HIGGINSON, Circuit Judge:
Plaintiffs-Appellants alleged that they worked more than forty hours a week, and that their employer, Defendant-Appellee Coil Tubing Services, L.L.C. ("CTS"), wrongfully denied them overtime pay in violation of the Fair Labor Standards Act ("FLSA"). The district court held, among other things, that the Motor Carrier Act ("MCA") exempted certain CTS employees from the overtime-pay requirements of the FLSA based, in part, on the percentage of safety-affecting interstate activities these employees engaged in company-wide. Undertaking a limited interlocutory review, we AFFIRM.
FACTS AND PROCEEDINGS
CTS services oil wells. From 2005 to 2008, the company divided itself into six geographic "districts." The districts operated under a single U.S. Department of Transportation ("DOT") number, and were not legal entities distinct from CTS. The districts sometimes borrowed personnel and equipment from each other. They also sometimes solicited and accepted projects outside their respective geographic boundaries.
Plaintiffs worked in four of the districts: Alice, Texas; Angleton, Texas; Bridgeport, Texas; and Broussard, Louisiana. Their positions included: Equipment Operator ("EO"), Service Technician I ("ST-I"), Service Technician II ("ST-II"), Service Supervisor Trainee ("SST"), Service Supervisor ("SS"), Service Coordinator ("SC"), and Field Engineer I ("FE-I").
Plaintiffs' duties varied by position. SCs coordinated projects. FE-Is recorded the pressure of coil tubing units at well sites. EOs, ST-Is, ST-IIs, SSTs, and SSs helped transport materials to project sites.
Plaintiffs initiated this suit for overtime pay in November 2008. "To efficiently manage [the] case," the district court ordered the parties to conduct discovery on a cross-section of fourteen Plaintiffs, known as the "Bellwether group." On completion of discovery, the parties filed cross-motions for summary judgment on whether exemptions to the FLSA, and, in particular, an MCA exemption allowing certain employers not to pay overtime to employees engaged in safety-affecting interstate activities, applied to Plaintiffs.
The parties filed motions for reconsideration. Observing that "[n]either party had argued for a district-by-district analysis," the district court granted CTS' motion, and vacated its initial order.
The district court then granted, in part, summary judgment for CTS, using a company-wide analysis to find that the MCA exemption applied to many of the Plaintiffs. In a sixty-three page opinion issued January 11, 2012, the district court used the same individualized analysis to establish the class of FSEs, and to determine that only FSEs who worked on land-based wells engaged in activities affecting motor vehicle safety. The district court then reasoned that a company-wide analysis of these employees' interstate activities was appropriate because "[t]here is insufficient evidence or legal authority ... to treat the districts separately." Measuring the interstate activities of land-based FSEs on a company-wide basis, the district court found: that 7 percent of projects required these employees to drive across state lines; that such trips were assigned indiscriminately; and that, therefore, land-based FSEs had a "reasonable expectation" that they "could be assigned to drive interstate." The district court extended its rulings to all Plaintiffs, and not just those in the Bellwether group.
The district court granted Plaintiffs' request for permission to file an interlocutory appeal under 28 U.S.C. § 1292(b), explaining that its rulings, "particularly those involving application of the [MCA exemption], involve controlling questions of law as to which there is substantial ground for difference of option," and that "an immediate appeal from those rulings is likely to materially advance the ultimate termination of this litigation." This court then granted Appellants' motion for leave to appeal.
STANDARD OF REVIEW
"Although we ordinarily review a district court's summary judgment ruling de novo, our appellate jurisdiction under [28 U.S.C.] § 1292(b) extends only to controlling questions of law, thus, we review only the issue of law certified for appeal." Tanks v. Lockheed Martin Corp., 417 F.3d 456, 461 (5th Cir.2005). The district court certified for interlocutory appeal the rulings in its January 11, 2012 order, "particularly those involving application of the [MCA exemption]." We therefore limit our review to these rulings, particularly whether the MCA exemption applies.
THE MCA EXEMPTION
Section 207 of the FLSA requires an employer to pay overtime compensation to any employee working more than forty hours in a workweek.
At issue on appeal is the MCA exemption, "which states that the FLSA's overtime requirement `shall not apply ... to... any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49' of the MCA.'" Id. (alterations in original) (quoting 29 U.S.C. § 213(b)(1)). Section 31502, in turn, provides that the DOT "may prescribe requirements for ... qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation." 49 U.S.C. § 31502(b)(2). The DOT may establish these requirements for employees who
29 C.F.R. § 782.2(a); see Songer, 618 F.3d at 472. "For the motor carrier exemption to apply ... [the employees] must meet both of these requirements." Barefoot v. Mid-Am. Dairymen, Inc., No. 93-1684, 1994 WL 57686, at *2 (5th Cir. Feb. 18, 1994) (per curiam) (unpublished).
To satisfy the first requirement — whether the employer is "subject to [the DOT's] jurisdiction," 29 C.F.R. § 782.2(a) — an employer "must be engaged in interstate commerce." Songer, 618 F.3d at 472. The MCA defines interstate commerce as commerce "between a place in ... a State and a place in another State." 49 U.S.C. § 13501(1)(A). However, this definition "has not been applied literally by the courts. In fact, we have defined it as the actual transport of goods across state lines or the intrastate transport of goods in the flow of interstate commerce." Songer, 618 F.3d at 472 (internal quotation marks omitted).
To satisfy the second requirement — whether the employees "engage in activities of a character directly affecting the safety of operation of motor vehicles... in interstate ... commerce," 29 C.F.R. § 782.2(a) — "neither the name given to his position nor that given to the work that he does is controlling." 29 C.F.R. § 782.2(b)(2) (citing Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 707, 67 S.Ct. 954, 91 L.Ed. 1184 (1947)). Rather, "what is controlling is the character of the activities involved in the performance of [the employee's] job." 29 C.F.R. § 782.2(b)(2); see Levinson v. Spector Motor Serv., 330 U.S. 649, 674-75, 67 S.Ct. 931, 91 L.Ed. 1158 (1947) (observing that "[i]t is the character of the activities rather than the proportion of either the employee's
29 C.F.R. § 782.2(b)(3); see Songer, 618 F.3d at 474. "On the other hand, where the continuing duties of the employee's job have no substantial direct effect on such safety of operation or where such safety-affecting activities are so trivial, casual, and insignificant as to be de minimis, the exemption will not apply to[the employee] in any workweek so long as there is no change in his duties." 29 C.F.R. § 782.2(b)(3) (citing Pyramid, 330 U.S. at 707-08, 67 S.Ct. 954).
