Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Corman v. JWS of New Mexico, Inc.

United States District Court, D. New Mexico

November 14, 2018

RICHARD CORMAN, on his own behalf and on behalf of all others similarly situated, Plaintiff,
v.
JWS OF NEW MEXICO, INC., and K.P. KAUFFMAN COMPANY, INC., Defendants.

          Brandt P. Milstein Mil stein Law Office Boulder, Colorado Attorney for the Plaintiffs

          Little V. West Holland & Hart, LLP Santa Fe, New Mexico and Jeffrey T. Johnson Bradford, J. Williamson Holland & Hart, LLP Denver, Colorado Attorneys for the Defendants

          MEMORANDUM OPINION [1]

         THIS MATTER comes before the Court on: (i) Defendants JWS's and KPK's Motion for Partial Summary Judgment, filed June 17, 2016 (Doc. 39)(“MSJ”); and (ii) the Plaintiffs Cross Motion for Partial Summary Judgment on Defendants' Exemption Defense, filed June 17, 2016 (Doc. 41)(“Cross MSJ”). The Court held a hearing on July 20, 2016. The primary issues are: (i) whether Defendants JWS of New Mexico, Inc. and K.P. Kauffman Company, Inc. (collectively, “the Defendants”) are entitled to summary judgment on the Second Claim of the Collective Action Complaint for Unpaid Overtime Wages, filed October 12, 2015 (Doc. 1)(“Complaint”), which alleges that the Defendants failed to pay Plaintiff Richard Corman and the proposed class members, all former JWS New Mexico truck drivers, overtime wages in violation of the New Mexico Minimum Wage Act, N.M. Stat. Ann. § 50-4-22(D) (“NMMWA”), on the grounds that Corman and the Class (“the Plaintiffs”) were exempt from the NMMWA's overtime pay requirements under NMMWA § 50-4-21(C)(5); and (ii) whether, alternatively, the Plaintiffs are entitled to summary judgment on JWS New Mexico's and Kauffman Co.'s asserted exemption defense, because the Defendants are liable for unpaid overtime wages. After carefully reviewing the record, the Court concludes that because JWS New Mexico compensated the Plaintiffs on a commission basis, NMMWA § 50-4-21(C)(5) overtime pay requirements do not apply to the Plaintiffs. The Court concludes that JWS New Mexico and Kauffman Co. are entitled to summary judgment on the Complaint, and the Plaintiffs are not entitled to summary judgment on the Defendants' exemption defense. The Court grants the MSJ and denies the Cross MSJ.

         FACTUAL BACKGROUND[2]

         The Court draws the factual background from the parties' undisputed material facts in the MSJ; Plaintiffs Memorandum in Support of His Cross Motion for Partial Summary Judgment on Defendants' Exemption Defense, filed June 17, 2016 (Doc. 41-1)(“Cross Memo.”); and Defendants JWS' and KPK's Response to Plaintiff s Cross Motion for Partial Summary Judgment, filed July 1, 2016 (Doc. 46)(“Cross MSJ Response”).

         JWS New Mexico offers oilfield services to oil production companies in southeast New Mexico. See Cross Memo. ¶ 1, at 4 (asserting this fact)(citing Complaint ¶ 12, at 3); Answer ¶ 12, at 3, filed December 18, 2015 (Doc. 23)).[3] JWS New Mexico is a wholly-owned subsidiary of Kauffmann Co. See Cross Memo. ¶ 2, at 4 (asserting this fact)(citing Complaint ¶ 11, at 2; Answer ¶ 11, at 3).[4]

         Corman and the other Plaintiffs drove trucks for JWS New Mexico; Corman drove for JWS New Mexico from July 20, 2011, to April 6, 2015. See Cross Memo. ¶ 3, at 4 (asserting this fact)(citing Deposition of Richard Corman at 7:23-8:7 (taken May 3, 2016), filed June 17, 2016 (Doc. 41-2)(“Corman Depo.”). The Plaintiffs hauled water products to oil drilling rigs and removed waste products, such as mud, from the rigs. See MSJ ¶ 1, at 2 (asserting this fact)(citing Deposition of Dimas Herrera at ¶ 8:10-22 (taken May 5, 2016), filed June 17, 2016 (Doc. 42)(“Herrera Depo.”); Corman Depo. at 8:23-9:8).[5] The Plaintiffs often worked more than forty hours per workweek, see Cross Memo. ¶ 4, at 4 (asserting this fact)(citing Corman Depo. at 18:14-17), [6] but they largely worked six days in a row, followed by two days off, see MSJ ¶ 2, at 2

         (asserting this fact)(citing Corman Depo. at 9:14-23; Deposition of Renee De La Torre at 22:23-25 (taken May 4, 2016), filed June 17, 2016 (Doc. 39-3)(“De La Torre Depo.”)).[7]

         During a six-day shift, the Plaintiffs did not work consistent hours; Corman worked “two days to three days straight, ” went home, returned, and repeated the work. MS J ¶ 3, at 3 (asserting this fact)(quoting Corman Depo. at 10:6-11).[8] The Plaintiffs did not drive consistently through the several days, as JWS New Mexico followed Department of Transportation (“DOT”) regulations restricting driving time and requiring rest periods. See MSJ ¶ 3 n.3 (asserting this fact)(citing Corman Depo. at 12:10-13:18; id. at 19:23-25; id. at 53:24-55:8; id. at 58:15-18; JWS Policies re Driver's Logs, filed June 17, 2016 (Doc. 40-2); Daily Logs, filed June 17, 2016 (Doc. 40-1)).[9]Renee De La Torre, a JSW New Mexico truck driver, worked twenty four hours, but would “sometimes stay 30.” MSJ ¶ 4, at 3 (asserting this fact)(quoting De La Torre Depo. at 23:1-6).[10]Leopoldo Garcia, a JSW New Mexico truck driver, would “start [working] on a Monday in the morning” and leave “Tuesday at noon.” MSJ ¶ 5, at 3 (asserting this fact)(quoting Deposition of Leopoldo Garcia at 27:6-14 (taken May 4, 2016), filed June 17, 2016 (Doc. 39-4)(“Garcia Depo.”)).[11] Ivan Lizardo, a JSW New Mexico truck driver, would “go in, and it could be 24 hours, or it could be 15, and it would depend if there was a lot of work.” MSJ ¶ 6, at 3 (asserting this fact)(quoting Deposition of Ivan Lazardo[12] at 10:13-20 (taken May 3, 2016), filed June 17, 2016 (Doc. 39-5)(“Lizardo Depo.”)).[13] A “pusher, ” a supervisor, would assign the Plaintiffs to a new job after they completed a job. MSJ ¶ 7, at 3 (citing Corman Depo. 13:21-14:7; Herrera Depo. 12:7-13:15; De La Torre Depo. 23:16-24:4).[14] The Plaintiffs' hours depended on the type and length of a job. See MSJ ¶ 8, at 3 (asserting this fact)(citing Declaration of Dimas Herrera ¶ 3, at 1 (executed on June 16, 2016), filed June 17, 2016 (Doc. 39-6)(“Herrera Decl.”).[15] Drivers might work eight-hour days throughout the six-day shift, or they might work twenty-four hours, sleep, then work the next day. See MSJ ¶ 8, at 3 (asserting this fact)(citing Herrera Decl. ¶ 3, at 1).[16]

         Fluctuations in the oil industry also affected the Plaintiffs' work hours, because they would work more when prices and demand for their services were high. See MSJ ¶ 9, at 3-4 (asserting this fact)(citing Herrera Decl. ¶ 4, at 1-2).[17] JWS New Mexico's gross monthly revenue varied significantly between months and between years. See MSJ ¶ 10, at 4 (citing Declaration of Richard Stults ¶ 3, at 1-2 (executed on June 15, 2016), filed June 17, 2016 (Doc. 40-3)(“Stults Decl.”)).[18]In January, 2015, the gross monthly revenue was $1, 560, 069.57, and in November, 2015, the gross monthly revenue was $321, 410.25 -- a seventy-nine percent difference. See MSJ ¶ 10, at 4 (asserting this fact)(citing Stults Decl. ¶ 3, at 1-2).[19] In January, 2014, JWS New Mexico earned $2, 103, 890.85, a fifty-two percent increase since January, 2013's total of $1, 381, 754.62, and in November 2014, JWS New Mexico earned $321, 410.25, an eighty percent decrease from the $1, 637, 774.63 earned in November, 2014. See MSJ ¶ 10, at 4 (asserting this fact)(citing Stults Decl. ¶ 3, at 1-2).[20]

