Brantley v. Ferrell Electric, Inc. (112 F. Supp. 3d 1348, 2015)

ORDER

J. RANDAL HALL, District Judge.

Plaintiffs Johnny Brantley and Robert M. Pou brought this action against their former employer, Ferrell Electric Inc., and its owner and president, James N. Ferrell, to recover unpaid overtime wages pursuant to the Fair Labor Standards Act (“FLSA” or “the Act”), 29 U.S.C. § 201 et seq. Defendants now move for summary judgment and to strike evidence submitted by Plaintiffs in support of their brief in opposition. For the reasons that follow, the Court DENIES Defendants’ motions to strike (Doc. 100, 101, 102, 103) with one exception (Doc. 99) and DENIES Defendants’ motion for summary judgment on all grounds (Doc. 85).

I.MOTIONS TO STRIKE

Defendants move to strike the declarations of Plaintiff Brantley, Plaintiff Pou, Jasen Adams, Lance Barnes, and Martin Menefee, as well as any accompanying exhibits. (Docs. 99, 100, 101, 102, 103.) The parties have expended a great deal of time and energy filing and responding to these motions, which many courts have described as “time wasters.” See, e.g., Haynes v. Twin Cedars Youth & Family Servs., Inc., No. 5:10-CV-321-CAR, 2012 WL 895699, at *5 (M.D.Ga. Mar. 15, 2012); Purdee v. Pilot Travel Ctrs., No. CV 407-028, 2009 WL 423976, at *1 (S.D.Ga. Feb. 19, 2009). In fact, “[u]n-less it is clear that the matters stricken have no possible relationship to the controversy and may prejudice the other party, motions to strike are generally disfavored.” McNair v. Monsanto Co., 279 F.Supp.2d 1290, 1297 (M.D.Ga.2003). Moreover, the terms of Federal Rules of Civil Procedure 12(f) and 7(a) make clear that only “redundant, immaterial, impertinent, or scandalous matter” in a pleading may be subject to a motion to 'strike. Briefs or memoranda, objections, or affidavits may not be, attacked through this mechanism. Rindfleisch v. Gentiva Health Servs., Inc., 962 F.Supp.2d 1310, 1316 (N.D.Ga.2013); Jeter v. Montgomery Cnty., 480 F.Supp.2d 1293, 1296 (M.D.Ala.2007).

Nevertheless, given that Plaintiffs submitted the challenged declarations in opposition to Defendants’ motion for summary judgment, the declarations must comply with the requirements of Federal Rule of Civil Procedure Rule 56(c)(4). Rule 56(c)(4) makes it plain that such declarations “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall affirmatively show that the affiant is competent to testify to the matters stated therein.” Defendants present a litany of objections, largely unsupported by any authority from this circuit, which include the following:

1. Paragraph-by-paragraph objections based on the Federal Rules of Evidence;

2. The declarations are not based on personal knowledge;

3. The declarations contain only con-clusory allegations;

4. The declarations were not disclosed during discovery;

5. The sham affidavit rule applies; and

6. The declarations do not satisfy the verifications requirements of 28 U.S.C. § 1746.

The Court takes notice of the complaints set forth in 1 through 3. A specific ruling on each objection is unnecessary, as the emphasis placed on each of the challenged statements is implicit in the Court’s ruling on summary judgment. The Court is capable of reviewing the relevant evidence, as required by the summary judgment standard and other binding precedent, without resorting to an exclusionary process. See Lee v. Nat’l Life Assurance Co. of Canada, 632 F.2d 524, 529. (5th Cir.1980) (noting that the court may strike or disregard improper portions of a declaration submitted in connection with a motion for summary judgment and consider the remainder of the testimony or statement); Haynes, 2012 WL 895699, at *7 (same).

As the remaining, complaints affect the admissibility of the supporting declarations in their entirety, the Court addresses each in turn. Plaintiffs do- not contest Defendants’ objections to the declaration of Mr. Menefee but have failed to withdraw, it, (Doc. 108-2 at 1.) Thus, the Court GRANTS Defendants’ Motion to Strike Mr. Menefee’s declaration. (Doc. 99.)

A. The Sham Affidavit Rule

Defendants argue that the Court should strike Plaintiff Brantley’s and Plaintiff Pou’s post-deposition, post-motion declarations because they "do not address ‘new’ issues,”'but rather “seek to radically change” prior sworn testimony. (Doc. 102 at 8; Doc. 103 at 8.) Recognizing that parties may try to escape summary judgment by using affidavits to create issues of fact'where none exist, the Eleventh Circuit has allowed an affidavit to be disregarded as a “sham”'if it flatly contradicts earlier deposition testimony in a manner that cannot be explained. Van T. Junkins & Assoc. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir.1984). Under the sham affidavit rule, “Lw]hen a party has given clear answers to unambiguous questions which negate the existence'of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Id. The sham affidavit concept applies in limited circumstances:' “[e]very discrepancy contained in an affidavit does not justify a district court’s refusal to give credénce to such evidence.” Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.1986). The Court must be careful to distinguish “between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence.” Id. at 953. Accordingly, the movant bears a heavy burden to exclude a declaration or affidavit as a sham. Merritt v. Hub Int’l Sw. Agency Ltd., No. 1:09-CV-00056-JEC, 2011 WL 4026651, at *3 (N.D.Ga. Sept. 12, 2011) (citing In re Stand ‘N Seal, Prods. Liab. Litig., 636 F.Supp.2d 1333, 1335 (N.D.Ga.2009)), aff'd, 466 Fed.Appx. 779 (11th Cir.2012).

For all of the statements that the Defendants say violate the sham affidavit rule— which they have “argued” by slapping a label in a chart of objections — Defendants fail to point to any unequivocal question or answer in Plaintiffs’ depositions that directly contradict any statement in Plaintiffs’ declarations. The Court will not scour hundreds of pages of deposition testimony to search for evidence that might bolster Defendants’ argument.

Defendants appear to take the most offense to sections of Plaintiffs’ declarations that set forth in great.detail “Calculation[s] of Unrecorded Compensable Time.” (Doc. 89-1, ¶¶ 29-35; DOC 90-1, ¶¶ 26-32; Doc. 102 at 9; Doc. 103 at 9.) Defendants argue that

Plaintiffs’ affidavits make no mention why they now provide detailed, data driven estimates of the number of unpaid overtime wages they worked. During discovery, Plaintiffs swore that they could not come up with a reasonable estimate for the number of hours owed.... Plaintiffs could not identify any specific weeks they had worked more than 40 hours yet not been properly paid.

(DOC. 102 at 9; Doc. 103 at 9.)