To measure whether employees are "likely to be ... called upon in the ordinary course of [their] work to perform ... safety-affecting activities" that are interstate in nature, 29 C.F.R. § 782.2(b)(3), we look to whether the employees "could reasonably have been expected to [engage] in interstate commerce consistent with their job duties." Songer, 618 F.3d at 476 (finding that a reasonable expectation arose when about 2.75 percent of "loads were transported across state lines"); see Morris v. McComb, 332 U.S. 422, 433-34, 68 S.Ct. 131, 92 L.Ed. 44 (1947) (applying the MCA exemption to drivers who spent about 4 percent of their time transporting goods in interstate commerce); Starrett v. Bruce, 391 F.2d 320, 323-24 (10th Cir. 1968) (applying the MCA exemption to a driver, even though the driver's employer derived no income from interstate transport, because the employer solicited interstate business and would have assigned the driver to interstate trips if the employer had obtained such business).
The parties do not dispute that CTS satisfies the first requirement — being "subject to [the DOT's] jurisdiction," 29 C.F.R. § 782.2(a) — because it is a motor carrier that engages in interstate commerce. Rather, the parties dispute the second requirement: whether the FSEs engaged in activities that affected "the safety of operations of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce." 29 C.F.R. § 782.2(a). Within the framework of this second requirement, the parties do not contest that an individualized analysis is appropriate to determine whether Appellants have similar-enough duties to belong to the class of employees that engages in safety-affecting activities. The parties only contest whether, in measuring the interstate activities of this class of employees, an "employee-by-employee," "district-by-district," or "company-wide" analysis is appropriate.
We hold that a company-wide analysis is appropriate in this case because this court's precedent effectively forecloses an employee-by-employee analysis, and the facts of this case, and arguments advanced by the parties, do not support a district-by-district analysis.
This court's Songer decision declined to adopt an employee-by-employee analysis.
Id. at 474.
The district court in this case explicitly and closely adhered to our Songer decision's reasonable expectation analysis. The district court created a chart that listed each member of the Bellwether group, and included the member's title, district, and start and end dates. Then the district court looked to each member's job duties to find that, notwithstanding their different positions, members working as EOs, ST-Is, ST-IIs, SSTs, and SSs had sufficiently similar duties to belong to a class of employees known as FSEs. Tellingly, the district court delimited this class by excluding FE-Is and SCs because there was "insufficient evidence about whether the FE-Is or the SCs engaged in safety-affecting transportation duties and whether there was a reasonable expectation that their work would affect the safety of interstate transportation." The district court further delimited this class by excluding FSEs who worked on offshore projects because "the factual record is conflicting and there remain open legal issues" as to whether offshore FSEs engaged in safety-affecting transportation activities affecting interstate commerce.
Relevant other Fifth Circuit and Supreme Court decisions are consistent with Songer. For example, in Barefoot, a unanimous panel found that twenty-six truck drivers engaged in interstate commerce even though "the drivers conceded that, among the twenty-six of them," only about "twenty trips were made across state lines." See 1994 WL 57686, at *3. Likewise, in Morris, the Supreme Court found that forty-three drivers, who, as a group, devoted "about 4% of their time and effort... to services in interstate commerce," engaged in interstate commerce even though two of the drivers did not take interstate trips. 332 U.S. at 432-34, 68 S.Ct. 131. By contrast, the circuit court cases cited by Appellants in support of an employee-by-employee analysis are distinguishable.
Appellants argue that, by using "singular nouns and pronouns," the relevant statutes and regulations, including 29 U.S.C. §§ 207(a), 213(b) and 29 C.F.R. § 782.2, envision an employee-by-employee analysis. Read in context, however, the use of singular terms suggests only that a district court should use an individual analysis to determine if an employee belongs to a particular "class." See, e.g., 29 C.F.R. § 782.2 (observing the exemption depends on "the class of work involved in the employee's job" and "extends to those classes of employees" who engage in safety-affective activities) (emphases added). As discussed above, by finding that certain employees had similar-enough duties to belong to a class of employees known as FSEs, and then by limiting this class, the district court used such an analysis.
Given the arguments advanced by the parties, and the facts of the case, a company-wide analysis was appropriate. The FLSA provides that overtime-pay requirements and exemptions apply only to an "employer." See 29 U.S.C. § 207(a)(1). The district court found that CTS "was Plaintiffs' only `employer' during the relevant time periods; Plaintiffs were not employed by the various districts." Appellants did not argue in district court that the districts were their employers, and they do not challenge on appeal the finding that CTS "was [their] only `employer.'" Appellants therefore have waived any argument to the contrary.
By waiving this textual argument, Appellants' opposition to a company-wide analysis reduces to their contention that "the percentages of interstate travel for [some districts] tell courts nothing about the reasonable expectation of a worker dispatched from [other districts]." However, Songer looks at the reasonable expectations of the employees as a class, even if, in doing so, the effect is to apply the MCA exemption to employees who rarely, or never, engage in interstate commerce. See 618 F.3d at 472-76. Songer does not instruct us to subdivide a class of employees by geography, and the facts of this case do not support such an artificial division. For example, the districts: operated under a single DOT number; were not independent legal entities; borrowed personnel and equipment from each other; and solicited and accepted projects outside their geographic areas. Accordingly, as the district court found, "[t]here is insufficient evidence or legal authority ... to treat the districts separately instead of conducting the MCA Exemption analysis based on CTS as a single `employer.'"
