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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 14

- 3 679

_____________

JOSEPH RESCH,
ON BEHALF OF HIMSELF AND OTHERS SIMILARLY

SITUATED, Appellant

v.

KRAPF’S COACHES, INC.

______________

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 2:11

- cv

- 06893 )
Distric t Judge: Hon. William H. Yohn

______________

A rgued: April 1 5 , 2015

______________

Before: AMBRO

, VANASKIE , and SHWARTZ, Circui t

Judges

.

(Filed: May 1 2 , 2015 )

______________2 OPINION

______________
R. Andrew Santillo, Esq. [ARGUED] Peter D. Winebrake, Esq.
Winebrake & Santillo 715 Twinning Road Suite 211, Twinning Office Center Dresher, PA 19025

Counsel for Appellant

Randall C. Schauer, Esq. [ARGUED] Jennifer J. Hanlin, Esq.
Fox Rothschild
747 Constitution Drive
Suite 100 Exton, PA 19341

Counsel for Appellee

SHWARTZ, Circuit Judge

.
Joseph Resch

, a driver fo r Krapf’s Coaches, Inc. (“KCI”), filed thi s collective action on behalf of himself and thirty

- three other KCI drivers (collectively, “Plaintiffs”) seeking unpaid overtime under the Fair Labor Standards Act of 1938 (“FLSA”) and the Pennsylvania Minimum Wage Act of 1968 (“PM W A”). Because P laintiffs f a ll within the

“ M otor C arrier Act exemption” to these statutes’ overtime provisions , the District Court correctly granted summary judgment to KCI and w e will therefore affirm.3 I

KCI is a motor coach company based i n West Chester, Pennsylvania

, and has a Trans it Division that provid es bus
and shuttle services on set routes

. Since 2009, KCI has operated thirty

- two such routes

, four of which cr oss state lines

. From 2009 through 2012, the share of total Transit
Division revenue generated by interstate ro utes fluctuated between 1.0% and 9.7%

.

KCI employs between thirty

- six and sixty

- two drivers in a given month and trains its drivers on multiple interstate
and intrastate routes

. Plaintiffs concede that KCI retains the discretion to assign a driver to a ny route on which he has
been trained

, including interstate routes, and to discipline a driver who refuses to drive a route as assigned.

Because KCI is a “ common carrier by motor vehicle ” authorized to engage in interstate commerce

, it is subject to
Fed eral Motor Carrier Safety Administration (“FMCSA”) regulations

. 1 JA 330a. Accordingly, KCI possesses a U.S. Department of Transportation (“DOT”) registration number

, requires that each driver possess a Commercial Driver License (“CDL”)

, maintains a “ Driv er Qualification File ” for
each driver that includes FMCSA

- required documentation

, and must submit to DOT audits to ensure its compliance with FMCSA regulations

. KCI also provide s each driver with a
“F ederal Motor Carrier Safety Regulations Pocketbook”

1 The FMCSA is an administration within the U.S. Department of Transportation responsible for regulating

co mmercial motor carriers. See 49 U.S.C. § 113.4 de tailing the driver’s responsibilities under DOT regulations

, JA 81a

, as well as a separate KCI Handbook making clear that they “are expected to meet ” FMCSA regulations

. JA
77a.

P laintiffs w ere T ransit Division drivers who , at so me point during the releva nt time period , worked more than forty hours in a week without receiving overtime pay

. Of the 13,95 6 total “trips” P laintiffs drove

, 178 (or 1.3%) required them to cross state lines. Sixteen plaintiffs never crossed state lines, eight crossed state lines only one time, and five
crossed state lines fewer than five times. 2

Resch brought this collective action under the FLSA
and PMWA to recover unpaid overtime

. T he District Court granted his request to conditionally certif y a class of

“ individuals who we re employed by defendant as Transit Route drivers who worked over 40 hours during any workweek within the past three years,” JA 49a, and thereafter granted KCI’s summary judgment motion

, holding that
P laintiffs are ineligible for overtime under the Motor C arrier Act exemption to the FLSA and PMWA . 2 9 U.S.C. § 213(b ) (1) ; 43 Pa. Cons. Stat. Ann. § 333.105 ( b ) (7)

. P laintiffs appeal

.

