PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 14

- 1010

_______________

ASHLEY MCMASTER

, Appellee

v.

EASTERN ARMORED SERV ICES, INC.

, Appellant

_______ ________
On Appeal from the United States District Court
for the District of New Jersey (Civ. No. 11

- 5100 ) District Judge: Honorable Michael A. Shipp

_______________

Submitted Pursuant to Third Circuit L

. A

. R

. 34.1(a)

October 23, 2014

Before : FUENTES, GR EENBERG, and COWEN

, Circuit Judges

( Opinion Filed : March 11, 2015 )

Mark Justin Gottesfeld2 R. Andrew Santillo
Peter D. Winebrake Winebrake & Santillo, LLC 715 Twining Road, Suite 211 Dresher, PA 19025

Attorneys for Appellee

Christina Vassilou Harvey

Lomur ro, Davison, Eastman & Munoz
100 Willow Brook Road Building 1, Monmouth Executive Center
Suite 1 0 0 Freehold, NJ 07728

Attorney for Appellant

_______________

OPINION OF THE COURT

_______________

FUENTES

, Circuit Judge :

The Fair Labor Standards Act requires most employers
to p ay overtime wages to hourly employees. While professional motor carriers are generally exempt from this requirement, a recent Act of Congress waives the exemption
for motor carrier employees who, in whole or in part, drive vehicles weighing less than 10,00 0 pounds . Because the plaintiff, Ashley McMaster, falls within this carveout, we will
affirm the District Court’s determination tha t she was entitled
to overtime.

I.3 Ashley McMaster worked for Eastern Armored Services, Inc. (“Eastern”) from approximately March 2010
until June 2011. As its name suggests, Eastern is an armored courier company , and its fleet of armored vehicles operates across several states in the mid

- Atlantic region

. McMaster

was a driver and/or guard for Eastern

, which meant that some days she was assigned to drive an armored vehicle, while other days she rode as a passenger to ensure safety and security . McMaster was not assigned to one specific vehicle. Rather, her vehicle assignment changed according to the particular needs of a given da y’s transport. As it happened, McMaster spent 51% of her total days working on vehicles rated heavier than 10,000 pounds, and 49% of her total days working on vehicles rated lighter than 10,000 pounds. She was paid by the hour, and she frequently worked mo re than 40 hours in a given week. For all hours worked, she was paid

at her regular rate. In other words, she was not paid overtime.

After McMaster left Eastern, she filed the instant federal action claiming that the Fair Labor Standards Act required Ea stern to pay her overtime wages when she worked
more than 40 hours in a week . The parties certified a conditional class of similarly situated employees, see 29 U.S.C. § 216(b), and proceeded to limited discovery on McMaster’s claim only. The parties then c ross

- moved for summary judgment. Their dispute centered on whether Eastern was exempt from paying overtime to McMaster under a provision of the Fair Labor Standards Act known as the Motor Carrier Act Exemption. According to Eastern,

McMaster fell within th e exemption and was thus not entitled to overtime. According to McMaster, she fell within an exception to the exemption enacted by Congress prior to her employment.4 The District Court granted McMaster’s motion, denied Eastern’s motion, and entered an ord er that McMaster was eligible to be paid overtime wages for all hours she worked

over 40 in a given workweek. This interlocutory appeal followed on certification of the District Court, see 28 U.S.C. § 1292(b) , which recognized that other district c ourts ha ve embraced Eastern’s arguments. In the briefs before us,

Eastern renews its contention that McMaster is ineligible for
overtime be cause of the Motor Carrier Act Exemption. 1

I I

. S ection 7 of the Fair Labor Standards Act provides
that employers must pay hourly employees 1 50% their typical wages on hours they work in a week over 40

. 2 See 29 U.S.C.

1 Eastern’s alternative argument

— that McMaster was en titled to overtime only for those workweeks in which she actually performed work on vehicles lighter than 10,000 pounds

— was not presented to the District Court and is therefore deemed
waived. See Tri

– M Grp., LLC v. Sharp , 638 F.3d 406, 416 (3d Cir. 2011).

2 We have jurisdiction to review the District Court’s order pursuant to 28 U.S.C. § 1292(b). The District Court had subject

- matter jurisdiction under 28 U.S.C. § 1331.

We review a district court's gr ant of summary judgment de

novo. Doe v. Indian River Sch. Dist. , 653 F.3d 256, 275 n.7 (3d Cir. 2011). In doing so, we apply the same standard as the
district court. Id . That is, summary judgment should be granted “if the movant shows that there is no genu ine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding whether summary judgment is warranted, we “must view the facts in5 § 207; Packard v. Pittsburgh Transp. Co. , 418 F.3d 246, 250 (3d Cir. 2005). One exemption to this general rule is Section 13(b)(1) of the Act

. Known as the Motor Carrier Act Exemption , the provision provides that overtime pay is not required for “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service. ” See 29 U.S.C. § 213(b)(1 ) ; see also 49 U.S.C. §§ 31502(b), 13102 (defining scope of Secretary of Transportation’s regulatory authority ).

