               Case: 16-14943        Date Filed: 09/28/2018      Page: 1 of 10


                                                                   [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-14943
                               ________________________

                          D.C. Docket Nos. 1:15-cv-22174-JLK,
                                  6:16-bk-07183-RAC


RENATO FONSECA,
SERGIO CARVALHO,
RONALD MARC GROSS,

                                                          Plaintiffs - Appellants,


                                             versus


ALLTOUR AMERICA TRANSPORTATION, INC.,

                                                          Defendant - Appellee.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                    (September 28, 2018)

Before JILL PRYOR, BRANCH and BOGGS, ∗ Circuit Judges.

       ∗
          Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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PER CURIAM:

      Renato Fonseca, Sergio Carvalho, and Ronald Gross (the “drivers”) filed

this action on behalf of themselves and others similarly situated, alleging that their

former employer AllTour America Transportation, Inc. (“AllTour”), failed to pay

overtime as required by the Fair Labor Standards Act (“FLSA”), 29 U.S.C.

§ 207(a)(1). AllTour filed a motion for summary judgment, arguing that the

drivers were exempt from the FLSA’s overtime requirement. The district court

agreed and granted AllTour’s summary judgment motion. We affirm.

                         I.     FACTUAL BACKGROUND

      AllTour operates shuttle services for foreign tourists visiting Florida.

AllTour’s customers are all international tourists, with approximately 90% coming

from Brazil. The tourists generally purchase transportation from AllTour through

travel agents as part of prepaid travel packages.

      Fonseca, Carvalho, and Gross were AllTour shuttle drivers. While working

for AllTour, they were responsible for picking tourists up from the Miami airport

and taking them to their hotels and then picking them up from their hotels to take

them back to the airport. While the tourists stayed in Florida, the drivers also

would transport them between their hotels and other places in Miami and drive

them on city tours of Miami. The drivers sometimes would drive the tourists




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beyond the Miami area to Fort Pierce, Florida, where they would meet another

driver who would take the tourists the rest of the way to theme parks in Orlando.

      For their services, AllTour paid each driver a weekly salary of between $500

and $600. A driver’s salary did not change based on the number of hours he

actually worked, and a driver received no overtime pay if he worked over 40 hours

in a week. But if a driver worked all seven days in a week, he was paid an extra

$85 to $100. The drivers received an additional $30 for each trip to Fort Pierce.

      Fonseca and Carvalho sued AllTour in state court, alleging that AllTour

violated the FLSA by failing to compensate them and other similarly situated

drivers with overtime pay. After AllTour removed the action to federal court,

Gross joined the suit as a plaintiff. AllTour moved for summary judgment, arguing

that the drivers were exempt from the FLSA’s overtime pay requirement. The

district court agreed and granted summary judgment to AllTour. The drivers

appealed.

                         II.    STANDARD OF REVIEW

      We review the district court’s grant of summary judgment de novo, applying

the same legal standards as the district court. Hurlbert v. St. Mary’s Health Care

Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006). Summary judgment is

appropriate only “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.


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Civ. P. 56(a). The court must draw all reasonable inferences in favor of the non-

moving party. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1326 (11th

Cir. 1998).

                                III.   DISCUSSION

      This appeal requires us to consider the interaction of two statutes: the FLSA

and the Motor Carrier Act of 1935. The FLSA requires employers to compensate

covered employees at an overtime rate if they work more than 40 hours in a week.

29 U.S.C. § 207(a)(1). Congress enacted the FLSA “with the goal of protecting all

covered workers from substandard wages and oppressive working hours.”

Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 147 (2012) (alteration

adopted) (internal quotation marks omitted). But the FLSA’s overtime

compensation requirement “does not apply with respect to all employees.” Id. As

relevant here, under the “motor carrier exemption,” workers are exempt from the

FLSA’s overtime requirement if the United States Secretary of Transportation is

authorized to set their maximum hours. See 29 U.S.C. § 213(b)(1). We construe

FLSA exemptions, including the motor carrier exemption, narrowly against

employers. Walters v. Am. Coach Lines of Miami, Inc., 575 F.3d 1221, 1226 (11th

Cir. 2009).

      In the Motor Carrier Act, Congress authorized the Secretary of

Transportation to set maximum hours of service for certain employees of a “motor


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carrier.” See 49 U.S.C. § 31502(b). The Secretary’s authority to set maximum

hours extends to all “transportation . . . described in section[] 13501 . . . of this

title.” Id. § 31502(a)(1). Section 13501, in turn, covers transportation between

places in different states, between places in the same state if the transport passes

through another state, and between the United States and a foreign country to the

extent that the transportation occurs in the United States. Id. § 13501(1).

      From these statutory provisions, we have distilled two requirements for the

Secretary to have jurisdiction to set an employee’s maximum hours, considering

both the nature of the employer’s business generally and the nature of the work

involved in the employee’s job. First, the “employer’s business must be subject to

the Secretary of Transportation’s jurisdiction under the [Motor Carrier Act].”

Walters, 575 F.3d at 1227. Second, “the employee’s business-related activities

must directly affect 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 Motor Carrier Act.” Id. (alteration adopted) (internal

quotation marks omitted). We have recognized that even purely intrastate

transportation can constitute part of interstate or foreign commerce if “it is part of a

continuous stream of interstate [or foreign] travel,” meaning there is “a practical

continuity of movement between the intrastate segment and the overall interstate

[or foreign] flow.” See id. at 1229 (internal quotation marks omitted).


