The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
JERKYLE LAWRENCE, et al. CIVIL ACTION
VERSUS NO. 16-994
NEW INDUSTRIES, LLC JUDGE: NJB
ORDER
In this litigation, Plaintiffs, 17 individuals who were employed as laborers by Defendant
New Industries, LLC (“Defendant”), allege that Defendant did not pay overtime wages or
minimum wages in violation of the Fair Labor Standards Act (“FLSA”).1 Plaintiffs also allege that
Defendant violated Louisiana Revised Statute § 23:1163(A) by requiring employees to contribute
$1 for every hour worked into a pool of money called the “safety pool,” which Plaintiffs allege
Defendant used to satisfy workers’ compensation obligations.2 Pending before the Court is
Defendant’s “Motion for Summary Judgment.”3 Having considered the motion, the memoranda in
support and in opposition, the record, and the applicable law, the Court will grant the motion in
part and deny the motion in part.
I. Background
A. Factual Background
Defendant is a corporation based in Morgan City, Louisiana, engaged in the business of
1 Rec. Docs. 1, 27.
2 Rec. Doc. 27.
3 Rec. Doc. 62.
1
providing steel fabrication services to the oil and gas and marine industries, and Plaintiffs are
laborers who were employed by Defendant.4 In this litigation, Plaintiffs allege that Defendant
violated the minimum wage and overtime provisions of the FLSA.5
According to the Amended Complaint, Defendant requires that Plaintiffs be ready for work
at 6:00 a.m., when Defendant’s jobsite whistle blew.6 Plaintiffs allege that the nature of their jobs
required them to perform tasks and other work before the 6:00 a.m. whistle.7 Specifically, Plaintiffs
assert that Defendant required its laborers to clock into work between 5:30 and 5:45 a.m. to change
clothes, put on personal protective equipment (“PPE”), and gather their tools.8 Plaintiffs allege that
a safety meeting took place at 6:00 a.m. each day when the whistle blew, which signified that
Defendant would begin payment to its laborers.9
To signify the end of the workday, Plaintiffs contend that a whistle would blow, and
Defendant would stop payment to its laborers.10 However, Plaintiffs allege that they were still
required to perform work while not on the clock including putting away tools, returning PPE
clothing, and walking to their time card station to clock out.11
4 Rec. Doc. 27 at 2–4.
5Id. at 1.
6Id. at 4.
7Id.
8Id. at 5.
9Id.
10Id.
11Id.
2
At a minimum, Plaintiffs assert that Defendant did not pay them for 30 minutes each day.12
Plaintiffs also allege that they often worked more than 40 hours per week, and Defendant did not
pay “Plaintiffs one-and-half times their hourly rate for all hours they worked outside the
whistles.”13 Plaintiffs contend that “Defendant willfully violated Plaintiffs’ rights under the FLSA
because Defendant knew or showed reckless disregard for the fact that its compensation practices
violated the FLSA.”14
Plaintiffs also allege that at the beginning of each year Defendant contributes $100,000 to
a fund referred to as the “safety pool.”15 According to the Amended Complaint, Plaintiffs were
required to pay one dollar for every hour worked toward the safety pool.16 Plaintiffs allege that the
safety pool was used to pay for workers’ compensation claims made against Defendant.17 Plaintiffs
contend that the safety pool was also used by Defendant to pay for miscellaneous expenses
including personal expenses of William New, Defendant’s executive.18 According to the Amended
Complaint, each business quarter Defendant disburses a percentage of the safety pool to its
employees, but employees do not receive back 100 percent of their contributions due to various
12Id.
13Id.
14Id.
15Id. at 6.
16Id.
17Id.
18Id.
3
deductions made.19 Plaintiffs contend that the safety pool violates Louisiana Revised Statute
§ 23:1163, which prohibits an employer from deducting from its employees’ wages the amount of
employer pays for workers’ compensation obligations.20 Additionally, Plaintiffs assert that “the
safety pool system engenders hazardous and unjust working conditions by encouraging workers
to exert peer pressure over victims of work accidents to not make claims against the safety pool.”21
Plaintiffs also bring a revendicatory action pursuant to Louisiana Civil Code article 526 to recover
all money divested by Defendant, and an unjust enrichment claim to recover all money paid into
the safety pool.22
B. Procedural Background
Named Plaintiffs Jerkyle Lawrence and Alvin Griffin filed a Collective Action Complaint
on July 6, 2016, against Defendant alleging violations of the minimum wage and overtime
provisions of the FLSA.23 This matter was initially assigned to United States District Judge
Rebecca F. Doherty. On April 10, 2017, the parties filed a joint motion for conditional certification
of a collective action under the FLSA.24 On April 11, 2017, the Court conditionally certified a
class of “[c]urrent and former employees of New Industries, LLC who were employed at any time
from April 1, 2014 through the present date and who were employed in the following job positions:
19Id.
