Buzek v. Pepsi Bottling Group, Inc. (501 F. Supp. 2d 876, 2007)

MEMORANDUM AND RECOMMENDATION

SMITH, United States Magistrate Judge.

This case presents an interesting issue of first impression in this circuit concerning the Employee Commuting Flexibility Act (“ECFA”), a 1996 amendment to the Portalto-Portal Act of 1947. 29 U.S.C. § 254(a). Plaintiff Eric Buzek claims that the Portal-to-Portal Act entitles him to compensation for time spent driving home from his last service call of the day, because transporting tools and making end-of-day reports from home are principal activities of his job. His employer, The Pepsi Bottling Group, responds that ECFA exempts such activities because they are “incidental to” the use of a company vehicle for commuting.

Cross motions for summary judgment (Dkts.30, 43) regarding defendants’ liability under the Fair Labor Standards Act (“FLSA”) have been filed, thoroughly briefed, and vigorously argued to the court. Convinced that ECFA renders the activities at issue non-compensable under the FLSA, the court recommends that defendants’ motion be GRANTED and plaintiffs motion be DENIED.

I. Background

Eric Buzek, a field service technician for defendant The Pepsi Bottling Group (“PBG”), drives from site to site repairing and servicing ice machines, vending machines, and fountain equipment for PBG customers. In 1994, PBG implemented a home-based program requiring Buzek to take home the company vehicle used for field service calls. Buzek signed an agreement stating that he is not permitted to drive the vehicle for personal reasons and is required to drive directly to the first job site and directly home from the last job site. Buzek also transports necessary tools and parts in the vehicle to make the service calls.

To report information about his field service calls, Buzek uses a company provided hand-held computer called an e-pad. The e-pad is used to record information throughout the day for the service calls including the time taken to drive to each job site, how long the technician works at each job site, the parts used in service, and the service provided. At the end of each day, Buzek makes a call from his home to his supervisor to report the last service call. He then plugs his e-pad into the telephone line so that it can upload and download information about his service calls to PBG. At this point, Buzek can walk away from the device as it automatically transmits the information. After the e-pad finishes communicating with PBG, Buzek unplugs his e-pad from the phone line and plugs it into a charger. Buzek estimates that he spends eight to ten minutes on his end-of-day communication, while PBG estimates that Buzek routinely spends about two minutes. Buzek’s estimate, however, includes time spent if the equipment malfunctions (i.e. his printer battery dies in the field or his call rings a few times rather than going straight to voice mail), which happens only sporadically. PBG’s estimate assumes that Buzek’s equipment functions properly.

II. Legal Standards

A.Summary Judgment

Summary judgment is appropriate if no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir.2001). Dispute about a material fact is “genuine” if the evidence could lead a reasonable jury to find for the nonmoving party. In re Segerstrom, 247 F.3d 218, 223 (5th Cir.2001). “An issue is material if its resolution could affect the outcome of the action.” Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir.2002). The movant need not introduce evidence to negate the opponent’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In this ease each side contends that, based on undisputed facts in the summary judgment record, it is entitled to summary judgment as a matter of law. When both parties move for summary judgment, each party must carry its own burden as the movant for its motion and as the nonmov-ant in response to the other party’s motion. Shaw Constructors v. ICF Kaiser Engineers, Inc., 395 F.3d 533, 538-39 (5th Cir.2004). Summary judgment may be particularly appropriate when the questions to be decided are issues of law, such as statutory interpretation. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 595-96, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987).

B. The Fair Labor Standards Act

The purpose of the FLSA is to ensure that employees are paid for all hours worked in a given workweek, including overtime hours. 29 U.S.C. §§ 206, 207; see Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602, 64 S.Ct. 698, 88 L.Ed. 949 (1944). As enacted in 1938, the FLSA did not define the terms “work” or “workweek.” Early Supreme Court decisions broadly construed those terms, holding for example that factory workers must be paid for time necessarily spent walking from time clocks near the entrance gate to their workstations. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 691-92, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). Concerned that these judicial interpretations of the FLSA were “creating wholly unexpected liabilities,” Congress in 1947 passed the Portal-to-Portal Act, amending certain provisions of the FLSA.

C. The Portai-to Portal Act

The Portal-to-Portal Act narrowed the coverage of the FLSA by excepting two activities that had been treated as compen-sable under prior case law: (1) walking, riding, or traveling to and from the actual place of performance of the principal activity of the employee; and (2) activities which are “preliminary to or postliminary to” that principal activity. 29 U.S.C. § 254(a). The statute does not define “principal activity.” In Steiner v. Mitchell, 350 U.S. 247, 252-53, 76 S.Ct. 330, 100 L.Ed. 267 (1956) the Supreme Court held activities which are “integral and indispensable” to an employee’s principal activities are also compensable and not excluded under the Portal-to-Portal Act. See also Dunlop v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir.1976) (test for “principal activity” is whether the “work is necessary to the business and is performed by the employees, primarily for the benefit of the employer, in the ordinary course of that business”).

