Pizano v. Big top & Party Rentals, LLC d/b/a Big Top Tent & Party Rentals, LLC et al

Filing 50

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 4/12/2017. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSE PIZANO, on behalf of himself and
other similarly situated individuals,

)
)
)
Plaintiff,
)
)
v.
)
)
BIG TOP & PARTY RENTALS, LLC d/b/a/ )
BIG TOP TENT & PARTY RENTALS, LLC, )
and MARLENE LEONARD, individually,
)
)
Defendants.
)

Case No. 15-cv-11190
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
On December 7, 2016, the parties agreed to brief the threshold question of whether “ride
time” can be compensable time for purposes of calculating overtime wages under the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq., as amended, and the Illinois Minimum Wage Law, 820
ILSC 105/1, et seq. Based on those submissions [42, 47, 48], the Court concludes that “ride
time” can be compensable. This case is set for further status on May 4, 2017, at 9:30 a.m. to
discuss scheduling, additional motion practice, and the possibility of settlement.
I.

Background
Defendant Big Top & Party Rentals, LLC, and its owner, Defendant Marlene Leonard,

“provide[] tents, tables, chairs, lighting, staging, dance floors, and other equipment to clients for
events such as weddings and festivals” in Illinois, Wisconsin, and Indiana. [42, at 2; 47, at 2.]
Plaintiff Jose Pizano was one of Defendants’ regular seasonal employees, working from May to
October each year from 2012 through 2015. [47, at 2.] According to Plaintiff, he and other
employees would “go to Defendants’ worksite each day, load Defendants’ trucks with the

necessary tents, and other supplies for the day, and travel to the clients’ sites to install the tents as
well as any other requested equipment.” [42, at 2.]
Plaintiff alleges that he regularly worked in excess of forty hours a week, but was not
paid overtime compensation for all of this time. [1, ¶¶ 10–11.] Specifically, he was not
compensated for work that includes “time loading trucks at the beginning of the day, unloading
trucks and the end of the day, and traveling from job to job and installing tents.” [42, at 2.] He
alleges that he and other workers would “punch in each day before beginning to load
Defendant’s trucks and punched out at the end of each day after unloading the truck and cleaning
off tools.” Id. at 2–3.
Defendants dispute these facts (and, obviously, any liability).

They argue that

Defendants had three crews, two of which travel to various sites in Illinois, Wisconsin, and
Indiana, while the third remains at Defendants’ warehouse. [47, at 3.] According to Defendants,
the third crew has exclusive responsibility for loading and unloading the trucks. Id. The other
two crews are given a “ride” to the first morning job site in a fully loaded company truck, and
they start their work day only upon arrival at the job site. Id. During their truck ride, “almost all
of the crew” make personal phone calls, sleep, or snack. Id. at 4. “The employees perform no
work whatsoever prior to and after their ‘ride’ to and from the first and last job site.” Id.
Nevertheless, Defendants pay these workers at their regular rate for this “ride time.” Id. at 1, 3.
II.

Analysis
The parties requested to brief a narrow issue: whether, as a matter of law, ride time can

be compensable under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., as amended

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(“FLSA”), and the Illinois Minimum Wage Law, 820 ILSC 105/1, et seq. (“IMWL”).1 The
answer to that narrow question is yes.
“The FLSA requires employers to pay overtime to certain employees who work more
than 40 hours in a work week.” Kellar v. Summit Seating Inc., 664 F.3d 169, 173 (7th Cir.
2011). In 1947, Congress amended the FLSA through the Portal-to-Portal Act to eliminate
liability under the FLSA for employers’ “activities which are preliminary to or postliminary to
[the] principal activity or activities [that an employee is hired to perform], which occur either
prior to the time on any particular workday at which such employee commences, or subsequent
to the time on any particular workday at which he ceases, such principal [activities].” 29 U.S.C.
§ 254(a). Department of Labor regulations explain, however, that this amendment “did not alter
what is known as the ‘continuous workday rule,’ under which compensable time comprises ‘the
period between the commencement and completion on the same workday of an employee’s
principal activity or activities * * * [,] whether or not the employee engages in work throughout
all of that period.” Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 875 (2014) (quoting 12 Fed.
Reg. 7658 (1947); 29 CFR § 790.6(b) (2013)).
“[A]ctivities performed either before or after the regular work shift, on or off the
production line, are compensable under the [FLSA] if those activities are an integral and
indispensable part of the principal activities.” Steiner v. Mitchell, 350 U.S. 247, 256 (1956).
“An activity is * * * integral and indispensable to the principal activities that an employee is
employed to perform if it is an intrinsic element of those activities and one with which the

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“Courts have generally held that the IMWL parallels the FLSA, and the Illinois Administrative Code
provides that FLSA regulations provide guidance in interpreting the IMWL. Thus, the same analysis
generally applies to both the FLSA and IMWL.” Ladegaard v. Hard Rock Concrete Cutters, Inc., 2004
WL 1882449, at *4 (N.D. Ill. Aug. 18, 2004) (internal citations omitted).

