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Jones v. Hoffberger Moving Servs. LLC

United States District Court, D. Maryland

March 24, 2015

HERBERT JONES, et al., Plaintiffs

Page 406

For Herbert Jones, Joseph Jones, Rodney McFadden, Raymond Green, Berry Rashaard, Mark Jones, Sr, Rhodes Delano, Darryl Anthony Myers, Gregory G Williams, Spencer Davidson, Maurice Eugene Lucas, Teajay S Watson, Marvin Williamson, Antonio L Hunter, Dale Martin, Jr., Keith E Roundtree, Sr, Robert Peterson, Trent Cunningham, Jason Walker, Jerry Zellie Baugh, Clyde Jackson, Jr, Thomas Hayes, Rayshawn Hurst, Dennis Johnson, Jerrod A. Sparrow, Paul M Vogt, Shawn Rawlings, Charles Tisdale, Alvin H. Tellington, Sr, Dionne A. Green, Edmund E Smith, Clark Dwayne Gabriel, Sr, Dameon Davis, Tarik Johnson, Tony Sanders, Darian David Flood, Monte Rogers, Mark Jones, Plaintiffs: Richard P Neuworth, LEAD ATTORNEY, Lebau and Neuworth PA, Baltimore, MD; Devan Michael Wae Wang, Lebau and Neuworth LLC, Towson, MD; James A Lanier, The Law Office of Peter T. Nicholl, Baltimore, MD.

For Odell Graves, Jr, Plaintiff: James A Lanier, The Law Office of Peter T. Nicholl, Baltimore, MD.

For Hoffberger Moving Services, LLC., Defendant: Neil J Ruther, LEAD ATTORNEY, Law Office of Neil J Ruther, Towson, MD.

Page 407


James K. Bredar, United States District Judge.

This action was brought by Plaintiffs Herbert Jones, Joseph Jones, Rodney McFadden, and Raymond Green (collectively " Named Plaintiffs" ) against Hoffberger Moving Services LLC (" HMS" ), Margaret A. Hoffberger, and Michael S. Hoffberger (collectively with HMS, " Defendants" ) (1) as a putative collective action for failing to pay wages due under the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 206, et seq., on behalf of the Named Plaintiffs and similarly situated employees of the Defendants; and (2) as an action on behalf of the Named Plaintiffs only for violations of the Maryland Wage Payment and Collection Act (" MWPCA" ) and the Maryland Wage and Hour Law (" MWHL" ). ( See Second Amend. Compl., ECF No. 47.) Now pending before the Court is Defendants' motion for summary judgment (Def. MSJ, ECF No. 132), Plaintiffs' cross-motion for summary judgment (Pl. Cross-MSJ, ECF No. 137), and Plaintiffs' motion to strike Defendants' affidavits (ECF No. 140). The issues have been briefed[1] and no

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hearing is required, Local Rule 105.6. For the reasons explained below, Defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART, Plaintiffs' cross-motion for summary judgment is DENIED AS MOOT, and Plaintiffs' motion to strike Defendants' affidavits is DENIED.


HMS is a " commercial moving and storage company," and Michael and Margaret Hoffberger are its co-owners. (Second Amend. Compl. ¶ ¶ 8-10.) Plaintiffs are current and former HMS employees who have worked primarily as " helpers," responsible for loading and unloading Defendants' trucks. ( Id. ¶ ¶ 8, 13.)

During the now contested period of employment, Plaintiffs would travel to HMS jobsites and were paid hourly to move " furniture, boxes, and other materials" for Defendants' clients--" commercial, non-profit, and governmental businesses." ( Id. ¶ ¶ 5, 30.) To transport employees to jobsites, Defendants offered a van service every morning from the HMS warehouse to jobsites. ( See Pl. Cross-MSJ at 21.) If employees wished to use Defendants' van service, they were required to arrive at the warehouse at a time specified by the company's dispatcher. ( Id.) Occasionally, employees who had arrived at the warehouse to use Defendants' van service were asked to load moving equipment, " such as dollies, crates, padding, and masonite floor covers," onto the moving trucks. ( Id.) Plaintiffs were compensated for such work time if Plaintiffs filled out timesheets indicating that they had done warehouse work. ( See generally id. at 27-29.)

Plaintiffs contend, however, that they have spent regular and substantial amounts of additional time working for Defendants without proper compensation, in violation of the FLSA. Many employees spent unpaid time at the warehouse each morning, waiting to be transported to jobsites. While waiting, Plaintiffs would sometimes be assigned to particular jobsites for that day (Second Amend. Compl. ¶ 38), and Plaintiffs would sometimes help load trucks with moving equipment, but without signing the warehouse time sheet. (Pl. Cross-MSJ at 24.) In all instances, Plaintiffs were not compensated for warehouse waiting time.

In addition, Plaintiffs were typically not compensated for travel time from the warehouse to jobsites. (Second Amend. Compl. ¶ 40.) Plaintiffs also contend that in using Defendants' van service, vans would regularly arrive at jobsites approximately thirty minutes before Defendants' moving trucks. (Pl. Cross-MSJ at 33.) Plaintiffs argue that they were directed only to log their start time after the moving truck had arrived, and so were not compensated for wait time at the jobsite. ( Id.) Finally, Plaintiffs were not compensated for time spent traveling back to the warehouse to pick up paychecks. ( Id. at 34.)

