MOREL THEN v. GREAT ARROW BUILDERS, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RAFAEL A. MOREL THEN )

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Plaintiff, ) 2:20-CV-00800-CCW

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v. )

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GREAT ARROW BUILDERS, LLC, )

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Defendant.

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MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Great Arrow Builders, LLC’s Motion to Dismiss

Count II of Plaintiff Rafael Morel Then’s Complaint, relating to alleged violations of the

Pennsylvania Minimum Wage Act (“PMWA”), 43 P.S. § 333.101 et seq. Having been fully

briefed, this motion is now ripe for disposition.

I. Background

On June 1, 2020, Plaintiff initiated this action by filing his “Collective and Class Action

Complaint,” seeking damages on behalf of himself and putative collective/class members for

Defendant’s alleged failure to pay certain wages (including overtime) as required under the

PMWA and the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. ECF No. 1. As

relevant here, Plaintiff alleges that Defendant required its workers, including Plaintiff, to park their

personal vehicles at a company-controlled parking lot before boarding company-owned busses to

be driven to their jobsite each day. Id. at ¶ 23–25. Defendant’s workers were then returned to the

company-controlled parking lot via those same company-owned busses at the end of each shift.

Id. Plaintiff claims that Defendant failed to include the travel time from the company-controlled

parking lot to the jobsite—which could take upwards of 20 minutes each way—in its computation

of the hours worked by each employee for purposes of wages and overtime. Id. at ¶¶ 23, 25, 27.

On July 30, 2020, Defendant moved under Federal Rule of Civil Procedure 12(b)(6) to

dismiss the Complaint, in part, arguing that Plaintiff’s travel time claim under the PMWA “must

be dismissed with prejudice because it is pre-empted” by the FLSA. ECF No. 9 at 1. In short,

Defendant asserts that the PMWA is “conflict preempted” by the FLSA because “the PMWA is

less generous than the FLSA with regard to travel-time claims.” ECF No. 10. at 5. According to

Defendant, this is because “while the PMWA requires overtime compensation for travel occurring

only ‘during normal working hours,’ the FLSA requires an employer to pay wages for time spent

traveling outside of normal working hours under certain circumstances.” Id. In support of this

proposition, Defendant relies principally on Espinoza v. Atlas R.R. Constr., LLC, No. CV 15-1189,

2016 WL 279000, *4 (W.D. Pa. Jan. 22, 2016) (finding that travel time on days plaintiff was not

scheduled to work was not compensable under PMWA), aff'd, 657 F. App’x 101 (3d Cir. 2016),

and Sarrazin v. Coastal, Inc., 89 A.3d 841 (Conn. 2014) (finding FLSA preempted state wage and

hour law where state law did not provide for compensation for regular commute but FLSA, under

certain circumstances, might). ECF No. 10. at 15–19. Defendant concludes from these holdings

that “the PMWA falls below the ‘floor’ set by the FLSA” for the type of travel time at issue here,

and Plaintiff’s claim for unpaid travel time under the PMWA should be dismissed. Id. at 19.

Plaintiff, in opposing Defendant’s preemption theory, argues that Defendant’s contention

that the PMWA provides less generous protections than the FLSA with regard to Plaintiff’s travel

time claim is at odds with more recent persuasive authority from the United States Court of

Appeals for the Third Circuit. Id. at 10 (discussing Smith v. Allegheny Techs., Inc., 754 Fed.Appx.

136 (3d Cir. 2018). Plaintiff notes that the unanimous panel in Smith—which explicitly disagreed

with the non-precedential holding of the divided panel in Espinoza—found that “the PMWA

requires compensation for a broader range of activities, including travel time, than the FLSA.” Id.

at 11 (citing Smith, 754 Fed.Appx. at 14-41). Plaintiff further points out that the claims in Espinoza

and Sarrazin are distinguishable from his own because Espinoza involved long-distance travel on

days the plaintiff was not scheduled to work, and the Sarrazin court specifically found that

compensation for an employee’s regular daily commute was expressly barred by the Connecticut

statute. ECF No. 14 at 13–14. Neither situation, according to Plaintiff, is applicable here: Plaintiff

is not seeking compensation for travel time on non-working days or for his regular commute from

his home to the company-controlled lot. Id. at 14. Accordingly, Plaintiff contends that, at the very

least, Defendant has failed to establish that the affirmative defense of preemption is clear on the

face of the Complaint, and the Motion should be denied. Id. at 15.

