Peraro ex rel. Castro v. Chemlawn Services Corp.

• Decision Date: 27 July 1988
• Docket Number: Civ. No. H-86-935 (AHN) MJAC.
• Citation: 692 F. Supp. 109
• Parties: P. Joseph PERARO, Commissioner of Labor, State of Connecticut, ex rel. Randy J. CASTRO, et al. v. CHEMLAWN SERVICES CORP.
• Court: U.S. District Court — District of Connecticut

692 F. Supp. 109

P. Joseph PERARO, Commissioner of Labor, State of Connecticut, ex rel. Randy J. CASTRO, et al. v. CHEMLAWN SERVICES CORP.

Civ. No. H-86-935 (AHN) MJAC.

United States District Court, D. Connecticut.

July 27, 1988.

Richard Sponzo and Charles A. Overend, Asst. Attys. Gen., Hartford, Conn., for plaintiffs.

Barclay Robinson, Jr., Robinson & Cole, Hartford, Conn., Robert D. McDonald, Davis Wright & Jones, Washington, D.C., for defendant.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

NEVAS, District Judge.

The plaintiff, the Commissioner of Labor for the State of Connecticut ("Commissioner"), brought suit in state court on behalf of a group of current and former employees of the Chemlawn Services Corporation ("Chemlawn") for overtime wages allegedly due under Connecticut statutory law. Chemlawn removed the case to this court on federal question grounds, arguing that it is exempt from overtime wage liability under both the Fair Labor Standards Act ("FLSA"), 29 U.S.C. Sections 201 et seq., and applicable state law. After the Commissioner's motion for remand was denied, the parties entered into a stipulation of facts, including the overtime sums due each employee if the Commissioner prevails, and placed cross-motions for summary judgment before the court. For the following reasons, the defendant's motion is granted and the plaintiff's denied.

I.

The undisputed facts support the following narrative: Pursuant to Connecticut law, each of the current and former employees of Chemlawn involved in this litigation assigned his or her claim to the Commissioner for overtime wages allegedly due.¹ Each employee works or worked for Chemlawn as a "CarpetClean Specialist," a job that involves carpet, rug, and upholstery cleaning at a customer's premises. Chemlawn maintains a central facility in East Windsor, Connecticut, from which specialists are assigned jobs in Connecticut and Massachusetts. A specialist drives one of the defendant's trucks—equipped with cleaning solvents and other job-related paraphernalia—to a jobsite. There, the customer's water is pumped into water heating equipment fixed to the Chemlawn truck. The heated water is mixed with cleaning solutions in a separate tank on the truck and then pumped through a hose into the customer's premises. During the cleaning process, used water is pumped back to the truck for storage in a holding tank.

The time spent in Massachusetts varies substantially from specialist to specialist and from workweek to workweek. Each specialist has workweeks spent exclusively in Connecticut; as to the group of specialists, the percentage of workdays on which each had a Massachusetts assignment ranged from a low of 6% to a high of 46%. Each specialist averages a workweek of approximately 46 to 54 hours, and his or her total earnings are primarily derived from commissions. In addition, the average driving time per day involving a Massachusetts assignment is generally out-weighed by the time spent performing a job at the customer's premises.

II.

A.

Congress enacted the FLSA in 1938 to protect workers from substandard wages and oppressive working hours. Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 1444, 67 L.Ed.2d 641 (1981). To further these dual purposes, the FLSA permits individual employees to bring wage and hour claims in federal or state court without first exhausting non-judicial avenues of relief. Id. at 740, 101 S.Ct. at 1444. As added incentive to individual employees to enforce their FLSA rights in court, the statute permits recovery for back wages, liquidated damages, attorneys' fees, and costs. Id. n. 16 (citing 29 U.S.C. Section 216(b)). Furthermore, an individual's right to a minimum wage and overtime pay under the FLSA "cannot be abridged by contract or otherwise waived because this would `nullify the purposes' of the statute and thwart the legislative policies it was designed to effectuate." Barrentine, 450 U.S. at 740, 101 S.Ct. at 1444 (quoting Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 707, 65 S.Ct. 895, 902, 89 L.Ed. 1296 (1945)).

