Donatti, et al v. Charter Communications, LLC, et al
Filing
89
ORDER denying 39 motion for partial summary judgment; granting 49 motion for partial summary judgment. Signed on 3/29/2013 by Magistrate Judge Matt J. Whitworth. (Bode, Kay)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
PETER DONATTI, et al.,
)
)
Plaintiffs,
)
)
v.
)
)
CHARTER COMMUNICATIONS, L.L.C., et al., )
)
Defendants.
)
No. 11-4166-CV-C-MJW
ORDER
Before the Court are cross-motions for partial summary judgment filed by plaintiffs Peter
Donatti and Matthew Cowan, and defendants Charter Communications, L.L.C., and Charter
Communications, Inc. (collectively “Charter”).1 The motions argue Charter’s Post-May 2010
Compensation Policies as they relate to the Portal-to-Portal Act, as amended by the Employee
Flexibility Commuting Act (EFCA) of 1996. 29 U.S.C. § 254.
Plaintiffs are or were previously employed as Broadband Technicians with Charter.
Plaintiffs assert they are entitled to be paid for the time they spent driving to and from work in
company-provided vehicles and performing activities they are required to complete before or
after commuting. Charter asserts plaintiffs are not entitled to compensation for such time and
that their policies do not violate the Federal Labor Standards Act (FLSA), Portal-to-Portal Act,
or the Employee Commuter Flexibility Act.
Standard
Rule 56(c) of the Federal Rules of Civil Procedure requires "the entry of summary
judgment . . . against a party who fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that party will bear the burden of proof at
trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden on the party moving for
summary judgment "is only to demonstrate . . . that the record does not disclose a genuine
1
The parties have consented to the jurisdiction of the United States Magistrate Judge,
pursuant to the provisions of 28 U.S.C. § 636(c)..
dispute on a material fact." City of Mt. Pleasant, Iowa v. Associated Elec. Co-Op., 838 F.2d
268, 273 (8th Cir. 1988).
Once the moving party has done so, the burden shifts to the nonmoving party to go
beyond his pleadings and show, by affidavit or by "depositions, answers to interrogatories, and
admissions on file," that there is a genuine issue of fact to be resolved at trial. Celotex, 477 U.S.
at 323. Evidence of a disputed factual issue which is merely colorable or not significantly
probative, however, will not prevent entry of summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Summary judgment, however, "is an extreme remedy, to be granted only if no genuine
issue exists as to any material fact." Hass v. Weiner, 765 F.2d 123, 124 (8th Cir. 1985). In
ruling on a motion for summary judgment, this court must view all facts in a light most favorable
to the nonmoving party, and that party must receive the benefit of all reasonable inferences
drawn from the facts. Robinson v. Monaghan, 864 F.2d 622, 624 (8th Cir. 1989).
If "there is no genuine issue as to any material fact and . . . the movant is entitled to
judgment as a matter of law," the court must grant summary judgment. Fed. R. Civ. P. 56(c).
Facts
Plaintiff Matthew Cowan is a current Charter employee, and plaintiff Peter Donatti is a
former Charter employee. Plaintiffs were employed by Charter during the relevant periods as
Broadband Technicians (“technicians”). Charter allows, but does not require, technicians to
commute to and from work in their assigned company vehicles. The decision to use a Charter
vehicle to commute is voluntary. Instead of commuting in a company-provided vehicle,
employees may choose to commute in their personal vehicles and park their assigned company
vehicles at a Charter facility. Mr. Donatti elected to commute in a Charter vehicle, but Mr.
Cowan did not. Mr. Cowan left his Charter vehicle at Charter’s Sedalia office each night.
However, there is an exception when technicians, like Mr. Cowan, are “on-call.” During the
time that a Charter technician is “on call,” policy states that an employee may be required to take
their company vehicle home.
Mr. Donatti held the positions of Broadband Technician II and Broadband Technician III
during the relevant period of June 27, 2009, through June 27, 2011 (the “Class Period”), and Mr.
2
Cowan held the position of Broadband Technician IV (also known as Broadband Technician
Senior, or “Tech Senior”).
During the relevant periods, Charter has had written timekeeping and vehicle-use policies
in place, named Vehicle Policies, Timekeeping Policies, Timekeeping Memoranda, and an
Employee Handbook, that specify when technicians such as plaintiffs begin and end their
workday, and how they should record their work time for payroll purposes. (Doc. 57, Affidavit
of Colleen Judson, (“Judson Aff.”), ¶¶ 24-28; see generally, Doc. 58, Ex. 9, 2008 Timekeeping
Policy; Ex. 10, July 2009 Timekeeping Policy; Ex. 11, October 2009 Timekeeping Policy; Ex.
12, 2010 Timekeeping Policy2; Ex. 5, 2011 Timekeeping Memo.) These written policies specify
that technicians are not paid for their normal commuting time, i.e., the time they spend driving
from their home to work in the morning, and from work back home in the evening, regardless of
whether the technicians choose to commute in their private vehicles or in Charter-provided
vehicles. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 1-4; Doc. 57, Judson Aff. ¶¶ 29-33;
Doc. 58, Ex. 13, relevant excerpts from 2006 Handbook at 46; Ex. 14, relevant excerpts from
March 2010 Handbook at 124; Ex. 15, relevant excerpts from December 2010 Handbook at 70;
Ex. 16, relevant excerpts from 2011 Handbook3 at 70.
The written policies further specify that technicians who commute in Charter-provided
vehicles are not paid for performing certain activities that are related to their commute, such as
carrying specified equipment and customer payments to and from their vehicles and conducting a
limited safety check before beginning the drive to work. See Doc. 58, Ex. 5, 2011 Timekeeping
Memo at 1-4. The written policies specify that Charter will pay its nonexempt employees for all
hours they work, and strictly prohibit employees from working “off the clock” – that is, before
their shift begins, after their shift ends, or during a meal break – without advance authorization.
See Doc. 58, Ex. 12, 2010 Timekeeping Policy at 1; Ex. 16, 2011 Employee Handbook at 15.
Nevertheless, if an employee works off the clock, even without authorization, Charter’s policies
require that the employee be compensated for the time worked. Id. Technicians are required to
comply with Charter’s timekeeping and vehicle-use policies, as amended from time to time. See
2
Although subsequent citations refer only to the 2010 Timekeeping Policy, it is noted
that previous Timekeeping Policies included similar language to that cited.
3
Although subsequent citations refer only to the 2011 Handbook, it is noted that previous
employee handbooks included similar language to that cited.
3
Doc. 57, Judson Aff., ¶¶ 4, 5. Plaintiffs acknowledged, in writing, that they had read and
understood Charter’s timekeeping and vehicle-use policies. (Doc. 57, Judson Aff. ¶¶ 6, 12-17;
see Doc. 58, Ex. 17, Donatti Acknowledgment of 2008 Timekeeping Memo; Ex. 18, Donatti
Acknowledgment of 2009 Timekeeping Memo; Ex. 19, Donatti Acknowledgment of 2010
Timekeeping Memo; Ex. 20, Cowan Acknowledgment of 2008 Timekeeping Memo; Ex. 21,
Cowan Acknowledgment of 2009 Timekeeping Memo; Ex. 22, Cowan Acknowledgment of
2010 Timekeeping Memo.)
Procedural History
Plaintiffs filed their complaint on June 27, 2011, and an amended complaint on August
15, 2011. In both complaints, plaintiffs assert FLSA claims on behalf of themselves and all
similarly situated “Cable Technicians.” Plaintiffs allege a class period of two years in their
Amended Complaint. See Doc. 8, Amended Complaint, ¶¶ 28, 44. Because the original
complaint was filed on June 27, 2011, the class period extends back two years from the date of
filing: June 27, 2009, through June 27, 2011.