Accordingly, we AFFIRM the district court's application of the MCA exemption.
JAMES L. DENNIS, Circuit Judge, dissenting:
I respectfully dissent because the district court and the majority of this court have departed from controlling Supreme Court and circuit precedent and have misinterpreted and misapplied Department of Labor ("DOL") regulation 29 C.F.R. § 782.2(a) and this court's decision in Songer v. Dillon Resources, Inc., 618 F.3d 467 (5th Cir.2010), to except more than a hundred employees from overtime wage protection under the Fair Labor Standards Act ("FLSA").
The issue is whether the Motor Carrier Act ("MCA") exemption to the FLSA excepts the oil-well-service plaintiffs-employees here from overtime protection because their individual job activities can conceivably affect the safety of interstate transportation.
In Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 67 S.Ct. 954, 91 L.Ed. 1184 (1947), the Supreme Court held that, when the MCA exemption is invoked as a defense in an FLSA action for overtime pay, (1) the district court must "determine whether or not the activities of each [employee]" are reasonably likely to affect the safety of interstate transportation and that (2) the court may declare exempt from overtime wage protection only "those [employees] who are engaged in such activities." Id. at 707-08, 67 S.Ct. 954 (emphasis added).
Thus, under the Supreme Court's jurisprudence, MCA jurisdiction turns on the individual job circumstances of "each" employee seeking overtime pay. Pyramid Motor Freight Corp., 330 U.S. at 707, 67 S.Ct. 954. An employee loses the FLSA's protection over overtime pay under the MCA exemption only if the employee, based on the circumstances of his job, is reasonably likely to carry out activities affecting the safety of interstate transportation operations. See also Mitchell v. C. & P. Shoe Corp., 286 F.2d 109, 114 (5th Cir.1960) (holding that MCA jurisdiction turns on the "activities of the particular employee, rather than the employer"); accord Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37, 42-43 (5th Cir. 1962). The Supreme Court's jurisprudence requiring individual analysis of each employee's actual job circumstances for purposes of the MCA exemption has not been overruled or modified.
Here, however, the district court and the majority have failed to focus on the circumstances of each employee's actual job, as required by law, to determine whether that employee is exempted from overtime wage protection. Instead, they have erroneously concluded that, when a district court deems multiple employees' job duties and assignments to be, in the court's opinion, "sufficiently similar," the court may lump all of the employees together in a single "group" (the district court's word) or "class" (the majority's word)
Thus, in granting and affirming summary judgment for Coil Tubing Services, the employer here, my colleagues mistakenly have failed to require the employer to carry its heavy burden under its affirmative MCA exemption defense to show, on an individual basis, that each employee's job activities demonstrate that he is exempt from FLSA overtime protection. As support for this "group"- or "class"-based analysis that is conducted on a "companywide basis," the district court and majority point to the DOL's § 782 regulations and this court's recent Songer decision. The district court and the majority, unfortunately, have misread these sources. The DOL's § 782 regulations and Songer did not abrogate, nor could they have abrogated, the Supreme Court's jurisprudence requiring individual analysis of each employee's job circumstances. Because the district court's legal errors skewed and undermined its entire decision, its summary judgment should have been reversed rather than affirmed.
Under the FLSA, employers are generally prohibited from "employ[ing] any of
MCA jurisdiction (that is, the jurisdiction of the DOT under the MCA to establish the qualifications and maximum hours of service of employees) has three elements. First, under 49 U.S.C. § 31502(b),
Second, the DOT's jurisdiction "is limited to those employees whose activities affect the safety of [the transportation] operation," and the DOT "has no jurisdiction to regulate the qualifications or hours of service of any others." United States v. Am. Trucking Ass'ns, 310 U.S. 534, 553, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). To determine whether an employee's job activities affect the safety of the transportation operation, the courts have clarified the relevant inquiry to be whether "the employee's job duties are such that he is (or is likely to be) called upon in the ordinary course of his work to perform safety-affecting activities." E.g., Songer, 618 F.3d at 474 (quoting 29 C.F.R. § 782.2(b)(3)) (alteration omitted). Put another way, the question is whether the employee "can be reasonably expected" to engage in activities that affect the safety of transportation. Id. If the likelihood of engaging in safety-affecting activities is too remote and improbable, then the employee will not fall under MCA jurisdiction. Coleman v. Jiffy June Farms, Inc., 324 F.Supp. 664, 670 (S.D.Ala.1970), aff'd, 458 F.2d 1139 (5th Cir.1971); Kimball v. Goodyear Tire & Rubber Co., 504 F.Supp. 544, 548 (E.D.Tex.1980); Yaklin v. W-H Energy Servs., Inc., No. 07-CV-422, 2008 WL 4692419, at *6 (S.D.Tex. Oct. 22, 2008).
Third, the DOT's jurisdiction reaches only (1) international transportation, i.e., transportation that crosses the national border, (2) interstate transportation, i.e., transportation that crosses state borders, or (3) intrastate transportation of goods in the flow of interstate commerce. 49 U.S.C. §§ 31502(a), 13501; Songer, 618 F.3d at 472.
In sum then, under the MCA, the DOT may regulate the qualifications and maximum hours of service only for (1) employees of a "motor carrier" or "motor private carrier" (2) whose activities affect the safety of transportation, (3) and that transportation has an international or interstate nexus.
Here, there is no question of the first two elements. First, there is no question that Coil Tubing Services, an oil-well-service company, requires its employees in the course of their jobs to transport the company's property, including chemicals, tools, and coil tubing equipment, between the company's district offices and the jobsites, the customers' wells, and therefore qualifies as a "motor private carrier" under the statute. See Sinclair v. Beacon Gasoline Co., 447 F.Supp. 5, 10 (W.D.La. 1976), aff'd, 571 F.2d 978 (5th Cir.1978) (holding that "a natural gas well servicing company whose drivers carry tools and equipment in company-furnished pickup trucks ... is private carrier of property by motor vehicle"). Second, although the principal job of the employees here is to service the customers' oil wells and that, by itself, does not have an affect on the safety of transportation, the employees also transport Coil Tubing Services's property, i.e., the equipment, etc., to the jobsite via motor vehicle, and "[i]t is obvious that one who drives a vehicle" "directly affects the safety of such operations as long as he is driving." Crooker v. Sexton Motors, Inc., 469 F.2d 206, 209 (1st Cir.1972); see also Songer, 618 F.3d at 473. Thus, there is no question that, as the employees here are required to drive motor vehicles, they affect the safety of transportation when doing so. The third requirement for MCA jurisdiction is the interstate nexus, i.e., that the employee's job activities are such that the employee is reasonably likely to affect the safety of interstate, not merely intrastate, transportation.
