Norton v. Worthen Van Service, Inc., 86-1415
| Citation | 839 F.2d 653 |
| Decision Date | 17 February 1988 |
| Docket Number | No. 86-1415,86-1415 |
| Parties | 28 Wage & Hour Cas. (BN 930, 108 Lab.Cas. P 35,028 Floyd NORTON, Arnold Pedersen, Robert Lee Remmick, and Steve Neiffer, on behalf of themselves and all other employees and former employees of Worthen Van Service, Inc. similarly situated, Plaintiffs-Appellants, v. WORTHEN VAN SERVICE, INC., a Wyoming corporation, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Jay C. Shultz (Gregory A. Eiesland with him, on the briefs), of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, S.D., for plaintiffs-appellants.
David R. Gorsuch (Jane D. Smith with him, on the brief), of Gorsuch, Kirgis, Campbell, Walker and Grover, Denver, Colo., for defendant-appellee.
Before MOORE and ANDERSON, Circuit Judges, and PHILLIPS, District Judge. *
This is an appeal from the district court's judgment dismissing plaintiffs' claim for back wages under the Fair Labor Standards Act, 29 U.S.C. Secs. 201-219 (FLSA). Plaintiffs Floyd Norton, Robert Remmick and Steve Neiffer, argue on behalf of fifty-two current and former Worthen Van employees that the district court incorrectly decided time spent waiting on call did not constitute working time under the FLSA. Plaintiffs contend that waiting to be called was an integral part of their job because during this period they had to be immediately available to work and therefore could not pursue personal matters. While we sympathize with plaintiffs' claim, we affirm the district court's judgment that Worthen Van employees should not be compensated for being on call.
The facts are not in dispute. Worthen Van operates a van service throughout Wyoming and adjoining states transporting railroad crews to and from their trains. When the railroad needs a crew transported, a dispatcher telephones a driver who is responsible for quickly arriving at the Worthen Van facility. Drivers generally work shifts of eight to twelve hours a day. During these shifts, drivers must be near enough to the employer's premises to be able to respond to calls within fifteen to twenty minutes. However, drivers are compensated for this waiting time only if they receive a call to transport railroad crews within two hours of their last call. If a driver fails to promptly respond to a dispatcher's call, he is disciplined by the company. A driver may be fired if he is disciplined three times.
In February 1985, plaintiffs brought suit seeking back wages, overtime compensation, and liquidated damages. The trial court ruled that plaintiffs were entitled to be paid for time spent cleaning and inspecting vans but denied recovery because it found only the minimum wage provisions of FLSA applied to Worthen Van, and its employees had been paid at least a minimum wage for each week they had worked. The court also found that Worthen Van was exempt from paying overtime wages under the motor carrier exemption, 29 U.S.C. Sec. 213(b)(1). Neither issue is before us on appeal. Finally, the trial court denied recovery of unpaid wages for waiting time. The court emphasized that time spent on call was primarily used for the benefit of the employees, since employees could leave the employer's premises and pursue personal matters which did not interfere with their ability to quickly return to work.
Plaintiffs argue that this final finding by the trial court is clearly erroneous and urge us to decide that waiting while on call constitutes an integral part of their job. The employees argue that the unpredictability of assignments and the short response time which they are allowed preclude their using this waiting period for their own purposes. 1 Rather, they argue, the period between assignments is predominantly for Worthen Van's benefit, and employees should therefore receive compensation for the time they spend waiting. Plaintiffs also argue that Worthen Van strongly encourages drivers on call to remain at work between runs. Because of this policy, according to the plaintiffs, drivers have waited on or very near the Worthen Van premises for up to seven hours without getting paid.
Whether periods of waiting for work should be compensable under the FLSA is to be determined by the facts and circumstances of each case. The FLSA simply defines "employ" as "to suffer or permit to work," and does not further define the relevant terms. 29 U.S.C. Sec. 203(g). Case law has focused on how close an on-call employee must remain to the employer's premises or a work-related vehicle to be considered working. In Armour v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 89 L.Ed. 118 (1944), plaintiffs had to remain on call on the employer's premises for fifteen hours after their regular shifts as auxiliary firemen. The Supreme Court affirmed a lower court holding that the time spent eating and sleeping did not constitute work time, but that all waiting or on-call time should be compensated under the FLSA because "time spent lying in wait for threats to the safety of the employer's property may be treated by the parties as a benefit to the employer." Id. at 133, 65 S.Ct. at 168. That same day, the Court in Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), awarded compensation to auxiliary firemen for their on-call shifts, during which they had to remain on or very near the employer's premises. According to the Court, resolution of the matter involved determining the degree to which the employee could engage in personal activity while subject to being called. "Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged." Id. at 137, 65 S.Ct. at 163. 2
The progeny of Armour and Skidmore further elucidate when waiting to work should be compensable. In Allen v. United States, 1 Cl.Ct. 649 (1983), aff'd, 723 F.2d 69 (Fed.Cir.1983), the court determined that federal marshals should not receive compensation under the FLSA for...
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