Plaintiffs allege Charter failed to compensate them and the other technicians for time
spent transporting company property in Charter vehicles, and for time spent performing certain
pre- and post-shift activities, such as gathering tools and paperwork, obtaining routes and orders,
and inspecting vehicles. Plaintiffs contend that Charter’s failure to pay for the time spent
performing these activities violates the FLSA. On November 30, 2011, the parties submitted a
Joint Proposed Preliminary Scheduling Order in which they agreed that there are two potentially
dispositive legal issues that the Court should resolve at the outset. The first threshold issue is
whether plaintiffs’ commuting time claims are cognizable under the ECFA. On December 5,
2011, this Court entered the parties’ Proposed Scheduling Order and set a schedule for discovery
and dispositive motions on the threshold issues. 4
Charter’s Compensation and Timekeeping Policies for Non-Exempt Employees
Charter is the fourth largest cable operator in the United States, and provides advanced
video, high-speed Internet, and telephone services to approximately 5.2 million residential and
4
The second issue pertaining to the effect of the settlement in Goodell v. Charter
Communications, L.L.C., No. 08-512-bbc (W.D. Wis. 2010), was resolved by the Court’s order
of October 22, 2012.
4
business customers in 25 states. See Doc 58, Ex. 16, 2011 Handbook at 4. Charter requires its
employees to accurately report all hours worked on their timecards. See Doc. 58, Ex. 12, 2010
Timekeeping Policy at 3; Ex. 16, 2011 Handbook at 15-16. An employee who provides false or
inaccurate information on a timecard may be subject to discipline. See Ex. 12, 2010
Timekeeping Policy at 2; Ex. 16, 2011 Handbook at 16. Charter’s general policies requiring
compensation for nonexempt employees, including the rules described previously, are set forth in
its Employee Handbook and Timekeeping Policy. (Doc. 57, Judson Aff., ¶ 4.)
All employees are given access to the Employee Handbook and the Timekeeping Policy
at the time they begin employment with Charter. Id., ¶¶ 24, 29. The Timekeeping Policy and the
Employee Handbook are published online via Charter’s intranet, and employees are notified of
this when they begin employment with Charter through new-hire orientation. Id. Although the
Timekeeping Policy is a free-standing policy, it is also incorporated into the Employee
Handbook via a hyperlink whereby an employee reviewing the Employee Handbook online may
click on a link to be directed to an electronic version of the Timekeeping Policy. Id., ¶ 24.
Charter revises its Employee Handbook and Timekeeping Policy periodically; updated versions
are published to all employees online, and employees are made aware of this through
announcements by Human Resources. Id., ¶¶ 24, 29.
The Timekeeping Policies in effect during the Class Period were issued by Charter on
August 7, 2008, July 20, 2009, October 5, 2009, and October 12, 2010. Id., ¶ 24. The Employee
Handbooks in effect during the Class Period were issued in June 2006, March 2010, December
2010, and March 2011. Id., ¶ 29.
Plaintiffs’ General Job Duties
Technicians install, disconnect, and repair cable, Internet, and telephone services for
Charter’s residential and business customers at the customers’ homes or businesses. (Doc. 57,
Judson Aff., ¶¶ 34-38; see Doc. 58, Ex. 23, Broadband Technician I Job Description at 1; Ex. 24,
Broadband Technician II Job Description at 1; Ex.25, Broadband Technician III Job Description
at 1; Ex. 26, Broadband Senior Job Description at 1; Ex. 27, Broadband Lead Job Description at
1.) Technicians travel to customer locations that are within the boundaries of the cable systems
to which they are assigned in Charter-provided vans or pickup trucks. See, e.g., Job Description
at 1-3; Doc. 52, Affidavit of Robert Burton (“Burton Aff.”), ¶¶ 4-6. The vehicles contain the
5
tools and equipment that technicians use to perform their duties at the customer locations. (Doc.
52, Burton Aff., ¶ 4.) While technicians must travel to customer residences in their assigned
Charter vehicles, they are not required to commute to and from work in company vehicles.
Instead, Charter permits technicians to drive their assigned vehicle from their home directly to
the first customer location each day, and back home after finishing their work at the last
customer location at the end of the day. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 1-3;
Doc. 52, Burton Aff., ¶ 5; Doc. 58, Ex. 7, 2010 Vehicle Policy at 1-2; Doc. 43, Ex. 1, Deposition
of Joshua R. Moser (“Moser Dep.”) at 81:13-82:9. Alternatively, technicians can first report to a
Charter office in their personal vehicle or use some other mode of transportation, pick up a
Charter vehicle at the office, and then drive that Charter vehicle to their first job site. See Doc.
58, Ex. 5, 2011 Timekeeping Memo at 4-5; Doc. 52, Burton Aff., ¶ 5; Doc. 43, Ex. 1, Moser
Dep. at 81:13-82:9. From time to time, technicians are placed “on call,” meaning that they may
be required to respond to emergencies between shifts. Technicians who do not normally
commute in a Charter vehicle may be required to drive the Charter vehicle home during the
assigned on-call period. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 1.
The Charter vehicles driven by technicians are typically vans or small trucks, suitable for
regular street travel. (Doc. 52, Burton Aff. ¶ 6; see also Doc. 53, Affidavit of Robin Samuel
(“Samuel Aff.”), ¶ 5; Doc. 43, Ex. 4, Exterior photographs of Charter vehicles, at P000149000151.) They are not oversized vehicles and do not require that a driver hold a commercial
vehicle license in order to operate them. (Doc. 52, Burton Aff., ¶ 6.)
Compensation and Timekeeping Policies for BBTs Who Commute in Charter Vehicles
For technicians who choose to commute in a Charter vehicle, the company pays all
vehicle-related expenses for both commute and noncommute periods, including insurance costs,
licensing fees, gasoline, oil, and other vehicle maintenance costs, thereby saving the technicians
commuting expenses. Id., ¶ 8.
For technicians who elect to commute in Charter vehicles, the terms and conditions
governing the use of Charter vehicles for commuting are set forth in Charter’s Vehicle Policy
and in various Timekeeping Memoranda periodically distributed to the technicians. See
generally Doc. 58, Ex. 7, 2010 Vehicle Policy; Ex. 5, 2011 Timekeeping Memo. The Vehicle
Policy sets forth requirements for the use of Charter vehicles, including safety requirements,
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authorized and unauthorized uses of the vehicles, procedures for reporting accidents, and
procedures for securing and maintaining the vehicles. See Doc. 58, Ex. 7, 2010 Vehicle Policy
at 1-4. Generally, Charter vehicles are to be used for job-related duties and assignments and
commuting. See Doc. 58, Ex. 7, 2010 Vehicle Policy at 2. Employees generally may not
transport family members or other non-Charter personnel without prior supervisor approval. Id.
