IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EDWARD C. HUGLER, Acting 

Secretary of Labor, UNITED 

STATES DEPARTMENT OF 

LABOR, 

Plaintiff, 

v. 

WESTSIDE DRYWALL, INC., 

a corporation; and MOHSEN 

SALEM, an individual, 

Defendant. 

JANET M. HEROLD 

Regional Solicitor 

CHARLES C. SONG 

Associate Regional Solicitor 

DONNA F. BOND 

United States Department of Labor 

Office of the Solicitor 

90 Seventh Street, Suite 3-700 

San Francisco, CA 94103 

(415) 625-7758 

Attorneys for Plaintiff 

KYLE D. SCIUCHETTI 

LAURA CALDERA TAYLOR 

Bullivant Houser Bailey, P.C. 

300 Pioneer Tower 

888 S.W. Fifth Ave 

Portland, OR 97204 

(503)228-6351 

Attorneys for Defendants 

1 - OPINION AND ORDER 

3:15-cv-02411-BR 

OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 1 of 22
BROWN, Judge. 

This matter comes before the Court on the Motion (#42) for 

Summary Judgment filed by Defendants Westside Drywall, Inc., and 

Mohsen Salem' on December 1, 2016. 

For the reasons that follow, the Court GRANTS in part and 

DENIES in part Defendants' Motion. 

BACKGROUND 

The following facts are taken from the Joint Statement of 

Agreed Upon Facts (#36), the Complaint (#1) filed by the 

Department of Labor (DOL), and the parties' materials submitted 

in support of this Motion and are undisputed unless otherwise 

noted. 

Westside is an Oregon corporation that performs drywall and 

insulation work and has its principal place of business in 

Hubbard, Oregon. Salem is the President and Chief Executive 

Officer of Westside. Westside employs piece-rate, hourly, and 

salaried employees. 

In January 2012 DOL investigated Westside for violations of 

1 Although the Motion only explicitly indicates Defendant 

Westside moves for summary judgment as to DOL's Claims against 

it, the Motion also appears to seek summary judgment as to DOL's 

Claims against Defendant Salem. In addition, the record reflects 

the same counsel represents both Defendants. The Court, 

therefore, concludes both Defendant Westside and Defendant Salem 

are moving for summary judgment. 

2 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 2 of 22
the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201, et seq. 

The investigation focused on Westside's failure to maintain 

accurate employment records and to pay overtime compensation to 

piece-rate employees. DOL conducted surveillance of Westside's 

headquarters, subpoenaed Westside's employment records, and took 

statements from employees. The investigation continued through 

September 2015. 

On December 28, 2016, DOL filed a Complaint in this Court 

against Defendants. DOL alleges Defendants willfully and 

repeatedly violated and continue to violate §§ 7 and 15 (a) (2) of 

the FLSA, 29 U.S. C. §§ 207 and 215 (a) (2), by failing to pay 

employees overtime compensation when employees work more than 

forty hours a week. DOL also alleges Defendants willfully and 

repeatedly violated and continue to violate§§ 11 and 15(a) (5) of 

the FLSA, 29 U.S.C. §§ 211 and 215(a) (5), by failing to maintain, 

to keep, to make available, and to preserve records of employees' 

hours and wages. DOL seeks back wages on behalf of 100 

identified employees and liquidated damages equal to the amount 

of back wages owed. Although DOL does not state the exact amount 

of damages sought, DOL has indicated the amount in controversy is 

"over $800,000." Joint Summ. of Disputed Disc. Issues (#41) at 

34. 

On December 1, 2016, Defendants filed a Motion for Summary 

Judgment as to all of DOL's claims against them. 

3 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 3 of 22
STANDARDS 

Surrunary judgment is appropriate when "there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law." Washington Mut. Ins. v. United 

States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R. 

