Opinion
No. CV-08-4030702S
May 22, 2009
RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ( #116)
In the first count of his amended complaint dated December 3, 2008, the plaintiff Brian Sarrazin (Sarrazin) alleged that the defendant Coastal, Incorporated (Coastal) failed to pay him overtime wages for his travel time in excess of 40 hours a week in violation of Connecticut law. Coastal then moved for summary judgment claiming that federal law preempts state law under what it claims to be the undisputed facts of this case.
"Practice Book § 17-49 provides that summary judgment `shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' A `material fact' is a fact that will make a difference in the result of a case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). `The test is whether a party would be entitled to a directed verdict on the same facts.' Batick v Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982)." River Dock Pile, Inc. v. Insurance Co. of North America, 57 Conn.App. 227, 231, 747 A.2d 1060 (2000). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact." D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). "It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute . . . Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case." (Citation omitted; internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn.App. 427, 430-31, 755 A.2d 219 (2000). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
The following facts are not disputed: During the relevant time, Sarrazin was employed as plumbing foreman for Coastal, a plumbing sub-contractor engaged in the installation and repair of plumbing systems in large construction projects throughout the state. Coastal handles, sells and works with goods that move in interstate commerce and has gross sales in excess of $500,000.00 annually. Sarrazin's work was performed at the locations of the construction projects on which Coastal was acting as a plumbing sub-contractor. Sarrazin was required to travel directly from his home to these various locations, as were all of Coastal's employees. The distances which Sarrazin had to travel were within the normal commuting area of Coastal's business and similar to the distances traveled by the other employees. For some of the time that Sarrazin worked for Coastal, Coastal supplied him with a company vehicle to travel from his home to his work sites. Coastal paid for gasoline and all the maintenance and repairs. Sarrazin was required to monitor the vehicle to determine when maintenance was needed and to arrange for maintenance. Sarrazin transported some company tools in the vehicle. When Sarrazin returned home each day, he spent an additional half hour cleaning the vehicle and organizing the tools for the next day's work.
Coastal claims, as a matter of law, that because it is an employer operating in interstate commerce with sales in excess of $500,000.00 per annum, the wages paid to its employees are governed by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., (FLSA). Under that statute Coastal maintains that Sarrazin's travel time is noncompensable commuting time, citing 29 C.F.R. § 785.33. Coastal also claims that under the Portal-to-Portal Act, 29 U.S.C. § 251 et seq., as amended by the Employee Commuting Flexibility Act of 1996, ("ECFA"), 29 U.S.C. § 254(a), it is not subject to liability for failing to pay wages or overtime for Sarrazin's travel from home to the workplace and back because his travel was within the normal commuting area and the activities that Sarrazin engaged in regarding maintenance of the vehicle were incidental to the use of the vehicle for commuting purposes. Sarrazin claims that state law applies and relies on General Statutes §§ 31-60, 31-71b, 31-71c and § 31-60-10 of the Regulations of Connecticut State Agencies. Specifically, Sarrazin claims that the time spent driving the company vehicle to and from work sites, cleaning it and organizing the tools for the next day's work inured to Coastal's benefit and is compensable overtime under § 31-60-10(b). Sarrazin also maintains that even if the FLSA applies, his activities were "integral and indispensable" to the performance of his principal activities as plumbing foreman for Coastal and thus compensable under the FLSA.
I. A.
Since it is undisputed that Coastal operates a business in interstate commerce with sales in excess of $500,000.00, the wages it pays to its employees are governed by the FLSA. However, the FLSA is not exclusive. It contains what is sometimes referred to a "savings clause," 29 U.S.C. § 218, "that expressly allows states to provide workers with more beneficial minimum wages and maximum workweeks than those mandated by the FLSA itself." Anderson v. Sara Lee Corp., 508 F.3d 181, 193 (C.A. 4, 2007). Similarly, the Code of Federal Regulations makes it clear that applicable state overtime laws which do not contravene the FLSA are not overridden by "the act, the regulations or the interpretations announced by the Administrator." 29 C.F.R. § 778.5. "[W]here the state hour and wage provisions are more beneficial to the laborer than those in the federal act" then 29 U.S.C. § 218 "allows state laws to apply to that part of interstate commerce covered by the FLSA." Davenport Taxi, Inc. v. State Labor Commissioner, 164 Conn. 233, 240, 319 A.2d 386 (1973). See Overnite Transportation Co. v. Tianti, 926 A.2d 220 (C.A. 2), cert. denied, 502 U.S. 856, 112 S.Ct. 170, 116 L.Ed.2d 133 (1991) (holding that Connecticut's overtime wage law is not preempted by FLSA). " Davenport's reading of [ 29 U.S.C. § 218] as allowing claims under [the Connecticut Minimum Wage Act] if [it provides] greater protection than the FLSA is congruous with the plain reading of the statute. This Court as well as courts in other states have recognized that State labor laws with higher standards than the FLSA must be enforced." Morrison v. Staples, Inc., United States District Court, Docket No. 08 CV 616 (PCD) 2008 U.S.Dist. LEXIS 96323 (D.Conn. Nov. 13, 2008). Thus, the FLSA explicitly permits enforcement of Connecticut law regarding travel time to the extent it is more beneficial to an employee than federal law.
