Taylor v. HD and Associates, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

BYRON TAYLOR, ET AL. CIVIL ACTION

VERSUS NO. 19-10635

HD AND ASSOCIATES, LLC, SECTION: “B”(1)

ET AL.

ORDER AND REASONS

Before the Court are several opposed motions for summary

judgment. Defendants HD and Associates, LLC (“HDA”) and John

Davillier’s filed three motions for summary judgment: (1) under

the bona fida commission exemption to the Federal Labor Standards

Act (“FLSA”) (Rec. Docs. 84, 93), (2) under the FLSA’s enterprise

exception (Rec. Docs. 103, 116), and (3) regarding plaintiff

Jonathan Charles (Rec. Docs. 108, 124). Plaintiffs Byron Taylor,

Teraine R. Dennis, Kenneth Hunter, Kendall Matthews, and Lonnie

Treaudo filed a motion for partial summary judgment regarding the

plaintiffs’ employment status (Rec. Docs. 97, 110).

For the reasons discussed below,

IT IS ORDERED that plaintiffs’ motion for partial summary

regarding employment status is DENIED;

IT IS FURTHER ORDERED that defendants’ motions for summary

under regarding the bona fide commission exemption and enterprise

exception are GRANTED; and

IT IS FURTHER ORDERED that defendants’ motion for partial

summary judgment regarding claims by plaintiff Jonathan Charles is

DISMISSED AS MOOT.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs filed the instant action under the Federal Labor

Standards Act (“FLSA”), alleging that they often worked over

forty hours each week and were not paid overtime. Defendant John

Davillier is the managing-member and founder of defendant HD and

Associates “HDA”. HDA is a subcontractor of Cox Communications

(“Cox”), a cable and internet access service provider. Rec. Doc.

84-14 at 1. Cox contracted with HDA to perform the installation,

troubleshooting and repair of cable television, telephone, and

internet access services that Cox provides to its residential

customers. Id. at 2. Cox owns the installed equipment and rents

it to customers; HDA stored necessary equipment at its warehouse

to use for installations. Id.

Plaintiffs previously worked as cable technicians for HDA

and serviced Cox’s residential customers. The employment

relationship between HDA and its technicians—whether the

technicians were employees or independent contractors—is at

issue.

Plaintiff Byron Taylor brought this collective action under

the FLSA on May 22, 2019 to recover unpaid overtime wages. Rec.

Doc. 1. This Court granted plaintiff’s motion for conditional

certification of a collective action comprised of the FLSA

claims of similar cable technicians on March 18, 2020. Rec. Doc.

60. The collective class was defined to include cable

technicians that HDA engaged within twelve months of plaintiffs’

demand letter to defendant or the filing of this court action,

whichever occurred the earliest. Id. Plaintiffs never offered a

demand letter to defendants; thus, the collective class includes

only the technicians that HDA employed in the twelve months

preceding the filing of the initial complaint—May 22, 2018 to

May 22, 2019.

According to the terms of the 2017 Field Service Agreement

between Cox and HDA (the “Cox Agreement”), Cox assigns services

to HDA on an “AS NEEDED” basis in Cox’s sole discretion. Rec.

Doc. 84-15, 1 (emphasis included). Cox uses a point system based

on a schedule of services it provides to its customers, wherein

each service is allocated between zero and fifty points and pays

HDA $4.00 per allocated point. Id. For example, a bundle

installation for basic video and digital video in a single-

family home is allocated seventeen points. Rec. Doc. 84-15, 6.

If an HDA technician completes the installation, Cox pays HDA

$68.00 for that one service order. See Rec. Doc. 84-15, 21.

In turn, HDA enters into contracts with technicians (the

“Technician Contract”) to perform the services as needed

pursuant to the Cox Agreement. Rec. Doc. 84-16. Under the

Technician Contract, HDA paid technicians “not less than an

hourly wage of $8.00 per hour” for the first forty hours of each

week and $12.00 in overtime pay for each hour over forty hours

worked each week. Rec. Doc. 84-16, 8. The Technician Contract

included both a “Discretionary Performance Bonus” and

“Discretionary Performance Chargebacks” based on the point

allocation system under the Cox Agreement. Id. Each technician

is eligible to earn $1.80 per point allocated if the technician

used an HDA vehicle and $2.05 per point allocated if the

technician used their own vehicle, “less any wages paid.” Id.

