary judgment (ECF No. 137) is DENIED.
3. Plaintiffs’ motion to strike Defendants’ affidavits (ECF No. 140) is DENIED AS MOOT.
Further, the Court has identified two issues that require additional briefing before a trial schedule can be set.
First, the parties must adequately brief the Court on whether, and to what extent, caselaw and federal regulations interpreting the Fair Labor Standards Act govern the Court’s interpretation of the Maryland Wage Payment and Collection Act and the Maryland Wage and Hour Law. These questions are presented upon the Supreme Court’s recent decision in Integrity Staffing Solutions, Inc. v. Busk, — U.S.-,
Second, the parties must brief the Court on whether Mr. and Ms. Hoffberger are personally liable for unpaid overtime compensation, in light of the court-approved offer of partial judgment. (See EOF No. 118.) A telephone conference is set in for Thursday, April 2 at 10:00 a.m. to discuss whether additional discovery is necessary on this issue, and to set a briefing schedule on this issue. Counsel for Plaintiffs are directed to initiate the cаll.
Notes
. The parties' cross-motions for summary judgment were briefed in ECF Nos. 132, 137, 143, and 147. Plaintiffs’ motion to strike Defendants’ affidavits was briefed in ECF Nos. 140, 142, and 144.
. When considering a motion for summary judgment, the facts and the inferences to be drawn therefrom are taken in the light most favorable to the party opposing the motion for summary judgment. Scott v. Harris,
. Both parties briefed only liability under the FLSA, with the exception of two conclusory footnotes stating that the MWPCA and MWHL parallel the FLSA's caselaw. (See PI. Cross-MSJ at 35 n. 24; ECF No. 143 at 5 n. 1.) In light of the parties’ insufficient treatment of this complicated matter, and especially considering the Supreme Court’s recent jurisprudence in Integrity Staffing, the Court is not convinced that state claims under the MWPCA and MWHL are perfectly aligned with the FLSA. Therefore Plaintiffs’ and Defendants’ motions for summary judgment are denied to the extеnt that they sought a determination of liability under the MWPCA and MWHL, and the Court will order further briefing on this question.
. As suggested by Defendants, ECF No. 143 at 15-16, the Court expects to be briefed on whether enough Plaintiffs remain similarly situated with regard to Plaintiffs’ claim for pre-travel warehouse work to further justify this collective action.
. The relevant portion of this deposition also includes inadmissible testimony about a story the deponent overheard. Regardless, the testimony does not present a genuine issue of material fact as to whether Plaintiffs were required to meet at the warehouse to receive instructions or to perform work.
. This “economic reality” test also determines whether a person is an employer pursuant to the MWHL, Newell v. Runnels,