29 U.S.C. § 218 provides, in pertinent part: (a) No provision of this chapter . . . shall excuse noncompliance with any . . . State law . . . establishing a minimum wage higher than the minimum wage established under this chapter or a maximum workweek lower than the maximum workweek established under this chapter . . ."
29 C.F.R. § 778.5 provides, in pertinent part: "Various Federal, State, and local laws require . . . the payment of overtime compensation computed on bases different from those set forth in the Fair Labor Standards Act. Where such legislation is applicable and does not contravene the requirements of the Fair Labor Standards Act, nothing in the act, the regulations or the interpretations announced by the Administrator should be taken to override or nullify the provisions of these laws. Compliance with other applicable legislation does not excuse noncompliance with the Fair Labor Standards Act . . ."
Furthermore, Connecticut overtime compensation laws that are more beneficial to employees are not impliedly preempted by the FLSA in that Congress has not "legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law." (Internal quotation marks omitted.) Dowling v. Slotnik, 244 Conn. 781, 791, 712 A.2d 396, cert. denied sub nom. Slotnik v. Considine, 525 U.S. 1017, 119 S.Ct. 542, 142 L.Ed.2d 451 (1998). Nor do relevant portions of General Statutes §§ 31-60, 31-76b and 31-76c, and § 31-60-10 of the Regulations of Connecticut State Agencies, conflict with federal law by making it impossible for employers to comply with both or by hindering congressional objectives. Id. "[T]he FLSA was designed to give specific minimum protections to individual workers and to ensure that each employee covered by the Act would receive a fair day's pay for a fair day's work and would be protected from the evil of overwork as well as underpay." (Emphasis in original, internal quotation marks omitted, citations omitted.)
Barrentine v. Arkansas-Best Freight Systems, Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). Congress sought to achieve that objective by correcting or eliminating "labor conditions detrimental to the maintenance of the minimum standard of living necessary for the health, efficiency, and general well-being of workers . . ." 29 U.S.C. § 202(a). In a different context, the Connecticut Supreme Court observed that the FLSA "`sets a national "floor" in terms of working conditions, in order to protect workers from the substandard wages and excessive hours . . .' Rogers v. Troy, 148 F.3d 52, 57 (2d Cir. 1998). The act is violated when employees are paid less that the amount set forth therein. Employers, however, do not violate the act when they provide employees with greater employment benefits than those required under the act." State v. AFSCME, AFL-CIO, Council 4, Local 2663, 257 Conn. 80, 96, 777 A.2d 169 (2001).
B.
General Statutes § 31-76c, which is part of Connecticut's wage statutes, General Statutes § 31-58 et seq., provides: "No employer, except as otherwise provided herein, shall employ any of his employees for a workweek longer than forty hours, unless such employee receives remuneration for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." This statutory language mirrors the FLSA. 29 U.S.C. § 207. Under § 31-60 (a), "[a]ny employer who pays or agrees to pay to an employee less than the minimum fair wage or overtime wage shall be deemed in violation of the provisions of this part." For purposes of determining whether an employee is entitled to overtime pay, "`[h]ours worked' include all time during which an employee is required by the employer to be on the employer's premises or to be on duty, or to be at the prescribed work place, and all time during which an employee is employed or permitted to work, whether or not required to do so . . ." General Statutes § 31-76b(2)(A). As to the specific issue of travel time, § 30-60-10 of the Regulations of Connecticut State Agencies provides, in pertinent part:
General Statutes § 31-58(e) defines "employers" as: "any owner or person, partnership, corporation, limited liability company or association of persons acting directly as, or in behalf of, or in the interest of an employer in relation to employees . . ." The statute defines "employee" to include "any individual employed or permitted to work by an employer . . ." General Statutes § 31-58(f), see § 31-76b(3). The definition specifically excludes individuals in certain positions, but the exclusions do not appear to apply to the plaintiff. In turn, General Statutes § 31-76i lists fifteen categories of employees to whom the overtime pay requirement "shall not apply," which also do not appear to apply to the plaintiff.
