Jones et al v. Hoffberger Moving Services, LLC.

Filing 148

MEMORANDUM. Signed by Judge James K. Bredar on 3/24/2015. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

HERBERT JONES, et al.

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Plaintiffs
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v.

CIVIL NO. JKB-13-535
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HOFFBERGER MOVING
SERVICES LLC, et al.

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Defendants
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MEMORANDUM

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This action was brought by Plaintiffs Herbert Jones, Joseph Jones, Rodney McFadden,
and Raymond Green (collectively “Named Plaintiffs”) against Hoffberger 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 Defendants’ motion for summary judgment (Def. MSJ, ECF
No. 132), Plaintiffs’ cross-motion for summary judgment (Pl. Cross-MSJ, ECF No. 137), and
Plaintiffs’ motion to strike Defendants’ affidavits (ECF No. 140). The issues have been briefed1
and no hearing is required, Local Rule 105.6. For the reasons explained below, Defendants’
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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.

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motion for summary judgment is GRANTED IN PART and DENIED IN PART, Plaintiffs’
cross-motion for summary judgment is DENIED AS MOOT, and Plaintiffs’ motion to strike
Defendants’ affidavits is DENIED.
A.

BACKGROUND2
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 jobsites, Defendants offered a van service every morning from the HMS warehouse to
jobsites. (See Pl. 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, “such 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.
2

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, 550 U.S. 372
(2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008). Because the parties have filed cross-motions for summary
judgment, the Court must consider each motion separately on its own merits “ ‘to determine whether either of the
parties deserves judgment as a matter of law.’ ” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting
Phillip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir. 1997)). Having considered the motions, the Court
is of the opinion that Defendants are entitled to partial judgment as a matter of law. Accordingly, the facts and
inferences to be drawn therefrom are taken in the light most favorable to the party opposing the motion, Plaintiffs.

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Many employees spent unpaid time at the warehouse each morning, waiting to be transported to
jobsites. While waiting, Plaintiffs would sometimes be assigned to particular jobsites for that
day (Second Amend. Compl. ¶ 38), and Plaintiffs would sometimes help load trucks with
moving equipment, but without signing the warehouse time sheet. (Pl. 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. (Pl. 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
warehouse to pick up paychecks. (Id. at 34.)
Defendants filed a motion for summary judgment on October 6, 2014. (Def. MSJ.)
Plaintiffs filed a response in opposition and a cross-motion for summary judgment on November
7. (Pl. Cross-MSJ.) Defendants filed a response to Plaintiffs’ cross-motion on December 12
(ECF No. 143) and Plaintiffs filed a reply on January 20, 2015 (ECF No. 147). Plaintiffs also
filed a motion to strike Defendants’ affidavits on November 21, 2014.

(ECF No. 140.)

Defendants filed a response on December 5 (ECF No. 142) and Plaintiffs filed a reply on
December 16 (ECF No. 144).
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.
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R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to
be drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by
affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial,
Fed. R. Civ. P. 56(c)(1). Supporting and opposing affidavits are to be made on personal
knowledge, contain such facts as would be admissible in evidence, and show affirmatively the
competence of the affiant to testify to the matters stated in the affidavit. Rule 56(c)(4).
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,
135 S. Ct. 513, 516 (2014). The Portal-to-Portal Act “preserved potential liability for working
time not made compensable by contract or custom but narrowed the coverage of the FLSA by
excepting two activities that had been previously treated as compensable” under the FLSA. IBP,
Inc. v. Alvarez, 546 U.S. 21, 27 (2005). First, employers are not liable for an employee’s time

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spent “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.” 29 U.S.C. § 254(a)(1).
Second, employers are not liable for an employee’s time spent on “activities which are
preliminary to or postliminary to said principal activity or activities, 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 activity or activities.” Id. §
254(a)(2).
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, 350
U.S. 247, 252-53 (1956) (emphasis added) (internal quotation marks omitted).
In the near sixty years since Steiner, lower courts 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., 650 F.3d 350,
365-66 (4th Cir. 2011).
In December 2014, the Supreme Court revisited the meaning of “integral and
indispensable,” and offered a more precise, albeit more restrictive, view. Integrity Staffing, 135
S. Ct. 513. The Court rejected tests—like the one articulated in Perez v. Mountaire, 650 F.3d
350—that had focused on “whether an employer required a particular activity” or “whether the
activity is for the benefit of the employer.” Integrity Staffing, 135 S. Ct. at 519. Instead, the
“test is tied to the productive work that the employee is employed to perform.” Id. An activity is