The District Court's and Majority's Flawed "Group"-or "Class"-Based Analysis
From November 2005 through November 2008, Coil Tubing Services employed the 191 plaintiffs-appellees in this case as "field service employees" tasked with servicing
Initially, in its first summary-judgment ruling that was later vacated and supplanted by the decision now under review,
After the district court's first ruling, Coil Tubing Services moved the court to reconsider, and the court did. In its second decision, which is now under review, the district court cited regulations, codified at 29 C.F.R. § 782, of the DOL, the agency charged with enforcing the FLSA. 846 F.Supp.2d at 690.
Id. (citations omitted).
Based on § 782's language regarding "classes of employees" and the "class of work involved in the employee's job," the district court concluded that it should not address whether "the activities of each individual employee in issue directly affected the safety or operation of commercial motor vehicles in interstate transportation." 846 F.Supp.2d at 694 (emphasis added). Rather, the district court concluded that it must apply a "group analysis" on a "company-wide basis." Id. at 694-95.
To conduct such a "group analysis" on a "company-wide basis," the district court defined a "group" of Coil Tubing Service employees that it named "field service employees." Id. at 684. The court defined that "group" to encompass all of Coil Tubing Services's employees that had "job duties and assignments" that, in the court's opinion, were "sufficiently similar to permit some grouping." Id. at 694-95. Then, the district court turned to the fact that seven percent of all jobs companywide were interstate (that is, the aggregate figure that the district court had previously rejected as "skewed") and reasoned that, — even though the seven percent figure did not accurately represent the experience of the company's Texas and Louisiana employees — it nevertheless somehow applied to the Texas and Louisiana employees under the district court's "company-wide" "group analysis." Id. at 703-04 & n. 48. Accordingly, the district court held that seven percent of jobs company-wide being interstate was sufficient to subject all employees, regardless of their districts, in the "field service employees" "group" to MCA jurisdiction and granted summary judgment to Coil Tubing Services regarding the FLSA overtime pay claims of every employee in the judicially defined "group." Id. at 703, 715.
Now, the majority affirms the district court's analysis and, in a published opinion, sets it as the law of this circuit. According to the majority, to determine whether employees are subject to MCA jurisdiction, courts should use an "extensive individualized methodology" to include all of a company's
In short, in deciding MCA jurisdiction (specifically, whether an employee's job duties are reasonably likely to affect the safety of interstate transportation), the district court and the majority of this court agree that, if employees have "sufficiently similar" job duties, the court may lump them all together into a single "group" or "class" and then decide the jurisdictional question with respect to the "group" or "class" rather than the individual employees in it. This is wrong. Contrary to the district court and the majority, an employee is exempt from FLSA overtime protection only if the MCA applies to that employee individually — i.e., that employee's actual job circumstances are such that the employee is reasonably likely to affect the safety of interstate transportation. The relevant Supreme Court and circuit precedent requires individual analysis of the employee's actual job and prohibits the district court's and majority's "group"- or "class"-based analysis.
It appears that the district court and the majority have adopted their improper analysis based on two misunderstandings about the jurisprudence. First, the district court and majority appear to believe that the DOL's regulations codified at 29 C.F.R. § 782.2, which refer to "classes of employees," authorize the "group"- or "class"-based analysis that they applied here. See 846 F.Supp.2d at 690 (citing § 782.2(a)); ante, at 283-84 (same). Second, the district court and majority also contend that their "group"- or "class"-based analysis is required by Songer v. Dillon Resources, Inc., a 2010 decision of this court. See 846 F.Supp.2d at 694 (citing Songer); ante, at 284-86 (same). They are mistaken on both points. The history of the FLSA and MCA, to which I now turn, clearly indicates that the MCA exemption has always turned on the job circumstances of each individual employee.
The Statutory Enactments
The MCA was enacted in 1935 "to regulate transportation by motor carriers." § 202(a), 49 Stat. 543. When first enacted, the statute was enforced not by the DOT, which was not created until decades later, but by a predecessor agency, the Interstate Commerce Commission ("ICC"). §§ 203(a)(3), 204.
In 1938, the FLSA was enacted to "eliminate" "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." § 2, 52 Stat. 1060. In its original form, the FLSA contained, as it still does today, the MCA exemption. § 13(b)(1) ("The provisions of section 7 shall not apply with respect to any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935.").
The Interstate Commerce Commission's Jurisdictional Pronouncements
The MCA exemption in the FLSA "brought sharply into focus the coverage of employees by the Motor Carrier Act." Am. Trucking Ass'ns, 310 U.S. at 540, 60 S.Ct. 1059. In 1938, the ICC, noting that the FLSA had made the question of its jurisdiction important, instituted proceedings "for the purpose of determining the extent of our jurisdiction under section 204(a) of the Motor Carrier Act, 1935, to establish reasonable requirements with respect to qualifications and maximum hours of service of employees of common and contract carriers and of private carriers of property by motor vehicle." Ex parte No. MC-28, 13 M.C.C. 481, 481 (1939). The ICC described the dispute before it as follows:
Id. at 482. In 1939, the ICC sided with organized labor and announced that the agency's jurisdiction extends only to those employees "whose activities affect the safety of operation of motor vehicles engaged in transporting passengers and property in interstate and foreign commerce." Id. at 488. That, however, left open the question, what sorts of employees have activities that affect the safety of operation? In that regard, the ICC wrote:
Id. at 483.