The Court fails to see the relevance of Plaintiffs’ precise damages calculations at this stage. As discussed infra, Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946), sets out the appropriate standard for determining whether a plaintiff has presented sufficient evidence of damages to avoid summary judgment in an FLSA case, and specificity is not required. Anderson further stated that

[t]he employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had he kept records in accordance with the requirements of ... the Act. And even where the lack of accurate records grows out of a bona fide mistake as-to whether certain activities or non-activities constitute work, the employer, having received the benefits of such work, cannot object to the payment for the work on the most accurate basis possible under the circumstances.

Id. at 688, 66 S.Ct. 1187.

Moreover, by Plaintiffs’ counsel’s own admission, Plaintiffs’ sworn declarations were made in part to attempt to rebut Defendants’ argument that the challenged travel time was de minimis. (Doc. 108-2 at 12-13; Defs.’ Br. at 16 (“The few minutes [Plaintiffs] may have spent ... driving from a job site at the end of a day is de minimis; in the event that' the Court finds that the time constitutes work' it is not compensable as de minimis.”); see J. Ferrell Dep., Doc. 83, at 27-75 (reviewing each of Plaintiffs’ timesheets and testifying that travel time rarely exceeded ten minutes for each address or worksite identified).) Such an attempt to rebut issues that Defendants raised is perfectly legitimate on Plaintiffs’ part. The Court, therefore, will not exclude the declarations on this basis.

B. Failure to Disclose During Discovery

Defendants raise a number of arguments related to purported discovery violations that should result in the Court ignoring all of the supporting declarations. To summarize, (1) Jasen Adams’ name was not included in Plaintiffs’ initial disclosures as an individual likely to have discoverable information (Doc. 100 at 2-3);- (2) Lance Barnes’ name was not included in Plaintiffs’ initial disclosures as an individual likely to have discoverable information (Doc. 101 at 3); (3) Defendants’ policy manual, submitted as an exhibit to Mr. Barnes’ declaration, should have been produced by Plaintiffs in conjunction with initial disclosures or supplemented thereafter (id. at 3-4); and (4) “Plaintiffs’ deposition testimonies contained either no estimates or only conelusory estimates and not the information Plaintiffs now provide” about damages, and Defendants “repeatedly” requested such information before litigation and throughout discovery (Doc. 102 at 4-7; Doc. 103 at 3-7).

As a threshold matter, Defendants seek to exclude at least two of the declarations solely because they did not have the opportunity to scrutinize them during discovery. (See Doc. 100 at 2 (“This Court should strike the Declaration of -Jasen Adams in its entirety as the Declaration was not disclosed to the Defendants until the time of filing .... [and] was not properly produced in discovery.”); Doc. 101 at 4 (“This Court should strike the Declaration of Lance Barnes in its entirety as the Declaration was not disclosed to the Defendants until the time of filing ... and was not previously produced in discovery.”).) “Recent cases have generally held that draft affidavits, and communications with counsel relating to affidavits, are covered by the work-product rule.” 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 n. 23 (3d ed.2010) (citing Randleman v. Fidelity Nat’l Title Insur. Co., 251 F.R.D. 281, 284-86 (N.D.Ohio 2008); see also Live Nation Worldwide, Inc. v. Cohl, No. 10-24144-CIV, 2011 WL 5597348; at *2 (S.D.Fla. Nov. 17, 2011)). Plaintiffs’ and the non-parties’ executed affidavits remained work product until Plaintiffs’ counsel elected to serve and file them. The Court therefore declines to exclude the declarations on this basis.

1. Jasen Adams’ and Lance Barnes’ Declarations

A failure to identify a witness as required by Federal Rule of Civil Procedure 26(a) and (e) bars a party from offering that witness “to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1) (emphasis added). “The burden of establishing that á failure to disclose was substantially justified or harmless rests on the nondis-closing party.” Mitchell v. Ford Motor Co., 318 Fed.Appx. 821, 824 (11th Cir.2009) (citation omitted); Thornton v. United States, No. CV 111-106, 2013 WL 443666, at *6 (S.D.Ga. Feb. 5, 2013). On the present record, it is undisputed that Plaintiffs’ counsel failed to disclose the name of Mr. Adams and Mr. Barnes upon which Plaintiffs rely in opposition to Defendants’ motion for summary judgment. It is also undisputed that Plaintiffs failed to supplement their initial disclosures at an appropriate time pursuant to Rule 26(e)(1). Plaintiffs do , not offer any. justification, substantial or otherwise, for their failure to identify Mr. Adams and Mr. Barnes in a timely fashion. Rather, Plaintiffs argue that any noncompliance was harmless. (See Pls.’ Resp. at 18-21.) .Specifically, Plaintiffs point out that Mr. Barnes, through the same counsel, brought an identical suit against Defendants in April 2013 of which Defendants surely were and are aware. Barnes v. Ferrell Electric, Inc., No. 1:13-CV-000056 (S.D.Ga. April 8, 2013). In that suit, Plaintiffs’ counsel disclosed Mr. Adams as an individual likely to have discoverable information. Mr. Adams then filed an identical suit through the same counsel against Defendants in September 2014, which is ongoing. Swygert v. Ferrell Electric, Inc., No. 1:14-cv-00181 (S.D.Ga. Sept. 15, 2014.)

District courts have broad discretion to determine whether a violation of Rule, 26(a)(2) is harmless. Thornton, 2013 WL 443666, at *6 (citing Silverstein v. Procter & Gamble Mfg. Co., 700 F.Supp.2d 1312, 1320 (S.D.Ga.2009)). “[I]n exercising its broad,discretion to determine whether а. [Rule 26 violation] is ... harmless for purposes of a Rule 37(c)(1) exclusion analysis, a district court should be guided by the following factors: (1), thp surprise to the party against whom the evidence would be offered; (2) the ability of that party -to cure the surprise; (3) the extent to which allowing the evidence would disrupt, the trial; [and] (4) the importance of the evidence....” Abdulla v. Klosinski, 898 F.Supp.2d 1348, 1359 (S.D.Ga.2012), aff'd, 523 F. App’x 580 (11th Cir.2013) (citations omitted).

The Court finds the surprise to Defendants is marginal given their contemporaneous litigation history with Mr. Adams and Mr. Barnes. Despite Defendants’ apparent outrage, Mr, Adams’ and Mr. Barnes’ name arose no less than fifteen times in Plaintiffs’ depositions — taken by Defendants months before the close of discovery — often within the content of Defendants’ own questions. Moreover, the importance of the evidence is minimal. Plaintiffs cite Mr. Adams’ declaration only twice (Pls.’ Resp. at 15, 21) and reference Mr. Barnes’ declaration four times in three pages of twenty-four (id. at 14, 15, 21). Even cursory review reveals that these citations are largely repetitive of Plaintiffs’ own testimony about the unwritten policies in place at Ferrell Electric governing the work day and compensation. Plaintiffs’ partial non-compliance with Rule 26(a) and (e) caused no discernible harm to Defendants and therefore does not warrant exclusion of Mr. Adams’ and Mr. Barnes’ declarations under Rule 37(c)(1).

