Olivo v. Crawford Chevrolet Inc., Civ. No. 10-782 BB/LFG

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtBRUCE D. BLACK
Decision Date27 July 2011
Docket NumberCiv. No. 10-782 BB/LFG

CARL ROMERO, Defendants.

Civ. No. 10-782 BB/LFG


Dated: July 27, 2011


This matter comes before the Court on Defendants' motion for summary judgment (Doc. 61). Having reviewed the submissions of the parties and the relevant law, the Court finds that Defendants' motion should be DENIED in part and GRANTED in part.

Summary of Relevant Facts

Plaintiff Olivo worked for Defendant Crawford Chevrolet, Inc. at the Santa Fe Chevrolet car dealership as an autopainter. Plaintiff Pacheco worked for Defendant Crawford Chevrolet, Inc., at the same car dealership, as a bodyman. Defendant Crawford Chevrolet, Inc. employed Plaintiffs to repair collision-damaged automobiles. Defendant Carl Romero was a managerial employee of Defendant Crawford Chevrolet, Inc., and he supervised both Plaintiffs in the body shop section of the dealership.

Both Plaintiffs were paid by the job. At Crawford Chevrolet, that meant that employees were given certain assignments and were paid a set amount per assignment-regardless of the amount of time it actually took to complete the assignment. For example, Plaintiff Olivo might be given a painting assignment designated as 15 hours of work; he would be paid for 15 hours on that assignment, even if he spent more or less time on it. Supervisors, including Defendant Romero, distributed the work assignments. If no work was available, the employees had to wait

Page 2

for work. At least some of the time, employees had to wait at the body shop until new work assignments opened up.

Plaintiffs allege they were each made to wait approximately 10-15 hours each week, without pay, at the body shop between work assignments. Plaintiffs commenced this action by filing a complaint for violations of the New Mexico Minimum Wage Act, the Fair Labor Standards Act, and the New Mexico Human Rights Act in the First Judicial District Court of New Mexico. Defendants removed the case to this Court.


Plaintiff brings this suit pursuant to 42 U.S.C. § 1981 and 29 U.S.C. § 201. The Court has jurisdiction over the suit pursuant to 42 U.S.C. § 1331 ("federal question"). This Court has supplemental jurisdiction over Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367(a), as those claims "form part of the same case or controversy" over which this Court has original jurisdiction.

Standard of Review

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Medina v. Income Support Div., 413 F.3d 1131, 1133 (10th Cir. 2005) (quoting Fed. R. Civ. P. 56(c)). In response, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith, 475 U.S. 574, 587-88 (1986). To avoid summary judgment, the nonmoving party may not rest upon the mere allegations in the pleadings but must show, at a minimum, an inference of the existence of each essential element of the case. Eck v. Parke, Davis & Co., 256 F.3d 1013, 1016-17 (10th Cir. 2001) (citing Hulsey v. K-Mart, Inc., 43 F.3d 555, 557 (10th Cir. 1994)). When viewing the

Page 3

evidence, the Court must draw reasonable inferences in favor of the non-moving party. Matsushita, 475 U.S. at 587.


Count I: Fair Labor Standards Act and New Mexico Minimum Wage Act claims

Plaintiffs allege that they were made to wait at the body shop between repair jobs and were not compensated for that time. Defendants do not deny that Plaintiffs were required to wait at the body shop between assignments, but they argue that Plaintiffs' pay for completed assignments was understood by all to compensate for waiting time as well. Defendants also argue that neither Plaintiff is protected by the Fair Labor Standards Act or the New Mexico Minimum Wage Act as they were paid on a piecework, flat rate, or commission basis and thus waiting time is not compensable. Defs.' Mot. for Summ. J., p. 2.

A. Fair Labor Standards Act

Plaintiffs allege that Defendants compelled them to remain on work premises while they were waiting for new assignments and that Defendants did not pay them for such "waiting time." To the extent that they were unpaid but required to remain on Defendants' premises, Plaintiffs allege that Defendants violated the Fair Labor Standards Act ("FLSA"). Defendants argue that Plaintiffs are exempt employees under FLSA, and thus the minimum wage provisions of that statute do not apply in this case.

In support of their argument that Plaintiffs are exempt employees under FLSA, Defendants cite 29 U.S.C.A. § 213(b)(10)(A) as to Plaintiff Pacheco and 29 U.S.C.A. § 207(i) as to Plaintiff Olivo, as well as cases interpreting those two sections of the FLSA. However, both § 213(b)(10)(A) and § 207(i) govern maximum hour requirements or "overtime" requirements-not basic wage requirements. Plaintiff's do not bring overtime or maximum hour claims in this suit, so the law cited by Defendants is not applicable.

Page 4

The relevant portion of FLSA in this case requires employers to compensate employees for nonproductive hours, including time spent waiting, under some circumstances. 29 C.F.R. § 778.318(a). FLSA allows employers to compensate employees at a lower rate than normal for waiting time, but employers must pay at least minimum wage even for unproductive time. 29 C.F.R. § 778.318(b). There is no set manner in which an employer must pay employees for unproductive time, but the employer must comply with FLSA in whatever way it chooses to compensate its employees. 29 C.F.R. § 778.318(c).

For example, while it is not proper for an employer to agree with his pieceworkers that the hours spent in down-time (waiting for work) will not be paid for or will be neither paid for nor counted, it is permissible for the parties to agree that the pay the employees will earn at piece rates is intended to compensate them for all hours worked, the productive as well as the nonproductive hours. If this is the agreement of the parties, the regular rate of the pieceworker will be the rate determined by dividing the total piecework earnings by the total hours worked (both productive and nonproductive) in the workweek. Extra compensation (one-half the rate as so determined) would, of course, be due for each hour worked in excess of the applicable maximum hours standard. Id.

Defendants aver they have an agreement with their employees wherein pieceworkers are compensated for all work-including waiting time-by the wages they receive for job assignments. See Defs. Reply in Supp. of Mot. for Summ. J., pp. 8-10. Although there was no written agreement between the parties, Defendants argue that such an agreement can be inferred from the circumstances of this case: Plaintiffs worked for Defendants for several years under the same payment system (i.e., pay per job) and did not complain about payment for their time spent waiting. Id., p. 9. Plaintiffs explicitly deny that there was such an agreement as to compensation for wait time. Pls.' Resp. To Defs.' Mot. for Summ. J., p. 5. They provide Defendants' answer to interrogatory number nine as further evidence that the parties did not have an agreement. Pls.'

Page 5

Ex. 6, p. 5 ("Crawford states that it never entered into any such agreement [as to wait time compensation] with Plaintiffs").

Any such agreement, if it did exist, would be totally unavailing. Piecework must be included in any computation of minimum wages. Walling v. Harnischfeger Corp., 325 U.S. 427, 431-32 (1945). Employers cannot escape the requirements of FLSA by a piecework system which attributes artificial hours to set piecework. Selan v. Becker, 71 F.Supp. 689, 690-91 (D.C.Wis. 1947). Nor are employees who work on employer's premises "independent contractors" merely because they are paid on a piecework basis. Walling v. Lippold, 72 F.Supp. 339, 350 (D.Neb. 1947). Thus, the Court will deny Defendants'...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT