### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20194

DONALD ALLEN; JAVIER BAUTISTA; ADAM D. CREWS, SR.; ODELL GODFREY; JEROME JOHNSON; ET AL, Plaintiffs - Appellants

v. COIL TUBING SERVICES, L.L.C. Defendant - Appellee

------------------------------------------------------------------------------------------------------------ JOSHUA BABINEAUX; DAVID BARRAS; ROSS WAYNE BOUTTE, WILLIAM C. BROUSSARD; WILLIAM DANIEL BROWN, ET. AL., Plaintiffs - Appellants

v. COIL TUBING SERVICES, L.L.C. Defendant - Appellee

A ppeal from the United States District Court for the Southern District of Texas

Before JONES, DENNIS and HIGGINSON, Circuit Judges. HIGGINSON, Circuit Judge: U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D June 13, 2014 Ly l e W . Cay ce Clerk Case: 12-20194 Document: 00512663146 Page: 1 Date Filed: 06/13/2014No. 12-20194

Plaintiffs-Appellants alleged that they worked m o r e than forty hours a week, and that t heir employer, Defendant-Appellee Coil Tubing Services, L.L.C. (“CTS”), wrongfully denied them overtime p ay in violation of the Fair Labor Standards Act (“FLSA”). The district court held, among other things, that the Motor C arrier Act (“MCA”) e xempted certain CTS employees from t he overtimepay r equire m e n t s of the FLSA based, in part, on the percentage of safetyaffecting i nterstate a c tivities these employees engaged i n c ompany-wide. Undertaking a limited interlocutory review, we AFFIRM. FACTS AND PROCEEDINGS CTS services oil w ells. From 2005 to 2 008, the company divided itself into six geographic “districts.” The districts o p e r a t e d u n d e r a s i n g l e U.S. D epartment of Transportation (“DOT”) number, and were not legal entitie s d i s t i nct from CTS. The districts sometimes b o rrowed personnel and e quipment from each other. T hey also sometime s solicited and accepted projects outside their respective geographic boundaries. Plaintiffs worked in four of the districts: A lice, T exas; Angleto n , T e xas; B r idgeport, Texas; and Broussard, L ouisiana. Their p ositions included: Equipment Operator (“EO”), Service T e c h nician I (“ST-I”), S ervice Technician II ( “ S T

- II”), Service Supervisor Trainee (“SST”), Service Supervisor (“SS”), Service Coordinator (“SC”), and Field Engineer I (“FE-I”). Plaintiffs’ duties varied by position. SCs coordinated projects. F E

- Is recorded the pressure of coil tubing units at well sites. EOs, ST-Is, ST-IIs, SSTs, and SSs helped transport materials to project sites. Plaintiffs initia t e d t h i s suit for overtime pay in November 2008. “To efficiently manage [ the] case,” the district court ordered the parties to conduct discovery on a cross-section of f ourteen Plaintiffs, known a s the “Bellwether group.” On completion of discovery, the parties filed cross-motions for summary judgment on whether e x emptions to the F LSA, and, in particular, an MCA

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exemption allowing certain e m ployers not t o p a y overtime t o employees engaged in safety-affecting interstate activities, applied to Plaintiffs. The district c o u r t initially denied, in part, s ummary j udgment for CTS based, in part, on a district-by-district analysis of the employees’ i n t e r s t a te activities. The district c ourt explained: that EOs, ST-Is, ST-IIs, SSTs, and SSs, but not FE-Is and SCs, 1 had similar-enough job duties to be grouped together as “Field Service Employees,” or “FSEs”; that FSEs who worked on land-based, but not offshore, wells e n gaged in activities a ffecting motor vehicle safety; and that, measuring interstate activities by district , o nly land-based FSEs in certain districts had a reasonable expectation of engagi n g in sufficient interstate activities. The p a rties filed motions for reconsideration. Observing t hat “[n]either party had argued for a district-by-district analysis,” the distri c t court granted CTS’ motion, and vacated its initial order. T h e d i s t r ict court then g ranted, in part, s ummary judgment for CTS, using

a company-wide analysis to find that t he MCA exemption applied to many of the Pla i n t i f fs. In a sixty-three page opinion i s sued January 1 1, 2012, the district court used the same individualized analysis t o establish the class of FSEs, and to determine that o n ly FSEs w h o w o r k ed o n land-based wells engaged in activities affecting m otor vehicle safety. The district court then reasoned that

a c o m p a ny-wide analysis of t hese employees’ interstate a ctivities was appropriate because “[t] h e r e i s i nsufficient evidence or l egal authority

. . . to treat the districts separately.” Measuring the i n t erstate activities of land-based FSEs o n a company-wide basis, the district court found: that 7 p ercent of projects required these employees to drive across state li n e s ; t h a t such trips were

1 The d is trict court d enied the p arties ’ sum m ary jud gm ent m otions relating to the FE- Is and SCs on the bas is that there was a genuine is s ue of f act as to w hether the MCA exem p tion ap p lied to em p loyees hold ing thes e p os itions

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assigned indiscriminately; and that, therefore, land-based FSEs h a d a “reasonable expectation” that they “ could be a ssigned to d r ive interstate.” The district court e xtended its rulings to all Plaintiffs, a nd not j ust those in the Bellwether group. The district court granted Plaintiffs’ request for permission to f i l e an interlocutory appeal und e r 2 9 U .S.C. §1292(b), explaining that its rulings, “particularly those involving application of the [ MCA e xemp t ion], involve controlling questions of law as to which there is substantial g round for difference of optio n , ” a n d t h at “an immediate a ppeal from those rulings i s likely to materially advance t he ultimate termination of this litigation.” T his court then granted Appellants’ motion for leave to appeal. STANDARD OF REVIEW

“ A l t h o u g h w e o r d i n a r i l y r e view a district c o urt’s s u m m a r y j u d g m e n t r u l i n g de novo , our appellate jurisdic t i o n u n d e r [28 U.S.C.] § 1292(b) e xtends only to controlling questions of law, t hus, we review on l y the issue of law certified for appeal.” Tanks v. Lockheed M artin Corp. , 417 F.3d 456, 461 (5th Cir. 2005). The district court certified for interlocutory appeal t h e rulings in its J anuary 11, 2012 order, “particularly those involving application of the [MCA exemption].” We th e r e f

ore limit our review to t hese rulings, particularly whether the MCA exemption applies. THE MCA EXEMPTION Section 207 of the F LSA requires a n e m ployer to pay overtime compensation t o a ny e m p loyee working more t han forty hours in a workweek. 2

2 Section 207( a) ( 1) provid es in f ull: Excep t as otherw is e p rovid ed in this s ection, no em p loyer s hall em p loy any of hi s e m p loyees w ho in any w ork week is engaged in com m erce or in the p rod uction of good s f

or com m erce, or is em plo y e d i n a n enterp ris e engaged in
com m erce or in the p rod uction of g o o d s for com m erce, f or a w ork w eek longer than f orty hours unles s s uch em ploye e r e c eives com p ens ation f or his
em p loym ent in exces s of the hours above s p ecif ied at a rate n ot les s than one 4 Case: 12-20194 Document: 00512663146 Page: 4 Date Filed: 06/13/2014No. 12-20194

See 29 U.S.C. § 2 07(a)(1); Singer v. City of Waco , 3 24 F.3d 8 1 3 , 8 1 8 ( 5 t h Cir. 2003). “ Exemptions under the FLSA are construed narr o w l y against the employer, and the employer bears the burden to establish a claimed exemption.” Songer v. Dillon Res., Inc. , 618 F.3d 467, 471 (5th Cir. 2010). At issue o n appeal is the MCA exemption, “which s tates that the FLSA’s overtime requirement ‘ shall not apply

. . . to

. . . any e mployee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provi s i o n s o f section 31502 of Title 49’ of t he MCA.” Id (alterations in original) (quot i n g 2 9 U

. S.C. § 213(b)(1)). Section 31502, in t urn, provides that the DOT “may prescribe r equirements for

. . . qualifications and maximum hours of service of employees of, a nd standards of equipment of, a motor private car r i e r, when needed t o promote safety of operation.” 49 U.S.C. § 3 1502(b)(2). The DOT may establish t hese requirements for employees who (1) Are employed by carriers whose transportation o f passengers or property by motor vehicle is subject t o his jurisdiction under section 204 of the [MCA]

. . . a n d ( 2 ) e n g age i n activities of a character directly affectin g t h e safety of o peration o f motor vehicles in t h e transportation on the p ublic highways of passengers or property in interstate or foreign commerce within the meaning of the [MCA]. 29 C.F.R. § 782.2(a); see Songer , 6 1 8 F.3d at 472. “For the motor carrier exemption to a pply

. . . [the employees] must m eet both of these r equirements.” Barefoot v. Mid-Am. Dairymen, Inc. , No. 9 3-1684, 1994 WL 57686, at * 2 (5th Cir. Feb.18, 1994) (per curiam) (unpublished). To satisfy the first requirement—whether the employer is “ subject to [the DOT’s] jurisdiction,” 29 C.F.R. § 782.2(a)—an employer “must be engaged in interstate commerce.” Songer , 6 1 8 F

. 3 d at 472. The MCA defines interstate

and one- half tim es the regular rate at w hich he is em p loyed

.

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commerce as commerce “between a place in . . . a State and a place i n another State.” 49 U.S.C. § 13501(1)(A). However, this definition “has not been applied literally by t h e c o u r t s. In fact, we have d efined it as the actual transport of goods across s tate lines o r the intrastate transport o f goods i n the flow of interstate commerce.” S onger , 6 18 F.3d at 472 (internal quotation marks omitted). To satisfy the second requi r e m e n t—whether the employees “ engage in activities of a character directly a ffecting t he safety of operation of motor vehicles

. . . in interstate

. . . c ommerce,” 29 C.F.R. § 7 82.2(a)—“neither the name given to his position nor that given to t he work t hat h e does is controlling.” 29 C.F.R. § 782.2(b)(2) (citing P yramid Motor Freight Corp. v. Ispass , 330 U.S. 695, 707 (1947)). Rather, “ w hat is controlling is the c h a r a c t er of t he activities involved in the performance of [the employee’s] job.” 29 C.F.R. § 7 82.2(b)(2); see Levinson v. Spector Motor S erv. , 330 U.S. 649, 674-75 (1947) ( observing t hat “[i]t is t he character of the a ctivities rather than the p roportion of either the employee’s time or of his activities” that controls). As a “general rule,” if t he bona f

i de du t i e s o f t h e job performed by t he employee are in fact s u ch that he is (or, in the case of a member of a group of drivers, driver’s helpers, l oaders, or mechanics employe d b y a common carrier and engaged in s afety-affecting occupations, that he i s likely to be) called upon in the o r d i n a ry course of h is work to perform, either regularly o r from time to time, safety-affecting activities

. . . he comes wi t hin the exemption in all workweeks when he is employed a t such job.

. . . Where t h i s i s t h e case, the rule applies regardl e s s o f t he proportion of the e mployee’s time or of his activities which is actually devoted to such safety-affecting work in the particular workweek, and the e xemption will be applicable even in a workweek when the employee happen s to perform no work directly affecting “safety of operation.” 29 C.F.R. § 782.2(b)(3) ; see Songer , 618 F.3d a t 474. “On the o ther hand, where the continuing duties of the employee’s job have no substantial direct effect on such safety of operation or where such safety-affecting activities are so trivial,

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casual, and insignificant as to be d e minimis, the exemption will n ot apply to[the employee] in any w or k w e e k s o long as there is n o change in his duties.” 29 C.F.R. § 782.2(b)(3) (citing Pyramid , 330 U.S. at 707-08). To measure whether employees are “likely to be

. . . called upon in the ordinary course of [ their] work to perform

. . . safety-affecting a ctivities” that are interstate in nature, 29 C.F.R. § 782.2(b)(3), we look to whether t he employees “could reasonably have been expected to [engage] in int e r s t ate commerce

c onsistent with their job duties.” Songer , 618 F.3d at 4 76 (finding that a reasonable exp e c t a t i o n a r o s e w h e n about 2.75 percent of “loads were transported

across state lines”); s ee Morris v. McComb , 332 U.S. 422, 433-34 (1947) (applying the MCA exemption to drivers who spent about 4 p ercent of t heir time transporting goods in i nterstate commerce); Starrett v. Bruce , 391 F.2d 3 20, 323- 24 (10th Cir. 1968) (applying the MCA exemption to a driver, e v en though the driver’s employer derived no income from interstate tr a n s p o rt, because the employer solicited interstate business and would have assigned the dri v e r to interstate trips if the employer had obtained such business). The parties d o not dispute that CTS satisfies the first requirement—being “subject to [the DOT’s] jurisdiction,” 29 C .F.R. § 782.2(a)— because it is a motor carrier that engages i n interstate commerce. R ather, the parties dispute the second requirement: w h e ther the FSEs engaged in activities that affected “the saf e ty of operations of motor vehicles in the transportation on t he public highways of passengers or property in interstate o r foreign c ommerce.” 29 C.F.R. § 782.2(a). Within the f ramework o f this second requirement, the parties do not contest that a n i ndividualized analysis i s appropriate to deter m i n e w hether Appellants h ave similar-enough duties to belong t o the class of employees that
engages in safety-affecting activities. The p arties o nly contest whether, in measuring the interstate activities of this class of employees, an “employee-byemployee,” “district-by-district,” or “company-wide” analysis is appropriate.