However, technicians who commute in Charter vehicles are permitted to make occasional,
personal stops during their commute, so long as they arrive at the first job site on time. See Doc.
58, Ex. 5, 2011 Timekeeping Memo at 2.
The Timekeeping Memoranda specify, in detail, the time-recording procedures for both
technicians who commute in Charter vehicles and those who do not, as well as the specific tasks
required of technicians who commute in Charter vehicles in order to safeguard the vehicle and
the equipment in it. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 1-5. These memoranda
reflect the general Charter policies that technicians are to be paid for all work done during their
shifts, and that they are not to work during their commutes, or prior to or following their shifts,
without authorization. Id. However, to the extent technicians perform work during such periods,
other than activities incidental to commuting in Charter vehicles, they are to be compensated for
such time. Id.; see also Doc. 58, Ex. 12, 2010 Timekeeping Policy at 1; Ex. 16, 2011 Handbook
at 15. For example, the Timekeeping Memoranda provide that in the morning, before leaving
their homes, all technicians who commute in Charter vehicles are required to secure in their
company vehicle the following items: (i) a small hand-held signal level meter used to perform
services at customer locations, (ii) a small hand-held company-issued communications device,
often referred to as a “PDA” (personal digital assistant), (iii) a laptop computer, if one has been
assigned to them by Charter,5 (iv) paper work orders (on the rare occasion when work orders are
not electronic), and (v) customer payments collected during prior shifts. See Doc. 58, Ex. 5,
2011 Timekeeping Memo at 1-2; Doc. 52, Burton Aff., ¶ 10. These items are kept in
technicians’ residences overnight rather than in the Charter vehicle to safeguard them from theft.
(Doc. 52, Burton Aff., ¶ 11.) The PDA is also kept in the technician’s home overnight so that it
may be charged and ready for operation the next day. Id. Technicians can carry all these items
from their home to their vehicles (and back) in a single trip. (Doc. 52, Burton Aff., ¶ 12.) The
5
Neither Donatti nor Cowan were issued laptops.
7
current version of the signal level meter is small and light weight, measuring approximately 10
inches by 5 inches. Id., ¶ 13; Doc. 43, Ex. 1, Moser Dep. at 94:11-16. Prior versions were
similarly sized. (Doc. 52, Burton Aff., ¶ 13.) The PDA is typically a smart phone that a
technician can put in his pocket. (Doc. 43, Ex. 1, Moser Dep. at 93:20-25; Doc. 52, Burton Aff.,
¶ 13.) Any laptop that a technician may be issued is a standard-sized laptop computer that
weighs no more than a few pounds. (Doc. 52, Burton Aff., ¶ 13.) The work orders and
payments typically do not constitute more than a few pages of documents. Id. All of these small
items can fit into a single over-the-shoulder bag, or some could be placed in a bag and others
carried by hand or in the technician’s pocket (such as the PDA). See id., ¶ 14; Doc. 43, Ex. 1,
Moser Dep. at 93:13-94:21. Carrying these smaller items to or from one’s vehicle does not
lengthen the time it takes a technician to walk to his vehicle. (Doc. 52, Burton Aff., ¶ 16.)
Under Charter policy, technicians are not compensated for carrying the items listed to and from
their vehicle each day. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 1-3. Charter’s policies
do not require technicians to load or unload into or out of their vehicles any heavy and bulky
items, such as customer equipment (cable boxes or modems) and supplies (cable spools, heavy
tools, or ladders), or to transport such items between their vehicles and their residences. See
Doc. 58, Ex. 4, 2010 Timekeeping Memo at 4; Doc. 52, Burton Aff., ¶ 17. To the contrary,
Charter policies require technicians to secure these heavy and bulky items in the company
vehicle before clocking out for the day and driving home, so technicians are paid for securing
and loading these items. Id.
Charter policy instructs technicians to walk around their vehicle once in the morning
before driving to work to check for obvious safety hazards (such as a child playing near the
vehicle, or a large piece of debris near the vehicle). See Doc. 58, Ex. 5, 2011 Timekeeping
Memo at 1-2; Doc. 52, Burton Aff., ¶ 18. They are also required to pick up the two orange
traffic cones, if placed at the front and back of the vehicle for safety purposes at the time the
vehicle was parked. (Doc. 52, Burton Aff., ¶ 19; Doc. 42, Ex. 1, Moser Dep. at 92:25-93:8.)
Under Charter policy, technicians are not compensated for these tasks. See Doc. 58, Ex. 5, 2011
Timekeeping Memo at 1-2.
In the morning, before their scheduled shift begins, technicians must briefly turn on their
PDA to receive their first job assignment and to determine the assignment’s location. See Doc.
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58, Ex. 5, 2011 Timekeeping Memo at 2; Doc. 43, Ex. 1, Moser Dep. at 91:13-21. It takes less
than a minute to log onto the PDA. (Doc. 43, Ex. 1, Moser Dep. at 92:15-17.) Some technicians
log on to their PDA at home, prior to getting into their Charter vehicle; in that case, the
technician will then log off the PDA after receiving his first assignment. Id. at 91:19-21. When
the technician gets into his vehicle to drive to his first job assignment, he must then turn the PDA
back on and enter his status as “en route.” See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 2;
Doc. 43, Ex. 1, Moser Dep. at 113:5-114:2, 121:15-20. Other technicians do not log onto their
PDA in their homes, but instead check their first job assignment once in their vehicle
immediately before their commute. (Doc. 43, Ex. 1, Moser Dep. at 122:12-25.) Technicians are
not compensated for the brief time spent turning on their PDA’s and receiving their first
assignment, or for entering their “en route” status. See Doc. 58, Ex. 5, 2011 Timekeeping Memo
at 2; Doc. 43, Ex. 1, Moser Dep. at 91:22-24.
The Timekeeping Memoranda instruct technicians not to conduct any work or
communicate about work with anyone during their commute to the first job assignment, unless
there is an emergency, a service outage for which the technicians’ assistance is needed, or a
change in the first job assignment. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 2.
Technicians are also instructed not to conduct work or communicate about work during the
commute home. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 3. Although commuting time
is generally not compensable under Charter policy, if a technician is called by a dispatcher or
supervisor regarding one of these events, the technician is required to pull over to safely answer
the call, and the technician’s workday, and thus pay, will commence at that time. Id.
Each technician is assigned to a limited geographical territory (typically consisting of a
cable system), and the job sites where the technician performs services, and thus the commuting
area, are all located within the geographical boundaries of that territory. (Doc. 43, Ex. 1, Moser
Dep. at 102:25-103:8.) Although a technician’s commute within his assigned work area is
generally not compensable, to the extent he must drive outside the assigned work area, Charter
policies require that the technician be compensated for the extra travel time. See Doc. 57,
Judson Aff., ¶ 20; Doc. 58, Ex. 29, 2009 Technician Timekeeping Memo Questions and Answers
at 1, Questions 4 and 5. Charter’s policy also provides that anyone who is required to commute
more than 60 minutes on a regular basis should consult with Human Resources so that Charter
9
can determine whether the technician should be paid for any part of the commute. See Doc. 58,
Ex. 29, 2009 Technician Timekeeping Memo Questions and Answers at 7, Question 26. If a
technician who commutes in a Charter vehicle is required to return to the office after the end of
his shift to turn in money, equipment, or work orders, the paid workday ends when those
activities are completed, and not earlier, when the employee leaves the last customer location.