II 3

2 The remaining five plaintiffs drove interstate 58 (3.1%), 43 (16.5%), 25 (4.4%), 16 (37.2%), and 11 (6.4%) times, respectively. JA 136a.

3 The District Court had jurisdiction under 29 U.S.C. § 216(b) and 28 U.S.C. § 1331. We exercise jurisdiction under 28 U.S.C. § 1291. Our review of the grant of summary5 A

T his appeal requires consideration of two statutes: the
FL S A and the Motor Carrier Act of 1935 (the “MCA”). 4 The
F LSA “requires employers to pay overtime compensation to employees who work more than forty hours per week, unless one or another of certain exemptions applies.” Packard v. Pittsburgh Transp

. Co. , 418 F.3d 246, 250 (3d Cir. 2005); 29 U.S.C. § 207(a)(1). C ongress en acted the FLSA “ t o protect all covered workers from substandard wag es and oppressive working hours” and to ensure that covered employee s “ would receive a fair day’s pay for a fair day’s work.” Parker v. NutriSystem, Inc. , 620 F.3d 274, 279 (3d C ir. 2010) (internal quotation marks and alterations omitted).

Congress enacted the MCA in response to a “wide scope of [] problems” in the motor carrier industry and “to adjust a new and growing transportation service to the needs of the public.” United States v. Am. Trucking Ass’ns , 310

judgment is plenary

. Mylan Inc. v. SmithKline Beecham Corp. , 723 F.3d 413, 418 (3d Cir. 2013). Summary judgment is appropriate where “there is no gen uine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A disputed issue is “genuine” only “if there is a sufficient evidentiary basis on which a reasonable jury could find for the non

- movin g party.” Kaucher v. Cnty. of Bucks , 455 F.3d 418, 423 (3d Cir. 2006).
We view the facts and draw all reasonable inferences in the

non

- movant’s favor. Hugh v. Butler Cnty. Family YMCA

, 418 F.3d 265, 266

– 67 (3d Cir. 2005).

4 The parties agree that ide ntical principles govern Plaintiffs’ PMWA claim.6 U.S. 534, 538 & 542 (1940). The MCA “vest[s] in the [DOT ] power to establish reasonable requirements with respect to qualifications and maximum hours of service of employees and safety of operation and equipment of commo n and

cont ract carriers by motor vehicle. ” 5 Levinson v. Spector
Motor Serv. , 330 U.S. 649, 658 (1947) . The MCA’s requirements in this area are “ intended to prevent accidents due to fatigue, without regard to considerat ion of adequacy of compensation. ” S tarrett v. Bruce , 391 F.2d 320, 323 (10th Cir. 1968)

.

A t issue is the MCA exemption that removes from the FLSA’s overtime protections “any employee with respect to whom the Secretary of Transportation has [ the ] power to establish qualifications and maxim um hours of service pursuant to the provisions of section 31502 of Title 49” of the
MCA

. 29 U.S.C. § 2 13(b)(1). Section 31502(a)(1) applies to transportation “described in” § 13501, which in turn gives the
DOT jurisdiction “over transportation by motor c arrier . . . to the extent that passengers, property, or both, are transported by motor carrier . . . between a place in . . . a State and a place
in another State

. ” 49 U.S.C. § 13501. Through the MCA exemption, Congress has “prohibited the overlapping o f . . . jurisdiction” between the U.S. Department of Labor and the DOT regarding “maximum hours of service.” Levinson , 330
U.S. at 661 ; see also Southland Gasoline Co. v. Bayley , 319 U.S. 44, 48 (1943) ( because it enacted the MCA before the FLSA, Congress apparently relied on the MCA to “work out

5 In 1966, the DOT assumed the Interstate Commerce Commission’s [ICC] authority to regulate motor vehicle
carriers. Moore v. Universal Coordinators, Inc. , 423 F.2d 96, 97 n.1 (3d Cir. 1970).7 satisfactory adjustments for employees charged with the safety of operations” in the transportation industry ) ; McMaster v. E. Armored Servs., Inc.

