Butler et al v. Directsat USA, LLC et al
Filing
301
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 10/16/14. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JEFFRY BUTLER, ET AL.
:
v.
:
Civil Action No. DKC 10-2747
:
DIRECTSAT USA, LLC, ET AL.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair
Labor
Standards
Act
collective
action
case
is
a
motion
for
summary judgment (ECF No. 257), filed by Defendants DirectSAT
USA, LLC (“DirectSAT”), UniTek USA, LLC (“UniTek”), and UniTek
Global Services, Inc (“UGS”).
Also pending are motions to seal
filed by Defendants and Plaintiff Jeffry Butler.
and 270).
The issues have been fully briefed and the court now
rules, no hearing being deemed necessary.
For
the
(ECF Nos. 265
following
reasons,
Defendants’
Local Rule 105.6.
motion
for
summary
judgment, and motion to seal will be granted in part and denied
in part.
I.
Plaintiff Butler’s motion to seal will be denied.
Background
Defendant
DirectSAT,
a
subsidiary
of
UniTek
and
UGS,
provides satellite installation services to DirecTV customers
throughout
the
country.
Plaintiff
Jeffry
Butler
(“Plaintiff
Butler” or “Butler”) is a technician who previously installed,
upgraded, and serviced DirecTV equipment at customer locations
in Maryland, Virginia, and the District of Columbia.1
classified
Butler’s
position
state wage and hour laws.
as
non-exempt
under
Defendants
federal
and
Butler began working for Defendants
as a technician in October 2007 and held this position until
July 20, 2008, when he was promoted to warehouse manager.
He
typically worked six or seven days per week.
Technicians were paid pursuant to a “job rate” or “piece
rate” system.
Technicians would be given assignments at the
beginning of the day, go out into the field and complete those
assignments, report back as to the work performed, and be paid
based on credits accounting for quantity and type of work, as
opposed
to
an
hourly
wage.2
Technicians
were
instructed
1
to
This case originally had two named Plaintiffs: Jeffry
Butler and Charles N. Dorsey. In June 2012, Plaintiffs moved to
withdraw Mr. Dorsey as a named Plaintiff, explaining that his
inactivity suggested that he had abandoned the litigation. (ECF
No. 82). The motion was granted on August 7, 2012 (ECF No. 94),
leaving Mr. Butler as the only named Plaintiff.
2
Federal regulations explain the piece rate system:
When an employee is employed on a piece-rate
basis, the regular hourly rate of pay is
computed by adding together total earnings
for the workweek from piece rates and all
other sources (such as production bonuses)
and any sums paid for waiting time or other
hours worked (except statutory exclusions).
This sum is then divided by the number of
hours worked in the week for which such
compensation
was
paid,
to
yield
the
pieceworker’s “regular rate” for that week.
2
clock-in when they arrived at their first job-site and clock-out
when they left their last job-site of the day.
Plaintiff Butler
alleges that he regularly worked more than forty hours per week
without
proper
overtime
compensation
and,
furthermore,
was
encouraged by Defendants to begin work before the start of his
route and continue working after completing his last work order,
thereby performing work without being paid.
This alleged off-
the-clock work included receiving work orders at home, mapping
out
his
route,
unloading
preparing
equipment
from
satellite
his
dishes,
company
and
and
Butler
vehicle.
loading
also
alleges that Defendants had a uniform policy and practice to
encourage unpaid work and deny earned overtime.
On October 4, 2010, Plaintiff Butler brought suit against
Defendants alleging violations of the Fair Labor Standards Act
(“FLSA”) (Count I), the Maryland Wage and Hour Law (“MWHL”)
(Count
II),
the
Maryland
Wage
Payment
and
Collection
Law
(“MWPCL”) (Count III), and the District of Columbia Minimum Wage
Law (“DCMWL”) (Count IV).
Butler
sought
to
(ECF No. 1).
represent
a
As to the FLSA claim,
collective
of
all
technicians
For
overtime
work
the
pieceworker
is
entitled to be paid, in addition to the
total weekly earnings at this regular rate
for all hours worked, a sum equivalent to
one-half this regular rate of pay multiplied
by the number of hours worked in excess of
40 in the week.
29 C.F.R. § 778.111(a).
3
employed by Defendants in Virginia, Maryland, and the District
of Columbia during the applicable statute of limitations period
for unpaid overtime.
similarly
situated
Butler alleges that the collective is
in
that
they
all
had
similar
duties,
performed similar tasks, were subjected to the same requirements
under the FLSA to be paid overtime wages unless specifically
exempted thereunder, were subjected to similar pay plans, were
required to work and did work more than forty hours per week,
and were not paid one and one-half times their regular rate for
overtime worked.
sought
to
employed
As to the Maryland and D.C. law claims, Butler
represent
by
limitations
a
Defendants
period
in
class
comprised
during
the
Maryland
of
all
applicable
and
D.C.,
technicians
statute
of
respectively.
Defendants filed a motion to dismiss and the court, through
Memorandum Opinion and Order dated July 6, 2011, granted in part
Defendants’ motion, dismissing Butler’s MWPCL claim (Count III).3
(ECF Nos. 28 and 29).
Plaintiff Butler has seemingly abandoned
representing a class on his state law claims as he failed to
move
for
deadline.
conditional
certification
(ECF No. 79).
by
the
October
1,
2012
On November 1, 2011, Butler moved for
conditional certification of an FLSA collective action and to
3
On August 26, 2014, Plaintiff Butler filed a motion for
reconsideration regarding the dismissal of his MWPCL claim (ECF
No. 275), which will be addressed in a separate memorandum
opinion.
4
facilitate notice pursuant to 29 U.S.C. § 216(b).
(ECF No. 41).
On April 10, 2012, Plaintiff Butler’s motion was granted and a
collective
consisting
of
all
technicians
based
out
of
Defendants’ Waldorf and Beltsville warehouses during the past
three
years
was
disseminated.
conditionally
certified
(ECF No. 65 and 66).
and
notices
were
At one point, fifty-two
(52) technicians initially declared their desire to be opt-in
Plaintiffs, but many opt-in Plaintiffs have been dismissed for a
variety of reasons, leaving Mr. Butler as the named Plaintiff
and twenty-five (25) others as opt-in Plaintiffs (collectively
“Plaintiffs”).
On May 12, 2014, Defendants filed a motion for summary
judgment as to the only named Plaintiff Jeffry Butler’s claims.
(ECF No. 257).
Butler filed an opposition on July 16, 2014 (ECF
No. 268), to which Defendants replied on August 15, 2014 (ECF
No. 273).
The parties each filed unopposed motions to seal
certain exhibits attached to their filings.
(ECF Nos. 265 and
270).
II.
Motion for Summary Judgment
A.
Standard of Review
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party
is
entitled
to
judgment
as
a
matter
of
law.
See
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
5
(1986);
Anderson
v.
Liberty
Lobby,
Inc.,
477
U.S.
(1986).
The moving party bears the burden of showing that there
is no genuine dispute as to any material fact.
242,
250
No genuine
dispute of material fact exists, however, if the nonmoving party
fails to make a sufficient showing on an essential element of
his or her case as to which he or she would have the burden of
proof.
Celotex, 477 U.S. at 322–23.
Therefore, on those issues
on which the nonmoving party has the burden of proof, it is his
or her responsibility to confront the summary judgment motion
with an affidavit or other similar evidence showing that there
is a genuine dispute for trial.
In Anderson v. Liberty Lobby, Inc., the Supreme Court of
the United States explained that, in considering a motion for
summary judgment, the “judge’s function is not himself to weigh
the
evidence
and
determine
the
truth
of
the
matter
determine whether there is a genuine issue for trial.”
at 249 (1986).
the
evidence
is
but
to
477 U.S.
A dispute about a material fact is genuine “if
such
that
a
reasonable
verdict for the nonmoving party.”
jury
Id. at 248.
could
return
a
Thus, “the judge
must ask himself not whether he thinks the evidence unmistakably
favors one side or the other but whether a fair-minded jury
could return a verdict for the [nonmoving party] on the evidence
presented.”
Id. at 252.
6
In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”
Matsushita Elec.
Indus.
574,
Co.
(quoting
v.
Zenith
United
Radio
Corp.,
v.
Diebold,
States
475
U.S.
Inc.,
369
587
U.S.
(1986)
654,
655
(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence
in
support
The mere existence of a “scintilla” of
of
the
non-moving
party’s
case
is
sufficient to preclude an order granting summary judgment.
not
See
Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”
Shin v.
Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,
this
court
has
an
affirmative
obligation
to
prevent
factually unsupported claims and defenses from going to trial.
See
Drewitt
v.
Pratt,
999
F.2d
774,
778–79
(4th
Cir.
1993)
(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987).
B.
Analysis
1.
Statute of Limitations
Defendants first argue that Butler’s claim is barred by the
applicable statute of limitations.
tiered
statute
of
limitations,
depending
culpability a plaintiff can prove.
7
The FLSA provides for a twoon
the
standard
29 U.S.C. § 255(a).
of
By
default, a plaintiff must commence an FLSA action within two
years of the date the cause of action accrued.
If Butler can
prove a “willful violation” of the FLSA, however, the period to
commence an FLSA cause of action is extended to three years.
Id.
In
his
answers
to
Defendants’
interrogatories,
Butler
states that Defendants employed him as a technician from August
2007 to July 20, 2008.4
(ECF No. 264).
Thus, the outer limits
of his FLSA claim extend to July 20, 2010, or to July 20, 2011,
if he can prove willfulness.
October 2010.
Butler filed his complaint in
Defendants contend, however, that because Butler
is bringing a collective action, the statute of limitations did
not
toll
until
collective
he
action,
filed
a
despite
consent
the
form
fact
opting-in
that
he
is
to
a
the
named
Plaintiff.
At
first
formalistic,
glance,
but
it
repeatedly
in
cannot
be
[29
U.S.C.
interpreted
plaintiffs
Defendants’
unnamed,
to
limitations.”
WMN-10-2336,
an
file
FLSA
denied
collective
written
argument
consents
§]
that
256
action,
to
seems
“[c]ourts
as
have
requiring
whether
toll
needlessly
the
all
named
or
statute
of
Faust v. Comcast Cable Commc’ns Mgmt., LLC, No.
2013
WL
5587291,
at
4
*3
(D.Md.
Oct.
9,
2013).