Civ. P. 56(a). The moving party must show the absence of a 

dispute as to a material fact. Rivera v. Philip Morris, Inc., 

395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly 

supported motion for surrunary judgment, the nonmoving party must 

go beyond the pleadings and show there is a genuine dispute as to 

a material fact for trial. Id. "This burden is not a light 

one. The non-moving party must do more than show there is 

some 'metaphysical doubt' as to the material facts at issue." In 

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) 

(citation omitted). 

A dispute as to a material fact is genuine "if the evidence 

is such that a reasonable jury could return a verdict for the 

nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 

1054, 1061 (9th Cir. 2002) (quoting Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986)). The court must draw all 

reasonable inferences in favor of the nonmoving party. Sluimer 

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Surrunary 

judgment cannot be granted where contrary inferences may be drawn 

from the evidence as to material issues." Easter v. Am. W. Fin., 

4 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 4 of 22
381 F.3d 948, 957 (9th Cir. 2004) (citation omitted). A "mere 

disagreement or bald assertion" that a genuine dispute as to a 

material fact exists "will not preclude the grant of summary 

judgment." Deeringv. Lassen Cmty. Coll. Dist., No. 2:07-CV1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011) 

(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 

1989)). When the nonmoving party's claims are factually 

implausible, that party must "come forward with more persuasive 

evidence than otherwise would be necessary." LVRC Holdings LLC 

v. Brekka, 581 F. 3d 1127, 1137 (9th Cir. 2009) (citation omitted) 

The substantive law governing a claim or a defense 

determines whether a fact is material. Miller v. Glenn Miller 

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the 

resolution of a factual dispute would not affect the outcome of 

the claim, the court may grant summary judgment. Id. 

DISCUSSION 

Defendants contend they are entitled to judgment as a matter 

of law inasmuch as DOL cannot meet its burden to show that 

Defendants violated the FLSA by failing to pay their employees 

overtime wages and to maintain employment records. In the 

alternative, Defendants contend (1) DOL is limited to recovery of 

back wages for either a two-year or three-year statute-oflimitations period; (2) the back-wage computation for each 

5 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 5 of 22
employee should be reduced by the 10 hours DOL attributed to 

unreported travel on the ground that there was not any 

unreported, compensable travel time; and (3) Defendant Salem is 

not individually liable under the FLSA as a matter of law. 

I. A genuine dispute of material fact exists as to whether 

Defendants violated the FLSA. 

Defendants argue DOL cannot meet its burden to prove that 

Defendants violated the FLSA. In any event, Defendants contend 

there is not a genuine dispute of material fact, and, therefore, 

they are entitled to judgment as a matter of law as to this 

issue. 

A. The FLSA 

Section 7 of the FLSA, 29 U.S.C. § 207(a), sets out the 

obligation of an employer regarding the maximum hours an employee 

is allowed to work and the compensation required for overtime: 

(1) Except as otherwise provided in this section, 

no employer shall employ any of his employees who 

in any workweek is engaged in commerce or in the 

production of goods for commerce, or is employed 

in an enterprise engaged in commerce or in the 

production of goods for commerce, 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. 

Section 11 of the FLSA, 29 U.S.C.§ 211(c), sets out the 

duty of an employer to maintain employee work records: 

Every employer subject to any provision of this 

chapter or of any order issued under this chapter 

shall make, keep, and preserve such records of the 

6 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 6 of 22
persons employed by him and of the wages, hours, 

and other conditions and practices of employment 

maintained by him, and shall preserve such records 

for such periods of time, and shall make such 

reports therefrom to the Administrator as he shall 

prescribe by regulation or order as necessary or 

appropriate for the enforcement of the provisions 

of this chapter or the regulations or orders 

thereunder. 

B. DOL's failure to plead sufficient facts. 

Defendants contend DOL has not pled sufficient facts to 

state a claim that Defendants failed to pay overtime wages. 

Moreover, Defendants assert DOL's allegations in the Complaint 

are conclusory and merely repetitions of statutory language. 