This, it appears, was the first time the phrase "classes of employees" (to be precise,
In 1941, the ICC began looking at other classes of employees, specifically, "mechanics and other garage workers," "loaders," and "dispatchers." Ex parte No. MC-2, 28 M.C.C. 125, 132. As for "mechanics," the ICC concluded that they "devote a large portion of their time to activities which directly affect the safety of operation of motor vehicles operated in interstate or foreign commence" and, thus, fall within the ICC's jurisdiction. Id. at 133. But, as for "other garage employees," such as "men who do nothing but paint vehicles," their work, the ICC concluded, does not affect the safety of operation, and thus, the ICC may not regulate them. Id. As for "loaders," "whose sole duties are to load and unload motor vehicles and transfer freight between motor vehicles and between the vehicles and the warehouse," they too fell within the ICC's jurisdiction, the agency concluded, because "[t]he evidence makes it entirely clear that a motor vehicle must be properly loaded to be safely operated on the highways of the country." Id. at 133-34. But "dispatchers," the ICC concluded, do not affect the safety of operations. Id. at 135. And, the ICC reaffirmed its prior determination that "driver's helpers," like the drivers themselves, affect safety of operations. Id. at 136. In determining that "mechanics," "loaders," and "driver's helpers" carry out job duties that affect the safety of transportation, the ICC carefully defined what it meant by each of those terms, delineating who should, and who should not, be considered each. Finally, the ICC concluded that no other employees of motor carriers and motor private carriers besides "drivers and those classes of employees" already discussed "perform duties which directly affect safety of operation." Id. at 139. In sum, in 1941, the ICC determined that "drivers," their "helpers," "mechanics," and "loaders," as thoroughly defined by the Commission, all carry out duties affecting safety of operation and thus fall under MCA jurisdiction, and all other employees of "motor carriers" and "motor private carriers" do not.
The Supreme Court's 1947 Trilogy
In 1947, the Supreme Court established several important legal principles relating to the ICC's jurisdiction under the MCA. First, in Levinson v. Spector Motor Service, 330 U.S. 649, 67 S.Ct. 931, the Court held that the ICC's "findings of fact" regarding
Second was Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 67 S.Ct. 954, a companion case to Levinson. In Pyramid Motor Freight Corp., the defendant-employer invoked the MCA defense, contending that the plaintiffs-employees fit into the ICC's definitions of "loaders" and, thus, fell under the MCA exemption. The district court dismissed the case, holding that determination of whether the employees carry out job duties that affect safety of operation was not the role of the court, but was rather a task for the ICC. 59 F.Supp. 341, 343-4 (1945). The Supreme Court rejected the district court's conclusion that the determination should be referred to the ICC because, in Ex Parte No. MC-2, the ICC had already defined the "loaders" job classification subject to MCA jurisdiction. 330 U.S. at 706-07, 67 S.Ct. 954.
Id. at 707, 67 S.Ct. 954. Accordingly, the Supreme Court remanded to the district court and, importantly, ordered the district court to "determine whether or not the activities of each [employee], either as a whole or in substantial part, come within the Commission's definition of the work of a `Loader.'" Id. (emphasis added). The Court proceeded to explain that, "[i]f none of the ... activities of the respective respondents, during the periods at issue, come within the kind of activities which, according to the Commission, affect the safety of operation of motor vehicles in interstate or foreign commerce within the meaning of the Motor Carrier Act, then those [employees] of which that is true are entitled to [overtime pay under] the Fair Labor Standards Act." Id. at 708, 67 S.Ct. 954 (emphasis added). "On the other hand, if the whole or substantial part of [the] activities of the respective respondents, during the periods at issue, do come within the kind of activities which, according to the Commission, affect such safety of operation, then those respondents who are engaged in such activities are excluded from [overtime pay]." Id. (emphasis added). In short, the Court held in Pyramid Motor Freight Corp. that, in an FLSA action in which the MCA exemption is asserted as a defense, the role of the court is to determine separately whether the activities of "each" employee affect the
The third and final decision in the Supreme Court's 1947 trilogy was Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131. The question presented was whether an employee who spends most of his time at work carrying out duties that do not affect safety of transportation and only a fraction of his time carrying out activities that do falls under the MCA. Id. at 426, 68 S.Ct. 131. There, the evidence in the record showed that the employer, a cartage business, employed drivers to transport property. Id. at 427, 68 S.Ct. 131. About four percent of the company's jobs involved the transportation of goods moving in interstate commerce. Id. at 432-33, 68 S.Ct. 131. The company assigned those jobs to the drivers "indiscriminately." Id. at 433, 68 S.Ct. 131. The Court held that, in such circumstances, where about four percent of a company's transportation jobs with an interstate nexus are shared indiscriminately among the company's drivers, thus making the interstate commerce trips a "natural, integral, and apparently inseparable part" of each driver's job, that amount of interstate driving was sufficient to invoke MCA jurisdiction for those drivers. Id. at 433-34, 68 S.Ct. 131.
Importantly, Morris also reaffirmed Pyramid Motor Freight Corp.'s requirement of individual analysis of each employee's job activities. In Morris, the DOL, which had brought the suit, did not seek to recover unpaid overtime that was due to any particular employee, but rather sought only an injunction against the company to pay overtime in the future to any employees who would not, because of his job duties, fall under the ICC's definition of a "class of work" invoking MCA jurisdiction (i.e., drivers, their helpers, mechanics, and loaders) without deciding whether any particular employee fell under such a class. Id. at 424-25, 430, 68 S.Ct. 131. The Court stated that, "if this were an action to recover overtime compensation for individual employees," "it would be necessary to determine" "the extent to which" the employees carried out job duties affecting the safety of transportation. Id. at 430, 68 S.Ct. 131. See also Troutt v. Stavola Bros., Inc., 107 F.3d 1104, 1109 (4th Cir. 1997) (observing that Morris "followed the same approach articulated in Pyramid").