20Id. at 8.
21Id. at 6.
22Id. at 10–11.
23 Rec. Doc. 1 at 1.
24 Rec. Doc. 9.
4
welder, machine operator, fitter, crane operator, forklift operator, rigger, carpenter, tacker or
helper.”25 15 individuals joined the class.26
With leave of Court, on August 29, 2017, Plaintiffs filed an Amended Complaint, adding
claims under Louisiana law regarding the safety pool.27 On December 21, 2017, the Court joined
Plaintiff’s state law claims in the class action with the FLSA claims.28
On July 26, 2018, the case was reassigned to the undersigned Chief United States District
Judge.29 On February 19, 2019, Defendant filed the instant motion for summary judgment.30 On
March 12, 2019, Plaintiffs Alvin Griffin, Arthur Thompson, Stanley King, Norman Lightfoot,
Kevin Jennings and Ray Aucoin filed an opposition to the motion.31 On March 25, 2019,
Defendant filed a reply brief in further support of the motion.32 On June 4, 2019, the parties filed
a notice of voluntary dismissal and dismissed the claims of Alvin Griffin, Norman Lightfoot, and
Raymond Aucoin with prejudice.33 Plaintiffs Stanley King and Kevin Jennings also dismissed their
claims that they were not paid by Defendant for work they performed during lunch periods with
25 Rec. Doc. 10.
26 Rec. Docs. 12–24.
27 Rec. Doc. 19.
28 Rec. Doc. 41.
29 Rec. Doc. 47.
30 Rec. Doc. 62.
31 Rec. Doc. 64.
32 Rec. Doc. 67.
33 Rec. Doc. 89.
5
prejudice, but maintained their claims that they were not paid for setting up and putting away
tools before and after their workshifts.** On June 5, 2019, the Court granted a “Motion for
Discovery Sanctions Pursuant to FRCP Rule 37” and dismissed the claims of Plaintiff Arthur
Thompson without prejudice.*°
Il. Parties’ Arguments
A. Defendant’s Arguments in Support of the Motion for Summary Judgment
In its motion, Defendant argues that all of Plaintiffs’ claims should be dismissed with
prejudice because there are no genuine issues of material fact in dispute and Defendant is entitled
to judgment as a matter of law.*° First, Defendant argues that summary judgment should be granted
with respect to Plaintiffs’ FLSA claims because the time Plaintiffs allegedly spent putting on and
taking off PPE, walking to the time clock, and gathering tools is not compensable under the Portal-
to-Portal Act (“PPA”) and/or the de minimum rule’ Second, Defendant contends that Plaintiffs’
state law claims must be dismissed because there is no evidence establishing that Defendant’s
employees contributed to the safety pool or that Defendant used funds from the safety pool to
satisfy its’ workers’ compensation obligations or pay personal expenses of Defendant and its
management.°*
34 Td.
35 Rec. Doc. 90.
36 Rec. Doc. 62-14 at 1.
37 Id. at 13.
48 Id. at 27.
1. Plaintiffs’ Claims Under the FLSA
Defendant first argues that summary judgment should be granted with respect to Plaintiffs’
FLSA claims because time Plaintiffs allegedly spent putting on and taking off PPE, walking to the
time clock, and gathering tools is not compensable under the PPA and/or the de minimum rule.39
In support of this assertion, Defendant relies on a sworn declaration of William New (“the New
Declaration”) to establish that Defendant does not require its employees to arrive at work or clock
in at any specific time to don PPE or gather tools on an uncompensated basis.40 Additionally,
Defendant cites the New Declaration to support the assertion that employees were not required to
take off PPE, return tools, or perform any work at the end of their shifts on an uncompensated
basis.41
Defendant also asserts that the claims of Cody Chauvin and Freddie Lewis must be
dismissed because Chauvin and Lewis did not answer Defendant’s requests for admissions, and
the Court issued an order deeming the requests for admission admitted.42 Defendant notes that
depositions of seven Plaintiffs were scheduled for the week of January 21, 2019, but four of the
seven deponents failed to appear.43 Moreover, Defendant argues that the deposition testimony of
the other Plaintiffs establishes the following: (1) there was no specified or designated time that
39Id. at 13.
40Id. (citing Rec. Doc. 62-2).
41Id. (citing Rec. Doc. 62-2).
42Id. at 14 (citing Rec. Doc. 45).
43Id.
