2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-12-2015

Joseph Resch v. Krapf 's Coaches Inc

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"Joseph Resch v. Krapf's Coaches Inc" (2015). 2015 Decisions. Paper 488.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14-3679

_____________

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)

District Judge: Hon. William H. Yohn

______________

Argued: April 15, 2015

______________

Before: AMBRO, VANASKIE, and SHWARTZ, Circuit 

Judges.

(Filed: May 12, 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 for Krapf’s Coaches, Inc. 

(“KCI”), filed this 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 (“PMWA”). Because Plaintiffs fall within the 

“Motor Carrier Act exemption” to these statutes’ overtime 

provisions, the District Court correctly granted summary 

judgment to KCI and we will therefore affirm.
3

I

KCI is a motor coach company based in West Chester, 

Pennsylvania, and has a Transit Division that provides bus 

and shuttle services on set routes. Since 2009, KCI has 

operated thirty-two such routes, four of which cross state 

lines. From 2009 through 2012, the share of total Transit 

Division revenue generated by interstate routes 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 any 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 

Federal 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 “Driver 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 provides each driver with a 

“Federal Motor Carrier Safety Regulations Pocketbook” 

 

1 The FMCSA is an administration within the U.S. 

Department of Transportation responsible for regulating 

commercial motor carriers. See 49 U.S.C. § 113. 
4

detailing 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.

Plaintiffs were Transit Division drivers who, at some 

point during the relevant time period, worked more than forty 

hours in a week without receiving overtime pay. Of the 

13,956 total “trips” Plaintiffs 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. The District Court

granted his request to conditionally certify a class of 

“individuals who were 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 

Plaintiffs are ineligible for overtime under the Motor Carrier 

Act exemption to the FLSA and PMWA. 29 U.S.C. 

§ 213(b)(1); 43 Pa. Cons. Stat. Ann. § 333.105(b)(7). 

Plaintiffs appeal.

II3

 

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 summary 
5

A

This appeal requires consideration of two statutes: the 

FLSA and the Motor Carrier Act of 1935 (the “MCA”).4 The 

FLSA “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). Congress enacted the FLSA “to protect 

all covered workers from substandard wages and oppressive 

working hours” and to ensure that covered employees “would 

receive a fair day’s pay for a fair day’s work.” Parker v. 

NutriSystem, Inc., 620 F.3d 274, 279 (3d Cir. 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 genuine 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-moving 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 identical 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 common and 

contract 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 consideration of adequacy of 

compensation.” Starrett v. Bruce, 391 F.2d 320, 323 (10th 

Cir. 1968).

At 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 maximum hours of service 

pursuant to the provisions of section 31502 of Title 49” of the 

MCA. 29 U.S.C. § 213(b)(1). Section 31502(a)(1) applies to 

transportation “described in” § 13501, which in turn gives the 

DOT jurisdiction “over transportation by motor carrier . . . 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 of . . . 

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 “establish[es] a strict 

separation between the Secretary of Transportation’s 

jurisdiction and the ambit of the [FLSA’s] overtime 

guarantee”). 

Two considerations dictate whether the MCA 

exemption applies: the class of the employer and the class of 

work the employees perform. See 29 C.F.R. § 782.2(a). 

Specifically, 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 affecting 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 Whether 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 engaging “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 Court 

answered yes to this question based primarily on Morris v. 

McComb, 332 U.S. 422 (1947). 

In Morris, the Supreme Court addressed whether a 

group of truck drivers and mechanics employed by a Detroitbased common carrier fell within the MCA exemption. Only

3.65% of the truck drivers’ trips were interstate, and the 

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. Of the employer’s forty-three truck 

drivers: “every driver[] except two[] made at least one” 

interstate trip; the average 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 ICC, 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. “From the point of view of safety in interstate 
9

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 for 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 

affecting [interstate] safety, rather it is what he may do in the 

time thus spent, whether it be large or small, that determines 

the effect on safety”).

Applicable regulations echo the Morris Court’s focus

on the “class of work” performed by the employees

occupying the same position, 29 C.F.R. § 782.2(a), and the 

likelihood of the employer distributing those duties among

the employees 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, safetyaffecting 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 the public 

highways in transportation in interstate 
10

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 workweek, 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 has 

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 controls. 

Levinson, 330 U.S. at 674.7 

 

7 Because the inquiry focuses on what the class of 

employees could have reasonably been expected to do, the 

District Court properly declined Plaintiffs’ request to perform 
11

“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 as 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 

employees regularly travel interstate or reasonably are 

expected to do interstate driving.” DOT Notice, 46 Fed. Reg. 

at 37,903. 

Therefore, the relevant inquiry here is whether 

Plaintiffs reasonably could have 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 undisputed 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 

per month. With regard to distribution of interstate routes,

KCI had a “company policy” of training its drivers on as 

many routes as possible, retaining discretion to assign drivers

to drive either interstate or intrastate routes—at any time—on 

which they had been trained, and disciplining any driver who 

refused. See 46 Fed. Reg. at 37,903. Given this evidence, the 

 

an “individualized analysis” of the “actual employment 

circumstances” of each Plaintiff. 
12

District Court properly found no genuine dispute of material 

fact regarding whether Plaintiffs reasonably could have 

expected to drive interstate. Friedrich v. U.S. Computer 

Servs., 974 F.2d 409, 417 (3d Cir. 1992).

Further, unrefuted evidence reflects KCI’s adherence 

to federal regulations regarding the drivers. For instance, 

KCI requires that each driver possess a valid CDL, comply 

with FMCSA 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 Files” for all 

drivers, App. 77a, which the FMCSA 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, 

KCI 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 Regulations.” App. 80a. 

This recognition on the part of the drivers, together with 

evidence 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— reinforce the

drivers’ 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 FMCSA, 

and issued them the Pocketbook containing “a compilation of 
13

relevant regulatory information”). Because 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 and Plaintiffs are 

ineligible for FLSA overtime wages.

C

Lastly, we reject Plaintiffs’ attempted 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 “safetyaffecting 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 the 

Supreme Court “has recognized a de minimis exception 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 416, 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, the 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 driving on the safety of 

motor vehicle operations.”). “This is because the driver’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 

freight which the driver is transporting.” Levinson, 330 U.S. 

at 678. 
14

The 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 loading” 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 Serv., 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 jurisdiction over a motor carrier’s 

drivers who have not driven in interstate commerce when 

there is evidence that other drivers employed by the motor 

carrier have driven in interstate commerce”). Other cases 

“suggest that a company’s interstate business is de minimis if 

it constitutes less than 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, see also id. (finding “no cases” applying the de 

minimis exception to an employer that “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.