(a) For the purpose of this regulation, `travel time' means that time during which a worker is required or permitted to travel for purposes incidental to the performance of his employment but does not include time spent in traveling from home to his usual place of employment or return home, except as hereinafter provided in this regulation.
(b) When an employee, in the course of his employment, is required or permitted to travel for purposes which inure to the benefit of the employer, such travel time shall be considered to be working time and shall be paid for as such . . .
The federal overtime compensation provision, 29 U.S.C. § 207(a)(1), provides in relevant part: "Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is . . . employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half time the regular rate at which he is employed." Travel time is covered in the Portal-to-Portal Act, 29 U.S.C. §§ 251- 262, which Congress passed the year following the Supreme Court's decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), to "[amend] certain provisions of the FLSA." IBP, Inc. v. Alvarez, 546 U.S. 21, 26, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). Specifically, the Portal-to-Portal Act created certain exceptions from compensation under the FLSA that are relevant to this case:
29 U.S.C. § 203 contains the following definitions: "As used in this chapter . . . (b) `Commerce' means trade, commerce, transportation, transmission, or communication among the several States or between any State and any place outside thereof . . . (d) `Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee . . . (e)(1) Except as provided in paragraphs (2), (3), and (4), the term `employee' means any individual employed by an employer . . . (s)(1) `Enterprise engaged in commerce or in the production of goods for commerce means an enterprise that-(A)(i) has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person; and (ii) is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 . . ."
(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principal activities if the use of such vehicle for travel is within the normal commuting area 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 . . .
The last sentence, beginning with "For the purposes of this subsection . . ." was added to 29 U.S.C. § 254 in 1996 by Public Law No. 104-188, the Employee Commuting Flexibility Act of 1996 (ECFA). "[T]he primary purpose of ECFA was to limit employer liability for FLSA claims related to commuting time in employer-provided vehicles." Adams v. United States, 65 Fed. Cl. 217, 225 (Ct.Fed. Claims, 2005), aff'd, 471 F.3d 1321 (Fed. Cir. 2006), cert. denied, U.S. 128 S.Ct. 866, 169 L.Ed.2d 723 (2008).
Under 29 U.S.C. § 254(a)(1), an employer is generally not required to pay an employee for the time it takes to travel to and from the place where the employee's "principal activities" are performed. "Principal activities" are those "which the employee is required to perform." 29 C.F.R. § 790.8. According to the regulations that apply to the FLSA and the Portal-to-Portal Act, "[t]he principles which apply in determining whether or not time spent in travel is working time depend upon the kind of travel involved." 29 C.F.R. § 785.33. The Code of Federal Regulations contains a number of provisions that interpret the Portal-to-Portal Act and discuss travel time. See 29 C.F.R. §§ 785.34, 785.35.
29 C.F.R. § 785.34 provides: "[T]raveltime at the commencement or cessation of the workday which was originally considered as working time under the Fair Labor Standards Act (such as underground travel in mines or walking from the time clock to work-bench) need not be counted as working time unless it is compensable by contract, custom or practice. If compensable by express contract or by custom and practice not inconsistent with an express contract, such travel time must be counted in computing hours worked. However, ordinary travel from home to work (see section 785.35) need not be counted as hours worked even if the employer agrees to pay for it."
29 C.F.R. § 785.35 provides: "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."
In comparing the overtime provisions of General Statutes § 31-76, as interpreted by § 31-60-10 of the Regulations of Connecticut State Agencies, with the FLSA, as amended by § 254 of the Portal-to-Portal Act and the ECFA, it is clear that Connecticut law, unlike federal law, requires compensation for an employee's travel time if the employee "is required or permitted to travel for purposes which inure to the benefit of the employer." Regulations of Connecticut State Agencies § 31-60-10(b). In this narrow area, Connecticut law is more beneficial to the employee than federal law and Sarrazin may rely on it.
