BOWE v. ENVIRO PRO BASEMENT SYSTEMS et al
Filing
49
OPINION. Signed by Judge Noel L. Hillman on 12/22/2015. (TH, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JASON BOWE,
Civil No. 12-2099 (NLH/KMW)
Plaintiff,
OPINION
v.
ENVIRO PRO BASEMENT SYSTEMS,
et al.,
Defendants.
APPEARANCES:
Justin L. Swidler
Nicholas Dennis George
Swartz Swidler, LLC
1878 Marlton Pike East
Society Hill Office Park
Suite 10
Cherry Hill, New Jersey 08003
Attorneys for Plaintiff Jason Bowe
James M. Carter
Law Offices of Hoffman DiMuzio
4270 Route 42
Turnersville, New Jersey 08012
Attorney for Defendants Enviro Pro Basement Systems and
Michael Troyner
HILLMAN, District Judge
This matter comes before the Court by way of Plaintiffs’
motion for summary judgment [Doc. No. 42].
Defendants have not
filed opposition brief, only a “Statement of Material Facts in
Opposition” [Doc. No. 47].
The Court has considered the
parties’ submissions and decides this matter pursuant to Federal
Rule of Civil Procedure 78.
For the reasons expressed below, Plaintiffs’ motion will be
granted in part and denied in part.
I.
JURISDICTION
This class has been conditionally certified pursuant to the
Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.
Accordingly, the Court exercises jurisdiction over this matter
pursuant to 28 U.S.C. § 1331.
The Court exercises supplemental
jurisdiction over Plaintiff’s state law claims pursuant to 28
U.S.C. § 1367.
II.
BACKGROUND
Defendant Enviro Pro Basement Systems (hereinafter, “Enviro
Pro”) is a residential basement waterproofing business that also
installs water removal systems in residential homes.1
Compl. ¶ 7.
See Am.
Defendant Michael Troyner is the owner and operator
of Enviro Pro.
Am. Compl. ¶ 8.
Plaintiff Jason Bowe was
employed by Defendants from approximately 2005 (or 2006) until
his termination in February 2012.
1
Am. Compl. ¶ 17.
From
There appears to be no dispute that Enviro Pro is an
employer within the meaning of 29 U.S.C. § 203(d) which provides
in pertinent part that an employer “includes any person acting
directly or indirectly in the interest of an employer in
relation to an employee and includes a public agency, but does
not include any labor organization (other than when acting as an
employer) or anyone acting in the capacity of officer or agent
of such labor organization.” 29 U.S.C. § 203(d).
2
approximately April 1, 2009 through the date of his termination,
Plaintiff worked in the capacity of Foreman and Service Manager.
Plaintiff’s Amended Complaint alleges that he and the
conditionally certified Collective Action Plaintiffs
(collectively, “Plaintiffs”) were laborers whose primary duties
involved providing basement waterproofing services, including,
but not limited to, removal of mold and mildew, painting
surfaces, and installing pumps.
Am. Compl. ¶ 22.
Plaintiffs
assert that their daily job routine consisted of:
(a) arriving at Defendants’ Newfield, NJ location
to receive information relating to the day’s
assignments, to load the company vehicle with
supplies needed for the job, and to transport
the company vehicle and employees to the job
site;
(b) transporting said vehicle and employees to the
job site;
(c) engaging in basement waterproofing services at
the customer job site;
(d) transporting the vehicle, employees, and
supplies from the customer job site [back] to
Defendants’ Newfield, NJ location; and
(e) unloading the company vehicle, cleaning and
preparing the company vehicle for use the next
day, and restocking new materials.
Am. Compl. ¶ 23.
Plaintiffs allege that Defendants violated the FLSA by: (1)
failing to pay hourly employees for all their compensable work
time; (2) automatically deducting 30 minutes of paid time from
the work day as a lunch deduction even when no bona fide 303
minute lunch break was taken; and (3) improperly calculating the
regular rate of pay when determining appropriate overtime
compensation for Jason and Ryan Bowe.
On December 4, 2013, Plaintiff Jason Bowe’s class was
conditionally certified.
Since the filing of his Amended
Complaint, six Plaintiffs have filed Consents to Join in this
collective action: Cody Bowe, Ryan Bowe, Charles Esposito, David
Nordberg, Aaron Malloy, and Michael Burke.