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We h old that a company-wide analysis is appropriate in this case because this court’s precedent effectively forecloses an employee-by-employee analysis, and the facts of this case, and arguments advanced by t he parties, do not support a district-by-district analysis. This court’s Songer decision declined to adopt an em p l o y e e-by-employee analysis. I n Songer , truck drivers sought overtime under the FLSA. 618 F.3d

a t 4 68. The drivers argued that “[s]imply being a n interstate driver f o r a commercial carrier is n ot enough

. . . a drive r m u s t be personally engaged in interstate transportation to be exempt.” A unanimous panel declined to adopt this argument, observing that t he “application of the MCA exemption to an employee ‘depends

. . . on the class of w o rk involved in the e mployee’s job.’” Songer , 618 F.3d at 472 (emphasis added) ( quoting 29 C

. F

. R

. § 782.2(a)). The
p a n el first observed that “Plaintiffs, as truck d rivers subject t o D O T requirements, are employed in positions that affect the operational safety of

m o t o r vehicles.” Songer , 6 18 F.3d at 4 73 (internal quotation marks omit t e d )

. Then, evaluating these drivers as a class, the panel f ound: t hat about 2.75 percent of the d rivers’ t rips w ere interstate; that the drivers’ employer indiscriminately assigned s uch trips; and that, therefore, the drivers “could reasonably have been expected to drive in interstate commerce consistent with their job duties.” See id . at 475-76. This is Songer ’s binding analysis: Plaintiffs assert that the S e c r e tary’s j urisdiction only applies to transportation across s tate lines, and therefor e that Defendants must demonstrate that each driver personally transported property by motor vehicle across state lines. But the S upreme Court held in Morris that the I n t e rstate Commerce Commission ( ICC), t h e predecessor to the DOT, had jurisdiction to regulate all o f defendant carrier’s drivers, even though two of the 42 drivers had not engaged in interstate trips during the relevant period, and that the drivers were not entitled to overtime under the FLSA. Morris , 332 U.S. at 434–36, 68 S.Ct. 131. In that case, the c arrier’s few interstate trips (4% of all trips during the r elevant period) w ere distributed indiscriminately to a ll drivers. Id. at 4 33, 68 S.Ct. 131. The S upreme 8 Case: 12-20194 Document: 00512663146 Page: 8 Date Filed: 06/13/2014No. 12-20194

Court noted that, in p ractical terms, the safety concerns facing a carrier w h o sent every driver on an interstate t rip would be t h e same if the carrier sent only some or most of its drivers on interstate trips. See id. at 434, 68 S.Ct. 131. Id. a t 474. The district court i n this case explicitly and closely adhered to our Songer decision’s reasonable expectation analysis. The district court c reat e d a c h art that listed each member of the B e l l w e t h er group, and included the member’s title, district, and start and e nd dates. Then the district court looked to each member’s job duties to find that, n otwithstanding t h eir different positions, members working as E Os, ST-Is, S T-IIs, SSTs, and SSs had sufficiently similar duties t o belong to a class of employees known as FSEs. Tellingly, the district court delimited this c lass by excl u d i n g F E-Is and SCs because there was “insufficient evidence about whether the FE-Is or the SCs engag e d i n s a fetyaffecting transportation duties and whether t here was a reasonable expectation that t heir work would affect the safety of i nterstate t ransportation.” T he district court further de l i m i ted t his class b y excluding F SEs who worked on offshore projects because “the factual record is c onflicting a nd t here re main o pen legal issues” as to whether offshore FSEs engaged in safety-affecting transportation activities affecting interstate commerce. 3 The d istrict court, after t his extensive individualize d m e t h o d o l o g y , t h en found: that 7 percent of projects company-wide required this class of employees to c ross s tate lines; t h at CTS assigned such interstate trips indiscriminately; and that, therefore, these employees had a “reasonable expectatio n ” t h a t t hey “ c ould be assigned to drive interstate.” 4

3 W e note als o the d is trict court’s f act- intens ive as ses s m ent even of thos e of f s h o r e em p loyees as to w hether they w ere, lik e Plaintif f Brous s ard , p rohibited f rom d riving.

4 Echoing Songer , the d is trict court em p has ized that “[ t] hes e em ployees have s im ilar job d uties , w ere or could have been called up on to drive in inters tate com m erce d uring their
em p loym ent, and receive p roject as s ignm ents that changed of ten. Any d river could have been
as s igned to an inters tate p roject at any tim e, ” and conclud ed that “the evid ence e s t a b l i s h es 9 Case: 12-20194 Document: 00512663146 Page: 9 Date Filed: 06/13/2014No. 12-20194

Given that this analysis adheres to the reasonabl e e xpectation approach of Songer , we c annot s a y that, after using an individualized analysis to form the class of employees know n a s l a nd-based FSEs, the district c ourt erred by not repeating the individualized analysis to measure the interstate activity of each member of the class. Relevant other Fifth Circuit a nd Supreme Court decisions are consistent with Songer

. For example, in Barefoot , a unanimous p anel found that twenty-six truck drivers engaged in interstate commerce even though “ the drivers c onceded that, a mong the twenty-six o f them,” only a bout “twenty trips w e re made across state lines.” See 1994 WL 5 7686, a t *3. Likewise, in Morris , the Supreme Court found that forty-three drivers, who, as a group, devoted “about 4% o f t heir time and e ffort

. . . t o services in interstate commerce,” engaged i n i n t e r s t a t e

commerce even though two of the drivers did not take i n terstate trips. 332 U.S. at 432-34. By contrast, the circuit court cases cited by Appellants in support of an employee-by-employee analysis are distinguishable. 5 Appellants a rgue that, by using “ singular n ouns and pron o u n s , ” the relevant statutes and regulations, including 29 U.S.C. §§ 207(a), 213(b) and 29 C.F.R. § 782.2, envision an employee-by-e m p l oyee analysis. Read in context, however, the use of singular terms suggests only that a district court should use

an i ndividual analysis to d etermine i f an employee b elongs t o a particular “class.” See, e.g. , 29 C.F.R. § 78 2

. 2 ( o b s e rving the exemption depends on “the

c l a s s of w ork involved in the employee’s job” and “extends to those class e s o f

that, objectively, there w as a reas ona b l e exp ectation that any CTS Field Service Em p loyee could be as s igned to d rive inters tate. ”

5 For exam ple, in Gol dberg v
. Fa ber Indus. , I nc. , the Seventh C ircuit d eclined to ap p ly the M CA exem p tion to d rivers bas ed , in p art, on the f act that the d riv e r s w ere as s igned to “d es ignated ” intras tate routes

. 291 F. 2d 232, 234 ( 7th C ir. 1961)

. By cont r a s t , in this cas e, i n t e r s tate routes w ere as s igned ind is crim inately. M oreover, the Seventh C ircuit i n G ol dberg p os itively ap p l i e d M o r ri s , w hich, as noted alread y, involved a group that had tw o non- inters tate d rivers

. See 291 F. 2d at 235. 10 Case: 12-20194 Document: 00512663146 Page: 10 Date Filed: 06/13/2014No. 12-20194

employees” who engage in safety- a ffective activities) (emphases added). As discussed a bove, b y finding that c ertain employees had similar-enough duties to belong to a class of e mployees known a s FSEs, and then by limiting this class, the district court used such an analysis. 6 Because Songer foreclos e s a n e m p l o y e e - b y - e m p l o y e e a n a l y s i s , a nd because Appellants do not provide a persuasive r eason to d epart from Songer , the question narrows to whether the district should have used a district-by-district

or company-wide analysis to measure the i n t e r s t ate activities of land-based FSEs. Given the a rguments advanced by the parties, and the facts of the case, a company-wide analysis was appropriate. The FLSA provides that overtime-pay requirements and exemptions apply only t o an “employer. ” See 29 U.S.C. § 207(a)(1). The district c ourt found that CTS “ w as Plaintiffs’ o nly ‘employer’ during the relevant time periods; Plaintiffs were not e m p loyed by the various districts.” Appellants d id not argue in district c ourt that the districts were their employers, and they do not challenge on appeal the finding that CTS “was [their]

o n l y ‘employer.’” Appellants therefore have waived any argument to t h e contrary. 7 See F.D.I.C. v. Mijalis , 15 F.3d 1314, 1326-27 (5th Cir. 1994).

6 Ap p ellants als o m aintain that CTS is j ud icially es top p ed f rom arguing f

or a com p anyw id e analys is becaus e CTS argued f or an em p loyee- by- em p loyee analys is in Ya kl i n v
. W- H Energy Serv s. , Inc. , N o. C- 07- 422, 2008 WL 1989795, at *1 ( S. D

. Tex. M ay 2, 2 008) ( unp ublis hed ). To the extent that this es top p e l a r g u m e n t is w ithin the s cop e of our lim ited interlocutory review , see Ta nks , 417 F. 3d at 461, it is unp er s u a s i ve. A lthough “jud icial
es top p el is not governed by inf lexible p rerequis ites , ” its ap p lication g enerally requires , am ong other things , that “a court accep ted the p rior p os ition. ” Lov e v
. Tyson Foods, Inc. , 677 F. 3d 258, 261 ( 5th Cir. 2012) ( internal quotation m a r k s o m i t t ed )

. Even if CTS d id argue f or an em p loyee- by- em p loyee analys is in Ya kl i n , Ap p ellants d o not argue, and the Ya kl i n op inion d oes not sup p ort, that the Ya kl i n court accep ted CTS’ argum ent. See 2008 WL 1989795, at *3.

7 The FLSA d ef

ines an “em p loyer” to “includ e[ ] any p ers on”— that is , “an ind ivid ual, p artners hip , as sociation, corp oration, bus ines s tr u s t , legal rep res entative, or any organized gr oup of pers ons , ” 29 U. S. C. § 203( a)

— “acting d irectly or ind irectly in the interes t of an em p loyer in relation to an em p loyee. ” 29 U

. S. C. § 203( d )

. Becaus e w e find that waiver ap p lies , w e d ecline to ad d res s w hether the d is tricts w ere “em p loyers ” und er this d ef inition.
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By waiving t his textual argument, Appellants’ o p position to a companywide analysis reduces to their conten t i o n that “the percentages of interstate travel for [ so m e d istricts] tell courts nothing about the reasonable expectation of a worker dispatched from [other districts].” H owever, S onger l ooks at the reasonable expectations of the employees as a class , ev e n if, in doing so, the effect is to apply the MCA exemption to employees who rarely, or never, engage in interstate commerce. See 618 F.3d at 472-76. Songer does n ot instruct us to subdivide a c l a s s o f e m p l oyees by geography, and the facts o f this case do not support such a n artificial division. For example, the d istricts: operated under

a single DOT n umber; were not independent legal entities; borrowed personnel and equipment from each o ther; and solicited and accepted p rojects outside their geographic areas. A ccordingly, as t he district court found, “[t]here i s insufficient evidence or legal authority

. . . to treat th e d i s t r i c t s s eparately i nstead of conducting the MCA E xemption analysis based on CTS as a single ‘ employer.’” 8

8 With the highes t res p ect, w e are unconvinced by the d is s enting op inion’s ins is tence that p reced ent “p rohibit s ” courts f rom d eterm ining a p articular em p loyee’s reas onable exp ectation by r e f

e r ence to a clas s of s im ilarly s ituated em p loyees

. Post , at 14. Ind eed , the d is s ent its elf us es this “p rohibited ” m od e of analys is by clas s if ying em p loyees by d is tricts

. In
w hat it d eem s “The Prop er Analys is , ” the d is s ent d oes not “m ak e a d eterm ination v el non f or each plaintif

f

- em p loyee, ” but ins tead d ivies up the plaintif f s by d is trict: “the vas t majority of j o b s hand led by the Alice, Angleton, Brid gep ort, and Brous s ard dis tricts w ere p ur e l y i n t r a st a t e jobs