, 780 F.3d 167, 171 (3d Cir. 2015) (recognizing that the MCA “estab lish[es] a strict separation between the Secretary of Transportation’ s jurisdiction and the ambit of the [FLSA’s] overtime guarantee ” ).

Two considerations dictate w hether the MCA exemption applies : the class of the employer and the class of
work the em ployees perform. See 29 C.F.R. § 782.2(a).
S pecifically

, the MCA exemption applies if the employer is a carrier subject to the DOT’s jurisdiction and the employee is a member of a class of employees that “engage[s] in activities of a character directly a ffecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the meaning of the [MCA] .” Id. In determining whether the exemption applies, we are mindful of the FLSA’s broad remedial purposes

, and “that exemptions from the FLSA are construed narrowly[] against the employer,” with the employer bearing the burden to prove “plainly and unmistakably” that its employees are exempt. Packard , 418 F.3d at 250. 6

B

The parties agree that KCI is a “motor carrier” subject

6 Whethe r employees’ “particular activities excluded them from the overtime benefits of the FLSA is a question of law.” Icicle Seafoods, Inc. v. Worthington , 475 U.S. 709, 714 (1986).8 to the DOT’s jurisdiction, thus satisfying the first requirement. We must therefore examine whether
Plaintiffs

— many of whom rarely or never crossed state
lines

— satisfy the second requirement by being a member of a class of employees engag ing “in activities of a character directly affecting the safety of operation of motor vehicles in the transportation . . . of passengers or property” in interstate

commerce

. 29 C.F.R. § 782.2(a). The District C ourt answered yes to this question based primarily on Morris v.
McComb , 332 U.S. 422 (1947).

I n Morris

, the Supreme Court addressed whether a group of truck drivers and mechanics employed by a Detroit

based common carrier fell within the MCA exemption

. Only 3.65% of the truck drivers’ trips were interstate

, and t he employer assigned such trips to the truck drivers “generally throughout the year” and “in the normal operation of [its] business.” Morris , 332 U.S. at 433. All of the truck drivers “shared indiscriminately” in the interstate trips, which were “mingled with the performance of other like driving services [they] rendered.” Id. O f the employer’s forty

- three truck drivers: “every driver[] except two[] made at least one” interstate trip; the ave rage truck driver made sixteen interstate trips; and the only two truck drivers who did not drive interstate had been employed “for only about one

- half the year and that was during the months when the trips in interstate commerce were . . . less frequent.” Id.

The Supreme Court held that the DOT’s predecessor,
the I CC

, had jurisdiction to regulate all forty

- three drivers

— even those who never drove interstate

— and that none of the
drivers were entitled to overtime under the FLSA. See id. at 434

– 36. “Fro m the point of view of safety in interstate9 commerce,” the Supreme Court reasoned, the case would be
the same “if each [of the employer’s] driver[s] drove 4% of his driving time each day in interstate commerce,” as there would be “the same essential need f or the [ ICC’s ] establishment of reasonable requirements with respect to qualifications and maximum hours of service of employees.”
Id. at 434; see also Starrett , 391 F.2d at 323 (observing that “it is not the amount of time an employee spends in work
affe cting [interstate] safety, rather it is what he may do in the
time thus s pent, whether it be large or small, that determines the effect on safety”).

Applicable r egulations echo the Morris Court’s focus
on the “class of work” performed by the employees

occ upying the same position , 29 C.F.R. § 782.2(a), and the likelihood of the employer distributing those duti es among the employee s in question :

As a general rule, if the bona fide duties of the job performed by the employee are in fact such that he is (or . . . is likely to be) called upon in the ordinary course of his work to perform, either regularly or from time to time, safety

affecting activities of [a driver, driver’s helper, loader, or mechanic], he comes within the exemption in all workweeks when he is employed at such job. This general rule
assumes that the activities involved in the continuing duties of the job in all such
workweeks will include activities which have been determined to affect directly the safety of operation of motor vehicles on t he public highways in transportation in interstate10 commerce. Where this is the case, the rule applies regardless of the proportion of the employee ’ s time or of his activities which is actually devoted to such safety

- affecting work in the particular workwe ek, and the exemption will be applicable even in a workweek when the employee happens to perform no work directly affecting “safety of operation.”