The Court notes Defendants asserted as their First 

Affirmative Defense in their Answer that DOL's Complaint failed, 

in whole or in part, to state a claim on which relief could be 

granted. Answer at ~ 14. On April 25, 2016, the parties filed a 

Stipulation (#13) dismissing this Affirmative Defense. Thus, to 

the extent that Defendants now seek summary judgment based on a 

defense of failure to state facts sufficient to constitute a 

claim, the Court denies Defendants' Motion based on the 

stipulation of the parties. Moreover, the sufficiency of 

allegations in a pleading is not ordinarily tested on a Rule 56 

motion, which takes into account the extent to which material 

facts are disputed and whether a moving party is otherwise 

entitled to judgment as a matter of law. In light of the 

parties' Stipulation (#13), the Court concludes the alleged 

7 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 7 of 22
failure to plead sufficient facts is not an appropriate basis to 

seek summary judgment. 

C. Defendants' failure to pay overtime. 

Defendants next contend there is not a genuine dispute 

of material fact that Defendants paid overtime to their piecerate employees, and, therefore, Defendants assert DOL cannot 

establish a prima facie case against Defendants for violation of 

the FLSA on this ground. Defendants submit the Declaration of 

Shirine Kernan (#44) to support their position. Kernan, the 

Secretary of Westside, submitted copies of "payroll records for 

some of the pay periods included in the Department of Labor's 

claims against Westside." In his Declaration Kernan states: 

"These records indicate that Westside did in fact pay its piecerate workers overtime for hours worked over 40 hours per week." 

Although a moving party is not necessarily required to 

negate the opponent's claim conclusively, the court may only 

grant summary judgment if the record before the court establishes 

there is not a genuine dispute of material fact and the moving 

party is entitled to judgment as a matter of law. Celotex Corp., 

477 U.S. at 322. One of the principal purposes of the summaryjudgment rule is to isolate and to dispose of factually 

unsupported claims or defenses. Id. 

Here DOL contends there is a genuine dispute of 

material fact as to whether Defendants failed to pay piece-rate 

8 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 8 of 22
employees overtime compensation. To support this contention DOL 

submits statements' from several affected employees who state: 

Employees arrived at Defendants' office in Hubbard, Oregon, 

between 6:00 a.m. and 7:00 a.m.; employees would take a 30-minute 

break or eat as quickly as possible to return to work; employees 

returned to the offices between 5:00 p.m. and 8:00 p.m.; even 

though employees regularly worked more than 40 hours a week, they 

were not paid any additional compensation for those overtime 

hours; and Defendants paid employees the same per-foot rate 

regardless of the number of hours they worked. DOL also 

submitted declarations of their investigators who conducted 

surveillance at Defendants' offices. The investigators observed 

non-company vehicles enter the premises by 7:00 a.m. and return 

to the premises after 4:00 p.m. 

On this record the Court concludes there is a genuine 

dispute of material fact from which a fact-finder could conclude 

Defendants violated the requirements of FLSA to pay overtime 

compensation to their piece-rate employees. 

D. Defendants' failure to maintain records. 

Defendants also contend there is not a genuine dispute 

of material fact that they maintained employee records, and, 

therefore, Defendants assert DOL cannot prove Defendants violated 

2 Employees' statements referred to herein were submitted 

with DOL's Memorandum in Opposition to Defendants' Motion. 

9 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 9 of 22
§§ 11 and 15(a) (5) of the FLSA. Defendants also argue they 

produced all records of their employees' wages, hours, and other 

working conditions as requested by DOL during the course of its 

investigation. 

DOL, however, contends Defendants failed to maintain 

accurate records of the hours worked by employees as required 

under the FLSA. DOL relies on the statements of the affected 

employees that they were told by supervisors not to put all of 

their hours on their time sheets; they could only indicate eight 

hours each day for Monday through Friday; the hours did not 

matter because they were paid by the foot; and if anyone recorded 

more than eight hours per day, they would be sent home. 

According to employees, no matter how many hours an employee 

recorded on his time sheet, his paycheck only showed him working 

80 hours in two weeks; employees were sent home and not given any 

work the following day if they recorded working 12 hours; and 

employees sometimes did not bother to put the number of hours 

worked on their time sheets under these circumstances. 