II. Legal Standard

“Preemption is an affirmative defense that the defendant has the burden to prove.” Lupian

v. Joseph Cory Holdings LLC, 905 F.3d 127, 130 (3d Cir. 2018) (citing In re Asbestos Prod. Liab.

Litig. (No. VI), 822 F.3d 125, 133 n.6 (3d Cir. 2016) ). “To prevail on a Rule 12(b)(6) motion to

dismiss based on an affirmative defense…a defendant must show that ‘the defense is “apparent on

the face of the complaint” and documents relied on in the complaint.’” Id. (quoting Bohus v.

Restaurant.com, Inc., 784 F.3d 918, 923 n.2 (3d Cir. 2015) (quoting Schmidt v. Skolas, 770 F.3d

241, 249 (3d Cir. 2014))). In analyzing a motion to dismiss based on the affirmative defense of

preemption, “[f]acts alleged in the complaint are accepted as true for purposes of the motion.” Id.

(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Thus, dismissal on preemption grounds at

the motion to dismiss stage is only appropriate where “‘preemption is manifest in the complaint

itself.’” Id. (quoting In re Asbestos, 822 F.3d at 133 n.6).

Under the Supremacy Clause, “the Laws of the United States…shall be the supreme Law

of the Land,” U.S. Const. art. VI, and “‘any state law, however clearly within a State’s

acknowledged power, which interferes with or is contrary to federal law, must yield.’” Kurns v.

A.W. Chesterton, Inc., 620 F.3d 392, 395 (3d Cir. 2010) (quoting Free v. Bland, 369 U.S. 663, 666

(1962)). As relevant here, “[i]mplied conflict preemption occurs when it is either ‘impossible for

a private company to comply with both state and federal requirements, or where state law ‘stands

as an obstacle to the accomplishment and execution of the full purposes and objectives of

Congress.’” Kurns, 620 F.3d at 395 (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990)).

In analyzing whether federal law “preempt[s] state law claims that pertain to ‘areas of traditional

state regulation’ or police power,” as is the case with “regulation of ‘the employment relationship

to protect workers in the State’ such as regulation of ‘minimum wage and other wage laws,’” courts

apply a “presumption against preemption.” Id. (citations omitted); see also Fort Halifax Packing

Co. v. Coyne, 482 U.S. 1 (1987) (“[P]re-emption should not be lightly inferred in this area, since

the establishment of labor standards falls within the traditional police power of the State.”).

Accordingly, and in light of the FLSA’s savings clause, 29 U.S.C. § 218(a), courts have determined

that state labor laws enacting standards at least as protective of workers as those under the FLSA

are not conflict preempted by federal law. See Knepper v. Rite Aid Corp., 675 F.3d 249, 262 (3d

Cir. 2012) (rejecting conflict preemption argument where state labor law enacted standards

“identical with those established in the FLSA.”).

III. Analysis

Under the regulations implementing the PMWA, travel time is compensable when it is

“time spent in traveling as part of the duties of the employee during normal working hours and

time during which an employee is employed or permitted to work.” 34 Pa. Code § 231.1.

Therefore, to determine whether travel time is compensable under this provision, courts apply a

two-prong test to determine “whether the travel time was (1) part of the employee’s duties and (2)

during normal working hours.” Smith, 754 Fed.Appx. at 140. On the other hand, under the FLSA,

as amended by the Portal-to-Portal Act, “employees will receive overtime pay for commuting

when the commute is (1) a principal activity or (2) integral and indispensable to a principal

activity.” Id. at 139; see also 29 U.S.C. § 254(a). At the outset, then, the Court notes that the

FLSA’s “integral and indispensable” standard is different than the PMWA’s requirement that

travel time be “part of the duties of the employee during normal working hours.” This difference

is important to the analysis here because there may be situations where travel time is compensable

under the FLSA that would not be under the PMWA—and vice versa.