7
employees were required to appear at work; (2) no work was performed before the start of shift;
(3)employees did not perform any work after clocking out; (4) employees were given a 30 minute
break for lunch; (5) the deponents wore their steel toe boots to and from work; (6) it took a few
seconds to put on a hard hat, ear plugs, and safety glasses; (7) welders kept their welding-specific
PPE at their work stations and put the PPE on after the start of the work day; (8) employees were
not required to gather or retrieve tools prior to the start of their shift or return tools at the end of
their shift; (9) each deponent confirmed that all of the activities alleged in the lawsuit took place
during the course of the workday; and (10) each deponent acknowledged receiving overtime for
hours worked in excess of 40 hours in a workweek.44
Defendant asserts that the Fifth Circuit has held that the donning and doffing of generic,
personal protective gear is not compensable under the PPA.45 Accordingly, Defendant asserts that
Plaintiffs’ claims for compensation under the FLSA for time spent donning and doffing PPE must
be dismissed as a matter of law.46 In addition, Defendant asserts that there is no evidence
supporting Plaintiffs’ allegation that they were required to report to work early or stay late on an
uncompensated basis to don and doff PPE.47
Alternatively, Defendant argues that the time spent donning and doffing PPE is de minimis
44Id. at 15–18 (citing Rec. Docs. 62-11, 62-12, 62-13).
45Id. at 18 (Von Friewalde v. Boeing Aerospace Operations, Inc., 339 F. App’x 448 (5th Cir. 2009)).
46Id. at 21.
47Id.
8
and, therefore, not compensable.48 Defendant points to the New Declaration and the testimony of
the Plaintiffs who were deposed to support this assertion, which indicate that it took a few seconds
to put on a hard hat, safety glasses, and ear plugs.49 In support, Defendant also cites a Supreme
Court case stating that “[a] majority of courts have found daily periods of approximately ten (10)
minutes de minimis as a matter of law.”50
Defendant also argues that time spent walking to the time clock is excluded from FLSA
coverage by the explicit terms of the PPA.51 Furthermore, Defendant argues that time spent
gathering and replacing tools is not compensable because employees were not required to gather
or replace tools outside their paid work shifts.52 Additionally, Defendant asserts that time spent
retrieving and replacing tools is not compensable because these tasks are not indispensable and
integral to Plaintiffs’ employment.53 Alternatively, Defendant contends that the time spent
performing these tasks is de minimis.54 Accordingly, Defendant argues that there is no genuine
issue of material fact in dispute and Plaintiffs’ FLSA claims must be dismissed as a matter of law.55
48Id.
49Id.
50Id. at 23 (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692, 66 S.Ct. 1187, 1195 (1946)
51Id. at 24 (citing 29 U.S.C. §254(a)(1)).
52Id. at 25.
53Id. at 26.
54Id.
55Id. at 27.
9
2. Plaintiffs’ State Law Claims
Second, Defendant contends that Plaintiffs’ state law claims must be dismissed because
there is no evidence establishing that Defendant’s employees contributed to the safety pool or that
Defendant used funds from the safety pool to satisfy its workers’ compensation obligations or pay
personal expenses of Defendant and its management.56 In support of this assertion, Defendant
again cites the New Declaration.57 Specifically, New states that there were no deductions from
employees’ pay for contributions to a safety pool.58 Therefore, Defendant argues that there is no
genuine issue of material fact in dispute, and Plaintiffs’ state law claims must be dismissed as a
matter of law.59
B. Plaintiffs’ Arguments in Opposition to the Motion for Summary Judgment
Plaintiffs Stanley King and Kevin Jennings filed an opposition to the motion.60 According
to the opposition, Jerkyle Lawrence, Craig Reaux, Trevor Alcina, Dontrell Brown, Dale Mitchell,
Cody Chauvin, Leroy Jones, Joaquin Mirajes, Freddie Lewis, Christobal Lopez, and Anthony
Lightfoot have not been in communication with Plaintiffs’ counsel despite counsel’s repeated
56Id.
57Id.
58Id. at 28 (citing Rec. Doc. 62-2).
59Id. at 29.
60 Rec. Doc. 64 at 1. Plaintiff Arthur Thompson also opposed the motion. However, the Court has dismissed
the claims of Arthur Thompson without prejudice. Accordingly, because the claims of Arthur Thompson’s claims are
no longer pending before the Court, they are not addressed in this Order. Plaintiffs Alvin Griffin, Norman Lightfoot,
and Raymond Aucoin also opposed the motion. However, their claims were voluntarily dismissed on June 4, 2019.
