# Taylor v. HD and Associates, LLC

> District Court, E.D. Louisiana · December 3, 2020

URL: https://www.frixlaw.com/law-library/cases/10186148

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** December 3, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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SENIOR UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10186148. Public record. Not legal advice.