II.
Sarrazin also maintains that he was not simply driving to work, but was provided a company truck and required to transport tools and materials to the specific job site each morning which his crew needed to begin work, First Count, ¶ 5, and, upon returning home each day, had to clean the truck and organize the tools and materials for the next day's work. First Count, ¶ 6. Thus he claims he was engaged in part of the principal activity for which he was employed by Coastal and it is required to pay him overtime under the FLSA.
The Portal-to-Portal Act does not exempt employers from compensating employees for performing their principal activities, even if they are preliminary or postliminary to the ordinary workday. Federal regulations recognize that the Portal-to-Portal Act requires a "determination of whether time spent in . . . `preliminary' or `postliminary' activities, performed before or after the employee's `principal activities' for the workday must be included or excluded in computing time worked." 29 C.F.R. 790.5(a). "The use by Congress of the plural form `activities' in the statute makes it clear that in order for an activity to be a `principal' activity, it need not be predominant in some way over all other activities engaged in by the employee in performing his job; rather, an employee may, for purposes of the Portal-to-Portal Act be engaged in several `principal' activities during the workday . . . Congress intended the words . . . to be construed liberally . . . to include any work of consequence performed for an employer . . ." 29 C.F.R. § 790.8(a)
In Steiner v. Mitchell, 350 U.S. 247, 256, 76 S.Ct. 330, 100 L.Ed.2d 267 (1956), the Court held "that activities performed either before, or after the regular shift . . . are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed . . ." Steiner addressed the Portal-to-Portal Act's second exception to compensation, 29 U.S.C. § 254(a)(2), which distinguishes preliminary and postliminary activities from the principal activities of employment. More recently, the Court attempted to clarify Steiner and held that "any activity that is `integral and indispensable' to a `principal activity' is itself a `principal activity' under . . . the Portal-to-Portal Act." IBP v. Alvarez, supra, 546 U.S. 37, 126 S.Ct. 514. But the Court went on to emphasize that not every activity which occurs before the workday begins, even if "necessary for employees to engage in their principal activities . . . are `integral and indispensable' to a `principal activity' under Steiner." Id., 40-41.
There are many factors that must be considered in determining whether any given preliminary or postliminary activity is integral and indispensable and thus compensable as a principal activity or whether the activity is merely necessary or de minimis and noncompensable. The factors include: "(1) whether the activity is required by the employer, (2) whether the activity is necessary for the employee to perform his or her duties, and (3) whether the activity primarily benefits the employer." Bonilla v. Baker Concrete Construction, Inc., 487 F.3d 1340, 1344 (C.A. 11), cert. denied, 128 S.Ct. 813, 169 L.Ed.2d 607 (2007). Evaluating these factors requires factual determinations.
"The more the preliminary (or postliminary) activity is undertaken for the employer's benefit, the more indispensable it is to the primary goals of the employee's work, and the less choice the employee has in the matter, the more likely such work will be found to be compensable . . . [But], where the compensable preliminary work is truly minimal, it is the policy of the law to disregard it." Reich v. New York City Transit Authority, 45 F.3d 646, 651 (C.A. 2, 1995). Thus, "[c]ommuting and similar activities are generally not compensable." Id. However, courts have found some exceptions to the general rule when, as here, an employer has furnished a vehicle to its employee and the vehicle is used to transport items required at the job site. See e.g., Herman v. Rich Kramer Construction, Inc., 163 F.3d 602 (C.A. 8, 1998) (Unpublished; full text published at 1998 U.S.App. LEXIS 233291) (Foreman required to transport company's tools, supplies and employees in company truck); Baker v. Barnard Construction Co., Inc., 146 F.3d 1214 (C.A. 10, 1998) (Jury question whether company's requirement that employees refuel and restock welding rigs in the evening is compensable travel time); Crenshaw v. Quarles Drilling Corp., 798 F.2d 1345, 1350 (C.A. 10, 1986) (Employer provided employee with truck containing tools required to do the job); Whipkey v. Cencon, LLC., 2006 U.S.Dist. LEXIS 59031 (D.Kan. 2006) (Jury question whether company's requirement that employee to travel to job site in company-owned vehicles and transport, load and unload tools and supplies is compensable travel time). The cases upon which Coastal relies are distinguishable. See Kavanagh v. Grand Union Company, 192 F.3d 269, 271, 273 (C.A. 2, 1999) (one judge dissenting) (Employee usually traveled in his own truck, some equipment belonged to him and some to the company; "extensive travel was a contemplated normal occurrence under the employment contract entered into between Kavanagh and Grand Union."); Easter v. United States, 83 Fed. Cl. 236 (Ct. Fed. Claims, 2008), citing Adams v. United States, 471 F.3d 1321, 1328 (Fed. Cir. 2006), cert. denied, 128 S.Ct. 866, 169 L.Ed.2d 723 (2008) (Time solely spent driving a government vehicle to and from work is noncompensable if any labor done other than driving is de mimimis).