. ” Post , at 30, 31

. As evid ence of the reas onable exp ectation of a p articular em p loyee, the d i s s e nt look s to the p ercentage of each di stri ct’s jobs that w ere inters tate: “in Alic e a n d Brid g ep ort, l ess tha n one percent of t h e jobs hand led by thos e d is tricts d uring the p eriod record ed w ere inters tate. ” Post , at 31. The d is s ent conclud es its d is trict- by- d is trict analys is : “Bas ed on this evid ence, a reas onable f actf ind er could determ ine that the lik elihood of thes e f ield s ervice em p loyees in the Alice, Ang leton, Brid g ep ort, and Brous s ard d is tricts d riving inters tate is s o m inim al and rem ote, they cannot be ‘reas onably exp ected ’ to be ‘called up on in the ord inary cours e of [ their] w ork to [ d rive inters tate]

. ’” Post , at 32 ( quoting Songer , 618 F. 3d at 474)

. The d is s ent m ay dis agree w ith our choice of clas s if ication, p ref

erring a d is trictby- d is t r i c t c las s to com p any- w id e clas s , but it is s till utilizing clas s if ications in its analys is

. The d is s ent f

urther d oes not convincingly exp lain how its p rop o s e d i nd ivid ualized
m ethod ology coincid es with S onger or M orri s
. As w e e x p lained , M orri s f ound j uris d iction to regulate “all of d ef

end ant carrier’s d rivers , even though tw o of the 42 d rivers had not engaged in inters tate trip s
. ” Songer , 618 F. 3d 467. If M orri s ap p lied an “ind ivid ualized ” as s es s m ent of the tw o em p loyees that had not engaged in inters tate trip s , it could not have f ound that thes e em p loyees had a reas onable exp ectation o f engaging in inters tate trip s : they had not 12 Case: 12-20194 Document: 00512663146 Page: 12 Date Filed: 06/13/2014No. 12-20194

In sum, the district court di d n o t err in using a company-wide analysis because this court’s precedent effectively precludes an e m ployee-by-employee

a n a l y s i s, and b ecause neither the parties’ arguments, nor the relevant facts, support a district-by-district analysis. 9 CONCLUSION Accordingly, w e AFFIRM the dis t r ict court’s application of the MCA exemption.

d one so bef

ore. It is only by ref

erence to other em p loyees ’ exp erience that M orri s ’s conclus ion
m ak es sens e. The dis s ent r e v e a l i n gly exp lains that Songer “m ad e the com m on s ens e obs ervation that, becaus e of com pany p olicies that were f a ctua l l y co mmo n t o al l em

pl oyees ( i

. e. , the ind is crim inate as s ignm ent of inters tate trip s ) , ea ch and ev ery em p loyee, all of w hom had the sa m e lik elihood of d riving inters tate, w a s r e as onably lik ely to d rive inters tate. ” Post , at 24. What the d is s ent f ram es as a “com m on s ens e obs ervation” we call a clas s - bas ed analys is ; there is a m inim al s em antic gap betw een our view s. M oreover, the dis trict court m ad e this
e x a c t “com m on s ens e obs ervation” w hen it found that “[ t] hes e em ployees have sim ilar job d uties , w ere or could have been called up on to d rive in inters ta t e c o m merce d uring their
em p loym ent, and receive p roject as s ignm ents that changed of ten. Any driver could have been
as s ig n e d t o an inters tate p roject at any tim e. ” Accord ingly, both of our op inions us e clas s if ications to d eterm ine w hether a p articular em p loyee has a reas onable exp ectation. We
s im ply part w ays over the relevant clas s of com paris on, and the f actual conclus ion reached by the d is trict court, “that the evid ence es tablis hes that, ob j ectively, there w as a reas onable exp ectation that any CTS Field Service E m p loyee could be as s igned to d rive inters tate. ”

9 CTS als o argues that the d is trict court erred by extend ing its January 11, 2012 rulings to all Plaintif

f s , and not jus t the Bellw ether group
. Even if this argum ent is w ithin the s cop e of our lim ited interlocutory review , see Ta nks , 417 F. 3d at 461, it is unp ers uas ive. A p p ellants rely on an Eleventh Circuit cas e, H oga n v
. A l l s t a te Insura nce Co. , f or the p rop os ition that Fed eral Rule of Civil Proced ure 5 6 ( c ) r e q u i r es that “a m inim um 10- d ay notice

. . . m us t be
e x p l i c i t l y g i ven to a l l p laintif f s , ” and not jus t “tes t p laintif f s
. ” 361 F. 3d 621, 628 ( 11th C ir. 200 4 ) ( p e r curiam )

. H ow ever, Rule 56 w as am end ed in 2010— s ubs equent to the H oga n d ecis ion, but bef

ore the d is tri c t court’s January 11, 2012 rulings

— to rem ove the ref erenced ten- d ay notice requirem ent. See A tki ns v
. Sa l a z a r , 677 F. 3d 667, 678 n. 15 ( 5th C ir. 2011) ( per c u r i a m )

. Further, C TS reques ted that the d is trict court’s rulings ap ply to all plaintif f s i n a M arch 2011 f

iling, and then did s o again in its m o t i o n f or recons id eration. As a res ult, attorneys f

or the non- Bellw ether P laintif f s , w h o als o rep res ented the Bellw ether Plaintif f s , had “a f ull op p ortunity to argue agains t” the ap p lication of the d is trict court’s rulings to all Plaintif f s
. See A tki ns , 677 F. 3d at 681. 13 Case: 12-20194 Document: 00512663146 Page: 13 Date Filed: 06/13/2014No. 12-20194

JAMES L. DENNIS, Circuit Judge, dissenting: I respectfully disse n t b e c a u s e the district c ourt and t he majority of this court have departed from controlling Supreme Court and circuit precedent and have misinterpreted and misapplied Department of Labor ( “DOL”) r e g u l a tion 29 C.F.R. § 782.2(a) and t his court’s decision in Songer v. Dillon Resources, Inc. , 618 F.3d 467 (5th Cir. 2010), to except m ore than a hundred employees from overtime wage protection under the Fair Labor Standards Act (“FLSA”). The issue is whether the Motor Carrier Act ( “MCA”) exemption to the FLSA exce p t s the oil-well-service plaintiffs-employees here from overtime protection because their i n d i v i d u a l j o b a c t i v ities can conceivably affect the safety of interstate t ransportation. If an employee is subject t o the jurisdiction of the Depar tment of Transportation (“DOT”) under t h e MCA t o regulate the qualifications and m aximum hours o f service of the employee, then that employee loses the FLSA’s protection over overtime pay. A n employee is subject to such MCA jurisdiction o n ly, inter alia , if he is reasonably likely to carry out job d u ties affecting the safety of interstate transportation (or international transportation, although such is not involved in this case). In Pyramid Motor Freight Corp. v. Ispass , 330 U

. S

. 6 9 5 (1947), the Supreme Court held t hat, when the MCA exemption is invoked as a defense in

an F LSA action for overtime pay, (1) the district court must “determine whether

or not the activities o f each [employee]” are r e asonably likely to affect the safety of interstate transportation and that ( 2) t he court m a y d eclare exempt from overtime wage protection on l y “ t h o se [employees] who are engaged in such activities.” Id

. a t 707-08 (emphasis added). 1 Later that s ame year, in M orris v.

1 As f urther exp lained below , f or an em p loyee to be “engaged in” activities that af f ect the s af ety of inters tate trans p ortation means that “the em p loyee’s job d uties are such that he is ( or i s l i kel

y to be ) called up on in the ord inary cours e of his w ork to p erf orm s af ety- af f ecting activities

. ” E. g. , Songer , 618 F. 3d at 474 ( quoting 29 C. F. R. § 782. 2( b) ( 3) ) ( alteration om itted , em p has is ad d ed )

. 14 Case: 12-20194 Document: 00512663146 Page: 14 Date Filed: 06/13/2014No. 12-20194

McComb , 332 U.S. 422 (1947), the Court r eaffirmed t hat, in “an action to recover overtime compensation for individual employees,” it is “ necessary t o determine”

“ t h e e x tent to which” an employee seeking overtime pay carried out activities reasonably likely to affect the safety of interstate transportation. Id . at 430. Thus, under the Supreme Court’s j urisprudence, MCA j urisdiction turns

o n the individual job circumstances of “each” employee seeking overtime p a y
. Pyramid Motor Freight Corp. , 330 U.S. at 707. An employee loses the FLS A ’s
pro t e c tion over overtime pay under the MCA exemption only if the e mployee, based on the circumstances of his j ob, is reasonably likely to carry out activities affecting the safety o f interstate transportation operations. See also Mitchell v. C & P S ho e C orp. , 286 F.2d 109, 114 (5th Cir. 1960) (holding t hat MCA jurisdiction turns on the “activities of the particular e mployee, r ather than the employer”); accord Opelika Royal Crown Bottling Co. v. G oldberg , 299 F.2d 37, 42-43 (5th Cir. 1962). The Supreme Court’s j urisprudence requiring individual

a n a l y s i s of each employee’s actual job circumstances for purposes of the MCA exemption has not been overruled or modified. Here, however, the district court and the majority have failed to focus on the circumstances o f each employee’s actual job, as required by law, to determine whether that employee i s exempted from overtime w age protection. I nstead, they h ave erroneously concluded that, w h e n a district c o urt deems multiple employees’ job d uties and a ssignments to be, i n the court’s opinion, “sufficiently

s i m i l a r , ” the c ourt may lump all of the employees together in a single “group” (the district court’s word) or “class” (the majority’s word) 2 so as to determine on

a “company-wide basis” the applicability of the MCA exemption “to that group

as a w hole.” 846 F. Supp. 2d 678, 6 94-95; ante , at 9-10. According to the district

2 I note in the interes t of clarity that this cas e is not a clas s action. See Fed

. R. Civ. P. 23 ( clas s action rules )

. T he d is tinct “clas s ” concep t the m ajority creates tod ay is unique to the M CA exem p tion to the FLSA and is unrelated to clas s actions und er Rule 23. 15 Case: 12-20194 Document: 00512663146 Page: 15 Date Filed: 06/13/2014No. 12-20194

court, this “group”-based analysis that is c o nducted on a “company-wide basis” allows the court t o look at the job activities of t he national company’s W yoming employees, who are not parties to this litigation seeking overtime pay, and to declare t hat, based on their activities, the Texas and Louisiana employees in this

case are exempted from overtime wages. The d i s t r i c t court recognized that, factually, the Wyoming employees are distinct f r o m t h e Texas a nd L ouisiana employees. Specifically, the district court recognized th a t, a s a matter of fact,
t he Wyoming employees a re very likely to affect the safety of i n ters t a t e transportation in the course of the i r j o bs and the Texas and the L ouisiana employees are not. Nevertheless, the district court c oncluded that, as a result

o f “ c o m p a n y - w i d e , ” “group-based” analysis, the W yoming employees, w h o a r e n o t seeking o vertime wages in t his case, and the Texas a n d Louisiana employees, who are, should a ll b e lumped together and should all be d e nied overtime wage protection despite their factual d i f f e r e n c es. The majority of this court now affirms. 3

3 The m ajority characterizes the d if f erences in o u r analys is as a “m inim al s em antic gap
. ” A n t e , a t 1 3 n. 8. Res p ectf ully, it ap p ears that the m ajority has , w ith the bes t of intentions , m is tak enly elid ed the d iverge in our view s
. It is uncontrovers ial and I of cours e agree that, w hen p a r t i c u l a r e vid ence is f a ctua l l y com m on to multip le em p loyees , s uch evid ence is ind eed relevant t o t h e i n d ivid ual job circum stances of m ultip le em p loyees

. E. g. , if an em p loyer ap p lies a p articular com pany p olicy to all of its em ployees , then s uch p olicy obvious ly illum inates the ind ivid ual job circum s tances of each em p loyee. Such analys is , how ever, is not
w hat the d is trict court here did

. As f urther exp lained below , the dis trict court recognized that the evid ence regard ing the job circum s tances of the Wyom ing em ployees d if f ered m aterially f rom the evid ence regard ing the job circum s ta n c e s of the Texas and Louis iana em p loyees

. Look ing at s tatis tical evid ence, the d is trict court conclud ed that the Wyom ing em p loyees w ere very lik ely to carry out job activities af f ecting the s af

ety of inters tate t r a n s p ortation. And , look ing at other s tatis tical evid ence, the d is trict court f u r t h e r conclud ed that many of the Texas and Louis iana em p loyees w ere very unlik ely to d o s uch. D es p ite the f actua l d if

f erences , how ever, the d is trict court r u l e d t h at, a s a m a t ter of l aw , the lik elihood of the Wyom ing
em p loyees af

f ecti n g i n t e r s tate trans p ortation saf ety s hould be im p uted to the T exas and Louis iana em p loyees

. The d if f erence betw een the m ajorit y ’ s analys is and m y ow n is not a s em antic ques tion as to how to ref er to evi d e n c e that is f actually com m on to m ultip le

( continued

. . . ) 16 Case: 12-20194 Document: 00512663146 Page: 16 Date Filed: 06/13/2014No. 12-20194

Thus, in g ranting and affirming summary judgm e n t f o r Coil Tubing Services, the employer h ere, my colleagues m istakenly have failed to require the employer to c a r r y i ts heavy burden under its affirmative MCA e xemption defense to show, on an individual basis, that e a c h e m ployee’s job activities demonstrate that h e is exempt from FLSA overtime protection. As support for this “group”- or “class”-based analysis that is cond u c t e d on a “company-wide basis,” the district court and majority point to the DOL’s § 782 r e gulations and this court’s recent Songer decision. The district court and t he majority, unfortunately, have misread these sources. The DOL’s § 782 regula t i o ns and Songer did not abrogate, nor could t h e y h ave abrogated, the Supreme Court’s jurisprudence requiring i n d i v idual analysis of each employee’s job circumstances. Because the district court’s legal errors skewed and u ndermined its entire decision, its summary judgment should h a v e b e e n r e v e r s ed r ather than affirmed. I. I ntroduction Under the F LSA, e mployers a re generally prohibited f rom “employ[ing]

a ny o f [ their] employees” “for a workweek longer than forty hours unless suc h employee receives [time-and-a-half com p e nsation for the o vertime hours].” 29 U.S.C. § 207(a)(1). 4 U nder the MCA exemption to the FLSA, that e ntitlement

3 (

. .. continued )
em p loyees

. The d if

ference is a s ubs tantive one, v i z
. , w hether courts are p erm itted und er the M CA exem p tion to us e a “group ”- or “clas s ”- bas ed analys is ( or how ever els e it m ay be called ) that im p utes “f

acts , ” as a m atter of legal f iction, to an em p loyee w hen s uch ‘f acts ” are belied by the evid ence.