Poor performance or workmanship could result in a chargeback

from the technicians in the amount charged to HDA. Id. However,

technician wages would not drop below the $8.00 per hour/$12.00

per overtime hour after factoring in chargebacks. Rec. Doc. 84-

16, 8.

Cox controls the technicians’ work. Cox bills its customers

a bundled cost for services, maintenance, and installation. A

Cox customer initiates a request for new services, an upgrade,

or troubleshooting, and Cox generates a work order for the

requested service. Cox bundles its workorders for a given day

and builds them into a route for each technician with

anticipated times of arrival at each customer’s residence based

on a set time estimate for that work order. Technicians use a

PDA with Cox’s proprietary software application “CX Connect”

(“Cox App”) to receive their route and work order details each

day. Based on the data the technician enters into the Cox App,

Cox and HDA can track when a technician is on-site, when the

work order is complete, and it can update the route/schedule for

all technicians based on their individual progress.

II. LAW AND ANALYSIS

A. Summary Judgment Standard

Under Federal Rule of Civil Procedure 56, summary judgment is

appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (quoting Fed. R. Civ. P. 56c); See also TIG Ins. Co. v.

Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A

genuine issue of material fact exists if the evidence would allow

a reasonable jury to return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

court should view all facts and evidence in the light most

favorable to the non-moving party. United Fire & Cas. Co. v. Hixson

Bros. Inc., 453 F.3d 283, 285 (5th Cir. 2006). Mere conclusory

allegations are insufficient to defeat summary judgment. Eason v.

Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996).

The movant must point to “portions of ‘the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.”

Celotex, 477 U.S. at 323. If and when the movant carries this

burden, the non-movant must then go beyond the pleadings and

present other evidence to establish a genuine issue. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). However, “where the non-movant bears the burden of proof

at trial, the movant may merely point to an absence of evidence,

thus shifting to the non-movant the burden of demonstrating by

competent summary judgment proof that there is an issue of material

fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d

616, 618 (5th Cir. 1994). “This court will not assume in the

absence of any proof that the nonmoving party could or would prove

the necessary facts, and will grant summary judgment in any case

where critical evidence is so weak or tenuous on an essential fact

that it could not support a judgment in favor of the [non-movant].”

McCarty v. Hillstone Rest. Grp., 864 F.3d 354, 357 (5th Cir. 2017).

B. The Fair Labor Standards Act

Congress enacted the Fair Labor Standards Act (“FLSA”) to

protect covered workers from substandard wages and oppressive

working hours. 29 U.S.C. § 201 et seq.; Barrentine v. Arkansas-

Best Freight System, Inc., 450 U.S. 728, 739 (1981). Among its

other provisions, the FLSA requires employers to pay employees

overtime compensation for hours worked in excess of forty hours in

a given week at a rate “not less than” one and one-half times their

regular rate. 29 U.S.C. § 207. Covered workers are employees

engaged in commerce or employed by an enterprise engaged in

commerce. 29 U.S.C. § 207. An enterprise “engaged in commerce” has

employees engaged in commerce or handling, selling, or otherwise

working on goods or materials that have been moved in or produced

for commerce and has an annual gross volume of business in excess

of $500,000. 29 U.S.C. § 203(s)(1)(A).

Several exemptions and exclusions exist within the statutory

framework of the FLSA. FLSA exemptions are to be narrowly construed

against employers and are to be withheld except as to persons

plainly and unmistakably within their terms and spirit. Auer v.