The employees in the instant proceeding assert their non-waivable right to overtime pay "at a rate not less than one and one-half times the regular rate" for any hours worked in excess of 40 in any workweek. 29 U.S.C. Section 207(a)(1). The FLSA, in 29 U.S.C. Section 213, exempts certain employers and their employees from section 207 coverage. To ensure maximum coverage by the FLSA, however, a section 213 exemption is construed narrowly against the employer asserting it, Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960), and the employer bears the burden of proving entitlement to an exemption. Id. at 394, 80 S.Ct. at 457. Accord Donovan v. Carls Drug Co., Inc., 703 F.2d 650, 652 (2d Cir.1983). Chemlawn argues that it is exempt under 29 U.S.C. Section 213(b), which provides that "the provisions of section 207 ... shall not apply with respect to—(1) any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49...."

Section 304 of Title 49, part of the Motor Carrier Act ("MCA"), was repealed in 1983 but reenacted without substantive change as section 3102 of Title 49.² Section 3102(b) provides that "the Secretary of Transportation may prescribe requirements for ... (2) qualifications and maximum hours of service of employees of .. a motor private carrier, when needed to promote safety of operation." 49 U.S.C. Section 3102(b)(2). The term "motor private carrier" as used in section 10102 is defined as

a person, other than a motor carrier, transporting property by motor vehicle, when—

(A) the transportation is as provided in section 10521(a)(1) and (2) of this title i.e., in interstate commerce;

(B) the person is the owner, lessee, or bailee of the property being transported; and

(C) the property is being transported for sale, lease, rent, or bailment, or to further a commercial enterprise.

49 U.S.C. Section 10102(16).³ Chemlawn argues that it is a motor private carrier within the meaning of section 3102(b)(2) and is thus subject to regulation by the Secretary of Transportation but not subject to the overtime compensation mandate of section 207 of the FLSA.

Chemlawn next argues that its "motor private carrier" exemption extends to its specialists for all workweeks in question, whether or not any particular specialist crossed over into Massachusetts in any given week. 29 C.F.R. Section 782 sets forth the Secretary of Labor's interpretation of the section 213(b)(1) exemption for certain employees of motor carriers and motor private carriers. 29 C.F.R. Section 782.2(a) states in relevant part:

The exemption of an employee from the hours provisions of the FLSA under section 13(b)(1) 29 U.S.C. Section 213(b)(1) depends both on the class to which his employer belongs and on the class of work involved in the employee's job. The power of the Secretary of Transportation to establish maximum hours and qualifications of service of employees, on which exemption depends, extends to those classes of employees and those only who: (1) Are employed by carriers whose transportation of passengers or property by motor vehicle is subject to his jurisdiction under section 204 of the Motor Carrier Act now 49 U.S.C. Section 3102 citations omitted, and (2) engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate ... commerce within the meaning of the Motor Carrier Act. Citations omitted.

The Secretary of Labor then applies the exemption

to those employees and those only whose work involves engagement in activities consisting wholly or in part of a class of work which is defined: (i) As that of a driver ... and (ii) as directly affecting the safety of operation of motor vehicles on the public highways in transportation in interstate ... commerce within the meaning of the Motor Carrier Act. Citations omitted.

29 C.F.R. Section 782.2(b)(2) (emphases added).

"Driver" is defined under the regulations as

an individual who drives a motor vehicle in transportation which is, within the meaning of the Motor Carrier Act, in interstate ... commerce.... This definition does not require that the individual be engaged in such work at all times.... `Drivers,' as thus officially defined, include, for example ... so-called `driver-salesmen' who devote much of their time to selling goods rather than to activities affecting such safety of operation.

Id. Section 782.3(a) (emphases added). The Secretary of Labor also sets forth a "general rule" on whether the exemption applies in a workweek when a driver performs little or no work directly affecting safety of operation. According to the Secretary,

if the bona fide duties of the job performed by the employee are in fact such that he is ... called upon in the ordinary course of his work to perform, either regularly or from time to time, safety-affecting activities of the character described in 29 C.F.R. Section 782.2(b)(2), he comes within the exemption in all workweeks when he is employed at such job. This general rule assumes that the activities involved in the continuing duties of the job in all such workweeks will include activities which have been determined to affect directly the safety of operation of motor vehicles on the public highways in transportation in interstate commerce. Where this is the case, the rule applies regardless of the proportion of the employee's time or of his activities which is actually devoted to such safety-affecting work in the particular workweek, and the exemption will be applicable even in a workweek when the employee happens to perform no work directly affecting `safety of operation.'

Id. Section 782.2(b)(3) (emphasis added). A driver directly...