10
attempts to contact them.61 Therefore, those Plaintiffs did not submit any formal opposition to the
motion.62 Additionally, the opposition notes that none of the plaintiffs oppose dismissal of the state
law claims.63
The opposition clarifies that Plaintiffs Stanley King and Kevin Jennings are claiming that
they were not paid to set up and return equipment.64 In support, Plaintiffs attach declarations by
each of these individuals, stating that they were not paid for setting up and/or putting away their
equipment.65 Additionally, Plaintiffs assert that this work was indispensable and integral to their
jobs.66
Specifically, Kevin Jennings states that he cut new rope lengths, selected and tested the
“come along” tools required for the workday.67 Stanley King states that he set up his welding
equipment before the shift began, and that he needed more time than the five minutes allotted to
return his equipment.68 Plaintiffs contend that Defendant has put forth no evidence that the claims
of Plaintiffs King, Lightfoot and Jennings were de minimus or cited any case law supporting
Defendant’s argument that the amount of time Plaintiffs worked, but were not paid, was de
61Id.
62Id.
63Id. at 2.
64Id. at 1.
65Id. at 2.
66Id.
67Id. (citing Rec. Doc. 64-5).
68Id. (citing Rec. Doc. 64-8).
11
minimus.69 Additionally, Plaintiffs assert that this case is administratively provable as the amount
of damages is easily calculable because it is undisputed that each Plaintiff clocked in when he
came to work but was not paid until the safety meeting began.70
C. Defendant’s Arguments in Further Support of the Motion for Summary Judgment
In the reply brief, Defendant contends that Plaintiffs have improperly raised new claims in
opposition to the motion for summary judgment.71 Specifically, Defendant asserts that the claim
that Plaintiffs were not paid for time spent setting up equipment was not alleged in either the
Complaint or the Amended Complaint.72 Defendants contend that it is well settled that a plaintiff
cannot assert claims for the first time in opposition to a motion for summary judgment.73
Additionally, Defendant notes that Fifth Circuit has held that district courts do not abuse their
discretion when they disregard claims, or theories of liability, not presented in the complaint but
asserted in opposition to summary judgment.74
Defendant argues that Plaintiffs presented insufficient evidence to overcome summary
judgment with respect to the claim that they were not paid for time spent setting up, gathering, and
returning equipment.75 Defendant contends that the declarations of Jennings and King are
69Id.
70Id.
71 Rec. Doc. 67 at 1.
72Id. at 2.
73Id. at 3 (citing Cutrera v. Bd. of Sup'rs of LSU, 429 F.3d 108, 113 (5th Cir. 2005)).
74Id. (citing De Franceschi v. BAC Home Loans Servicing, 477 F. App’x 200, 204 (5th Cir. 2012)).
75Id.
12
unsubstantiated, self-serving, and conclusory.76 Defendant argues that Plaintiffs speculate on the
amount of time worked, and do not set forth facts showing that the alleged unpaid work put them
above 40-hours per week or reduced their pay below minimum wage.77 To the extent that the
Plaintiffs’ time records might show that they clocked in prior to 6:00 a.m., Defendants assert
Plaintiffs have offered nothing other than their own testimony to show that they allegedly spent
that time performing compensable activities, as opposed to visiting with other employees, drinking
coffee, or performing other noncompensable activities.78
Furthermore, Defendant contends that these tasks are not compensable under the PPA
because they are preliminary and postliminary activities.79 Defendant also asserts that the time
spent performing these activities was de minimis.80 Additionally, Defendant contends that
Plaintiffs’ declarations do not establish that Defendant had actual or constructive knowledge that
Plaintiffs performed the work without pay, as required by the FLSA.81 For these reasons,
Defendant asserts that Plaintiffs’ declarations are insufficient to defeat summary judgment.82
76Id. at 7.
77Id.
78Id. at 8.
79Id. at 9.
80Id. at 10.
81Id. (citing Von Friewalde v. Boeing Aerospace Oper., 339 F. App’x 448, 445 (5th Cir. 2009)).
82Id.
13
III. Legal Standard
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits
show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”83 When assessing whether a dispute as to any material fact exists, the court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”84 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”85
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law.86 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial.87
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
83 Fed. R. Civ. P.56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
84 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
85 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
86Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
87SeeCelotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
14
demonstrate the absence of a genuine issue of material fact.88 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports his claims.89To withstand a motion for summary judgment, the nonmoving party must
show that there is a genuine issue for trial by presenting evidence of specific facts.90 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
“unsubstantiated assertions,” or “by only a scintilla of evidence.”91 Rather, a factual dispute
precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable
trier of fact to find for the nonmoving party. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible in evidence at trial do not qualify as competent
opposing evidence.92
IV. Analysis
Defendant raises two issues in the motion for summary judgment.93 First, Defendant argues
that summary judgment should be granted with respect to Plaintiffs’ FLSA claims because time
Plaintiffs allegedly spent putting on and taking off PPE, walking to the time clock, and gathering
88 Celotex, 477 U.S. at 323.
89 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994).
90 Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–
49 (1996)).