Robbins, 519 U.S. 452 (1997). The employer has the burden of proof

to show that it is entitled to exemption. Dole v. Mr. W. Fireworks,

Inc., 889 F. 2d 543 (5th Cir. 1989). Exclusions and exemptions

relevant to the motions before the Court include: (1) enterprises

that do not engage in interstate commerce, § 203(s)(1)(A), (2)

independent contractors, § 203 (r)(1), and (3) a bona fide

commission of a service enterprise, § 207(i). Each exclusion and

the coordinating motion will be discussed independently below.

1. Independent Contractors

The FLSA requires employers to pay employees at least one-

and-one-half times the regular hourly rate for hours worked in

excess of forty hours per week. See 29 U.S.C. § 207(a)(1).

Independent contractors are exempt from such requirement. In

determining the employee/independent contractor status, the

relevant question is whether the individual, as a matter of

economic reality, are economically dependent on the business to

which they supply their labor and service. Parrish v. Premier

Directional Drilling, L.P., 917 F.3d 369, 379 (5th Cir. 2019). The

Fifth Circuit utilizes “economic realities” or Silk factors to

guide this inquiry including: “(1) the degree of control exercised

by the alleged employer; (2) the extent of the relative investments

of the worker and the alleged employer; (3) the degree to which

the worker’s opportunity for profit or loss is determined by the

alleged employer; (4) the skill and initiative required in

performing the job; and (5) the permanency of the relationship.”

Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008);

U.S. v. Silk, 331 U.S. 704 (1947). Other factors considered in the

economic reality test include: (1) whether the employer possessed

the power to hire and fire the employees; (2) whether the employees

had control over their own schedules or conditions of employment;

(3)which party determined the employee’s rate and method of

payment; and (4)whether the employer maintained employment

records. See Goldberg v. Whitaker House Co-op., Inc., 366 U.S. 28

(1961); Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012). “No

single factor is determinative. Rather, each factor is a tool used

to gauge the economic dependence of the alleged employee, and each

must be applied with this ultimate concept in mind.” Hopkins, 545

F.3d at 343. (internal citations omitted). It is often possible

for both parties to point to the presence or absence of particular

Silk factors and a rigid application of the guidelines “would be

a futile exercise.” Weisel v. Singapore Joint Venture, Inc., 602

F.2d 1185, 1189 (5th Cir. 1979).

Analyzing the specific facts under this case proves to be

just as futile. In addition to HDA possessing the power to hire

and fire them, HDA supervised and controlled employee work

schedules and conditions of employment, HDA determined the rate

and method of payment to technicians for their work, and HDA

maintained employment records on its technicians. Rec. Doc. 96-2.

Accordingly, these factors support a finding that technicians were

employees of HDA.

Yet, Cox held significant and perhaps more control over

technicians than HDA. Cox administered a background check and drug

test to potential technicians and approved each one before HDA

could contract with them. Rec. Doc. 120, 11. Moreover, Cox

maintained a constructive right to fire technicians by prohibiting

them from working on Cox accounts without any input from HDA. Id.

Likewise, HDA had little control over the daily workorders that

its technicians were contractually obligated to complete according

to Cox’s training and standards. Id. at 12. Cox controlled most of

the technician’s daily schedule, but technicians could take on

more workorders if they wanted to and help other technicians

struggling to complete their daily routes. Id. at 18. This further

supports the third Silk factor because technicians had the ability

to generate more income through more efficient and proficient work

that allowed them to complete more workorders in a given day. Thus,

the preceding factors support a finding that the technicians were

independent contractors.

Out of an abundance of caution, we will conclude that a

genuine issue of material fact exists regarding the

employee/independent contractor status of the plaintiffs. Granting

the plaintiffs’ motion for partial summary judgment at this stage

of litigation would be inappropriate.

2. Service Enterprises and Commissions

The Fair Labor Standards Act exempts covered employees in the

service sector from its overtime requirements if: (1) their regular

rate of pay is more than one and one-half times the FLSA minimum

hourly rate, and (2) more than one-half of the employees’

compensation is from commissions on services. 29 U.S.C. § 207(i).