The Court is well aware of the many conflicts that arose during discovery and does not in any way condone Plaintiffs’ approach to Mr. Adams’ and Mr. Barnes’ declarations, which toes the line of candor and flouts the spirit of the Federal Rules. But there is no allegation or evidence whatsoever of willful-noncompliance or bad faith on the -part of Plaintiffs that would warrant exclusion either. See OFS Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1363 (11th Cir.2008); Vaughn v. United States, 542 F.Supp.2d 1331, 1337 (S.D.Ga.2008).

' 2. Damages Calculations

Defendants broadly contend that Plaintiffs’ declarations “[are] based on information which Defendants have ' repeatedly requested both before. litigation and throughout discovery in this matter[.]” (Doc. 102 at 4; Doc. 103 at 4.) They somewhat clarify that. Plaintiffs “repeatedly] fail[ed] to concisely and .correctly provide the Defendants with their calculation of alleged damages prior to the close of discovery,” and “Plaintiffs failure to do so precludes, them from using, this evidence now to avoid summary judgment.” (Id.) Defendants complain that Plaintiffs’ depositions “contained either no estimates or only -conclusory estimates.” (Doc. 102 at 6; Doc. 103 at 6.) To the extent the Court can discern, therefore, Defendants object that Plaintiffs present a reduced estimate of damages, which they accomplished by calculating return travel time with infor-ipation on the timesheets in both parties’ possession and Google Maps. (See Doc. 102 at 6 n. 1; Doc. 103-at 6 n. 1.)

The Court states only that instead of attempting to resolve this purported Rule 26(e)(1) dispute during discovery and' cure any surprise or harm Defendants felt they had suffered, Defendants moved for summary judgment — effectively seeking the harshest sanction available. Defendants never moved the Court for an order requiring any more detailed response to any specific interrogatory; the motions to compel on the record (Docs. 59, 61) do not speak to damages’ in any sense. Defendants had every opportunity to raise this issue with the Magistrate Judge, who held two telephone.conferences to address the parties’ numerous discovery issues — one of which lasted nearly an hour. (See Docs. 56, 64-65.) The Court finds that none of the Abdulla factors weigh in favor of excluding the declarations to the extent they address Plaintiffs’damages.

C. Veriñcation Pursuant to 28 U.S.C. § 1746

When ruling on summary judgment, the Court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits submitted by the parties. See Fed.R.Civ.P. 56(c). An affidavit is “[a] voluntary declaration of facts written down and sworn to by the declarant, [usu]ally before an officer authorized to administer oaths.” Black’s Law Dictionary 68 (10th ed.2009). Pursuant to 28 U.S.C. § 1746, for purposes of summary judgment, an unsworn declaration may be given the same force and effect as an affidavit if it is signed and dated and includes language in substantially the following form: “I declare (or certify, verify, or state) under penalty of perjury ... that the foregoing is true and correct. Executed on (date). (Signature).”

Defendants’ final ground for striking the supporting declarations is that they do not comply with 28 U.S.C. § 1746. Specifically,, the supporting declarations start with the statement “Personally appeared the undersigned, (Name), who with knowledge of the penalty for perjury stqtes that the following facts are true of my own personal knowledge” and end with the appropriate signature. (See Docs. 89-1, 90-1, 91-1, 92-1 (emphasis added).) Defendants argue that counsel’s omission of the prepositional phrase “under penalty, of perjury” constitutes a complete failure to comply with 28 U.S.C. § 1746 and precludes the Court from giving the supporting declarations any probative effect.

All of this could have been avoided by Plaintiffs’ use, verbatim; of the language set out in 28 U.S.C. § 1746. Indeed, in response to Defendants’ motions to strike, Plaintiffs’ counsel has resubmitted each declaration with the preferred “under penalty of perjury” language. Because Plaintiffs have corrected this technical defect, the Court also will not exclude the declarations on this ground. See Insituform Technologies, Inc. v. AMerik Supplies, Inc., 588 F.Supp.2d 1349, 1355 (N.D.Ga.2008) (declining, to strike a witness’s declaration, which was signed by the witness’s attorney on the witness’s behalf, because the witness resubmitted an identical version with the. appropriate signature). Hereinafter, the Court will cite to the cured versions of the declarations, identified on the docket as entries 109-1 through 109-4.

II. BACKGROUND

A. The Work Day

On January 20, 2014, Plaintiffs brought this action to recover unpaid overtime wages for three categories :of work: (1) “morning activities”, i.e. receiving a.slip from supervisors regarding the day’s assigned job sites and collecting the relevant supplies; (2) return travel from the job site to the shop; and (3) postshift “evening activities,” i.e. storing certain unused materials and reporting to supervisors the day’s progress and the team’s performance. (Doc. 1; Pls.’ Resp. at 1.) Ferrell Electric employed Plaintiff Pou as an electrician from approximately July 2011 to July 2012 and Plaintiff Brantley in the same role from approximately January 2010 until May 2013, (Brantley Dep., Doc. 73 at 9, 16, 51, 52; Brantley Decl., Doc. 109-1, ¶¶ 2, 24; Pou Dep., Doc. 75, at 13.) Plaintiffs’ principal job duties were to install electrical equipment — cable, panel boxes, light fixtures, wall sockets, etc. — at residential sites and handle service calls in the Central Savannah River Area (“CSRA”) of Georgia and South Carolina, (Brantley Dep. at 16, 17, 81-83; J. Ferrell Dep. at 94; Pou Dep. at 22) Ferréll Electric employees worked in teams of two or three to complete these jobs, and Plaintiffs, as lead electricians, provided guidance on site to their helpers or apprentices, but did not have any official supervisory authority. (Brantley Dep. at 16-18; Pou Dep. at 27.) Ferrell Electric also assigned Plaintiffs to drive the company truck. (Brantley Decl. ¶ 3; Pou Decl., Doc. 109-4, ¶ 3; see also J. Ferrell Dep. at 92-93 & Ex. 17.) Mr. Pou drove the truck “pretty much all the time” because two of his three helpers did not have licenses. (Pou Decl. ¶ 3.) Mr. Brant-ley drove the truck “a majority of the time,” although sometimes he would choose to ride. (Brantley Decl. ¶ 3; Brantley Dep. at 40, 44.)