4 The FLSA’s p rotection over overtim e w ages reaches only th o s e e m p loyees w ho are “engaged in com m erce or the p rod uction of good s for com m erce, ” and “com m erce” “m eans trad e, com m erce, trans portation, trans m is s ion, or com m unication am ong the s everal States
or betw een any State and any p lace outs id e thereof

. ” 29 U

. S. C. §§ 207( a) ( 1) , 203( b)

. H ere, it is und is p uted that the em p loyees at is s ue in this cas e are “engaged in com merce” w ithin the ( continued

. . . ) 17 Case: 12-20194 Document: 00512663146 Page: 17 Date Filed: 06/13/2014No. 12-20194

to overtime pay “shall n ot apply with r espect to” “ any employee with r e spect to whom the Secretary of Transportation [that is, the D OT] h as power 5 to establish qualifications a nd m aximum hours of service pursuant to the provisions of

s e c t ion 31502 of Title 4 9 [that is, the MCA].” Id

. § 2 13(b)(1). Thus, u n d e r t h e FLSA, an employee i s entitled to overtime p ay unless t he e mployee falls within the scope of the DOT’s regulatory jurisdiction u nder t h e M C A or is o therwise exempt from the FLSA for reasons not involved in this case. 6

4 (

. .. continued )
m eaning of the FLSA. T he d is p uted is s ue is r a t h e r w h ether the FLSA’s p rotection over overtim e wages d oes not ap ply to t h e e m p loyees becaus e the D OT “has p ow er to es tablis h qualif ications and maxim um hours of s ervice [of them ] p urs uant to the provis ions of s ection 31502 of Title 49. ” Id

. § 213( b) ( 1)

.

5 It is w ell settled that the M CA exem p tion turns on w hether the DO T has p ow er— i

. e. , legal juris d iction— to regulate the wo r ke r ’ s q u a l i f i c a t ions and m axim um hours of s ervice und er the M C A, not w hether the D OT has actually exercis ed its p ow er to d o s o. Southl a nd G a sol i ne Co. v
. B a

yl ey , 319 U

. S. 44, 47- 48 ( 1943) ; Songer , 618 F. 3d at 472.

6 Although the s cop e of the M CA exem p tion t o t h e F L SA and the scop e of the D O T’s regulatory juris diction are generally one and the s am e, there m ay be an excep tion to that rule f ollow ing pas s age of the SAFETEA–LU Technical Corrections Act of 2008, Pub. L

. 110–244, 122 Stat. 1572, w hich, in p art, p rovid es generally that, f rom the d ate of the act’s enactm ent, June 6, 2008, the M CA exem ption does not a pp l y to em p loyees w ho w ould otherw is e f all w ithin its am bit if the follow ing requirem ents are m et:

( 1) [ the em p loyee] i s em p loyed by a m otor carrier or m otor p rivate carrier ( a s s u ch term s are d ef ined by s ection 13102 of title 49, U nited States Cod e, as am end ed by s ection 305) ; ( 2) [the em p loyee’s ] w ork , in w hole or in p art, is d ef ined

— ( A) as that of a driver, d river’s help er, load er, or m echanic; and ( B) as af fecting the saf

ety of op eration of m otor vehicles w eighing 10, 000 pound s or les s in trans portation on p ublic high w ays in inters tate or f

oreign com m erce, excep t vehicles

— ( i) d es igned o r u s ed to trans port m ore than 8 p as s engers ( includ ing the d river) f or com p ens ation; ( ii) d es igned or us ed to tr a n s p o r t m ore than 15 p as s engers ( includ ing the d river) and no t us ed to trans p ort p as sengers f or com p ens ation; or ( iii) us ed in trans p orting m aterial f ound by the S e cretary of Trans p ortation to be hazard ous und e r s ection 5103 of title 49, ( continued

. . . ) 18 Case: 12-20194 Document: 00512663146 Page: 18 Date Filed: 06/13/2014No. 12-20194

MCA jurisdiction (that is, t h e jurisdiction of the DOT under the MCA to establish the qualifications and maximum hours of s ervice of e m p l o y e es) has three elements. First, under 49 U.S.C. § 31502(b), the DOT may regulate the qualifications and maximum hours of s ervice of only t h o s e w o r k ers who are employed by either a “motor carrier” or a “motor private c a r r i e r .” 7 A “motor carrier” is “a p erson providing motor vehicle transportation for c ompensation.” Id

. § 13102(14). A “motor private carrier” is generally a person who transports his own property “ for sale, l e a s e , r ent, or bailment or to further a commercial enterprise.” Id . § 13102(15). 8 Second, the DOT’s jurisdiction “is limited to those employees whose activities affect the safety of [ the transportation] operation,” and the D OT “has

6 (

. .. continued ) U nited States Cod e, and t r ans p orted in a quantity requiring p lacard ing und er regulations p res cribed by the Secretary und er s ection 5103 of title 49, U nited States Cod e; and ( 3) [the em p loyee] perf orm s d ut i es on m otor v ehicles w eighing 10, 000 p ound s or les s
. Id

. § 306( a) , ( c )

. F o r a d is cus sion of the SAFETEA- LU Technical Corrections A ct, s ee, e. g. , M cCa l l v. D i sa bl ed A m
. V etera ns , 723 F. 3d 962 ( 8th Cir. 2013)

. This interlocutory ap p eal d oes not ad dres s the d is trict court’s res olution of the p laintif f s’ p os t- June 6, 2008, claim s to w hich the SAFETEA- LU Technical Corrections Act a p p l ies , but rather only the d is trict court’s
res olution of the p re- June 6, 2008, claim s, and theref ore, the act is not im p licated here.

7 Section 31502( b) p rovid es : The Secretary of Trans p ortation may pres cribe requirem ents f or— ( 1) qualif

ications and m axim um hours of s ervice of em p loyees of , and s af ety of op eration and equip m ent of , a m otor carrier; and ( 2) qualif

ications and m axim um hours of s ervice of em p loyees of , and s tand ard s of equip m ent of , a m otor p rivate carrier, w hen need ed to prom ote s af ety of op eration.

8 “The term ‘m otor p rivate carrier’ m eans a pers on, other than a m otor carrier, trans p orting p rop erty by m otor vehicle w hen ( A) the trans p ortation is as p rovid ed in s ection 13501 of this title [ see i nf ra , note 10] ; (B) the pers on is the ow ner, les s ee, or bailee of the p rop erty being trans p orted ; and ( C) the prop erty is being trans p orted f or s ale, leas e, rent, or bailm ent or to f

urther a com m ercial enterp ris e. ” I d. § 13102( 15)

. 19 Case: 12-20194 Document: 00512663146 Page: 19 Date Filed: 06/13/2014No. 12-20194

no jurisdiction to regulate the qualifica t i o ns or hours of service of any others.” United S tates v. A m
. Trucking Ass’ns , 310 U

. S. 534, 553 (1940). To determine wheth e r an employee’s job a ctivities affect the safety of the transportation operation, the c ourts have clarified the relevant inquiry to be whether “the employee’s job duties ar e s u c h t h at he is (or i s likely to be) called upon in the ordinary course of his work to perform safety-affecting activities.” E.g. , Songer , 618 F.3d at 474 (quoting 29 C.F.R. § 782.2(b)(3)) (alteration omitted). Put another way, the question is whether the employee “can be reasonably expected” to e ngage in activities tha t a f f ect the s afety o f t ransportation. Id

. If the likelihood of engaging in s a fety-affecting activities is too remote and improbable, then t he employee will not fall under M CA jurisdiction. Coleman v. Jiffy June Farms, Inc. , 324 F

. Supp. 664, 670 (S.D. A la. 1970), a ff’d , 458 F.2d 1139 (5th Cir. 1971); Kimball v. Goodyear Tire & Rubber Co. , 504 F. Supp. 5 44, 548 (E.D. T ex. 1980); Yaklin v. W-H Energy Servs., Inc. , No. 07-CV-422, 2008 WL 4692419, at *6 (S.D. Tex. Oct. 22, 2008). 9 Third, the DOT’s j uris d i c t i o n r e a c h e s o n l y ( 1 ) i n t e r n a t i o n a l t r a n s p o rtation, i.e. , transportation that crosses t h e n a t i o n a l b o r d e r , ( 2 ) i n t e r s t a t e t r a n s p o r t a t i o n, i.e. , transportation that crosses state b orders, or (3) i ntrastate transportation of goods in the f

low of interstate commerce. 49 U.S.C. §§ 31502(a), 13501; Songer , 618 F.3d at 4 72. 1 0 Gener a l l y s p e a king, there must be an international or

9 The D O T has cre a t ed a “f our- m onth rule” und er w hich “[ e] v id ence of d riving in inters tate com m erce or being s ubject to being us ed in inters tate com m erce” is “p roof ” that the d river f alls und er M CA juris d iction “f or a 4- m onth period f

rom the d ate of the proof

. ” 46 Fed

. Reg. 37902.

1 0 Section 31502( a) p rovid es , “This s ection ap plies to trans portation— ( 1) d es cribed in
s ections 13501 and 13502 of this title; and ( 2) to the extent the trans p ortation is in the U nited States and is betw een p laces in a foreign country, or betw een a p lace in a f oreign country and
a p lace in another f

oreign country. ” ( continued

. . . )

20 Case: 12-20194 Document: 00512663146 Page: 20 Date Filed: 06/13/2014No. 12-20194

interstate nexus of s ome sort, as t h e DOT’s j urisdiction d o es not r e ach purely intrastate transportation. E.g. , Kline v
. Wirtz , 373 F.2d 281, 282 (5th Cir. 1967); Walling v. Comet Carriers , 151 F.2d 107, 110 (2d Cir. 1945). In sum then, under the M CA, the D OT may r e g ulate the q ualifications and maximum hours of service only for (1) employees o f a “motor carrier” or “motor private carrier” (2) whose a c t i v ities a ffect the safety of transportation, (3) and that transportation has an international or interstate nexus. Here, there is n o question o f the first t wo elements. First, there is no question that Coil Tubing Services, an oil-well-service company, requires its emplo y e e s i n the course of their jobs to t r ansport the company’s p roperty, including c hemicals, tools, and coi l tubing equipment, between the company’s

1 0 (

. . . continued ) Section 13501 p rovid es : The Secretary and the B oard have juris d iction, as s p e cif ied in t h is p art, over trans p ortation by m otor carrier and the p rocurem ent of that trans p ortation, t o the extent that p as s engers , prop erty, or both, are trans p orted by m otor carrier— ( 1) betw een a p lace in— ( A) a State and a p lace in another State; ( B) a State and another place in the s am e State through another State; ( C) the U nited States and a p lace in a territory or p os s es s ion of the U nited States to the extent the trans p ortation is in the U nited States ; ( D ) the U nited State s and another p lace in the U nited States through a f

oreign country to the extent the trans portation is i n the U nited States ; or ( E) the U nited States a n d a p lace in a f oreign country to the extent the trans p ortation is in the U nited States ; and ( 2) in a res ervation und er the exclus ive juris diction of the United States or on a p ublic highw ay. U nd er our cas e law , § 13501 als o im p lied ly includ es w i t h i n its am bit “the intras tate trans p ort of good s in the f low of inters tate com merce. ” Songer , 618 F. 3d at 4 7 2 ; Shew v
. Southl a nd Corp

. , 370 F. 2d 376, 380- 81 ( 5th Cir. 1966)

. Section 13502 relates to Alas k a and is irrelevant here.
21 Case: 12-20194 Document: 00512663146 Page: 21 Date Filed: 06/13/2014No. 12-20194

district offices and the jobsites, t he customers’ wells, and therefore qualifies as

a “motor private carrier” under the statute. See Sinclair v. Beacon Gasoline Co. , 447 F. Supp. 5, 10 (W.D. La. 1976), aff’d , 571 F.2d 978 (5th Cir. 1978) (holding that “ a n atu r a l gas well servicing company whose drivers carry tools and equipment in company-furnished pickup t rucks

. . . is private carrier of property by m otor vehicle”). S e cond, although t he principal job of the employees here is to service the customers’ oil wells and that, by itself, does n ot have an affect on the s afety o f transportation, t he employees also transport C oil Tubing S ervices’s property, i.e. , the equipment, etc., to the j o b s i t e v ia motor vehicle, a nd “[i]t is obvious that one who drives a vehicle” “directly affects the safety of such operations as long as he is driving.” C rooker v. Sexton Motors, Inc. , 469 F.2d 206, 209 (1st Cir. 1972); s ee also Songer , 6 18 F.3d at 4 73. Thu s , t h e r e i s n o question that, as the employees here are required to d rive motor vehicles, they affect the safety of transportation w h e n doing so. The third requirement for MCA jurisdiction is the interstate nexus, i.e. , that the employee’s job activities

are s uch that the employee is reasonably l ikely to affect the safety of interstate , not mere l y i n t rastate, transportation. 1 1 Whether e ach employee here is reasonably likely to d rive interstate a nd thus affect the s a f e t y of interstate transportation is the disputed issue in this case.