On this record the Court concludes a genuine dispute of 

material fact exists from which a fact-finder could conclude 

Defendants violated the requirements of FLSA to maintain records 

of employees time, wages, and other conditions. 

In summary, the Court concludes genuine disputes of material 

fact exist as to Defendants' alleged violation of§§ 7, 11, 

10 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 10 of 22
15 (a) (2), and 15 (a) (5) of the FLSA regarding overtime 

compensation and failure to maintain records. The Court, 

therefore, denies Defendants' Motion as to these issues. 

II. The three-year statute of limitations applies to DOL's 

claims. 

Defendants contend DOL seeks damages for alleged violations 

beyond the applicable statute of limitations. DOL responds that 

the statute of limitations should be equitably tolled. 

Generally the applicable statute of limitations for FLSA 

claims based on withheld overtime compensation is two years from 

the date the claim for relief accrued. The two-year statute of 

limitations maybe be extended to three years, however, for a 

~willful violation" of the FLSA. 29 U.S.C. § 255(a). The 

determination of the applicable statute of limitations is a 

purely legal issue for the Court. Lucchesi v. Bar-0 Boys Ranch, 

353 F.3d 691, 694 (9th Cir. 2003). 

DOL filed its Complaint on December 28, 2015. Defendants 

assert DOL's overtime back-wages claim in the amount of 

$403,319.49 relies on time sheets from March 2012 through 

September 2014. Defendants point out that the period from March 

2012 through December 2013 is beyond the two-year statute of 

limitations, and, therefore, Defendants contend DOL's back-wage 

claim must be reduced by $231,114.20. Defendants also point out 

that even if the Court applies a three-year statute of 

limitations, the period from March 2012 through December 2012 is 

11 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 11 of 22
also beyond the three-year statute of limitations period and 

DOL's claim would, therefore, have to be reduced by $173,266.43. 

DOL, in turn, asserts the applicable statute of limitations 

should be equitably tolled because Defendants concealed their 

failure to pay overtime compensation and, as a result, hindered 

DOL from detecting Defendants' violations of the FLSA. DOL also 

contends Defendants' conduct was willful, and, therefore, if the 

Court does not equitably toll the statute of limitations the 

Court should apply the three-year statute of limitations. 

A. Equitable tolling. 

In general "[e]quitable tolling applies when the 

plaintiff is prevented from asserting a claim by wrongful conduct 

on the part of the defendant or when extraordinary circumstances 

beyond a plaintiff's control made it impossible to file a claim 

on time." Goudie v. Cable Commc'ns, Inc., No. 3:08-cv-00507, 

2008 WL 4861649, at *1 (D. Or. Nov. 8, 2008) (citing Stoll v. 

Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999)). Equitable tolling 

is also applied in situations when the party invoking equitable 

tolling is unable to obtain vital information bearing on the 

existence of the claim. Cervantes v. Countrywide Home Loans, 

Inc., 656 F.3d 1034, 1045 (9th Cir. 2011). The doctrine "is 

extended sparingly and only where claimants exercise diligence in 

preserving their legal rights." Gessele v. Jack in the Box, 

Inc., 6 F. Supp. 3d 1141, 1162 (D. Or. 2014). See also Irwin v. 

12 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 12 of 22
Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). 

DOL contends the statute of limitations should be 

tolled in this case because Defendants misled their employees 

regarding their rights under the FLSA during the period of their 

employment by telling them that they were not eligible to receive 

overtime pay and when they instructed employees not to report all 

of their hours worked on their time sheets. 

According to Defendants, however, DOL has not presented 

any evidence that Defendants prevented DOL or any employee from 

asserting a claim for unpaid overtime during the period of their 

employment, and Defendants maintain they provided DOL with all 

employment records including payroll records and time sheets when 

DOL began its investigation. 

