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Connelly v. Dan Lepke Trucking LLC

United States District Court, W.D. Wisconsin

January 6, 2017


          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiffs 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.

         Pursuant 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.

         Now 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.


         The nature of the motor carrier exemption informs the court's understanding of the relevant facts. So the court will begin there.

         “Congress . . . 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 jurisdiction

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)).

         Motor 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)).

         A 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.

         Here, the parties agree that Dan Lepke Trucking and Lepke Trucking & Excavating are motor carriers. The parties dispute the location of the work performed.


         Having 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.

         Defendant 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.

         Defendants 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.

         A. ...

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