1 1 There is no contention in this cas e that Coi l T u b ing Services em ployees work internationally or trans p ort good s in the f low of inters tate com m erce. Thus , the only ques tion here is w hether an em p loyee’s actual job activities af f ect inters tate trans p ortation s af ety. 22 Case: 12-20194 Document: 00512663146 Page: 22 Date Filed: 06/13/2014No. 12-20194 II. The District Court’s and Majority’s Flawed

“ Group”- or “Class”-Based Analysis

A. From November 2005 through November 2008, Coil Tubing S ervices employed t he 191 plaintiffs-appellees in this case as “ f ield service employees” tasked with servicing clients’ o il wells. During the relevant period, the c ompany organized its business into six “districts”: the “Alice,” “Angl e t o n ,” and “Bridgeport” d i s t r i cts in Texas, the “Broussard” and “Bossier City” districts in Louisiana, and the “Rock S p rings” district in Wyoming. However, none of the plaintiffs in this case worked out of t h e B o s s ier C ity or Rock S prings districts; they all worked out of t he Alice, Angleton, B ridgeport, a nd B roussard districts. See 846 F. Supp. 2d a t 686 (listing employees, titles, district assignments, and start and end dates of bellwether plaintiffs). Initially, i n its first summary-judgment ruling that was later v acated and supplanted by the decision n ow under review, 1 2 the district court held t hat there

was a reasonable likelihood of employees i n t h e A n g l e t o n a n d Broussard districts driving interstate, a nd, thus, they fell under the MCA and w ere not entitled to FLSA ove r t i m e pay. But, the district court further held that the likelihood of employees in the Alice and Bridgeport districts driving interstate was “so low” that there was not an “ objectively r easonable expecta t i o n ” of those employees driving interstate, a nd, thus, they did not fall under the MCA exemption. Coil Tubing Services argued that employees in all o f the districts should fall under the MCA because, i n all of the company’s districts nationwide, approximately

seven percent of the “land project” (as o pposed to offshore) jobs “required one or

1 2 The d is trict court’s f irs t s um m ary- j ud g m ent ruling has not been p ublis hed but it is includ ed in the record on ap p eal. See R. 7233- 97. 23 Case: 12-20194 Document: 00512663146 Page: 23 Date Filed: 06/13/2014No. 12-20194

more service crews to m obilize coil tubing equipment across state lines.” But the district court, in its first decision, agreed with the plaintiffs that the company’s

seven percent “aggregate” figure was “skewed by the extremely l a rge number of interstate projects handled by the Rock Springs District” in Wyoming, in which

none of the plaintiffs actually worked. “ M o r e t h a n 56% of the R ock Springs projects were out-of-state,” the district court explained, “while the other districts had f a r fewer interstate projects.” By contrast, the district court proceeded to explain, in Alice and Bridgeport, less than one p ercent of the j o b s handled in those districts d uring the relevant time were interstate; in Angleton, less than two percent of the jobs were interstate; and, in Broussard, around five percent of the jobs were interstate. After the district court’s first ruling, Coil Tubing Services m oved the court to reconsider, and the court did. In its second decision, w hich i s now under review, the district court c ited regulations, codified at 29 C

. F.R. § 782, of the DOL, t he agency charged wi t h enforcing the F LSA. 8 46 F. Supp. 2d at 690. 1 3 Those regulations o f the DOL set out “the construction of t he law [regarding the MCA exemption] which the [ DOL] believes to be correct.” 29 C .F.R. § 7 82.0. The regulations state, “ [t]he [ MCA exemption] depends both on the class to which his

1 3 As an initial m atter, the d is trict court should have recognized that the DO L d oes not have authority to d ef

ine the s cop e of M CA juris d iction, as the D O L’s regulations ack now led ge. 29 C. F. R. § 782. 1( a) ( “The Fair Labor Stand ard s Act conf ers no authority on the Secretary of Labor or the Ad minis trator to extend or res trict the s cop e of this exem p tion. ”)

. Accord ingly, the D O L’s view s on the s cop e of M CA juris d iction are not entitled to def erence f rom the courts

. Lev i nson v
. Sp ecter Motor Serv

. , 330 U

. S. 649, 676- 77 ( 1947) ; Pa cka rd v
. P ittsburgh Tra nsp
. Co. , 418 F. 3d 246, 251 n. 5 ( 3d Cir. 2005) ; Troutt v
. Sta v ol a Bros. , Inc. , 107 F. 3d 1104, 1108 n. 1 ( 4th Cir. 1997) ; Benson v
. U ni v ersa l A m bul a nce Serv

. , Inc. , 675 F. 2d 783, 785 ( 6th C ir. 1982) ; Johnson v
. H i x Wrecker Serv

. , I nc. , 651 F. 3d 658, 661 n. 1 ( 7th Cir. 2011)

. But see Ba ez v
. Wel l s Fa rgo A rm ored Serv

. Corp

. , 938 F. 2d 180, 182 n. 4 ( 11th Cir. 1991)

. 24 Case: 12-20194 Document: 00512663146 Page: 24 Date Filed: 06/13/2014No. 12-20194

employer belongs a nd on t he class of work involved in the employee’s j ob.” I d

. § 782.2(a). And they proceed to explain:

The power of t he Secretar y o f Transportation to establish maximum hours a nd qualifications o f s ervice of employees, on which exemption depends, extends to those classes of employees and those only who: (1) Are employed by c arriers whose tr a n s p o rtation of passengers or property by m otor v ehicle is subject to his jurisdiction under section 204 of the Motor Carrier Act, and (2) engage in activities o f a c haracter directly affecting the safety of operation of motor vehicles in t h e transportation on the public highways of passengers or property in i nterstate or foreig n c ommerce within t h e meaning of the Motor Carrier Act. Id . (citations omitted). Based on § 782’s language regarding “classes of employees” and the “class of work involved in t he e mployee’s job,” the district co u r t c o n c l u ded that it should not address whether “the activities o f each individual employee in issue directly affected the safety or operation of c ommercial motor v e h i cles in interstate transportation.” 846 F. Supp. 2 d a t 6 9 4 ( emphasis added). Rather, the district court concluded that it m ust a pply a “ group analysis” o n a “companywide basis.” Id . at 694-95. To conduct such a “group analysis” on a “company-wide basis,” the district court defined a “group” of C o i l T u b i n g Service employees that it named “field service employees.” Id

. at 684. The court defined that “group” to encompass all of C oil T ubing Services’s employees t hat had “ j ob duties and a ssignments” that, in the court’s o pinion, w ere “sufficiently similar to permit some grouping.” I d

. at 694-95. Then, the district court turned to t h e fact that s even percent of all jobs companywide were interstate (that is, the a ggregate figure that the district

25 Case: 12-20194 Document: 00512663146 Page: 25 Date Filed: 06/13/2014No. 12-20194

court had previously rejected as “skewed”) and reasoned that— even though the

seven pe r c e n t figure did not a ccurately r e present the experience of the company’s Texas and Louisiana employees—it n e vertheless somehow applied to the T exas and Louisiana employees under the district court’s “company-wide ” “group analysis.” I

d

. at 703-04 & n .48. Accordingly, the d istrict c ourt held that

seven percent of jobs companywide being i nterstate was s ufficient t o subject all employees, regardless of their districts, in the “field service employees” “group” to MCA jurisdiction and g ranted summary j udgment to C o il Tubing Serv i ces regarding the F LSA overtime pay cla i m s of every employee in the j udicially defined “ group.” I

d

. at 703, 715. 1 4 In essence, t he d istrict court held that, because the company has employees in Wyoming who very frequently carry out duties affecting the s afety o f interstate t r ansportation but a re not parties to this
case, t hat s omehow c reates a legal fiction that t he plaintiffs here, the company’s employees in Louisiana a n d T e x as, are deemed to also carry out those same duties just as often. The district court d ec i ded such even though the evidence showed it to be false. Now, the majority affirms the district court’s analysis and, in a published opinion, sets i t as the law of this c ircuit. According to the majority, to determine whether employees are subject to MCA j u r i sdiction, courts should use an “extensive individualized m ethodology” to include all o f a c ompany’s employees

w ith “sufficiently s imilar d uties” (in the c ourt’s o pinion) in a judicially defin e d “class” o f employees and then decide w h e t h er such “class,” rather than the individual employees within it, has a reasonable e xpectation of carrying out

1 4 The d is trict court’s grant of s um m ary jud gm ent f or Coil Tubing Services w as p artial. The d is trict court ruled in f avor of s om e of the plaintif f s in certain regard s t h a t w ere not ap p ealed and , thus , are not at is s ue now
. 26 Case: 12-20194 Document: 00512663146 Page: 26 Date Filed: 06/13/2014No. 12-20194

activities that affect the safety of interstate transportation. Ante , at 9-10. Without getting into the details about who exactly is i n the “ class” here and what connection they h ave t o the case, i f any, the majority a ffirms the district court’s analysis. See id

. 1 5 In short, in deciding M CA jurisdiction (spec i f i c a lly, whether an employee’s job duties are reasonably likely to affect the safety of interstate transportation), the district court and the majority of this court agree that, if employees have “sufficiently similar” job duties, the court m ay lump t hem all tog e t h e r i n t o a single “group” or “class” a nd then decide the jurisdictional question with respect to the “group” or “class” rather than t he individual employees i n it. This is
wrong. Contrary to the district court and the majority, an employee is exempt from FLS A o v e r t i me protection only if the MCA applies to that employee individually

— i.e. , that employee’s actual job circumstances are such t hat the employee is reasonably likely to a ffe c t the safety of interstate t ransportation. The r e levant Supreme Court and c ircuit precedent requires i n dividual analysis of the e mployee’s actual job and prohibits the district c o u r t ’ s and m ajority’s “group”- or “class”-based analysis.