See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 3; Ex. 16, 2011 Handbook at 70.
When a technician arrives home, he may be required to set two safety cones outside the
vehicle (this requirement differs by Charter location, and not all technicians need to set out safety
cones) and lock the vehicle. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 4; Doc. 43, Ex. 1,
Moser Dep. at 100:11-24. He must also take the signal level meter, PDA, any paper work orders,
payments, or laptop he may have into his home; all other equipment remains in the vehicle. See
Doc. 58, Ex. 5, 2011 Timekeeping Memo at 4; Ex. 16, 2011 Handbook at 70; Doc. 43, Ex. 1,
Moser Dep. at 93:13-16. Technicians are not compensated for these limited, incidental activities.
See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 4.
Charter policies require that certain tasks be performed by technicians exclusively during
the workday, when technicians are “on the clock.” For example, all technicians are instructed to
do the following during their paid shifts: (i) stock their vehicle; (ii) fuel and clean their vehicle;
and (iii) conduct routine maintenance. If technicians are assigned a laptop, they are not to use it
when they are not on the clock. See Doc. 58, Ex. 5, 2011 Timekeeping Memo at 5; Doc. 43, Ex.
1, Moser Dep. at 105:14-106:21. As a result, all of these activities performed during the
workday are compensated under Charter policy. Id.
Charter’s Vehicle Policy is available to all employees via Charter’s intranet, and Charter
employees are notified of this fact when they begin their employment with Charter. (Doc. 57,
Judson Aff., ¶ 21.) Although the Vehicle Policy is a free-standing policy, like the Timekeeping
Memoranda, it is also incorporated into the Employee Handbook via a hyperlink. Id. The
Vehicle Policy is periodically revised and reissued, and updated versions are published to
employees online. Id. The Vehicle Policies applicable during the Class Period were issued on
January 1, 2008, and September 1, 2010. Id. Employees are instructed to adhere to the policies
or be subject to corrective action. See Doc. 58, Ex. 7, 2010 Vehicle Policy at 1, 5.
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Charter’s Timekeeping Memoranda, like the Employee Handbooks and Timekeeping and
Vehicle Policies, are issued periodically. (Doc. 57, Judson Aff., ¶ 6.) Technicians receive a
copy of the then applicable Timekeeping Memorandum at the start of their employment. Id.
Each time a Timekeeping Memorandum is revised and reissued, it is distributed to all
technicians. Id. With nearly every distribution of a revised Timekeeping Memorandum,
technicians are instructed to read the memorandum and sign a form acknowledging that they
have received the memorandum and agree to comply with its policies and expectations. Id.;
2011 Timekeeping Memo at 6. The Timekeeping Memoranda in effect during the relevant Class
Period were issued by Charter on September 12, 2008, November 2, 2009, September 24, 2010,
and March 27, 2011. 6 See Doc. 58, Ex. 2, 2008 Timekeeping Memo at 1; Ex. 3, 2009
Timekeeping Memo at 1; Ex. 4, 2010 Timekeeping Memo at 1; Ex. 5, 2011 Timekeeping Memo
at 1; Doc. 57, Judson Aff., ¶ 6. In addition to distributing the Timekeeping Memoranda to
technicians, many supervisors hold meetings with the technicians to go over the terms of the
memoranda and highlight any changes from the previously issued versions. (Doc. 57, Judson
Aff., ¶ 7.) For example, Donatti’s supervisor, Josh Moser, read the April 23, 2012 “Timekeeping
Instructions for Field Technicians” out loud verbatim to his direct reports shortly after it was
issued. See Doc. 43, Ex. 1, Moser Dep. at 117:7-118:11. After issuing Timekeeping
Memoranda in 2008 and 2009, Charter also distributed “Question and Answer” documents to
technicians’ supervisors relating to the issued Timekeeping Memorandum. These documents
provided additional information about the newly issued Timekeeping Memorandum. See Doc.
57, Judson Aff., ¶¶ 18, 20; Doc. 58, Ex. 30, 2008 Technician Timekeeping Memo Question and
Answers at 1-5; Ex. 29, 2009 Technician Timekeeping Memo Questions and Answers at 1-7.
Discussion
Plaintiffs claim the policies of Charter violate the Fair Labor Standards Act (FLSA), the
Portal-to-Portal Act and its 1997 amendment, and the Employee Commuting Flexibility Act
(ECFA). Defendants claim their policies do not violate the FLSA, the Portal-to-Portal Act or the
ECFA.
6
Subsequent to the filing of Charter’s motion, the Timekeeping Memorandum was
revised again and distributed as of April 23, 2012.
11
The purpose of the FLSA is to ensure that employees are paid for all hours worked in a
given workweek, including overtime hours. 29 U.S.C. §§ 206, 207; see Tennessee Coal, Iron &
R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602 (1944). As enacted in 1938, the FLSA did
not define the terms “work” or “workweek.” Early Supreme Court decisions broadly construed
those terms, holding, for example, that factory workers must be paid for time necessarily spent
walking from time clocks near the entrance gate to their workstations. See Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680, 691-92 (1946). Concerned that these judicial interpretations
of the FLSA were “creating wholly unexpected liabilities,” Congress, in 1947, passed the Portalto-Portal Act, amending certain provisions of the FLSA. IBP, Inc. v. Alvarez, 546 U.S. 21, 26
(2005).
Portal-to-Portal Act
The Portal-to-Portal Act, 29 U.S.C. § 254, narrowed the coverage of the FLSA by
excepting two activities that had been treated as compensable under prior case law: (1) walking,
riding or traveling to and from the actual place of performance of the principle activity of the
employee; and (2) activities which are “preliminary to or postliminary to” that principal activity.
29 U.S.C. § 254(a). The statute does not define “principle activity.” In Steiner v. Mitchell, 350
U.S. 247, 252-53 (1956), the Supreme Court held that activities which are integral and
indispensable to an employee’s principal activities are also compensable and not excluded by the
Portal-to-Portal Act. See also Dunlop v. City Electric., Inc., 527 F.2d 394, 401 (5th Cir. 1976)
(test for “principal activity” is whether the “work is necessary to the business and is performed
by the employees, primarily for the benefit of the employer, in the ordinary course of business”).
The Employee Commuting Flexibility Act (ECFA)
The stated purpose of the ECFA was “to amend the Portal-to-Portal Act of 1947 relating
to the payment of wages to employees who use employer-provided vehicles” for commuting.