         For each job that the Plaintiffs completed, regardless how JWS New Mexico charged the customer, JWS New Mexico paid the Plaintiffs twenty-five percent of the customer's transportation charge. See MSJ ¶ 11, at 4 (asserting this fact)(citing Herrera Decl. ¶ 5, at 2; Herrera Depo. at 79:15-25; Corman Depo. at 68:5-8); MSJ ¶ 16, at 5 (asserting this fact)(citing Herrera Decl. ¶ 5, at 2).[21] JWS New Mexico calculated the customer's charge by an hourly bid rate, a barrel bid rate, or an hourly rate. See MSJ ¶ 12, at 4 (asserting this fact)(citing Herrera Decl. ¶ 6, at 2; Herrera Depo. at 43:21-45:5).[22] JWS New Mexico based hourly bid rates on estimates “of how long the job would take, ” considering the distance, road conditions, and similar concerns. MSJ ¶ 13, at 4-5 (asserting this fact)(citing Herrera Decl. ¶ 7, at 2; Herrera Depo. at 47:15-49:6).[23]JWS New Mexico calculated barrel bid rates based on the number of barrels delivered to the customer, multiplied by a price-per-barrel, which it calculated considering the distance between the client and the water station, road conditions, water costs, and similar concerns. See MS J ¶ 14, at 5 (asserting this fact)(citing Herrera Decl. ¶ 8, at 2; Herrera Depo. at 45:6-47:14).[24] JWS New Mexico based hourly rates on the hours a job required, and JWS New Mexico charged water and waste product disposal costs separately when charging an hourly rate. See MSJ ¶ 15, at 5 (citing Herrera Decl. ¶ 9, at 2; Herrera Depo. at 49:13-18).[25] Where JWS New Mexico charged a customer an hourly rate, the driver makes an amount calculated based on the hours for the job. See Cross Memo. ¶ 11, at 5.[26] For jobs on a bid basis, the driver receives a set amount regardless the job's duration. See Cross Memo. ¶ 12, at 5 (asserting this fact)(citing Herrera Depo. at 80:15-20).[27]

         Drivers received about fifty percent of their pay from jobs calculated on an hourly basis and about fifty percent from jobs calculated on a bid basis. See Cross Memo. ¶ 14, at 3 (asserting this fact)(citing Herrera Depo. at 82:18-83:16).[28]

         JWS New Mexico's charges to customers for hourly rate jobs might diverge from the hours drivers worked, because JWS New Mexico decreased the hours it charged to customers. See Cross MSJ Response ¶ A, at 3 (asserting this fact)(citing Supplemental Declaration of Dimas Herrera ¶ 5, at 2 (executed on June 22, 2016), filed July 1, 2016 (Doc. 48-1)(“Herrera Supp. Decl.”)).[29]JWS New Mexico management would cross out the hours on the drivers' job tickets and write in other hours. See Cross MSJ Response ¶ C, at 4 (asserting this fact)(Herrera Supp. Decl. ¶¶ 7, 10-11, at 2-3).[30] For jobs where JWS New Mexico wrote down the hours, JWS New Mexico charged the customer for the revised hours and calculated the drivers' twenty-five percent on those hours. See Cross MSJ Response ¶ E, at 4 (asserting this fact)(citing Herrera Supp. Decl. ¶ 9, at 2).[31]

         JWS New Mexico paid the drivers hourly for maintaining their trucks. See Cross Memo. ¶ 15, at 6.[32] JWS New Mexico paid the Plaintiffs $12.00 per hour for “yard time, ” which encompassed tasks such as washing and maintaining the trucks, but the Plaintiffs received significantly more for jobs than for yard time. See MSJ at 4 n.5 (asserting this fact)(citing Corman Depo. at 38:7-18; id. at 44:8-19; Corman Pay Stub at 1 (dated December 31, 2014), filed June 17, 2016 (Doc. 39-7)(“Corman Pay Stub”)).[33] In 2012, Corman received $92, 733.92 for driving jobs and $1, 878.00 -- two percent of Corman's total earnings -- for “yard time.” See MSJ at 4 n.5 (asserting this fact)(citing Corman Depo. at 44:8-19; Corman Pay Stub at 1).[34]

         Before 2000, JWS New Mexico paid truck drivers for overtime worked. See Cross Memo. ¶ 6, at 5 (asserting this fact)(citing Herrera Depo. at 86:20-23).[35] In 2000, K.P. Kauffman directed New Mexico to stop paying overtime, and JWS New Mexico has not paid overtime wages for hours over forty hours since 2000. See Cross Memo. ¶ 7-8, at 5 (citing Herrera Depo. at 88:4-7; id. at 88:14-18).[36] Other New Mexico field service providers pay their drivers overtime wages for time over forty hours a week. See Cross Memo. ¶ 9, at 5 (asserting this fact)(citing Lizardo Depo. at 60:23-61:20).[37]

         Each pay period, the Plaintiffs received a “pay sheet” listing the jobs they performed. MSJ ¶ 17, at 5 (asserting this fact)(citing Corman Depo. at 65:6-24; De La Torre Depo. at 40:18-41:7; Garcia Depo. at 36:9-19; Lizardo Depo. at 48:17-49:1).[38] These pay sheets reflect that the Plaintiffs received twenty-five percent of the transportation charges. See MSJ ¶ 18, at 5 (asserting this fact)(citing Corman 2015 Jobs, filed June 17, 2016 (Doc. 39-8); De La Torre 2014 Jobs, filed June 17, 2016 (Doc. 39-9); Garcia 2012-13 Jobs, filed June 17, 2016 (Doc. 39-10)).[39] Corman received $95, 187.92 in 2012, $98, 371.43 in 2013, and $97, 481.91 in 2014. See MSJ ¶ 19, at 6 (asserting this fact)(citing Corman Pay Stub at 1-3).[40] De La Torre made $90, 526.24 in 2013 and $99, 331.43 in 2014. See MSJ ¶ 19, at 6 (asserting this fact)(citing De La Torre Pay Stubs at 1-2, filed June 17, 2016 (Doc. 39-11)).[41] Garcia made $91, 923.24 in 2014. See MSJ ¶ 19, at 6 (citing Garcia Pay Stub at 1, filed June 17, 2016 (Doc. 39-12)).[42]

         PROCEDURAL BACKGROUND

         On October 12, 2015, the Plaintiffs filed the Complaint, alleging that: (i) the Defendants violated the Fair Labor Standards Act, 29 U.S.C. §§ 201 to 204, 206 to 207, 209 to 218, 218b, 218c, 219, (“FLSA”), when they refused to pay the Plaintiffs' overtime wages for hours over forty hours a week, see Complaint ¶¶ 22-30, at 3-4; and (ii) the Defendants violated the NMMWA when they refused to pay the Plaintiffs' overtime wages for hours over forty hours a week, see Complaint ¶¶ 31-37, at 4-5. The Defendants answered on December 18, 2015. On June 17, 2016, the parties filed the MSJ and the Cross MSJ, which the Court will discuss in detail below. The Defendants designated Dimas Herrera, the general manager and vice president of JWS New Mexico to testify as JWS New Mexico' rule 30(b)(6) corporate representative.[43] See Cross Memo. ¶ 5, at 5 (citing Herrera Dep. at 7:13-15; id. at 28:10-12; id. at 5:11-13).

         1. The MSJ.

         In the MSJ, the Defendants ask that the Court grant summary judgment for them on the Plaintiffs' NMMWA claim, because the truck drivers fit the exception under the NMMWA for employees paid on a “commission, ” or alternatively, “piecework” or “flat rate” basis. MSJ at 2. The Defendants cite the exception to the NMMWA for “employee[s], ” including “salespersons or employees compensated upon piecework, flat rate schedules, or commission basis.” MSJ at 7 (quoting N.M. Stat. Ann. § 50-4-21(C)(5)). The Defendants argue that the truck drivers received twenty five percent of what JWS New Mexico charged to customers and that this payment program brings the Plaintiffs into the NMMWA exception. MSJ at 7.

         Regarding the exception for employees paid on a “commission” basis, the Defendants argue that, in interpreting the NMMWA, New Mexico courts follow federal law construing the FLSA. MSJ at 7 (citing Armijo v. Wal-Mart Stores, Inc., 2007-NMCA-120, ¶ 47, 168 P.3d 129, 144; Garcia v. Am. Furniture Co., 1984-NMCA-090, ¶ 13, P.2d 934, 937). The Defendants argue that the NMMWA applies to employees who work on a commission basis, see MSJ at 8-9 (citing N.M. Stat. Ann. § 50-4-2(C)(5)), and a compensation system need not use the word “commission” to be a commission system, see MSJ at 8 (citing Yi v. Sterling Collision Ctrs., Inc., 480 F.3d 505, 508-11 (7th Cir. 2007)). The Defendants discussed four factors to demonstrate that the compensation system is commission based: (i) the employees are only compensated on a “sale, ” MSJ at 9 (citing Alvarado v. Corporate Cleaning Servs., Inc., 782 F.3d 365, 367 (7th Cir. 2015)); (ii) the compensation is proportional to the sales price, see MSJ at 9 (citing Alvarado v. Corporate Cleaning Servs., Inc., 782 F.3d at 367; Charlot v. Ecolab, Inc., 136 F.Supp.3d 433, 457 (E.D.N.Y. 2015)(Matsumoto, J.)); (iii) the pay is for work involving irregular hours, see MSJ at 9-10 (citing Alvarado v. Corporate Cleaning Servs., Inc., 782 F.3d at 368; Matrai v. DirecTV, LLC, 168 F.Supp.3d 1347, 1365 (D. Kan. 2016)(Crow, J.)); and (iv) the pay is a performance-based incentive for the employees to increase their incomes, see MSJ at 11 (citing Owepetu v. Nationwide CATV Auditing Servs., Inc., No. 5:10-cv-18, 2011 WL 883703, at *4 (D. Vt. March 11, 2011)(Reiss, C.J.)). The Defendants contend that JWS New Mexico's compensation system satisfies these factor: (i) the Plaintiffs receive twenty-five percent of transportation charges after a job, see MSJ at 9; (ii) the Plaintiffs always receive twenty-five percent of the amount charged customers, see MSJ at 9 (citing Charlot v. Ecolab, Inc., 136 F.Supp.3d at 457 (nothing that proportionality is satisfied when the employees received a percentage of the price charged)); (iii) the Plaintiffs work irregular daily hours, and their hours vary throughout the year, see MSJ at 9-10; and (iv) the Plaintiffs are motivated to obtain more pay by completing jobs faster, see MSJ at 11.