Butler worked as a warehouse manager from July 20, 2008 to
his termination in September 2009.
He does not claim that any
FLSA violations stemmed from his time as a warehouse manager.
8
Indeed,
the
United
States
Court
of
Appeals
for
the
Fourth
Circuit noted, albeit in an unpublished opinion, that “[c]ase
authority has interpreted the statutory sections as requiring
all plaintiffs in a collective action under the FLSA to file
written consents for statute of limitations purposes. . . .
[S]igned consents filed after the filing of the complaint do not
relate back to the date the complaint was filed.”
In re Food
Lion, Inc., 151 F.3d 1029, 1998 WL 322682, at *13 (4th Cir. June
4, 1998) (unpublished table decision).
These holdings are based
on the precise language of the FLSA, which states that “[n]o
employee shall be a party plaintiff to a [collective] action
unless he gives his consent in writing to become such a party
and such consent is filed in the court in which such action is
brought.”
29 U.S.C. § 216(b); see also id. § 256 (stating that
a collective action is commenced on the date on which complaint
is filed if named plaintiff filed his written consent to become
a party plaintiff or, if that situation does not exist, the
subsequent
court).5
date
on
which
written
consent
is
filed
with
the
Defendants contend that because Butler never filed a
consent form and more than three years have passed since the
5
The situation is different for an individual action, even
one with several plaintiffs. In individual actions, there is no
need for consents to be filed and the action is deemed commenced
when the complaint is filed. See Food Lion, 1998 WL 322682, at
*13.
9
last alleged wrongful action, he cannot bring an FLSA claim on
behalf of a collective.
In his opposition, Butler does not dispute the overarching
legal
principle
that
every
plaintiff
to
an
FLSA
collective
action, even named plaintiffs, must file a written consent to be
a party.
Nor does he contend that he has ever filed a formal
consent form.
Instead, Butler argues that his verified answers
to interrogatories and signed declaration provide the necessary
consent to opt-in.
In Faust, Judge Nickerson collected what authority there is
on
the
issue
of
what
form
a
consent
to
participate
collective action can take:
The FLSA requires only that a plaintiff give
consent, to be filed with the court, in
writing. 29 U.S.C. § 216(b). “While it is
clear that some document in addition to the
complaint must be filed, it is not clear
what form the written consent must take,
especially when the alleged party plaintiff
is a named plaintiff.”
D’Antuono v. C & G
of Groton, Inc., No. 3:11cv33 (MRK), 2012 WL
1188197, at *2 (D.Conn. Apr. 9, 2012).
Courts have generally shown “considerable
flexibility” with respect to the form of
consent, Manning v. Gold Belt Falcon, LLC,
817
F.Supp.2d
451,
454
(D.N.J.
2011),
requiring only that “the signed document
verif[y] the complaint, indicate[] a desire
to have legal action taken to protect the
party’s rights, or state[] a desire to
become a party plaintiff.”
Perkins v. S.
New England Tel. Co., No. 3:07-cv-967, 2009
WL 3754097, at *3 n.2 (D.Conn. Nov. 4,
2009).
10
in
a
Faust, 2013 WL 5587291, at *5 (alterations in original).
Butler
filed his signed answers to interrogatories on October 31, 2011,
and his declaration in support of conditional certification on
November 1, 2011.
Butler’s
sufficient
litigation
interrogatory
to
plaintiff.
(ECF Nos. 257-4 and 257-5).
constitute
answers
written
and
consent
declaration
to
be
a
are
party
The documents refer to the facts underlying the
and
express
his
applied to all technicians.
view
that
the
alleged
practices
Furthermore, the signed documents
filed by Butler are similar to those accepted as sufficient in
Faust.
See 2013 WL 5587291, at *6.
Defendants also argue that even accepting these documents
as
Butler’s
written
consent
that
tolls
the
statute
of
limitations, none of the alleged wrongdoing falls within the
three-year statute of limitations.
Butler was last a technician
on July 20, 2008, but he did not constructively opt-in until
October 31, 2011, more than thirty-nine months later, and three
months
after
the
three-year
statute
of
limitations
ended.
Consequently, they contend that Butler’s claim is time-barred
because it was filed outside the three-year limitations period.
In
response,
Butler
argues
that
Defendants
overlook
a
critical fact: he opted-in to an identical FLSA case against
these same Defendants in the United States District Court for
the Western District of Wisconsin: Espenscheid v. DirectSAT USA,
11
LLC, et al.
As the undersigned previously noted, the defendants
are the same in both cases and there is substantial overlap in
the claims.
Butler v. DirectSat USA, LLC, 800 F.Supp.2d 662,
666 (D.Md. 2011).
Butler filed his written consent in the other
action on July 28, 2010 and opted-out on January 12, 2011.6
He
argues that his FLSA statute of limitations equitably should be
tolled for the 168 days he was a plaintiff in Espenscheid.
“The statute of limitations for a plaintiff in a collective
action is tolled after the plaintiff has filed a consent to opt
in to the collective action, and begins to run again if the
court later decertifies the collective action.”
Green v. Harbor
Freight Tools USA, Inc., 888 F.Supp.2d 1088, 1105 (D.Kan. 2012).
Where Defendants are the same and there is substantial overlap
between the claims, tolling is sensible given that “the opt-in
individual could have initiated his or her own action . . .
[a]nd Defendants are not prejudiced because Defendants were on
notice of the potential claims at the point that the individuals
opted
in.”
(MJD/AJB),
Burch
2010
WL
v.
Qwest
529427,
at
Commc’ns
*5
Int’l,
(D.Minn.
No.
Feb.
4,
06-3525
2010).
Defendants argue that Butler has taken inconsistent positions on
whether the claims in Espenscheid and this case are the same.
6
The Espenscheid case was not decertified until May 23,
2011. Defendants have taken the position that Mr. Butler’s opt
out notice was ineffective, which would mean that he remained a
plaintiff in that case until decertification several months
later.
12
The cases are sufficiently similar, however, so that the time a
plaintiff spent as a plaintiff in Espenscheid should not count
as part of the statute of limitations period.
The time that
Butler was an opt-in party in Espenscheid will toll the statute
of
limitations
for
this
case.
After
accounting
for
the
minimally applicable 168 day tolling period, Butler’s statute of
limitations
period
is
approximately
forty-one
and
one-half
months (three years and 168 days), which extends the limitations
period back to May 16, 2008 (three years and 168 days prior to
October
31,
2011).
Because
Butler
was
a
technician
—
and
subjected to policies allegedly violative of the FLSA — through
July 20, 2008, he has viable FLSA claims for the period between
May 16, 2008 and to July 20, 2008, provided he can extend the
FLSA’s
statute
of
limitations
to
three
years
by
proving
willfulness.
Defendants next argue that, even accepting Butler’s version
of the limitations period, his claim is untimely unless he can
prove willfulness, which he cannot.
Butler does not dispute
that there is no scenario by which he falls within the normal
two-year statute of limitations.
Therefore, the only way his
claim is timely is to extend the statute of limitations to three
years by proving that Defendants committed willful violations of
the FLSA.
To establish willfulness, Butler must show that “the
employer either knew or showed reckless disregard for the matter
13
of
whether
its
conduct
was
prohibited
by
the
[FLSA].”
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
The
Supreme Court noted that “willful” is considered synonymous with
“deliberate” and “intentional.”
Id.
“Mere negligence on the
part of the employer with regard to compliance with the FLSA is
not sufficient to prove willfulness.”
Gionfriddo v. Jason Zink,
LLC, 769 F.Supp.2d 880, 890 (D.Md. 2011); see also Desmond v.
PNGI Charles Town Gaming, LLC, 630 F.3d 351, 358 (4th Cir. 2011)
(“Negligent conduct is insufficient to show willfulness.”).
employee
bears
violation.
the
burden
of
proof
when
alleging
a
The
willful
Desmond, 630 F.3d at 358.
Butler contends that willfulness is a question of fact for
the
factfinder
and
the
record
contains
sufficient
evidence
pertaining to Defendants’ willfulness, including:
the
deposition
testimony
of
its
own
management personnel, the declaration of its
General Manager Walter Hanson, time records,
pay stubs, and [Butler’s] own testimony
showing
[Defendants’]
undisputed
policy
requiring pre- and post-shift work, but
prohibiting [Butler] from recording such
integral and indispensable pre- and postshift
activities
on
[his]
timesheets.
Additionally, Mr. Butler testified that
company officials directed him not to record
all of the time worked, which meant [he was]
only supposed to record the time worked from
arriving on site at [his] first job until
completing [his] last job of the day.
(ECF No. 268, at 17).
Mr. Hanson declares that he was the
General Manger for DirectSAT from 2005 until January 31, 2010,
14
overseeing
Virginia.
approximately
110
technicians
in
Maryland
and
He states that “[d]uring the first couple of years of
my employment technicians were instructed not to record more
than 40 hours per week on their timesheets.”
7).
Mr.
(ECF No. 268-5 ¶
Mr. Hanson also stated that later, during a meeting with
Dan
Yannantuano,
DirectSAT’s
President,
technicians
were
told that it was permissible to exceed 40 hours per week as long
as they maintained a production rate of $15/hour or higher.
He
asserts that one way to maintain this production rate was to
underreport time worked:
maintain
before
a
higher
arriving
“Technicians were trained they could
production
at
their
completing their last job.”
rate
first
by
excluding
job
and
(Id. ¶¶ 8-9).
time
time
worked
worked
after
A better production
rate gave a technician a higher ranking, which translated to
higher
pay
per
job,
while
technicians
with
lower
production
rates were subject to discipline including termination.
Mr.
Hanson declared that technicians were not paid for all time
worked,
and
regularly
performed
work
before
and
after
their
first and last job, including: preparing satellite dishes at
home;
loading
and
unloading
equipment;
attending
weekly
meetings; reading emails listing job assignments for the next
day;
looking
up
directions
and
planning
routes
to
complete
installations for the next work day; pre-calling customers; and
washing and maintaining their company vehicles.
15
(Id. ¶¶ 10-11).
Butler testified that he was told separately by Mr. Hanson and
Mr. Rob Green, another DirectSAT supervisor, that technicians
could not record more than 40 hours per week.
(ECF No. 268-3,
at 30, 34, Trans. 113:4-24, 126:16 - 127:5).