In response to defendants’ motion for summary judgment, plaintiffs

do not dispute that HDA is a service enterprise or that their rate

of pay is more than one and one-half times the FLSA minimum hourly

rate. See Rec. Doc. 93. Plaintiffs’ basic argument is that their

compensation plan is not a “commission,” and therefore, it is not

exempt from the FLSA. Id.

Section 203 does not define “commission,” but courts should

give the provisions of the FLSA liberal construction to effectuate

Congress’ remedial intent and apply reason in a commonsense

fashion. See Dunlop v. Ashy, 555 F.2d 1228 (5th Cir. 1977). In

ascertaining the regular rate of employees’ compensation for

purpose of determining the amount of overtime compensation that is

payable, the court must not look at the contract nomenclature but

to actual payments, which the parties agreed shall be paid during

each work week. Walling v. Harnischfeger Corp., 325 U.S. 427, 430

(1945). Merriam-Webster defines “commission” in this context as “a

fee paid to an agent or employee for transacting a piece of

business or performing a service … especially a percentage of the

money received from a total paid to the agent responsible for the

business.” Commission, MERRIAM-WEBSTER, https://www.merriam-

webster.com/dictionary/commission (last accessed November 24,

2020) (emphasis included); see also Yi v. Sterling Collision Ctrs.,

480 F.3d 505, 508-09 (7th Cir. 2007) (“The essence of a commission

is that it bases compensation on sales” and the worker’s pay is

“decoupled from actual time worked.”). In Yi, Judge Posner made

clear that “the word [commission] need not be used for the

exemption to be applicable].” 480 F.3d at 508 (cleaned up).

Courts have applied a three-factor test to determine whether a

compensation plan included a commission that would be exempt from

the FLSA:

(1) the employee’s compensation must be tied to customer

demand or the quantity of sales; (2) the compensation plan

must provide performance-based incentives for the employee

to increase his or her income; and (3) there must be

proportionality between the value of the goods or services

sold and the rate paid to the employee.

Roeder v. Directv, Inc., 14-4091, 2017 WL 151401, at *29 (N.D.

Iowa Jan. 13, 2017) (quoting Johnson v. Wave Comm GR LLC, 4 F.Supp.

3d 423, 442 (N.D.N.Y. 2014)); see also Yi, 480 F.3d at 508-09;

Alvarado v. Corp. Cleaning Serv. Inc., 782 F.3d 365, 368 (7th Cir.

2015). Plaintiffs contend they did not receive a commission, but

“were paid a piece rate and on a point-based system that did not

provide performance-based incentives for the Plaintiffs’ to

increase his or her income.” Rec. Doc. 94-6, ¶ 40. However, “in a

true piece-rate system, a worker would be paid per item produced,

even if there were no sale.” Roeder at *29 (citing Alvarado, 782

F.3d at 367.) For example, a widget maker sells its widgets to one

company and in turn, the company’s salespeople resell these widgets

for a profit. The salespeople earn a specific amount of money for

every widget they sell. The company pays the widget maker every

time he makes a widget for them but pays their salespeople only

when they make a sale. The widget maker is using a true piece-rate

system, while the salespeople are earning a commission. See

Alvarado v. Corp. Cleaning Serv., Inc., 07-06361, 2013 WL6184044,

at *6 (N.D. Ill. Nov. 18, 2013); see also Dyal v. Pirtano Constr.,

Inc., 12-9687, 2018 WL 1508487, at *7 (N.D. Ill. Mar. 27, 2018).

In Alvarado, the plaintiffs contended that, as window

washers, they were paid on a piece-rate system pursuant to a

collective-bargaining agreement. Alvarado, 782 F.3d at 367. The

defendant-company assigned each window job a certain number of

points based on the job’s complexity and the estimated time it

would take to complete that particular job. Id. The company then

paid the window washers by multiplying the allocated number of

points each worker earned by a certain rate. Id. The court held

this compensation plan was a commission system because the window

washers were paid only if there was a sale. Id.

Cox utilized a point system to pay its subcontractors for the

services provided and paid HDA four dollars per “point.” Rec. Doc.

