Kavanagh v. Grand Union Co.

• Decision Date: 02 June 1999
• Docket Number: Docket No. 98-7696
• Citation: 192 F.3d 269
• Parties: (2nd Cir. 1999) DAVID KAVANAGH, Plaintiff-Appellant, v. GRAND UNION COMPANY, INC., Defendant-Appellee. August Term 1998 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 269

192 F.3d 269 (2nd Cir. 1999)

DAVID KAVANAGH, Plaintiff-Appellant, v. GRAND UNION COMPANY, INC., Defendant-Appellee.

Docket No. 98-7696

August Term 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: June 2, 1999

Decided: September 28, 1999

Appeal from the judgment of the United States District Court for the Eastern District of New York (Thomas C. Platt, District Judge), granting summary judgment to defendant-appellee and dismissing plaintiff-appellant's claims under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.

Affirmed.

TARA A. KAVANAGH Pelletreau & Pelletreau, LLP Patchogue, NY Attorneys for Plaintiff-Appellant

MARK E. TABAKMAN (Jedd Mendelson, of counsel) Grotta, Glassman & Hoffman, P.A. Roseland, NJ Attorneys for Defendant-Appellee Before: MESKILL and WALKER, Circuit Judges, and KORMAN, District Judge.^*

Judge Korman dissents in a separate opinion.

WALKER, Circuit Judge:

Plaintiff-appellant David Kavanagh has sued defendant-appellee Grand Union Company, Inc., under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., seeking hourly overtime wages for the sometimes large amount of time he spent driving between his home and the Grand Union stores at which he performed mechanical services. Between 1994 and 1996, Kavanagh was periodically employed by Grand Union as a refrigerator and utility mechanic. He did not have a fixed work location, but instead was required to travel to various of Grand Union's more than fifty stores in Connecticut and New York, including some in upstate New York. Kavanagh resided in New York on Long Island, first in Patchogue and then in Bellport. He received his work assignments from Grand Union over the telephone. On some days, he would travel to more than one site.

Kavanagh was not a member of a union. He was paid an hourly wage of ten dollars and worked forty-hour weeks. Kavanagh was required to be at the site to which he was assigned by 8:00 a.m. and his work day ended at 4:30 p.m., after which he would return to his home. Grand Union compensated Kavanagh for the time he spent during the day traveling between job sites, but not for his travel time between his home and the first job of the day, nor between the last job of the day and his home. While Kavanagh occasionally used a Grand Union vehicle, he usually traveled in his own truck, carrying with him all of the equipment he needed to make repairs. Some of the equipment belonged to him, some to Grand Union. When he used his own vehicle, Kavanagh was compensated for mileage and gas, and when he drove Grand Union's vehicle he was reimbursed solely for gas expenditures. Although sometimes he was stationed at a single site for a week, Kavanagh returned home every night because Grand Union reserved the right to change his schedule. Kavanagh alleges that he traveled an average of seven to eight hours a day, including travel to and from his home, depending on his work locations. According to Kavanagh, Grand Union owes him approximately $37,605 in overtime compensation.

The district court granted summary judgment to Grand Union and dismissed Kavanagh's claims. For the reasons set forth below, we affirm.

DISCUSSION

The FLSA was enacted 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."'" Barrentine v. Arkansas-Best Freight Sys. Inc., 450 U.S. 728, 739 (1981) (alteration in original) (quoting Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 578 (1942) (quoting 81 Cong. Rec. 4983 (1937) (message of President Roosevelt))). To accomplish this purpose, the FLSA prohibits employers from requiring an employee to work more than forty hours per week unless the employee is compensated for the overtime at a rate not less than one and one-half times his regular rate of pay. See 29 U.S.C. § 207(a)(1).

An employer is not required, however, to compensate an employee for all of the employee's time that is associated with work. Under the Portal-to-Portal Act, 29 U.S.C. § 254(a), an employer is not required to pay an employee overtime for activities such as:

(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 activity or 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.