In a declaration,
Butler
weekly
states
that
during
training
and
meetings,
DirectSAT directed him and other technicians not to record all
the actual time spent working, but to record production time
only, which consisted of their start time upon arrival at the
first job and their end time after completing the last job of
the
day.
Butler
DirectSAT’s
production
echoes
practices
rates
and
of
Mr.
Hanson’s
rewarding
punishing
testimony
technicians
those
with
low
concerning
with
high
rates,
and
encouraging technicians to underreport time to present better
production rates.
DirectSAT
caused
(ECF No. 268-11 ¶ 10).
him
to
work
off
the
He also states that
clock
by
performing
a
variety of tasks before and after his official start and end
times.
Butler estimates that he worked off the clock an average
of ten to twenty hours per week.
(Id. ¶ 12).
Butler has
presented sufficient evidence to create a genuine dispute of
fact that Defendants’ alleged FLSA violations were willful.7
7
As further evidence of willfulness, Butler points to the
testimony of Mr. Ken Hildibrand and Mr. Joseph Harley.
Hildibrand and Harley, both DirectSAT supervisors, assumed their
positions after Butler had left his technician position, with
Mr. Hildibrand becoming a General Manager in December 2009, and
Mr. Harley becoming a supervisor during the summer 2010.
(ECF
16
2.
Defendants’ Knowledge of Butler’s Overtime Work
“In order to be liable for overtime wages under the FLSA,
an employer must have ‘knowledge, either actual or constructive
of [that] overtime work.’”
Bailey v. Cnty. of Georgetown, 94
F.3d 152, 157 (4th Cir. 1996) (quoting Davis v. Food Lion, 792
F.2d 1274, 1276 (4th Cir. 1986).
to
show
that
constructive,
Id.
Defendants
that
he
was
had
Thus, the burden is on Butler
knowledge,
working
either
unrecorded
actual
overtime
or
hours.
Decisions from the Fourth Circuit and this court have held
that evidence of occasional after-hours work is not sufficient
to raise a genuine dispute of material fact that the employer
was on notice of the employee’s consistent overtime work for a
long period of time.
See Bailey, 94 F.3d at 157; Pforr v. Food
Lion Inc., 851 F.2d 106, 109 (4th Cir. 1988) (noting that it was
inappropriate for the district court to infer knowledge of the
employee’s
1350
claimed
overtime
hours
from
evidence
that
supervisor knew employee worked a couple of times off-the-clock,
absent
some
evidence
of
employer’s
pattern
or
practice
of
No. 268-6, at 4, Trans. 7:20-21, 9:21-24; No. 268-7, at 7:1-12).
Additionally, in an attempt to demonstrate Defendants’ policy of
starting and ending the work day at the technician’s arrival at
his first job and departure from his last job, Butler attaches a
document titled “Paycheck Verification Procedure” that states
the policy as Butler represents it.
But this document is of
little utility for Butler’s claim, as it is dated October 7,
2011 - over two years after Butler stopped being a technician and is signed and acknowledged by Mr. Lionel Murray, an opt-in
Plaintiff. (ECF No. 269-2).
17
acquiescence to off-the-clock work); Caseres v. S & R Mgmt. Co.,
LLC, No. 12-cv-01358-AW, 2013 WL 4010894, at *5 (D.Md. Aug. 5,
2013)
(noting
that
plaintiff’s
single
conversation
with
co-
worker and a supervisor’s occasional observance of him working
after
the
day’s
end
were
insufficient
to
create
a
genuine
dispute that the employer was on notice of nearly three years of
regular
overtime
work);
Darrikhuma
v.
Southland
Corp.,
975
F.Supp. 778, 784 n.10 (D.Md. 1997) (“Plaintiff alleges that a
number of other individuals saw him work overtime.
Because this
assertion is unsupported and vague as to whether any of those
persons knew that Plaintiff worked off-the-clock hours, it must
also be rejected.”).
The crux of Defendants’ argument is that employees had an
established method for reporting time worked and disputing any
payroll
issues,
but
Butler
generally
failed
to
follow
those
procedures and, when he did, the issue was promptly resolved in
his favor.
They point to the employee handbook which states
that all overtime hours worked will be compensated in accordance
with state and federal law provided it is authorized in advance
by the employee’s supervisor.
13-14).
(ECF No. 261, at 27; No. 262, at
The President of DirectSAT testified that “[w]e have a
lot of overtime situations.
We pay a lot of overtime.”
No. 257-11, at 17, Trans. 68:4-6).
culture
they
established
of
Defendants also point to the
encouraging
18
(ECF
complaints
regarding
perceived wrongful practices, including:
telling employees that
they
to
should
report
unethical
behavior
their
supervisor,
setting up a complaint procedure and a method for disputing job
payments.
(See ECF No. 261, at 14, 16; ECF No. 262, at 15).
Defendants state that Butler testified that he read the employee
handbook
(ECF
No.
257-3,
at
67,
Trans.
101:5-10),
which
corroborated by acknowledgement receipts signed by Butler.
Nos. 257-9 and 257-10).
is
(ECF
Furthermore, Defendants draw attention
to Butler’s timesheets, which illustrate numerous instances when
he reported, and was paid for, overtime.
260).
(ECF Nos. 259 and
He also testified that when he worked more than forty
hours, he recorded those hours (ECF No. 257-3, at 77, Trans.
114:12-18); he stated that he performed some off-the-clock work
on his own, and not at the behest of Defendants (id. at 89,
Trans. 133:12-18).
He also testified that he could not recall
ever calling the Human Resources Department to complain about
not being paid properly.
(Id. at 82, Trans. 119:8 - 120:5).
Defendants rely principally on White v. Baptist Memorial
Health Care Corporation, 699 F.3d 869 (6th Cir. 2012), for their
argument
that
Butler’s
failure
to
follow
DirectSAT’s
time
reporting procedures prevented DirectSAT from learning about its
alleged FLSA violations.
In White, the United States Court of
Appeals for the Sixth Circuit, citing prior decisions from the
Fifth, Eighth, and Ninth Circuits, held that “if an employer
19
establishes
a
reasonable
process
for
an
employee
to
report
uncompensated work time the employer is not liable for nonpayment
if
the
employee
fails
to
follow
the
established
process,” because the employee has prevented the employer “from
knowing its obligation to compensate the employee and thwarts
the employer’s ability to comply with the FLSA.”
699 F.3d at
876 (citing Hertz v. Woodbury Cnty., 566 F.3d 775 (8th
Cir.
2009); Newton v. City of Henderson, 47 F.3d 746 (5th Cir. 1995);
Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413 (9th
Cir.
1981)).
The
employer
in
White
had
a
procedure
for
employees to claim compensation for interrupted meal breaks and
other payroll errors.
the
plaintiff
compensated.
in
The evidence demonstrated that each time
White
followed
those
Accordingly, the court in
procedures,
White
she
was
held that the
plaintiff could not be compensated for interrupted meal breaks
that she never reported to her supervisors.
The most she did
was tell them that she was not getting her meal breaks, but she
never told them that she was not being compensated for those
missed breaks.
Id.
Here, Defendants are making what is in essence an equitable
estoppel argument: i.e., Butler cannot assert claims for unpaid
overtime because he did not previously report overtime work or
dispute his pay using DirectSAT’s internal procedures.
Judge Motz recently noted:
20
But as
[n]either this court nor the Fourth Circuit
. . . has held that an FLSA claimant may be
estopped from pressing a claim to recover
unpaid overtime compensation merely because
the claimant did not comply with the
employer’s
policies
requiring
regular
reporting of overtime.
Rather an FLSA
claimant seeking unpaid overtime wages needs
only to establish that the employer had
either actual or constructive knowledge that
the employee was performing overtime work.
Bailey, 94 F.3d at 157; see also 29 C.F.R. §
785.11.
Smith v. ABC Training Ctr. of Md., Inc., No. JFM-13-306, 2013 WL
3984630, at *9 (D.Md. Aug. 1, 2013).
Judge Motz acknowledged
that contrary requirements have been adopted by some circuits
(citing White), but pointed to the fact that the Second Circuit
has held otherwise.
Id. at *10 (citing Holzapfel v. Town of
Newburgh, 145 F.3d 516, 524 (2d Cir. 1998) (“[O]nce an employer
knows
or
has
reason
to
know
that
an
employee
is
working
overtime, it cannot deny compensation even where the employee
fails to claim overtime hours.”)); see also White v. Wash. Gas,
No. DKC 2003-3618, 2005 WL 544733, at *5 (D.Md. Mar. 4, 2005)
(quoting Holzapfel for the same principle); Reich v. Dep’t of
Conservation & Natural Res., 28 F.3d 1076, 1082 (11th Cir. 1994)
(noting
that
circumstances
knowledge
[of
“a
.
.
court
.
were
overtime
need
such
hours
only
that
being
inquire
the
whether
employer
worked]
or
either
else
had
the
had
the
opportunity through reasonable diligence to acquire knowledge”
(citation
omitted;
alternations
21
and
emphasis
in
original)).
Furthermore,
estoppel
report
even
defense
those
have
overtime
courts
that
disavowed
work
when
recognize
the
the
employee’s
employer
an
equitable
obligation
had
actual
to
or
constructive knowledge that the employee was working overtime.
Smith, 2013 WL 3984630, at *10 (citing Newton, 47 F.3d at 74849; White, 699 F.3d at 876-77).
[his]
unpaid
overtime
receive
overtime,
within
the
overtime
Consequently, “[t]o recover
[Butler]
must
limitations
compensation,
prove
period,
[was]
that
[was]
not
he
worked
eligible
compensated
for
to
the
overtime that [he] worked, and that [Defendants] had actual or
constructive knowledge that [he was] working overtime.
need
not
allege
or
establish
compliance
with
[Butler]
[Defendants’]
internal reporting requirements if [he] otherwise can prove that
[Defendants] had knowledge of [his] overtime.”
Id. (internal
citation omitted).
The evidence on the record creates a genuine dispute of
material
fact
as
to
whether
Defendants
had
constructive knowledge of Butler’s overtime work.
actual
or
Defendants
had a practice of sending him work assignments before the start
of
his
shift
that
he
had
to
read
and
map
out,
along
with
requiring him to pre-call customers before arriving at his first
assignment.
Additionally,
there
was
a
company
policy
that
technicians unload their vehicles at the end of the day and
reload them at the start of the day.