         In the alternative, the Defendants argue that the Plaintiffs are paid on a “piecework” or “flat rate” basis. Citing Black's Law Dictionary (10th ed. 2014), the Defendants contend that “piecework” means “[w]ork done or paid for by the piece or job, ” and JWS New Mexico paid the Plaintiffs by the job. MSJ at 12. “Flat rate” means “a charge that is the same in all cases, not varying in proportion with something” and exists when an employee is paid per job, according to the Defendants MSJ at 12-14 (citing New Oxford American Dictionary (2001); Olivo v. Crawford Chevrolet Inc., 799 F.Supp.2d 1237 (D.N.M. 2011)(Black, J.)(concluding that employees “paid by the job” for painting and repairing cars worked at a “flat rate”)). The Plaintiffs' proportion of the customer's charge did not vary. See MSJ at 13-14.

         2. The MSJ Response.

         The Plaintiffs filed the MSJ Response on July 1, 2016. See MSJ Response at 1. The Plaintiffs begin by arguing that the Defendants contend that the Plaintiffs should not receive overtime, because the Plaintiffs have a high-income level. See MSJ Response at 2-4. The Plaintiffs assert that this argument about the Plaintiffs' income fails, because the NMMWA contains no “highly-compensated employee” exemption, like the FLSA, and even if the NMMWA had an exception like the FLSA's, the Plaintiffs would not fall under the exception. See MSJ Response at 2-3 (citing 29 C.F.R. § 541.601; Cruz v. Lawson Software, Inc., 764 F.Supp.2d 1050, 1062 (D. Minn. 2011)(Davis, C.J.); Schaefer-LaRose v. Eli Lilly & Co., 663 F.Supp.2d 674, 683 (S.D. Ind. 2009)(Barker, J.)). Further, the Plaintiffs contend that NMMWA's purpose is to limit the hours that employees work. See MSJ Response at 3 (citing N.M. Stat. Ann. § 50-4-19; Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1258-59 (11th Cir. 2001)(Restani, J., dissenting in part); Mechmet v. Four Seasons Hotels, Ltd., 826 F.2d 1173, 1175-76 (7th Cir. 1987); Donovan v. Brown Equip. & Serv. Tools, Inc., 666 F.2d 148, 152 (5th Cir. 1982); Wilson Oil Co. v. Hardy, 1945-NMSC-013, ¶ 24, 164 P.2d 209, 213-14; N.M. Dep't of Labor v. A.C. Elec, Inc., 1998-NMCA-141, ¶ 15, 965 P.2d 363, 366).

         Regarding whether JWS New Mexico compensated the Plaintiffs on a commission basis, the Plaintiffs respond that the factors to determine whether a compensation program is based on a commission are: (i) the commission is a proportion of the consumer's price; (ii) the commission is decoupled from the employee's time worked; (iii) the work is irregular; and (iv) the program does not “offend the purposes of the Act.” MSJ Response at 4-5 (citing Casanova v. Gold's Tex. Holdings Grp., Inc., NO 5:13-CV-1161-DAE, 2016 WL 1241548, at *3 (W.D. Tex. March 23, 2016)(Ezra, J.)). The Plaintiffs argue that JWS New Mexico's program fails the second, third and fourth factors: (i) JWS New Mexico does not decouple the Plaintiffs' pay from their hours, because JWS New Mexico pays the Plaintiffs based on an hourly rate, see MSJ Response 4-7 (citing Casanova v. Gold's Tex. Holdings Grp., Inc., 2016 WL 1241548, at *8 (concluding that the compensation system was not decoupled from time when a physical trainer received more money the more hours worked); Matrai v. DirecTV, LLC, 168 F.Supp.3d at 1365 (noting that a pay program was related to hours worked when, to make more money, the installers could work more hours in the day)); (ii) the exception for commission pay exists, because, under most commission pay programs, the employee's irregular hours evens to forty hours across several weeks, but the Plaintiffs work over forty hours every week, see MSJ Response 7-9 (citing Donovan v. Brown Equip. & Servs. Tools, Inc., 666 F.2d at 154 (concluding that hours were not irregular when the hours were consistently over forty hours)(citing Walton v. United Consumers Club, Inc., 786 F.2d 303, 307 (7th Cir. 1986)(noting that “it is unlikely that Congress meant to require employers to pay overtime in the lean weeks when the fat weeks more than make up”)); Kelly v. A1 Tech., No. 09 CIV. 962 LAK MHD, 2010 WL 1541585, at *8-9 (S.D.N.Y. April 12, 2010)(Dolinger, J.)(explaining that employers did not want to pay overtime to employees whose total hours may not exceed forty hours per week in a pay period); English v. Ecolab, Inc., No. 06 CIV. 5672 (PAC), 2008 WL 878456, at *16 (S.D.N.Y. March 31, 2008)(Crotty, J.)(recognizing that service specialists could work more than forty hours some weeks and less than forty hours other weeks, but earn more than an employee working forty hours every week); and (iii) the NMMWA's purposes are to protect against overworked drivers, open jobs for drivers who desire reasonable hours, and encourage employers to hire more drivers, and exempt JWS New Mexico from the statute would defeat these purposes, see MSJ at 9 (citing Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d at 1175-76 (explaining the purposes for the NMMWA)).

         3. The MSJ Reply.

         The Defendants responded on July 15, 2016. The Defendants argue that by failing to address the argument that the Plaintiffs are exempted from the NMMWA in the MSJ Response, the Plaintiffs concede that the “flat rate” or “piecework” exemption applies. See MSJ Reply at 3 (citing Hinsdale v. City of Liberal, 19 Fed.Appx. 749, 768-69 (10th Cir. 2001)(unpublished)(affirming summary judgment where the party did not address the other's argument in the summary judgment response)). In response to the Plaintiffs' arguments that JWS New Mexico did not pay the Plaintiffs on a commission basis, the Defendants reply that the pay was decoupled from the hours worked, because JWS New Mexico paid the Plaintiffs a proportion of the cost to customers and that cost did not reflect the actual hours driven, because JWS reduced excessive hours. See MSJ Reply at 5. The Defendants contend that the Plaintiffs cannot rely on Casanova v. Gold's Texas Holdings Group, Inc., because, in that case, the trainers received compensation in a one-to-one ratio for all hours worked, but JWS New Mexico compensated the Plaintiffs in the aggregate in a manner decoupled from the hours worked, as the Plaintiffs could finish an hourly rate job quickly to move onto a bid rate job. See MSJ at 6 (citing Casanova v. Gold's Tex. Holdings Grp., Inc., 2016 WL 1241548, at *8). Further, according to JWS New Mexico and Kaufmann Co., Olivo v. Crawford Chevrolet Inc. suggests that the “commission” exception applies even if the employer does not pay the employees entirely on a commission basis. See MSJ at 6 (citing Olivo v. Crawford Chevrolet Inc., 799 F.Supp.2d at 14-15). Regarding the Plaintiffs irregular hours, the Defendants dispute that Donovan v. Brown Equipment and Service Tools, Inc. applies, because it speaks to an exception other than the “commission” exemption, and the other cases cited either concluded that the employees were “commissioned, ” MSJ Reply at 7 (citing Walton v. United Consumers Club, Inc., 786 F.3d), or cite only Yi v. Sterling Collision Centers, Inc., with which other courts have disagreed, see MSJ Reply at 7 (citing Kelly v. A1 Tech, No. 09 Civ. 962(LAK)(MHD), 2010 WL 1541585 (S.D.N.Y. April 12, 2010)(Kaplan, J.); English v. Ecolab, Inc., No. 06 Civ. 5672(PAC), 2008 WL 878456 (S.D.N.Y. March 31, 2008)(Crotty, J.)). The Defendants cite Matrai v. DirecTV, LLC, 168 F.Supp.3d 1347, and Crawford v. Saks & Co., CIVIL ACTION NO. H-14-3665, 2016 WL 3090781 (S.D. Tex. June 2, 2016)(Rosenthal, J.), as cases in which the courts determined that the employees worked “irregular hours” without addressing whether the employees worked more or less than forty hours a week. MSJ Reply at 8. Finally, the Defendants argue that the Plaintiffs do not cite a case discussing the NMMWA's purposes, but the Plaintiffs cite cases considering only the FLSA, and the NMMWA is broader than the FLSA, because it includes exemptions for “piecework” and “flat rate” employees. MSJ Reply at 9-10.