Congress elaborated upon the Motor Carrier Act Exemption with the enactment of the Corrections Act of

2008

. 3 Sec tion 306(a) of the Corrections Act prov ides that
“Section 7 of the Fair Labor Standards Act

. . . shall apply to a covered employee notwithstanding section 13(b)(1) of that
Act.” See Corrections Act, § 306(a). Section 306 (c) of the
Corrections Act defines the term “covered employee

. ” In
short

, a “covered employee” is an employee of a motor carrier whose job

, “ in whole or in part, ” affects the safe operation of
vehicles lighter than 10,000 pounds, except vehicles designed to transport hazardous materials or large numbers of

passengers. Correction s Act § 306(c).

McMaster ’s jo b placed her squarely within the
Correctio n s Act’s defin ition of a “covered employee.”

McMaster was a driver and guard of commercial armored vehicles, and approximately half of her trips were on vehicles

the light most favorable to the nonmoving party and draw al l inferences in that party's favor.” Doe , 653 F.3d at 275 n.7.

3 SAFETEA

– LU Te chnical Corrections Act of 2008, PL 110

- 244

, June 6, 2008, 122 Stat

. 1572

.6 undisputedly lighter than 10,000 pounds. 4 Her daily routes included interstate trips on public roadways, and none of the vehicles were designed to transport eight or more passengers or used to transport hazardous materials. And her employer, Eastern, is by its own admission a motor carrier. The critical issue, then, is the significance of being a “covered employee” when determining a motor carrier employee’s entitlement to
overtime.

It is well

- established that, “[w] here the text of a statute is unambiguous, the statute should be enforced as written and only the most extraordinary showing of contrary intentions in the legislative history will justify a departure from that language.” Murphy v. Millennium Radio Grp. LLC , 650 F.3d 295, 302 (3d Cir. 2011). As stated above, the rele vant language of the Corrections Act is that, as of June 6, 2008,
“Section 7 of the Fair Labor Standards Act of 1938

. . . shall apply to a covered employee notwithstanding section 13(b)(1)
of that Act.” Corrections Act § 306(a). This is a plain

statement that a “ covered employee ” is to receive overtime
even where section 13 (b)(1)

— the Motor Carrier Act Exemption

—

would ordinarily create an exemption. We see no plausible alternative construction, and neither Easte rn nor any of the authorities it cites attempt to offer one. Nor does Eastern point to legislative history probative of a drafting

error. Cf. Murphy , 650 F.3d at 302

. S tatutory construction points to one conclusion: “ covered employees ” are entitled to

4 We need not now affix a firm meaning to the term “in part.” Whatever “in part” means, it is certainly satisfied by McMaster, who spent 49% of her days on vehicles less than 10,000 pounds.7 overtime.

District c ourts consider ing the plain language of the
Corrections Act have reached the same conclusion

. See , e.g. , McMaster v. E. Armored Servs., Inc. , 2013 WL 1288613, at *1 (D.N.J. 2013) ; Garcia v. W. Waste Servs., Inc. , 969 F. Supp. 2d 1252, 1260 (D. Idaho 2013); Bedoya v. Aventura

L imousin e & Transp. Serv., Inc. , 2012 WL 3962935, at *4 (S.D. Fla. 2012); Mayan v. Rydbom Exp., Inc. , 2009 WL 3152136, at *9 (E.D. Pa. 2009); Botero v. Commonwealth

Limousine Serv. Inc. , 2013 WL 3929785, at *13 (D. Mass. 2013) ; O’

Brien v. Lifestyle Transp., Inc.

, 956 F. Supp. 2d 300, 307 (D. Mass. 2013)

. So, too, the Department of Labor

, in a post

- Corrections Act Field Bulletin entitled “ Change in Appl ication of the FLSA § 13(b)(1) ‘ Motor C arrier Exemption.’” See Department of Labor Field Bulletin,

available at htt

p://www.dol.gov/whd/fieldbulletins/fab2010 _2.htm

. ( “ S ection 306(a) extends FLSA S ection 7 overtime requirements to employee s covered by [Corrections Act]

S ectio n 306(c), notwithstanding FLSA S ection 13(b)(1).” ).

Our sister courts of a ppeals have yet t o weigh in squarely on whether a Corrections Act “ covered employee ” is
entitled to overtime

, but the Fifth and Eighth Circuits have
noted the plain language of the Corrections Act , too

.

