                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-1413
                                      _____________

                                  RAFAEL ESPINOZA,
                            Individually and on behalf of those
                                    similarly situated,
                                                Appellant

                                             v.

                   ATLAS RAILROAD CONSTRUCTION, LLC, and;
                          GENESEE & WYOMING, INC.
                               ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                            (D.C. No. 2-15-cv-01189)
                  Magistrate Judge: Honorable Maureen P. Kelly
                                ______________

                                ARGUED October 7, 2016
                                   ______________

               Before: SHWARTZ, COWEN, and ROTH, Circuit Judges.

                               (Filed: November 30, 2016 )
                                     ______________

                                        OPINION *
                                     ______________


Peter D. Winebrake, Esq. [ARGUED]
R. Andrew Santillo, Esq.

       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Winebrake & Santillo
715 Twinning Road
Suite 211, Twinning Office Center
Dresher, PA 19025

                    Counsel for Appellant

Stanley Weiner, Esq. [ARGUED]
Jones Day
901 Lakeside Avenue
North Point
Cleveland, OH 44114

                    Counsel for Appellees

SHWARTZ, Circuit Judge.

      Rafael Espinoza appeals from the District Court’s order dismissing his putative

class action complaint against Atlas Railroad Construction, LLC. Espinoza alleges that

Atlas failed to compensate him for time traveling between his home and Atlas’s work

sites in violation of the Pennsylvania Minimum Wage Act (“PMWA”). Because

Espinoza’s complaint failed to allege that such travel was a duty of his employment, the

District Court appropriately dismissed his complaint, and we will therefore affirm.

                                            I

      Espinoza was employed by Atlas to perform manual labor tasks on railroad

construction and maintenance projects at various sites, some of which were located

“hundreds of miles” away from his Pennsylvania residence. App. 21 ¶ 11. When he

worked at such distant locations, Espinoza was unable to commute home on a daily basis

and instead stayed in hotels or other temporary housing located near the work sites.




                                            2
       Espinoza’s schedule “consist[ed of]: (i) eight (8) consecutive 10.5-hour shifts

(generally running from approximately 7:00 am until approximately 5:30 pm) at the

project site followed by (ii) six (6) consecutive days away from the project site.” App. 22

¶ 12. Atlas “generally expect[ed Espinoza] to arrive . . . near the assigned project site on

the evening before the first 10.5-hour shift,” and he would often travel home the day after

he completed his final shift, sometime during his “regular working hours” of 7:00 am to

5:30 pm. App. 22 ¶¶ 13-14. Atlas did not compensate Espinoza for this travel time and

would terminate him if he refused to engage in such travel.

       Espinoza filed an amended putative class-action complaint alleging that Atlas

violated the PMWA by failing to pay him and his fellow class members for all of their

“hours worked,” which he contends included the time he traveled to and from the work

sites. Atlas moved to dismiss Espinoza’s complaint, arguing that he failed to state a

claim under the applicable statute and regulation. 1 The District Court granted the motion

in part, dismissing with prejudice his claim to the extent it sought payment for travel

occurring on “days he was not scheduled to work” because such travel did not occur

during his “normal working hours.” 2 App. 10. The District Court also found that

Espinoza had not sufficiently alleged facts showing that any of his travel was a duty of

his employment because he did not specify any work duties that he performed while

       1
         The parties consented to the jurisdiction of the United States Magistrate Judge
pursuant to 28 U.S.C. § 636.
       2
         The District Court also denied without prejudice the motion with respect to
claims for payment for travel occurring during Espinoza’s scheduled work days because
the pleading did not clearly state whether his claims were based on travel on those dates.
Espinoza asserts that most of his travel did not occur on such dates, and so he is no longer
pursuing compensation for such travel.
                                             3
traveling, such as transporting equipment or performing maintenance along the travel

route. The District Court gave Espinoza an opportunity to file a second amended

complaint to allege additional facts about travel on scheduled work days and the ways in

which such travels were part of his duties as an employee. Espinoza declined to file an

amended pleading, and the District Court subsequently dismissed his entire complaint

with prejudice. Espinoza appeals.

                                             II 3

       We must decide whether Espinoza alleged sufficient facts to show that his travel

on the days preceding and following his work shifts was compensable under the PMWA.