84-14. HDA then paid the technician that provided the service a

two-dollar “discretionary bonus” from that service fee. Rec. Doc.

84-15. While technicians were not in control of what type of work

assigned to them each day, if technicians completed their daily

route early and took on more workorders, they had the opportunity

to earn more compensation while virtually working the same number

of hours. See id. This type of compensation plan incentivized

efficient work. For example, plaintiff Byron Taylor’s time records

indicate that his first week of work included roughly seventeen

hours of work performed at a customer’s home. Rec. Doc. 84-18, 6.

He had almost eight hours between jobs and visited the warehouse

twice. Id. Defendants’ economic expert credited Taylor one hour

per warehouse visit, so Taylor worked approximately twenty-seven

hours that week. Id. HDA paid Taylor $640, which is an approximate

and conservative rate of $23.70 per hour worked that week. Id.

This is well above the one and one-half times the FLSA minimum

hourly rate (approximately $10.88 per hour), and contract

nomenclature aside, more than one-half of his compensation (at a

rate of $8.00 per hour) is from commissions on services.

Plaintiffs argue defendants’ motion for summary judgment

allegedly failed “to mention this specific affirmative defense” in

violation of FRCP 8(c), and that they “had no opportunity to

conduct appropriate discovery concerning this newly alleged

defense.” Rec. Doc. 94-5. That argument fails. Defendants pleaded

“statutory exclusions, exceptions, setoffs, or credits under the

FLSA” as an affirmative defense. Rec. Doc. 26, 5. This catch-all

provision clearly puts plaintiffs on notice that any exclusions

within the statutory scheme upon which they brought their own suit

could be applicable in the case at hand. Plaintiffs were neither

misdirected nor unfairly surprised. Other courts within the Fifth

Circuit agree that the failure to plead the specific exemption

under FLSA does not result in prejudice to the plaintiffs. See,

e.g., Madsen v. Bank of Am. N.A., 12-0896, 2013 WL 821970, at *3

(N.D. Tex. Mar. 6, 2013).

Based on the foregoing analysis, the bona fide commission

exemption has been shown applicable to the compensation plan at

issue, and summary disposition is appropriate.

3. Interstate Commerce

In determining whether there is coverage under the FLSA, what

is finally controlling in each case is the relationship of the

employment to “commerce.” Mitchell v. H.B. Zachry Co., 362 U.S.

310 (1960). Enterprises engaged in commerce include businesses

that “conduct trade, commerce, transportation, transmission, or

communication among the several States or between any State and

any place outside thereof.” § 203(b). The application of the FLSA

depends on the character of employees’ activities, rather than the

nature of the employer’s business. Overstreet v. North Shore Corp.,

318 U.S. 125 (1943); see also Wirtz v. Wohl Shoe Co., 382 F.2d 848

(5th Cir. 1967); Grimes v. Castleberry, 381 F.2d 758, (5th Cir.

1967). To determine whether an employee was “engaged in commerce,”

the court considers whether the employees are actually in or so

closely related to movement of commerce as to be a part of it.

McLeod v. Threlkeld, 319 U.S. 491 (1943). However, unless the

employer is engaged in commerce, the employees are not engaged in

commerce under the FLSA. Lewis v. Florida Power & Light Co., 154

F.2d 751 (5th Cir. 1946); see also Wilson v. Reconstruction Finance

Corp., 158 F.2d 564 (5th Cir. 1947).

HDA and its technicians are not engaged in commerce as defined

under the Fair Labor Standards Act; therefore, defendants are

entitled to a judgment as a matter of law. Plaintiffs rely on HDA’s

contract with Cox, Rec. Doc. 84-15, as proof that HDA technicians

“work to complete interstate commerce.” Rec. Doc. 115-2, 2.

Specifically, plaintiffs point to the physical location of the

companies and specific contract terms. HDA is a Louisiana limited

liability company with its principal place of business in Gretna,

Louisiana and Cox is a Delaware limited liability company with its

principal place of business in Atlanta, Georgia. HDA is to provide

services for Cox “and its affiliates, divisions, districts, and

systems located throughout the United States.” Id., Rec. Doc. 84-

15.

