Brian Sarrazin v. Coastal, Incorporated (2011)

MEMORANDUM OF DECISION ON LIABILITY

This is a civil action filed by the plaintiff, Brian Sarrazin, against the defendant Coastal, Incorporated, seeking money damages in the amount of twice the wages allegedly owed to the plaintiff pursuant to Connecticut General Statutes Section 31-72 with interest, attorneys fees and costs.

The amended complaint alleges that the plaintiff is and has been employed by the defendant as a plumbing foreman since February 6, 2006, and that in addition to his duties as a foreman, the plaintiff is required to drive a company truck containing tools and materials from his home to the various job sites in order that his crew can begin work at approximately 7:00 a.m. each day.   The plaintiff also claims that he drives the truck home each day at the end of his eight-hour shift, and is required to maintain the vehicle with gas, oil and regular servicing.   The complaint alleges that he drives the company vehicle for the benefit of the defendant, approximately one hour each way in excess of his regular eight-hour day, that he spends an additional one-half hour cleaning the truck and organizing the tools and materials for the next day's work, that the defendant refuses to pay him overtime wages for his travel time, in excess of his 40-hour week, in violation of Connecticut General Statutes Sections 31-60, 31-71b, 31-71c and the Connecticut Department of Labor Administrative Regulation Section 31-60-10.   Finally the complaint alleges that the plaintiff filed a claim for wages with the State of Connecticut, Department of Wages, on June 19, 2007, and filed a withdrawal of the complaint on February 29, 2008 to pursue this civil action under Connecticut General Statutes Section 31-72.

The defendant admits most of the allegations of the complaint but denies that the driving of the company truck by the plaintiff was for the benefit of the company, that the defendant has unreasonably refused to pay for the travel time in violation of the statutes and regulation, and that the plaintiff filed a claim for wages and a withdrawal of that claim to pursue this civil action.

The parties have agreed to bifurcate the issues of liability and damages.   This court conducted a trial, limited to the issue of liability, on July 9, 2010.   The plaintiff offered the testimony of the plaintiff.   The defendant offered the testimony of Jeffrey Gamble, vice president and project manager of the defendant, James Leverich, a project manager of the defendant, John Leonard, an apprentice plumber for the defendant, and Donald Gamble, a foreman with the defendant.   Briefs have been filed by each party.

The parties agree that since the defendant is an employer operating in interstate commerce with sales in excess of $500,000 per year that the federal law, known as the Fair Labor Standards Act, 29 U.S.C. Section 201 et seq.   (FLSA) is applicable with respect to wages paid to its employees.   However, despite his concession that the FLSA can be applied in this case, the plaintiff has brought this action based on his interpretation of the Connecticut law with respect to minimum wages and maximum work weeks which he believes is more beneficial to workers than is the FLSA. Without conceding that the Connecticut law is more beneficial, the defendant claims, that federal law has preempted the area of interstate commerce.

The FLSA contains a “savings clause” 29 U.S.C. Section 218, “that expressly allows states to provide workers with more beneficial minimum wages and maximum work weeks than those mandated by the FLSA itself.”  Anderson v. Sara Lee Corp., 508 F.3rd 181, 193 (C.A.4, 2007).  29 U.S.C. Section 218 allows state laws to apply to that part of interstate commerce covered by the FLSA when the state law is more beneficial to the employee than is the federal law.   See Davenport Taxi, Inc. v. State Labor Commissioner, 164 Conn. 233, 240, 319 A.2d 386 (1973).

In making his claim that the Connecticut law with respect to his two hours per day of travel time is applicable in this case, the plaintiff relies on Connecticut General Statutes Section 31-60, 31-71b, 31-71c and the Connecticut Department of Labor Administrative Regulations Section 31-60-10.   The regulation proscribes, in connection with travel time, in pertinent part, as follows.

(a) For the purpose of this regulation, ‘travel time’ means that time during which a worker is required or permitted to travel for purposes incidental to the performance of his employment but does not include time spent in traveling from home to his usual place of employment or return home, except as hereinafter provided in this regulation.