22
Butler and his supervisor
Mr. Hanson testified that management instructed technicians not
to record more than forty hours per week and encouraged them to
underreport their time to appear more productive.
This is not a
situation where the employer did not have policies requiring
off-the-clock work and the employee did not report any overtime
on his timesheets, thereby keeping the employer in the dark as
to the employee’s activities.
See Caseres, 2013 WL 4010894, at
*5; White, 2005 WL 544733, at *5; Kellar v. Summit Seating Inc.,
664 F.3d 169, 177 (7th Cir. 2011) (“[T]he FLSA stops short of
requiring the employer to pay for work it did not know about,
and had no reason to know about.”).8
3.
Compensability of Butler’s Off-the-Clock Work
Butler contends that he was required to perform numerous
tasks
off-the-clock
Defendants
argue
that
for
the
Defendants
tasks
cited
without
by
compensation.
Butler
were
not
compensable as a matter of law and, therefore, he does not have
a claim.
8
Defendants also make much of Butler’s testimony that his
start and end times were accurate as evidence that he actually
got paid for all time worked. (See, e.g., ECF No. 257-3, at 55
and 63, Trans. 81:7-16, 92:4-5).
When taking the evidence in
the light most favorable to Butler, a reasonable interpretation
of this testimony is that he was confirming that the times on
his timesheet were accurate as to the start and end times as
dictated by Defendants; i.e., the arrival at the first job of
the day and departure from the last job.
What Butler is
alleging is that Defendants’ policy was wrongful: the start and
end of his compensable time should have encompassed the work he
performed before and after his first and last jobs of the day.
23
The
FLSA
provides
that
employers
shall
pay
employees
overtime for all hours worked in a week in excess of forty.
U.S.C. § 207.
29
This requirement is applicable unless the time at
issue is “de minimis.”
See Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 692 (1946).
“The term ‘work’ is not defined in
the FLSA, and courts are left to determine the meaning of the
term.”
Cir.
Perez v. Mountaire Farms, Inc., 650 F.3d 350, 363 (4th
2011)
(citing
IBP,
Inc.
v.
Alvarez,
546
U.S.
21,
25
(2005)).
The Portal-to-Portal Act, 29 U.S.C. §§ 251-62, amended the
FLSA and relieves employers of the obligation to compensate an
employee for:
(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 [the] 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.
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 such vehicle for
travel is within the normal commuting area
24
for the employer’s business or establishment
and the use of the employer’s vehicle is
subject to an agreement on the part of the
employer and the employee or representative
of such employee.
29 U.S.C. § 254(a).
Preliminary and postliminary activities are
compensable, however, if they are an “integral and indispensable
part
of
Mitchell,
the
[employee’s]
350
indispensable”
U.S.
principal
247,
activity
is
256
activities.”
(1956).
itself
purposes of the Portal-to-Portal Act.
a
An
Steiner
v.
“integral
and
activity
for
IBP, 546 U.S. at 37.
The
principal
Fourth Circuit has adopted the Ninth Circuit’s formulation of
the term, holding that an act is “integral and indispensable” to
the employer’s principal activity when it is:
“(1) necessary to
the principal work performed; and (2) primarily benefit[s] the
employer.
An act is necessary to a principal activity if that
act is required by law, by company policy, or by the nature of
the work performed.”
Perez, 650 F.3d at 366 (citing Alvarez v.
IBP, Inc., 339 F.3d 894, 902-03 (9th Cir. 2003)).
a.
Reading Emails and Planning Routes to Job Assignments
Butler contends that he worked off-the-clock when he was
required to read emails listing his work assignments for the day
and, from those assignments, map out that day’s route.
257-4 ¶ 12(d) and (e); ECF No. 257-5, at 10)).
(ECF No.
Defendants argue
that Butler’s claim is precluded by the summary judgment ruling
in Espenscheid, of which Butler was an opt-in plaintiff (See ECF
25
No. 257-24), or, in the alternative, persuasive legal authority
counsels
in
favor
of
holding
that
these
tasks
are
not
compensable.
In Espenscheid, DirectSAT sought summary judgment on the
issue of whether the time spent by technicians reading emails
and mapping routes is barred by the Portal-to-Portal Act.
The
court relied on two cases and held that “[r]eceiving and mapping
routes . . . are tasks inherently related to plaintiffs’ commute
and not related uniquely to the activities of installing and
upgrading cable services.
order
to
tasks.”
reach
his
or
her
Every employee who must drive in
work
site
must
perform
the
same
Espenscheid v. DirectSat USA, LLC, No. 09-cv-625-bbc,
2011 WL 10069108, at *23 (W.D.Wis. Apr. 11, 2011) (citing Rutti
v. Lojack Corp., 596 F.3d 1046 (9th Cir. 2010); Ahle v. Veracity
Research Co., 738 F.Supp.2d 896 (D.Minn. 2010)).
Rutti involved
a technician who installed and repaired vehicle recovery systems
in vehicles.
Most, if not all, of the installations and repairs
were done at the clients’ locations.
The plaintiff in Rutti was
paid on an hourly basis starting when he arrived at his first
job location and ending when he completed his final job of the
day.
He
sought
compensation
for
“off-the-clock”
activities
performed before he left for his first job, including time spent
in the morning “receiving assignments for the day, mapping his
routes to the assignments, and prioritizing the jobs.
26
This
included time spent logging on to a handheld computer device
provided by [his employer] that informed him of his jobs for the
day.”
596 F.3d at 1049.
The Ninth Circuit held that these
activities were not “integral to his principal activities,” as
they are related to his commute.
Ahle,
the
United
States
District
Id. at 1057.
Court
for
Similarly, in
the
District
of
Minnesota found that the time spent by a private investigator
mapping directions to the subject of an investigation is not a
principal
activities.
activity
or
an
activity
integral
to
principal
738 F.Supp.2d at 916 (citing Rutti, 590 F.3d at
1057).
Butler counters that “the facts and circumstances here, as
well as the legal arguments made, are more robust than those in
Espenscheid and require a different result.”
24).
(ECF No. 268, at
Specifically, he states that he was required to login to
his computer, open work emails that detailed his assignments,
review those assignments to determine the type of job, necessary
equipment and anticipated length of such a job.
Additionally,
Butler argues that unlike normal employees who travel to the
same worksite every day, DirectSAT technicians were required to
map out directions to their field assignments, which were always
changing.
Butler’s arguments are unconvincing.
his
deposition
testimony,
where
27
he
He cites as support
testifies
that
he
would
receive emails to his personal account the evening before the
next workday.
He would print them off, prioritize the jobs, and
determine whether or not he needed to go into the warehouse for
equipment.
(See ECF No. 268-3, at 16-17, Trans. 54:3 - 61:7).
Butler’s situation is very similar — if not identical — to the
employees’ situations in Espenscheid, Rutti, and Ahle.
Butler
does not cite any cases that hold otherwise and, if anything,
recent
decisions
have
confirmed
Defendants’
position.
See
Chambers v. Sears Roebuck and Co., 428 F.App’x 400, 413 (5th Cir.
2011)
(finding
assignments
on
that
time
spent
home
computer
by
was
a
technician
incidental
to
downloading
technician’s
commute (citing H.R. Rep. No. 104-585, at 5 (1996) (noting that
“communication
between
the
employee
and
employer
to
receive
assignments” was incident to the use of an employer’s vehicle
for commuting))); Colella v. City of New York, 986 F.Supp.2d 320
(S.D.N.Y.
2013)
maintenance
(time
division
spent
by
speaking
employees
with
of
their
city’s
building
supervisor
about
scheduling matters while commuting between their homes and work
locations
“exempt
were
commute
incidental,
time”).
preliminary,
Consequently,
or
time
postliminary
spent
by
to
Butler
reading emails regarding his next day’s appointments, mapping
out directions, and prioritizing his routes is not compensable
under the FLSA.
28
b.
Performing Vehicle Maintenance
Butler seeks compensation for time spent maintaining his
company vehicle.
Defendants’ vehicle policy provides that the
employee is responsible for safe, overnight parking at his home,
along
with
locking
the
vehicle
and
equipment at the end of the day.
that
the
employee
is
any
tools
and
The policy further provides
responsible
cleanliness of the vehicle.
removing
for
the
(ECF No. 269-3).
maintenance
and
Butler testified
that he washed his van once a week because he was instructed by
the employee handbook and his supervisors that it had to be
clean at all times.
Butler noted that he washed it on one of
his days off and it took him about an hour.
(ECF No. 268-3, at
29, Trans. 107:12 - 108:10).
Defendants argue that, like in Espenscheid, this time is
not compensable because it is incidental to the commute.
The
Espenscheid court held that “vehicle maintenance [is a] task
inherently
related
to
plaintiffs’
commute
and
not
related
uniquely to the activities of installing and upgrading cable
services.
or
her
Every employee who must drive in order to reach his
work
site
must
perform
the
same
tasks.”
2011
WL
10069108, at *23 (citing 29 U.S.C. § 254(a)(1), (2) (neither
“traveling to and from” work nor “activities . . . incidental to
. . . commuting” are compensable under FLSA)).
29
Similar to his arguments concerning his receipt and mapping
of driving routes, Butler argues that his factual circumstances
and legal arguments are more robust and require a different
result than previous cases.
Unlike a normal employee’s commute,
Butler states that as part of his commute he was “required to
inspect his COV or ‘roaming office’ which included shelving,
lock boxes, ladders and other items that were unique to his job
as a technician.
Accordingly, such required work activities
were integral and indispensable to [his] job and therefore not
barred by the Portal-to-Portal Act.”
(ECF No. 268, at 24).
Butler cites no case law to support his argument, and applicable
authority falls firmly on the side of Defendants.
See, e.g.,
Chambers, 428 F.App’x at 420 n.55 (“[R]efueling the service van,
performing vehicle safety inspections, and tidying up the van .
. . are [activities] clearly incidental to the commute under the
[Portal-to-Portal Act] and thus non-compensable[.]”); Smith v.