The work day at Ferrell Electric began at 7:00 AM and concluded at 3:30 PM. (Brantley Dep. at 37, 41; J. Ferrell Dep. at 7-8; King Dep., Doc. 79, at 5; Wilson Dep. Ex. 16 (“Pre-2012 Policy Manual”) at 6; id. Ex. 14 (“July 2012 Policy Manual”) at 4.). At approximately 6:45 AM or 6:50 AM, Mr. Ferrell or one of the supervisors would arrive and open the warehouse. (J. Ferrell Dep. at 8; King Dep. at 4; Pou Dep. at 31-32.) Plaintiff Brantley testified that he was told to arrive at 6:45 and that he saw Dominic Migilionico, a supervisor, “get on to employees for pulling into the Ferrell Electric property arriving. after 6:45.” (Brantley Dep. at 39, 90; Brantley Decl. ¶¶ 7, 8.) Plaintiffs concede, however, that Ferrell Electric did not consider its employees “late” or dock pay until 7:01 AM. (Brantley Dep. at 40; Pou Dep. at 16; see also Brantley Dep. at 89-90 (stating that not all helpers arrived at 6:45 AM because “i[t] was just their habits,” and other employees ran late or “couldn’t ever get to work on time”); J. Ferrell Dep. at 101; Wilson Dep. at 28.)

On the other hand, Dock King, the residential project manager, testified that the employees’ day began at 7:00 AM, as it took him “a few minutes to get [his] notes from the previous day, plus the emails and additional notes that. [he] may have received after hours,” compile them, and finish the schedule, for. the day’s work after arriving, (King Dep. at 8-9.) He further affirmed, as did Mr. Ferrell, that.there was not a line of employees waiting to start work at 6:45 AM or 6:50 AM. (Id. at 15; J. Ferrell Dep. at 102.)

Before the teams leave the shop premises, the supervisor “give[s] them orders for the day” on a task sheet. (Brantley Dep. at 60, 84; King Dep. at 5, 7.) The employees then “get whatever it is they need out of the warehouse” and load up the truck. (J. Ferrell Dep. at 8; see also Brantley Dep. at 39 (‘We’d go in there and get laid out for the day on what you were going to be doing and you would be loading the truck.”), 42-43, 84.) The employees provided and loaded their own-hand tools, but “some stuff’ — “[w]hat ever could be locked up” — was stored on the truck or van overnight and available for usé in the morning. (Brantley Dep. at 59, 84, 87). Mr. King and Mir. Ferrell both testified that it took the teams ten minutes or less to load up. (J. Ferrell Dep. at 12; King Dep. at 11.)

At the end of the day, each team “tried to load up and leave at 3:30 from the job site.” (Brantley Dep. at 86.) Upon returning to the shop, Plaintiff Brantley testified. that the team must fill out their timesheets, “[ujnload the stuff that’s on the truck that somebody could steal,” like “[ejlectrical wire or anything that could be damaged from the weather,” but the Ferrell Electric’s tools would stay on the truck. (Id. at 87; Brantley Decl. ¶ 19.) Mr. Pou added that “[r]oughly three out of five days [he] would have to unload stuff ... because it was leftover supplies” and “every day [he] worked for Ferrell [he] would ... help unload other employees’ trucks.” (Pou Decl. ¶ 18.) Supplies also could be properly secured in a van. (Id. ¶ 17.)

Mr. Brantley also had to “see and go talk to management and find out what is going on for tomorrow and let them know where we stand for the next day so they could plan.” (Brantley Dep. at 88, 94 (“I was told by Dominic that after our day ended and we got back to the shop that we needed to be in there talking to them and letting them know what’s going on because people were leaving and getting in their trucks and going home”); Brantley Decl. ¶ 20 (“In a meeting Mr. Migilionico told electricians that they had to report to him every day before leaving to go home for the day.”); see also Pou Decl. ¶ 19.)

In contrast, Mr. Ferrell explained that the employees only take from the warehouse what they will consume at the job site, “so there shouldn’t be anything to put up when you come back.” (J. Ferrell Dep. at 101.) He testified it.was a “fair statement” that “when the guys came back to the shop at night there was little or no energy or work spent taking supplies back out of a truck and putting them in a warehouse.” (Id. at 95.) When asked “[A]re there things that you then take back out of the truck arid put in the warehouse at night sometimes?” Mr. Ferrell responded, “Why-would you do that. You’ve got a van. You lock the van up.” (Id. at 94.) The employees have a choice to leave their personal tools in the truck overnight or take them home. (Id. at 100.) Mr. King similarly testified that when the teams returned to the warehouse, “[t]hey park the trucks, they get in their ears and they leave.” (King Dep. at 11.) Very few supplies, “if any,” go back into the warehouse overnight. (Id.)

B. Use of Company Vehicles & Equipment

A number of Ferrell Electric policies were in place about use of the company trucks, tools, and equipment during Plaintiffs’ tenure. Before July 2012, the Ferrell Electric policy manual provided that “[i]n the event that Ferreil Electric, Inc. provides tools or equipment, the employee(s) is responsible for the return of those items in the same condition to the shop at the end of each day.” (Pre-2012 Policy Manual at 8.) It further stated that “[a]ny excess materials’ shall be put back on the warehouse shelves and not left in the trucks.” (Id. at 10 (emphasis added).) With respect to company vehicles, the July 2012 policy manual outlined that personal use could be pre-arranged but was otherwise “strictly prohibited,” and “Management must approve use of employee’s vehicles' for business purposes.” (Id.) According tó Mr. Ferrell, this manual was drafted in approximately 1995. (J. Ferrell Dep. at 91.)

Upon hire in July 2012, Andrew Wilson, Ferrell Electric’s office manager, overhauled the policy manual. (See J. Ferrell Dep. at 108.) In addition to the provisions just described (see July 2012 Policy Manual at 7-9), Mr. Wilson included the following: “All employees, if they would prefer not to drive their own car, may arrive at the shop at 7:00am and ride with your crew to the jobsite” (id. at 4). More specifically, “[h’Jelpers [were] not required to arrive at the shop or ride in the company truck to any of the jobsites. Helpers [could] take their own cars, at their convenience, as long as they arrive for work at the designated start time.” (Id.) At least one employee, however, was deemed “responsible for driving the Ferrell Electric [c]ompany truck,” and he was required to “meet at the Ferrell shop at 7:00am to gather tools, materials, and schedule for the day.” (Id.) Anyone -could drive the company vehicle, as long as they had a driver’s license and “were covered under the insurance.” (Brantley Dep. at 41; 2012 Policy Manual at 4; Pre-2012 Policy Manual at 10.)