On this record the Court agrees there is not any 

evidence that Defendants' conduct affirmatively prevented any 

employee from asserting their rights under the FLSA during the 

period of their employment. Although the record reflects 

Defendants told employees they were not eligible for overtime and 

instructed them not to put more than 40 hours on their time 

sheets, that conduct does not prove Defendants made it impossible 

for employees to assert claims under the FLSA. Indeed, the 

record reflects employees stated they knew they were not being 

paid overtime when their paychecks reflected pay for only 80 

hours even when they recorded more hours on their time sheets. 

13 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 13 of 22
The record also reflects Defendants did not 

affirmatively conceal any information from DOL. Defendants 

provided DOL with employee records at the time DOL commenced its 

investigation, and, to that extent, DOL possessed information 

bearing on the existence of employees' possible claims against 

Defendants. 

Accordingly, the Court concludes the circumstances of 

this case do not support equitable tolling, and, therefore, the 

Court denies DOL's request for an equitable tolling of the 

statute of limitations. 

B. Defendants' Allegedly Willful Violations. 

In order to show that an FLSA violation is "willful," 

the DOL has the burden to demonstrate that Defendants "knew or 

showed reckless disregard for the matter of whether its conduct 

was prohibited by the [FLSA]." Chao v. A-One Med. Servs. Inc., 

34 6 F. 3d 908, 918 (9th Cir. 2003) (citation omitted) . When 

determining an employer's legal obligation under the FLSA, it is 

insufficient for the DOL merely to present evidence of an 

employer's negligence. Flores v. City of San Gabriel, 824 F.3d 

890, 906 (9th Cir. 2016) (citing McLaughlin v. Richland Shoe Co., 

486 U.S. 128, 133 (1988)). 

DOL asserts the record in this matter establishes 

Defendants were concealing their failure to pay overtime 

compensation to their employees, and, therefore, DOL contends 

14 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 14 of 22
Defendants' actions were "willful." According to DOL, employees 

stated Defendants told the employees they were not eligible for 

overtime pay and instructed them not to report all hours worked 

on their time sheets, one employee stated a supervisor told him 

to put no more than 40 hours per week on his time sheet, and 

another employee stated his paychecks always showed 80 hours for 

two-week periods no matter how many hours he listed on his time 

sheet. The Court notes Defendants did not controvert these 

employees' statements for purposes of this Motion. 

Although such statements may not support a finding that 

Defendants affirmatively "interfered" with employees' rights, the 

Court concludes the employees' statements at least indicate 

Defendants' reckless disregard for the requirements of the FLSA. 

In McLaughlin v. Richland Shoe Company the United 

States Supreme Court stated: 

In common usage the word "willful" is considered 

synonymous with such words as "voluntary," 

"deliberate," and "intentional." See Roget's 

International Thesaurus§ 622.7, p. 479; § 653.9, 

p. 501 (4th ed. 1977). The word "willful" is 

widely used in the law, and, although it has not 

by any means been given a perfectly consistent 

interpretation, it is generally understood to 

refer to conduct that is not merely negligent. 

The standard of willfulness that was adopted in 

[Trans World Airlines, Inc. v.] Thurston [469 U.S. 

111, 128 (1985)]-that the employer either knew or 

showed reckless disregard for the matter of 

whether its conduct was prohibited by the 

statute-is surely a fair reading of the plain 

language of the [FLSA]. 

486 U.S. 128, 133 (1988). See also Alvarez v. IBP, Inc., 339 

15 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 15 of 22
F.3d 894, 909 (9th Cir. 2003) (to prove willful violation of FLSA 

required evidence of an employer's "knowing or reckless 

disregard" for whether its conduct was prohibited) (citations and 

internal quotes omitted)). 

In Chao v. A-One Medical Services, Inc., the Ninth 

Circuit held the uncontroverted statements by the employees that 

their employer advised they were not eligible for overtime pay 

for various reasons supported a finding of willfulness, and, 

therefore, the court applied the three-year statute of 

limitations. 346 F.3d 908, 918-19 (9th Cir. 2003). 