The PMWA provides that “[e]very employer shall pay to each of his or her employe[es]

wages for all hours worked.” 43 Pa. Cons. Stat. § 333.104(a). The PMWA regulations


       3
          The District Court had jurisdiction under 28 U.S.C. § 1332. The amount in
controversy exceeds $75,000 based primarily on the amount of attorney’s fees that may
be awarded under 43 Pa. Stat. § 333.113 if Espinoza prevailed. Notice of Removal at 3-
6, Espinoza v. Atlas R.R. Constr. LLC, No. 15-1189, 2016 WL 279000, at *1 (W.D. Pa.
Jan. 22, 2016) (hereinafter “Notice of Removal”); Suber v. Chrysler Corp., 104 F.3d 578,
585 (3d Cir. 1997) (“[I]n calculating the amount in controversy, we must consider
potential attorney’s fees.”). We have jurisdiction under 28 U.S.C. § 1291.
        We exercise plenary review of a district court’s grant of a motion to dismiss,
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011), and apply the same
standard as the District Court. See Santomenno ex rel. John Hancock Tr. v. John
Hancock Life Ins. Co., 768 F.3d 284, 290 (3d Cir. 2014). Under this standard, we must
determine whether the complaint “contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), “but we
disregard rote recitals of the elements of a cause of action, legal conclusions, and mere
conclusory statements,” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012).
A claim “has facial plausibility when the pleaded factual content allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 663.

                                              4
define “hours worked” to include “time spent in traveling as part of the duties of the

employee during normal working hours and time during which an employee is employed

or permitted to work.” 34 Pa. Code § 231.1 (“Travel Regulation”). Consequently, travel

time is compensable under the PMWA if it is (1) “part of the duties of the employee” and

(2) occurs “during normal working hours.” Id.

       To interpret this regulation, we first look to applicable decisions of the

Pennsylvania Supreme Court. Spence v. ESAB Grp., Inc., 623 F.3d 212, 216 (3d Cir.

2010). In the absence of such decisions, we must predict how the Pennsylvania Supreme

Court would rule on the issue by looking to decisions of the Commonwealth’s appellate

courts, the federal courts, and other reliable sources. Id. at 216-17 (citations omitted).

       One reliable source of interpretation is the Pennsylvania rules of construction.

The rules direct that the object of interpreting Pennsylvania statutes is to effectuate the

intent of the General Assembly. 1 Pa. Cons. Stat. §§ 1502(a)(1)(ii), 1921(a); see also

Bayada Nurses, Inc. v. Commonwealth, 8 A.3d 866, 880-81 (Pa. 2010) (applying this

principle of construction to interpret the PMWA and regulations promulgating it). To

effectuate the intent of the legislature, we must start with the text. The rules of

construction specifically state that “[w]hen the words of a statute are clear and free from

all ambiguity, the letter of it is not to be disregarded.” 1 Pa. Cons. Stat. § 1921(b); see

also Commonwealth v. Jarowecki, 985 A.2d 955, 959 (Pa. 2009). 4 When the language in


       4
         If the language is ambiguous, the rules direct courts to then consider contextual
factors, including:

       (1) The occasion and necessity for the statute.
                                              5
question does not include technical phrases, we must construe it “according to [its]

common and approved usage,” 1 Pa. Cons. Stat. § 1903(a), and in a manner that avoids

surplusage, id. § 1922(2). We will apply these tools to interpret the Travel Regulation.

       Espinoza’s pleading fails to set forth factual allegations that satisfy the “duty”

component of the Travel Regulation. We accordingly need not—and do not—decide

whether his allegations meet the “normal working hours” component. Instead, we merely

assume that Espinoza’s travel occurred during his normal working hours.

       Unlike the provisions of the Fair Labor Standards Act [FLSA] that govern

compensable travel, 5 the PWMA regulation expressly requires that the travel be part of


       (2) The circumstances under which it was enacted.
       (3) The mischief to be remedied.
       (4) The object to be attained.
       (5) The former law, if any, including other statutes upon the same or similar
       subjects.
       (6) The consequences of a particular interpretation.
       (7) The contemporaneous legislative history.
       (8) Legislative and administrative interpretations of such statute.

1 Pa. Cons. Stat. § 1921(c).
5
  The federal regulation defining compensable travel time under the FLSA provides:

       Travel that keeps an employee away from home overnight is travel away
       from home. Travel away from home is clearly worktime when it cuts
       across the employee’s workday. The employee is simply substituting travel
       for other duties. The time is not only hours worked on regular working
       days during normal working hours but also during the corresponding hours
       on nonworking days. Thus, if an employee regularly works from 9 a.m. to
       5 p.m. from Monday through Friday the travel time during these hours is
       worktime on Saturday and Sunday as well as on the other days. Regular
       meal period time is not counted. As an enforcement policy the Divisions
       will not consider as worktime that time spent in travel away from home
       outside of regular working hours as a passenger on an airplane, train, boat,
       bus, or automobile.
                                              6
the employee’s duties to be deemed part of the “hours worked” for which he is entitled to

be paid. Despite this difference, Espinoza implores us to interpret Pennsylvania’s Travel

Regulation in light of the FLSA’s provisions regarding compensable travel time. We

decline to do so in this case. When the PMWA “substantially parallels” the FLSA,

Pennsylvania and federal courts have used FLSA law for interpretative guidance because

the statutes have similar purposes. Commonwealth v. Stuber, 822 A.2d 870, 873 (Pa.