91 Little, 37 F.3d at 1075.
92 Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(c)(2).
93 Rec. Doc. 62-14 at 1.
15
tools is not compensable under the PPA and/or the de minimum rule.94 Second, Defendant contends
that Plaintiffs’ state law claims must be dismissed because there is no evidence establishing that
Defendant’s employees contributed to the safety pool.95
In reply, Defendant contends that these claims must be dismissed because they were not
raised in either the Complaint or the Amended Complaint.96 Alternatively, Defendant argues that
Plaintiffs have not presented sufficient evidence to survive summary judgment.97 Accordingly, the
Court will address each of these issues in turn.
As an initial matter, the Court notes that Plaintiffs do not oppose dismissal of the state law
claims.98 Additionally, Plaintiffs do not oppose dismissal of the FLSA claims of Plaintiffs Jerkyle
Lawrence, Craig Reaux, Trevor Alcina, Dontrell Brown, Dale Mitchell, Cody Chauvin, Leroy
Jones, Joaquin Mirajes, Freddie Lewis, Christobal Lopez, and Anthony Lightfoot.99 Accordingly,
the Court will grant summary judgment with respect to the state law claims and the FLSA claims
of Plaintiffs Jerkyle Lawrence, Craig Reaux, Trevor Alcina, Dontrell Brown, Dale Mitchell, Cody
Chauvin, Leroy Jones, Joaquin Mirajes, Freddie Lewis, Christobal Lopez, and Anthony Lightfoot.
Plaintiffs originally opposed dismissal of the FLSA claims brought by Plaintiffs Stanley
94Id. at 13.
95Id. at 27.
96 Rec. Doc. 67 at 1.
97Id. at 3.
98 Rec. Doc. 64 at 2.
99Id. at 1.
16
King, Norman Lightfoot, Kevin Jennings, Alvin Griffin, and Ray Aucoin.'°° However, on June 4,
2019, the parties filed a notice of voluntary dismissal and dismissed the claims of Alvin Griffin,
Norman Lightfoot, and Raymond Aucoin with prejudice.'®! Plaintiffs Stanley King and Kevin
Jennings also dismissed their claims that they were not paid by Defendant for work they performed
during lunch periods with prejudice, but maintained their claims that they were not paid for
setting up and putting away tools before and after their workshifts.!°? On June 5, 2019, the Court
granted a “Motion for Discovery Sanctions Pursuant to FRCP Rule 37” and dismissed the
claims of Plaintiff Arthur Thompson without prejudice.!? Therefore, the only claims that
remain are Plaintiffs Kevin Jennings and Stanley King’s claims that they were not paid for
setting up and putting away tools before and after their workshifts.
A. Claims Raised for the First Time in Opposition to the Motion for Summary Judgment
Defendant contends that Plaintiffs have improperly raised new claims in opposition to the
motion for summary judgment.' Specifically, Defendant asserts that Plaintiffs did not allege in
either the Complaint or the Amended Complaint that they were not paid for work performed during
their lunch breaks.!°> Defendant also asserts that the claim that Plaintiffs were not paid for time
100 Rec. Doc. 64.
101 Rec. Doc. 89.
102 Tq.
103 Rec. Doc. 90.
104 Rec. Doc. 67 at 1.
105 Td.
17
spent setting up equipment was not alleged in either the Complaint or the Amended Complaint.106
A properly pleaded complaint must give “fair notice of what the claim is and the grounds
upon which it rests.”107 Accordingly, the Fifth Circuit has stated that “district courts do not abuse
their discretion when they disregard claims or theories of liability not present in the complaint and
raised first in a motion opposing summary judgment.”108
Defendant asserts that the claim that Plaintiffs were not paid for time spent setting up
equipment was not alleged in either the Complaint or the Amended Complaint. However, the Court
finds this argument unavailing. In the Amended Complaint, Plaintiffs allege that “Defendant
requires its laborers to gather the tools that they will need and meet at 6:00 am for a safety
meeting.”109 The Amended Complaint also alleges that at the end of the day employees must “put
away Defendant’s tools.”110 In opposition to the motion for summary judgment, Plaintiffs present
declarations of Stanley King and Kevin Jennings, stating that they were not paid for setting up
and/or putting away their equipment, including a sub arc welding machine, rope, “come along”
tools, and welding equipment.111
Merriam-Webster Dictionary defines a “tool” as “something (such as an instrument or
106Id. at 2.
107De Franceschi v. BAC Home Loans Servicing, 477 F. App’x 200, 204 (5th Cir. 2012) (quoting Ashcroft
v.Iqbal, 556 U.S. 662, 698–99, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
108Id.
109 Rec. Doc. 27 at 5.
110Id.