Similarly, Plaintiff Brantley testified that employees were allowed to drive independently to the job site, so long as “you discussed it with whoever was in charge at that time” and there was “a stipulation of how are you going to get your material and tools there.” (Brantley Dep. at 38.) Bringing your own car did not require permission, “but if you wanted to drive, ... you had to tell somebody.” (Id. at 85.) Plaintiff Pou added that he was not allowed to drive his own truck to a job once after the company van broke down. (Pou Dep. at 17.) Employees were free to be picked up from the job site or depart early in their .own vehicles “if [they] had a reason to leave” (Brantley Dep. at 40-41; see also J. Ferrell Dep. at 89-90; King Dep. at 19), which Plaintiffs did more than once (Brantley Dep. at 85; Pou Dep. at 32). Both Plaintiffs also drove Ferrell Electric trucks home from the job site on more than one occasion, especially at points when each of them suffered car trouble. (J. Ferrell Dep. at 22, 103; Pou Dep. at 32.) In fact, Mr, Ferrell “never” refused an employee use of the company, truck to go home if they asked. (J. Ferrell Dep. at 103.)

Plaintiff Brantley estimates that he drove or . rode in the company truck back from the last job site all but ten times .during his tenure. (Brantley Decl. ¶ 14.) Plaintiff Pou estimates that he drove or rode in the company truck back from the last job site all but one week during which he received permission from Mr. Ferrell to take the van straight: home on., account of car trouble. (Pou Decl. ¶ 13.).

C. Timesheets & Compensation Policies

Ferrell Electric did -not use a time clock, but rather relied exclusively on its employees to fill out their own paper timesheets at the end of each day. (Brantley Dep. at 71; J. Ferrell Dep. at 10, 104; Pou Dep. at 34; Wilson Dep. at. 12-13, 19, 21; July 2012 Policy Manual at 4; Pre-2012 Policy Manual at 6.). According to the pre-2012 policy manual, employees were to be “paid for travel to the job each day but travel is NOT paid back to the shop in the evening.” (Pre-2012 Policy Manual at 6.) Thus, if an employee left the job site at 3:00 PM, that is when the job stopped, not when the employee' reached the shop if they chose to return with the company truck. (Id.) In the same way, for out-of-town work, travel was paid “only on the trip to the job[;] travel home in the eve ning/next day is not paid.” (Id.)

The July 2012 policy manual departed dramatically from this posture. First,- it set forth that the driver of the company truck “will be paid their usual wages for the drive from the shop to the job site, and their usual wages for the time to drive back at the end of the day. ” (July 2012 Policy Manual at 4 (emphasis added).) Helpers and other hourly employees are “not paid for the time to drive their own cars to the job or home,” and all employees who choose to ride with the crew to the jobsite “will be paid whenever the work begins- on the jobsite and whenever it ends on the jobsite.” (Id. (emphasis added).) Second, the July 2012 policy manual provided that employees “will also be paid for any time spent loading the truck, if you aré requested to do so. If this involves only a few minutes or seconds, the DOL regulations leave it up to you as to whéther you want to record this time.” (Id.)

The practical effect of the updated manual’s provisions largely, is in dispute. Plaintiff Brantley signed an acknowledgment that he received the updated policy manual in August 2012 (see Wilson Dep. at 15-46 & Ex. 2), but declares that he only received one manual during his employment and it was the pre-2012 version (Brantley Decl. ¶¶ 24-26). There is .no evidence in the reeord about what version, if any, .Plaintiff Pou received. In any case, Plaintiffs aver that they “never, were informed by anyone” that they were supposed to be . paid for or include, on their timesheets minutes spent loading the trucks or communicating with supervisors at the beginning of the workday. (Brantley Decl. ¶¶ 9-10; Pou Decl. ¶¶ 5-6; see also Pou Dep. at 33 (explaining that, he “never thought anything about [the¡pay] until the lawsuit came up” because he did not know “anything could be done about it").)

Plaintiff Brantley “never” asked about being paid for the time between 6:45 AM and 7:00 AM, as someone instructed him to initiate his-time records at 7:00 AM, only at the point of heading to the first job site. (Brantley Dep. at 42, _ 46-47; Brantley Decl. ¶ 11.) Similarly, his colleague Jessie Swygert and supervisor Mr.. Migilionico told him not to include return travel time. (Id. ¶¶ 27, 28). Apparently, at an unspecified meeting, Mr. Ferrell himself “gave the instruction that the time [employees] would be recording and getting paid for ended when you left the last job site of the workday” and “fussed at people for getting back at 3:30, because he believed it meant [employees] were counting their drive time on their timesheets.” (Id. ¶ 23.) In sum, to Plaintiff Brantley, the rule was “[y]ou didn’t get paid for anything after [3:30].” (Brantley Dep. at 94.) Plaintiff Pou likewise averred that Mr. Migilionico and his helper “Q” instructed him to initiate his time records at 7:00 AM, only at the point of heading to the first job site, and not to include return travel time. (Pou Decl. ¶¶ 9,11, 22, 23.) Accordingly, the time-sheets they submitted to Ferrell Electric do not include the challenged 16-minute morning period or return travel time. (Brantley Dep. at 85; Brantley Decl. ¶¶ 12, 21; Pou Dep. at 54-66.)

On the other hand, Mr. Wilson, the office manager, affirmed that “Ferrell is paying guys from the time they leave 413 Vaughn till the time they get back at night” and the employees “should be” building in the return travel time on their timesheet entries. (Wilson Dep. at 24.) He further testified that the employees were instructed to “start their time for the day” “when they arrive.” (Id. at 27.) Mr. Ferrell affirmed that if the employees followed his instructions, they would have been listing the time “[f]rom the time they left the shop till the time they got back to the shop and everything in between.” (J. Ferrell Dep. at 96.) “[T]heir time should be from seven o’clock when they get there and start loading up until they pull back into the shop.” (Id. at 97.)

D. Plaintiffs’ Work Schedules & Compensation

Over the course of his employment with Ferrell Electric, Plaintiff Brantley estimates his hours likely averaged 40 per week. (Brantley Dep. at 50-51.) He could not testify to how many days he loaded the truck in the morning without any help from his team, but averred that “[e]ach- day [he] worked for Ferrell Electric, [he] arrived at or before 6:45 am to start loading trucks, except- for the few times [he] ran late, which was less than 10 times during [his] entire employment.” (Id. at 60-61; Brantley Decl. ¶ 4 (emphasis added).) He also helped unload “[a]lmost every day” and would spend an average of fifteen minutes doing so. (Brantley Decl. ¶¶ 15, 19.) As “the majority of the time” his team arrived at thé warehouse around 4:00 PM, he estimates that hi's return travel was “on average 30 minutes.” (Brantley Dep. at 61.)