Thus, the legal regime after 1947, created by the ICC's jurisdictional pronouncements and the Supreme Court's decisions, provided that (1) the ICC's jurisdiction under the MCA reached only each employee whose activities affect the safety of interstate transportation operations (Am. Trucking Ass'ns, 310 U.S. at 553, 60 S.Ct. 1059), (2) it fell to the ICC to determine which sorts of job activities affect safety of such operations, and the ICC had done that (Levinson, 330 U.S. at 669, 672-73, 67 S.Ct. 931), and (3) in an FLSA action for overtime pay, it was the duty of the courts to determine through the "judicial process" whether each plaintiff's job involved, wholly or in sufficient part, a "class of work" that the ICC had determined affected interstate transportation safety (Pyramid Motor Freight Corp., 330 U.S. at 698, 707, 67 S.Ct. 954; see also Morris, 332 U.S. at 430, 68 S.Ct. 131). And that, according to the Supreme Court, is where things stand today. Since 1947, the Supreme Court has never again addressed the MCA exemption.
4. This Circuit's Post-1947 Jurisprudence
In the decades following the Supreme Court's 1947 trilogy, this court understood Pyramid Motor Freight Corp.'s teaching, that MCA jurisdiction vel non turns on the individual employee's job duties. In Mitchell v. C & P Shoe Corp., 286 F.2d 109 (5th Cir.1960), we said:
Id. at 114 (emphasis added, footnote omitted).
Two years later, in Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37 (5th Cir.1962), this court held that some of the employer's employees fell under the MCA because of their job duties, but other of the employer's employees did not, because of their individual job duties. See id. at 42-43.
Until today, the district courts in this circuit have, as we did in Opelika Royal Crown Bottling Co., determined MCA jurisdiction on an employee-by-employee basis, turning separately on each individual employee's job activities. See, e.g., McCann v. W.C. Pitts Constr. Co., No. 3:10-CV-52, 2011 WL 3924855, at *8 (S.D.Miss. Sept. 7, 2011); Villegas v. Dependable Constr. Servs., Inc., No. 4:07-CV-2165, 2008 WL 5137321, at *24-26 (S.D.Tex. Dec. 8, 2008).
In 2010, this court decided Songer, 618 F.3d 467, which, the majority says, "effectively forecloses an employee-by-employee analysis." Ante, at 284; see also 846 F.Supp.2d at 694. This is a misunderstanding of the case. If the majority were correct, it would mean that the case worked a revolution in the Supreme Court's jurisprudence. Songer could not "foreclose an employee-by-employee" analysis because the Supreme Court, in Pyramid Motor Freight Corp., held that employee-by-employee analysis is required, as did prior panels of this court in Mitchell and Opelika Royal Crown Bottling Co., and none of those decisions has been overruled; nor has any statute been amended in a manner that is contended to have altered the requisite individual employee analysis.
In Songer, the plaintiffs-employees were full-time truck drivers. 618 F.3d at 468. Their employer had a number of routes, many of which were interstate, and no driver was assigned a dedicated route. Id. at 470, 475-76. Routes were assigned by a single "dispatch service" "indiscriminately — i.e., any driver could be called upon at any time to make an interstate or intrastate trip." Id. at 470. "The drivers' employment could be terminated if they refused an assignment." Id. "In other words, any driver could have been assigned to an interstate trip." Id. at 475. Accordingly, the evidence showed that "all the drivers," all of whom accepted routes from the same dispatch service, had a reasonable likelihood of driving interstate. Id. at 476.
Nowhere in Songer's analysis did this court make a determination of reasonable likelihood vel non of driving interstate by dint of an employee's membership in any sort of judicially defined "group" or "class," as the district court and the majority
In sum, following the Supreme Court's 1947 trilogy, this court has, in accordance with Pyramid Motor Freight Corp.'s mandate, determined MCA jurisdiction on an individual basis, turning on each employee's actual job circumstances.
Other Circuits' Post-1947 Jurisprudence
After 1947, at least three of our sister circuits have, like us, acknowledged Pyramid Motor Freight Corp.'s requirement for individual analysis of each employee's actual job duties. The Third Circuit has stated that, to determine MCA jurisdiction, the court must determine "whether each plaintiff, during the relevant time periods, performed duties which substantially affected the safety of operation." Harshman v. Well Serv., Inc., 248 F.Supp. 953, 958 (W.D.Pa.1964) (emphasis added), aff'd, 355 F.2d 206 (3d Cir.1965) (affirming "for the reasons so well stated in the opinion of [the district court]"). The Fourth Circuit likewise agrees that the court must focus on the employee's actual activities "on an individual basis." Troutt, 107 F.3d at 1107-10. And, the Seventh Circuit has explained that it is erroneous to determine MCA jurisdiction on the basis of "the employer's operations" because MCA jurisdiction "depends upon the activities of the individual employees." Goldberg v. Faber Indus., Inc., 291 F.2d 232, 234-35 (7th Cir.1961) (emphasis added).
The Department of Labor Regulations and Other Post-1947 Developments
In 1948, the DOL, which was then (and is still now) charged with enforcing the FLSA, see § 4, 52 Stat. 1060, 1061; 29 U.S.C. § 204, promulgated the regulations codified at 29 C.F.R. § 782, the regulations on which the district court and the majority here rely. 13 Fed.Reg. 2346 (codified at 29 C.F.R. § 782 (1949)). The DOL's regulations have been amended only slightly over the years, so they are today almost identical to their original enactment in 1948. Compare 29 C.F.R. § 782 (current), with 13 Fed.Reg. 2346 (1948).
The DOL's regulations state their purpose on their face: they reflect "the construction of the law [regarding the MCA exemption] which the [DOL] believes to be correct in the light of the decisions of the courts and the Interstate Commerce Commission." Id. And indeed, the DOL's regulations do nothing more than describe the jurisprudential principles that followed from the above-discussed ICC jurisdictional pronouncements and case law, primarily the Supreme Court's 1947 trilogy.