See H.R. Rep. No. 104-585, p.2. The need to clarify the Portal-to-Portal Act arose from
conflicting Department of Labor (DOL) opinion letters issued in 1994 and 1995. The 1994
opinion letter ruled that time spent by an employee traveling from home to the first work
assignment, or returning home from the last assignment, was similar to that of traveling between
the jobs during the day, and therefore, constituted a principal activity for which the employee
must be compensated. No compensation would be required where employees used their personal
12
vehicles, however. In response to employer concerns, the DOL issued a revised opinion letter in
April 1995 withdrawing the earlier opinion letter and modifying its position. Under the new
opinion letter, commuting time in a company-provided vehicle need not be compensated under
the following conditions: (1) commuting in the vehicle is strictly voluntary and not a condition
of employment; (2) the vehicle is the type normally used for commuting; (3) employees incur no
costs for driving the employer’s vehicle; and (4) the work sites are within the normal commuting
area of the employer.
Congress responded to the DOL’s inconsistency by passing the EFCA in 1996. This Act
added language to section 4 of the Portal-to-Portal Act in order to clarify the exclusions of the
Act. The EFCA amendment to the Portal-to-Portal Act clarified the Act’s exclusion as related to
commuting by an employee in an employer-provided vehicle. The Act clarified that the Portalto-Portal Act excluded compensation for an employee’s commute in an employer-provided
vehicle and for incidental activities related to the use of the vehicle for commuting. Specifically,
the Act states that:
the use of an employer’s vehicle for travel by an employee and activities
performed by an employee which are incidental to the use of such vehicle for
commuting shall not be considered part of the employee’s principal activities if
the use of the vehicle for travel is within the normal commuting area 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).
The effect of the ECFA was to carve out, from the realm of compensable time, two types
of employee activities pertaining to commuting in a company vehicle: (1) travel, and (2)
incidental activities. Although travel was already a part of the original Portal-to-Portal Act, the
category of “incidental activities” is new. Previously, the Act only referred to activities
“preliminary to or postliminary to” principal activities. 29 U.S.C. § 254(a)(2).
Here, the dispute is a question of statutory interpretation: Does the Portal-to-Portal Act,
as amended by the EFCA, except the preliminary and postliminary activities and commute of
broadband technicians for Charter, specifically plaintiffs Donatti and Cowan, thus making these
activities noncompensable under the FLSA.
13
Burden of Proof
Plaintiffs argue that the burden of proof lies with Charter in this case, relying on
statements in case law such as Baker v. Bernard Construction Co., 146 F.3d 1214, 1217 (10th Cir.
1998), which state the application of an exemption under the FLSA is a matter of affirmative
defense on which the employer has the burden of proof. However, the Portal-to-Portal Act does
not create an “exemption” as the term is used in Baker and the other cases cited by plaintiffs.
None of the cases cited by plaintiffs speaks to the exclusion of only some activities from the
FLSA; they all deal with the exempt status of a particular worker or workers from certain FLSA
protections. Id. Better guidance is found in Anderson, 328 U.S. 680 (1946), where the Court
said, “An employee who brings suit ... for unpaid minimum wages or unpaid overtime
compensation ... has the burden of proving that he performed work for which he was not
properly compensated.” Anderson, 328 U.S. at 686-87. Typically, this question relates to
whether the plaintiffs worked a certain amount of hours and whether those hours went
uncompensated by the employer. However, there is an additional, earlier premise at issue in this
case; namely, whether the alleged acts of the plaintiffs constitute compensable work at all. The
burden to prove that such work was performed necessarily includes the burden to demonstrate
that what was performed falls into the category of compensable work. See Adams v. United
States, 471 F.3d 1321, 1326 (Fed. Cir. 2006) (plaintiffs “had the burden of showing that their
drive time was compensable work for FLSA purposes and of showing that it does not fall into
the set of activities excluded from the definition of compensable work by the Portal-to-Portal
Act”); Baker, 146 F.3d at 1216 (in Portal-to-Portal Act case, jury instruction appropriately asks
the jury whether plaintiffs have proved that their return travel is compensable). Thus, plaintiffs
in this case have the burden of showing that their commute and preliminary and postliminary
commuting activities are compensable work for FLSA purposes and showing that it does not fall
into the set of activities excluded from the definition of compensable work by the Portal-toPortal Act. Adams, 471 F.3d at 1326.
Application of the Portal-to-Portal Act and ECFA to Charter Policies
Plaintiffs argue that the Portal-to-Portal Act, as applied to the policies of Charter, should
be narrowly construed and interpreted in favor of employees. However, as set forth above, the
Portal-to-Portal Act and its amendment, the ECFA, are not an exemption to the FLSA requiring
14
narrow construction. See Adams, 471 F.3d at 1325-26. This case is not about whether plaintiffs,
as broadband technicians, are exempt from the FLSA overtime or minimum wage requirements;
rather, the issue is, are the activities of the plaintiffs, pursuant to Charter’s policies, compliant
with the Portal-to-Portal Act and ECFA. Specifically, are Charter’s policies which exclude from
the definition of compensable work, commuting time and pre- and post-commuting activities, in
compliance with, or in violation of, the Portal-to-Portal Act, as amended by the ECFA?
The Portal-to-Portal Act generally excludes home-to-work travel from compensable time.
29 C.F.R. § 785.35. Ordinary home-to-work travel is not compensable under the Portal-to-Portal
Act in the absence of a contract or custom of compensation that exists between the employer and
employees. Chambers v. Sears Roebuck and Co., 428 Fed. Appx. 400, 410 (5th Cir. 2011).
Without a contract or custom of compensation, the presumption is that commuting is
noncompensable. Rutti v. Lojack Corp., Inc., 596 F.3d 1046, 1057 (9th Cir. 2010). An employee
who travels from home before his regular workday and returns to his home at the end of the
workday is engaged in ordinary home-to-work travel, which is a normal incident of employment.
This is true whether he works at a fixed location or at different job sites. Normal travel from
home to work is not work time. 29 C.F.R. § 785.35; Chambers, 428 Fed. Appx. at 410; Vega v.
Gasper, 36 F.3d 417, 424 (5th Cir. 1994); Dunlop v. City Elec., Inc., 527 F.2d at 401.
Also excluded from the definition of compensable work is any other activity performed
before or after an employee’s shift that is not integral and indispensible to a principal activity.
29 U.S.C. § 254(a); Alvarez, 546 U.S. at 37. This exclusion was further elaborated by the ECFA
amendment to the Portal-to-Portal Act, which excludes from the definition of compensable work
an employee’s commuting time and incidental activities related to the commute when using an
employer-provided vehicle.