29 U.S.C. § 254(a). One of the Portal-to-Portal Act's implementing regulations specifically provides that ordinary commuting is not compensable under the FLSA:

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 worktime.

29 C.F.R. § 785.35. The Portal-to-Portal Act recognizes an exception where there is either

(1) an express provision of a written or nonwritten contract in effect, at the time of such activity . . . ; or

(2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, covering such activity, not inconsistent with a written or nonwritten contract . . . .

29 U.S.C. § 254(b).

The district court dismissed Kavanagh's FLSA claim based on the Portal-to-Portal Act. It noted that Kavanagh conceded that Grand Union had neither a contract nor a policy of compensating travel time that might entitle him to the compensation he seeks.

We affirm the district court's decision. Although Kavanagh's situation strikes us as inequitable, nothing in the pertinent statutes and regulations requires Grand Union to compensate Kavanagh for his travel time. While we need not identify a particular regulation exempting an individual from the Portal-to-Portal Act in order to find that compensation is required, see Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); 29 C.F.R. § 785.2 ("The ultimate decisions on interpretations of the [Fair Labor Standards Act] are made by the courts."), we are not free to disregard a regulation precluding compensation when that regulation represents a permissible construction of the statute, see Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 & n.11 (1984); Imada v. City of Hercules, 138 F.3d 1294, 1297 (9th Cir. 1998). Our dissenting colleague insists that we owe far less deference to interpretive guidelines of this nature. See infra at [6-7]. Even so, we accept the relevant guideline here because we find it fundamentally sound and consistent with the statute.

Here, 29 C.F.R. § 785.35 specifically provides that employers are not required to compensate employees for their "[n]ormal travel" between home and work. We interpret "normal travel," as used in this regulation, to refer to the time normally spent by a specific employee traveling to work. The term does not represent an objective standard of how far most workers commute or how far they may reasonably be expected to commute. Instead, it represents a subjective standard, defined by what is usual within the confines of a particular employment relationship. This construction is consistent with the overall regulatory scheme and with the interpretations given by other courts and the Department of Labor ("DOL") itself when confronted with similar cases. See, e.g. United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109, 1120-21 (10th Cir. 1999) (bus drivers' travel time to and from first and last shift of the day not compensable); Imada, 138 F.3d at 1297 (police officers' travel to remote site for three-day training program not compensable, since it was "a normal, contemplated and indeed mandated incident of their employment" even though it occurred infrequently); Vega v. Gasper, 36 F.3d 417, 424-25 (5th Cir. 1994) (farm workers' travel time on bus, sometimes as long as two hours, not compensable); 29 C.F.R. § 790.7(c) (non-compensable travel includes "an employee's ordinary daily trips between his home or lodging and the actual place where he does what he is employed to do"); id. § 785.37 (where an employee is given a special one-day assignment in another city, travel time may be compensable, except for the portion of it that would normally be excluded under "home-to-work" category, such as travel time from home to train station); Wage and Hour Div. Op. Letter, 1997 WL 998025 (Dep't Labor July 28, 1997) (travel by police officers between home and work outside of normal duty hours generally not compensable if "within the normal commuting area"); Wage and Hour Div. Op. Letter, 1995 WL 1032479 (Dep't Labor April 3, 1995) (employees' travel time between home and first work site of the day, even in employer's vehicle, not compensable if, among other things, the "work sites are within the normal commuting area of the employer's establishment").

We do not think the sources cited by the dissent -- DOL opinion letters and another agency's interpretation of overtime pay requirements, see infra at [8-12] -- support a different result here. Despite hints that distance and travel time might be important, most of the opinion letters address extraordinary situations (such as temporary training or special assignments) and find compensation required only when travel between work and home exceeds "ordinary" or "normal" levels. Since we interpret these terms subjectively, see supra, we find no conflict between the opinion letters and our conclusion in this case. And the decision by the office of Personnel and Management ("OPM") to limit...