         4. The Cross MSJ.

         The Plaintiffs filed the Cross MSJ on June 17, 2016. The Plaintiffs aver that the Defendants must prove that the Plaintiffs “plainly and unmistakably” fall within an NMMWA exemption. See Cross Memo. at 7 (citing Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180, 1184 (10th Cir. 2004)). The Plaintiffs argue that no exemption to the NMMWA applies to the Plaintiffs, and, according to the Plaintiffs, the Defendants are liable for overtime pay. See Cross Memo. at 1. The Plaintiffs contend that JWS New Mexico compensated them based on their hours worked. See Cross Memo. at 8-9. Regarding the exemption for “piecework” systems, the Plaintiffs argue that “piecework” is “work in which you are paid for each thing you make or do and not for the amount of time you work, ” Cross Memo. at 9 (citing Merriam-Webster's Online Dictionary, http://www.merriam-webster.com/dictionary/piecework), and more than fifty percent of the Plaintiffs' compensation is related to the hours worked, see Cross Memo. at 10. Regarding the exemption for “flat rate” compensation, the Plaintiffs cite Burch v. Foy, 1957-NMSC-017, 308 P.2d 199 to argue that the phrase “flat rate schedule” applies only in the automobile repair industry, see Cross Memo. at 10-11, and that Olivo v. Crawford Chevrolet Inc. suggests that compensation is not on a flat rate basis when an employee is a “mixed-status employee.” Cross MSJ Motion at 12 (quoting Olivo v. Crawford Chevrlot Inc., 799 F.Supp.2d at 1242). Further, according to the Plaintiffs, flat rate systems decouple pay from hours worked and incentivize employees to work efficiently. See MSJ at 12-13 (citing Yi v. Sterling Collision Ctrs., 480 F.3d at 509; Klinedinst v. Swift Invs., Inc., 260 F.3d at 1254-55; Wage and Hour Division of the Department of Labor's Field Operations Handbook, Section 21h04(d), https://www.dol.gov/whd/FOH/FOHCh21.pdfCWage and Hour Handbook”)). According to the Plaintiffs, because more than fifty percent of their pay relates to their hours worked, JWS New Mexico's compensation program is not a flat rate system.

         Regarding whether the Plaintiffs work on a commission basis, the Plaintiffs cite a three-part test. See Cross Memo. at 14. The Plaintiffs contend that a compensation system is a commission program when: (i) the compensation is “tied to customer demand”; (ii) the plan provides “performance-based incentives for the employee”; and (iii) the value of the services sold is proportional to the “rate paid the employee.” Cross Memo. at 14 (citing Johnson v. Wave Comm'n GR LLC, 4 F.Supp.3d 423, 442 (N.D.N.Y. 2014)(Hurd, J.)(quoting Owopetu v. Nationwide CATV Auditing Servs., Inc., No. 5:10-cv-18, 2011 WL 883703, at *3 (D. Vt. March 11, 2011)(Reiss, C.J.)). According to the Plaintiffs, JWS New Mexico pays the Plaintiffs for hourly rate jobs based on the hours that the Plaintiffs work, and the exemption does not apply to employees paid only partly on a commission basis. See Cross MS J Motion at 15-19.

         5. The Cross MSJ Response.

         The Defendants responded to the Plaintiffs' Cross MSJ. See Cross MSJ Response. Initially, the Defendants reply that “there is no heightened evidentiary requirement on employers seeking to prove an . . . exemption” here. See MSJ at 4 (citing Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1158 (10th Cir. 2012)). the Defendants then aver that the Plaintiffs conflate the “commission” exclusion with the “flat rate” and “piecework” exclusions and that the Plaintiffs cite FLSA cases, which are only relevant to the “commission” exemption. See Cross MSJ Response at 5.

         According to the Defendants, cases interpreting the “commission” exclusion from the FLSA are relevant, and Matrai v. DirecTV, LLC, 168 F.Supp.3d 1347, is the only case decided by a court -- district or appellate -- in the Tenth Circuit delineating a test for the exemption. See Cross MSJ Response at 6 & n.6. The Defendants describe the test's three elements: (i) employees are compensated on a sale; (ii) employees' compensation is proportional to the sales price; and (iii) employees work irregular hours. See Cross MSJ Response at 6-7. The Defendants explain that: (i) the Plaintiffs receive twenty-five percent of JWS New Mexico's charge to the customer, so the Plaintiffs are compensated on a sale, see Cross MSJ Response at 6-7 (citing Alvarado v. Corporate Cleaning Servs., Inc., 782 F.3d at 367); (ii) the Plaintiffs always receive twenty-five percent of the transportation charge, thus the compensation is proportional to the sales price, see Cross MSJ Response at 7 (citing Alvarado v. Corp Cleaning Servs., Inc., 782 F.3d at 367; Charlot v. Ecolab, Inc., 136 F.Supp.3d at 457 (concluding that the proportionality element is satisfied when employees receive a percentage of the money received)); and (iii) the Plaintiffs work irregularly, because jobs differ in length, and JWS New Mexico's business fluctuates throughout the year, see Cross MSJ Response at 7-8. Further, the Defendants contend that the Plaintiffs' work is decoupled from the hours worked and provides a performance-based incentive, because the Plaintiffs received compensation pay based on bid rates, which disregard the hours worked, and because, for hourly rate jobs, JWS New Mexico might write down the hours charged to the customer. See Cross MSJ Response at 8-10. The Defendants note that commissions systems under the FLSA may consider the estimated hours when charging customers. See MSJ at 11 (citing Yi v. Sterling Collision Ctrs., 480 F.3d at 509-11; Herrera v. TBC Corporate, 18 F.Supp.3d 739, 740, 747 (E.D. Va. 2014)(Hudson, J.)). The Defendants repeat that, in the aggregate, the Plaintiffs' hours were decoupled from their pay. The Defendants also dispute that JWS New Mexico did not intend the pay program to incentivize the Plaintiffs to perform efficiently and explain that JWS New Mexico's intent is irrelevant, because the compensation program objectively incentivizes efficiency to avoid having hours written down and to receive new assignments. See Cross MSJ Response at 12. Finally, the Defendants disagree with the Plaintiffs that, for the exemption to apply, the JWS New Mexico must always compensate the Plaintiffs on a commission basis, and the Defendants argue that the order in Olivo v. Crawford Chevrolet Inc., in which the court applied the exclusion, supports their argument, rather than the Plaintiffs'. See Cross MSJ Response at 13-14 (citing Olivo v. Crawford Chevrolet Inc., CV 10-782 BB/LFG, Order ¶ 21, at 4, filed January 12, 2012; id. ¶ 3, at 8 (Doc. 149)).

         The Defendants elaborate that, alternatively, the “piecework” or “flat rate” exceptions apply. The Defendants cite the plain meaning of “flat rate, ” MSJ at 16 (citing New Oxford American Dictionary), and aver that the Supreme Court of New Mexico, in Burch v. Foy, concluded that “flat rate schedule” has a particular meaning only in the automobile industry, and not that the term applies only to the automobile industry, see Cross MSJ Response at 16 (citing Burch v. Foy, 1957-NMSC-017, ¶ 4, 308 P.2d at 201). Further, the Defendants note that Yi v. Sterling Collision Centers, Klinedinst v. Swift Investments, Inc., and the Wage and Hour Handbook only discuss commission systems, and Honorable Bruce Black, United States District Judge for the United States District Court of New Mexico, in Olivo v. Crawford Chevrolet Inc., concluded only that, without the waiting time, the employer paid the employees on a “piecework” basis. Cross MSJ Response at 16-17 (citing Yi v. Sterling Collision Ctrs., 480 F.3d at 509; Klinedinst v. Swift Invs., Inc., 260 F.3d at 1254-56; Olivo v. Crawford Chevrolet Inc., 799 F.Supp.2d at 1242; Wage and Hour Handbook, Section 21h04(d)).

