State v. Scott's Elec., Inc.

• Decision Date: 12 May 2014
• Docket Number: No. 20130264.,20130264.
• Citation: 2014 ND 97,846 N.W.2d 327
• Parties: STATE of North Dakota ex rel. Bonnie L. STORBAKKEN, Commissioner of Labor, for the benefit of Patrick Anderson, Adam Barton, Greg Boumont, Jason Richter, Michael Rick, Rick Schake, and Zach Scheeley, Plaintiff and Appellee v. SCOTT'S ELECTRIC, INC., Defendant and Appellant.
• Court: North Dakota Supreme Court

846 N.W.2d 327

2014 ND 97

STATE of North Dakota ex rel. Bonnie L. STORBAKKEN, Commissioner of Labor, for the benefit of Patrick Anderson, Adam Barton, Greg Boumont, Jason Richter, Michael Rick, Rick Schake, and Zach Scheeley, Plaintiff and Appellee

v.SCOTT'S ELECTRIC, INC., Defendant and Appellant.

No. 20130264.

Supreme Court of North Dakota.

May 12, 2014.

Douglas B. Anderson, Office of Attorney General, Bismarck, N.D, for plaintiff and appellee.

Leslie B. Oliver (argued) and Robert J. Pathroff (appeared), Bismarck, N.D, for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Scott's Electric, Inc., appeals from a judgment awarding the State, for the benefit of seven employees of Scott's, $149,551.03 in unpaid wages, penalties and interest relating to uncompensated travel time. We affirm, concluding the district court's findings of fact are not clearly erroneous and the court did not missapply those facts to the controlling law.

I

[¶ 2] Scott's is an electrical contracting business that provides commercial, residential, industrial and farm services within a 250–mile radius of its home base in Wahpeton. During the relevant period, Scott's had between three to five large commercial jobs, two to three small commercial projects and one to two underground utility jobs ongoing at the same time. Scott's maintained a fleet of company-owned vehicles that provided transport for employees and equipment from the home base to various jobsites.

[¶ 3] Scott's employed Patrick Anderson, Adam Barton, Greg Boumont, Jason Richter, Michael Rick, Rick Schake, and Zach Scheeley as journeymen or apprentice electricians. In 2008, they filed claims with the North Dakota Department of Labor seeking unpaid wages from Scott's for travel time while driving company-owned vehicles. Their claims for unpaid wages spanned from April 1991 to March 2008. After investigating the claims, the Department notified Scott's of the wage claim determinations and requestedpayment of wages the Department determined to be valid and enforceable.

[¶ 4] After unsuccessful efforts to collect the unpaid wages, the Department took assignments in trust for wages from the claimants and brought this action against Scott's under N.D.C.C. ch. 34–14 to collect the unpaid wages, penalties and interest. After a bench trial, the district court ruled in favor of the Department and awarded a judgment for unpaid wages, penalties and interest against Scott's for $149,551.03.

II

[¶ 5] After filing its notice of appeal, Scott's offered to pay the State an amount for “Undisputed Wages, Penalties and Interest (8/27/2013).” Scott's did so and a “Partial Satisfaction of Judgment for Undisputed Wages, Interest, and Statutory Penalties” for $48,236.44 was entered on December 23, 2013. On appeal, Scott's seeks reversal of the judgment and requests this Court to “render a take-nothing judgment in favor of Scott's.” The State contends the request for a “take-nothing judgment” is barred to the extent of its post-judgment payment of “undisputed” wages, penalties and interest. Scott's did not respond to the State's argument in its reply brief and continues to request this Court to “render a take-nothing judgment” in its favor.

[¶ 6] This Court follows the rule that “a party who voluntarily pays a judgment against him waives the right to appeal from the judgment.” Ramsey Fin. Corp. v. Haugland, 2006 ND 167, ¶ 9, 719 N.W.2d 346;see also Mr. G's Turtle Mountain Lodge, Inc. v. Roland Twp., 2002 ND 140, ¶ 11, 651 N.W.2d 625;DeCoteau v. Nodak Mut. Ins. Co., 2001 ND 182, ¶ 10, 636 N.W.2d 432;Twogood v. Wentz, 2001 ND 167, ¶ 5, 634 N.W.2d 514;Lyon v. Ford Motor Co., 2000 ND 12, ¶ 13, 604 N.W.2d 453. We have not specifically addressed whether a voluntary partial payment or satisfaction of a judgment for damages constitutes a waiver of the right to appeal. Courts in other jurisdictions have reached divergent results depending on the particular facts and circumstances of the case. See, e.g., E.H. Schopler, Annotation, Defeated party's payment or satisfaction of, or other compliance with, civil judgment as barring his right to appeal, 39 A.L.R.2d 153, § 12 (1955); 4 C.J.S. Appeal and Error § 280 (2007). We need not resolve the issue here because cases addressing the question generally involve situations where the partially satisfied portion of the judgment remains disputed in the appeal. In this case, the partial payment relates to wages, penalties and interest Scott's represented to be an “undisputed” liability.

