Baker v. GTE North Inc., s. 96-2368

• Decision Date: 02 April 1997
• Docket Number: 96-3625,Nos. 96-2368,s. 96-2368
• Citation: 110 F.3d 28
• Parties: , 133 Lab.Cas. P 33,519, 3 Wage & Hour Cas.2d (BNA) 1505 Teddy W. BAKER, et al., Plaintiffs-Appellees, v. GTE NORTH INCORPORATED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 28

110 F.3d 28

65 USLW 2695, 133 Lab.Cas. P 33,519,

3 Wage & Hour Cas.2d (BNA) 1505

Teddy W. BAKER, et al., Plaintiffs-Appellees, v. GTE NORTH INCORPORATED, Defendant-Appellant.

Nos. 96-2368, 96-3625.

United States Court of Appeals,Seventh Circuit.

Submitted March 20, 1997.

Decided April 2, 1997.

Marvin Gittler (submitted), Stephen J. Feinberg, Patricia A. Collins, Asher, Gittler, Greenfield, Cohen & D'Alba, Chicago, IL, Samuel J. Goodman, Joseph S. Bokkelen, Goodman, Ball & VanBokkelen, Highland, IN, for plaintiffs-appellees.

Richard S. Huszagh, David G. Lynch, Steven L. Loren, Rudnick & Wolfe, Chicago, IL John G. Roberts, Jr., Gregory G. Garre, Hogan & Hartson, Washington, DC, Patrick J. Hinkle, Kalamaros & Associates, South Bend, IN, for defendants-appellants.

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

GTE North formerly required all of its "facility maintainers" (electricians who install and maintain telephone and transmission equipment, on customers' premises or otherwise in the field) to report for duty at its local offices. There they received assignments for the day, hopped into company vehicles suitable to the job, and drove to the first place where they were to work that day. They were paid for the time it took to drive to that site and for the time driving back at day's end. In 1991 GTE and the Communications Workers of America signed a collective bargaining agreement under which employees could use their GTE vehicles to drive from home to their first work site of the day, then from work back home. Employees choosing this option--the "home dispatch program" or "HDP"--receive assignments, and report their completion, on portable terminals. Choosing the HDP can save employees a lot of time, not to mention wear and tear on their own cars. For example, instead of driving to GTE's office, which may be 20 miles to the north, and then driving to the first job, perhaps 30 miles to the south, the employee drives straight to the job, saving 80 miles round trip. Under the collective bargaining agreement, convenience has a cost: compensated time begins only when the employee arrives at the first job site. GTE thus obtains more productive work per eight-hour shift, and employees get extra free time.

Thirteen employees who signed up for this win-win proposition, and acknowledged in writing that they would not be paid for time driving to the first work site of the day (or home from the last), later filed this suit under the Fair Labor Standards Act, contending that the time is nonetheless compensable (and at overtime rates, if when added to other time the work week exceeds 40 hours). GTE relied on § 4(a)(1) of the Portal-to-Portal Act of 1947, which provides that the FLSA does not count hours during which the employee is "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". 29 U.S.C. § 254(a)(1). The district judge granted summary judgment to the plaintiffs, 927 F.Supp. 1104 (N.D.Ind.1996), ruling that, because GTE's vehicles carry special tools, and may themselves be essential to the work (for example, they may include lift buckets), getting vehicle to job site is a "principal activity" of the employment, and hence not exempted. The court awarded back pay, overtime, and liquidated damages between $10,000 and $45,000 per employee, plus attorneys' fees of some $175,000.

While GTE's appeal was pending, Congress amended the Portal-to-Portal Act by adding this language at the end of § 4(a):

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 or representative of such employee.

Employee Commuting Flexibility Act of 1996, § 2102 of Pub.L. 104-188, 110 Stat. 1755, 1928 (1996). Section 2103 adds that the amendment "shall take effect on the date of the enactment of this Act [August 20, 1996] and shall apply in determining the application of section 4 of the Portal-to-Portal Act of 1947 to an employee in any civil action brought before such date of enactment but pending on such date." Unambiguous language of this kind makes the amendment fully retroactive. See Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).

GTE asked us to reverse summarily in light of the amendment. Plaintiffs resisted arguing that they did not necessarily use the vehicles "for commuting", and that they should have an opportunity to brief the question fully. A motions panel referred GTE's request to the merits panel, for consideration after briefing had been completed. After ample opportunity for reflection, plaintiffs filed a brief conceding that the amendment "retroactively invalidates their judgments if its retroactivity is constitutional." Plaintiffs argue that it is not constitutional, because Congress did not have a good reason to make the change retroactive.

Whether this argument is properly before us may be doubted. Litigants who want a court to declare an Act of Congress unconstitutional must give notice, so that the Attorney General may exercise the statutory right to intervene on behalf of the United States to defend the law....