1 5 The majority s ays that the “p arties d o not contes t that an ind ivid ualized analys is is ap p rop riate to d eterm ine w hether Ap p ellants have si mi l a r - enough d uties to belong to the clas s of em p loyees that engages in saf ety- af f ecting activities

. ” A nte , at 7

. T his s tatem ent about
w hat t h e p a r t i e s “d o not contes t” m is rep res ents the em p loyees ’ p os ition. The em p loyees ind eed challenge the conclus ion that they s h o u l d b e categorized and analyzed as “a clas s of
em p loyees ” w ith “s im ilar- enough d u t i e s
. ” They contend that the requis ite M C A analys is
encom p as s es no jud ic i a l s orting of em p loyees into categories at all. See Ap pellants ’ Br. 17 ( “[ T] he M C A is analyzed on an ind ivid ual bas is

. . . . N o m eaningf ul authority, how ever, s up p orts the whole com p any analys is p rop o s e d b y C TS. Thus , the d is trict court erred by ad op ting a m od if

ied vers ion of it. ”) , 24 ( “[ A ] n ind ivid ual analys is is required to determ ine the character and tim ing of the em p loyee’s d uties , and theref ore the ap p lication of the excep tion. ”)

. 27 Case: 12-20194 Document: 00512663146 Page: 27 Date Filed: 06/13/2014No. 12-20194

It appears that t he district court a nd the majo r i ty have a dopted their improper analysis based on two m i s understandings about the j urisprudence. First, the district court and majority appear to b elieve t h a t t h e D OL’s regulations codified at 29 C.F.R. § 782.2, which refer to “classes o f employees,” authorize the “group”- or “class”-based analysis that they applied here. See 846 F. Supp. 2d at 6 90 ( citing § 782.2(a)); ante , at 5 -6 (same). S econd, the district court and majority also contend that their “group”- or “class”-based analysis is required by Songer v
. Dillon Resources, I nc. , a 2010 decision of this court. See 846 F. Supp. 2d at 694 (citing Songer ); ante , at 8-9 ( same)

. They are mistaken

on both points. The history of the FLSA and MCA, to which I now turn, clearly indicates that the MCA exemption has a lways turned on the j ob circumstances of each individual employee. B. 1. The Statutory Enactments The MCA was e n a c t ed in 1935 “to regulate t ransportation by motor carriers.” § 202(a), 49 Stat. 5 43. When first e nacted, the statute was enforced not by the DOT, which was not created until decades later, but by a p redecessor agency, the Interstate Commerce Commission (“ICC”). §§ 203(a)(3), 204. During the initial y ears following the ICC’s creation i n 1935, t h e agency promulgated a series of regulations imposing c ertain rules r egarding the qualifications and maximum hours of service for certain workers, but the agency did not issue any formal determinations as to what it perceived to be the scope

or the reach of its regulatory authority. For example, i n 1936, the year after the MCA was enacted , t he I CC promulgated its first r e gulations e stablishing

28 Case: 12-20194 Document: 00512663146 Page: 28 Date Filed: 06/13/2014No. 12-20194

qualifications for certain drivers while expressing no view on the ICC’s authority to regulate workers other than drivers. See Ex parte No. MC–4, 1 M.CC. 1. In 1 938, t h e FLSA was enacted to “ eliminate” “ l a b o r conditions detrimental to the maintenance of the minimum standard of living n ecessary for health, efficiency, and general well-being of workers.” § 2, 52 Stat. 1 060. In its original form, the FLS A c o n t a ined, a s it still does today, the MCA exemption. § 13(b)(1) (“The pr ovisions of section 7 shall not apply w ith respect to any employee w ith respect to whom the Interstate Commerce Commiss i o n h a s p ower to establish qualifications and maximum ho u r s of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935.”). 2. The I

nterstate Commerce C ommission’s J urisdictional Pronouncements The MCA e xemption in the FLSA “ brought sharply into focus the c overage of employees by the Motor Carrier Act.” Am. Trucking Ass’n s, 310 U

. S. at 540. In 1938, the I C C, noting that the FLSA had m ade the question of its j urisdiction important, instituted proceedings “for the purpose o f determining the e xtent of

our jurisdiction under s ection 204(a) of the M otor Carrier Act, 1935, to establish reasonable requirements with respect to qualifications and maximum hours of service of employees of common and contract carriers and of p rivate carriers of property by motor vehicle.” E x parte N o
. M C –28, 1 3 M.C.C. 481, 481 (1939). The ICC described the dispute before it as follows:

Representatives of common and contract carriers, with
one exception, assert that o ur jurisdiction under section 204(a)(1) and (2) extends to all emplo y ees of common and contract carriers and i s not limited t o those employees who s e activities affect t he safety of operation. Represe n t a t i ves of organized l abor, on t h e other hand, contend tha t o ur j urisdiction is l imited to

29 Case: 12-20194 Document: 00512663146 Page: 29 Date Filed: 06/13/2014No. 12-20194

em p l o yees whose activities affect t he safety of operation. Id

. at 4 82. In 1939, the ICC sided w ith organized l a bor and announced that the agency’s jurisdiction extends only to those employees “whose activities a ffect the safety of operation of m o tor vehicles engaged in transporting passengers and property in interstate a nd foreign commerce.” Id

. a t 4 8 8

. That, however, left
open the question, what sorts of employees have activities that affect the safety of operation? In that regard, the ICC wrote:

It is c lear t o us t hat w e h ave power to p rescribe qualif i c a t i o ns a nd maximum hours for drivers and their helpers emplo y e d by private carriers of p r operty who
are engaged in driving or operating moto r vehicles transporting p roperty in i nter s tate and foreign
commerce. It may be that the activities of other employees a re such that “to promote s afety of operation” we h ave power to prescr i b e qualifications and m aximum hours of service f or th e m
. As to what classes or types of employees, if any, may be i ncluded in this category, we do not decide here. Id . at 483. This, i t appears, was the first time the phrase “classes of employees” (to be p recise, “classes or t ypes of employees”) appeared in t h e l a w b ooks in connection w ith the MCA. Here, the ICC u s e d the p hrase to r efer to categories of job duties and to distinguish between those d u t ies that affect the safety of operation (and thus fall within the ICC’s j urisdictional ambit) and those that d o not (and thus do not). The ICC thought i t clear that “ drivers” and “their helpers”

30 Case: 12-20194 Document: 00512663146 Page: 30 Date Filed: 06/13/2014No. 12-20194

are “classes or types of employees” that a ffect t he safety of o peration but did not decide “what [others], if any, may be included in this category.” Id

. 1 6 In 1941, the I C C began looking at other classes of employees, specifically, “mechanics and o ther g a r a ge workers,” “ l oaders,” and “dispatchers.” Ex parte No. M C –2, 28 M.C.C. 125, 132. As for “ m echanics,” the ICC c o ncluded that they “devote a large portion of t heir time to activities which directly affect the safety of operation of motor vehicles operated in interstate or foreign commence” and, thus, f all within the ICC’s jurisdictio n
. I d

. at 133. But, as for “other garage employees,” such as “men who do nothing but paint vehicles,” their work, the ICC concluded, does not affect the safety of operation, and thus, the ICC may not regulate them. Id

. As for “loaders,” “whose sole d uties are to load a nd unload motor vehicles and trans f e r f r e ight b etween motor vehicles and between the

v e h icles and the warehouse,” they too f ell within the ICC’s jurisdicti o n , t h e agency concluded, because “ [t]he evidence makes it entirely clear that a motor vehicle must b e properly loaded to be safely opera t e d o n t h e highways of the country.” Id

. a t 133-34. But “ dispatchers,” the I CC c oncluded, do not affect the safety of operations. Id

. a t 135. And, the ICC reaffirmed its prior determination that “driver’s helpers,” like the drivers themselves, affe c t safety of operations. Id

. at 136. In determining tha t “mechanics,” “ loaders,” a nd “driver’s helpers”

ca r r y o ut job duties that a ffect t he safety of transportation, t he I CC carefully

16 Shortly af

ter the ICC’s d ecis ion in Ex p arte N o. M C–28 is s ued , a n u m b e r o f
com p anies challe n g e d t h e agency’s conclus ion that its j uris d iction reaches only thos e em p loyees w hos e activities af f ect the s af

ety of op eration, but the ICC reaf firm ed its initial d ecis ion. N o. M C–C–189, 16 M

. C. C. 497 ( 1939)

. The is s ue w as brought to the Sup rem e Court, and , in 1940, the C ourt agreed w ith the ICC that the agency’s juris d iction “is lim ited to thos e em p loyees w hos e activities af f ect the s af

ety of op eration” and it “has no juris diction to regulate the qualif

ications or hours of service of any others

. ” A m
. Trucki ng A ss’ns , 310 U

. S. at 553. 31 Case: 12-20194 Document: 00512663146 Page: 31 Date Filed: 06/13/2014No. 12-20194

defined what it meant by each of those t erms, delineating who should, and who should not, be considered each. F i n a l l y , the ICC concluded that no other employees o f motor carriers an d motor private carriers b esides “drivers and those classes of employees” already discussed “ p erform duties which directly affect safety of operation.” Id

. at 139. In sum, in 1941, the ICC determined that “drivers,” their “helpers,” “ mechanics,” and “loaders,” as thoroughly defined by the Commission, all carry out duties affecting safety of operation and thus fall under MCA jurisdiction, and a ll o ther e mployees of “motor carriers” and “motor private carriers” do not. 1 7 3. The Supreme Court’s 1947 Trilogy In 1947, the S u preme Court established s everal important legal principles relating to the ICC’s jurisdiction under the MCA. First, in Levinson v. Specter Motor Service , 330 U.S. 649, the Court held that the ICC’s “findings of fa c t ” regarding whe t h e r particular job activities a ffect s afety of operations were “squarely within the jurisdiction of the C ommission” and were entitled to great defer e n c e
. See id

. at 669, 672-73 (describing the findings of fact as having a “claim t o f

i n a l i ty” and stating that, “ [w]e see no r eason to question [ the ICC’s] considered conclusion that the activities of full-duty drivers, mechanics, loaders, and h elpers, as defined by i t, affect safety of operation of the carriers by whom they are employed”). 1 8

1 7 The ICC's op inion term ed its d eterm inations as to w he t h e r the work activities at is sue af f ect s af ety “f ind ings of f

act” and the corres p ond ing juris d ictional d ecis ions “conclus ions of law

. ” Id

. at 138- 39.

1 8 The p rincip al is s ue in Lev i nson w as w hether the ICC has juris d iction over a “p artiald uty load er”— that is , a w ork er who s p ent a “s ubs tantial p art” of his w ork ing hours d oing the activities that the ICC, in Ex p arte N o. M C–2, des cribed as the d uties of “load ers ” ( i. e. , load ing ( continued

. . . ) 32 Case: 12-20194 Document: 00512663146 Page: 32 Date Filed: 06/13/2014No. 12-20194

Second was P

yramid Moto r F

r e i g h t Corp. v. Ispass , 330 U.S. 695, a companion case to Levinson

. In Pyramid Motor Freight Corp ., th e d e fendantemployer invoked the MCA defense, contending that t he plaintiffs-employees fit into the ICC’s definitions of “loaders” and, thus, fell under t he M CA exemption. The district court dismissed the case, holding t hat determination of whether the employees carry out job duties that affect safety o f operation w as not the role of the court, but was r ather a t a s k f o r t he I CC. 5 9 F. Supp. 341, 343-44 (1945). The Supreme Court rejected the district court’s c o nclusion t h a t t he determination should be referred to the ICC because, in Ex Parte N o. MC–2, the I C C had already defined the “loaders” job classification subject to M C A jurisdiction. 330 U.S. at 706-07.

Under these circumstances, there is no occasion for us to r efer to t h e Commission any question presented in this case
. . . . The District Court must determine simply whether or not the r espective employees who seek to recove r overtime compensation under [the F L S A] are excluded from [doing so] because they ar e within the above classification [“loaders”]. Id

. at 707. Accordingly, the Supreme Court remanded t o the district court and, importantly, ordered the district court to “ determine whethe r o r not the

ac t i v i t i e s of each [employee] , either as a whole or in substantial part, come within t he Commission’s definition of the work of a ‘Loader.’” Id

. (emphasis added). The Court proceeded to explain t hat, “ [i]f none of the

. . . activities of the

1 8 (

. . . continued ) and unload ing m otor vehicles and trans f erring f reight) and the res t of his tim e d oing other activities that d id not have an ef f ect on the s af

ety of m otor v ehicle trans p ortation op erations

. Id

. at 651- 52. The Court ans w ered that ques tion in the af firm ative, hold ing that the ICC has juris d iction over w ork ers w ho s p end a “s ubs tantial” am ount of their tim e d oing the w ork of load ers
. Id

. at 685. 33 Case: 12-20194 Document: 00512663146 Page: 33 Date Filed: 06/13/2014No. 12-20194

r e spective respondents, during the periods at issue, come within the kind o f activities which, according to t h e Commission, affect the safety of o peration of motor v ehicles in interstate or f oreign commerce w ithi n t h e m eaning of the Motor Carrier Act, then those [employees] of w h i ch that is true are e ntitled to [overtime pay under] t he F air L abor Standards Act.” Id

. at 7 08 (emphasis added). “ On the other hand, if the whole or substantial part of [the] a ctivities of the respective respondents, during t he p eriods at issue, d o come w ithin the kind of a ctivities which, according to the Commission, affect such safety of operation,
t h en t hose respondents w ho a re engaged in such activities are exclude d f r o m [overtime pay].” I

d

. (emphasis added). In short, t h e Court held in Pyr a mid Motor Freight Corp. that, in a n FLSA a ction i n w h i ch the M CA exemption is asserted as a defense, the role of the court is to determine separately whether the activities of “ each ” employee affect the safety of interstate t ransportation, and the court may deny overtime pay only t o “ those [employees] who are engaged in such activities .” Id