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Defendants filed a motion for summary judgment on October 6, 2014. (Def. MSJ.) Plaintiffs filed a response in opposition and a cross-motion for summary judgment on November 7. (Pl. Cross-MSJ.) Defendants filed a response to Plaintiffs' cross-motion on December 12 (ECF No. 143) and Plaintiffs filed a reply on January 20, 2015 (ECF No. 147). Plaintiffs also filed a motion to strike Defendants' affidavits on November 21, 2014. (ECF No. 140.) Defendants filed a response on December 5 (ECF No. 142) and Plaintiffs filed a reply on December 16 (ECF No. 144).


1. Legal Standard

" The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the " mere existence of a scintilla of evidence in support of the [opposing party's] position" is insufficient to defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party, Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial, Fed.R.Civ.P. 56(c)(1). Supporting and opposing affidavits are to be made on personal knowledge, contain such facts as would be admissible in evidence, and show affirmatively the competence of the affiant to testify to the matters stated in the affidavit. Rule 56(c)(4).

2. The FLSA and Portal-to-Portal Act

Congress enacted the FLSA in 1938 to establish a federal minimum wage and to mandate that employees be compensated for overtime. Within a decade, and in response to " a flood of litigation," Congress enacted the Portal-to-Portal Act. Integrity Staffing Solutions, Inc. v. Busk, 135 S.Ct. 513, 516, 190 L.Ed.2d 410 (2014). The Portal-to-Portal Act " preserved potential liability for working time not made compensable by contract or custom but narrowed the coverage of the FLSA by excepting two activities that had been previously treated as compensable" under the FLSA. IBP, Inc. v. Alvarez, 546 U.S. 21, 27, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005). First, employers are not liable for an employee's time spent " walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform." 29 U.S.C. § 254(a)(1). Second, employers are not liable for an employee's time spent on " activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at

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which he ceases, such principal activity or activities." Id. § 254(a)(2).

To determine an employer's liability for unpaid wages and overtime, the key inquiry is whether such activities are properly labeled " principal activities" under the Portal-to-Portal Act. The Supreme Court has interpreted the term " principal activity" to " embrace[] all activities which are an integral and indispensable part of the principal activities." Steiner v. Mitchell, 350 U.S. 247, 252-53, 76 S.Ct. 330, 100 L.Ed. 267 (1956) (emphasis added) (internal quotation marks omitted).

In the near sixty years since Steiner, lower courts have attempted to give meaning to the words " integral and indispensable." Many courts, including the Fourth Circuit, introduced tests that looked to whether such activities were required by company policy, or whether they predominantly benefited the employer. See, e.g., Perez v. Mountaire Farms, Inc., 650 F.3d 350, 365-66 (4th Cir. 2011).

In December 2014, the Supreme Court revisited the meaning of " integral and indispensable," and offered a more precise, albeit more restrictive, view. Integrity Staffing, 135 S.Ct. 513, 190 L.Ed.2d 410. The Court rejected tests--like the one articulated in Perez v. Mountaire Farms, 650 F.3d 350--that had focused on " whether an employer required a particular activity" or " whether the activity is for the benefit of the employer." Integrity Staffing, 135 S.Ct. at 519. Instead, the " test is tied to the productive work that the employee is employed to perform." Id. An activity is only " integral and indispensable" to the performance of an employee's principal activities if " it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities." Id.

The Supreme Court illustrated the application of this test by reviewing its application to the Court's precedent: Employers are liable for time that battery plant workers spend showering and changing clothes after working with toxic materials, Steiner, 350 U.S. at 249, 251, and for time that meatpacker employees spend sharpening knives, Mitchell v. King Packing Co., 350 U.S. 260, 262, 76 S.Ct. 337, 100 L.Ed. 282 (1956). In both cases, employers cannot eliminate the disputed activity without impairing their employees' ability to work safely and efficiently. See Integrity Staffing, 135 S.Ct. at 518. In contrast, employers are not liable for time that poultry plant workers spend waiting to don and doff protective gear, IBP, 546 U.S. at 42, or for time that warehouse workers spend waiting in line to go through a post-shift security screening, Integrity Staffing, 135 S.Ct. 513, 190 L.Ed.2d 410. In these cases, an employer could dispose of the disputed activity without impairing their employees' ability to perform the work they were employed to perform.

An employer may be liable for unpaid work even if activities are not found to be integral and indispensable to an employee's principal work. The Portal-to-Portal Act also imposes liability on an employer for unpaid compensation " if such activity is compensable by either--(1) an express provision of a written or nonwritten contract . . . ; or (2) a custom or practice . . . ." 29 U.S.C. § 254(b).

In assessing whether Defendants violated the FLSA, the Court will consider each of Plaintiffs' claimed categories of unpaid work in succession. The Court will first assess whether such time is exempted under § 254(a) of the Portal-to-Portal Act by asking whether the claimed unpaid work is Plaintiffs' principal activity, or if the work is integral and indispensable to the performance of such principal activities. If not, the ...

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