29 C.F.R. § 782.2 says: "The [MCA exemption] depends both on the class to
§ 782.2. The regulations proceed to discuss the "classes of employees" that the ICC had determined fall under MCA jurisdiction: "drivers" (§ 782.3 (citing Ex parte No. MC-2; Ex parte No. MC-3; Ex Parte No. MC-4)), "drivers' helpers" (§ 782.4 (citing Ex Parte No. MC-2)), "loaders" (§ 782.5 (citing Ex parte No. MC-2)), and "mechanics" (§ 782.6 (citing Ex parte No. MC-2)).
Over a decade later, in 1966, the DOT was created and authority to enforce the MCA was transferred to it from the ICC. Department of Transportation Act, § 6(e), 80 Stat. 931, 939.
In 1971, the DOL revised its § 782 regulations to recognize the transfer of MCA authority from the ICC to the DOT. 36 Fed.Reg. 21778. Aside from acknowledging the transfer of authority, the regulations were substantially untouched. Since that 1971 revision, the DOL has never again revised the § 782 regulations.
As for the DOT, since 1966, when it was created and given authority to enforce the MCA, it has never issued regulations on the maximum scope of its jurisdiction over qualifications and maximum hours of service as had the ICC decades before.
In 1995, the ICC was eliminated entirely. ICC Termination Act, § 101, 109 Stat. 803 ("The Interstate Commerce Commission is abolished.").
That brings us to today.
This history makes several things clear. First, the phrase "classes of employees" in the DOL's regulations, on which the district court and the majority here cite in support of their novel analysis, references the four categories of job activities that the ICC decades ago concluded affect the safety of interstate motor vehicle transportation: "drivers," "drivers' helpers," "loaders," and "mechanics." When § 782 says that the MCA exemption "depends on" "the class of work involved in the employee's job" and extends only to certain "classes of employees," what § 782 means is simply that the court, in deference to the ICC's findings of fact, should determine whether the employee's job duties are such that the employee falls under the
Here, there is no question that some of the employees drive motor vehicles and, hence, are within the ICC's definition of the "drivers" "class" if and when they drive interstate. That question, whether the driver-employees at issue in this case are reasonably likely to drive interstate, should be resolved in the ordinary manner, by examining the relevant evidence, drawing reasonable inferences, etc. — in other words, through the "judicial process." Pyramid Motor Freight Corp., 330 U.S. at 707, 67 S.Ct. 954. In reading § 782's reference to "classes of employees" as calling for courts to define their own "groups" or "classes" of employees and to determine MCA jurisdiction vel non with respect to such judicially defined "groups" or "classes," the district court and majority have committed clear error.
Second, it is clear that, until today, in the history of FLSA-and-MCA-exemption litigation, the courts have never defined their own "groups" or "classes" of employees to determine MCA jurisdiction on that basis, as the district court and majority have done here. In Pyramid Motor Freight Corp., and reaffirmed later that same year in Morris, the Supreme Court clearly required individual analysis of "each" employee's actual job duties. The district court's and majority's "company-wide," "group" — or "class"-based analysis, which determines MCA jurisdiction based on the activities of a "group" or "class" of employees that the court has defined itself, is in clear conflict. See Pyramid Motor Freight Corp., 330 U.S. at 698, 708, 67 S.Ct. 954 (the district court must "determine whether or not the activities of each [employee]" "affect the safety of operation of motor vehicles in interstate or foreign commerce," and the district court may deny overtime pay only to "those [employees] who are engaged in such activities"); Morris, 332 U.S. at 430, 68 S.Ct. 131 (observing that, "if this were an action to recover overtime compensation for individual employees, it would be necessary to determine" "the extent to which [the employees] devoted themselves to [work affecting transportation safety]"). And, the district court's and majority's analysis conflicts with the prior decisions of this court requiring individual analysis. Compare ante, at 284 (adopting "company-wide" analysis and stating that "this court's precedent effectively forecloses an employee-by-employee analysis"), with Mitchell, 286 F.2d at 114 (holding that "it is the activities of the particular employee, rather than the employer, which determine coverage"), and Opelika Royal Crown Bottling Co., 299 F.2d at 42-43 (applying individual analysis). Finally, the majority's opinion creates a split with the decisions of at least three of our sister circuits. See Harshman, 248 F.Supp. at 958, aff'd, 355 F.2d 206;
This case involves workers in Texas and Louisiana, and the question is whether they are reasonably likely to drive interstate. To answer that question, the court must examine evidence that is relevant to the work of those employees. There is no legal reason the court may point to other employees in Wyoming who are very likely to drive interstate and declare that, as a result of some legal fiction, the same is true of the Texas and Louisiana workers, even if belied by the evidence. The district court's and majority's creation of a "company-wide," "group"- or "class"-based mode of analysis that does just that is in clear conflict with the Supreme Court's mandate that we "determine whether or not the activities of each [employee]" "affect the safety of operation of motor vehicles in interstate or foreign commerce" and deny overtime pay only to "those [employees] who are engaged in such activities." Pyramid Motor Freight Corp., 330 U.S. at 698, 708, 67 S.Ct. 954.
The Proper Analysis
To decide whether the employees here are reasonably likely to drive interstate, rather than merely intrastate, the district court and this court should simply look at the evidence and make a determination vel non for each plaintiff-employee. We should look to the testimony about the realities of the job as well as any documentary records. The employee's job description, if the company has issued one, is relevant too, although not dispositive, since it may not reflect the realities of the job. Pyramid Motor Freight Corp., 330 U.S. at 707, 67 S.Ct. 954 (the district court "shall not be concluded by the name which may have been given to [the employee's] position or to the work that he does"); Ale v. Tenn. Valley Auth., 269 F.3d 680, 688-89 (6th Cir.2001) ("[C]ourts must focus on the actual activities of the employee in order to determine whether or not he is exempt from the FLSA's overtime regulations.") (emphasis added).