29 C.F.R. § 782.2(b)(3) ; see also Application of the Federal Motor Carrier Safety Regulations, 46 Fed. Reg. 37,902

– 02

, 37,903 (July 23, 1981) (“DOT Notice”) (“a driver will remain under the [DOT’s] jurisdiction . . . for as long as the driver is in a position to be called upon to drive in interstate commerce as part of the driver’s regular duties .”). The DOT ha s jurisdiction “even if the driver has not personally driven in interstate commerce if, because of company policy and activity, the driver could reasonably be expected to do interstate driving.” DOT Notice, 46 Fed. Reg. at 37,903 (citing Morris , 332 U.S. 422). Moreover, whether an employee “engage[s] in activities of a character directly affecting the safety of operation of motor vehicles” in interstate commerce, 29 C.F.R. § 782 .2 (a), depends “neither [on] the name given to his position nor that given to the work that he does,” id. § 782.2(b)(2) (citing Pyramid Motor Freight Corp. v. Ispass , 330 U.S. 695, 707 (1947) ) . Put simply, it is “the character of the activities rather than the proportion of either the employee’s time or of his activities” that cont rols.
Levinson , 330 U.S. at 674. 7

7 Because the inquiry focuses on what the class of employees could have r easonably been expected to do, the District Court properly declined Plaintiffs’ request to perform11 “On the other 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, casual, and insignificant a s to be de minimis, the exemption will not apply to [the employee] in any workweek so long as there is no change in his duties.” 29 C.F.R. § 782.2(b)(3) (citing Pyramid , 330 U.S. at 707

– 08).
The DOT thus “has authority over drivers only where the employe es regularly travel interstate or reasonably are expected to do interstate driving.” DOT Notice, 4 6 Fed. Reg.

at 37,903

.

The refore, the relevant inquiry here is whether
P laintiffs reasonably could ha ve expected to drive interstate, which we answer by “ look[ing] at ,” among other things,

“ whether the carrier (employer) does any interstate work,” “assigns drivers randomly to that driving,” and maintains a “company policy and activity” of interstate driving. Id. (citing Morris , 332 U.S. 422)

. The undisput ed evidence
establishes that

, during the relevant time period

, 6.9% of all trips drivers took were interstate , as much as 9.7% of the Transit division’s annual revenues derived from interstate

routes

, and KCI always operated at least one interstate route

p er month

. With regard to distribution of interstate routes

, KCI had a “company policy” of t raining its drivers on as many routes as possible

, retaining discretion to assign drivers
to drive either interstate or intr a state route s

— at any time

— on which the y had been trained , and disciplining any driver who
refused

. See 46 Fed. Reg. at 37,903. Given this evidence, t he

an “individualized analysis” of the “actual employment circumstances” of each Plaintiff.12 District Court properly found no genuine dispute of material
fact regarding whether P laintiffs reasonably could ha ve expected to drive interst ate. Friedrich v. U.S. Computer
Servs. , 974 F.2d 409, 41 7 (3d Cir. 1992)

.

Further

, unrefuted evidence reflects KCI’s adherence

to federal regulations regarding the drivers. For instance, KCI requires that each drive r possess a valid CDL , comply
with FM CSA drug testing requirements

, submit to regular DOT physical examinations, and provide a pre

- employment “Safety Performance History Record.” App. 77a. KCI also
maintains DOT

- required “Driver Qualification File s ” for all
driver s , App. 77a, which the FMCS A audits for compliance on a recurring basis

. KCI also issues all drivers a “ KCI
Handbook ” advising them of KCI’s expectation that they

meet these requirements

, App. 77a, as well as a separate “Pocketbook” detailing the FMCSA regulations

. Since 2012,
K C I has also required all drivers to complete a “Self Certification Form” wherein they check a box describing themselves as “NI

- Non

- Excepted Interstate Transportation: Interstate Drivers Who are Subject to the Federal Physical Qualifications and Examination R egulations.” App. 80a. This recognition on the part of the drivers, together with

e vidence of KCI’ s efforts to comply with DOT regulations

— which in large part consist of safety measures imposed on, and communicated directly to, the drivers

— r einforce the
driver s’ reasonable expectation of driving in interstate

commerce. See, e.g.