Here, the undisputed evidence is that there is no contract or custom between Charter and
its broadband technicians that establishes compensation for the technicians’ commute times, in
Charter-provided vehicles, from their home to their first job site, or from their last job site to
their home. Rather, the policies of Charter specifically state the contrary. Charter’s policies also
preclude compensation for technicians’ pre- and post-commuting activities when technicians are
using Charter vehicles. Plaintiffs argue these policies are not in compliance with the Portal-toPortal Act/ECFA and, therefore, the FLSA requires Charter technicians to be compensated for
15
their commute times and pre- and post-commute activities. Plaintiffs argue the following
reasons why their commute times and pre- and post-commute activities should be compensable
and why Charter’s policies, which preclude compensation, violate the Portal-to-Portal
Act/ECFA: (1) technicians transport expensive equipment in the Charter vehicles during the
commute for the benefit of Charter, thereby making the commute a principal activity; (2)
commute in Charter vehicles is controlled by Charter in that restrictions are placed on
technicians’ activities during the commute, making the commute a principal activity; (3) use of
the Charter vehicles for commuting is mandatory when technicians are “on call,” thereby making
the commute an integral and indispensable principle activity; (4) the activities performed by
technicians pre- and post-commute are not incidental, but are principal activities; (5) the
commuting area for technicians in the Sedalia, Missouri area includes traveling to job sites in the
Warrensburg area, thereby making the commute a principal activity, and the ECFA exception for
commuting within the normal commuting area and related incidental activities inapplicable; and
(6) the activities performed by technicians pre- and post-commute are not incidental, but are
principal activities performed before and after the commute, thus making the “continuous work
day doctrine” applicable.
Charter’s cross-motion for summary judgment argues that the Portal-to-Portal Act and
ECFA, as applied to the undisputed policies of Charter, show no violation of the Act; Charter
argues that plaintiffs’ commute time and the activities required of technicians by Charter in
conjunction therewith, do not violate the Portal-to-Portal Act, as amended by the ECFA.
In order to address the arguments of the parties and determine whether the policies of
Charter are in violation of the Portal-to-Portal Act, the Court must specifically consider the
ECFA amendment to the Portal-to-Portal Act which was specifically enacted to address when an
employee uses an employer’s vehicle for commuting. Plaintiffs’ arguments in support of
summary judgment which fail to consider the ECFA, misconstrue the application of the Portalto-Portal Act. The Court must apply the Portal-to-Portal Act in its entirety, including the
relevant ECFA amendment, to the facts of this case.
Transport of Equipment
Plaintiffs allege that transporting expensive equipment in their Charter vehicles during
their commute from their home to their worksites, and from their worksites to home, is a part of
16
their principal activities as technicians, done for the benefit of Charter, and thus, is compensable
work. In this context, however, courts have specifically held that the transport of tools and
equipment in company vehicles is “incidental” to the use of an employer’s vehicle for
commuting. See Chambers, 428 Fed. Appx. at 417; Buzek v. Pepsi Bottling Group, Inc., 501
F.Supp.2d 876 (S.D. Tex. 2007). The House Report for the ECFA specifically states that
“merely transporting tools or supplies should not change the noncompensable nature of the
travel.” H.R. Rep. No. 104-585, Use of Employer Vehicles, at 5 (1996). See also Chambers,
428 Fed. Appx. at 417; Buzek, 501 F.Supp.2d at 876. Further, here, the evidence is that
technicians transporting parts and tools in Charter vehicles does not increase the technicians’
commuting times. Moreover, the evidence shows that this transport of tools in Charter vehicles
is directly related to technicians’ commutes and thereby excluded under the ECFA; the commute
in Charter-provided vehicles by Charter broadband technicians, by its very nature, includes the
use of vehicles containing equipment and tools for use by Charter broadband technicians. The
argument that transportation is compensable because it is for the benefit of Charter, and that a
third-party carrier would be required to transport Charter’s tools and equipment for technicians if
the technicians did not transport such items in their Charter-provided vehicles is simply
unsupportable. As is plaintiffs’ argument that the high-dollar value of the tools and equipment
stored in Charter vehicles used by technicians for commuting makes technicians’ commutes
compensable. In applying the law to the undisputed facts regarding transport of broadband
equipment in Charter vehicles, there is no basis to support plaintiffs’ allegations that Charter’s
policies violate the Portal-to-Portal Act/ECFA and that technicians should be compensated.
Restrictions on Use of Charter Vehicle for Commuting
Plaintiffs argue that the restrictions on technicians’ commute activities make their
commute time compensable as a principle activity. However, the case law on this issue is clear.
“[C]ommuting done for the employer’s benefit, under the employer’s rules, is noncompensable if
the labor beyond the mere act of driving the vehicle is de minimis.” Adams, 471 F.3d at 1328;
Easter v. United States, 83 Fed. Cl. 236, 250 (2008). Here, even accepting the commuting
restrictions imposed on technicians as compulsory and for the benefit of their employer, Charter,
the “burdens alleged are insufficient to pass the de minimis threshold.” See Rutti, 596 F.3d at
17
1052-54. Plaintiffs have failed to show that the restrictions on their use of Charter’s vehicles for
commuting amounted to “additional legally cognizable work.” Id. at 1053.
In Bobo v. United States, 136 F.3d 1465, 1468 (Fed. Cir. 1998), the court concluded
though “the restrictions placed upon the INS Agents’ commutes are compulsory, for the benefit
of the INS, and closely related to the INS Agents’ principal work activities ... the burdens alleged
are insufficient to pass the de minimis threshold.” In Bobo, Border Patrol dog handlers were
required to commute to and from work in their government cars while also: transporting their
dogs; monitoring their vehicle radios; on the lookout for suspicious activity; keeping track of
their mileage; and refraining from personal errands or detours. Id. at 1467. In another relevant
case, Chambers, 428 Fed. Appx. at 411-12, the court held that despite vehicle use restrictions by
the employer which: restricted use of company vehicle on days off for personal use; did not
allow employees to pick up their children from school in the employer-provided vehicles; and
restricted use of employer vehicle for personal errands unless they are short in duration,
commute time was not compensable. The court noted that nothing in the statutory scheme
requires or even implies that conditions on an employee’s use of a company vehicle can
transform an otherwise noncompensable commute into a compensable one. Id.
Here, Charter’s policies state that technicians should refrain from personal use of Charter
vehicles, including transporting a family member, friend, or even a Charter customer, without
prior supervisor approval. See Doc. 58, Ex. 7, Charter Vehicle Policy 2010. The restrictions on
vehicle use by Charter technicians are no more restrictive than those in Bobo and Chambers.
Accordingly, in applying the law, as set forth above, to the restrictions set forth in Charter policy
for employees using Charter’s vehicles, there is no basis to support a conclusion that the
restrictions set forth in Charter’s policies violate the Portal-to-Portal Act/ECFA.
Use of the Charter Vehicles for Commuting Mandatory when Technicians are “On Call”
Plaintiffs argue that because commuting in a Charter vehicle is mandatory when a
technician is “on-call,” the commute in the Charter vehicle by technicians is a principal activity
for which the technicians must be compensated. Charter argues that technicians enter into an
“agreement” with Charter regarding their use of company vehicles, and that this policy complies
with the Portal-to-Portal Act/ECFA.
18
The language of the ECFA and its legislative history compel the conclusion that the
requisite agreement concerning the use of an employer’s vehicle to commute may simply be a
part or condition of the employee’s employment. Rutti, 596 F.3d at 1046, 1052. See ECFA H.R.
1227 (this bill “does not require a written agreement, this requirement may be satisfied through a
formal written agreement between the employee and employer, ... or an understanding based on
established industry or company practices.”). H.R. Rep. No. 104-585 at 4 (1996). Indeed, the
most logical place to record an agreement between an employee and employer concerning the
use of an employer’s vehicle is in the employee’s employment contract. Id. This analysis was
upheld in Adams, 471 F.3d at 1323, in which the court held that commute in government vehicle
was noncompensable, though a condition of employment.