III.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the Court is
satisfied that “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”
Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
Id.
In considering a motion for summary
4
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.
2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
U.S. at 323.
Celotex, 477
Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for trial.
Id.
Thus, to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party.
Anderson, 477 U.S. at 256–57.
A party opposing summary
judgment must do more than just rest upon mere allegations,
general denials, or vague statements.
Saldana v. Kmart Corp.,
260 F.3d 228, 232 (3d Cir. 2001).
IV.
DISCUSSION
A. Overtime Compensation
Plaintiffs first ask the Court to grant summary judgment on
their FLSA claims because the undisputed facts demonstrate that
5
Defendants failed to pay Plaintiffs overtime wages for time
worked: (1) after 3:30 p.m.; (2) during lunch breaks; and (3) at
appropriate rates for weeks in which Jason and Ryan Bowe earned
commissions.
1. Unpaid Post-Shift Hours Worked
The record is undisputed that Plaintiffs reported to work
around 7 a.m. and were paid until 3:30 p.m.
Plaintiffs allege
that they were not paid for work which often occurred after 3:30
p.m., including transporting the company vehicles, employees,
and supplies back to the Newfield location (hereafter, “home
base”); unloading and cleaning the company vehicles; preparing
the vehicles for use the following day; and restocking
deliverables.
Am. Compl. ¶¶ 26-27; Pl.’s Statement of Material
Facts (“SMF”) ¶ 34.
Plaintiffs allege this work regularly
amounted to 30-90 minutes - and sometimes up to two hours - of
additional unpaid work duties each day.
Am. Compl. ¶¶ 28-30.
The FLSA requires employers to pay employees at a rate of
one and a half times the employees’ regular rate for all hours
worked in excess of 40 hours per week.
29 U.S.C. § 207(a)(1);
IBP, Inc. v. Alvarez, 546 U.S. 21, 25, 126 S. Ct. 514, 518, 163
L. Ed. 2d 288 (2005).
In 1945, Congress passed the Portal-to-
Portal Act which excluded from compensation activities which are
6
preliminary or postliminary to the principal work activity.
at 26-27.
Id.
Then in 1947, the Department of Labor enacted the
“continuous work day rule,” which mandated that workers must be
compensated for “the period between the commencement and
completion on the same workday of an employee’s principal
activity or activities.”
Id. at 28 (citing 29 CFR § 790.6(b)).
The Supreme Court clarified this definition in Steiner v.
Mitchell, 350 U.S. 247, 248, 76 S.Ct. 330, 100 L.Ed. 267 (1956),
holding that “the term ‘principal activity or activities’ in
[the Portal-to-Portal Act] embraces all activities which are an
‘integral and indispensable part of the principal activities.’”
Id. at 29-30.
Thus, the questions before the Court are whether after 3:30
p.m. Plaintiffs were required to drive Defendants’ vehicles and
supplies back to home base where they then prepared the vehicles
for the following day and whether Plaintiffs should have been
compensated for this work.
Defendants essentially argue that if Plaintiffs were ever
required to work over eight hours per day, they owed more time
to the company than they would have been paid overtime because
they often arrived around 15 minutes late to the start of a
shift, were paid for coffee stops, and were paid for a full
7
eight-hour shift each day, even if they worked substantially
less.
See Defs.’ Statement of Material Facts in Opp. (“Opp.
Facts”) ¶ 25.
Defendants’ argument is unavailing.
If
Plaintiffs worked over 40 hours per week they must be paid
overtime for those hours.
Defendants cannot unilaterally “bank”
time previously paid to its employees and subtract any amount of
owed overtime, based on their estimations.
The record is undisputed that Defendants did not pay
Plaintiffs for returning the work vehicles to home base if it
occurred after 3:30 p.m.
SMF ¶ 33.2
Barbara Ogonowki, an Office
Manager at Enviro Pro during the relevant time period, testified
that Defendants did not pay Plaintiffs for driving the work
vehicles back to home base after 3:30 p.m.:
Q: Okay, so the question was: did [D]efendants fail to
pay the foreman and the laborers for time spent
transporting the trucks from the job site to the home
base?