         In response to the Plaintiffs' arguments that the Plaintiffs are not paid on a “piecework” basis, the Defendants reply that only one case that the Plaintiffs cited defines “piecework” or addresses whether the compensation system was on a “piecework” basis. See Cross MS J Response at 18-19. According to the Defendants, the one case the Plaintiffs cite that defines “piece rate” does so only to distinguish such compensation from a “commission” system. See Cross MSJ Response at 19 (citing Alvarado v. Corp Cleaning Servs., Inc., 782 F.3d at 367). The Defendants repeat the argument from their MSJ that the Plaintiffs are compensated on a “piecework” basis, based on the ordinary meaning of “piecework” and on Olivo v. Crawford Chevrolet Inc., which defines piecework as payment for a job, and not for items produced, as the Plaintiffs want to define “piecework.” See Cross MSJ Response at 20 (citing Olivo v. Crawford Chevrolet Inc., 799 F.Supp.2d at 1242; Black's Law Dictionary (10th ed. 2014)). The Defendants aver that, because the cases that the Plaintiffs cite do not address the definition of “piecework” or legal issues hinging on defining “piecework, ” the Plaintiffs cannot support their arguments that “piecework” compensation systems must incentivize employees or decouple hours from pay. See Cross MSJ Response at 21. Finally, the Defendants assert that JWS New Mexico did not pay the Plaintiffs by hours worked. See Cross MSJ Response at 21-22.

         6. The Cross MSJ Reply.

         The Plaintiffs reiterate their argument about the standard to prove that an exemption applies on summary judgment. See Cross MSJ Reply at 4-5. The Plaintiffs then argue that JWS New Mexico's “write downs” are irrelevant, because, in most cases, JWS New Mexico charged for the full hours worked. See Cross MS J Reply at 5-6. Further, the Plaintiffs depict JWS New Mexico's “write downs” as unlawful refusals to pay the Plaintiffs for hours worked, and the Plaintiffs argue that JWS New Mexico's statements about write downs contradicted JWS New Mexico's prior statements under oath. See Cross MSJ Reply at 5-6. The Plaintiffs likewise reiterate that JWS New Mexico paid the Plaintiffs more than half the time based on their hours, and paid the Plaintiffs for “yard time, ” which was calculated on an hourly basis. See Cross MSJ Reply at 6-7. Regarding the “piecework” exemption, the Plaintiffs differentiate between “piecework” and “job rate” systems, arguing that job rate systems involve payments per job and that the NMMWA does not exempt such pay programs. See Cross MSJ Reply at 8 (citing 29 C.F.R. § 778.112; Itzep v. Target Corp., No. SA-06-CA-568-XR, 2010 WL 2278349, at *13 (W.D. Tex. June 4, 2010)(Rodriguez, J.)(granting overtime pay to employees on a job rate system)). The Plaintiffs also repeat their arguments about the definition for “flat rate, ” the NMMWA's purpose, and the exemption's inapplicability to employees paid on a partially exempt basis. See Cross MSJ Reply at 8-12.

         7. The Hearing.

         The Court held a hearing on the MSJ and Cross MSJ on July 20, 2016. The Court began the hearing by explaining its impression that the commission exemption applies largely to sales work; the piecework exemption is implicated generally when an employee receives pay for items produced, and the flat rate exemption applies when an employee is compensated for a task, like fixing a car, regardless the time required to complete the task. See Draft Transcript of Hearing at 4:11-5:11 (taken July 20, 2016)(Court)(“Tr.”).[44] The Court directed the parties to clarify how JWS New Mexico paid the Plaintiffs, because the Court surmised that JWS New Mexico paid the Plaintiffs hourly, with a commission in addition to the hourly rate. See Tr. at 5:22-6:16 (Court). The Court also inquired whether it could write one factual section for both the MSJ and the Cross MSJ, because the parties did not dispute many facts. See Tr. at 6:17-7:10 (Court). The parties opined that a single opinion would be appropriate. See Tr. at 7:16-18 (Johnson); id. at 34:24-35:3 (Milstein).

         The Defendants clarified that JWS New Mexico paid the drivers twice a month based solely on twenty-five percent “of the transportation charge to the customer, ” regardless the bid on which JWS New Mexico charged the customer. Tr. at 7:19-8:5 (Johnson). The Defendants described the three bid categories, which the Defendants listed in the MSJ, and noted that they disagreed with the Plaintiffs, because for hourly bid jobs, JWS New Mexico charged the customer for the hours to perform the job. See Tr. at 9:2-10:11 (Johnson). The Defendants explained that JWS New Mexico frequently wrote down the hours for the hourly bid rate jobs, thus the payment program resembled the automobile repair cases, which courts treat as cases about commission systems. See Tr. at 10:11-11:15 (Johnson). The Defendants further noted that the exemption applies to employees other than sales employees. See at Tr. at 11:16-12:18 (Johnson). The Defendants responded to the Plaintiffs' statements describing the write downs as unlawful by noting that JWS New Mexico wrote down the charges to the customer, thus the hourly bid rate was more “a target number of hours, ” and the Plaintiffs' arguments miss the point. Tr. At 13:22 (Johnson). See Tr. at 12:19-16:9 (Johnson). Further, the Defendants argued that the Plaintiffs cite Corman's deposition testimony as evidence that JWS New Mexico did not frequently write down the Plaintiffs' time, but Corman has no personal knowledge how JWS New Mexico calculates jobs other than his. See Tr. at 14:2-14:14 (Johnson). According to the Defendants, the Plaintiffs also cited a deposition exhibit showing only a selective sampling of job tickets to support their argument that JWS New Mexico only infrequently wrote down the hours. See Tr. at 15:9-21 (Johnson). The Defendants also contended that JWS New Mexico did not provide contradictory statements, because the Plaintiffs' counsel did not ask questions related to the actual hours worked. See Tr. at 16:10-25 (Johnson). Regarding “yard time, ” the Defendants noted that the Plaintiffs provide no evidence to show that the yard time is more than de minimis. See Tr. at 17:1-24 (Johnson). The Defendants reiterated that piecework “can apply to being by the job.” Tr. at 18:16 (Johnson). Finally, the Defendants argued that while many cases which the Plaintiffs cited consider the FLSA and that, given this emphasis, the Plaintiffs cannot support their contention that a job rate system is not exempted under the NMMWA or that hours must be decoupled from pay under the NMMWA. See Tr. at 18:17-20:7 (Johnson).

         The Court asked whether a payment system could fit into more than one exemption in the NMMWA, and the Defendants stated that this could happen. See Tr. at 20:10-21:8 (Court, Johnson). Answering the Court's questioning, the Defendants clarified that about fifty percent of the Plaintiffs' pay was based on hourly rate jobs, which are charged to the customer based on the time to complete the jobs. See Tr. at 24:1-23 (Johnson). The Defendants further explained that JWS New Mexico told its drivers that they would receive twenty-five percent of the charge. See Tr. at 25:15-20 (Johnson). The Defendants agreed that the amount which the Plaintiffs make is irrelevant to whether an exemption applies. See Tr. at 26:4-15 (Court, Johnson). In response to the Court's questions, JWS New Mexico clarified that it does not convert the Plaintiffs' pay to pay per hour and that it paid the twelve dollars per hour for de minimis time the Plaintiffs spent in the yard. See Tr. at 26:16-27:19 (Court, Johnson).

         The Plaintiffs argue that JWS New Mexico's pay program is similar to that in Casanova v. Gold's Texas Holdings Group, Inc., which involved personal trainers, because the Plaintiffs are “paid that percentage based on each hour they worked.” Tr. at 28:10-11 (Milstein). See Tr. at 28:8-12 (Milstein). The Plaintiffs contended that JWS New Mexico informed the Plaintiffs that they would receive between $17.18 and $22.50 an hour, and that the yard time plus the hourly rate jobs constituted more than fifty percent of the Plaintiffs' pay. See Tr. at 28:23-29:11 (Milstein). The Plaintiffs averred that other companies serving the oil industry pay their employees by the hour, and that JWS New Mexico's practice allows JWS New Mexico to compete unfairly and raises safety concerns because of potentially tired drivers. See Tr. at 29:12-30:10 (Milstein). The Plaintiffs then reiterated the arguments from their Cross MSJ and MSJ Response why the compensation program does not fall under an NMMWA exemption. See Tr. at 30:11-33:9 (Milstein).

         The Court queried what policy would lead New Mexico to prevent employers from “com[ing] up with a creative generous way of paying their employees.” Tr. at 33:18 (Court). The Plaintiffs replied that overtime laws encourage employers to hire more employees. See Tr. at 33:25-34:12 (Milstein). In response to the Court's question whether a payment program could fit more than one exemption, the Plaintiffs replied that “employees who are compensated in part upon [one] of these three exemptions” are not exempted. Tr. at 35:14-16 (Misltein). See Tr. at 35:4- 36:10 (Court, Milstein). The Court asked: “What I understand Mr. Johnson to be explaining to me . . . is that only 2 percent is based on a 12 dollar an hour rate. And that 98 percent of their income is 25 percent of the job.” Tr. at 36:16-18 (Court). The Plaintiffs responded that JWS New Mexico did not pay the Plaintiffs for all yard time, so the two percent might be inaccurate, and that, regardless the Defendants' description, the Plaintiffs received $22.50 per hour for hourly rate jobs. See Tr. at 36:20-37:16 (Milstein).