An employee does not necessarily fall under FLSA coverage

because the employer conducts business in more than one state.

Mitchell v. Welcome Wagon, Inc., 139 F. Supp. 674 (W.D. Tenn.

1954), affm’d 232 F.2d 892 (6th Cir. 1956). Regardless of the

aforementioned contract language, HDA did not work outside the

state of Louisiana during the requisite time period of this

collective action. Rec. Doc. 103-1. HDA provides technicians for

installation, troubleshooting and repair of television, telephone,

and internet services provided by Cox. Id. HDA does not build,

buy, or sell the cable, television or telephone equipment used by

Cox customers. Id. Moreover, HDA technicians only service Cox

customers in Louisiana—mostly in the New Orleans Metro Area. Id.

Plaintiffs argue that this Court should look to the product’s

“continuity of movement” across state lines to determine if purely

intrastate activities are an extension of interstate commerce.

Rec. Doc. 115-2, 3 (citing Foxworthy v. Hiland Dairy Co., 997 F.2d

670, 672 (10th Cir. 1993)). They cite two cases with similar facts

to the instant case wherein the courts used a seven-factor test to

determine whether a company intended to ship goods in interstate

commerce when moving goods intrastate after remaining briefly in

a storage facility. See Rec. Doc. 115-2, 3; Musarra v. Digital

Dash, 454 F. Supp. 2d 692, 711-19 (S.D. Ohio 2006); Horn v. Digital

Cable & Communications, Inc., 06-325, 2008 WL 7137186 at *1 (N.D.

Ohio June 12, 2008). In Musarra, DISH Network was the parent

company of Digital Dish and shipped all equipment that its

technicians needed to Digital Dish’s distribution center. Musarra,

454 F.Supp at 695. From there, the equipment is distributed to one

of its warehouses, where it is stored until technicians deliver it

to DISH customers. Id. at 696. In Horn, Cox delivered all of the

necessary equipment to its own warehouse in Parma, Ohio. Horn at

*1. Digital Cable technicians then retrieved the equipment and

delivered it to Cox customers. Id.

While these cases bear remarkable similarities to the present

matter, both are inapposite. Unlike the logistical framework in

Masurra and Horn, it is HDA, not Cox, that owned its warehouse and

obtained all the supplies, materials and equipment for its work

from Cox in Louisiana. Rec. Doc. 103-1, 2. Even if the equipment

came from outside the state, Cox shipped the goods to another Cox-

owned facility, not directly to HDA’s warehouse, i.e., the

equipment remained in Cox’s possession from one state to another,

was stored at the Cox facility in Louisiana, and then delivered to

HDA’s warehouse in Gretna. Consequently, there is a delineation in

the product’s “continuity of movement” across state lines before

HDA technicians ever retrieved the necessary equipment for their

daily workorders.

The instant case is more analogous to Navarro v. Broney

Automotive Repairs, Inc., 533 F. Supp. 2d 1223 (S.D. Fla. 2008),

and Joseph v. Nichell’s Caribbean Cuisine, Inc., 862 F. Supp. 2d

1309 (S.D. Fla. 2012). In Navarro, the employee’s in-state purchase

and installation of out-of-state automobile parts were not actual

movements of goods in interstate commerce, and therefore, the

employee was not entitled to overtime compensation under the FLSA.

533 F. Supp. 2d 1223. The court held the parts stopped flowing in

interstate commerce when they were delivered and stored by the

local dealers, and not when the employee installed the parts on

customer automobiles. Id. In Joseph, the court held that a waitress

was not “engaged in commerce” even though the employee processed

credit and debit card transactions, served food prepared from

ingredients that crossed state lines, and served beverages

produced out of state. 862 F. Supp. 2d 1309. The court found that

credit cards for goods purchased locally did not qualify as

engaging in interstate commerce, and origin of products are

irrelevant to employee’s engagement in interstate commerce. Id.