In Allen v. Coil Tubing Servs., L.L.C. , the Fifth Circuit
addressed a motor carrier employee’s argument in an interlocutory appeal that her lack of interstate driving placed
her outside the ambit of the Motor Carrier Act Exemption

. See 755 F.3d 279 (5th Cir. 2014). The Corrections Act was
not at issue because the relevant claim s arose prior to June

2008

. Id . at 291 n.6 . In a footnote , however, the court8 commented on the plaintiff’s other claims before the District Court, which arose after the enactment of the Corrections Act. Without deciding the issue, the Allen court obs erved that, “although the scope of the [Motor Carrier Act] E xemption to

t he [Fair Labor Standards Act] and the scope of the [Department of Transportation] ’ s regulatory jurisdiction are generally one and the same, there may be an exception to that
rule foll owing p assage of the [Corrections Act].” Id

. Continuing, the court explained that the Corrections Act

“ provides generally that, from the date of the act’ s enactment, June 6, 2008, the [Motor Carrier Act] exemption does not apply to employees who would othe rwise fall within its ambit
if the [“covered employee”] requirements are met. ” Id

. (emphasis in the original). In other words, “covered employees” are entitled to overtime.

The Eighth Circuit case, McCall v. Disabled American

Veterans

, involved a motor c arrier employee who, like McMaster does here, argued he was eligible for overtime because he was a Corrections Act “covered employee.” See
723 F.3d 962 (8th Cir. 2013). The issue on appeal centered on whether the weight of the vehicles the plaintiff drove should

, for purposes of determining whether he was a “covered employee,” be measured according to their actual weight or according to the ir Gross Vehicle Weight Rating. See id

. Finding the plaintiff was not a “ covered employee ” because he exclusively worke d on vehicles with a Gross Vehicle Weight Rating over 10,000 pounds, the Eighth Circuit explained that “Gross Vehicle Weight Rating establishes an objective and predictable standard for determining whether the [Motor Carrier Act] Exemption applies.” Id . at 966.

Rather than contest Congress’s express carveout from9 the Motor Carrier Act Exemption for “covered employees

, ”

Eastern relies on a series of district c ourt cases holding that the Motor Carrier Act Exemption remains absolute after the
Corrections Ac t. See Avery v. Chariots For Hire , 748 F. Supp. 2d 492, 500 (D. Md. 2010); Dalton v. Sabo, Inc. , 2010 WL 1325613, at *4 (D. Or. 2010); Jaramillo v. Garda, Inc.

, 2012 WL 4955932, at *4 (N.D. Ill. 2012). 5 Each of these
cases relies on a policy statement of t he Seventh Circuit in

2009 that “[d]ividing jurisdiction over the same drivers, with the result that their employer would be regulated under the Motor Carrier Act when they were driving the big trucks and under the Fair Labor Standards Act when they were d riving trucks that might weigh only a pound less, would require
burdensome record

- keeping, create confusion, and give rise to mistakes and disputes.” See Collins v. Heritage Wine Cellars, Ltd.

, 589 F.3d 895, 901 (7th Cir. 2009 ). Indeed, our own jurispruden ce has historically seen the Motor Carrier Act Exemption as establishing a strict separation between the Secretary of Transportation’s jurisdiction and the ambit of the
Fair Labor Standards Act overtime guarantee. See Packard

,

5 Eastern also points to Buckner v. United Parcel Services

, Inc. , 2012 WL 1596726 (E.D.N.C. May 7, 2012) aff'd without opinion

, 489 F. App ’ x 709 (4th Cir. 2012) cert. de nied, 134 S. Ct. 70 (2013), which found a pro se plaintiff ineligible for overtime where his job consisted of driving cargo vans heavier and lighter than 10,000 pounds. Although the facts of
Buckner parallel those of this case, there is no indication that the pro se plaintiff presented a Corrections Act argument to
the Distri ct Court or the Fourth Circuit, and those courts ’
decisions do not show consideration of the Corrections Act
sua sponte.10 418 F.3d at 25 4 (rejecting ar gument that Motor Carrier Act Exemption applied only to drivers actually regulated by the Secretary of Transportation) ; Friedrich v. U.S. Computer

Servs. , 974 F.2d 409, 412 (3d Cir. 1992). Neither history nor policy, however, can overcome an express change to the statutory scheme. 6

III

. The Corrections Act says it plainly: “Section 7 of the
Fair Labor Standards Act of 1938 . . . appl[ies] to a covered employee notwithstanding section 13(b)(1) of that Act.” Corrections Act § 306(a). As McMaster meets the criteria of a “covered employee

, ” she is entitled to overtime. W e will
therefore affirm the order of the District Court and remand for assessment of wages owed to McMaster and for additional proceedings relating to the other members of the conditional
clas s

.

6 In any event, administrability is not an issue with respect t o those employees who fall within the Motor Carrier Act Exemption but are not actually regulated by the Department of Transportation. As our former Chief Judge has noted, employees may fall within the Motor Carrier Act Exemption even where their work prese nts no reason for Department of Transportation regulation. See Friedrich , 974 F.2d at 421 (Sloviter, C.J., d issenting) (“[T]he driving done by these plaintiffs does not raise safety concerns any different than those raised by sales or repair persons who ca rry no such equipment. We are not dealing with truckers or bus operators here. The DOT itself recognized this distinction when it decided not to regulate lightweight vehicles such as automobiles.”).