Here, Charter has policies in place concerning the use of Charter vehicles by its
broadband technicians. The evidence shows that all employees are made aware of these policies
when they begin their employment with Charter. Charter’s Vehicle Policy is free-standing
policy available to employees via several means, including Charter’s intranet, and via a
hyperlink in the online Employee Handbook. When updates are made to the policy, employees
are made aware of these policies (details set forth in Facts section of this order), and frequently
must sign a form acknowledging receipt of the policies. This evidence supports that Charter’s
employee vehicle policies are an agreement between Charter and its employees; they are a
condition of employment with Charter. As a condition of employment, the use of Charter
vehicles by it broadband technicians, need not necessarily be voluntary. Legislative history and
case law support that the agreement on use of employer’s vehicle can be a required condition of
employment and need not necessarily be “voluntary.” See Rutti, 596 F.3d at 1052 (citing H.R.
Rep. No. 104-585 at 8).
Thus here, where the evidence shows that Charter has very specific policies on use of
Charter vehicles for commuting and such policies are made known to the technicians and are
conditions of the technicians’ employment, the compelled use of Charter vehicles for commuting
when a technician is “on call” does not make the technician’s commute time compensable.
Activities Performed by Technicians Pre- and Post-Commute as Incidental
As set forth in the facts, Charter’s policies require technicians to perform certain actions
pre- and post-commute. Plaintiffs argue these activities are not incidental to their commute, but
19
are principal activities and, therefore, are compensable. Charter argues that the activities are
incidental to the broadband technicians’ commute in Charter-provided vehicles and, therefore, do
not require compensation, consistent with the Portal-to-Portal Act/ECFA.
Upon review, the evidence supports that these activities are incidental. First, technicians
carrying their PDA, signal level meter, work orders and payments and/or laptops to and from
their vehicles is related to their commute to and from their homes in Charter-provided vehicles.
The very nature of commuting in a company vehicle provides some pre- and post-commute
activities by employees. So long as these activities are de minimis/incidental, the Portal-toPortal Act/ECFA excludes these activities from those considered principal; therefore, not
requiring compensation from the employer to the employee for these activities. In Chambers,
428 Fed. Appx. at 417-19, the court specifically held that carrying communications device from
home to vehicle and back and loading into vehicle replenishment parts that are sent to
employees’ homes, were activities incidental to the commute and not compensable. The
activities here are no more burdensome. See Singh v. City of New York, 418 F.Supp.2d 390
((S.D.N.Y. 2005) (additional commuting time associated with carrying briefcase containing files
was de minimis and not compensable under FLSA).
Moreover, a technician carrying these items to and from his Charter vehicles does not
lengthen the time otherwise required for a technician to walk to and from the vehicle. The
evidence is that these items can be easily carried in a shoulder bag or in a technician’s hands or
some other regular fashion, and that no additional trips from technicians’ homes to their vehicles
and back are necessary. Certainly, such activity is de minimis and is not a principal activity
supporting compensation.
Second, the time technicians spend at the beginning of their day quickly inspecting
around their Charter vehicle for obvious hazards only takes a few seconds and is also directly
related to the use of Charter vehicles for commuting. This is also true with regard to the activity
of removing cones from around the Charter vehicles at the beginning of their day, and placing
the cones out when arriving home at the end of the day. These activities are de minimis, taking
only seconds, and are directly related to use by technicians of Charter vehicles for commuting.
The legislative history of the ECFA indicates that much more time-intensive inspections,
such as “routine vehicle safety inspections ... have long been considered preliminary or
20
postliminary activities and therefore are not compensable.” Buzek, 501 F.Supp.2d at 882 (citing
H.R. Rep. No. 104-585 at 5). Courts, too, have determined that vehicle inspections far more
lengthy than the quick “walk around” required by Charter technicians are incidental to
commuting and not compensable under the ECFA. See Chambers, 428 Fed. Appx. at 420 n.55
(performing vehicle safety inspection was “clearly incidental to the commute under the ECFA
and thus noncompensable”); Espinoza v. County of Fresno, No. 07-1145, 2011 WL 3359632 at
*7 (E.D. Cal. Aug. 3, 2011) (routine visual inspections of fluid levels and tire pressure levels
needed to ensure that the vehicle is in safe operating condition were incidental to the use of the
vehicle under the ECFA).
Third, the evidence shows that the time spent by technicians turning on their PDA’s to
obtain their first assignment of the day, and to enter their status “en route” to their first job site, is
also incidental to their commute in a Charter-provided vehicle. While the technician must check
his first assignment early enough to ensure he or she has allotted sufficient commute time for the
morning to his first job site, this by its very nature is incidental to use by the technician of an
employer-provided vehicle for commuting from the technician’s home to his first job site at the
beginning of his day. See Chambers, 428 Fed. Appx. at 416 (communication between the
employee and employer to receive assignments or instructions is required in order for programs
which allow use of employer vehicle for commuting to exist; ECFA intended these activities to
be noncompensable). Moreover, the time required for a technician to turn on his PDA and check
his first job assignment and log “en route,” or even to check his first job assignment, and then
later log “en route” when he enters his vehicle, is de minimis. The evidence is that it takes less
than a minute to log in and check the first job assignment and/or log “en route.”
The case law supports that these activities are not principal activities, but are de minimis
and incidental to the Charter technicians’ commute. For instance, in Chambers, 428 Fed. Appx.
at 417, the court held that time spent plugging communications devices in overnight and logging
in to receive the first assignment in the morning relates to commute rather than to principal
activities, and is thus not compensable. In another case, Buzek, 501 F.Supp.2d at 876, 886-87,
the court held that time spent by the employee plugging in communications device to upload and
download information about service calls was incidental to the use of the company vehicle for
commuting and not compensable.
21
Here, even considering the cumulative daily time required for completing the pre- and
post-commuting activities set forth in Charter policies, such time is de minimis and incidental.
Although there is no evidence showing exactly how long it takes technicians to complete the
preliminary and postliminary activities each day, no reasonable jury could infer from the
evidence that these activities require more than a de minimis amount of time. There is no
evidence showing that these activities would even total ten minutes in any given day. See Rutti,
596 F.3d at 1056-57 (noting that most courts have found preliminary work of 10 minutes or less
a day to be de minimis and not compensable). Moreover, the evidence supports that these
activities are incidental to Charter technicians using Charter-provided vehicles to commute from
their homes to their first job sites and back to their homes at the end of their work day. The
evidence does not support plaintiffs’ allegations that Charter’s policies related to pre and postcommute activities of broadband technicians violate the Portal-to-Portal Act/ECFA.
Other Alleged Pre- and Post-Shift Activities
Plaintiffs also assert that Charter failed to compensate them for “gathering tools” and
doing “paperwork” before and after their shift. However, plaintiffs have no evidence that they
are required to perform these activities before or after their shifts and, in fact, Charter’s policies
tell technicians to conduct these activities only while on the clock. Further, Charter policy states
that if such activity would be required, that such activity is compensable.