HDA contracting with Cox alone is not sufficient to conclude

it engaged in interstate commerce. Further, plaintiffs’ work was

purely intrastate. It consisted of picking up equipment from HDA’s

Louisiana warehouse, after which they delivered, installed, and

serviced customers in Louisiana only. Accordingly, for the reasons

stated above, the Court finds that HDA technicians did not engage

in commerce as defined under the FLSA and grant defendants’ motion

for summary judgment.

Further, even if plaintiffs’ contentions hold true, and HDA

engaged in interstate commerce, plaintiffs would be making a

“catch-22” argument under the caselaw plaintiffs relied upon. In

finding that the parties engaged in interstate commerce in both

Massura and Horn, the courts found an exemption to overtime

compensation under the Motor Carrier Act (“MCA”), an exemption

“for employees for whom the Secretary of Transportation may

regulate qualifications and maximum working hours.” 49 U.S.C. §

31502(b); Massura, 454 F.Supp at 695; Horn at *1. This exemption

encompasses “motor carriers” and “motor private carriers.” Under

Horn1

, for an employee to be exempt from the FLSA overtime

compensation as a motor private carrier, the employee must have

been: (1) a person transporting property; (2) engaged in activities

affecting the safety of operation of motor vehicles; (3) engaged

in interstate transportation; an owner, lessee, or bailee of the

property being transported; and (5) transporting the property for

sale, lease, bailment or other commercial enterprise. 49 U.S.C. §§

13102(13), 13501; Horn at *3. Here, it is undisputed that (1)

plaintiffs transported property by motor vehicle, (2) the cable

boxes and other Cox equipment were under the control of individual

drivers as bailees, and (3) the cable boxes were leased to

customers. Courts have consistently found that employees, who

engaged in driving during their regular employment, affected the

safety of operation of motor vehicles. See Crooker v. Sexton

Motors, Inc., 469 F.2d 206 (1st Cir. 1978); see also O’Neal v.

Kilbourne Med. Labs., Inc., No. 05-50, 2007 WL 956428 (E.D. Ky.

Mar. 28, 2007). Therefore, all elements for the MCA exemption are

satisfied except engagement in interstate commerce. Thus, if

plaintiffs had successfully argued that HDA engaged in interstate

commerce, the final element is satisfied and HDA technicians would

be classified as motor private carriers and still excluded from

1 The court in Horn found that the MCA exemption did not apply to claims after

August 10, 2005 because of an amendment in the statute, but that amendment

has since been repealed and the statute now includes its original language.

overtime compensation under the MCA exemption. Accordingly, even

if plaintiffs were engaged in interstate commerce, under the

foregoing specific facts and caselaw, the instant action for

uncompensated overtime would suffer the same fate.

C. Jonathan Charles

A genuine issue of material fact may exist as to whether

Jonathan Charles is similarly situated to the other plaintiffs in

this suit; however, that issue is moot. Plaintiffs cannot overcome

defendants’ motions for summary judgment regarding the enterprise

exception and the bona fide commission exemption that are

applicable to Charles’ situation if found otherwise covered by

FLSA. Accordingly, the partial motion for summary judgment

relative to his situational status with co-plaintiffs is dismissed

as moot.

III. CONCLUSION

For the reasons outlined above, the captioned action is

dismissed based on defendants’ entitlement to judgment as a

matter of law on the enterprise exception and the bona fide

commission exemption.2

2 The well-reasoned decision by the Magistrate Judge, denying plaintiffs

motion to compel production of HD’s Payroll Protection Plan (“PPP”) loan

application to the Small Business Administration, is affirmed and adopted as

the opinion of the court on that issue, dismissing plaintiffs’ appeal

therefrom. See Rec. Docs. 117, 129. All other pending motions are dismissed

as moot in view of this opinion.

New Orleans, Louisiana this 2nd day of December, 2020

___________________________________

SENIOR UNITED STATES DISTRICT JUDGE