A: Did they pay them?
Q: Did they fail to pay them?
A: Did they fail to pay them? Yes.
2
As discussed above, Defendants assert they did pay Plaintiffs
for the time they spent transporting the company vehicles and
supplies back to home base based on their “banked” time theory –
an argument the Court rejects. SMF ¶ 33. Defendants do not
dispute Plaintiffs were not actually paid after 3:30 p.m.
8
Decl. of Matthew Miller, Ex. D, Ogonowski Dep. 46:13-19.
This
testimony is further supported by the fact that Plaintiffs were
required to text home base at the time of their departure from a
customer’s house in order to create a record their hours worked,
and not when they returned to home base.
Ogonowski Dep. 29:1-
14.
Each morning, Plaintiffs were required to first report to
home base to pick up tools and were paid for travel time from
home base to a customer’s home.
Plaintiffs were entitled to,
and received, compensation for this time because loading and
preparing the trucks at home base was the first principal work
activity.
29 C.F.R. § 785.38 (“Where an employee is required to
report at a meeting place to receive instructions or to perform
other work there, or to pick up and to carry tools, the travel
from the designated place to the work place is part of the day's
work, and must be counted as hours worked regardless of
contract, custom, or practice.”).
Plaintiffs were not, however,
paid for travel time from the customer’s home back to home base
if that travel time occurred after 3:30 p.m.
Plaintiffs were
entitled to be paid for the time spent returning the work
vehicles and supplies back to home base since that activity was
“integral and indispensable” to the principal activity of
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traveling to a customer’s home to perform waterproofing and
other services.
29 C.F.R. § 790.6(a) (“[p]eriods of time
between the commencement of the employee’s first principal
activity and the completion of his last principal activity on
any workday must be included in the computation of hours worked
...”); Pehle v. Dufour, No. 06-1889, 2012 WL 4490955, at *10
(E.D. Cal. Sept. 28, 2012) (“Loading the van at the shop and/or
supply house and driving it to the job sites, and then returning
the van to the shop at the end of the day, were ‘integral and
indispensable’ parts of plaintiff’s principal activities as an
electrician for defendants, and were neither ‘preliminary or
postliminary activities.’”).
Put another way, if Defendants did
not require Plaintiffs to perform this work the vehicles would
remain at the customer’s residence overnight and Defendants
would not have the vehicles at their disposal the following
morning.
Thus, returning the vehicles was part of each day’s
work and benefitted Defendants.3
Defendants raised no dispute of fact that Plaintiffs were
required to bring the work truck back to home base in
3
Plaintiff Jason Bowe testified that he was sometimes permitted
to bring a work truck home. The travel time from the job site
to his home in the work truck which occurred after 3:30 p.m. is
not compensable and should not be included in any calculation.
10
anticipation of the next day’s assignment.
compensated.
This time must be
If any employee traveled from a worksite directly
home after 3:30 p.m. in a work vehicle or personal vehicle that
time is not compensable.
29 C.F.R. § 785.35 (“Normal travel
from home to work is not worktime.”).
While there is no dispute that Defendants failed to
compensate Plaintiffs for driving the work vehicles back to home
base after 3:30 p.m., there is a material fact question as to
whether Plaintiffs worked additional time prepping the vehicles
for the following day once there.
Decl. of James M. Carter, Ex.
C, M. Toryner Dep. at 19:9-21 (testifying that waste from a job
is not disposed of until the following morning); Decl. of James
M. Carter, Ex. A, C. Troyner Dep. at 19:15-21 (“It’s just very
typical that every morning, bags are coming off the trucks.”);
SMF ¶ 31 (citing Ex. M ¶ 5; Ex. N ¶ 5; Ex. O ¶ 5; Ex. P ¶ 5; Ex.
Q ¶ 5; Ex. R ¶ 5; Ex. S ¶ 5) (stating that Plaintiffs prepped
the vehicles upon returning to home base at the end of the day).
Accordingly, Plaintiffs are entitled to compensation for
time spent bringing the work vehicles and supplies from the job
site back to home base after 3:30 p.m.
However, in their
calculations, Plaintiffs have combined the time spent returning
the vehicles to home base and additional time worked once there.