, Songer v. Dillon Res., Inc. , 618 F.3d 467, 469

– 70 (5th Cir. 2010) (holding that truck drivers fell within MCA exemption where employer required them each to hold “a valid Class A commercial driver [’ s ] license and meet the driver qualification requirements of ” the FMCS A

, and issued them the Pocketbook containing “a compilation of13 relevant regulatory information”). B ecause KCI is an employer under the jurisdiction of the DOT and Plaintiffs are
members of a class of employees who could reasonably be expected to drive interstate routes as part of their duties, the MCA exemption to the FLSA applies a nd Plaintiffs are ineligible for FLSA overtime wages.

C

Lastly

, we reject Plaintiff s’ attempt ed reliance on the
de minimis exception. See 29 C.F.R. § 782.2(b)(3) (noting
that the MCA exemption does not apply where the “safety

affecting activities” of the employee’s “continuing duties” “are so trivial, casual, and insignificant as to be de minimis” (citing Pyramid , 330 U.S. at 707

– 08 ) ). Although t he Supreme Court “ has recognized a de minimis exceptio n to the application of the MCA,” we have noted that “[a] number of courts have held that drivers should seldom, if ever, fall
within [it] .” Friedrich , 974 F.2d at 41 6, 417 n.10 (citing cases); see also Crooker v. Sexton Motors, Inc. , 469 F.2d 206, 210 (1st Cir. 1972) (“The activities of one who drives in interstate commerce, however frequently or infrequently, are not trivial.”). Indeed, th e DOT has recognized courts’ resistance to applying this exception to drivers. DOT Notice, 46 Fed. Reg. at 37,903 (“ The courts that have applied this principle find that it should seldom, if ever, be applied to
drivers because of the direct effect of driv ing on the safety of motor vehicle operations. ”). “ This is because the drive r’ s work more obviously and dramatically affects the safety of operation of the carrier during every moment that he is driving than does the work of the loader who loaded the
frei ght which the driver is transporting .” Levinson , 330 U.S.
at 678.14 T he only binding authority regarding the de minimis exception to which Plaintiffs direct us concerns employees engaged in “the mere handling of freight at a terminal[]
before or after l oading ” such that none of their activities affected “the safety of operation of motor vehicles” in interstate commerce so as to “come within the kind of ‘loading’” contemplated under the MCA. Pyramid , 330 U.S. at 708; see also, e.g.

, Reich v. Am. Driver S erv., Inc. , 33 F.3d 1153, 1157 (9th Cir. 1994) (reversing and remanding where there was no evidence at all that company engaged in interstate commerce during relevant time frame and expressly distinguishing “ claims of ju risdiction over a motor carrier’ s dr ivers who have not driven in interstate commerce when there is evidence that other drivers employed by the motor
carrier hav e driven in interstate commerce”). Other cases “suggest that a company’s interstate business is de minimis if
it constitutes less t han one percent of the overall trips taken by the company,” Walters v. Am. Coach Lines of Miami,
Inc. , 575 F.3d 1221, 1228 (11th Cir. 2009), circumstances not present here, s ee also id. (finding “no cases” applying the de
minimis exception to an employer t hat “has the appropriate federal licensing and [where] there is undisputed proof of some transportation that crosses state lines”). Given the undisputed facts concerning KCI’s interstate operations, which accounted for 1% to 9.7% of its Transit Division’s revenue, and Plaintiffs’ occupation, we decline to apply the
de minimis exception.

III

Thus , we will affirm the orders of the District Court.