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      Here, the drivers concede that the first requirement is satisfied because

AllTour is a motor carrier subject to the Secretary of Transportation’s jurisdiction.

The drivers assert that the second prong is not satisfied because the “vast majority”

of the work that they performed for AllTour involved the transportation of

passengers in intrastate commerce, rather than interstate or foreign commerce.

Appellants’ Br. at 20. The drivers concede that they engaged in interstate

commerce activities when they picked up tourists, who had just arrived in Florida,

at the airport and drove them to their hotels. But they assert that these trips were

insufficient to give the Secretary of Transportation authority to set their maximum

hours of service because the activities involving interstate commerce constituted

only a de minimis portion of their jobs.

      We assume for purposes of this appeal that the drivers are correct that if

interstate or foreign commerce activities constituted only a de minimis portion of

their jobs, the Secretary of Transportation would lack the authority to set their

maximum hours and the FLSA’s motor carrier exemption would not apply. Even

assuming this, however, the drivers engaged in interstate or foreign commerce

activities on more than a de minimis basis. We reach this conclusion after

considering the Supreme Court’s decision in Morris v. McComb, 332 U.S. 422

(1947), and guidance from the United States Department of Transportation.




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      In Morris, the Supreme Court considered whether drivers who worked for a

trucking company fell within the motor carrier exemption. Id. at 423, 426.

Although the drivers would occasionally transport freight in interstate commerce,

only 3.65% of their trips directly involved interstate commerce, and this business

made up only about 4% of the trucking company’s revenue. Id. at 427, 433.

Despite the company’s limited activities involving interstate commerce, the Court

held that the Interstate Commerce Commission (the “Commission”), the

predecessor to the Department of Transportation, had the power to establish

maximum hours for all the drivers and that none were entitled to overtime under

the FLSA. Id. at 437-38. The Court reached this conclusion because the employer

assigned the interstate commerce trips to the truck drivers “generally throughout

the year,” “in the normal operation of the business,” and drivers “shared

indiscriminately” in the trips. Id. at 433. Of the employer’s 43 truck drivers, 41

drivers had made at least one trip with interstate freight. Id. Additionally, on

average each driver had made over 16 such trips. Id. And the two drivers who had

not made any interstate trips had been employed for only about six months. Id.

Because the drivers were prepared at any time to engage in interstate commerce,

the Court concluded that the Commission had the authority to set their maximum

hours of service under the Motor Carrier Act, even for periods when they engaged

only in intrastate commerce. See id. at 434.


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       Consistent with Morris, the Department of Transportation has explained that

the Secretary has authority to set maximum hours for a driver whose regular duties

include driving in interstate commerce. DOT Notice, 46 Fed. Reg. 37,902-02,

37,903 (July 23, 1981) (“[A] driver will remain under the [Secretary’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.”). And a driver is subject to the

Secretary’s jurisdiction even if he “has not personally driven in interstate

commerce if, because of company policy and activity, the driver could reasonably

be expected to do interstate driving.” Id. The Department has recognized a de

minimis exception, however, explaining that the Secretary lacks jurisdiction to set

maximum hours for a driver when over a lengthy period of time he made only a

few interstate trips. See id.; see also 29 C.F.R. § 782.2(b)(3). This court

previously has suggested that the de minimis exception applies only when a

driver’s interstate business “constitutes less than one percent of the overall trips.”

Walters, 575 F.3d at 1228.

       Turning to the facts of this case, we acknowledge that the drivers spent a

significant amount of time each day driving passengers from their hotels to

locations within Florida. But Morris and the guidance from the Department of

Transportation tell us that the Secretary has authority to set a driver’s maximum

hours if the driver can reasonably be expected to engage in some driving that


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qualified as interstate or foreign commerce. See Morris, 332 U.S. at 433-34; 46

Fed. Reg. at 37,903. We accept that there may be a de minimis exception to this

general rule. But the evidence here, viewed in the light most favorable to the

drivers, shows that they engaged in transportation involving interstate or foreign

commerce on more than a de minimis basis. On most days the drivers picked

foreign tourists up from the Miami airport and drove them to their hotels. Fonseca

described a typical day as including taking the tourists to and from the airport,

Carvalho identified picking tourists up at the airport as a normal part of his duties,

and Gross estimated that 20% of his time was spent taking tourists from the airport

to their hotels.

       In Morris, the Supreme Court recognized that the Commission had authority

to set the maximum hours for drivers who spent only about 4% of their time

engaged in interstate commerce but who were prepared at any time to transport

goods in interstate commerce. Morris, 332 U.S. at 433-34. The drivers here spent

more than 4% of their time transporting foreign passengers from the airport to their

hotels, which the drivers concede was in interstate or foreign commerce. Each day

the drivers reasonably expected that they might have to engage in interstate or

foreign commerce by picking up passengers at the airport because AllTour

assigned the drivers different routes each day and reserved the right to make last

minute changes to their schedules. Because the drivers were subject to the


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jurisdiction of the Secretary of Transportation, they were exempt from the FLSA’s

overtime requirement under the motor carrier exemption.

                             IV.    CONCLUSION

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment to AllTour.

      AFFIRMED.




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