Aztec Well Servicing Co., 462 F.3d 1274, 1291 (10th Cir. 2006)
(noting
that
time
spent
changing
a
flat
tire,
pushing
the
vehicle out of the mud, or putting chains on tires are all
activities necessary to arrive at work, “nothing more than what
commuters would normally do if their vehicle encountered such
exigencies,” and are therefore preliminary to or postliminary to
the plaintiff’s principal activities); Aiken v. City of Memphis,
190 F.3d 753, 759 (6th Cir. 1999) (“Keeping vehicles clean and
30
scheduling maintenance to be done at the city’s expense are
hardly
arduous
and
precisely
the
sort
of
activities
that
Congress had in mind when it used the phrase ‘incidental to the
use of [the employer’s] vehicle.’” (alteration in original));
Little v. Technical Specialty Prods., LLC, 940 F.Supp.2d 460,
477
(E.D.Tex.
installing
and
2013)
(“Plaintiff’s
servicing
video
principal
camera
systems
activity
on
oil
was
rigs.
Obtaining maintenance or repairs for his truck is a preliminary
or postliminary activity.”); Espinoza v. Cnty. of Fresno, No.
1:07-cv-01145-OWW-SMS, 2011 WL 3359632, at *8 (E.D.Cal. Aug. 3,
2011)
(“The
compensation
cleaning
for
is
and
maintenance
related
to
Plaintiff’s
Plaintiffs
seek
employment
[law
enforcement] only in the attenuated sense that such activities
are necessary to safely operate any automobile.”); Ahle, 738
F.Supp.2d
at
916
(“Cleaning,
maintenance,
and
fueling
of
Plaintiffs’ vehicles before leaving for an investigation do not
constitute
principal
principal
activities
activities
that
started
or
activities
the
work
integral
day.”).
to
Butler
cannot recover for the time he spent maintaining his vehicle.
c.
Attending Meetings
In his complaint, Butler alleges that he attended weekly
meetings without pay.
(ECF No. 1 ¶ 8).
In his declaration, he
states that he worked off-the-clock attending bi-weekly meetings
at DirectSAT’s office.
(ECF No. 257-4 ¶ 12(d)).
31
He later
testified
that
when
he
worked
at
D.C.
South
(the
only
time
period that could possibly fall within the FLSA’s statute of
limitations), there were meetings two to three times a month.
(ECF No. 268-3, at 19, Trans. 68:5-9).
each
meeting
minutes.
lasted
anywhere
from
Butler testified that
fifteen
(Id., at 30, Trans. 111:6-9).
to
thirty
(15-30)
Confusingly, Butler
testified that on days when he attended a meeting, he would
arrive at the warehouse at 7:00 am and would record that arrival
in his time sheet.
(Id. at 19, 30, Trans. 69:9-13, 111:14-16).
Later he acknowledged that he would record the time he spent at
meetings.
Confused, Defendants’ counsel asked:
“You just mean
there was no additional, like, piece rate for that?”
responded:
“Right.
We
didn’t
get
paid
for
being
Butler
there.”
Defendants’ counsel then asked that if the time was recorded,
would Butler have been paid for that time, even if it pushed him
over forty hours for the week.
know.
Butler responded that he did not
(Id. at 36-37, Trans. 137:10 - 138:1).
Defendants do not contend that time spent in meetings is
not
a
primary
activity
of
a
technician,
or
that
it
is
not
integral and indispensable to a primary activity, or that the
work was for a de minimis amount of time.
Rather, they argue
that Butler testified that he recorded the time he spent in
those meetings, which indicates that he was compensated for that
time
and
has
no
FLSA
claim.
Butler’s
32
testimony,
however,
concerning
whether
and
how
he
was
paid
for
time
spent
in
meetings, combined with the declaration of his supervisor Mr.
Hanson,
who
stated
that
technicians
regularly
performed
work
before going on-the-clock, including attending weekly meetings
at DirectSAT’s offices, creates a genuine dispute of material
fact as to whether Butler was compensated for the time he spent
in meetings.
d.
Attending Training
Defendants next contend that Butler cannot recover for time
he spent training.
paid
an
hourly
They argue that Butler testified that he was
rate
during
his
training
period
recorded his time correctly and accurately.
and
that
he
Thus, they maintain
that he admitted there was no issue with his compensation during
this time period.
As an initial matter, nowhere in Butler’s complaint is the
word “training” used.
answers
to
In addition, Butler’s declaration and
interrogatories
do
not
state
unpaid wages for time spent training.
that
he
is
seeking
Finally, no mention of
training is raised in Butler’s opposition to Defendants’ motion
for
summary
testified
overtime
judgment.
that
from
they
weeks
While
are
they
some
seeking
spent
to
of
the
opt-in
recover
training,
Plaintiffs
allegedly
Butler,
the
unpaid
named
Plaintiff in this suit, is not seeking and has not presented
evidence in support of a claim for uncompensated training time.
33
Cf. Koelker v. Mayor & City Council of Cumberland (Md.), 599
F.Supp.2d 624, 629 (D.Md. 2009) (noting that plaintiffs could
not amend their complaint at the summary judgment stage to add
claims
claims
that
were
because
“factually
the
new
discovery).
training
claims
Accordingly,
uncompensated
distinct”
the
from
were
their
other
the
subject
not
FLSA
of
collective
recover
for
Cf.
time.
cannot
Family
Dollar
FLSA
In
re
Litig., 637 F.3d 508, 519 (4th Cir. 2011) (noting that a named
plaintiff whose claim had been dismissed on the merits at the
summary
judgment
plaintiffs
stage
regarding
compensable,
could
not
a
claim).
such
however,
the
fact
that
represent
For
they
other
tasks
were
opt-in
that
done
are
during
training does not bar Plaintiffs’ recovery.9
e.
Building Satellite Dishes at Home
Butler
satellite
is
seeking
dishes
at
compensation
home.
When
for
asked
time
how
spent
often
building
he
built
satellite dishes, Butler testified that he did so on about fifty
percent of the nights per week.
Butler stated that he was not
directed to do this, but that it was encouraged: his supervisors
told him that to increase his efficiency, building satellite
dishes the night before appointments would help greatly.
took him “minutes” to build a single dish.
9
It
The most assembled
For example, time spent pre-calling customers during a
training week could be compensable.
34
dishes
he
could
fit
in
his
company
vehicle
was
five.
He
estimated that to build five would take about thirty minutes.
(ECF No. 268-3, at 35-36, Trans. 130:12-15, 133:12-18, 136:3 137:9).
Defendants do not argue that building satellite dishes is
not integral or indispensable to Butler’s principal activity.
Rather, Defendants argue that summary judgment should be granted
because no one directed Butler to build dishes at home and,
therefore, he cannot prove that Defendants had the knowledge
necessary to establish an FLSA violation.
Defendants’ argument will be rejected.
While there is no
explicit policy requiring technicians to build satellite dishes
at home, Butler testified that a more efficient technician would
have a higher “score,” and a higher score kept the technician
out of trouble with his supervisors.
He also testified that his
supervisor told him that building satellite dishes before going
out in the field (and “on-the-clock”) was a good way to increase
efficiency.
See
Crawford
v.
Lexington-Fayette
Urban
Cnty.
Gov’t, No. 06-299-JBC, 2008 WL 2885230, at *7 n.6 (E.D.Ky. July
22, 2008) (“A fact finder may conclude that while the plaintiffs
are
not
required
to
perform
such
tasks,
there
may
be
an
expectation or unwritten policy that such work be performed.”
(citing
Hill
v.
Muscogee
Cnty.
35
School
Dist.,
No.
4:03-CV-60
(CDL),
2005
WL
3526669,
at
*3
(M.D.Ga.
Dec.
20,
2005)).
Summary judgment as to this task will be denied.
f.
Loading and Unloading the Vehicle
Butler
seeks
compensation
for
time
spent
off-the-clock
loading and unloading equipment from his company vehicle.
At
his deposition, he testified that he was required to load and
unload only two items from his vehicle each night: a “bird dog”
and an inclinometer.
van overnight.
The rest of his equipment stayed in the
(ECF No. 268-3, at 36, Trans. 134:2-18).
He
would bring the “bird dog” and inclinometer inside his home to
charge
them.
He
testified
that
the
employee
handbook
told
technicians to take everything out of the van each night, which
he understood to mean those two items.
He would take the two
items in and out of the vehicle every day.
The “bird dog” was
approximately eight by six inches and weighed less than a pound
and
the
inclinometer
was
weighed less than a pound.
about
as
big
as
a
cell
phone
and
He testified that he did not make an
extra trip to take them to his vehicle in the morning; instead,
he would just stick them in his tool bag.
(Id. at 28, Trans.
102:24 - 105:12).
Defendants
primarily
argue
that
this
work
is
not
compensable because the time spent carrying small items between
one’s home and vehicle constitutes a de minimis amount of time.
For
reasons
discussed
below,
it
36
is
not
appropriate,
when
considering whether an activity is de minimis, to analyze each
activity separately.
Consequently, because Butler alleged that
he performed multiple tasks before work started each morning
that were not compensated, the entirety of that work should be
considered when determining whether Butler’s work effort was de
minimis.
Butler’s effort to seek compensation for this task fails
for a reason other than it being de minimis, however.
There is
no indication that he spent any more time loading and unloading
equipment than would have been spent walking to and from his
vehicle.
of
an
spent
Because walking between one’s home and vehicle is part
employee’s
carrying
noncompensable.
commute,
an
item
and
thus
as
noncompensable,
part
of
that
the
time
commute
is
See Chambers, 428 F.App’x at 418 (“[O]ne cannot
segregate time spent walking to and from the van in the morning
and evening with [the small tool] from merely commuting, which
is
non-compensable.”);
F.Supp.2d
1038,
1053
Donatti
v.
(W.D.Mo.
Charter
2013)
Commc’ns,
(noting
LLC,
that
950
cable
technicians’ task of carrying a handful of small items between
their home and vehicle was noncompensable because it “does not
lengthen the time otherwise required for a technician to walk to
and from the vehicle”).
37
g.
Performing Activities That Defendants Contend Are
De
Minimis
Butler is seeking compensation for time spent each morning:
“pre-calling”
customers
before
going
out
in
the
completing paperwork, both done while off-the-clock.
do
not
contend
that
these
tasks
are
not
field
Defendants
integral
indispensable to a technician’s principal activity.
they
argue
that
this
work
is
de
minimis
and
and
and
Instead,
therefore
not
compensable.
“[T]he de minimis rule precludes employees from recovering
for compensable work ‘[w]hen the matter in issue concerns only a
few seconds or minutes of work beyond the scheduled working
hours.’
According
to
the
Court,
compensation
for
‘[s]plit-
second absurdities’ is not justified by the policy of the FLSA.”