111 Rec. Doc. 64 at 2.
18
apparatus) used in performing an operation or necessary in the practice of a vocation or
profession.”112 Merriam-Webster Dictionary defines “equipment” as “the set of articles or physical
resources serving to equip a person or thing.”113 The items described in Plaintiffs’ declarations
appear to fall under the common definition of both tools and equipment. Therefore, the Court
concludes that this claim was properly raised in the Amended Complaint. Accordingly, the Court
will proceed to address whether Defendants are entitled to summary judgment on Plaintiffs’ claims
that they were not paid for time spent setting up and putting away tools or equipment.
B. Whether Defendants are Entitled to Summary Judgment on Plaintiffs’ Claims that They
were not Paid for Time Spent Setting Up and Putting Away Tools or Equipment
The FLSA mandates that “no employer shall employ any of his employees . . . for a
workweek longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one and one-half times
the regular rate at which he is employed.”114 “Moreover, the FLSA generally requires employers
to pay employees for all hours worked.”115 “If an employer violates the overtime-compensation
requirement, it is ‘liable to the employee or employees affected in the amount of their unpaid
minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional
112 Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/tool (last visited June 3,
2019).
113 Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/equipment (last visited June
3, 2019).
114 Von Friewalde v. Boeing Aerospace Oper., 339 F. App’x 448, 453 (5th Cir. 2009) (quoting 29 U.S.C.
§207(a)(1)).
115Id.(citing 29 U.S.C. §§ 206, 207; Alvarez v. IBP, Inc., 339 F.3d 894, 902 (9th Cir.2003), aff’d, 546 U.S.
21 (2005)).
19
equal amount as liquidated damages.’”116
As noted above, in opposition to the motion for summary judgment, Plaintiffs present
declarations of Stanley King and Kevin Jennings, stating that they were not paid for setting up
and/or putting away their equipment.117 Defendant argues that Plaintiffs presented insufficient
evidence to overcome summary judgment because Plaintiffs have not pointed to any evidence
establishing that the alleged unpaid work put them above 40-hours per week or reduced their pay
below minimum wage.118 The Court finds this argument unavailing because the FLSA generally
requires employers to pay employees for all hours worked.119 Furthermore, it is undisputed that
each Plaintiff clocked in when he came to work but was not paid until the safety meeting began.
Therefore, the amount of overtime work performed by each Plaintiff can readily be calculated at
trial.
Additionally, Defendant contends that these tasks are not compensable under the PPA
because they are preliminary and postliminary activities.120 Defendant also asserts that the time
spent performing these activities was de minimis.121 Furthermore, Defendant contends that
Plaintiffs’ declarations do not establish that Defendant had actual or constructive knowledge that
116 Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 379 (5th Cir. 2019) (quoting 29 U.S.C.
§216(b)).
117 Rec. Doc. 64 at 2.
118 Rec. Doc. 67 at 7.
119Von Friewalde, 339 F. App’x at 453.
120Id. at 9.
121Id. at 10.
20
Plaintiffs performed the work without pay, as required by the FLSA.122 Accordingly, the Court
will address each of these issues in turn.
1. Whether the Activities are Excluded from Coverage under the PPA
As the Fifth Circuit has noted, “not all activities performed in the workplace are necessarily
compensable under the FLSA.”123 In particular, the Portal-to-Portal Act of 1947 amended the
FLSA to provide that employers are not required to compensate employees for:
(1)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, and
(2) 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
which he ceases, such principal activity or activities.124
In Steiner v. Mitchell, the Supreme Court held that preliminary or postliminary activities
are compensable if they are not excluded under Section 254(a)(1) and are “an integral and
indispensable part of the principal activities for which covered workmen are employed.”125 “To be
‘integral and indispensable,’ an activity must be necessary to the principal work performed and
done for the benefit of the employer.”126 In Integrity Staffing Solutions, Inc. v. Busk, the Supreme
Court provided additional guidance on this issue, stating that “[a]n activity is therefore integral
122Id.
123Id.
124 29 U.S.C. § 254(a).
125 350 U.S. 247, 256 (1956).
126Von Friewalde, 339 F. App’x at 454 (quoting Alvarez, 339 F.3d at 902–03).
21
and indispensable to the principal activities that an employee is employed to perform 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.”127 “Busk conveys that whether an activity is integral and
indispensable to an employee’s principal activities does not turn on whether the activity benefits
the employer or whether the employer requires the activity.”128 The Court expressly stated that
“[i]f the test could be satisfied merely by the fact that an employer required an activity, it would
sweep into ‘principal activities’ the very activities that the Portal-to-Portal Act was designed to
address.”129
The Supreme Court has identified some activities that satisfy the “integral and
indispensable” test. In Steiner, the high Court held that changing clothes and showering was
integral and indispensable to the workers’ principal activity of manufacturing automotive-type
wet-storage batteries, which involved dangerous chemicals and fumes.130 In Mitchell v. King
Packing Co., the Court concluded that knife-sharpening activities were integral and indispensable
to the employees’ work at the meat-packing plant.131 Conversely, in Busk, the Court concluded
that mandatory security screenings were not integral and indispensable to the warehouse
employees’ work of retrieving and packaging products for shipment to customers.132
127 135 S.Ct. 515, 517 (2014).