Based on McLaughlin, Alvarez, Chao, and this record, 

the Court concludes there is a genuine issue of material fact as 

to whether Defendants' alleged violations of the FLSA were 

willful, and, therefore, if that question is resolved against 

Defendants, the three-year statute of limitations applies in this 

matter. Accordingly, DOL may not recover damages for any alleged 

violations of the FLSA requirement to pay overtime compensation 

arising before December 28, 2012, and DOL may recover for such 

violations on or after that date only if it prevails in 

establishing Defendants acted "willfully." 

III. A genuine dispute of material fact exists as to whether 

employees were paid for compensable travel time to and from 

Defendants' warehouse and job sites and for travel time 

between job sites. 

Defendants also argue DOL's calculation of time for 

determining back wages should be reduced by 10 hours for each 

16 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 16 of 22
employee because employees are not entitled to compensation for 

travel time from their homes to a job site and back, employees 

are not entitled to compensation for travel time from Defendants' 

warehouse to a job site and back, and employees were paid for 

travel time between job sites. 

DOL does not contest Defendants' position that employees are 

not entitled to compensation for travel time from their homes to 

either Defendants' warehouse or to the job site and back. Pl.'s 

Opp'n at 11-15. According to DOL, however, travel between 

Defendants' warehouse and job sites is compensable, and employees 

were not paid for such travel because that time was not recorded. 

29 U.S.C. § 254(a) (2) provides the following activities are 

not compensable: "activities which are preliminary to or 

postliminary to said principal activity or activities, which 

occur either prior to the time on any particular workday at which 

such employee commences, or subsequent to the time on any 

particular workday at which he ceases, such principal 

activities.n 

A. Travel from warehouse to job sites and back. 

29 C.F.R. § 785.38 provides: 

Time spent by an employee in travel as part of his 

principal activity, such as travel from job site 

to job site during the workday, must be counted as 

hours worked. Where an employee is required to 

report at a meeting place to receive instructions 

or to perform other work there, or to pick up and 

to carry tools, the travel from the designated 

place to the work place is part of the day's work, 

17 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 17 of 22
and must be counted as hours worked regardless of 

contract, custom, or practice. If an employee 

normally finishes his work on the premises at 5 

p.m. and is sent to another job which he finishes 

at 8 p.m. and is required to return to his 

employer's premises arriving at 9 p.m., all of the 

time is working time. However, if the employee 

goes home instead of returning to his employer's 

premises, the travel after 8 p.m. is home-to-work 

travel and is not hours worked. 

Defendants contend the employees were not required to 

report to Defendants' warehouse before departure to the job site 

nor required to return to the warehouse from the job site, and, 

therefore, the time for employees to travel from the warehouse to 

the job site and back is not compensable. 

In response DOL asserts the evidence shows employees 

were told to begin and to end their day by reporting to 

Defendants' warehouse and were told to arrive between 6:00 a.m. 

and 6:30 a.m. each day. In particular, DOL emphasizes employees 

stated: (1) they met with supervisors to obtain work orders for 

the day when they arrived in the morning, loaded trucks with 

materials, and waited in line to refuel vehicles; (2) there was 

not a set schedule for their return, they generally believed they 

had to stay as long as it took to finish their work, and they 

routinely returned to the warehouse after 5:00 p.m.; (3) they 

were not allowed to take company vehicles home; and (4) they 

performed other tasks when they returned vehicles to the 

warehouse such as removing garbage from the vehicles, cleaning 

and organizing vehicles for the next day, making changes to work 

18 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 18 of 22
orders to reflect additional work completed beyond the original 

assignment, and making notes on the work order regarding the work 

completed and the work that remained to be done. DOL contends 

this evidence, contrary to Defendants' assertion, shows employees 

were only allowed to drive directly from home to job sites if 

they received permission from supervisors and that such 

permission was rarely given. 

On this record the Court concludes a genuine dispute of 

material fact exists as to whether employees were compensated for 

travel from the warehouse to job sites and back. Accordingly, 

the Court denies Defendants' Motion for Summary Judgment as to 

this issue. 