Commw. Ct. 2003), aff’d sub nom. 859 A.2d 1253 (Pa. 2004); see also Resch v. Krapf’s

Coaches, Inc., 785 F.3d 869, 871 n.4 (3d Cir. 2015) (applying federal law to determine

whether the motor carrier exemption to overtime payments applied to both FLSA and

PMWA claims where the parties agreed that “identical principles” controlled both the

FLSA and the PMWA exemption). However, the courts look to the FLSA to construe

and apply the PMWA only where the state and federal provisions are similar to each

other or where there is a need to fill in a gap missing in the state law. 6 Espinoza argues




29 C.F.R. § 785.39.
       The FLSA’s travel regulation was promulgated to effectuate the Portal to Portal
Act. See 29 U.S.C. § 254. A member of the Pennsylvania Supreme Court observed that
since the “Pennsylvania General Assembly has not in any way adopted the federal Portal
to Portal Act,” provisions of the Portal to Portal Act might be less compatible with the
PMWA than other portions of the FLSA. Caiarelli v. Sears, Roebuck & Co., 46 A.3d
643, 648 (Pa. 2012) (McCaffery, J. dissenting); see also Bonds v. GMS Mine Repair &
Maint., Inc., No. 2:13-CV-1217, 2015 WL 5602607, at *11 (W.D. Pa. Sept. 23, 2015)
(quoting Caiarelli and concluding that the Portal to Portal Act’s additions to the FLSA do
not apply to the PMWA).
       6
         Where the two acts diverge, however, courts do not defer to federal law to
interpret state law. See, e.g., Bayada Nurses, Inc., 8 A.3d at 882-83 (holding that federal
regulations pertaining to the domestic service exemption to the FLSA did not apply to the
analogous but narrower PMWA exemption and that Pennsylvania may interpret its law in
a manner more beneficial to employees than federal law); see also Foster v. Kraft Foods
                                              7
that the dearth of case law construing the regulation should lead us to rely on the FLSA.

While he is correct that there is little case law construing or applying the Travel

Regulation, applying the FLSA here is not the answer to the drought. This is because the

FLSA differs from the Travel Regulation in a specific way.

       The FLSA regulation states that compensable travel time is not limited to “hours

worked on regular working days during normal working hours but also [covers travel]

during the corresponding hours on nonworking days.” 29 C.F.R. § 785.39. While this is

similar to the PMWA requirement that the travel occur during “normal working hours,”

the federal regulation does not include the PMWA’s “duty” component. 34 Pa. Code

§ 231.1 (stating that travel time is compensable under the PMWA only if it is “time spent

in traveling as part of the duties of the employee”). Instead, the federal regulation states

that when travel time “cuts across” a regular work day, “[t]he employee is simply

substituting travel for other duties.” 29 C.F.R. § 785.39. Thus, under the federal

regulation, travel from one’s home community that cuts across one’s normal working




Glob., Inc., 285 F.R.D. 343, 345 (W.D. Pa. 2012) (declining to apply the FLSA’s method
for calculating overtime payments to the PMWA analysis where the federal method
conflicted with the language of the PMWA); Truman v. DeWolff, Boberg & Assocs.,
Inc., No. 07-01702, 2009 WL 2015126, at *2 (W.D. Pa. July 7, 2009) (“In light of the
FLSA’s explicit recognition that states may offer greater protections to its employees
than the FLSA, we are reluctant to find an unstated foreign-work exemption in the
PMWA based solely on the fact that the FLSA contains such an exemption.”); cf. Smiley
v. E.I. DuPont De Nemours & Co., --- F.3d ---, No. 14-4583, 2016 WL 5864508, at *2
n.4 (3d Cir. Oct. 7, 2016) (noting that the Pennsylvania Wage Payment and Collection
Law and the FLSA have parallel remedies but “material differences” may exist between
claims under each law).

                                              8
hours becomes a compensable employment duty merely by occurring during regular

working hours.

       Under the PMWA, however, the travel itself must be part of the duties of the

employee. This is an additional requirement not included in the FLSA and, consequently,

the PMWA test for compensable travel time does not “substantially parallel” the FLSA

provision and we decline to rely on the FLSA to interpret the PMWA.

       We thus examine, without reference to the FLSA, whether Espinoza has alleged

that his travel from the work sites to his home was “part of the duties of the employee.”

34 Pa. Code § 231.1. From what we can glean from the limited case law on this topic,

the courts seem to view such a duty as requiring more than simply driving to or from a

work site. For example, Pennsylvania courts addressed whether Sears service repair

technicians were entitled to compensation for “time spent attending to Sears matters

while traveling in their Sears vans from their homes to customers’ homes and back.”