128Bridges v. Empire Scaffold, L.L.C., 875 F.3d 222, 227–28 (5th Cir. 2017) (citing Busk, 135 S.Ct. at 519).
129Busk, 135 S.Ct. at 519.
130 350 U.S. at 249–50.
131 350 U.S. 260, 262–30 (1956).
132 Busk, 135 S.Ct. at 518.
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The Fifth Circuit’s opinion in Von Friewalde v. Boeing Aerospace Operations, Inc. is
particularly instructive in this case.133 There, the plaintiffs were employed as mechanics, quality
inspectors, tool control attendants, and ramp operators at Boeing’s facility in San Antonio, Texas,
dedicated to maintaining and repairing military aircraft.134 Boeing required employees to “clock
in” anytime within 30 minutes prior to their assigned shift and “clock out” anytime within 18
minutes after their shift.135 Employees were paid for the set number of hours covered by their
shifts, but were automatically paid overtime if they clocked in before the 30 minute grace period
or clocked out after the 18 minute grace period.136 The plaintiffs sought overtime wages for the
following activities allegedly performed outside of their actual shift times: “walking between their
lockers and their work stations; obtaining and inventorying tools; donning and doffing ordinary
protective gear such as safety glasses and hearing protection; and entering time and performing
other work-related tasks on Boeing’s computers.”137 The district court granted summary judgment
in favor of Boeing, finding that the activities for which the plaintiffs sought overtime payment
were non-compensable as a matter of law.138
On appeal, the Fifth Circuit determined that time spent obtaining standard tool bags,
clocking in and out, and donning and doffing generic safety gear involved a de minimis amount of
133Von Friewalde, 339 F. App’x at 448.
134Id. at 451.
135Id.
136Id.
137Id. at 452.
138Id.
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time and therefore were non-compensable activities under the FLSA.139 However, the Fifth Circuit
found that “the following activities, if actually proven to involve more than a de minimis amount
of time, were compensable as a matter of law: performing substantive tasks on Boeing computers
. . .; checking specialized tools in and out of the tool crib and . . . preparing the tool crib prior to
the shift and putting away tools at the close of the shift; and cleaning up work stations at the end
of the shift.”140 Nevertheless, the Fifth Circuit noted that the plaintiffs still bore “the burden of
proving that they performed these activities ‘off the clock’ and were not adequately paid for their
efforts.”141
In this case, Kevin Jennings states that he was employed as a rigger and was responsible
for cutting new rope lengths and selecting and testing the “come-along” tools required for the
workday.142 Stanley King states that he set up his welding equipment before the shift began, and
that he needed more time than the five minutes allotted to return his equipment.143
Plaintiffs have presented evidence showing that they could not complete their job duties as
riggers and welders without first completing these preliminary and postliminary activities.
Plaintiffs have presented evidence to show that these preliminary or postliminary activities are
“integral and indispensable to the principal activities that [Plaintiffs are] employed to perform” in
139Id. at 454.
140Id. at 454–55.
141Id. at 455.
142 Rec. Doc. 64-5 at 1.
143 Rec. Doc. 64-8 at 1.
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that the activities were ones that Plaintiffs could dispense with if they were to perform their
principal activities.144 Therefore, the Court concludes that these activities are compensable under
the FLSA.
2. Whether Time Spent Performing these Activities was De Minimis
“[E]ven if an activity might otherwise be compensable, [courts] may disregard de minimis
claims ‘concern[ing] only a few seconds or minutes of work beyond the scheduled working
hours.’”145 As the Fifth Circuit has recognized, “[m]ost courts have found daily periods of
approximately 10 minutes de minimus even though otherwise compensable.”146
Kevin Jennings and Stanley King have presented evidence showing that they were not
compensated for 10 to 15 minutes per day. Specifically, Kevin Jennings states that it took him 10
to 15 minutes per day to cut the rope lengths and 5 minutes to select the come-along tools, and he
was not paid for this time.147 Finally, Stanley King states that it took him 10 to 15 minutes to set
up the welding equipment and 10 to 15 minutes to put the equipment away, and he was not paid
for this time.148 Accordingly, the Court concludes that these tasks may have involved more than a
de minimis amount of time and may be compensable. Therefore, Defendant is not entitled to
summary judgment as a matter of law with respect to the FLSA claims of Kevin Jennings and
144 135 S.Ct. 515, 517 (2014).