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only “integral and indispensable” to the performance of an employee’s principal activities if “it is
an intrinsic element of those activities and one with which the employee cannot dispense if he is
to perform his principal activities.” Id.
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, 350 U.S. at 249, 251, and for
time that meatpacker employees spend sharpening knives, Mitchell v. King Packing Co., 350
U.S. 260, 262 (1956). In both cases, employers cannot eliminate the disputed activity without
impairing their employees’ ability to work safely and efficiently. See Integrity Staffing, 135 S.
Ct. at 518. In contrast, employers are not liable for time that poultry plant workers spend waiting
to don and doff protective gear, IBP, 546 U.S. at 42, or for time that warehouse workers spend
waiting in line to go through a post-shift security screening, Integrity Staffing, 135 S. Ct. 513. In
these cases, an employer could dispose of the disputed activity without impairing their
employees’ ability to perform the work they were employed to perform.
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

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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 the employer is party to a
contract or has developed a custom which mandates compensation regardless of Plaintiffs’
principal activities.
3. Application of § 254(a) of the Portal-to-Portal Act
Plaintiffs contend that Defendants violated the FLSA3 by failing to compensate
employees for the following time: (1) wait time at the warehouse each morning before traveling
to jobsites; (2) travel time from the warehouse to jobsites; (3) wait time at the jobsite before
moving trucks and moving equipment had arrived; and (4) travel time—after completing work at
a jobsite—to pick up paychecks at the warehouse.
As a threshold matter, the Court holds that no reasonable jury could find that Plaintiffs
were employed to wait at the warehouse, travel to jobsites, wait at jobsites, or pick up paychecks.
See Integrity Staffing, 135 S. Ct. at 518 (noting at the outset that Integrity Staffing “did not
employ its workers to undergo security screenings, but to retrieve products from warehouse
shelves and package those products”). Instead, Plaintiffs were employed “to load and unload
Defendants’ trucks” for Defendants’ clients. (See Second Amend. Compl. ¶¶ 8, 13.) This
holding is not fatal to Plaintiffs’ claims for unpaid wages, however. The Court now assesses
each alleged unpaid time, considering whether these activities are integral and indispensable to
the job of loading and unloading Defendants’ trucks for Defendants’ clients, and thus whether
they are compensable under the FLSA.
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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 Pl. 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 extent that they sought a determination of liability under the MWPCA and MWHL, and the Court
will order further briefing on this question.

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“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 precise 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., 146 F.3d 1214, 1216 (10th
Cir. 1998) (citing Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 743 (1981)). In
reviewing the parties’ cross-motions for summary judgment, the Court will first assess whether
Plaintiffs’ allegations of unpaid work time are categorically exempt under the FLSA as a matter
of law. If the Court does not so find—if instead Plaintiffs’ alleged unpaid work time could be
considered a principal activity as a matter of law—the Court will consider whether there exist
genuine issues of material fact such that judgment as a matter of law would be premature.
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, 135 S. Ct. at 518. Without waiting at the warehouse
each morning, Plaintiffs would have still been able to load and unload Defendants’ trucks for
Defendants’ clients—the job Plaintiffs were employed to perform— by arriving directly at the
jobsites.
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
26-32.) Further, evidence suggests that employees were virtually required to use Defendants’

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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, 135 S. Ct. at 519. Instead, “[t]he integral and indispensable test is tied to the
productive work that the employee is employed to perform.” Id. Taking the facts in the light
most favorable to Plaintiffs, no reasonable jury could find that Plaintiffs’ time spent waiting at
the warehouse each morning is integral and indispensable to loading and unloading moving
trucks for Defendants’ clients, and thus this wait time is not compensable under the FLSA.
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 warehouse. 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, 135 S. Ct. at 519, and so does
not justify compensation for all wait time at the warehouse. But such work is indeed integral and
indispensable to the performance of Plaintiffs’ principal activities, and Plaintiffs should have
been compensated accordingly.

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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
onto 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, 94 F.3d 152, 157 (4th
Cir. 1996) (“In order to be liable for overtime wages under the FLSA, an employer must have
‘knowledge, either actual or constructive, of [that] overtime work.’ ” Further, Plaintiffs are
entitled to subsequent travel time if they performed work at the warehouse under the continuous
workday rule: “the compensable workday begins with the first ‘principal activity’ of a job and
ends with the employee’s last ‘principal activity.’ ” Perez, 650 F.3d 350, 363 (4th Cir. 2011).
For these reasons, Plaintiffs’ claim for pre-travel warehouse work time survives Defendants’
motion for summary judgment, and will be subject to further fact-finding at trial.4

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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.