Caiarelli v. Sears, Roebuck & Co., 46 A.3d 643, 644 (Pa. 2012) (McCaffery, J.

dissenting). The appellate court affirmed the grant of summary judgment in favor of

Sears, finding that the technicians’ travel time was merely commuting time and was

therefore not compensable. Id. at 645-46. The Pennsylvania Supreme Court granted

leave for the appeal and then dismissed it for having been improvidently granted. Id. at

644. In his dissent to the dismissal, Justice McCaffery pointed out that the technicians

alleged that they had to perform certain work during their travel time, such as “dealing

with the handheld computer and scheduling appointments.” Id. at 646. The dissent

concluded that because the evidentiary record conflicted about the need to perform work

                                             9
during the travel time, the grant of summary judgment was in error. Id. at 647-48.

Though this dissent is non-precedential, it indicates that the Pennsylvania courts focused

the inquiry on whether the employees were performing work-related tasks, aside from

travel, during their travel time.

       In a slightly different context, our Court adopted a similar view. In Pennsylvania

Federation of the Brotherhood of Maintenance of Way Employees v. National Railroad

Passenger Corporation (“AMTRAK”), this Court considered an action brought by a labor

union and one of its members against AMTRAK alleging that the company violated the

PMWA by failing to provide overtime pay to employees for time spent traveling on

AMTRAK vehicles between work sites and their work headquarters. 989 F.2d 112, 113-

14 (3d Cir. 1993). The District Court dismissed the complaint for lack of subject matter

jurisdiction because the dispute involved an interpretation of a collective bargaining

agreement, which was within the exclusive jurisdiction of the National Railroad

Adjustment Board. Our Court upheld the dismissal, concluding that the facts alleged in

the complaint—that at the start and end of their shifts the employees traveled in company

vehicles between work sites and the company headquarters—were not sufficient to

establish that such travel was a duty of their employment. See id. at 115. Rather, we

observed that determining whether travel time was part of the employees’ duties

depended on the nature of the employees’ duties, as specified by the employment

agreement. Id. at 115-16. While our ruling did not identify facts that would show when

travel time would be a part of the duties of the employees, it did hold that showing

employees traveled before and after their daily shifts in company vehicles between work

                                            10
sites and the company headquarters alone did not establish that such travel was a duty of

the employees. Id.; see also Pa. Fed’n of the Bhd. of Maint. of Way Emps. v. Nat’l R.R.

Passenger Corp., No. 91-2776, 1992 WL 165993, at *1 (E.D. Pa. June 15, 1992)

(specifying that the employees traveled to the work sites and returned to the headquarters

on a daily basis). Together, these cases reveal that merely alleging that an employee was

required to travel to and from a work site, without more, does not demonstrate that the

travel was a duty of the employment for purposes of the PMWA. Put differently, for

travel to be considered a duty of employment, it cannot merely be a necessary means of

accessing the employee’s job; it must, instead, be an integral feature of the job itself.

       This interpretation comports with the Pennsylvania rules of construction as it gives

meaning to the entire phrase “traveling as part of the duties of the employee.” This

phrase covers more than an employee’s commute, which is not a duty of the employee

but rather is a precursor to or follows the completion of one’s duties. By requiring that

the travel be part of the duties, the regulators made clear that the regulation did not apply

to such preliminary activities but rather provided for compensation for tasks

indispensable to the performance of one’s work.

       Espinoza has failed to allege any facts showing that his travel was a duty of his

employment as defined under the PMWA. Espinoza alleges only that Atlas required him

to travel, sometimes long distances, from his home to the vicinity of different project sites

before his scheduled work shifts, that he stayed overnight during his scheduled eight-day

shifts, that he generally traveled home on the day after his eighth shift, and that “refusal

to engage in such travel would result in termination.” App. 22-23 ¶¶ 13, 14, 16, 17.

                                              11
These facts describe little more than a basic commute; all employees must arrive at their

jobs before their shift begins and refusal to do so understandably leads to termination.

Espinoza did not allege that he performed any work for the company during his travel

time nor any other facts showing that his travel was part of the duties of his employment. 7

Because Espinoza failed to allege facts showing that the travel was part of his

employment duties, he did not plead “sufficient factual matter . . . to state a claim for

relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation

marks and citation omitted), under the PMWA.

                                             III

       For the forgoing reasons, we will affirm the order of the District Court dismissing

Espinoza’s amended complaint.




       7
         Facts that may shed light on whether travel is part of the employee’s duties may
include, among other things, whether the employee is reimbursed for the travel expenses,
whether the employer pays his overnight expenses, whether his hourly wage compensates
for the additional effort to get to the work site, whether the work site is in a fixed
location, whether the employee performs any tasks to benefit the employer during the
travel besides simply traveling to and from the work site, such as reviewing materials
needed to commence/complete his duties for the shift, whether there is an employment
agreement or description of the position that includes travel to the work site as part of the
duties, and whether the travel is ancillary to or a precursor to commencing or concluding
work.
                                             12
                            Espinoza v. Atlas R.R. Constr., LLC,

                                        No. 16-1413

________________________________________________________________________

ROTH, Circuit Judge, dissenting:

       The majority today imposes a new limit on claims under the PMWA, holding as a

matter of law that Rafael Espinoza’s travel time is not compensable because it did not

involve “more than simply driving to or from a work site.” 1 Because I cannot agree with

this narrow view of “duty” under the PMWA in light of the breadth of the term, the

statute’s policy objectives, and the approach of the analogous provisions of the FLSA,

and because I believe that Espinoza’s travel took place during “normal working hours” as

defined in the PMWA, I respectfully dissent.