III.
Generally to determine, as a matter of law, whether an activity is compensable or noncompensable under § 254(a)(2) as interpreted by Steiner, supra, 350 U.S. 247, there must be a factual determination "of the precise nature of the employee's duties." Baker v. Barnard Construction Co., Inc., supra, 143 F.3d 1216. Whether travel time is compensable under § 31-60-10(b) of the Regulations of Connecticut Agencies raises a similar mixed question of fact and law.
Here, Sarrazin maintains that the duties Coastal imposed on him when it provided a company vehicle to him and had him act as a plumbing foreman — driving the vehicle to and from the workplace while maintaining it, cleaning it and preparing the tools for work the next day, as alleged in paragraphs 5 and 6 of the complaint — either inured to the benefit of Coastal requiring compensation under state law or were an integral and indispensable part of Sarrazin's principal activity as a foreman for Coastal requiring compensation under federal law. It is possible he could prevail on these claims. For example, in Herman v. Rich Kramer Construction, Inc., supra, 163 F.3d 602, the court found not only that travel time was compensable as a principal activity when the employer could not have performed the job without the tools and supplies transported by a foreman, but also recognized that the company benefited from providing a truck to the foreman to do those activities. However, Sarrazin's claims are inherently fact-bound.
On the other hand, Coastal maintains that Sarrazin was simply commuting each day, a noncompensable activity under either federal or state law, or that his use of Coastal's vehicle falls within the exception for compensation created by ECFA, see n. 5, supra, or that whatever activities he engaged in were de minimis. These claims are equally fact-bound.
In moving for summary judgment, Coastal was obliged to demonstrate the absence of any factual issue as to whether Sarrazin was commuting or using the truck under an agreement with it and as to the nature and extent of Sarrazin's duties, specifically with respect to the issues raised in paragraphs 5 and 6 of the first count of the amended complaint. Baldwin v. Curtis, 105 Conn.App. 844, 850-52, 939 A.2d 1249 (2008). It submitted the affidavit of James Gamble, Coastal's president, and the full transcript of Sarrazin's deposition taken on May 6, 2008. While Gamble's affidavit provides a basis for the claim that Coastal comes under the protection of the FLSA and states that all its employees were required to drive from their homes to their work sites within a specified service radius, it does not address the extent of Sarrazin's duties with respect to the use of the vehicle Coastal provided to him. Sarrazin's deposition appears to support his claim that he was working as a foreman when he was given a company vehicle to drive and that he was required to transport the company's tools to the work site each day (see pages 36, 40, 47, 48, 53). Thus, there is a genuine issue of fact as to the nature and extent of Sarrazin's required duties, see e.g., Powell v. Carey International, Inc., 514 F.Sup.2d 1302 (S.D.Fla. 2007) (due to factual questions regarding the activities the employer required of employees to whom it provided vehicles, the court could not determine whether they were integral and indispensable or de minimis.), whether the provision of the vehicle to Sarrazin, along with the associated duties, inured to Coastal's benefit, whether the associated duties were de minimis or whether his travel time was merely commuting.
IV.
Based on the foregoing, the court concludes that both state and federal law apply in this case and that there are genuine issues of material fact as to whether Sarrazin was required to travel for purposes which inured to the benefit of Coastal, whether Sarrazin was required to engage in activities in connection with the use of the company vehicle that were integral and indispensable to his principal employment activity, whether those activities were de minimis and whether there was an agreement between Coastal and Sarrazin that falls within the exception to compensation created by the ECFA. Accordingly, the defendant's motion for summary judgment is denied.