United States District Court, W.D. Wisconsin
TIMOTHY CONNELLY, DAVID WINCHELL, RAYMOND SCHLICHT, and RODNEY SCHLICHT, Plaintiffs,
DAN LEPKE TRUCKING LLC, LEPKE TRUCKING & EXCAVATING LLC, and DANIEL LEPKE, Defendants.
OPINION & ORDER
D. PETERSON District Judge
Timothy Connelly, David Winchell, Raymond Schlicht, and
Rodney Schlicht bring this proposed collective action against
their former employers, defendants Dan Lepke Trucking LLC,
Lepke Trucking & Excavating LLC, and Daniel Lepke.
Plaintiffs allege violations of the Fair Labor Standards Act
(FLSA), 29 U.S.C. § 201 et seq., and Wisconsin
prevailing wage laws. Plaintiffs contend that defendants: (1)
failed to compensate plaintiffs for work performed before
they loaded their trucks for the first time each day and
after they unloaded their trucks for the last time each day,
in violation of the FLSA and Wisconsin law; (2) failed to
compensate plaintiffs for overtime work, in violation of the
FLSA and Wisconsin law; (3) deducted wages from
plaintiffs' paychecks for damage to property when
plaintiffs did not have the opportunity to demonstrate that
they did not cause the damage, in violation of Wisconsin law;
and (4) failed to pay plaintiffs overtime when they worked
more than 40 hours per week on Wisconsin prevailing wage
projects, in violation of Wisconsin law. The court granted
the parties' joint motion for conditional class
certification on January 7, 2016. Dkt. 29.
to discussions with Magistrate Judge Stephen L. Crocker
during a February 16, 2016 telephone conference, defendants
filed a motion to resequence several pretrial motion
deadlines. Dkt. 62. Defendants asked the court to consider
whether plaintiffs are exempt from FLSA overtime pay under
the motor carrier exemption, 29 U.S.C. § 213(b)(1),
before the court considers a motion for class certification
under Federal Rule of Civil Procedure 23. In the interests of
efficient case management, the court granted the motion.
defendants' motion for summary judgment based on the
motor carrier exemption is fully briefed. Dkt. 75. Because
defendants have not made the necessary evidentiary showings,
the court will deny the motion.
MOTOR CARRIER EXEMPTION
nature of the motor carrier exemption informs the court's
understanding of the relevant facts. So the court will begin
. . . has exempted a range of employees from the [FLSA's]
overtime provisions, including interstate drivers whose
maximum hours are regulated by the Department of
Transportation.” Almy v. Kickert Sch. Bus Line,
Inc., 722 F.3d 1069, 1070 (7th Cir. 2013) (citing 29
U.S.C. § 213(b)(1)). These employees are FLSA-exempt
because the Department of Labor (via the FLSA) cannot
regulate employees subject to another agency's
jurisdiction. The Department of Transportation has
to establish qualifications and maximum hours of service for
employees of a motor carrier if “property . . . [is]
transported by [the] motor carrier between a place in a State
and a place in another State, ” 49 U.S.C. §§
13501(1)(A), 31502(b), provided that the employees
“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 or foreign commerce within the meaning
of the Motor Carrier Act.” 29 C.F.R. § 782.2(a).
Collins v. Heritage Wine Cellars, Ltd., 589 F.3d
895, 897 (7th Cir. 2009) (alterations in original) (citations
omitted). So “the Secretary of Labor has jurisdiction
over employees that work for a motor carrier ‘engage[d]
wholly in intrastate commerce, ' [and] the Secretary of
Transportation has jurisdiction under the Motor Carrier Act
over employees of motor carriers ‘that engage[ ] in
interstate commerce . . . .'” Cantu v.
Brink's Co., 186 F.Supp.3d 846, 2016 WL 2609989, at
*2 (N.D. Ill. 2016) (first and last alterations in original)
(quoting Johnson v. Hix Wrecker Serv., Inc., 651
F.3d 658, 660-61 (7th Cir. 2011)).
carriers often work in both intra- and interstate commerce,
but an employee cannot be subject to both the FLSA and the
Motor Carrier Act at the same time. Johnson, 651
F.3d at 661. So the court must determine how much interstate
commerce is enough to move an employee out from under the
FLSA. “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.'” Id. (alterations in
original) (quoting Goldberg v. Faber Indus., Inc.,
291 F.2d 232, 235 (7th Cir. 1961)). Even “minor
involvement in interstate commerce as a regular part of an
employee's duties” may subject an employee to the
Secretary of Transportation's jurisdiction. Id.;
see also Morris v. McComb, 332 U.S. 422, 431-32
(1947) (emphasizing the character of an employee's work
over the percentage of time devoted to interstate commerce).
Once an employee engages in interstate commerce-or, if not,
once the motor carrier has engaged in interstate commerce and
the employee could reasonably be expected to make an
interstate trip-the employee is subject to the Secretary of
Transportation's jurisdiction for four months.
Johnson, 651 F.3d at 661 (citing Application of the
Federal Motor Carrier Safety Regulations 46 Fed. Reg. 37, 902
(July 23, 1981)).
driver may be reasonably expected to make interstate runs
when “interstate commerce trips [are] distributed
generally throughout the year and their performance [is]
shared indiscriminately by the drivers.”
Morris, 332 U.S. at 433. “The point of
requiring a motor carrier to show that it regularly engages
in interstate commerce is to prevent employers from
circumventing . . . the FLSA by claiming that their employees
are used in interstate commerce even though the likelihood of
an employee being sent on an interstate run is remote.”
Johnson, 651 F.3d at 663.
the parties agree that Dan Lepke Trucking and Lepke Trucking
& Excavating are motor carriers. The parties dispute the
location of the work performed.
identified the relevant inquiry-whether and to what extent
plaintiffs made interstate trips or expected to make
interstate trips-the court turns to the facts. Very few facts
are undisputed. Where plaintiffs object to a proposed finding
of fact because the underlying source material is not
admissible, but do not dispute the proposed fact, the court
will accept the fact (for now) and will address evidentiary
issues later in this opinion.
Dan Lepke Trucking LLC transports bulk commodities (gravel,
sand, stone, etc.) in dump trucks for hire. Defendant Lepke
Trucking & Excavating LLC is an excavating company.
Defendant Daniel Lepke and his wife, Ruth Lepke (a
non-party), were sole owners of both companies during the
relevant time period. Dan Lepke Trucking is located in
Wisconsin, but it also performs trucking services in
Minnesota and Iowa.
employed plaintiffs as dump truck drivers at various points
between 2012 and 2015. Defendants contend that between 2012
and 2015, their drivers-including plaintiffs-transported
hundreds of shipments in interstate commerce. As a result, so
defendants contend, the motor carrier exemption applies to
the entire time period at issue.