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employee cannot dispense if he is to perform his principal activities.” Integrity Staffing Sols.,
Inc. v. Busk, 135 S. Ct. 513, 517 (2014).
Other Department of Labor regulations speak directly to whether travel time is
compensable. See 29 C.F.R. § 785.38. In particular, Section 785.38 provides that
Time spent by an employee in travel as part of his principal activity, such as travel
from job site to job site during the workday, must be counted as hours worked.
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, and must be counted
as hours worked regardless of contract, custom, or practice. If an employee
normally finishes his work on the premises at 5 p.m. and is sent to another job
which he finishes at 8 p.m. and is required to return to his employer’s premises
arriving at 9 p.m., all of the time is working time. However, if the employee goes
home instead of returning to his employer’s premises, the travel after 8 p.m. is
home-to-work travel and is not hours worked.
Id.
Likewise, courts have explained that “[p]reparation or cleanup constitutes principal
activity if it is an integral part of the employee’s work” and thus the worker’s “travel time to a
job site after preparation or from a job site before cleanup would be time covered by the
statutes.” O’Brien v. Encotech Const., 2004 WL 609798, at *4 (N.D. Ill. Mar. 23, 2004); accord
Guzman v. Laredo Sys., Inc., 2012 WL 5197792, at *4 (N.D. Ill. Oct. 19, 2012) (granting
summary for plaintiffs on FLSA claim where the undisputed facts showed that “before traveling
to the jobsite, the plaintiffs were required to gather together the tools they would need based on
the assignment they received”). Moreover, “time spent traveling from jobsite to jobsite” is
“integral and indispensable” to a principal activity, and therefore compensable under the FLSA.
Perez v. Super Maid, LLC, 55 F. Supp. 3d 1065, 1079 (N.D. Ill. 2014) (finding that paying a
“predetermined amount for each cleaning job regardless of * * * the time spent traveling to that
job” violated the FLSA). “However, travel time is not covered by the statutes if the employee

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did not perform any preparation before traveling to the job site or if the employee did not
perform any cleanup after leaving the job site.” Ladegaard, 2004 WL 1882449, at *3.
Defendants do not discuss, distinguish, or dispute any of these regulations or this case
law. Their brief cites a single case, Integrity Staffing, which does not concern travel time at all.2
Relying on Integrity Staffing, Defendants merely assert that “ride time” is a “convenience” to the
employees and not an “integral part of the crew’s job.” [47, at 5.] But that sentiment misses the
point.

Under Department of Labor regulations, if Plaintiff was “required to report at

[Defendants’ yard] to receive instructions” about, for example, setting up the party-related
equipment at a jobsite, “perform other work” at this meeting spot (such as loading or unloading a
truck with equipment), or “pick up and to carry tools” related to installing the tents, then “the
travel from the designated place to the work place is part of the day’s work, and must be counted
as hours worked regardless of contract, custom, or practice.” 29 C.F.R. § 785.38; O’Brien, 2004
WL 609798, at *5 (holding that “[l]oading of additional supplies and equipment” were principal
activities, and thus subsequent travel time to the job site was compensable). The fact that
employees are not building tents or cleaning tools while they are driven around in Defendants’
trucks is irrelevant. Under the “continuous workday rule,” time is compensable “between the
commencement and completion” of the same workday “whether or not the employee engages in

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Integrity Staffing involved whether the time that warehouse employees spent undergoing a security
screening at the end of the day constituted non-compensable postliminary activities. The Supreme Court
held that it did because the employer “did not employ its workers to undergo security screenings, but to
retrieve products from warehouse shelves and package those products for shipment to Amazon
customers.” 135 S. Ct. at 518. The Supreme Court also held that the security screenings were not
“integral and indispensable” to the employees’ duties as warehouse workers because “[t]he screenings
were not an intrinsic element of retrieving products from warehouse shelves or packaging them for
shipment” and could have be eliminated “without impairing the employees’ ability to complete their
work.” Id. For purposes of this motion, Defendants do not argue that the loading or unloading of their
trucks with tools or equipment necessary for installing their party-related tents and accessories are not
“integral and indispensable” to their principal activities (setting aside whether the evidence will ultimately
show that Plaintiff and other similarly situated employees actually performed these activities).

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work throughout all of that period.” Sandifer, 134 S. Ct. at 875 (internal citations and quotation
marks omitted). “If an employee normally finishes his work on the premises at 5 p.m. and is sent
to another job which he finishes at 8 p.m. and is required to return to his employer’s premises
arriving at 9 p.m., all of the time is working time.” 29 C.F.R. § 785.38 (emphasis added). And
Defendants do not contest that the employees who actually drove trucks between job sites, like
Plaintiff, were working the entire drive. Thus, “ride time” can be compensable under the FLSA
and IMWL as part of an employee’s continuous workday.
The Court cannot decide more than that. The parties plainly dispute whether Plaintiff (or
other similarly situated employees) ever loaded Defendants’ trucks with tools or equipment
before heading to a jobsite or whether they unloaded the truck and cleaned up after returning
from a jobsite. That is a factual issue bearing directly on Defendants’ ultimate liability, and
cannot be resolved before discovery has even started. Assuming that Plaintiff establishes that he
performed such tasks and that these tasks are integral and indispensable to Defendants’ principal
activity, the travel time from Defendants’ yard to the jobsite, and between jobsites, are part of the
day’s work and must be counted as hours that Plaintiff worked under the FLSA and IMWL.
IV.

Conclusion
For the foregoing reasons, the Court concludes that “ride time” can be compensable

under the FLSA and IMWL. This case is set for further status on May 4, 2017, at 9:30 a.m. to
discuss scheduling, additional motion practice, and the possibility of settlement.

Dated: April 12, 2017

_________________________________
Robert M. Dow, Jr.
United States District Judge

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