Perez,
650
F.3d
at
372
(quoting
Anderson,
328
U.S.
at
692)
(second and third alterations in original) (internal citation
omitted).
Defendants present separate de minimis arguments for each
of the tasks recounted above.
because
Butler
testified
to
For example, they contend that
making
only
one
pre-call
before
arriving at his first job, and that each call only took a matter
of seconds, the task of pre-calling customers takes a de minimis
amount of time and, therefore, is not compensable.
38
Defendants’ argument depends on each task being evaluated
separately but, as Plaintiff Butler points out, the Espenscheid
court was presented with a similar argument and rejected it,
determining that “in applying the de minimis standard, the tasks
must be evaluated in the aggregate, not separately for each
discrete
activity.”
2011
WL
10069108,
at
*24.
Even
more
relevant to this case is the Fourth Circuit’s decision in Perez.
Faced
with
Defendants,
a
similar
the
Fourth
proposition
Circuit
to
squarely
that
presented
rejected
it,
by
noting
that:
[i]n applying the de minimis rule, we
consider the aggregate amount of time for
which the employees are otherwise legally
entitled to compensation.
See DOL Wage &
Adv. Mem. No. 2006-2 n.1 (May 31, 2006). We
do not, as [defendant] suggests, evaluate
each task or group of tasks separately to
determine if the time period is de minimis.
Adopting
[defendant’s]
approach
would
undermine the purpose of the FLSA by
allowing employers to parcel work into small
groups
of
tasks
that,
when
viewed
separately, always would be considered de
minimis.
Perez, 650 F.3d at 373.
Defendants cite several cases where
courts found each task
de minimis, but those cases involved
situations
task
where
that
was
the
only
task
potentially
eligible for compensation, as opposed to the situation here,
where multiple tasks are at issue.
See Chambers, 428 F.App’x at
418 (finding that logging into the computer, carrying it to the
39
van, plugging it into the van, and carrying it back and plugging
it in at home is incidental to the commute, but even if integral
and indispensable, would not take more than a “minute or so” to
complete); Rutti, 596 F.3d at 1057-58 (finding that preliminary
activities consisted of tasks related to his commute — which
were noncompensable — and paperwork that did not take more than
a minute or so to complete); Singh v. City of New York, 524 F.3d
361, 371 (2d Cir. 2008) (finding that the added commuting time
spent by an inspector carrying inspection documents was “give or
take” ten minutes and therefore de minimis).
Consequently, when determining whether work done off-theclock is de minimis, the court is to consider the aggregate time
spent allegedly working off-the-clock that is compensable under
the
FLSA.
Here,
those
tasks
are
pre-calling
customers
and
filling out paperwork, along with building satellite dishes and
attending meetings.
When conducting a de minimis analysis three
factors are to be considered: “(1) the practical difficulty the
employer would encounter in recording the additional time; (2)
the total amount of compensable time; and (3) the regularity of
the additional work.”
Perez, 650 F.3d at 373.
This analysis
“necessarily requires a factual inquiry that will change on a
case-by-case basis.”
Id. at 373-74.
The details of Butler’s efforts building satellite dishes
and attending meetings are recounted above.
40
In regard to pre-
calling customers, Defendants’ policy required technicians to
call their customers at the beginning of the day to acknowledge
their appointment and give them an estimated time of arrival.
Failure to do so would result in discipline.
Butler
testified
that
he
would
pre-call
(ECF No. 269-6).
all
his
morning
customers, which varied between one and seven customers.
content
of
the
call
varied,
but
would
typically
consist
The
of
confirming with the customer the appointment and the work order.
Each individual call would last a couple of seconds.
He later
testified that he pre-called only his first customer from home,
and then called the second customer once he arrived at the first
house, the third customer from the second house, and so on.
(ECF No. 268-3, at 17-19, Trans. 61:18 — 66:10).
Defendants
argue that Butler’s testimony indicates that he only made one
call
off-the-clock;
all
subsequent
calls
were
made
after
he
arrived at his first job site and his start time had begun, such
that he was on-the-clock.
In regard to paperwork, Butler alleges in his complaint
that
he
completed
(ECF No. 1 ¶ 8).
paperwork
regarding
finished
work
orders.
Butler testified that at home he would put
together his paperwork for that day’s work.
done before dinner, sometimes after.
to do it at a certain time.
Sometimes this was
There was no requirement
The paperwork was the company’s
documentation of the jobs completed, i.e., the “pink copies.”
41
He would gather the papers, staple them, and file them with
Defendants the next time he was at the warehouse.
less than a minute.
This took
(ECF No. 268-3, at 22-23, Trans. 81:24 -
83:17).
The
first
factor
in
the
de
minimis
analysis
is
the
practical difficulty the employer would encounter in recounting
the
additional
time.
Certainly,
as
to
building
satellite
dishes, pre-calling, and paperwork, it would be difficult to
recount given that this work was performed off-site and Butler
has
merely
provided
time
estimates.
“Although
it
may
be
difficult to determine the actual time a technician takes . . .,
it
may
be
possible
average time.”
in
meetings
to
reasonably
determine
Rutti, 596 F.3d at 1059.
should
be
simpler
to
or
estimate
the
The time Butler spent
recount
as
the
meetings
happened at the warehouse and such time may be reflected in the
time sheets.
The second factor in the de minimis analysis is the total
amount of compensable time.
Butler contends that he worked six
days a week (ECF No. 257-4 ¶ 4), and DirectSAT required that:
each day he pre-called at least one customer and did paperwork,
which took no more than a couple of minutes; approximately half
of these days he built satellite dishes after work, which took
at
most
meetings
thirty
that
minutes
lasted
per
a
day;
total
42
and
of
twice
one
a
hour.
month
attended
Making
this
calculation in the light most favorable to Butler, in a given
week he worked at most approximately 125 minutes (2.08 hours)
for which he was uncompensated, or just more than twenty minutes
of off-the-clock work per day.10
Many courts have set a “ten-
minute rule”: compensable activities are rendered noncompensable
when those activities do not exceed a total of ten minutes per
day.
The Fourth Circuit, however, has flatly rejected such a
hard-and-fast rule.
Perez, 650 F.3d at 373.
In Perez, it found
that employees who worked 10.204 minutes of uncompensated work
per day was not de minimis because over the course of a year
that amounts to a full week’s wages.
Id. at 374.
Here, taking
the evidence in the light most favorable to Butler, there is a
genuine dispute as to whether the uncompensated time he worked
is de minimis.
See Rutti, 596 F.3d at 1059 (noting that over an
hour a week of uncompensated time is “a significant amount of
time and money”).
Finally,
the
third
examines
the
completed
paperwork
built
regularity
satellite
and
dishes
factor
of
of
the
pre-called
the
additional
customers
approximately
10
de
every
minimis
work.
analysis
Butler
every
day.
He
other
day,
and
The calculation breaks down into:
15 minutes per week
for meetings (a 30 minute meeting that occurred twice a month) +
90 minutes per week for building satellite dishes (30 minutes
per day x 3 days (every other day in a six-day workweek)) + 20
minutes per week for paperwork and pre-calling customers = 125
minutes per week.
43
attended meetings approximately twice per month.
activities
doffing”
were
case,
not
as
where
regular
the
as
those
employee
is
in
a
required
While these
“donning
to
put
and
on
protective gear each day before going to the workspace, they are
sufficiently regular to survive summary judgment. In sum, Butler
can proceed on his claim that the time he spent pre-calling
customers,
doing
paperwork,
building
satellite
dishes,
and
attending meetings was not properly compensated under the FLSA.
h.
Commuting to the Initial Job Site and from the Final
Job Site of the Day
Butler seeks compensation for the time he spent driving
from his home to his first job of the day, and from his last job
of the day to his home.
Normally, travel from home to work is
not compensable regardless of whether the employee works at a
fixed location or at different job sites.
29 C.F.R. § 785.35.
29 U.S.C. § 254(a);
Butler, however, seeks to proceed under the
“continuous workday” doctrine, where “the compensable workday
begins with the first principal activity of a job and ends with
the employee’s last principal activity.”
363; see also 29 C.F.R. § 790.6(a).
Perez, 650 F.3d at
For example, in IBP, the
Supreme Court held that the time slaughterhouse employees spent
before and after their shifts walking from the locker room —
where they engaged in the principal activities of donning and
doffing their protective gear — to the slaughterhouse floor and
44
back
was
part
of
the
compensable under the FLSA.
continuous
workday
and
therefore
546 U.S. at 37.
Butler contends that pre-calling his customers and loading
and
unloading
tools
from
his
vehicle
were
indispensable
and
integral to a technician’s principal activities and therefore
constitute the start and end of the continuous workday.
Because
time spent driving to the first job and from the last job of the
day
occurred
between
pre-calling
customers
and
loading
and
unloading, Butler contends that it is part of the workday for
which he should be compensated.
discussed
above,
however,
Butler
(ECF No. 268, at 25).
has
not
demonstrated
As
that
loading and unloading his company vehicle is an independent task
separable from his commute and thus, that it is compensable.
Consequently, he is not eligible for compensation for the time
spent driving between his last job and his home at the end of
the day.
The only task remaining that Butler asserts is performed
before
driving
to
his
first
job
is
pre-calling
customers.
Defendants do not contend that this task is not a principal
activity
or
integral
to
a
principal
activity.
Instead,
Defendants argue that Butler’s “continuous workday” theory does
not convert Butler’s standard commuting time into compensable
time, because “there was no requirement that he perform certain
tasks or activities immediately before or after his commute.”
45
(ECF No. 257, at 40) (emphasis in original).
Courts have held
that where the employee engages in a primary activity at home
before his workday, his workday does not extend to the start of
that primary activity, including travel time to his job site, if
the employee is given a large period of time to complete that
activity.
even
For example, in Rutti, the Ninth Circuit found that,
assuming
that
the
employee’s
requirement
to
upload
information on completed jobs constituted a primary activity for
which
he
was
entitled
to
compensation,
the
fact
that
the
employee could perform this task at any time between 7:00 pm and
7:00
am,
precluded
extending
completed the transmission.
his
workday
to
whenever
he
In so holding, the court drew upon
29 C.F.R. § 785.16(a), which provides, in the context of waiting
time, that “[p]eriods during which an employee is completely
relieved from duty and which are long enough to enable him to
use the time effectively for his own purposes are not hours
worked.”