A regulation issued by the Secretary of Labor shortly after enactment concluded that the statute had no effect on the computation of hours worked “within” the workday. 29 C.F.R. § 790.6(a). Under the “continuous workday rule,” the com-pensable workday is defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” 29 C.F.R. § 790.6(b). The validity of this rule was recently reaffirmed by the Supreme Court in IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S.Ct. 514, 521, 163 L.Ed.2d 288 (2005).

D. The Employee Commuting Flexibility Act

The stated purpose of ECFA was “to amend the Portal-to-Portal Act of 1947 relating to the payment of wages to employees who use employer-provided vehicles” for commuting. See H.R. Rep. 104-585, at p. 2. The need to clarify this issue arose from conflicting DOL opinion letters issued in 1994 and 1995. The August 1994 opinion letter ruled that time spent by an employee traveling from home to the first work assignment, or returning home from the last assignment, was similar to that of traveling between jobs during the day, and therefore constituted a principal activity which must be compensated. No compensation would be required where employees used their own personal vehicles, however. In response to employer concerns, the DOL issued a revised opinion letter in April 1995, withdrawing the earlier opinion letter and modifying its position. Under the new opinion letter, commuting time in a company-provided vehicle need not be compensated under the following conditions: (1) commuting in the vehicle is strictly voluntary and not a condition of employment; (2) the vehicle is the type normally used for commuting; (3) employees incur no costs for driving the employer’s vehicle; and (4) the work sites are within the normal commuting area for that employer.

Dissatisfied, Congress responded to the DOL’s inconsistency by passing ECFA. This act added the following language to section 4 of the Portal-to-Portal Act:

For purposes of this subsection, the use of an employer’s vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be considered part of the employee’s principal activities if the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.

29 U.S.C. § 254(a) (emphasis supplied).

The effect of ECFA is to carve out, from the realm of generally compensable time, two types of employee activity pertaining to commuting in a company vehicle: (1) travel and (2) incidental activities. Although the term “travel” was already part of the original Portal-to-Portal Act, the category of “incidental activities” is new. In fact, the word “incidental” was not previously found in the Portal-to-Portal Act. Instead, that Act referred to activities “preliminary to or postliminary to” principal activities. 29 U.S.C. § 254(a)(2). The significance of this different phrasing will be addressed below.

III. Analysis

This dispute resolves to a question of statutory interpretation — whether transportation of tools and end-of-day reports are “incidental to” the use of a company vehicle for commuting, and hence non-compensable under ECFA. It is of course a truism that statutory construction begins with the “ordinary, contemporary, common meaning” of the words of the statute. Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Resort to legislative history is permitted only if the language is unclear or ambiguous. Free v. Abbott Laboratories, 51 F.3d 524, 528 (5th Cir.1995).

A. Text, Plain Meaning, and Dictionaries

Buzek leans most heavily upon what he argues is the plain and unambiguous meaning of the statutory phrase incidental to. Buzek contends that the phrase goes beyond mere “relatedness,” as PBG would have it; rather, the word incidental “captures both the concept of causality and necessity,” and is synonymous with “necessarily required.” From this premise, Buzek argues that his activities must be compensable because they are not necessarily required for commuting in a company vehicle; rather they are “required” only in the sense that PBG has chosen to structure its program in that way.

Buzek relies upon two separate dictionaries in support of his restrictive definition of incidental. Unfortunately for him, neither dictionary (nor any other consulted by this court) bears out his premise. The first dictionary cited is Dictionary.com Unabridged, which gives three definitions for the adjective “incidental”:

1. happening or likely to happen in an unplanned or subordinate conjunction with something else. 2. incurred casually and in addition to the regular or main amount: incidental expenses. 3. likely to happen or naturally appertaining.

None of these definitions denotes a relationship of necessity or causality, contrary to Buzek’s claim. To say that activity X is likely to happen in connection with activity P does not imply that P necessarily caused X. While sitting on my back porch in the evening (P), I may often be able to watch the sun go down (X), but the sunset is not caused by my evening routine. Viewing the sunset is merely an incidental (though perhaps predictable) benefit of my principal evening activity.

Further underscoring this point are the dictionary’s suggested synonyms: “casual, chance, fortuitous, contingent.” These terms do not imply something that is necessarily required; to the contrary, a “casual” or “chance” relationship is nearly the polar opposite of a “causal” or “necessary” relationship. Measuring Buzek’s “incidental” activities by a “casual” standard, there is little doubt that they are at least casually related to commuting. Transporting tools is facilitated by use of a company vehicle, and end-of-day reports from home allows the employer to communicate with employees who go straight home after their last service call, rather than back to their employer’s facility.

Buzek fares only marginally better with the other dictionary cited, a previous edition (6th ed.1990) of Black’s Law Dictionary. That edition defined incidental as “something necessary, appertaining to, or depending upon another which is termed the principal.” The difficulty here is that, although this particular definition does suggest the concept of necessity, the current edition eliminates it entirely:

incidental, adj. Subordinate to something of greater importance; having a minor role <