         The Court posed a hypothetical to the Plaintiffs:

Let's say you had a company that was going out to an oil rig and telling Chevron, okay[, w]e're going to charge you $50 an hour to haul this brine water away from the rig. We're going to charge you $50 an hour, and we estimate that it's going to take eight hours so we're going to charge you a flat rate of $450 plus tax. If they did that, that's clearly based upon hours[, ] but they turn around to their employees and say, “We're going to give you 25 percent of the job[;] we're going to give you 25 percent of $450. So we're going to give you [$112.50].” I could ignore what the company is saying to the purchaser of the product. Even though they're clearly calculating on an hour, [they] could clearly be paying the employee based upon you know, just a flat commission. . . . Would you agree that . . . a company could do that[?]

Tr. at 37:21-38:16 (Court). The Plaintiffs opined that JWS New Mexico did with hourly bid jobs what the Court described, but, for hourly rate jobs, JWS New Mexico charged the customer for the hours worked. See Tr. at 38:17-40:10 (Milstein, Court). The Defendants averred that JWS New Mexico told the employees that they would receive twenty-five percent of what JWS New Mexico charged the customers. See Tr. at 44:6-45:12 (Johnson).

         Responding to a question from the Court, the Plaintiffs clarified that the New Mexico Legislature's concerns about safety related to all overworked employees -- not simply truck drivers - because the NMMWA applies to all employees. See Tr. at 40:11-41:6 (Court, Milstein). The Defendants noted that the DOT regulates the drivers, thus the policy concerns about safety are not as strong as the Plaintiffs would suggest. See Tr. at 45:13-24 (Johnson). The Defendants also disputed the idea that they were “trying [to] get a leg up on the competition.” Tr. at 46:1 (Johnson).

         In response to the Court's question about the exemption that most concerned the Plaintiffs, the Plaintiffs identified the flat rate exception, which includes employers who paid employees for the estimated hours to complete a task. See Tr. at 41:13-42:7 (Court, Milstein). The Defendants admitted that they do not know which exemption best fits JWS New Mexico's payment program, but they noted that more cases exist discussing the commission exemption, because the FLSA incorporates the same exemption. See Tr. at 47:11-48:7 (Johnson).

         The Court asked whether the parties had found other states with similar statutes, and the Plaintiffs responded that New Mexico's statute is broader than other statutes, because the exemptions seem to apply when employees receive partially exempt pay. See Tr. at 42:8-43:4 (Milstein). According to the Plaintiffs, “absurd” results would come from reading the exemption to apply to when an employee received any amount of exempt pay. Tr. at 43:7 (Milstein). See id. at 43:7:24 (Milstein). According to the Defendants, no other state has a statute with language comparable to the NMMWA. See Tr. at 48:8-48:22 (Johnson, Court). The Plaintiffs clarified that the Alaska statute provides an exemption for flat rate mechanics in the automobile industry. See Tr. at 51:21-52:6 (Milstein). At the Court's prompting, the Plaintiffs agreed with the Court that, in interpreting the NMMWA, the Court should look to cases discussing the FLSA, but the Plaintiffs reminded the Court that the State of New Mexico passed the NMMWA to “be more protective than FLSA.” Tr. at 52:18-19 (Milstein). See Tr. at 52:7-53:2 (Court, Milstein). The Plaintiffs agreed with the Court that, because the NMMWA includes “flat rate” and “piecework” exemptions, the NMMWA has broader exemptions than the FLSA. See Tr. at 53:3-53:19 (Court, Milstein).

         Regarding flat rate systems, the Plaintiffs explained that, in Bunch v. Foy, the Supreme Court of New Mexico indicated that it could not determine whether flat rate systems existed outside the automobile industry, and, in Yi v. Sterling Collision Centers and Klinedinst v. Swift Investments, Inc., federal courts agreed that flat rate systems were commission systems, thus, flat rate systems have to satisfy the tests. See Tr. at 53:20-54:18 (Court, Milstein). The Court inquired why flat rate systems would be limited to the automobile industry, and the Plaintiffs admitted: “I don't know of a printed reason why.” Tr. at 55:25-26:1 (Milstein). See Tr. at 55:14-56:4 (Court, Milstein). At the Court's prompting, the Plaintiffs reiterated, in closing, that the Plaintiffs' pay was not decoupled from their hours, thus no exemption applied. See Tr. at 56:5-56:20 (Court, Milstein).

         LAW REGARDING MOTIONS FOR SUMMARY JUDGMENT

         Rule 56(a) of the Federal Rules of Civil Procedure states: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of ‘show[ing] that there is an absence of evidence to support the nonmoving party's case.'” Herrera v. Santa Fe Pub. Sch., 956 F.Supp.2d 1191, 1221 (D.N.M. 2013)(Browning, J.)(quoting Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)). See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(“Celotex”).

Before the court can rule on a party's motion for summary judgment, the moving party must satisfy its burden of production in one of two ways: by putting evidence into the record that affirmatively disproves an element of the nonmoving party's case, or by directing the court's attention to the fact that the non-moving party lacks evidence on an element of its claim, “since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323-25. On those issues for which it bears the burden of proof at trial, the nonmovant “must go beyond the pleadings and designate specific facts to make a showing sufficient to establish the existence of an element essential to his case in order to survive summary judgment.” Cardoso v. Calbone, 490 F.3d 1194, 1197 (10th Cir. 2007).

Plustwik v. Voss of Nor. ASA, No. 2:11-cv-757, 2013 WL 1945082, at *1 (D. Utah May 9, 2013)(Sam, J.)(emphasis added). “If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence -- using any of the materials specified in Rule 56(c) -- that would entitle it to a directed verdict if not controverted at trial.” Celotex, 477 U.S. at 331 (Brennan, J., dissenting)(emphasis in original).[45] Once the movant meets this burden, rule 56 requires the nonmoving party to designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)(“Liberty Lobby”). In American Mechanical Solutions, LLC v. Northland Process Piping, Inc., the Court granted summary judgment for the defendant when the plaintiff did not offer expert evidence supporting causation or proximate causation in its breach-of-contract or breach-of-the-implied-warranty-of-merchantability claims. 184 F.Supp.3d 1030, 1075 (D.N.M. 2016)(Browning, J.). The Court reasoned that the plaintiff could prove neither the breach-of-contract claim's causation requirement nor the breach-of-the-implied-warranty-of-merchantability claims' proximate-causation requirement with mere common knowledge, and the plaintiff provided no expert testimony bolstering its arguments. See 184 F.Supp.3d at 1075, 1079. Without the requisite evidence, the plaintiff, the Court determined, failed to prove “an essential element of the nonmoving party's case, ” rendering “all other facts immaterial.” 184 F.Supp.3d at 1075 (quoting Plustwik v. Voss of Nor. ASA, 2013 WL 1945082, at *1).

         The party opposing a motion for summary judgment must “set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” Applied Genetics Int'l Inc. v. First Affiliated Sec, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). See Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993)(“However, the nonmoving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof.” (internal quotation marks omitted)). Rule 56(c)(1) provides: “A party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1). It is not enough for the party opposing a properly supported motion for summary judgment to “rest on mere allegations or denials of his pleadings.” Liberty Lobby, 477 U.S. at 256. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1231 (10th Cir. 1990); Otteson v. United States, 622 F.2d 516, 519 (10th Cir. 1980)(“[O]nce a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.” (citation omitted)(internal quotation marks omitted)).

         Nor can a party “avoid summary judgment by repeating conclusory opinions, allegations unsupported by specific facts, or speculation.” Colony Nat' l Ins. Co. v. Omer, No. CIV 07-2123, 2008 WL 2309005, at *1 (D. Kan. June 2, 2008)(Robinson, J.)(citing Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); Fed.R.Civ.P. 56(e)). “In responding to a motion for summary judgment, ‘a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.'” Colony Nat'l Ins. Co. v. Omer, 2008 WL 2309005, at *1 (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

         To deny a motion for summary judgment, genuine factual issues must exist that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250. A mere “scintilla” of evidence will not avoid summary judgment. Vitkus v. Beatrice Co., 11 F.3d at 1539 (citing Liberty Lobby, 477 U.S. at 248). Rather, there must be sufficient evidence on which the fact finder could reasonably find for the nonmoving party. See Liberty Lobby, 477 U.S. at 251 (quoting Schuylkill & Dauphin Improvement Co. v. Munson, 81 U.S. 442, 448 (1871); Vitkus v. Beatrice Co., 11 F.3d at 1539. “[T]here is no evidence for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative, . . . summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249 (citations omitted). Where a rational trier of fact, considering the record as a whole, cannot find for the nonmoving party, there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         When reviewing a motion for summary judgment, the court should keep in mind certain principles. First, the court's role is not to weigh the evidence, but to assess the threshold issue whether a genuine issue exists as to material facts requiring a trial. See Liberty Lobby, 477 U.S. at 249. Second, the ultimate standard of proof is relevant for purposes of ruling on a summary judgment, such that, when ruling on a summary judgment motion, the court must “bear in mind the actual quantum and quality of proof necessary to support liability.” Liberty Lobby, 477 U.S. at 254. Third, the court must resolve all reasonable inferences and doubts in the nonmoving party's favor, and construe all evidence in the light most favorable to the nonmoving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999); Liberty Lobby, 477 U.S. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”). Fourth, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255.

