United States District Court, S.D. Ohio, Western Division
JOHN LEWIS, on behalf of himself and all others similarly situated, Plaintiff,
SENTRY ELECTRICAL GROUP, INC., Defendant.
MICHAEL R. BARRETT JUDGE
matter is before the Court on the Defendant's Motion to
Partially Dismiss Plaintiff's Amended Collective Action
Complaint. (Doc. 12). Plaintiff has filed a memorandum in
opposition (Doc. 15), to which Defendant has replied (Doc.
16). As explained below, Defendant's Motion will be
John Lewis brings this civil action seeking unpaid wages,
including overtime wages, under the Fair Labor Standards Act,
29 U.S.C. § 201 et seq. His claims are asserted
as a collective action pursuant to § 216(b). In support,
on behalf of himself and all others similarly situated, he
alleges the following facts in his Amended
relevant times, Plaintiff was employed by Defendant Sentry
Electrical Group, Inc. as an hourly, non-exempt employee.
(Doc. 11 at PageID 43 (¶ 3)). He regularly worked more
than 40 hours per workweek. (Id. (¶ 4)).
Defendant required Plaintiff to travel to
“remote” jobsites during normal work hours.
(Id. at PageID 45 (¶18)). These remote jobsites
were located “hundreds of miles away” from
Plaintiff's home community, necessitating an overnight
stay. (Id.). As an example, Plaintiff travelled from
his residence in Shelby, Ohio to Lubbock, Texas.
(Id. at PageID 45 (¶ 19)). But because
Defendant has a companywide “no pay for travel”
policy, Defendant did not pay Plaintiff for his travel time.
(Id. at PageID 45 (¶ 20)). Nor did Defendant
count this travel time as hours worked for purposes of
determining Plaintiff's overtime eligibility.
(Id. at PageID 45 (¶ 21)). Hence, Plaintiff
claims that he-and the collective class members-have been
willfully deprived of proper wages, including overtime
responds that Plaintiff's claim is “not
cognizable” under the FLSA, “which categorizes
travel time to and from the actual place of performance of
work as noncompensable.” (Doc. 12 at PageID 57).
12(b)(6) allows a party to move to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed. Civ. P. 12(b)(6). To withstand a
dismissal motion, a complaint must contain “more than
labels and conclusions [or] a formulaic recitation of the
elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). The Court does not
require “heightened fact pleading of specifics, but
only enough facts to state a claim for relief that is
plausible on its face.” Id. at 57 (emphasis
added). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A district court
examining the sufficiency of a complaint must accept the
well-pleaded allegations of the complaint as true.
Id.; DiGeronimo Aggregates, LLC v. Zemla,
763 F.3d 506, 509 (6th Cir. 2014).
FLSA requires employers to pay at least a specified minimum
wage for each hour worked, see 29 U.S.C. § 206,
and overtime compensation for employment in excess of forty
hours in a workweek.” Chao v. Tradesmen Int'l,
Inc., 310 F.3d 904, 907 (6th Cir. 2002) (citing 29
U.S.C. § 207(a)(1)). “Although the term
‘work' is not defined in the statute, the Act
defines ‘employ' to mean ‘to suffer or permit
to work.'” Id. (citing 29 U.S.C. §
203(g); 29 C.F.R. § 785.6). “The Supreme Court
[once] defined work to include any time
‘controlled or required by the employer and pursued
necessarily and primarily for the benefit of the employer and
his business.'” Id. (quoting Tennessee
Coal, Iron & R. Co. v. Muscoda Local No. 123, 321
U.S. 590, 598 (1944)) (emphasis added). But in 1947, the
Portal-to-Portal Act amended the FLSA and specifically
excluded “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). In other words,
this amendment made “ordinary commute time”
non-compensable under the FLSA. Aiken v. City of
Memphis, 190 F.3d 753, 758 (6th Cir.1999).
employee who travels from home before his regular workday and
returns to his home at the end of the workday is engaged in
ordinary home to work travel which is a normal incident of
employment.” 29 C.F.R. § 785.35. “This is
true whether he works at a fixed location or at different job
sites.” Id. "Normal travel from home to
work is not worktime." Id. (emphasis
added). “Normal travel” is defined by "what
is usual within the confines of a particular employment
relationship." Smith v. Aztec Well Serv. Co.,
462 F.3d 1274, 1287 n.3 (10th Cir. 2006) (quoting
Kavanagh v. Grand Union Co., 192 F.3d 269, 272 (2d
Cir. 1999)). The length of a commute is irrelevant as long as
it was “a contemplated, normal occurrence" of the
employment relationship. Kavanagh, 192 F.3d at 272
& 273 (“The term [‘normal travel'] does
not represent an objective standard of how far most workers
commute or how far they may reasonably be expected to
commute. Instead, it represents a subjective standard,
defined by what is usual within the confines of a particular
away from an employee's “home community” is
treated differently, however:
Travel that keeps an employee away from home overnight is
travel away from home. Travel away from home is clearly
worktime when it cuts across the employee's workday. The
employee is simply substituting travel for other duties. The
time is not only hours worked on regular working days during
normal working hours but also during the corresponding hours
on nonworking days. Thus, if an employee regularly works from
9 a.m. to 5 p.m. from Monday through Friday the travel time
during these hours is worktime on Saturday and Sunday as well
as on the other days. Regular meal period time is not
counted. As an enforcement policy the Divisions will not
consider as worktime that time spent in travel away from home
outside of regular working hours as a passenger on an
airplane, train, boat, bus, or automobile.
29 C.F.R. 735.39. Summarized, “travel time is
compensable when it cuts across: 1) an employee's workday
and 2) an employee's regular working hours on nonworking
days. Travel time is not compensable when: 1) it
occurs outside of the employee's regular working hours,
whether on working or nonworking days, or 2) the employee is
a passenger on a common carrier and his travel occurs during
his regular working hours on nonworking days.”
Bassett v.TVA, No. 5:09-CV-00039, 2013 WL 2902821,
at *8 (W.D. Ky. June 13, 2013) (emphasis in original);
see Dekker v. Constr. Specialties of Zeeland, Inc.,
No. 1:11-CV-252, 2012 WL 726741, at *4 (W.D. Mich. Mar. 6,
2012) (“The FLSA requires a company to pay for
overnight, out-of-town travel when it ...