. The third a n d f

i n a l d ecision in the Supreme Court’s 1947 trilogy was Morris v
. M

c C omb , 332 U.S. 422. The q uestion presented was whether an employee who s pends most of his t i m e at work carrying o ut duties that do not

a f f e c t s a fety of transportation and only a fraction of h is time carrying o u t activities that d o falls u n der the MCA. Id

. at 426. There, the e vidence in the record showed that the employer, a cartage b usiness, employed drivers to transport property. Id

. a t 427. About four p e rcent o f the company’s jobs involved the transportation of goods m oving in interstate commerce. Id

. at 432- 33. T he company assigned those jobs to the drivers “indiscrimi nately.” Id

. at 433. The Court held that, in such circumstances, where about four percent of a

34 Case: 12-20194 Document: 00512663146 Page: 34 Date Filed: 06/13/2014No. 12-20194

company’s transportati o n jobs with a n interstate nexus are shared indiscriminately among the company’s drivers, t hus mak i n g t he interstate

commerce trips a “ natural, integral, and apparently inse p a r able part” of each driver’s job, that amount of interstate d rivi n g w a s sufficient to invoke MCA jurisdiction for those drivers. Id

. at 433-34. 1 9 Importantly, Morris also reaffirmed Pyramid Motor Freight Corp. ’s requirement of individual analysis of each employee’s job activities. In Morris , the DOL, which had brought the suit, did n ot seek to recover unp a i d o v e r time that was due to any particular employee, but rather sought o nly an injunction against t he company t o pay overtime in the future to any employees who would not, because of his job duties, fall under the ICC’s d efinition of a “ class of work” invoking MCA jurisdiction ( i.e. , drivers, their helpers, mechanics, and loaders) without deciding whether any particular employee fell under such a class. I d

. at 424-25, 430. T he C ourt stated t hat, “if this were an action to recover overtime compensation for individual employees,” “it would be n e c essary to determine” “the extent to which” the employees carried out job duties a ffecting the safety of transportation. Id

. at 430. See also T routt v. Stavola Bros., Inc. , 107 F.3d 1104, 1109 (4th Cir. 1997) (observing that Morris “followed the same approach articulated in Pyramid ”). Thus, the l egal regime af t e r 1 947, created by the I CC’s jurisdictional pronouncements and t he Supreme Court’s decisions, provided that (1) the ICC’s jurisdiction under the MCA reached only e ach employee w hose activities affect the safety of interstate transportat i o n operations ( Am. Trucking Ass’ns , 310 U.S.

1 9 The Court als o held that the m echanics w ho w ork on the v ehicles that s p end ap p roxim ately f

our p ercent of their tim e in inters tate com m erce trip s f all und er the M CA. Id

. at 432 ( “What is thus true f or the driver is true als o f or the mechanic w ho rep airs his truck

. ”)

. 35 Case: 12-20194 Document: 00512663146 Page: 35 Date Filed: 06/13/2014No. 12-20194

at 5 53), (2) it fell to the I CC to determine which sorts of j o b a c t i v i t ies affect safety of such operations, and the ICC had done t hat ( Levinson , 330 U.S. at 669, 672-73), and (3) in a n FLSA action for overtime pay, it was the duty of the courts to determine through the “judicial process” whether e ach plaintiff’s job involved, wholly or in sufficient p art, a “class of w o r k” that the ICC had determined affecte d i n terstate transportation safety ( Pyramid Motor Freight C orp. , 330 U.S. at 698, 707; s ee also Morris , 332 U.S. at 430). And that , a c c o rding to the Supreme Court, is where things stand today. Since 1947, the Sup r e m e C o urt has never again addressed the MCA exemption. 4. This Circuit’s Post-1947 Jurisprudence In the d e c a d e s following t he Supreme Court’s 1947 trilogy, t his court understood Pyramid Motor Freight Corp. ’s teaching, that MCA jurisdiction v el

non t u rns on the i ndividual employee’s job duties. In Mitchell v. C & P Shoe Corp. , 286 F.2d 109 (5th Cir. 1960), we said:

Because of t he view it too k o f t he matter, the court below made no findings on the question of w hether the individual plaintiffs d e v o t e d a ‘ substantial’ part of their work t o t he i nterstate op e r a tions of the C & P Shoe Corporation. Since it is a ctivities of the particular employee, r ather than the e mpl o yer, w hich determine coverage , we remand the case for such findings. Id . at 114 (emphasis added, footnote omitted). 2 0 Two y e a r s l a t er, in Opelika R oyal Crown Bottling C o. v. Goldberg , 299 F.2d 37 (5th Cir. 1962), this court held that some of the employer’s e m p l o y e e s fell

2 0 Af ter the d is trict court m ad e its f ind ings on rem and in M i tchel l , the cas e w as again ap p ealed to this court sub nom
. , Wi rtz v
. C & P Shoe Corp

. , 336 F. 2d 21 (5th Cir. 1964)

. 36 Case: 12-20194 Document: 00512663146 Page: 36 Date Filed: 06/13/2014No. 12-20194

under the M CA because o f their job duties, but other of the employer’s employees did not, because of t h eir individual job duties. See id . at 42-43. Until today, the d istrict courts i n t h i s c ircuit have, as we did i n Opelika Royal Crown Bot t l i n g C o. , determined MCA jurisdiction on an employee-byemployee basis, turning s eparately on each individual employee’s job a ctivities. See, e.g. , McCann v
. W.C. Pitts Constr. Co., No. 3:10-CV-52, 2011 WL 3924855, at *8 (S.D. Miss. Sept. 7 , 2011); Villegas v. Dependable Constr. Servs., Inc. , No. 4:07-CV-2165, 2008 WL 5137321, at *24-26 (S.D. Tex. Dec. 8, 2008). In 2010, this court decided Songer , 618 F .3d 467, w hich, the majority says, “effectively f

orecloses an employee-by-employee a nalysis.” A nte , at 8 ; see also 846 F. Supp. 2d at 694. This is a misunderstanding of the case. I f the majority

were corr e c t, it would mean that the case worked a revolution i n the S upreme Court’s jurisprudence. Songer could not “foreclose[] an employee-by-employee” analysis because the S upreme Court, in Pyramid Motor F reight C orp. , h eld that employee-by-employee analysis is required , as did p rior panels of this court in Mitchell and Opelika R oyal Crown Bottling Co ., and n one of those decisions has been ov e r r u l e d ; nor has any statute been amended in a manner that is contended to have altered the requisite individual employee analysis. In Songer , the plaintiffs-employees were full-time truck drivers. 618 F.3d at 468. Their employer had a number of routes, many of which were interstate, and n o d river was assigned a dedicated r oute. I d

. at 470, 4 75-76. R outes were assigned by a single “ dispatch service” “indiscriminately— i .e. , any d r iver could be c alled upon at any time t o make a n interstate or intrastate trip.” Id

. at 470. “The drivers’ employment could be terminated if they refused an assignment.” Id

. “In o ther words, any driver could have been assigned to an interstate trip.”

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Id

. at 4 75. Accordingly, the evidence showed t hat “all the drivers,” all of whom accepted routes from the same dispatch service, had a reasonable likelihood of driving interstate. Id . at 476. Nowhere in Songer ’s a nal y s i s d i d this court make a determination of reasonable likel i h o o d v e l non of driving interstate by dint of a n employee’s membership in a ny sort of judicially defined “group” or “class,” as t he district court and the majority d id here. In Songer , this c ourt simply made the common

sense observation that, because of company policies that w ere factually common to all e mployees ( i.e. , the indiscriminate assignment of interstate trips), each and
every employee, all o f whom had the same likelihood o f driving interstate, was reasonably likely to drive interstate. See id

. a t 470 (“ any d river could b e called
upon a t any time to [drive] inters t a t e ” ) (emphasis added). Cf

. B rennan v. Schwerman T

rucking Co. o f Va., Inc. , 54 0 F.2d 1200, 1205 (4th Cir. 1976) (holding that, because interstate a nd i n trastate trips were a ssigned indiscriminately among t he company’s d rivers, “ each of [the] d rivers may affect the safety of operation of motor vehicles engaged in interstate commerc e ”) (emphasis ad d ed). I n other words, Songer , no differently than any other case before i t , did nothing more than examine the relevant e vidence t o m ake an individual determination as to MCA j urisdiction with respect to e ach e mployee, based on the circumstances of that employee’s job. In sum, followin g t h e S upreme Court’s 1947 trilogy, this court has, in accordance w i th Pyramid Motor Freight Corp. ’s m andate, determined MCA jurisdiction on a n indi v i d u a l basis, turning on each employee’s actual job circumstances.

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5. Other Circuits’ Post-1947 Jurisprudence After 1947, at least three of our sister circuits have, like us, acknowledged Pyramid Mo tor F

reight Corp. ’s requirement for individual analysis of each employee’s actual job duties. The Third Circuit has stated that, to deter m i n e MCA jurisdiction, t he court must determine “ whether each plaintiff, during the relevant time periods, p erformed duties which substantially affected the safety of operation.” H

arshman v. W

ell Serv., Inc. , 248 F. Supp. 953, 958 ( W

. D

. Pa. 1964) (emphasis added), aff’d, 355 F.2d 206 (3d Cir. 1965) (affirming “for the

reasons so well stated in the opinion of [the district court]”). T he F ourth Circuit likewise agrees that the court must focus on the employee’s actual activities “on

an i ndividual basis.” Troutt , 107 F.3d at 1107-10. A nd, the Seventh Circuit has explained that i t is erroneous to determine MCA jurisdiction on the basis of “the employer’s o perations” because MCA j urisdiction “depends u pon the activities of the individual employees .” Goldberg v. Faber Indus., Inc. , 291 F.2d 232, 234- 35 (7th Cir. 1961) (emphasis added). 6. The Department of Labor Regulations and Other Post-1947 Developments In 1948, the DOL, which was then (and is still now) charged with enforcing the FLSA, s ee § 4 , 52 S t at. 1060, 1061; 29 U.S.C. § 204, p r o m u l g a t ed the

r e g u l a t i o n s c odified at 29 C.F.R. § 782, the r egulations on w hich t h e district court and the majority h ere rely. 1 3 Fed. Reg. 2346 (codified at 29 C.F.R. § 782 (1949)). The DOL’s r egulations have b een amended only slightly o ver the years,

so they are today almost identical to their o riginal enactment i n 1 948. C ompare 29 C.F.R. § 782 (current), with 13 Fed. Reg. 2346 (1948). The DOL’s regulations state their purpose on their face: t hey reflect “the

c o n s t r u c t i o n of the law [ regarding the MCA exemption] which the [DOL] bel i e v e s
39 Case: 12-20194 Document: 00512663146 Page: 39 Date Filed: 06/13/2014No. 12-20194

t o b e correct in t he light o f the decisions of the courts a nd the Interst a t e Commerce Commission.” Id

. And indeed, the DOL’s regul a t i o n s d o nothing

more than describe the jurisprudential principles that followed from t he abovediscussed ICC jurisdictional pronounceme n ts and case law, p rimarily the Supreme Court’s 1947 trilogy. 29 C.F.R. § 782.2 says: “The [MCA exemption] d epends both on t he class to which his employ e r b e longs and on the class of work involved in the employee’s job.” It continues:

The p ower of the Secretary of T ransportation [previously “Interstate Commerce Commission”] to establish maximum hours a nd qualifications o f s ervice of employees, on which exemption depends, extends to those c lasses of e mployees and t hose only w ho ( 1 ) a re e mployed by carriers whose transportation o f passengers or property by motor v ehicle is subject to his [previously “the Co m mission’s”] jurisdiction under
s ection 204 of the Motor Carrier Act and ( 2) e ngage in activities of a c h a racter directly affecting the s afety of operation of m otor vehicles in t h e transportation on t h e public highways o f passengers or property in interstate
or foreign c o m m erce within the meaning of t he Motor Carrier Act. § 782.2. The regulations p roceed to discuss the “classes of employees” that the ICC had determined fall under MCA jurisdiction: “ d r i v e r s” (§ 782.3 (citing Ex parte N o
. MC–2; Ex parte No. MC–3; Ex Parte No. M C–4)), “drivers’ helpers” (§ 782.4 (citing Ex Parte N o. MC–2)), “loade r s ” ( § 782.5 ( citing Ex parte No. MC–2)), and “mechanics” (§ 782.6 (citing Ex parte No. MC–2)). Over a decade later, in 1966, the DOT w as created a nd authority to enforce the M CA was transferred to it from the ICC. Department of Transportation Act, § 6(e), 80 Stat. 931, 939.