[¶ 7] The district court found Scott's “acknowledged throughout the course of the proceedings that wages were due the wage claimants, however, as of the date of trial such wages remained unpaid.” After entry of judgment, Scott's paid what it claimed to be the “undisputed” amount of wages, penalties and interest. Scott's request on appeal for reversal and entry of a “take-nothing” judgment violates the well-established principle that “arguments not raised before the district court cannot be raised for the first time on appeal.” Morris v. Moller, 2012 ND 74, ¶ 8, 815 N.W.2d 266.

[¶ 8] Scott's cannot on appeal dispute its “undisputed” liability. Therefore, Scott's did not waive the right to appeal from the judgment by partially satisfying the judgment. However, Scott's only may challenge the judgment in excess of the “undisputed” amount that has been satisfied.

III

[¶ 9] Scott's contends the claimants failed to establish any of the elements necessary to recover unpaid wages under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), the Portal–to–Portal Act, 29 U.S.C. § 254(a), and applicable federal and state rules and regulations.

[¶ 10] North Dakota's labor laws require employers to pay certain employees a specified minimum wage and overtime for hours worked. SeeN.D.C.C. § 34–06–03; N.D. Admin. Code §§ 46–02–07–02 and 46–03–01–01. Scott's agrees North Dakota's labor laws on disputes over unpaid wages generally parallel the provisions of the FLSA. Section 46–02–07–02(7), N.D. Admin. Code, addresses compensability for employee travel time:

“7. Ordinary travel from home to work need not be counted as work time. Special and unusual one-day assignments performed for the employer's benefit and at the employer's request is work time for the employee regardless of driver or passenger status. Travel away from home is work time when performed during the employee's regular working hours. Time spent traveling on nonworking days during regular working hours is work time. The time spent as a passenger on an airplane, train, bus, or automobile after normal working hours is not work time. The driver of a vehicle is working at anytime when required to travel by the employer. Travel time from jobsite to jobsite, or from office to jobsite, is work time to be compensated. Activities which are merely incidental use of an employer-provided vehicle for commuting home to work are not considered part of the employee's principal activity and therefore need not be counted as work time.”

[¶ 11] The State agrees N.D. Admin. Code § 46–02–07–02(7) mirrors the provisions of federal law, with the exception of the sentence: “The driver of a vehicle is working at anytime when required to travel by the employer.” However, there is no indication the district court relied on this sentence of N.D. Admin. Code § 46–02–07–02(7) in deciding the case. Rather, the court analyzed this case under principles of federal law.

[¶ 12] In Bernal v. Trueblue, Inc., 730 F.Supp.2d 736, 745 (W.D.Mich.2010), the court set forth the applicable federal law:

“Generally, the Portal–to–Portal Act, 29 U.S.C. § 254(a), requires employers to pay employees only when they are engaged in ‘principal activities of employment,’ and not those activities that are considered ‘preliminary or postliminary’ to the principal activities. Travel time is generally not considered a principal activity of employment.... There are, however, certain exceptions to this rule. First, travel time may be a principal activity of employment if it is ‘an indispensable part of performing one's job’ rather than ‘ordinary home to work travel which is a normal incident of employment.’ ... Second, even if the travel itself is not an indispensable part of performing one's job, travel time is compensable if it ‘occur[s] after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday.’ ... This is known as the ‘continuous workday’ rule.”

(Internal citations omitted.)

[¶ 13] Federal and state law impose strict recordkeeping requirements upon employers. The FLSA's records provision states in relevant part:

“Every employer subject to any provision of this chapter or of any order issued under this chapter shall make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order as necessary or appropriate for the enforcement of the provisions of this chapter or the regulations or orders thereunder.”

29 U.S.C. § 211(c). Section 34–06–02(2), N.D.C.C., also requires that employers maintain for examination and inspection “all books, payrolls, and other records of any employer of employees appertaining to or bearing on the questions of hours or conditions of labor of any employee employed by such employer.”

[¶ 14] “To establish an FLSA claim for unpaid overtime, the employee must (1) prove ‘that he has in fact performed work for which he was improperly compensated’ and (2) ‘produce[ ] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.’ ” Brennan v. Qwest Commc'ns Int'l, Inc., 727 F.Supp.2d 751, 761 (D.Minn.2010) (citation omitted).

“Thus, in...