As discussed above, Coil Tubing Services divides its operations into six districts, and the employees at issue here were stationed in four of the six: the Alice, Angleton, and Bridgeport districts in Texas and the Broussard district in Louisiana. The company generally assigns well-servicing jobs to the geographically closest district, and the employees in that district are required to handle the job. If the equipment and personnel needed for a job are not available in the district to which it is assigned, the district can borrow workers and equipment from another district, but, according to the evidence in the record, such instances of inter-district borrowing are "rare" and "exceptional."
Record evidence shows that the vast majority of jobs handled by the Alice, Angleton, Bridgeport, and Broussard districts were purely intrastate jobs — that is, Texas-based workers worked in Texas and Louisiana — based workers worked in Louisiana — and only a tiny number of jobs required crossing state borders. In Alice and Bridgeport, less than one percent of the jobs handled by those districts during the period recorded were interstate. In Angleton, less than two percent of the jobs were interstate. And, in Broussard, around five percent of the jobs were interstate. Moreover, these figures likely over-represent the actual likelihood of any given employee driving interstate because, when traveling to the jobsite, only one employee would have to drive each vehicle, and others would ride as passengers. Thus, while there was less than a one percent chance — about 0.33% of a chance, the evidence shows — that any given job in the Alice district would involve interstate transportation, there was even less than a 0.33%
The record contains employee testimony that tends to corroborate the unlikelihood of driving interstate or, indeed, driving at all. For example, one employee in the Alice district, Jesus Hernandez, testified that, in his five years working there, he only drove interstate once. An employee in the Angleton district, Cody Patin, testified that, during his half year working there, he only drove a motor vehicle a single time, when he drove "a supervisor's truck to go get lunch for everybody one day." There is similar testimony from a number of other employees in the record.
Based on this evidence, a reasonable factfinder could determine that the likelihood of these field service employees in the Alice, Angleton, Bridgeport, and Broussard districts driving interstate is so minimal and remote, they cannot be "reasonably expected" to be "called upon in the ordinary course of [their] work to [drive interstate]." Songer, 618 F.3d at 474; see Coleman, 324 F.Supp. at 670; Kimball, 504 F.Supp. at 548; Yaklin, No. 07-CV-422, 2008 WL 4692419, at *6. Accordingly, there is a genuine dispute of material fact as to the reasonable likelihood of these employees driving interstate.
Regarding the fact that Coil Tubing Services's employees in Wyoming drive interstate very often, there is no factual indication in the record why that is relevant to the Texas and Louisiana employees. True, there is evidence that on "rare" and "exceptional" occasions, one district can borrow another district's employees for a job if needed. But, again, according to the record evidence, such instances are unusual, and, importantly, there is no indication in the record that an employee has ever been sent from Texas or Louisiana to Wyoming. Thus, a reasonable factfinder could determine that there is simply no reasonable likelihood of a Texas or Louisiana employee being dispatched to participate in a Wyoming job. Contrary to the district court's and the majority's suggestions, this is not a case like Songer in which all employees accept their job assignments from a single dispatch. See 618 F.3d at 470. In terms of the work that the employees here could be expected to carry out, the record evidence shows material differences between the assignments given to the Wyoming employees and the Texas and Louisiana employees at issue in this case.
The evidence in the record reveals a genuine dispute of material fact as to whether the employees here were reasonably likely to be called upon to drive interstate in the course of their work for Coil Tubing Services. Accordingly, the district court's grant of summary judgment for the company and against the employees on their FLSA claims was improper and should be reversed.
The plaintiffs-employees at issue in this case work in Texas and Louisiana. The evidence shows that they are, as a matter of fact, extremely unlikely to be called upon to drive interstate in the course of their work. Nevertheless, the district court and majority point to other employees in Wyoming who are not parties to this litigation but who are likely to drive interstate and, by dint of the legal fiction of "group" or "class" membership, say that the Texas and Louisiana workers are no different — that is, they too are likely to drive interstate, despite the evidence showing the precise opposite. The district court and the majority cite the DOL's regulations and Songer as support for their decisions, but they have unfortunately
The dissent further does not convincingly explain how its proposed individualized methodology coincides with Songer or Morris. As we explained, Morris found jurisdiction to regulate "all of defendant carrier's drivers, even though two of the 42 drivers had not engaged in interstate trips." Songer, 618 F.3d 467. If Morris applied an "individualized" assessment of the two employees that had not engaged in interstate trips, it could not have found that these employees had a reasonable expectation of engaging in interstate trips: they had not done so before. It is only by reference to other employees' experience that Morris's conclusion makes sense. The dissent revealingly explains that Songer "made the common sense observation that, because of company policies that were factually common to all employees (i.e., the indiscriminate assignment of interstate trips), each and every employee, all of whom had the same likelihood of driving interstate, was reasonably likely to drive interstate." Post, at 302. What the dissent frames as a "common sense observation" we call a class-based analysis; there is a minimal semantic gap between our views. Moreover, the district court made this exact "common sense observation" when it found that "[t]hese employees have similar job duties, were or could have been called upon to drive in interstate commerce during their employment, and receive project assignments that changed often. Any driver could have been assigned to an interstate project at any time." Accordingly, both of our opinions use classifications to determine whether a particular employee has a reasonable expectation. We simply part ways over the relevant class of comparison, and the factual conclusion reached by the district court, "that the evidence establishes that, objectively, there was a reasonable expectation that any CTS Field Service Employee could be assigned to drive interstate."
Id. § 306(a), (c). For a discussion of the SAFETEA-LU Technical Corrections Act, see, e.g., McCall v. Disabled Am. Veterans, 723 F.3d 962 (8th Cir.2013). This interlocutory appeal does not address the district court's resolution of the plaintiffs' post-June 6, 2008, claims to which the SAFETEA-LU Technical Corrections Act applies, but rather only the district court's resolution of the pre-June 6, 2008, claims, and therefore, the act is not implicated here.
Section 13501 provides:
Under our case law, § 13501 also impliedly includes within its ambit "the intrastate transport of goods in the flow of interstate commerce." Songer, 618 F.3d at 472; Shew v. Southland Corp., 370 F.2d 376, 380-81 (5th Cir.1966).
Section 13502 relates to Alaska and is irrelevant here.