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In 1971, the DOL revised its § 782 regulations to recognize the transfer of MCA au t h ority from the ICC to t he DOT. 3 6 F e d. Reg. 21778. Aside from acknowledging the transfer of authority, the regulations were substantially untouched. Since that 1971 revision, the DOL h as never a gain revised the § 782 regulations. As for the DOT, since 1966, when i t w a s created and given authority to enforce the M CA, i t has never issued regulations on the maximum scope of its jurisdiction o v e r qualifications and maximum hours of servi c e as had the ICC decades before. 2 1 Thus, although the ICC lost its MCA a uthori t y i n 1 9 6 6 , its 1930s a nd 1940s regulations still represent the most recent expression of the official agency view of the scope of MCA jurisdiction. In 1995, the ICC was eliminated entirely. ICC Termination Act, § 101, 109 Stat. 803 (“The Interstate Commerce Commission is abolished.”). That brings us to today. C. This history m ake s several things clear. First, the p hrase “ classes of emplo y e e s ” i n the DOL’s regulations, on which the district c ourt and the majority here cite in support of their novel analysis, references the four categories of job activities that the ICC d ecades ago concluded affect the safety of inter s t a t e m o t o r v e h i c l e t r a n s p o r t a tion: “drivers,” “drivers’ helpers,” “loaders,” and “ mechanics.” W hen § 782 says that the MCA exemption “depends on” “the class of work involved in the employee’s job” and e xtends only to c ertain “classes

2 1 In 1981, the D O T d id , how ever, is s ue a “notice of interp retation” regard ing its juris d iction over certain d rivers

. 46 Fed

. Reg. 37902. B ut that notice of interp retation d id not p urp ort to s p eak as to the maxim um s cop e of the agency’s j uris d iction in other res p ects

. Id

. at 37903 ( “This interp retation relates s olely to the juris d iction over d rivers

. ”)

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of employees,” what § 782 m eans is simply that the c o u r t , i n deference to the ICC’s findings of fact, should determine whether the employee’s job duti e s are such that the employee f alls under the ICC’s definition of a “ driver,” “driver’s helper,” “loader,” or “mechanic.” Put another way, t he only “class” inquiry contemplated by § 782 is, the court must determine w h at activities the employee’s job entails and whether those activities are such that the employee fits into the I CC’s definition of a “driver,” “driver’s helpe r , ” “ l oader,” or “mechanic.” 2 2 Here, there i s no q uestion that s ome of the employees drive motor vehicles and, hence, are within the ICC’s definition of the “drivers” “ c l a s s ” i f and when they drive interstate. That question, w hether the driver-employees at issue in this case a re reasonably likely to d rive i nterstate, should be r esolved in the ordinary manner, by examining the relevant evidence, drawing reasonable inferences, etc.—in o ther words, through the “judicial process.” Pyramid Motor Freight Corp. , 330 U.S. at 707. In reading § 782’s r e ference to “classes of employees” as calling for courts to d e fine t heir own “groups” or “classes” of employees and t o d e t e rmine MCA jurisdiction v el non with respect to such judicially defined “groups” or “classes,” the district co u r t a nd m ajority have committed clear error.

2 2 It could be contend ed that, s ince the ICC’s authority und er the M C A was trans f erred to the D O T in 1966 ( and the ICC was abolis hed entirely in 1995) , courts ought to d eterm ine de nov o w hether job a c t i v ities af f ect the s af

ety of m otor vehicle trans p ortation rather than d ef erring to the antiquated I CC f ind in g s
. B u t t hat ques tion s hould be lef t f or another d ay. H ere, we deal only w ith d riving m otor vehicles , and , regard les s of w hat the ICC has s aid on the top ic, “[ i] t is obvious that one w ho d rives a vehicle in inters tate com m erce d irectly af f ects the s af ety of s uch op erations as long as he is d riving. ” Crooker , 469 F. 2d at 209. 42 Case: 12-20194 Document: 00512663146 Page: 42 Date Filed: 06/13/2014No. 12-20194

Second, it is c lear that, until today, in the h i s t o ry of FLSA-and-MCAexemption litigation, the court s h ave never defined their own “groups” or “classes” of employees to determine MCA jurisdiction o n t h at basis, as the district c ourt and majority have done here. In P yramid Motor F

reight C orp ., and reaffirmed later that same year in Morris , the Supreme Court clearly required individual analysis of “each” employee’s actual j ob d utie s
. T h e d istrict court’s and majority’s “company-wide,” “group”- or “class”-based analysis, which determines MCA jurisdiction based on t he activities of a “group” o r “ c lass” of employees that the court has defined itself, is in c lear conflict. See P yramid Motor Freight C

orp. , 330 U.S. a t 6 9 8, 708 (the district court must “determine whether or n ot t he activities of each [employee]” “affect[] the safety of operation of motor vehicles in interstate or foreign c ommerce,” and the district court m ay deny overtime pay o nly t o “those [empl o y e es] w ho are engaged in such activities”); Morris , 332 U .S. at 430 (observing that, “if this were an a c t i o n t o

recover overtime compensation for individual employees, it would be necessary to d e termine” “the extent t o which [the employees] devoted themselves to [work affecting transportation s afety]”). And, the district court’s and m ajority’s analysis conflicts with the prior d ecisions of this court requiring individual analysis. Compare ante , at 8 (adopting “company-wide” analysis and stating that “this court’s precedent e f f e c tively forecloses an employee-by-employee analysis”), with Mitchell , 286 F.2d at 114 (holding that “it is the activities of the particular employee, r ather than the e mployer, which de t e r m i n e coverage”), and Opelika Royal Crown Bottling C o
. , 2 99 F .2d at 4 2-43 (applying individual analysis). Finally, the majority’s opinion creates a split with t he decisions of at

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least three of our sister c ircuits. See Harshman , 248 F. Supp. at 958, aff’d , 355 F.2d 206; Troutt , 107 F.3d at 1107-10; Goldberg , 291 F.2d at 234-35. This case involve s workers in Texas and Louisiana, and the question is whether they a re reasonably likely to drive interstate. To answer t h at question, the court must examine evidence that is r elevant t o t he work of t h ose employees. There is no legal reason the court may point to other employees in Wyoming who

are very likely to drive interstate a n d declare that, as a result of some l e gal fiction, the same i s true of the Texas and Louisiana workers, e ven if belied by the evidence. The district c ourt’s and majority’s creation of a “company-wide,” “group”- or “class”-based mode of analysis t h at does just that is in clear conflict with the Supreme Court’s m a n d a t e that we “determine whether o r not the activities of e ach [employee]” “affect[] t h e s a f ety o f operation of motor vehicles in interst a t e o r foreign commerce” and deny o vertime pay only to “those [employees] who are engaged in s uch activities.” Pyramid Motor Freight Corp. , 330 U.S. at 698, 708. III. The Proper Analysis To decide whether the employees here are reasonably likely to drive interstate, rather than m erely intrastate, the district court and this c ourt should simply look at the e vidence and make a determination vel non for each plaintiffemployee. We should look to the testimony about the realities of the job as well

as any documentary records. The employee’s job description, if the company has issued one, is r elevant too, although not dispositive, since it may not reflect the realities of the job. Pyramid Motor Freight Corp. , 330 U.S. at 707 (the district court “ shall not be concluded by the name which may have b e e n g iven to [the employee’s] position or to the work that h e does”); Ale v. Tenn. Valley Auth. , 269

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F.3d 680, 688-89 (6th Cir. 2001) (“[C]ourts must focus on the a ctual a ctivities of the employee in order to determine whether or not h e is exempt from the FLSA’s overtime regulations.”) (emphasis added). As discusse d a b o v e , Coil Tubing Services divides i t s operations into six districts, and the employees at issue here were stationed in four of the six: the Alice, Angleton, and Bridgeport districts in Texas and the Broussard district in Louisiana. The company gen e rally assigns well-servicing j obs to the geographically closest district, and the employees in that district are r e q u i r e d to handle the job. If t he equipment and personnel needed f or a jo b a r e not available in the district to which it i s assigned, the district can borrow workers and equipment from another district, but, accordi n g t o t h e evidence in the record, such instances of inter-district borrowing are “rare” and “exceptional.” Record evidence shows that the vast m ajority o f jobs handled by t h e Alice, Angleton, B ridgeport, and Broussard districts w ere purely intrastate jobs—that is, Texas-based workers worked in Texas and Louisiana-based workers worked in Louisiana— a n d o n l y a tiny number of jobs r equired crossing s tate borders. In Alice and Bridgeport, less than one p e r c e n t o f t he jobs handled by those districts during the p eriod recorded were interstate. In Angleton, less than two percent o f t he jobs were interstate. And, in Broussard, around five percent of the jobs were interstate. Moreover, these figures l ikely o ver-represent the actual likelihood of any given employee driving interstate because, when traveling to the jobsite, only one employee would h a v e to drive each vehicle, and others would ride as passen g e rs. Thus, while t here was less than a one percent chance—about 0.33% of a chance, t he evidence shows—that any g iven job in the Alice district would involve interstate transportation, there was even less than

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a 0.33% chance of any given Alice worker driving inters t a t e for any given job assigned to the d istrict. Inversely, when a worker in the Alice district w as given

a j ob that was assigned to that district, there was a gre a ter than 99% chance that the worker would not drive interstate. The record c ontains e mployee testimony that tend s t o corroborate the unlike l i h o o d of driving interstate or, i ndeed, driving at all. For example, one employee in the Alice district, Jesus H ernandez, testified that, in his five years working there, he only drove interstate once. An employee in t h e Angleton district, Cody Patin, t estified that, during his half year working there, he only drove a motor vehicle a single time, when he drove “ a supervisor’s truck to go get lunch for everybody one day.” There is similar t estimony from a number of other employees in the record. Based on this evidence, a reasonable factfinder could determine that the likelihood of these field service employees in the A l i c e , Angleton, Bridgeport, and Broussard districts d riving interstate i s s o minimal and remote, t hey cannot be

“ r e a sonably expected” to be “called upon in the ordinary c ourse o f [their] w o r k to [drive interstate].” Songer , 618 F.3d at 474; see C oleman , 324 F. Supp. at 670; Kimball , 504 F. Supp. at 548; Yaklin , No. 07-CV-422, 2008 WL 4692419, at *6. A c cordingly, there is a genuine dispute o f material f act as to t he reasonabl e likelihood of these employees driving interstate. Regarding the fact that Coil Tu b i n g S ervices’s employees in W yoming drive interstate very o ften, there is no f actual indication in the record w hy that is relevant to the Texas and L ouisiana employees. True, t here is evidence that

on “ rare” and “exceptional” occasions, one district can borrow another district’s employees for a job if needed. But, again, according to the record evidence, such

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instances a re unusual, and, importantly, t h ere is no i ndication in the record that an employee has ever been sent from Texas or Louisiana to Wyoming. Thus, a reasonable factfinder could deter m i n e t h at there is simply n o reasonable likelihood of a Texas o r Louisiana e mployee being d i spatched to partici p a t e i n

a Wyoming job. Contrary to the district court’s and the majority’s s uggestions, this is not a case like Songer in which all employees accept their job assignments from a single dispatch

. See 618 F.3d at 4 70. In terms of the work that the

e m p loyees here could be expected to carry out, the record evidence s h o w s material differences between the assignments g iven to the W yoming employees and the Texas and Louisiana employees at issue in this case. The evidence in the record reveals a genuine dispute of material fact as to wh e ther the employees here were reasonably likely to be c alled u pon to drive interstate in the course of their work for Coil Tubing Services. Accordingly, the district court’s grant of summary judgmen t for the company and a gainst the employees on their FLSA claims was improper and should be reversed. IV. Conclusion The plaintiffs-employees at issue in this cas e w o r k i n T e x a s a nd Louisiana. The evidence shows that they are, as a matter of fact, extremely unlikely to be called upon to d rive interstat e i n t h e course of t h eir w ork. Nevertheless, the district court a nd majorit y p o int to other employees in Wyoming who are not parties to this litigation but who are likely to drive interstate and, b y dint of the legal f iction of “group” or “class” membership, say that t h e Texas and L ouisiana workers are no different—that is, they too are likely to drive interstate, despite the evidence showing the precise opposite. The district court and the majority cite the D O L ’ s regulations and Songer a s support for their d ecisions, b ut they

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have unfortunately misread and misapp l ied these sources o f law, neither of which support t he “group”- or “class”-based analysis that was applied here on a “company-wide basis” to except more than a h undred e mployees from overtime
wages. The l aw requires, and has always r equired, individual a nalysis of each employee’s actual job circumstances. It h as never been permissible for courts to disregard the actual e vidence in favor of legal fictions i n which broad swathes of employees a re s wept together so as to exempt from overtime wages great numbers of employees b ased on t he activities of others. Simply s tated, the district court must “determine whether or not the activities o f each [employee]”

are reasonably likely to affect the safety of interstate transportation. P yramid Motor Freight Corp. , 3 30 U.S. at 707-08 (emphasis added). The evidence shows that the plaintiffs, employees in Texas a nd Louisiana, are extremely unlikely to drive interstate. The law does not allow us to exempt them from overtime pay based o n the job activities of ot h er workers in Wyoming who are not a part of this case. I respectfully dissent.

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