         There are, however, limited circumstances in which the court may disregard a party's version of the facts. This doctrine developed most robustly in the qualified immunity arena. In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court of the United States concluded that summary judgment is appropriate where video evidence “quite clearly contradicted” the plaintiffs version of the facts. 550 U.S. at 378-81. The Supreme Court explained:

At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus[.] Co. v. Zenith Radio Corp., 475 U.S. [at] 586-587 . . . (footnote omitted). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. [at] 247-248 . . . . When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.
That was the case here with regard to the factual issue whether respondent was driving in such fashion as to endanger human life. Respondent's version of events is so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.

Scott v. Harris, 550 U.S. at 380-81 (emphasis in original).

         The United States Court of Appeals for the Tenth Circuit applied this doctrine in Thomson v. Salt Lake County, 584 F.3d 1304 (10th Cir. 2009), and explained:

[B]ecause at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, “[a]s with any motion for summary judgment, when opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts.” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008)(quoting Scott, 550 U.S. at 380); see also Estate of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1258 (10th Cir. 2008).

Thomson v. Salt Lake Cty., 584 F.3d at 1312 (brackets omitted). “The Tenth Circuit, in Rhoads v. Miller, [352 Fed.Appx. 289 (10th Cir. 2009)(Tymkovich, J.)(unpublished), ] explained that the blatant contradictions of the record must be supported by more than other witnesses' testimony[.]”[46] Lymon v. Aramark Corp., 728 F.Supp.2d 1222, 1249 (D.N.M. 2010)(Browning, J.)(citation omitted), aff'd, 499 Fed.Appx. 771 (10th Cir. 2012).

         LAW REGARDING ASCERTAINING STATE LAW

         Ascertaining state law under jurisdiction supplemental to a federal question implicates the same principles articulated following Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1983)(“Erie”). Under Erie, a federal district court sitting in diversity applies “state law with the objective of obtaining the result that would be reached in state court.” Butt v. Bank of Am., N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). Accord Mem. Hosp. v. Healthcare Realty Trust Inc., 509 F.3d 1225, 1229 (10th Cir. 2007). The Court has held that if a district court exercising diversity jurisdiction cannot find a Supreme Court of New Mexico “opinion that [governs] a particular area of substantive law . . . [the district court] must . . . predict how the Supreme Court of New Mexico would [rule].” Guidance Endodontics, LLC v. Dentsply Int'l., Inc., 708 F.Supp.2d 1209, 1224-25 (D.N.M. 2010)(Browning, J.). “Just as a court engaging in statutory interpretation must always begin with the statute's text, a court formulating an Erie prediction should look first to the words of the state supreme court.” Peña v. Greffet, 110 F.Supp.3d 1103, 1132 (D.N.M. 2015)(Browning, J.).[47] If the Court finds only an opinion from the Court of Appeals of New Mexico, while “certainly [the Court] may and will consider the Court of Appeal[s'] decision in making its determination, the Court is not bound by the Court of Appeal[s'] decision in the same way that it would be bound by a Supreme Court decision.” Mosley v. Titus, 762 F.Supp.2d 1298, 1332 (D.N.M. 2010)(Browning, J.)(noting that, where the only opinion on point is “from the Court of Appeals, . . . the Court's task, as a federal district court sitting in this district, is to predict what the Supreme Court of New Mexico would do if the case were presented to it”)(citing Wade v. EMCASCO Ins. Co., 483 F.3d 657, 666 (10th Cir. 2007)(explaining that, “[w]here no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do, ” and that, “[i]n doing so, it may seek guidance from decisions rendered by lower courts in the relevant state”)).[48] The Court may also rely on Tenth Circuit decisions interpreting New Mexico law. See Anderson Living Tr. v. WPX Energy Prod., LLC, 27 F.Supp.3d 1188, 1243 & n.30 (D.N.M. 2014)(Browning, J.).[49] Ultimately, “the Court's task is to predict what the state supreme court would do.” Wade v. EMCASCO Ins. Co., 483 F.3d at 666. Accord Mosley v. Titus, 762 F.Supp.2d at 1332 (citation omitted); Rimbert v. Eli Lilly & Co., 577 F.Supp.2d 1174, 1188-89 (D.N.M. 2008)(Browning, J.)(quoting Wade v. EMCASCO Ins. Co., 483 F.3d at 665-66).

         LAW REGARDING THE FLSA

         The FLSA requires covered employers to pay a minimum wage, and to pay their nonexempt employees overtime pay of time and one half their regular rate of pay for hours worked in excess of forty in a work week. See 29 U.S.C. §§ 206-207. The FLSA provides five means of enforcement: (i) criminal prosecutions for willful violators, see 29 U.S.C. § 216(a); (ii) individual civil causes of action to recover unpaid minimum wages, overtime compensation and certain liquidated damages, see 29 U.S.C. § 216(b); (iii) collective actions to recover damages, which are basically opt-in class actions, see 29 U.S.C. § 216(b); (iv) a cause of action allowing the Secretary of the Department of Labor to recover employees' damages and for additional recovery of “an equal amount of liquidated damages, ” 29 U.S.C. § 216(c); and (v) a suit for injunctive relief, see 29 U.S.C. § 217. “The principal congressional purpose in enacting the Fair Labor Standards Act of 1938 was to protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.'” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981)(alterations in original)(quoting 29 U.S.C. § 202(a)).

         1. Employers Under the FLSA.

         The FLSA defines “employer” broadly:

“Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.

29 U.S.C. § 203. “Whether an employment relationship exists for the purposes of the FLSA turns on the ‘economic reality' of the working relationship.” Saavedra v. Lowe's Home Ctrs., Inc., 748 F.Supp.2d 1273, 1285 (D.N.M. 2010)(Browning, J.)(quoting Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961)). The Supreme Court has instructed courts to construe the terms “employer” and “employee” expansively under the FLSA. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326 (1992). See Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)(“[T]here is in the [FLSA] no definition that solves problems as to the limits of the employer-employee relationship under the Act . . . . The definition of ‘employ' is broad.”). The Tenth Circuit has similarly recognized that “[t]he terms ‘employ' and ‘employer' are given . . . broad . . . definitions.” Johnson v. Unified Gov't of Wyandotte Cnty., 371 F.3d 723, 729 (10th Cir. 2004)(Holloway, J.).

         The statute is a remedial one, written in the broadest possible terms . . . . It runs counter to the breadth of the statute and to the Congressional intent to impose a qualification which permits an employer who exercises substantial control over a worker, but whose hiring decisions occasionally may be subjected to a third party's veto, to escape compliance with the Act. Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984). “Employer” includes persons or entities who have “managerial responsibilities” that give the person or entity “substantial control of the terms and conditions of the work of [its] employees.” Falk v. Brennan, 414 U.S. 190, 195 (1973). “Corporate officers who have a substantial ownership interest in the corporation, and who are directly involved in decisions affecting employee compensation, may be held personally liable under the FLSA.” Saavedra v. Lowe's Home Ctrs, Inc., 748 F.Supp.2d at 1288 (citing Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983)). See Fegley v. Higgins, 19 F.3d 1126, 1131 (6th Cir. 1994); Reich v. Circle C Invs. Inc., 998 F.2d 324, 329 (5th Cir. 1993); Donovan v. Grim Hotel Co., 747 F.2d 966, 972 (5th Cir. 1984); Donovan v. Janitorial Servs., Inc., 672 F.2d 530, 531 (5th Cir. 1982); Shultz v. Mack Farland & Sons Roofing Co., 413 F.2d 1296, 1300 (5th Cir. 1969).

         2. The FLSA's Minimum Wage, Overtime, and Records Requirements.

         FLSA § 7 requires employers to pay covered employees who, in a given workweek, work more than forty hours “at a rate not less than one and one-half times the regular rate at which [the employee] is employed.” 29 U.S.C. § 207(a)(1). “The purpose of FLSA overtime is ‘to compensate those who labored in excess of the statutory maximum number of hours for the wear and tear of extra work and to spread employment through inducing employers to shorten hours because of the pressure of extra cost.'” Chavez v. City of Albuquerque, 630 F.3d 1300, 1304 (10th Cir. 2011)(Briscoe, J.). The Tenth Circuit has recognized “that a contract cannot designate an artificially low regular rate in order to reduce the minimum statutory overtime due . . ., [as] parties cannot avoid the purposes of the FLSA by designating a fictitious regular rate.” Chavez v. City of Albuquerque, 630 F.3d at 1305 (citing Walling v. Wall Wire Prods. Co., 161 F.2d 470, 473 (6th Cir. 1947)).

Much like the protections that the United States Constitution provides to United States citizens, the Court sees the FLSA as a minimum standard. Employers are not allowed to provide their employees less protection . . . than the Act provides. If the employer wishes, however, it may provide its employees more protections than the Act dictates.

Rodriguez v. City of Albuquerque, 687 F.Supp.2d 1270, 1309 (D.N.M. 2009)(Browning, J.), aff'd in part, rev'd in part and remanded, 420 Fed.Appx. 845 (10th Cir. 2011).