11
Whether Plaintiffs performed additional work duties when back at
home base is a disputed question of fact for a jury.
Therefore,
at this time the Court is unable to determine how much overtime
Plaintiffs are owed.
2. Lunch Break Deductions
As to the second purported FLSA violation, automatic lunch
break deductions, Plaintiffs assert that Defendants
automatically deducted 30 minutes of paid time from the work day
for lunch even when no bona fide meal break was taken.
Compl. ¶¶ 33, 35.
Am.
Plaintiffs further assert that Defendants did
not require employees to take a lunch break and did not attempt
in any way to track whether lunch breaks occurred.
34.
Am. Compl. ¶
Plaintiffs allege they “rarely, if ever, took a bona-fide
30 minute uninterrupted lunch break” and were consistently
docked 30 minutes of paid work time.
Am. Compl. ¶¶ 36-37.
The Department of Labor (“DOL”) describes bona fide meal
periods as follow:
Bona fide meal periods are not worktime.... The
employee must be completely relieved from duty
for purposes of eating regular meals. Ordinarily
30 minutes or more is long enough for a bona fide
meal period. A shorter period may be long enough
under special conditions. The employee is not
relieved if he is required to perform any duties,
whether active or inactive, while eating. For
example, an office employee who is required to
eat at his desk or a factory worker who is
12
required to be at his machine is working while
eating.
29 C.F.R. § 785.19(a).
Defendants do not dispute that Plaintiffs were
automatically deducted thirty minutes of time whether or not
they took a bona fide lunch break.
SMF ¶ 38; Opp. Facts ¶ 38.
Defendants also do not dispute that they did not require or
monitor lunch breaks and did not have any policy or procedure by
which employees could report a missed lunch break to avoid the
automatic deduction.
SMF ¶¶ 39-41.
Defendants respond to
Plaintiffs’ allegations by asserting that they did not know
Plaintiffs were missing lunch breaks.
Further, Michael Troyner,
the owner, testified that he often observed his employees taking
lunch breaks.
See Decl. of James M. Carter, Ex. C, Dep. of M.
Troyner 9:16-10:9 (“I have arrived on many of these work sites
and interrupted their lunch.”).
Plaintiffs, in turn, testified
that they rarely, if ever, took a bona fide 30-minute lunch
breaks.
SMF ¶ 42 (citing Ex. M ¶¶ 15-17; Ex. N ¶¶ 15-17; Ex. O
¶¶ 15-17; Ex. P ¶¶ 15-17; Ex. Q ¶¶ 15-17; Ex. R ¶¶ 15-17; Ex. S
¶¶ 15-17).
Thus, before the Court is a pure credibility
determination.
Accordingly, summary judgment will be denied as
to this claim.
3.
Calculation of Overtime “Regular Rate”
13
The final purported FLSA violation alleged by Plaintiffs
relates to Defendants’ purported failure to properly calculate
Jason and Ryan Bowe’s overtime pay during weeks in which they
earned commission.
Jason and Ryan Bowe allege that despite
paying these commissions, Defendants “failed to include [those]
commission[s] in[] a ‘weighted average’ when determining ... [an
employee’s] regular rate” of pay – the rate that was then used
to calculate that employee’s overtime compensation.
Am. Compl.
¶ 39.
Under the FLSA, “[c]ommissions (whether based on a
percentage of total sales or of sales in excess of a specified
amount, or on some other formula) are payments for hours worked
and must be included in the regular rate [for computing
overtime].”
29 C.F.R. § 778.117.
Defendants do not dispute
that they failed to include commissions earned by Jason and Ryan
Bowe in the calculation of their regular rate in every workweek
in which they earned commission and worked in excess of 40
hours.
Opp. Facts ¶ 44.
Accordingly, Plaintiffs Jason and Ryan
Bowe are entitled to summary judgment on this claim.4
4
Jason and Ryan Bowe have included in their calculations
overtime owed for time spent returning the work vehicles to home
base and prepping for the following work day once there. The
Court has found as a matter of law that Jason and Ryan Bowe were
entitled to be paid for time spent bringing the work vehicles
14
B. Individual Liability
Plaintiffs argue summary judgment is warranted as to
individual liability against Enviro Pro owner Michael Troyner
for failing to pay overtime compensation.