Similarly, in Kuebel v. Black & Decker Inc., 643 F.3d
352, 360-61 (2d Cir. 2011), the Second Circuit found that a
retail
specialist
working
in
the
field
could
not
count
his
travel time as compensable because, even acknowledging that he
performed required tasks at home, the record indicated that:
it might have been necessary to perform
certain activities in the morning, or in the
evening.
It does not indicate that Kuebel
was required to perform them immediately
before leaving home, or immediately after
46
returning home. Indeed, there is nothing in
the
record
to
suggest
that
a
Retail
Specialist could not, for example, wake up
early, check his email, synch his PDA, print
a sales report, and then go to the gym, or
take his kids to school, before driving to
his first Home Depot store of the day.
See also Bettger v. Crossmark, Inc., No. 1:13-CV-2030, 2014 WL
2738536, at *6 (M.D.Pa. June 17, 2014) (noting that plaintiff
“has failed to present any evidence that Crossmark required her
to check e-mail, load her car, or perform other administrative
tasks
immediately
prior
to
driving
to
her
first
retail
location.” (emphasis in original)); Bowman v. Crossmark, Inc.,
No. 3:09-CV-16, 2012 WL 2597875, at *8 (E.D.Tenn. July 5, 2012)
(articulating the same principles); Ahle, 738 F.Supp.2d at 917
(“[T]he undisputed evidence is that Plaintiffs were not required
to perform the activities claimed to be principal activities or
integral to principal activities immediately prior to leaving
for an investigation or immediately after returning home from an
investigation.”).
The Espenscheid court articulated the same
rule, ultimately finding that the plaintiffs — who had moved for
summary judgment — had “not established that [they] performed
their
nonproductive
tasks
immediately
before
and
after
commutes,” but permitting them to do so at trial.
10069108, at *24 (emphasis added).
their
2011 WL
Such a rule makes sense in
the current age where employees often have smart phones and
remote access to workstations.
For example, an employee, before
47
leaving the office at 5:00 pm, is told by his boss that he wants
a draft of the report emailed to him sometime before 11:00 pm
that night.
between
The employee sits down to the complete the report
10:00
principal
pm
and
activity
11:00
for
pm.
which
compensation for one hour.
This
the
work
employee
is
is
certainly
entitled
a
to
It would be a perversion of the
continuous workday doctrine, however, to deem the entire period
— from leaving the office at 5:00 pm to reengaging at 10:00 pm —
as compensable as part of the continuous workday.
In
this
case,
Defendants’
cell
phone
policy
required
technicians to call their customers at the beginning of the day
to acknowledge their appointments.
By 8:30 am, technicians were
supposed to have called each customer on that day’s route to
introduce themselves.
(ECF No. 269-6).
Butler testified that
he pre-called “[f]irst thing in the morning starting about 7.”
Prior to leaving home each morning, he only called his first
customer;
the
remaining
customers
he
called
from
the
field,
starting with the second customer once he arrived at the first
site, the third customer when he arrived at the second site, and
so on.
took
The call Butler placed to his first customer from home
him
Trans.
“seconds”
62:1
-
to
66:10).
complete.
(ECF
Defendants’
No.
policy
268-3,
also
at
required
technician to be at his first job of the day by 8:00 am.
48
18-19,
a
As discussed above, pre-calling customers could be an act
indispensable and integral to Butler’s principal activity.
first
issue
is
whether
Plaintiff
was
immediately before going out on the road.
required
to
The
pre-call
The evidence on both
sides is scant, but taking it in the light most favorable to
Butler, there is a genuine dispute over this issue.
to be at his first job by 8:00 am.
Butler had
There is no testimony as to
how long it took him to drive to his first job of the day.
A
reasonable factfinder could find that to make the call before he
left and still arrive on time for his first job, Butler would
have to call immediately before leaving or, alternatively, call
close enough to his departure, such that he did not effectively
have any time before he departed to use for his own purposes.
The
next
consideration
is
the
expended on this principal activity.
amount
of
time
Butler
He testified that it only
took him seconds to pre-call customers before he left home for
the day.
This small amount of time is de minimis.
Accordingly,
the next question is whether a principal activity that is de
minimis,
done
immediately
before
pre-shift
travel,
could
nevertheless trigger the “continuous workday” rule such that the
technician’s travel time to his first job becomes compensable.
The answer to this inquiry turns on whether deeming an activity
de mimimis affects only the employer’s liability to pay for that
work and not the characterization of the activity (i.e., it is
49
“work”
that
would
otherwise
be
compensable
but
it
is
too
trifling to make the employer pay for it) or, rather, whether a
de minimis activity is not work, such that it cannot count as
the
first
workday.”
principal
activity
that
begins
the
“continuous
In a concurring opinion, Judge Boudin, in a case that
was later consolidated with IBP at the Supreme Court, observed:
One
further
basis
for
resisting
the
Secretary
[of
Labor]
derives
from
yet
another principle from the Supreme Court,
namely, that under certain circumstances
time spent on a de minimis activity that is
not the main activity of the worker should
be disregarded.
See Mt. Clemens, 328 U.S.
at 692-93.
If the time spent donning and
doffing is de minimis, can it also not be
disregarded as starting the workday and
allow courts to disregard the associated
walking and waiting?
Such a result is not
on its face at odds with Steiner where the
donning and doffing and showering were not
claimed to be de minimis.
The Secretary replies that the de minimis
concept has nothing to do with when the
workday begins or ends but the de minimis
concept is much fuzzier than the Secretary
lets on: in the Supreme Court case that
spawned it, the Court stated broadly that
“compensable working time is involved” only
“when an employee is required to give up a
substantial measure of his time and effort.”
Mt. Clemens, 328 U.S. at 692. So one could
say that a de minimis activity which is noncompensable time under Mt. Clemens does not
start
[]
the
workday,
at
least
when
preliminary to arrival “on the factory
floor.”
Thus, two positions are juxtaposed.
One is
the Secretary’s mechanical combination of
Steiner with a rigid “everything after is
50
work” principle.
The other is to treat
required donning and doffing as compensable
where more than de minimis but, where it is
not, leaving both it and any associated
walking and waiting time as non-compensable.
Neither outcome is impossible analytically
and neither is clearly dictated by Supreme
Court precedent or underlying policy.
Tum v. Barber Foods, Inc., 360 F.3d 274, 285-86 (1st Cir. 2004)
(Boudin,
J.,
concurring)
(emphasis
in
original).
While
plaintiff in Tum sought certoriari on this question, the Supreme
Court declined.
543 U.S. 1144 (2005).
The Fourth Circuit, albeit only in passing, appears to come
out on the side that views the de minimis doctrine as a mere
exception
to
liability
activity is “work.”
as
one
to
which
does
not
change
whether
the
In Perez, it treated the de minimis issue
determine
whether
the
work
is
noncompensable,
“notwithstanding our holding that these activities are part of
the continuous workday as acts ‘integral and indispensable.’”
650 F.3d at 372.
with this view.
Similarly, the Supreme Court appears to agree
In Barber, the case consolidated with IBP, the
jury after trial in the district court found that the time spent
donning and doffing protective gear was de minimis and thus not
compensable.
On appeal, the employees argued that the time
spent waiting to doff their gear at the end of the shift was
nevertheless
argument,
compensable.
finding
that
The
the
First
waiting
51
Circuit
time
rejected
qualified
this
as
a
“preliminary or postliminary activity” and thus excluded by the
Portal-to-Portal Act.
The Supreme Court held that the First
Circuit was incorrect because doffing gear that is “integral and
indispensable” to employees’ work is a “principal activity,” and
thus
the
continuous
workday
rule
mandates
that
time
spent
waiting to doff is not affected by the Portal-to-Portal Act and
is instead covered by the FLSA.
546 U.S. at 36-40.
The Court
held that doffing protective gear was a “principal activity” in
spite
of
the
fact
that
doffing was de minimis.
the
jury
found
that
the
time
spent
While the Supreme Court was silent as
to this additional wrinkle, its silence suggests that work that
is de minimis only means the activity is noncompensable, not
that it is further precluded from being considered a principal
activity.
The statute and regulations support the view that has only
been tangentially addressed by the Supreme Court and the Fourth
Circuit.
The
Portal-to-Portal
Act
exempts
an
employer
from
compensating an employee for travel to the place of his first
principal activity, and for activities which are preliminary to
or postliminary to said principal activity.
Preliminary and
postliminary activities are those which occur prior to the time
on any particular “workday” when the employee commences such
principal activity, and the time period following completion of
such an activity.
29 U.S.C. § 254(a).
52
29 C.F.R. 790.6(b)
provides that “workday” as used in the Portal Act means “the
period
between
workday
of
the
an
Consequently,
commencement
employee’s
the
and
principal
language
of
completing
on
activity
statute
the
or
and
the
same
activities.”
regulation,
bolstered by Supreme Court and Fourth Circuit precedent, leads
to
the
conclusion
that
a
de
minimis
activity
can
still
constitute a principal activity that triggers the start of the
continuous workday.11
The few courts to grapple directly with this issue have
found in favor of the employer, however.
In Rutti, the Ninth
Circuit ruled that the technician was not entitled to extend the
start
of
his
workday
to
when
he
checked
his
email,
mapped
routes, and filled out paperwork (and thereby include his travel
time to his first job) because they “are either not principal
activities or are de minimis.”
596 F.3d at 1060.
Similarly, in
Singh, then-Circuit Judge Sotomayor wrote that “the law of this
circuit . . . is that a de minimis principal activity does not
trigger the continuous workday rule,” and she did not read the
Supreme
Court’s
decision
in
IBP
11
as
casting
doubt
on
that
It is necessary to emphasize the limits of this decision
going forward because, as observed above, as technology advances
and employees are always available for work, the principles
embodied in the FLSA and its associated doctrine could be
stretched beyond their intended bounds.
It is not hard to
imagine “the ‘continuous workday’ rule [becoming] a ‘continuous
pay’ rule.” Lemmon v. City of San Leandro, 538 F.Supp.2d 1200,
1209 (N.D.Cal. 2007).
53
position.
at
422
524 F.3d at 371 n.8; see also Chambers, 428 F.App’x
(“Because
technicians’
the
Court
pre-commute
has
morning
concluded
activities
that
and
Sears’
post-commute
evening activities under the [company’s Home Dispatch Program]
are
non-compensable
as
incidental
to
the
commute
and/or
de
minimis,” the continuous workday doctrine does not extend FLSA
coverage).