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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., 361 F.2d 806 (4th Cir. 1966), a construction company employed a group of engineers and
ironworkers to build bridges and tunnels across the Chesapeake Bay. The employees “had to
have transportation from the shore to their places of work in the Bay,” but the Fourth Circuit
noted that this “travel time was within § 4(a)” of the Portal-to-Portal Act. Thus the construction
company was not liable for travel time. Id. at 808-09. Likewise, Defendants in the instant
matter are not liable for travel time solely because some, or perhaps most, employees believed
they were required to use Defendants’ van service.
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,

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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;5 ECF No. 137-23
at 1). Similarly, no reasonable jury could find that Plaintiffs were required to meet at the
warehouse to perform work. As discussed in Section B.3.a supra, Defendants only sporadically
asked helpers to perform warehouse work. Instead, Plaintiffs were only required to meet at the
warehouse, if at all, to take advantage of Defendants’ van service, an activity which is not
covered by 29 C.F.R. § 785.38.
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 that 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,
5

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.

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Plaintiff’s 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., 323
U.S. 134 (1944). In contrast, where Plaintiffs waited at Defendants’ warehouse before traveling
to jobsites, Plaintiffs were merely “waiting to be engaged.” See id. Beyond these holdings, the
question of whether Plaintiffs were adequately compensated presents a question for a factfinder
to consider at trial. For these reasons, both Defendants’ and Plaintiffs’ motions for summary
judgment will be denied on the issue of unpaid wait time at jobsites.
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-toPortal 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 careful

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review, the Court holds that no reasonable jury could find that the activities in question are
compensable 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 articulated in Defendants’ “Application for Employment,”
which in relevant part states that “[a]uthorizing travel time for a specific job will be at the
discretion of the sales person responsible for the job and will be acknowledged in writing.”
(ECF No. 137-12 at 3 (emphasis added).) Defendants’ “General Conditions of Employment”
confirms the discretionary nature of Defendants’ travel compensation policy: “Travel time will
be limited to job sites at extreme distances. Authorizing travel time for a particular job will be at
the discretion of a designated HMS employee or the salesmen responsible for the job.” (ECF
No. 137-13 at 4 (emphasis added).) Indeed, the parties arguably have an express contract
barring compensation for travel time. Second, there is no evidence to suggest that Defendants
had cultivated a custom or practice of compensating for travel time. Cf. Sec’y of Labor, U.S.
Dept. of Labor v. E.R. Field, Inc., 495 F.2d 749, 751 (suggesting that an employer may have
established a custom or practice of compensating all travel time to and from jobsites through its
“willingness to pay for the [one-way] trip to the jobsite”) (emphasis added). There is no genuine
issue of material fact on this matter. For these reasons, Plaintiffs’ claim for unpaid travel time
fails under § 254(b) as a matter of law, and Defendants’ motion for summary judgment will be
granted on this particular issue.
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,

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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., 637
F.3d 421, 427 (4th Cir. 2011), which includes the intent “to lessen, so far as seemed then
practicable, the distribution in commerce of goods produced under subnormal labor conditions”
by eliminating low wages and long hours, Rutherford Food Corp. v. McComb, 331 U.S. 722, 727
(1947). However, courts must also respect the corporate form, and an officer of a corporation is
not necessarily an employer for FLSA purposes. Caseres v. S&R Mgmt. Co., 2012 WL 5250561,
at *3 (D. Md. 2012). The test of whether a person is an employer therefore depends on the
“economic reality” of that individual’s status in the workplace.6 Gionfriddo v. Jason Zink, 769
F. Supp. 2d 880, 890 (D. Md. 2011). As this Court has previously explained,
[a] consistent factor in cases from other circuits has been operational control over
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
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This “economic reality” test also determines whether a person is an employer pursuant to the MWHL, Newell v.
Runnels, 967 A.2d 729, 770 (Md. 2009), and the MWPCA, Campusano v. Lusitano Constr. LLC, 56 A.3d 303 (Md.
Ct. Spec. App. 2012).

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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,
“[c]ontrol may be restricted, or exercised only occasionally.” Id.
Speert v. Proficio Mortg. Ventures, LLC, 2011 WL 2417133, at *3 (D. Md. 2011).
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 Hoffberger 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. Hoffberger 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
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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 where 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., 736 F.2d 946, 960 (4th Cir. 1984). This standard has come to be known as the
“sham affidavit” rule. “Application of the sham affidavit rule at the summary judgment stage
must be carefully limited to situations involving flat contradictions of material fact.” Elat v.
Ngoubene, 993 F. Supp. 2d 497, 528 (D. Md. 2014).
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.

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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.

DATED this 24th day of March, 2015.
BY THE COURT:

/s/
James K. Bredar
United States District Judge

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