         Under the FLSA, an employer must pay its employees for the time that it “employ[s]” them, the statutory definition of which means “to suffer or permit to work.” 29 U.S.C. § 203(g).

         See 29 C.F.R. § 785.6 (“By statutory definition the term ‘employ' includes (section 3(g)) ‘to suffer or permit to work.' The act, however, contains no definition of ‘work.'”). “The test for whether an employee's time constitutes working time is whether the time is spent predominantly for the employer's benefit or for the employee's.” United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109, 1116 (10th Cir. 1999)(internal quotation marks omitted)(quoting Gilligan v. City of Emporia, 986 F.2d 410, 412 (10th Cir. 1993)). The Supreme Court has rejected the argument that Congress' intent in enacting the FLSA was to compensate employees “for all actual work . . . as those words are commonly used -- as meaning physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Armour & Co. v. Wantock, 323 U.S. 126, 132 (1944)(quoting Tenn. Coal Iron & R.R. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944)). The Supreme Court explained:

[A]n employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a standby capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer's property may be treated by the parties as a benefit to the employer. Whether time is spent predominantly for the employer's benefit or for the employee's is a question dependent upon all the circumstances of the case.

Armour & Co. v. Wantock, 323 U.S. at 133.

         FLSA § 6 requires employers to pay their employees a minimum wage. See 29 U.S.C. § 206(a). Deductions from employees' paychecks, for whatever reason, that bring the employees' pay under the minimum wage violate § 6. See Donovan v. Simmons Petrol. Corp., 725 F.2d 83, 84 (10th Cir. 1983)(holding that the employer's deductions of “cash register shortages and the amount of uncollectible checks accepted by its employees from the paychecks of employees who were on duty when the shortages occurred” was a willful FLS A violation). Cf Dole v. Solid Waste Servs., Inc., 733 F.Supp. 895, 924 (E.D. Pa. 1989)(Huyett, J.)(concluding that deductions “for lunch breaks during which [employees were] required to continue with any duties relating to . . . work, ” bringing employees below minimum wage, violated the FLS A). Further, FLSA § 11 imposes on an employer a duty to “make, keep, and preserve” records of its employees' wages, hours, and “other conditions and practices of employment” that the employer may maintain. 29 U.S.C. § 211(c). In Donovan v. Simmons Petroleum Corporation, the Tenth Circuit recognized the employers' duty under the FLSA to keep accurate records in discussing the shift of the burden to prove damages between the employee and the employer:

The employee bears the burden of proving he performed work for which he was not properly compensated. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). However, employers have a duty to keep accurate records. If employers do not keep accurate records the employee's burden is extremely difficult. In order to prevent the employee from being penalized by the employer's failure to keep adequate records, the Supreme Court held in Anderson that an employee carries his burden by proving that he has “in fact performed work for which he was improperly compensated and . . . [producing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id Upon such a showing, the burden shifts to the employer to produce evidence of the precise amount of work performed or to negate the reasonableness of the inference drawn from the employee's evidence. If the employer does not rebut the employee's evidence, then damages may be awarded even though the result is only approximate. The employer cannot complain that the damages lack the precision that would have been possible if the employer had kept the records required by law. Id at 687-88.

Donovan v. Simmons Petrol. Corp., 725 F.2d at 85-86. The federal Department of Labor's Wage and Hour Division requires that employers must maintain in their records the time of day and day of the week on which the employee's workweek begins, the regularly hourly pay rate for the employee in any week in which overtime compensation is due, the hours worked each workday and workweek, the total daily or weekly straight-time earned, and the total overtime. See 29 C.F.R. § 516.2(a). Where an employer violates its § 211(c) record-keeping duties, including by not counting time worked before and after an employee's shift begins, the employer cannot meet its burden to rebut the Labor and Wage investigators' reasonable estimates of backpay due to the employees. See Metzler v. IBP, Inc., 127 F.3d 959, 965-66 (10th Cir. 1997)(“When the employer has failed to record compensable time . . ., [t]he employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of [29 U.S.C. § 211(c) ].”); U.S. Dep't of Labor v. Cole Enters., Inc., 62 F.3d 775, 781 (6th Cir. 1995)(“We agree with the district court's conclusion that the calculations of the investigator are a reasonable and generous estimate of the back wages due to the Defendants' employees for the pre-shift and postshift hours worked.”).

         Section 7(a) sets forth the general rule for calculating overtime. See 29 U.S.C. § 207(a)(1). Because the FLSA does not put a limit “on the number of hours that an employee may work in any workweek, he may work as many hours a week as he and his employer see fit, [but, the employer must pay] the required overtime compensation . . . for hours worked in excess of the maximum workweek prescribed by section 7(a).” 29 C.F.R. § 778.102. The statute states:

Except as otherwise provided in this section, 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.

29 U.S.C. § 207(a)(1). See 29 C.F.R. § 778.107 (“The general overtime pay standard in section 7(a) requires that overtime must be compensated at a rate not less than one and one-half times the regular rate at which the employee is actually employed.”). The statute's language demands that an employee receive one and one-half times the “regular rate” of pay for hours that he or she works in excess of forty in a given week. 29 U.S.C. § 207(a)(1).

         One important principle is that FLSA overtime is based on the number of hours worked in a particular workweek.

The Act does not . . . require . . . that an employee be paid overtime compensation for hours in excess of eight per day, or for work on Saturdays, Sundays, holidays or regular days of rest. If not more than the maximum hours prescribed in the Act are actually worked in the workweek, overtime pursuant to section 7(a) need not be paid.

29 C.F.R. § 778.102. On the other hand, that the FLSA does not require that the employer pay overtime for those hours does not relieve an employer from paying overtime for them if the contract of employment demands them. See 29 C.F.R. § 778.102.

         For purposes of calculating overtime under the FLSA, however, the only concern is whether the total hours worked in a given workweek are above or below the statutory requirement for overtime compensation. See 29 C.F.R. § 778.102. A second important principle about calculating overtime under the FLSA is that the employee must receive overtime pay at a rate of no less than one and one-half times the “regular rate” for which the employer employs the employee. Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)(“The keystone of Section 7(a) is the regular rate of compensation.”). The Supreme Court described “the regular rate” as “the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed.” Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. at 424. Since the Supreme Court's opinion in Walling v. Youngerman-Reynolds Hardwood Co., Congress has amended the FLSA to include a description of regular rate, see 29 U.S.C. § 207(e) (stating that “the ‘regular rate' at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee, ” with eight statutory exceptions), [50] and the interpretive bulletins have incorporated the Supreme Court's definition, see 29 C.F.R. § 778.108 (“The Supreme Court has described it as the hourly rate actually paid the employee for the normal, nonovertime workweek for which he is employed -- an ‘actual fact.'”). Generally, the exceptions include overtime pay and compensation that is discretionary on the employer's part. See 29 C.F.R. § 779.108.

         3. Compensable Time Under the FLSA.

         Congress enacted the Portal-to-Portal Act of 1947, 29 U.S.C. §§ 251-262, to define certain activities for which employers need not compensate pursuant to the FLSA.[51] The Portal-to-Portal Act excludes from compensation certain preliminary and postliminary activities, like pre-shift walking and, in some cases, changing clothes and putting on specific gear. See Steiner v. Mitchell 350 U.S. 247, 252 (1956); Reich v. IBP, Inc., 38 F.3d at 1126 (holding that the donning and doffing of safety glasses, ear plugs, a hard hat, and safety shoes are non-compensable preliminary and postliminary activities). Under Department of Labor regulations explaining the Portal-to-Portal Act, see 29 C.F.R. § 790.6, the workday begins with the “first principal activity” and ends with the last, IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005)(quoting Steiner v. Mitchell, 350 U.S. at 256).

         The Supreme Court clarified what constitutes a “principal activity” in IBP, Inc. v. Alvarez, 546 U.S. at 34. It held that anything that is “integral and indispensable” to a “principal activity” is itself a “principal activity” under the Portal-to-Portal Act, which makes it compensable. 546 U.S. at 37. The Supreme Court noted that, to the extent that standard protective clothing and gear are “integral and indispensable” to a principal activity, the donning and doffing of those items are principal activities and are therefore compensable. 546 U.S. at 36-37. Accordingly, the key issue to determining compensability is whether the pre-shift activities are integral and indispensable to the employee's principal activities. See Lindow v. United States, 738 F.2d 1057, 1060 (9th Cir. 1984)(Choy, J.)(concluding that pre-shift activities may be compensable if they are an “integral and indispensable” part of the principal activities).

         The Tenth Circuit has interpreted what constitutes preliminary, non-compensable activities. In Smith v. Aztec Well Servicing Co., 462 F.3d 1274 (10th Cir. 2006), the plaintiffs argued that they were entitled to compensation for time spent loading their trucks with safety and protective gear, then traveling to the job site. See 462 F.3d at 1276-77. The Tenth Circuit acknowledged that, if the plaintiffs' first principal activity -- loading their trucks with protective gear -- occurred before traveling to the job ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.