                                              I.

       The parties here agree to nearly all the material facts. As Espinoza alleged in his

complaint, he was assigned to various project sites located hundreds of miles away from

his Pennsylvania residence. Such scheduling required him to stay in hotels, motels, or

other temporary housing because the project locations made it impossible for him to

commute on a daily basis. The parties agree that Atlas paid for these temporary housing

facilities. 2 Atlas generally expected Espinoza to arrive at the hotel, motel, or other

temporary housing unit near the assigned project site on the evening before the first 10.5-


1
  Maj. Op. at 9.
2
  See Oral Arg. Recording at 28:22-29:05,
http://www2.ca3.uscourts.gov/oralargument/audio/16-1413Espinozav.AtlasRailroad.mp3
(acknowledging that Atlas paid for the housing facilities).
                                              1
hour shift. As a result, Espinoza was required to engage in at least some travel between

7:00 a.m. and 5:30 p.m.—the hours he would work on the days of his shift—on days

when he was not actually scheduled to work. Espinoza further explained that it was

impossible to perform his job without engaging in such travel and that Atlas was strict in

its requirement that he travel from his Pennsylvania residence to the project site vicinity.

Espinoza does not allege that he was required to use a vehicle provided by the

defendants, drive a route dictated by the defendants, or perform any additional tasks

during this travel. Travel to the work site was mandatory, however; if Espinoza refused

to engage in such travel, he would be terminated.

       The core questions before us, therefore, are two matters of law: (1) whether travel

alone can constitute a “duty of employment” under the PMWA; and (2) whether “normal

working hours” as defined by the PMWA is limited to an employee’s scheduled hours.

Importantly, at this stage of litigation, our role is not to conclusively decide that Espinoza

did travel during normal working hours, or that his travel was actually a duty of his

employment; rather, we must simply determine whether these conclusions are

permissible as a matter of law. I believe that the legal definitions of “normal working

hours” and “duty of employment” are broad enough to potentially encompass Espinoza’s

claimed hours in light of the clear text of the PMWA, the underlying policy goals of the

Pennsylvania General Assembly, and the analogous provisions of the FLSA.

                                                  II.

       Turning to the first question presented—whether travel alone can constitute a duty

of employment under the PMWA—I believe the majority errs in finding that the phrase

                                              2
“duty of employment” excludes Espinoza’s travel time as a matter of law. Courts have

properly recognized that the existence and scope of a “duty” is highly fact-specific, and

generally inappropriate for resolution at the dismissal stage. 3 Indeed, the AMTRAK case

cited by the majority expressly notes that “it is impossible to determine whether this [time

spent travelling to and from work sites] is ‘part of the duties of the employe[e]’ without

interpreting the collective bargaining agreement to see exactly what the duties of the

employees are,” suggesting that travel time is not inherently outside the definition of the

term “duty.” 4 Given that Atlas paid for the temporary housing facilities at which he

stayed and that the work sites were varied and unpredictable—factors which the majority

acknowledges “may shed light on whether travel is part of the employee’s duties” 5—I

would not say that Espinoza’s allegations are insufficient at this stage.

       The majority, however, narrows the legal definition of “duty” under the PMWA

by asking only “whether the employees were performing work-related tasks, in addition


3
  See, e.g., Carey v. Nat’l Event Servs., Inc., No. 14 CV 5006, 2015 WL 667519, at *5
(E.D. Pa. Feb. 13, 2015) (noting that the scope of an employee’s duties, for purposes of
analyzing whether employee fell within an exemption to the FLSA, is a “fact-specific
inquiry”); Giovanelli v. D. Simmons Gen. Contracting, No. 09 CV 1082, 2011 WL
2470591, at *2 (D.N.J. June 17, 2011) (stating that “the analysis leading to the [finding]
of a duty . . . is both fact specific and principled” (internal quotation marks and citation
omitted)); In re Quintus Corp., 397 B.R. 710, 716 (D. Del. 2008) (stating that
determining the existence and scope of a duty “requires a fact-specific determination by
the [c]ourt”); U.S. Claims, Inc. v. Flomenhaft, 519 F. Supp. 2d 532, 540-41 (E.D. Pa.
2007) (“[T]he existence of a . . . duty is a fact-specific inquiry generally ill-suited for
dismissal at the Rule 12(b)(6) stage.”).
4
  Penn. Federation of the Bhd. of Maintenance of Way Empls. v. Nat’l R.R. Passenger
Corp. (AMTRAK), 989 F.2d 112, 115 (3d Cir. 1993) (second alteration in original).
5
  Maj. Op. at 11 n.7. The majority explicitly states that “whether the employer pays his
overnight expenses” and “whether the work site is in a fixed location” are relevant
considerations in finding a duty. Id.
                                              3
to travel, during their travel time.” 6 Even if I were to share the majority’s desire to create

a legal rule about duty, I would disagree with the majority’s limitation, as it simply has

no basis in the text of the PMWA or its interpretive case law. Indeed, statutory

interpretation would suggest “duty” actually encompasses Espinoza’s travel time.