B. Travel time between job sites. 

Defendants concede travel from one job site to another 

during the work day is compensable travel time pursuant to DOL 

regulations. Defs.' Memo. in Support of Mot. for Summ. J. at 18. 

Defendants contend, however, the location of the job site and the 

distance that employees would have to travel was taken into 

consideration when Defendants set the rate for piece-rate workers 

on a particular job, and, therefore employees who worked jobs 

farther away received a higher piece rate. Defendants also 

contend employees recorded their time, including travel between 

sites, on their time cards and were paid for that time. 

Again, DOL emphasizes the employees' time sheets were 

19 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 19 of 22
not accurate because employees were told to record only the 

piece-rate multiplied by the footage of each job rather than the 

actual hours and because employees stated they spent between 

30 minutes and several hours traveling between jobs each day and 

that they were not paid for that time. 

On this record the Court concludes a genuine dispute of 

material fact exists as to whether employees were compensated for 

travel between job sites. Accordingly, the Court denies 

Defendants' Motion for Summary Judgment as to this issue. 

IV. Defendant Salem's personal liability. 

DOL seeks to hold Defendant Salem personally liable as an 

employer for the alleged overtime violations of the FLSA. 

Defendants, however, contend the evidence shows Salem is not an 

"employer," and, therefore, he cannot be held personally liable. 

Only "employers" are liable for violations of the FLSA. The 

FLSA defines an "employer" to include "any person acting directly 

or indirectly in the interest of an employer in relation to an 

employee." 29 U.S.C. § 203(d). This definition is "given an 

expansive interpretation in order to effectuate the FLSA's broad 

remedial purposes." Boucher v. Shaw, 572 F.3d 1087, 1090 (9th 

Cir. 2009). An individual may be personally liable for FLSA 

violations if he or she "exercises control over the nature and 

structure of the employment relationship" or "economic control 

over the relationship." Id. at 1091 (internal quotation 

20 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 20 of 22
omitted). The analysis must include the "circumstances of the 

whole activity" with a particular focus on the "economic reality" 

of the employment relationship. Id. 

Defendants assert Salem is merely a "figurehead" for the 

company: He does not have the authority to hire and to fire 

employees; he does not control the schedule or conditions of 

employment; although he visits job sites, he does not supervise 

the work being done; and he does not have authority over 

employment records or bookkeeping. In addition, Defendants 

contend there is not any evidence to show that Salem is 

responsible for the pecuniary supervision of employees. 

DOL contends a genuine dispute of material fact exists 

regarding Salem's position and authority. Shirine Kernan, the 

Secretary of Westside, testified in deposition that Salem started 

Westside in 1991 and is the sole owner. Kernan also testified 

Salem is one of six people at Westside with the authority to hire 

and to fire employees, and he is responsible for supervising 

piece-rate employees. DOL also points to Salem's own testimony 

that he arrives at the office everyday at 5:00 a.m. and spends 

about 20 percent of his time in the office, visits job sites, 

meets with the executive leadership team, participates in 

company-wide safety meetings and personally supervises the safety 

director, and sets the salaries of several Westside managers. 

DOL also notes Salem testified he has the authority to hire and 

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Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 21 of 22
to fire others even though he did not use that authority. 

On this record the Court concludes a genuine dispute of 

material fact exists as to whether Salem was an "employer" for 

purposes of personal liability for alleged violations of the 

FLSA. Accordingly, the Court denies Defendants' Motion for 

Summary Judgment as to this issue. 

CONCLUSION 

For these reasons, the Court GRANTS in part and DENIES in 

part Defendants' Motion (#42) for Summary Judgment. 

Specifically, the Court GRANTS Defendants' Motion as to the issue 

that the applicable statute of limitations is three years, and 

the Court DENIES Defendants' Motion in all other respects. 

IT IS SO ORDERED. 

DATED this 14th day of March, 2017. 

ANNA J. BROWN 

United States District Judge 

22 - OPINION AND ORDER 

Case 3:15-cv-02411-BR Document 92 Filed 03/14/17 Page 22 of 22