The only tools technicians need to gather, as discussed in the previous section, are a
signal level meter, a PDA and a laptop (if applicable), and activities related to these tools are
incidental to the commute by Charter technicians in a Charter-provided vehicle. All other
equipment is kept in the Charter vehicle overnight and is to be secured in the vehicle while
technicians are still on the clock, as set forth in policy. Charter’s policies similarly instruct
technicians to stock their vehicle with necessary equipment during their shift. Any time spent by
a technician obtaining or replenishing equipment needed to perform service calls is compensable
under the clear language of Charter’s Timekeeping Memoranda, to be performed during the shift
and not before or after.
As to paperwork, Charter’s Timekeeping Memoranda plainly does not require technicians
who commute in Charter vehicles to perform any paperwork prior to or after their commutes; to
the contrary, the policy prohibits technicians from doing so.
22
Plaintiffs also allege that Charter’s Cash Management Policy requires them to turn in any
funds collected on a daily basis to the Charter facility. Plaintiffs allege that policy requires them
to turn in any collected funds no later than the next morning, thus requiring technicians to make a
stop by the office to deposit monies either after their scheduled shift ended or prior to the
beginning of their shift the next day. However, plaintiffs fail to identify the specific Charter
policy requiring such activity, and the evidence does not support that no later than the next
morning means turning the funds in off the clock. According to the deposition testimony of
Charter’s technical operations supervisor, a technician who collects cash or money should turn it
in the day it is received; however, it can be held overnight by the technician and turned in the
“very next morning,” with an exception for weekends when it may be held overnight longer. See
Doc. 43, Ex. 1, Moser Dep. at 68-69. Plaintiffs’ allegations that the “very next morning”
requires a deposit off the clock prior to the beginning of their shift is not supported by the
evidence. Rather, the undisputed evidence is that contrary to the plaintiffs’ assertions, Charter’s
policies specifically require that technicians are to turn in customer payments while on the clock.
With regard to all these allegations, to the extent a technician would need to work prior to
or after their shift, Charter’s policies make it clear that technicians will be paid for all time
worked, regardless of when it occurs. In particular, they state that: (1) if employees begin their
workday before the start of their scheduled shift, they will be paid from the time they begin their
workday before the start of their scheduled shift; (2) if a technician is required to work past the
end of their shift to return to the office or complete other tasks, they will be paid up until the time
they complete all work, even if it is after the end of the shift; and (3) as a general rule,
technicians will be paid for all time worked.
Normal Commuting Area
Plaintiffs allege the commuting area for Charter broadband technicians in the Sedalia,
Missouri area includes traveling to job sites in the Warrensburg area, thereby making the
commute a principal activity, and the ECFA exception for commuting within the normal
commuting area and related incidental activities inapplicable. Specifically, plaintiffs allege that
because the commuting area for the Sedalia, Missouri broadband technicians includes
commuting to the Warrensburg area, such commute is longer than the normal commuting area
23
for Charter broadband technicians and, therefore, is not incidental as defined by the Portal-toPortal Act/ECFA, and should be compensable as a principal activity.
Charter argues that the nature of their business makes the Sedalia technicians commute
time to Sedalia and Warrensburg normal. Charter’s policies do not define normal commute time
in geographical terms because the territory assigned to each technician differs by office, and by
the location of the technician’s residence. See Doc. 43, Ex. 1, Moser Dep. at 115:22-24.
However, Charter’s policies do specifically state that if a technician’s commute time is in excess
of an hour, the technician is to notify his supervisor to determine whether the technician should
be compensated for such time. Here, the evidence does not support that technicians are
commuting in excess of one hour; rather, the evidence is that the typical commute time for
technicians is 15 minutes to their first job. Id. at 115:13-18. A broad allegation of
uncompensated commutes in excess of one hour which is unsupported by evidence is not
sufficient to overcome a motion for summary judgment.
Moreover, plaintiffs’ allegations that travel by Sedalia technicians to the Warrensburg
area is outside the normal commuting area for Charter technicians assigned to that area is not
supported by the evidence. Rather, the evidence supports the contrary. There is no evidence to
support plaintiffs’ assertion that Charter’s store front location in Warrensburg dictates that
Charter should have broadband technicians who are assigned only to the Warrensburg
geographical area. Charter’s policies do not define what is a normal geographical location or
what is the normal commute; the policies provide that if a technician commutes outside his
assigned limited geographical area he is compensated, and if his commute is in excess of an
hour, he should notify his supervisor in order for a determination to be made as to whether such
commute should be compensable. Here, clearly, the evidence is that the normal geographical
location for Charter broadband technicians in the Sedalia area includes the Warrensburg area.
The evidence does not support that Charter technicians in the Sedalia office are being required to
commute outside the normal commuting area for that region of Charter’s business; the normal
commuting area is Sedalia and Warrensburg.
To the extent plaintiffs allege the commute by Sedalia technicians to Warrensburg
precludes application of the ECFA because these technicians are using Charter’s vehicle for
travel outside the normal commuting area for Charter’s business or establishment, the evidence
24
simply does not support this. Thus, for the reasons set forth herein, Charter’s policies in this
regard do not violate the Portal-to-Portal Act/ECFA.
Continuous Workday Rule
Plaintiffs argue that because the activities they perform pre- and post-commute are
principal activities and are directed by Charter policy, this extends their workday to include their
pre-commute and post-commute activities, as well as their commute time to and from their
homes that occurs in between. See Alvarez, 546 U.S. 21 (2005); Lemmon v. City of San
Leandro, 538 F.Supp.2d 1200, 1208 (N.D. Cal. (2007). This issue, however, is resolved with
this Court’s determination that the pre- and post-commute activities required by Charter policies
are incidental activities to Charter technicians’ commute in Charter vehicles, and therefore, are
not compensable as principal work activities. Id.
Conclusion
The motions for partial summary judgment specifically state the issue is whether Charter
policies comply with the Portal-to-Portal Act/ECFA. However, plaintiffs’ motion also argues
unique facts and circumstances of their employment which they allege violate the Portal-toPortal Act. The Court finds that such allegations fail to support that Charter’s policies are not in
compliance with the Portal-to-Portal Act or the ECFA.
For the reasons set forth in this order, this Court finds there is no dispute of material fact;
Charter’s policies are consistent with the plain language of the Portal-to-Portal Act/ECFA, its
legislative history, and established federal precedent. No reasonable jury could conclude that
Charter’s compensation and timekeeping policies applicable to its Broadband Technicians who
commute in Charter vehicles violate the Portal-to-Portal Act or the ECFA. Charter is entitled to
judgment as a matter of law.
IT IS, THEREFORE, ORDERED that the motion for partial summary judgment filed by
defendants Charter Communications, L.L.C., and Charter Communications, Inc., is granted. [49]
It is further
ORDERED that the motion for partial summary judgment filed by plaintiffs Peter Donatti
and Matthew Cowan is denied. [39]
25
Dated this 29th day of March, 2013, at Jefferson City, Missouri.
/s/
Matt J. Whitworth
MATT J. WHITWORTH
United States Magistrate Judge
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