       When interpreting a statute, we begin with the plain meaning of the text. 7 Here,

the plain meaning of the word “duty” is broad and does not suggest any limitation that

excludes travel. Black’s Law Dictionary defines a “duty” as “[a] legal obligation that is

owed or due to another and that needs to be satisfied.” 8 An obligation “may refer to

anything that a person is bound to do or forbear from doing . . ..” 9 These definitions

make clear that duty is an expansive term in and of itself, which can encompass a broad

range of activities. Its breadth is further evidenced by the fact that Black’s goes on to

provide a nonexhaustive list of twenty-four examples of specific types and sources of

duties. 10 Thus, to the extent the phrase “duty of employment” has a plain meaning, it is

broad. At the very least, the phrase is sufficiently ambiguous that it provides no basis for

imposing the majority’s new limitation.

       Based on my conclusion that the definition of “duty” is ambiguous, I would

interpret the proper meaning of the phrase here by looking to the FLSA regulation to

determine whether Espinoza’s claimed hours are compensable as a matter of law. When

interpreting ambiguous language in a statute, we employ a canon of statutory

6
  Maj. Op. at 10.
7
  United States v. Geiser, 527 F.3d 288, 294 (3d Cir. 2008).
8
  BLACK’S LAW DICTIONARY 580 (9th ed. 2009).
9
  Id at 1179 (emphasis added).
10
   Id. at 580-81.
                                               4
construction which interprets the same language used in analogous laws as possessing

similar meanings. 11 Invoking this in pari materia principle, courts have used the FLSA

in interpreting the PMWA, noting that “it is proper to give deference to federal

interpretation of a federal statute when the state statute substantially parallels it.” 12

Courts have found provisions of the PMWA to “substantially parallel” the FLSA even

where the language is not identical, so long as the essential ideas and terms of art are the

same. 13 Thus, absent clear textual differences, the PMWA should be read coextensively

with the FLSA “when they relate to the same persons or things or to the same class of

persons or things [because they] must be construed together if possible.” 14

       Here, it is clear that the PMWA and the FLSA both seek to protect hourly

employees from abusive labor practices. Thus, the statutes relate to the same class of


11
   This interpretive canon has been codified by the Pennsylvania legislature. 1 Pa. C.S.A.
§ 1932. Courts have applied the canon with equal force to regulations. See, e.g.,
Highway News, Inc. v. Pa. Dep’t of Transp., 789 A.2d 802, 808 (Pa. Commw. Ct. 2002)
(“[I]t is well settled that the rules of statutory construction apply to regulations as well as
to statutes.”).
12
   Baum v. Astrazeneca LP, 372 F. App’x 246, 248 n.4 (3d Cir. 2010) (quoting
Commonwealth of Pa. Dep’t of Labor & Indus., Bureau of Labor Law Compliance v.
Stuber, 822 A.2d 870, 873 (Pa. Commw. Ct. 2003), aff’d, 859 A.2d 1253 (2004)).
13
   See, e.g., id. at 248-49 (interpreting the administrative exemption of the PMWA using
FLSA implementing regulations); Mazzarella v. Fast Rig Support, LLC, No. 13 CV 2844,
2014 WL 2861027, at *3-*4 (M.D. Pa. June 23, 2014) (treating motor carrier exemption
under PMWA as coextensive with federal motor carrier exemption despite different
language); Vansatory-Frazier v. CHHS Hosp. Co., LLC, No. 08 CV 3910, 2010 WL
22770, at *9 (E.D. Pa. Jan 4, 2010) (noting that although many of “the[] exemptions
under the PMWA are not identical to FLSA’s criteria, . . . the tests are sufficiently similar
that the court’s analysis regarding the FLSA exemptions also applies to the PMWA
exemptions”).
14
   Masterson v. Fed. Exp. Corp., No. 07 CV 2241, 2008 WL 5189342, at *3 (M.D. Pa.
Dec. 10, 2008) (citing 1 Pa. C.S.A. § 1932) (using this aspect of Pennsylvania’s
interpretive statute to find the FLSA and the PMWA coextensive).
                                                5
persons and seek to accomplish the same ends; they should be interpreted separately only

if there are clear textual differences between the two statutes that would indicate

materially different meanings to them.