Plaintiff Pou testified that he worked “40 plus” hours per week. (Pou Dep. at 22.) He asserts that he arrived to load the trucks with material in the morning anytime between 6:00 AM and 6:45 AM (Pou Dep. at 16), except for about five times that he ran late (Pou Decl. ¶ 4). He estimates, the return from the last job site of the day to the shop was 30 minutes — no matter the location — because of traffic. (Pou Dep. at 23.) Although he made no mention of post-return travel duties during his deposition, he avers that the “average time [h]e spent unloading vehicles and communicating with supervisors each day after getting back to the Ferrell shop, before going home for the day, was around 20 minutes.” (Pou Decl. ¶ 4.) On only three of five days would he have to unload his own vehicle, but on the other two days he would assist others. (Id. ¶ 18.)

It is undisputed that Ferrell Electric paid overtime to the extent the employees reported it. (J. Ferrell Dep. at 104; Pou Dep. at 22, 44.)

III. MOTION FOR SUMMARY JUDGMENT

Defendants move for summary judgment on the following claims and issues: (1) whether James N. Ferrell was Plaintiffs’ “employer” within the meaning of the FLSA; (2) whether Defendants are liable for unpaid overtime compénsation under the FLSA; (3) whether Defendants, therefore, are also liable for liquidated damages; and, finally, (4) whether Defendants’ violation of the FLSA was “willful.”

The Court first considers whether Defendants are entitled to 'judgment as a matter of law on Plaintiffs’ claims for overtime compensation. Specifically, Defendants contend that Plaintiffs cannot meet their prima facie burden of proving that they worked overtime and were not compensated for that effort because “each testified that they truthfully and/or accurately recorded their time spent working” and were paid for all reported hours. (Defs.’ Br. at 3.) Defendants further assert that even if such unpaid wages exist, Plaintiffs’ “off-the-clock” morning' activities and return travel time are not compensable under the Act. Resolution of these issues may resolve several other issues — namely, Defendants’ liability for liquidated damages and whether their violation of the FLSA, if any, was “willful.” The Court then considers whether Mr. Ferrell is 'an “employer” subject to the FLSA.

A. Standard of Review

Summary judgment is appropriate only if “there is no genuine dispute as t’o any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Facts are “material” if they could affect the outcome of the suit under the governing substantive law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and must draw “all justifiable inferences in [its] favor,” U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir.1991) (en banc) (internal punctuation and citations omitted).

The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). When the non-mov-ant has the burden of proof at trial, the movant may carry the initial burden in one of two ways — by negating an essential element of the non-movant’s case or by showing that there is no evidence to prove -a fact necessary to the non-movant’s case. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir.1991) (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) and Celotex, 477 U.S. 317, 106 S.Ct. 2548). Before the Court can evaluate the non-movant’s response in opposition, it must first consider whether the movant has met its initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir.1997) (per curiam). A mere conclusory statement that the non-movant cannot meet the burden at trial is insufficient. Clark, 929 F.2d at 608.

If—and only if — the movant carries its initial .burden, the non-movant may avoid summary judgment only by “demons-trat[ing] that there is indeed a material issue of fact that precludes summary judgment.” Id. When the non-movant bears the burden of proof at trial, the non-mov-ant must tailor its .response to the method by which the movant carried its. initial burden. If the movant presents evidence affirmatively negating a material fact, the nori-movant “must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated.” Fitzpatrick, 2 F.3d at 1116. If the movant shows an absence of evidence on a material fact, the non-mov-ant must either show that the record contains evidence that was “overlooked or ignored” by the movant or “come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.” Id. at 1117. The non-movant cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. See Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir.1981). Rather, the non-movant must respond with affidavits or as otherwise provided by Federal Rule of Civil Procedure 56.

The Clerk gave Plaintiffs appropriate notice of Defendants’ motion for. summary judgment and informed them of the summary judgment rules, including the right to file affidavits or other materials in opposition and the consequences of default. (Doc. 86.) Thus, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.1985) (per curiam) are satisfied and the motion is ripe for review.

B. Discussion

1. Prima Facie Burden

Under § 207 of the FLSA, “an employer may not employ his -employee for a workweek longer than‘forty hours unless his employee receives overtime compensation at a rate not less than one and a half times his regular rate.”, Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1314 (11th Cir.2007) (citing 29 U.S.C. § 207(a)(1)). “A person is employed if he or she is suffered or permitted to work.” Id. (citing 29 U.S.C. § 203(g)). “It is not relevant that the employer did not ask the employee to do the work. The reason that the employee performed the work is also not relevant, If the employer knows or has reason to believe that the employee continues to work, the additional hours must be counted.” Id. (internal quotation marks and citation omitted).

Thus, to prevail on & claim for unpaid overtime compensation, the plaintiff bears the initial burden to demonstrate that; (1) he or she worked overtime without compensation, and (2) the employer knew or should have known .of the overtime work. Id. at 1314-15 (citing Reich v. Dep’t of Conservation & Nat. Res., 28 F.3d 1076, 1081-82 (11th Cir.1994)).

a. Whether Plaintiffs Worked Overtime Without Compensation

“The remedial, nature of [the FLSA] and the great public policy which it embodies ... militate against making [the prima facie] burden an impossible hurdle for the employee.” Anderson, 328 U.S. at 687, 66 S.Ct. 1187. “It is -the employer’s duty- to keep records of the employee’s wages, hours, and other conditions and practices of employment,” and it is the employer “who is in a superior position to know and produce the most probative facts concerning the nature and amount of work performed.” Allen, 495 F.3d at 1314 (citing Anderson, 328 U.S. at 687, 66 S.Ct. 1187). “For that reason, in situations where the employer has failed to keep records or the records cannot be trusted, the employee satisfies [his] burden of proving that [he] performed work without compensation if [he] produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Jackson v. Corr. Corp. of Am., 606 Fed.Appx. 945, 952 (11th Cir.2015) (per curiam) (citing Allen, 495 F.3d at 1316) (internal quotation marks omitted); see also Anderson, 328 U.S. at. 687, 66 S.Ct. 1187 (“The solution ... is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s -labors without paying due compensation as contemplated by the [FLSA].”); Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1315 (11th Cir 2013) (noting that-if the employer failed to keep time records, the burden on the employee to show that she worked overtime without compensation is “relaxed”). Accordingly, “[t]he employee’s burden is not great and the Eleventh Circuit has found an employee can successfully shift the burden of proof by presenting his own testimony indicating the employer’s time records cannot be trusted and that he worked the claimed overtime.” Centeno v. I & C Earthmovers Corp., 970 F.Supp.2d 1280, 1287 (S.D.Fla.2013) (quoting Jones v. Carswell Prop. Maint., Inc., No. 09-22027-CIV, 2012 WL 163035, at *1 (S.D.Fla. Jan. 19, 2012) (citing Allen, 495 F.3d at 1316)).