(b) When an employee, in the course of his employment, is required or permitted to travel for purposes which inure to the benefit of the employer, such travel time shall be considered to be working time and shall be paid for as such ․

29 U.S.C. Section 207(a)(1) provides with respect to overtime compensation that no employer shall employ any employee for a workweek longer than forty hours, unless the employee is paid compensation for hours worked in excess of forty hours at a rate not less than one and one-halftime his regular rate.

The Portal-to-Portal Act, 29 U.S.C. Section 251-52 was concerned with travel time and created certain exceptions from compensation as follows.

(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are preliminary to or postliminary to said principal activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.   For purposes of this subsection, the use of an employer's vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee's principal activities if the use of such vehicle for travel is within the normal commuting area for the employer's business or establishment and the use of the employer's vehicle is subject to an agreement on the part of the employer and the employee ․

29 U.S.C. § 254(a).

The last sentence was added to 29 U.S.C. Section 254 by the Employee Commuting Flexibility Act of 1996 (ECFA) “The primary purpose of ECFA was to limit employer liability for FSLA claims relating to commuting time in employer-provided vehicles.”  Adams v. United States, 65 Fed.Cl. 217, 225 (Ct.Fed.Claims, 2005).

The plaintiff claims that the language in General Statutes Section 31-76, as interpreted by Regulation 31-60-10, which provides that travel time compensation is required if the employee travels for purposes “which inure to the benefit of the employer” is more beneficial to the employee than is the federal provision in the ECFA, and that the federal law has not preempted state law in connection with “travel time.”

The defendant claims that the federal law has preempted the field.

“The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution ․ Determining whether Congress has exercised its power to preempt state law is a question of legislative intent.”  (Citation omitted.)  Serrano v. Serrano, 213 Conn 1, 5, 566 A.2d 413 (1989);  see Northwest Central Pipeline Corp. v. State Corp. Commission of Kansas, 489 U.S. 493, 509, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989).   Preemption may be express or implied.  Assn. of International Automobile Manufacturers, Inc. v. Abrams, 84 F.3d, 602, 607 (2d Cir.1996).  “Express preemption occurs to the extent that a federal statute expressly directs that state law be ousted to some degree from a certain field ․ Even where there is no express statutory statement ousting state law from a given area, [however] there may be implied preemption.”  Id. “The United States Supreme Court has instructed us that, absent an explicit statement that Congress intends to preempt state law, courts should infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947), or where the state law at issue conflicts with federal law, either because it is impossible to comply with both, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 [reh. denied, 374 U.S. 858, 83 S.Ct. 1861, 10 L.Ed.2d 1082] (1963), or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives, Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).”  (Internal quotation marks omitted.)  Serrano v. Serrano, supra, 6;  see Northwest Central Pipeline Corp. v. State Corp. Commission of Kansas, supra, 509.  Dowling v. Slotnik, 244 Conn. 781 (1998).

The basis of the plaintiffs claim for damages is provided by Connecticut General Statutes Section 31-76c which provides that if an employer employs any of its employees for a workweek in excess of forty hours that that employee must be paid for the excess over forty hours at a rate of not less than one and one-half times the regular rate at which he is employed.   The plaintiff claims that his regular workweek is five days at eight hours per day, which is not disputed by the defendant.   The claim that is in dispute is the plaintiff's claim that his two hours per day travel time, his cleaning of the vehicle, and organizing the tools which takes one-half hour each evening, and trips from his home after work in the evening or before work in the morning to pick up certain tools for use on the job, all were for the benefit of the defendant and caused his workweek to exceed forty hours.   The court notes that the claim with respect to trips to pick up tools in the morning and evening is not alleged in the complaint.   However, evidence in support of this claim was admitted without objection, it was referred to in the briefs and in oral argument without objection so it will be considered by the court.

The plaintiff began working for the defendant as a plumber earning $25.00 per hour in September 2004 and drove his own vehicle each day from his home to the job site and from the job site back to his home at the close of the day.   The hours of work were from 7:00 a.m. till 3:30 p.m. with 1/2 hour for lunch.   He was laid off in June of 2005 and rehired in February 2006.   In March 2006 he was promoted to foreman earning $26.00 per hour and was provided with a company owned pickup truck which he drove until May 2006 when the truck was totaled in an accident.   He then operated his own pickup truck for eight or nine months, and was paid $50.00 a week for the use of his truck.   He then was given a company owned van which he used for one year and two months until he was demoted as a foreman in March 2008.   Since his travel claim relates to the time when he was driving a company vehicle, it covers two months from March to May of 2006, and fourteen months from January 2007 to March 2008.