       The majority reads the “duty of employment” language in the PMWA regulation

as imposing an additional limitation in the PMWA that is not present in the FLSA. I

disagree. First, as the majority notes, the FLSA regulation states that when an employee

is required to travel during normal working hours, “[t]he employee is simply substituting

travel for other duties” of employment. 15 The modifier “other,” when placed before

“duties,” suggests that the FLSA regulation contemplates travel away from one’s home

community as compensable only when it is itself a duty of employment.

       Treating the FLSA as lacking a “duty” requirement would lead to ludicrous

results. The majority reads the FLSA to state that travel “becomes a compensable

employment duty merely by occurring during regular working hours,” which it suggests

is a material difference from the PMWA provision. Yet this reading of the FLSA as

lacking an independent duty inquiry would make travel for any purpose whatsoever

during normal working hours compensable. Because such a literal reading of the FLSA

regulation would expose employers to extraordinary liability, district courts in this Circuit

have agreed with parties who argued that the regulation “only applies to employees

required to travel for work away from their home overnight.” 16 Thus, although the


15
  29 C.F.R. § 785.39 (emphasis added).
16
  Mundell v. DBA/DMC Mining Servs. Corp., et al., No. 12 CV 2614, 2013 WL
5674558, at *11 (M.D. Pa. Aug. 23, 2013) (emphasis added), report and recommendation
adopted in part, 2013 WL 5675575 (M.D. Pa. Oct. 17, 2013).
                                              6
specific phrase “as part of the duties of the employee” is missing from the FLSA

regulation, it is clear that such a limitation does exist. Accordingly, I would find that the

PMWA regulation substantially parallels the FLSA, and use the analogous FLSA

regulation in interpreting the PMWA.

       The FLSA regulation does not require an employee to perform any additional

tasks during the course of their travel in order for the time to be compensable.

Accordingly, the FLSA provides no basis for imposing a legal bar to recovery on

Espinoza’s travel time. The parties agree that Espinoza’s travel would be a compensable

duty under the FLSA regulation as “travel away from the home community,” and I would

read the PMWA to provide at least as much protection.

       Finally, even assuming that the majority is correct that “duty” has the narrow plain

meaning which the majority seems to employ, that alone would not resolve this matter.

We have noted that even the plain meaning of statutory language is not conclusive “when

‘the literal application of a statute will produce a result demonstrably at odds with the

intentions of the drafters.’” 17 The PMWA was enacted to prevent employers from paying

their employees in ways “not fairly commensurate with the value of the services

rendered.” 18 The Pennsylvania legislature was expressly cognizant of the fact that

employees “are not as a class on a level of equality in bargaining with their employers”

with respect to their wages. 19 Pennsylvania law makes clear that, save narrowly defined


17
   Byrd v. Shannon, 715 F.3d 117, 123 (3d Cir. 2013) (quoting United States v. Ron Pair
Enterprises, Inc., 489 U.S. 235, 242 (1989)).
18
   43 P.S. § 333.101.
19
   Id.
                                              7
exceptions, statutes “shall be liberally construed to effect their objects and to promote

justice.” 20 Particularly in the context of labor statutes, terms “must be interpreted . . . by

taking into account such considerations as the necessity for and the circumstances

surrounding the enactment of the statute, the evil which it sought to remedy and the

object which was to be attained.” 21

       Under a narrow conception of “duty,” an employer could require an employee to

engage in some nontrivial actions—such as driving up to 10 hours at a time—and simply

define such actions as “ancillary” to the employee’s main duties to avoid the requirement

of compensation. Particularly in the case of workers who cannot engage in any aspect of

their employment without being on a work site, and whose work sites are variable and

unpredictable, I would not say that travel alone cannot, as a matter of law, be considered

a “duty” of employment.

       In support of its holding to the contrary, the majority relies almost entirely on the

nonprecedential dissenting opinion of two justices of the Pennsylvania Supreme Court in

the case of Caiarelli v. Sears, Roebuck & Co., which involved service repair technicians

who sought compensation for time spent traveling to various sites to perform

maintenance and repair services for the defendant’s customers. The trial court granted

summary judgment in favor of the defendant, and the Pennsylvania Superior Court

affirmed in an unpublished opinion. The Pennsylvania Supreme Court granted the

employees’ petition for appeal, but subsequently dismissed the appeal as improvidently

20
  1 Pa. C.S.A. § 1928(c).
21
  Kulzer Roofing, Inc. v. Commonwealth of Pa., Dep’t of Labor & Indus., 450 A.2d 259,
260-61 (Pa. Commw. Ct. 1982).
                                               8
granted, with two justices dissenting. The majority reads the dissent in Caiarelli to stand

for the idea that travel alone—without the performance of some additional work—cannot

constitute a “duty” of employment as a matter of law. I disagree for three reasons. First,

Atlas and the majority overstate the Caiarelli dissent’s claims; rather than stating a broad

rule about the compensability of commuting time, the dissent merely criticizes the

Superior Court’s mischaracterization of the claimed hours as commuting time. The

dissent goes only so far as to hold that the performance of additional duties during travel

is sufficient to make such travel compensable; never does it suggest that the performance

of additional duties is required. Contrary to the majority’s reading, the dissent dedicates

no discussion to the question of when travel alone may constitute a duty under the

PMWA.