Defendants contend that Plaintiffs are unable to demonstrate that they performed uncompensated overtime work. They assert that “cursory review of the undisputed time records in . this case reflects that each Plaintiff was properly paid overtime during those weeks they reported working in excess of forty hours.” (Defs.’ Br. at 8.) They, further argue that Plaintiffs’ claims are barred “by their own ádmissions that they were not owed for the time in the morning before work began” and “consistent” testimony “that they kept truthful and accurate records of time sheets.” (Id.) Rehashing the arguments presented in the motions to strike, Defendants lastly' contend that Plaintiffs “came forward with so' little evidence during discovery” and “did not even begin to calculate these'figures until after their depositions.” (Defs.’ Reply at 6-7.) Thus, according to Defendants, “Plaintiffs’ untimely and" improper affidavits are. not enough to avoid summary, judgment.” (Id.) As is apparent, Defendants’ sweeping proclamations are conclusory. They are devoid of citations to the record beyond identifying four exhibits containing hundreds of pages of timesheets and payroll records. Moreover, in the Court’s judgment, Plaintiffs’ purported admissions and related testimony do not state what Defendants want them to connote when properly viewed in context.

To defeat summary judgment, Plaintiffs respond that their timesheets do not re-fléct the number of'hours they worked: although “truthful and accurate,” they are incomplete. (See Brantley Dep. at 76-76, 85; Brantley Decl. ¶¶ 12, 21; Pou Dep. at 54-55.) It is undisputed that Ferrell Electric'did not use an electronic or mechanical time clock but rather issued its employees paper timesheets, which it expected them to fill out at the end of each day and turn in at the end of the each week. (Brantley Dep. at 71; J. Ferrell Dep. at 10, 104; Pou Dep. at 34; Wilson Dep. at 12-13, 19, 21.) It is also undisputed that Ferrell Electric did not keep track of employees’ “clock time” — when they arrived on the premises in the morning or departed for home — but were aware, at least in the morning, that the employees engaged in some activities to prepare for the day. (J. Ferrell Dep. at 9; King Dep. 11.)

Plaintiffs avérred, however, that they “never were informed by anyone” that they were supposed to be paid for or include on their timesheets minutes spent loading the trucks or communicating with supervisors at the beginning of the workday. (Brantley Decl. ¶¶ 9-10; Pou Decl. ¶¶ 5-6; see also Pou Dep., at 33.) In fact, to the contrary, Plaintiffs both declared that they received express instructions — ; from multiple sources — to begin recording their time at 7:00 AM and to exclude return travel time. (See Brantley Decl. ¶¶ 11, 23, 27, 28; Pou Decl. ¶¶ 9, 11, 22, 23.) Defendants dispute or deny the foregoing factual assertions. (See J. Ferrell Dep. at 96, 97; Wilson Dep. at 24, 27.) But if true, these facts indicate that Ferrell Electric’s time records cannot be trusted.

In addition to challenging the accuracy of the records of their working time, Plaintiffs made statements regarding .the amount and extent of their uncompensated work in deposition testimony taken by Defendants and declarations. It is undisputed that Ferrell Electric’s normal business hours are 7:00 AM to 3:30 PM. (Brantley Dep. at 37, 41; J. Ferrell Dep. at 7-8; King Dep., Doc. 79, at 5; Wilson Dep. Ex. 16 (“Pre-2012 Policy Manual”) at 6; id. Ex. 14 (“July 2012 Policy Manual”) at 4.) Plaintiffs presented evidence, however, that they regularly began their work day before 7:00 AM and ended the workday after 3:30 PM. As described in the background section, Plaintiff Brantley stated that each day he worked for Ferrell Electric, he arrived at or before 6:45 AM— as instructed — to start loading the trucks except for less than ten times during his tenure that he ran late. (Brantley Dep. at 39, 60-61; Brantley Decl. ¶ 4.) Similarly, Plaintiff Pou- testified that he arrived to load the trucks with material in the morning anytime between 6:00 AM and. 6:45 AM — “I’m working that 30 minutes or 15 minutes before 7:00. I mean, T wasn’t at home cooking breakfast. I was loading material on [the] van.” (Pou Dep. at 16-17.)

Upon returning to the shop at the end of the day, Plaintiff Brantley testified that he had to fill out his timesheet, “[u]nload the stuff that’s on the truck that somebody could steal,” like “[electrical wire or anything that could be damaged from the weather.” (Brantley Dep. at 87; Brantley Decl. ¶ 19.) Mr. Brantley also was obligated, in his role as lead electrician, to “see and go talk to management and find out what is going on for tomorrow and let them know where we stand for the next day so they could plan.” (Brantley Dep. at 88, 94 (“I was told by Dominic that after our day ended and we got back to the shop that we needed to be in there talking to them and letting them know what’s going on because people were leaving and getting in their trucks and. going home”); Brantley Decl. ¶ 20 (“In a meeting Mr. Migilionico told electricians that they had to report in to him every day before leaving to go home for the day.”); see also Pou Decl. ¶ 19.) Here too Plaintiff Pou echoed Plaintiff Brantley: although only three out of five days he spent time unloading his own truck, every afternoon required some collaboration to unload and secure materials. (See Pou Decl. ¶¶ 4, 18.) Based on Plaintiffs’ personal knowledge, they estimated these activities took fifteen to twenty minutes each day after spending roughly thirty minutes making their way back to the shop. (Brantley Dep. at 61; Brantley Decl. ¶¶ 15, 19; Pou Dep. at 61; Pou Decl. ¶ 4.)

Viewing the record in the light most favorable to Plaintiffs, Defendants are not entitled to summary judgment based on Plaintiffs’ lack of documentation and inability to state with precision the number of uncompensated hours they worked and the dates .on which that work was performed. It is possible that Plaintiffs’ burden at trial may ultimately be met with evidence other than precise, written documentation. The record contains weekly time sheets from both Plaintiff Brantley and Plaintiff Pou that document the hours spent and tasks completed on each job site. Both testified they did not record and thus were not compensated for carrying out the morning’s preparations, traveling back to the shop, unloading and storing unused materials, and exchanging information with supervisors, which they did on a daily basis with limited exceptions. Some such exceptions were “triggered” by reference to discrete events, such as Plaintiffs’ car trouble or appointments. See Allen, 495 F.3d at 1317. Therefore, a reasonable jury could find, if the challenged time is compensable, that Plaintiff Brantley and Plaintiff Pou worked more than forty hours a weék. Defendants’ motion for summary judgment on this threshold issue, therefore, is- DENIED.

b. Whether Defendants Knew■ or Should Have known of the Overtime Work

At summary judgment, it is Defendants’ burden to support the motion by reference to materials on file that demonstrate-the absence of any genuine issue of material fact as to its knowledge, whether actual or constructive, of-Plaintiffs’ overtime work. Defendants do not present any argument or evideiice on this issue. Therefore, the Court will not address the merits of the second element of Plaintiffs’ prima facie case.