But the Ninth Circuit in Rutti seems confused about
the effect of declaring work de minimis: while it ultimately
rules that a de minimis activity does not start the continuous
workday, earlier in the opinion it suggests that an activity
that is de minimis only affects whether the employer has to pay
for that activity, not whether it is work or not.
See 596 F.3d
at 1057 (“Thus, in determining whether an otherwise compensable
activity is de minimis, we apply the three-prong test set forth
in Lindow.” (emphasis added)).
And for the reasons discussed
above, the view of the import of IBP’s is different than that
taken by the Second Circuit.
Therefore,
Butler’s
pre-calling
activity,
if
ultimately
proved to be a principal activity (or integral and indispensable
to
a
principal
activity)
but
de
minimis,
could
trigger
the
continuous workday rule but only if he can further prove that
Defendants required him to pre-call immediately before leaving
for his first job, or so close in time to leaving his home that
54
he
was
unable
purposes.”
4.
“to
use
the
time
effectively
for
his
own
29 C.F.R. § 785.16(a).
State Law Claims
Butler also brought claims on behalf of himself and all
technicians employed by Defendants in Maryland for violations of
the Maryland Wage and Hour Law.
It appears that Butler no
longer desires to represent a class on this claim, as he failed
to move for class certification by the deadline.
In the instant
motion, Defendants argue that because MWHL claims are analyzed
the same as FLSA claims, Butler’s individual MWHL claim must
also fail.
Generally, “[t]he requirements under the MWHL mirror those
of the federal law; as such, [Butler’s] claim under the MWHL
stands or falls on the success of [his] claim under the FLSA.”
Turner v. Human Genome Sci., Inc., 292 F.Supp.2d 738, 744 (D.Md.
2003).
Butler does not respond to Defendants’ arguments.
As
discussed above, there are aspects of Butler’s FLSA claim that
survive summary judgment, therefore, those same aspects of his
individual
MWHL
claim
also
survive.
It
should
be
noted,
however, that even if he is successful in showing Defendants’
liability under both the FLSA and MWHL, he would only be able to
recover once for damages resulting from Defendants’ failure to
pay wages as required by law.
Clancy v. Skyline Grill, LLC, No.
ELH-12-1598, 2012 WL 5409733, at *5 (D.Md. Nov. 5, 2012) (citing
55
Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 333
(1980)).
The complaint also included a similar claim on behalf of
Butler and a class of technicians currently or formerly employed
by Defendants in the District of Columbia for violations of
District of Columbia Minimum Wage Law (“DCMWL”).
Like the FLSA,
the DCMWL provides explicitly for opt-in, collective actions.
See
D.C.
Code
§
32-1012(b)
(“No
employee
shall
be
a
party
plaintiff to any action brought under [the DCMWL] unless the
employee gives written consent to become a party.”).
never
moved
to
certify
a
DCMWL
collective;
his
Butler
motion
for
certification was expressly limited to the FLSA, as demonstrated
by
its
title:
“Plaintiffs’
Motion
and
Memorandum
to
Conditionally Certify a Collective Action and Facilitate Notice
Pursuant to 29 U.S.C. § 216(b).”
(ECF No. 41).
Based on that
motion, the court conditionally certified a collective only as
to the FLSA claim.
See Butler, 876 F.Supp.2d at 574.
Defendants argue that Butler never filed an opt-in consent
form to assert a claim under the DCMWL.
Defendants do not cite
any authority holding that the applicable statutes, requiring
all plaintiffs (even named plaintiffs) to file an opt-in form,
apply
to
DCMWL
collective
actions.
It
is
not
necessary
to
examine this issue, however, because the DCMWL only protects
those “employed in the District of Columbia,” which occurs when:
56
“(1)
[t]he
person
regularly
spends
more
than
50%
of
their
working time in the District of Columbia; or (2) [t]he person’s
employment is based in the District of Columbia and the person
regularly spends a substantial amount of their working time in
the District of Columbia and not more than 50% of their working
time
in
any
particular
state.”
D.C.
Code
§ 32-1003(b).
Defendants contend that Butler has presented no evidence that he
spent more than 50% of his work time within D.C.
They further
state that Butler was based out of warehouses in Maryland.
In
his opposition, Butler makes no attempt to respond to these
arguments.
that
Butler
Finding no evidence on the record to raise a dispute
spent
more
than
50%
of
his
work
time
in
D.C.,
summary judgment is granted to Defendants on the DCMWL claim.
III. Motions to Seal
Defendants and Plaintiff Butler have each filed unopposed
motions to seal selected exhibits that accompanied Defendants’
motion for summary judgment and Butler’s opposition.
Defendants
seek to seal Exhibits 4-6, 10-11, 15, and 18 to their motion for
summary
judgment.
These
exhibits
include
a
full
copy
of
DirectSAT’s Employee Policy Manual (ECF No. 262); a full copy of
DirectSAT’s
Employee
Handbook
(ECF
No.
261);
a
copy
of
Defendants’ rate sheet signed by Butler (ECF No. 263); a copy of
Butler’s earning statements (ECF No. 260); Butler’s personnel
57
documents (ECF Nos. 258 and 264); and Butler’s timesheets (ECF
No. 259).
Butler seeks to seal Exhibits H - J and L - Q to his
opposition to the motion for summary judgment (ECF Nos. 269 to
269-8).
in
These exhibits include: a signed acknowledgment by opt-
Plaintiff
Murray
of
Defendants’
paycheck
verification
procedures (ECF No. 269-2); Defendants’ vehicle policy (ECF No.
269-3); a corrective action form prepared for opt-in Plaintiff
Murray (ECF No. 269-4); a completed “Truck Kit/Tool Issuance
Form”
for
signed
opt-in
Plaintiff
acknowledgement
Poindexter
by
Cell
Defendants’
Technician
Defendants’
timekeeping
opt-in
Phone
policy
(ECF
Nos.
Plaintiff
Poindexter
Policy
(ECF
No.
269-7);
(ECF
269-5);
No.
a
of
269-6);
Defendants’
employee behavior policy (ECF No. 269-8); Butler’s timesheets
(ECF No. 269-1); and Butler’s earnings statements (ECF No. 269).
Defendants submit that the exhibits related to their motion
for
summary
judgment
confidential
pursuant
Stipulation
(ECF
confidential
and
should
Nos.
to
be
the
37
proprietary
sealed
as
they
court-approved
and
38)
business
because
were
deemed
Confidentiality
they
information.
contain
The
full
copies of Defendants’ employee handbook and the policy manuals
will remain under seal.
While Butler cites to their contents as
evidence of Defendants’ allegedly unlawful policies, he submits
the relevant portions of those documents with his opposition and
58
testifies
to
any
relevant
portions.
Consequently,
the
full
copies submitted by Defendants can remain under seal.
The copy
of Defendants’ rate sheet will also remain under seal.
(ECF No.
263).
The information contained in it — the rates paid for
different jobs performed — is not relevant to the disposition of
this
motion
and
under seal.
is
confidential
information
that
can
remain
See Pittston Co. v. United States, 368 F.3d 385,
406 (4th Cir. 2004).
Butler’s
personnel
documents,
however,
were
necessary
evidence for computing the statute of limitations on Butler’s
FLSA
claim.
(ECF
Nos.
258
and
264).
They
consist
of
a
checklist for technicians leaving the company and, a change of
position form showing when Butler left his technician position
to become a warehouse manager.
Defendants rely on these forms
to support their statute of limitations defense to illustrate
when Butler stopped working as a technician and when he was
terminated by Defendants.
fourteen
(14)
redactions
to
days
to
Exhibits
Consequently, Defendants will have
file
4
a
and
renewed
motion
18,
explaining
or
to
seal
why
with
those
documents must be sealed in their entirety.
Next, Defendants seek to seal in their entirety Butler’s
timesheets and earnings statements.
Defendants
contend
information
that
that
should
these
be
kept
59
(ECF Nos. 259 and 260).
documents
contain
confidential,
such
personal
as
the
Butler’s social security number, employee identification number,
and/or home address.
insufficient
entirety.
to
The presence of this information alone is
justify
sealing
these
documents
in
their
It is not apparent why these documents cannot be
filed in redacted form in accordance with Fed.R.Civ.P. 5.2(a).
In addition, Butler’s home address is listed on the complaint,
which has never been filed under seal.
Consequently, Defendants
will have fourteen (14) days to file a renewed motion to seal
with
redactions
to
Exhibits
5
and
6,
or
explain
why
those
documents must be sealed in their entirety.
Butler, on the other hand, does not attempt to justify his
sealed documents beyond stating that they have been designated
confidential
pursuant
to
the
Confidentiality
Stipulation.
Reliance on a boilerplate confidentiality order with no attempt
to redact portions of the filings, however, is insufficient for
a motion to seal, especially where it is connected with a motion
for summary judgment.
See Visual Mining, Inc. v. Ziegler, No.
PWG
690905,
12-3227,
2014
WL
at
*5
(D.Md.
Feb.
21,
2014)
(denying motion to seal when the only justification was that the
documents are “confidential” under a court-approved Protective
Order); Under Armour, Inc. v. Body Armor Nutrition, LLC, No.
JKB-12-1283, 2013 WL 5375444, at *9 (D.Md. Aug. 23, 2013).
In
an earlier decision in this case, the undersigned specifically
noted that a party’s reliance on a confidentiality order is
60
insufficient to satisfy the “specific factual representations”
that Local Rule 105.11 requires.
n.18.
Butler, 876 F.Supp.2d at 576
Plaintiff Butler will have fourteen (14) days to file a
renewed motion to seal with redacted versions or, alternatively,
explain why one or more of these documents must be sealed in
their entirety.
portions
of
Examining the documents, it is not apparent why
Defendants’
employee
handbook
outlining
the
timekeeping, cellphone, and other policies relevant and relied
upon by both parties in their unsealed briefs should be sealed.
Other documents include the timesheets and earnings statements
discussed above.
redacted
to
make
Any documents capable of redaction, should be
public
the
information
which
supports
that
party’s position.
IV.
Conclusion
For the foregoing reasons, Defendants’ motion for summary
judgment will be granted in part and denied in part. Defendants’
motion to seal will be granted in part and denied in part, while
Plaintiffs’ motion to seal will be denied.
A separate order
will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
61
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