In order to determine whether the employee is working more than forty hours and thus is entitled to be paid at the overtime rate, Section 31-76b(2)(A) defines “hours worked” to include “all time during which an employee is required by the employer to be on the employer's premises or to be on duty, or to be at the prescribed work place, and at all times during which an employee is employed or permitted to work, whether or not required to do so ․”

The plaintiff's claim for unpaid overtime is in three sections.   The first relates to his claim of two hours per day that he drove to work and home from work.   The second is the one-half hour that he claims he spent each evening after arriving home to clean and arrange the tools in the truck, remove the materials from the truck, and clean the truck.   The third claim is that he “occasionally” drove to the company warehouse in the morning and evening to pick up a specialized tool that was going to be needed on the job.

The claim by the plaintiff is that the two-hour round trip to work and home each day is compensable because it “inures to the benefit of the employer” as is provided in the Connecticut regulation.   However, the “savings clause” of the FLSA restricts the states to providing more beneficial wages and lesser hours in a work week than are provided in the FLSA. The Portal-to-Portal Act deals with the issue of travel time, and specifically with travel time when an employee uses a company vehicle for commuting, and it provides that activities by the employee which are incidental to the use of the vehicle for commuting does not make the travel time compensable if the travel is within the normal commuting area and the use of the vehicle is subject to an agreement between the employer and employee.

The principal activities that the plaintiff was required to perform were those of a foreman on a construction site.   He was not employed as a driver.   The providing of a truck or van for him to use in commuting to work was one of the benefits of being a foreman.   The fact that some tools were in the vehicle and were then used on the job site was merely incidental to the use of the vehicle for commuting.   The use for travel was within the normal commuting area for the employer's business and there was an agreement covering the use of the vehicle.   The court finds that the two hours of travel time each day to work is not compensable.

The second area that the plaintiff claims is compensable, and the defendant claims it is not, is the one-half hour the plaintiff claims he spent every day after arriving home to straighten out the truck, clean the tools, organize the truck for the next day, and clean the truck.   He testified that the workers would throw the tools into his truck or van and he was required to clean them and arrange them.   The evidence established that time was provided at the job site to do what the plaintiff claimed he did at home.   Exhibit A is a photo of the tools that the plaintiff carried each day in his truck or van.   On occasion he would have to carry an additional tool owned by the defendant.   On occasion the foremen were required to store tools on their vans but time was provided on the job site to load the tools and cover them if necessary.   Although five minutes was allowed for the employees to clean up the job site and put their tools away, if additional time was needed then it was allowed.   The plaintiff has exaggerated the time required to keep his vehicle clean.   The plaintiff was required to keep the defendant's vehicle as presentable as he would have kept his own vehicle, and he was allowed to clean his vehicle during the work day.   The defendant had a policy of having all its vehicles washed and waxed once a year.   The agreement between the plaintiff and the defendant provided that the company would provide maintenance of the vehicle.   The plaintiff was supposed to arrange during business hours for any major service work that was required to be done.   The plaintiff has failed to prove his claim that each day he was required to spend one-half hour cleaning his company vehicle, cleaning the tools, arranging the tools, or loading and unloading materials from the vehicle.

The plaintiff claims that on occasion he was required to go to the defendant's warehouse to pick up tools before working hours or after hours and that he was not paid overtime for these trips.   His testimony was that it occurred “occasionally” and witnesses for the defendant agreed that this did happen on occasion.   The plaintiff is entitled to be paid overtime for the number of trips made to the defendant's warehouse before 7:00 a.m. or after 3:30 p.m. that he is able to prove occurred.

The court finds that the plaintiff has failed to prove that he is entitled to compensation for his commuting time or for his alleged one-half hour at home after working hours.   He is entitled to be paid overtime for the occasional trip to the defendant's warehouse after working hours or before working hours.   A further hearing with regard to these claims will be required.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.