145Von Friewalde, 339 F. App’x at 454 (quoting Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 692
(1946)).
146Id. (internal citations omitted).
147 Rec. Doc. 64-5 at 1.
148 Rec. Doc. 64-8 at 1.
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Stanley King.
3. Whether Defendant had Actual or Constructive Knowledge of the Work
The Fifth Circuit has determined that a plaintiff must show that he or she was “employed”
during the time period for which he or she seeks overtime compensation, which requires the
plaintiff to show that the employer had actual or constructive knowledge that the plaintiff was
working overtime.149 Constructive knowledge exists if an employer “exercising reasonable
diligence” would become aware that an employee is working overtime.150 As the Fifth Circuit has
held, “[a]n employer who is armed with [knowledge that an employee is working overtime] cannot
stand idly by and allow an employee to perform overtime work without proper compensation, even
if the employee does not make a claim for the overtime compensation.”151 In Newton v. City of
Henderson, the Fifth Circuit recognized that if an employee fails to notify or “deliberately
prevents” the employer from acquiring knowledge that the employee worked overtime, the
employer’s failure to pay overtime is not a violation of FLSA.152 However, the Fifth Circuit also
instructed that employees are not prevented from claiming additional overtime beyond the hours
reported if “the employer knew or had reason to believe that the reported information was
149Von Friewalde v. Boeing Aerospace Operations, Inc., 339 F. App’x 448, 459 (5th Cir. 2009); Newton v.
City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995); see also Bass v. City of Jackson, Miss., 878 F. Supp. 2d 701, 707
(S.D. Miss. 2011); Garner v. Chevron Phillips Chem. Co., L.P., 834 F. Supp. 2d 528, 544–45 (S.D. Tex. 2011).
150Von Friewalde, 339 F. App’x at 455 (citing Brennan v. Gen. Motors Acceptance Corp., 482 F.2d 825, 827
(5th Cir. 1973)).
151Newton, 47 F.3d at 748 (quoting Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir.
1981)).
152Id.
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inaccurate.”153
In this case, the parties do not dispute that each Plaintiff clocked-in when he arrived at
work but was not paid until the morning safety meeting began. Defendant asserts that Plaintiffs
did not begin working until after the morning meeting. In opposition, Plaintiffs have presented
declarations of Kevin Jennings and Stanley King showing that they performed work before the
morning meeting began. Considering that Defendant was aware of the times that Plaintiffs clocked
into work each day, there is a disputed issue of material fact as to whether Plaintiffs were working
during the time-period between when they clocked in and when the morning safety meeting began
and whether Defendant had actual or constructive knowledge that Plaintiffs were working during
that period. Accordingly, the Court denies the motion for summary judgment as to the FLSA
claims of Kevin Jennings and Stanley King.
V.Conclusion
As discussed above, Plaintiffs do not oppose dismissal of the state law claims.154
Additionally, Plaintiffs do not oppose dismissal of the FLSA claims of Plaintiffs Jerkyle Lawrence,
Craig Reaux, Trevor Alcina, Dontrell Brown, Dale Mitchell, Cody Chauvin, Leroy Jones, Joaquin
Mirajes, Freddie Lewis, Christobal Lopez, and Anthony Lightfoot.155 Therefore, the Court grants
summary judgment as to these claims. However, there is a disputed issue of material fact as to
whether Plaintiffs were working during the time-period between when they clocked in and when
153Id. at 749 (citing Brumbelow v. Quality Mills, Inc., 462 F.2d 1324, 1327 (5th Cir. 1972)).
154 Rec. Doc. 64 at 2.
155Id. at 1.
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the morning safety meeting began and whether Defendant had actual or constructive knowledge
that Plaintiffs were working during that period. Therefore, the Court denies the motion for
summary judgment as to the FLSA claims of Kevin Jennings and Stanley King. Accordingly,
IT IS HEREBY ORDERED that Defendant’s “Motion for Summary Judgment”! is
GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that the motion is GRANTED to the extent it requests
dismissal of Plaintiffs’ state law claims and the FLSA claims of Plaintiffs Jerkyle Lawrence, Craig
Reaux, Trevor Alcina, Dontrell Brown, Dale Mitchell, Cody Chauvin, Leroy Jones, Joaquin
Mirajes, Freddie Lewis, Christobal Lopez, and Anthony Lightfoot. The motion is DENIED in all
other respects.
NEW ORLEANS, LOUISIANA this 5th day of June, 2019.
Oreeltt, □□□
ant Aereelteobuvett □
CHIEF JUDGE
UNITED STATES DISTRICT COURT
156 Rec. Doc. 62.
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