2. Compensability

Inherent in Plaintiffs’ claims that they are due overtime compensation under the FLSA is the burden to present evidence from which a reasonable jury could conclude that the work is compensable. See Knight v. Allstar Bldg. Materials, Inc., No. 6:08-cv-457-ORL-22DAB, 2009 WL 3837870, at *5 (M.D.Fla. Nov. 17, 2009) (citing Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1344 (11th Cir.2007)). The Portal-to-Portal Act, 29 U.S.C. § 254(a), exempts certain activities from compensation under the FLSA. An employer is not required to pay an employee for.

(1) walking, riding, or traveling to and from the actual place of performance of’the principal activity or activities which such employee is employed to perform, and

(2) activities which are preliminary to or ' postliminary to said principal activity or activities, which occur either prior to the time oh any particular workday af which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

Id.

As previously described, Plaintiffs assert they were not compensated for three categories of activities:- (1) “morning .activities”, i.e. receiving a slip from supervisors about the day’s assigned job sites and collecting the-relevant supplies; (2) post-shift “evening activities,”, i.e. storing certain unused. materials and chatting with supervisors about the day’s progress and the team’s performance; and (3) return travel from the job site to the shop. (Pls.’ Resp. at 1.) Defendants seek a judgment as a matter of law that the hours for which Plaintiffs claim compensation are not work time under the Portal-to-Portal Act, thereby exempting Defendants from liability.

To prevail Plaintiffs must prove that the time spent engaged in each of the activities identified above were not merely preliminary and postliminary activities, but rather “principal activities,” which embraces those tasks that are “integral and indispensable” to their duties as electricians. See Steiner v. Mitchell, 350 U.S. 247, 252-53, 76 S.Ct. 330, 100 L.Ed. 267 (1956); Bonilla, 487 F.3d at 1344; Knight, 2009 WL 3837870, at *12 (citation omitted). In the near sixty years since the Supreme Court decided Steiner, lower courts have attempted to give .meaning to the words “integral and indispensable.” The Eleventh Circuit, for example,: like many other courts, introduced a multi-factor test that considers (1) whether the activity is required by the employer, (2) whether the activity is necessary for the employee to perform his or her' duties, and (3) whether the activity primarily benefits the employer. Burton v. Hillsborough Cnty., Fla., 181 Fed.Appx. 829, 836-37 (11th Cir.2006); Bonilla, 487 F.3d at 1344 (citing Dunlop v. City Elec., Inc., 527 F.2d 394, 400-01 (5th Cir.1976) (defining the test to determine whether activities are “principal” and “integral and- indispensable” as “whether they are performed as part of the regular work of -the employees in the ordinary course of business,” “not whether the activities in question are uniquely related to the predominant activity of the activity of the business”)); see also, e.g., Perez v. Mountaire Farms, Inc., 650 F.3d 350, 365-66 (4th Cir.2011).

In December 2014, the Supreme Court revisited the meaning of “integral and indispensable” and offered a more precise, albeit more restrictive, view. Integrity Staffing Solutions, Inc. v. Busk, - U.S. -, 135 S.Ct. 513, 519, 190 L.Ed.2d 410 (2014). The Court rejected tests like the one articulated in Burton and Bonilla to the extent that they focus on whether an employer required a particular activity or whether the activity is for the benefit of the employer. See id. (finding the Ninth Circuit Court of Appeals erred in focusing on these factors, which are “overbroad” and threaten to “sweep into ‘principal activities’ the very activities that the Portal-to-Portal Act was designed to address”). Instead, the “test is tied to the productive work that the employee is employed to perform.” Id. (emphasis added). An activity is only “integral and indispensable” to the performance of an employee’s principal activities if “it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Id. In other words, “an activity is ‘indispensable’ to another, principal activity only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively.” Id. at 520 (Sotomayor & Kagan, JJ., concurring).

Whether a particular activity is “integral and indispensable” under the FLSA is a question of law, Anderson v. Perdue Farms, Inc., 604 F.Supp.2d 1339, 1349 (M.D.Ala.2009) (citing Birdwell v. City of Gadsden, 970 F.2d 802, 807 (11th Cir.1992)), though there is no “clean analytical distinction between activities that are integral and indispensable and those that are not,” Bonilla, 487 F.3d at 1344. The nature of the employees' duties, however, is a question of fact. Birdwell, 970 F.2d at 808 (“Certain sets of facts, if found by a fact finder, will give rise to liability under the FLSA while other sets of facts will not. It is for the court to determine if a set of facts gives rise to liability; it is for the jury to determine if those facts exist.")

In assessing whether Defendants violated the FLSA, the Court will consider each of Plaintiffs’ claimed categories of unpaid work in turn. The Court addresses whether such time is exempted under § 254(a) of the Portal-to-Portal Act by asking whether the claimed unpaid work is Plaintiffs’ “principal” activity or if the work is “integral and indispensable” to the performance of such principal activities,

a. Morning Activities

As a preliminary matter, Defendants do not dispute that the employees loaded the trucks with supplies in the morning and made other necessary preparations.’ (See J. Ferrell Dep. at 11, 14, 94; King Dep. at 5-6, 11.) Rather, the thrust of the parties’ disagreement is at what time Plaintiffs commenced these activities, whether Defendants required Plaintiffs to carry them out, and how long they took — none "of which impact whether, as a matter of statutory interpretation, they constitute “integral and indispensable” work. Simply, there is no factual dispute about the nature of Plaintiffs’ duties with respect to these activities that requires a determination by the trier of fact before the Court can address the legal question at hand. Thus, applying the test set forth in Integrity Staffing, this Court finds Plaintiffs’ collection of the day’s work 'assignments and necessary supplies is compensable “work” as a matter of law.

To be sure, Plaintiffs’ “morning activities” were not the “principal activity or activities which [the] employee[s] [are] employed to perform.” 29 U.S.C. § 254(a). Ferrell Electric did not employ its workers to retrieve sockets and wire from the warehouse and load those implements on Ferrell Electric trucks for delivery to. sites in the field, but to install, service, and repair electrical equipment.

These tasks, though preparatory, were “integral and indispensable” to the performance of Plaintiffs’ productive work as electricians: intrinsic in installing, servicing, and repairing electrical equipment is (1) obtaining the order to do so; (2) obtaining instructions on the scope of such work; and (3) collecting and loading the specific parts necessary to complete the work. See Dunlop, 527 F.2d 394, 400-01 (finding, pre-Integrity Staffing, that electricians’ and helpers’ pre-8:00 AM activities — filling out daily time sheets, material sheets, and supply and -cash requisition sheets; checking job locations; removing from trucks accumulated trash; loading the truck with standard materials and any additional materials needed for the particular day’s job; and picking up electrical plans — were com-pensa