       Second, the Caiarelli case was resolved at a motion for summary judgment, after

the parties had engaged in full factual discovery to determine the exact scope of the

employees’ “duties” of employment. This critical procedural distinction from the case at

bar cannot be ignored, given the fact-specific nature of “duty.” To the extent that the

Caiarelli dissenters made any statement about whether the employees’ travel was a duty

of employment, it was necessarily limited to that particular employment relationship,

which was explored through discovery.

       Third, regardless of the dissent’s breadth, its persuasiveness is marginal at best; it

remains merely the dissenting view of two justices in an appeal from an unpublished

Superior Court order which the Pennsylvania Supreme Court ultimately dismissed as



                                              9
improvidently granted. The dissent alone cannot tell us how the full bench of the

Pennsylvania Supreme Court might answer the question.

       In light of the scope of the term “duty” and the broadly remedial policies

underlying the PMWA, the question of whether Espinoza’s travel was a compensable

“duty” requires a fact-specific analysis of the exact context of his employment, rendering

it an inappropriate basis for dismissal at the pleading stage. Particularly because

Espinoza’s pleadings do allege some of the facts that the majority says “may shed light

on whether travel is part of the employee’s duties,” I would hold that Espinoza has

alleged sufficient facts to state a plausible claims for relief.

                                                    III.

       I would also reverse the District Court’s determination that Espinoza’s travel did

not take place during “normal working hours”—a determination that both parties agreed

at argument was in error. 22

       Once again, our analysis of the meaning of a statutory phrase must begin with the

text. The District Court’s analysis of this question was cursory, and simply stated that

“[t]ravel before or after [Espinoza’s] eight-day work period necessarily falls outside

[Espinoza’s] normal working hours.” 23 Thus, it appears that the District Court

determined that “normal working hours” under the PMWA are coextensive with

“scheduled working hours.” This determination flies in the face of the PMWA


22
   See Oral Arg. Recording at 5:30-5:50, 31:05-31:50,
http://www2.ca3.uscourts.gov/oralargument/audio/16-1413Espinozav.AtlasRailroad.mp3
(agreeing to the definition of “normal working hours”).
23
   App. 9a.
                                               10
regulation’s text; the implementing regulations expressly make use of the phrase

“scheduled working hours” to refer to an employee’s actual schedule of work in other

sections. 24 We cannot simply read the two phrases to have the same meaning without

ignoring the agency’s conscious decision to use different language in describing

compensable hours. In order to fully effect the intent of the agency and legislature, we

must assume that “normal working hours” has a meaning distinct from “scheduled

working hours.”

       Since the meaning of the phrase is not clear from the face of the regulation, I

would look to the meaning of the phrase as used in the analogous provisions of the FLSA

regulations because, as shown above, the regulations “substantially parallel” the PMWA

regulation. At various points in the FLSA regulations, “normal working hours” is used in

connection with additional limiting language when referring to the hours for which an

employee actually works. For example, the FLSA’s implementing regulations refer to

“[an] employee’s normal working hours on days when he is working.” 25 Because we

must read statutes to avoid surplusage, “on days when he is working” must be some

limiting qualifier on “normal working hours,” suggesting that the phrase must include at

least some hours on days where an employee is not working. This broader reading of the

phrase would also support the PMWA’s underlying purposes: limiting the potential for

abusive wage practices by employers. A reading of “normal working hours” as identical


24
   See, e.g., 34 Pa. Code § 65.22(a)(3)(ii) (stating that an employment offer must include
“[t]he scheduled working hours during each day of the week”); 34 Pa. Code § 63.64(a)(7)
(requiring employers to keep records of “[a]ll scheduled hours and hours worked”).
25
   29 C.F.R. § 785.43 (emphasis added).
                                             11
to “scheduled working hours” would exacerbate the disparity in bargaining power

between employer and employee, as employers exercise sole control over employees’

schedules. Taking this reading to its extreme, nothing would stop an employer from

“scheduling” an employee to work only a small number of hours, but requiring the

employee to complete duties deemed “ancillary” to the job outside of this scheduled shift.

This would reduce an employee’s shift hours, thereby artificially lowering the

employee’s compensation. Because such a result would clearly undermine the goals of

the PMWA, I believe that the phrase “normal working hours” may include hours outside

of an employee’s actual scheduled shifts.

                                                  IV.

       Because I believe the majority’s decision takes an overly narrow view of what

may constitute a duty of employment under the PMWA and thereby creates a new legal

bar to recovery for employees seeking to vindicate their rights, I respectfully dissent.




                                             12