“A corporate officer
with operational control is an ‘employer’, along with the
corporation, jointly and severally liable under the Act for
unpaid wages.
Further, any such corporate officer is liable in
his individual, not representative, capacity.”
Dole v. Haulaway
Inc., 723 F. Supp. 274, 286-87 (D.N.J. 1989) aff'd, 914 F.2d 242
(3d Cir. 1990), cert. denied, 499 U.S. 936 (1991) (citations
omitted); Sandom v. Travelers Mortgage Servs., Inc., 752 F.
Supp. 1240, 1251 (D.N.J. 1990) (same); Donovan v. Agnew, 712
F.2d 1509, 1511 (1st Cir. 1983) (“The overwhelming weight of
authority is that a corporate officer with operational control
of a corporation's covered enterprise is an employer along with
the corporation, jointly and severally liable under the FLSA for
unpaid wages.”).
While Michael Troyer may have individual
liability imposed on him, Plaintiffs have not shown Michael
Troyner is liable under the circumstances as a matter of law.
and supplies from the last job site back to home base. However,
there is a disputed fact question as to whether any work was
done once there. Thus, the Court is unable to determine how
much overtime these Plaintiffs are entitled to because these
figures have been combined.
15
Factual questions exist as to whether Michael Troyner was
personally responsible for failing to pay Plaintiffs appropriate
compensation.
See Crossley v. Elliot, No. 07-0017, 2011 WL
1107868, at *7 (D.V.I. Mar. 25, 2011) (“individuals can be held
liable for FLSA violations only when they have control over
compensation or payroll functions and are personally involved in
decisions which ultimately violate the FLSA”) (citing cases).
Accordingly, summary judgment is denied as to this claim.
C. Plaintiff’s Estimates of Unpaid Time Worked
When an employee brings a claim under the FLSA he or she
bears the initial burden of proving that he or she was not
properly compensated.
Reich v. Gateway Press, Inc., 13 F.3d
685, 701 (3d Cir. 1994) (citing Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 687–88, 66 S.Ct. 1187 (1946)).
Recognizing
that this burden is difficult to meet if an employer has not
maintained its records, “‘[t]he burden of any consequent
imprecision [in an employee’s calculation of damages] must be
borne by th[e] employer,’ id. (citing Anderson, 328 U.S. at 688,
66 S.Ct. 1187), and the employee will only be required to
‘submit sufficient evidence from which violations of the [FLSA]
and the amount of an award may be reasonably inferred.’ Once
this inference is created, the burden shifts to the employer to
16
rebut that inference.”
Rosano v. Twp. of Teaneck, 754 F.3d 177,
188 (3d Cir. 2014) (internal citations omitted).
Plaintiffs argue it is undisputed that Defendants did not
maintain records of job site locations or work performed at home
base at the end of the day and thus the Andersen burden-shifting
framework applies.
Plaintiffs estimate they were uncompensated
for 30-90 minutes per day of travel and shop time, so demand
compensation for 60 minutes per day as an average.
However, at
this time, it is a disputed question of fact as to whether
Plaintiffs performed work after arriving back at home base.
Section IV.A.1., supra.
See
Accordingly, one of two things may
happen going forward: one, a jury may find that Plaintiffs did
regularly perform work back at home base after returning the
vehicles and should be compensated for the average of 60
minutes, or two, a jury may find Plaintiffs did not regularly
perform work back at home base and thus Plaintiffs will only be
entitled to the average travel time from the last job site to
home base.
Relatedly, a question of fact exists as to whether
Plaintiffs took daily bona fide meal breaks.
IV.A.2., supra.
See Section
Further, while the Court has found that
Defendants failed to pay Jason and Ryan Bowe a proper overtime
17
rate during weeks in which they earned commissions, the Court
cannot yet determine whether overtimes wages for post-shift work
and meal break deductions should be included in this
calculation.
D. Liquidated Damages
Employers who violate the FLSA are liable to the affected
employee for any unpaid overtime compensation, and for an
additional equal amount as liquidated damages. 29 U.S.C. §
216(b).
