Johnson v. Hix Wrecker Serv. Inc.

• Decision Date: 01 July 2011
• Docket Number: No. 09–3023.,09–3023.
• Parties: Bobby J. JOHNSON, Jr., Plaintiff–Appellant,v.HIX WRECKER SERVICE, INC., et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

651 F.3d 658
161 Lab.Cas. P 35,923
17 Wage & Hour Cas.2d (BNA) 1623

Bobby J. JOHNSON, Jr., Plaintiff–Appellant,
v.
HIX WRECKER SERVICE, INC., et al., Defendants–Appellees.

No. 09–3023.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 3, 2010.Decided July 1, 2011.

[651 F.3d 659]

Ronald E. Weldy (argued), Attorney, Weldy & Associates, Indianapolis, IN, for Plaintiff–Appellant.Russell W. Pool (argued), Attorney, Pool & Associates, Indianapolis, IN, for Defendants–Appellees.Before EASTERBROOK, Chief Judge, WILLIAMS, Circuit Judge, and

[651 F.3d 660]

PALLMEYER, District Judge.^*WILLIAMS, Circuit Judge.

Bobby Johnson, Jr. claims that his former employer, Hix Wrecker Service, did not pay him overtime wages in violation of the Fair Labor Standards Act (“FLSA”). The district court granted summary judgment in favor of Hix Wrecker, finding that Johnson was not entitled to overtime pay because he was subject to the motor carrier exemption to the FLSA. However, Hix Wrecker did not meet its burden of proof on the issue of whether the motor carrier exemption applied to Johnson. The evidence it presented did not establish as a matter of law that Johnson was exempt. Therefore, we reverse.

I. BACKGROUND

Hix Wrecker is an Indianapolis business that transports personal and commercial motor vehicles that have been stranded, impounded, wrecked, or abandoned. Since 1973, Hix Wrecker has had a common carrier certificate of authority from the Department of Transportation. The certificate allows Hix Wrecker to transport property in interstate commerce.

Johnson worked for Hix Wrecker as a tow truck driver for about four months, from June 9, 2006 or June 12, 2006, until October 22, 2006. In 2008, Johnson sued Hix Wrecker, its owners, Mr. James Hix and Mrs. Ova Hix, and its corporate secretary, Ms. Gail Neil. Johnson alleged that during the time that he worked for Hix Wrecker he was not paid overtime wages in violation of the FLSA. For its part, Hix Wrecker admitted that Johnson worked twelve-hour work shifts, but maintained that Johnson was not entitled to overtime.

In the district court, the parties filed cross motions for summary judgment. Hix Wrecker claimed that Johnson was subject to the motor carrier exemption to the FLSA, which, when certain conditions are met, exempts the employees of motor carriers that engage in interstate commerce from the maximum hours and overtime provisions of the FLSA. In his cross motion, Johnson argued that he was not subject to the exemption, and that Mr. Hix, Mrs. Hix, and Ms. Neil were “employers” under the FLSA and were therefore individually liable for his unpaid wages. The district court granted the defendants' motion and denied Johnson's. This appeal followed.

II. ANALYSIS

We review a district court's grant of summary judgment de novo. Ellis v. DHL Express Inc. (USA), 633 F.3d 522, 525 (7th Cir.2011). Because the FLSA is a remedial act, exemptions from its coverage are narrowly construed against employers. Klein v. Rush–Presbyterian–St. Luke's Med. Ctr., 990 F.2d 279, 282 (7th Cir.1999).

The FLSA requires employers to pay overtime (one-and-a-half times the hourly wage) to employees who work more than forty hours a week. 29 U.S.C. § 207(a)(1). Ordinarily, the employees of a motor carrier that engages wholly in intrastate commerce are subject to the Secretary of Labor's jurisdiction, and consequently to the overtime and maximum hours provisions of the FLSA. See Reich v. Am. Driver Serv., Inc., 33 F.3d 1153, 1155 (9th Cir.1994); see generally Goldberg v. Faber Indus., Inc., 291 F.2d 232, 234–35 (7th Cir.1961). In contrast, the employees of a motor carrier that engages in interstate commerce may come under the Secretary

[651 F.3d 661]

of Transportation's jurisdiction under the Motor Carrier Act. 49 U.S.C. § 31502. Under § 31502(b), the Secretary of Transportation, rather than the Secretary of Labor, has the power to prescribe these employees' qualifications and maximum hours of service. Employees subject to the Secretary of Transportation's jurisdiction under § 31502 are exempt from the FLSA's maximum hour and overtime provisions pursuant to the FLSA's motor carrier exemption. See 29 U.S.C. § 213(b)(1). The motor carrier has the burden to show that an employee is exempt. Klein, 990 F.2d at 283.

Many motor carriers engage in both interstate and intrastate commerce, but a motor carrier employee cannot be subject to the jurisdiction of both the Secretary of Labor and the Secretary of Transportation simultaneously. See Reich, 33 F.3d at 1155–56. An employee comes within the Secretary of Transportation's jurisdiction so long as the employee is “subject, at any time, to be[ing] assigned to interstate trips.” Goldberg, 291 F.2d at 235. A minor involvement in interstate commerce as a regular part of an employee's duties subjects that employee to the Secretary of Transportation's jurisdiction. See Reich, 33 F.3d at 1155–56 (citing Morris v. McComb, 332 U.S. 422, 432–35, 68 S.Ct. 131, 92 L.Ed. 44 (1947)). However, an employee's minor involvement does not necessarily subject that employee to the Secretary of Transportation's jurisdiction indefinitely. Id.

The Department of Transportation has promulgated a notice of interpretation through the Federal Highway Administration clarifying the extent of the Secretary of Transportation's jurisdiction over motor carrier employees. ¹ See 46 Fed.Reg. 37,902. The notice of interpretation provides as follows:

[For an employee to fall under the Secretary of Transportation's jurisdiction] ... the carrier must be shown to have engaged in interstate commerce within a reasonable period of...