Indeed, the Third Circuit found in Smith that an employee’s “duties” (typically defined by

an employment contract) may be different than activities that are “integral and indispensable” to

the principal employment activity. See 754 Fed.Appx. at 141 (noting that, in evaluating a travel

time claim under the PMWA, “[n]either the principal activity nor the integral or indispensable test

applies”). Thus, for example, the court in Smith recognized that while the plaintiffs in that case

might have a viable claim under the PMWA if time spent riding in their employer’s vans to cross

picket lines was a “duty” under their employment contract (which was not in the record before the

court), they would not have a claim under the FLSA because such travel time could not be

considered “integral and indispensable” to their principal activity of making steel. Id. at 140–41.

Although no preemption defense was raised in Smith, the logical implication of the decision is that

the PMWA may require compensation for travel time in certain factual scenarios where the FLSA

would not. See id. at 141 (“But Pennsylvania has not enacted the Portal-to-Portal Act, and

Pennsylvania law requires compensation for a broader range of activities, including travel time,

than the FLSA.”).

The cases Defendant relies on do not persuade the Court that the FLSA preempts the

PMWA for the travel time at issue here. First, the Sarrazin court noted that its analysis was

confined “to the facts of the present case,” in which plaintiff, a plumber, drove a company work

truck to and from his home to his assigned jobsites. Sarrazin, 89 A.3d at 587–88, 603. Next, the

Sarrazin court found that because the Connecticut “regulation provides for no compensation for

an employee’s regular commute,” whereas the FLSA “does allow for compensation for an

employee’s regular commute under certain circumstances, preemption applies.” Id. at 607. The

state regulation at issue in Sarrazin, however, is distinguishable from the PMWA; while

Connecticut law “provides no compensation for an employee’s regular commute,” the PMWA

does—if such time is (1) part of the employee’s duties and (2) during normal working hours.

Defendant also leans heavily on Espinoza, 2016 U.S. Dist. LEXIS 7561 (W.D. Pa. Jan 22,

2016), in which Magistrate Judge Kelly found that a railroad worker’s long-distance travel away

from home to his assigned jobsites “on days he was not scheduled to work at all” was not

compensable under the PMWA. Id. at *11. There, the court primarily focused on the “normal

working hours” prong of the inquiry and found that while “travel on regular work days as well as

travel during corresponding hours on non-work days is compensable” under the FLSA, the same

is not true under the PMWA. Id. at *12–*13. Again, as with Sarrazin, Espinoza is distinguishable

from this case: here, Plaintiff does not seek compensation for time spent travelling on days he was

not scheduled to work, but for travel time on days he did work. As the Court in Smith made clear,

such time may be compensable under the PMWA. See 754 Fed.Appx. at 141. Furthermore, while

a divided panel of the Third Circuit affirmed the decision in Espinoza in a non-precedential

decision, see 657 Fed.Appx. 101 (3d Cir. 2016), the unanimous panel of the Third Circuit in Smith

(also a non-precedential decision) expressly rejected the reasoning of the divided panel in

Espinoza, and looked to an earlier, precedential decision of the Third Circuit for guidance. See

Smith 754 Fed.Appx. at 141 (citing Pa. Fed’n of the Brotherhood. of Maint. of Way Emps by Dodd

v. Nat’l R.R. Passenger Corp. (Amtrak), 989 F.2d 112, 116 (3d Cir. 1993)). Specifically, in

Amtrak, the Third Circuit held that cases involving travel time under the PMWA require courts “to

inquire into the underlying employment agreement” to ascertain whether such travel is among the

“duties of the employee.” Amtrak, 989 F.2d at 116.

In sum, preemption is an affirmative defense which must be clear on the face of the

complaint for a 12(b)(6) motion to succeed. The compensability of the travel time at issue under

either the PMWA or FLSA is a fact-specific inquiry, and Defendant has not shown that the travel

time protections under the PMWA are less generous than those found under the FLSA. The Court

therefore determines that Defendant has failed to carry its burden with respect to preemption at

this early stage of the case.

IV. Conclusion

For the foregoing reasons, Defendant Great Arrow Builders, LLC’s, Motion to Dismiss is

hereby DENIED WITHOUT PREJUDICE, and may be renewed at the summary judgment stage.

DATED this 14th day of January, 2021.

BY THE COURT:

/s/ Christy Criswell Wiegand

CHRISTY CRISWELL WIEGAND

United States District Judge

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