However, “the district court in its sound discretion
[is permitted] to withhold or reduce the amount of liquidated
damages ‘if the employer shows ... that the act or omission
giving rise to such action was in good faith and that he had
reasonable grounds for believing that his act or omission was
not a violation of the [FLSA].’”
Brooks v. Vill. of Ridgefield
Park, 185 F.3d 130, 137 (3d Cir. 1999) (citing 29 U.S.C. § 260).
The good faith requirement is a subjective one
that “requires that the employer have an honest
intention to ascertain and follow the dictates of
the Act.” . . . The reasonableness requirement
imposes an objective standard by which to judge
the employer's conduct . . . Ignorance alone will
not exonerate the employer under the objective
reasonableness test . . . If the employer fails
to come forward with plain and substantial
evidence
to
satisfy
the
good
faith
and
reasonableness requirements, the district court
is without discretion to deny liquidated damages.
18
Id. (citing Martin v. Cooper Elec. Supply Co., 940 F.2d 896,
907-08 (3d Cir. 1991)).
Here, Defendants have come forward with
no evidence to satisfy the good faith and reasonable
requirements.
Thus, the Court has no reason to limit or deny
the statutory liquidated damages and will award an additional
equal amount of liquidated damages once the unpaid overtime
compensation is appropriately calculated.
E. Gap Time
Count II of the Amended Complaint alleges a claim under the
New Jersey Wage and Hour Law (NJWHL), N.J.S.A. 34:11-56a et
seq., as to the “Named Plaintiff” only for “failure to pay
overtime.”
Am. Compl. ¶ 54.
Count III alleges a claim under
the New Jersey Wage Payment Law (NJWPL), N.J.S.A. 34:11-4.1 et
seq., also as to the “Named Plaintiff” only for “failure to pay
wages.”
Am. Compl. ¶ 62.
Both claims are designated in the
Amended Complaint as “Individual Claims[s].”
Am. Compl. at 10.
In the instant motion for summary judgment, Plaintiffs seek
summary judgment under the NJWPL.
Pl.’s Br. at 20-21.
Plaintiff's Amended Complaint states that “Defendants’
aforementioned conduct violated the New Jersey Wage Payment
Collection Law” and “[a]s a result of Defendants’ aforesaid
19
illegal actions, Named Plaintiff has suffered damages.”
Am.
Compl. ¶¶ 61-62.
As a preliminary matter, Plaintiffs cannot collectively
seek summary judgment when the Amended Complaint only asserts
claims as to the Named Plaintiff, Jason Bowe.
Plaintiffs cannot
use a brief to add claims or causes of action to a complaint.
Accordingly, to the extent Plaintiffs other than Jason Bowe seek
the entry of summary judgment as to the NJWPL claims, that
relief will be denied.
As to Jason Rowe’s individual claim under the NJWPL, the
Court is unable to determine whether Jason Rowe is entitled to
summary judgment because it is not clear to the Court what
conduct is alleged in Count III.
For example, the Court does
not know whether Plaintiff Jason Rowe’s individual claim
references unpaid commissions or unpaid hours, or under what
provisions of the statute he seeks relief.
In fact, Plaintiff
does not reference the statute at all in his Amended Complaint.
Thus, at this time, the Court is unable to determine whether
Plaintiff is entitled to judgment as a matter of law on this
claim.
Accordingly, summary judgment on the NJWPL claim will be
denied.
20
V.
CONCLUSION
For the foregoing reasons Plaintiffs’ motion for summary
judgment will be granted in part and denied in part.
Summary
judgment will be granted on Plaintiffs’ claims that they were
not paid for driving work vehicles back to home base after 3:30
p.m. and for liquidated damages.
Jason and Ryan Bowe are
entitled to summary judgment on their claim regarding the
calculation of overtime in the weeks in which they earned
commissions.
Questions of fact exist as to whether Plaintiffs
performed work once back at home base and whether Plaintiffs
were deducted 30 minutes of paid time from the work day for
lunch even when no bona fide meal break was taken.
Plaintiffs
are not entitled to summary judgment on their individual
liability claim because a question of fact exists as to whether
Michael Troyner was personally responsible for failing to pay
Plaintiffs appropriate compensation.
Plaintiffs will not be
granted summary judgment on their state law claims.
An Order
consistent with this Opinion will be entered.
Date: December 22, 2015
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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