                                                                         FILED
                                                             United States Court of Appeals
                                       PUBLISH                       Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 November 4, 2016

                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court
                        _________________________________

R. DANE SHARP, individually and on
behalf of all similarly situated employees;
ALEJANDRO ESPINOZA; MARIANO
ESPINOZA, JR.; CORDIUS HICKMON;
GABRIEL J. GALVAN; SEYDINA
SYLLA; JORDAN PHOTBAUPHA;
JUAN R. ROMERO; TODD M.
DELANCEY; WILLIAM SIMON
SEWANDO; DIANE K. STERK; COREY                       No. 15-5113
D. SANDERS; EULOGIO SOLANO
MARTINEZ; BARRY COLLINS, JR.;
ELIAS DAVILA; EDGAR TREBOTICH;
JOHN WASHAM; ALEJANDRO
MONCADA; RODOLFO RAMIREZ;
GARY WYATT; DERON SCOTT;
EMILIO RUBIO; RALPH WILSON;
JOHNATHON NUNNERY; DEXTER
THOMPSON; WILLIAM WILSON;
JERRY ANDERSON; DIETRICH
JACKSON; GERMAINE WILSON;
LANDRIX JACKSON; GILBERTO
BONILLA; SANTIAGO BONILLA;
RICHARD FARR; TIMOTHY GARCIA;
JESUS RODRIQUEZ; JUAN ESTRADA;
AMBROCIO ROSALES; SEFERINO
SALDANA; RAMON MORENO;
ANTONIO MORA-ARMAGA;
JEREMIAH HART; DONNELL HARRIS;
JORGE CAMPOS; TAYLOR ELLIS;
ALFONSO CARDOZA, JR.; JOE L.
RUFFIN; RATHEAL BATEASTE; JOSE
A. MARTINEZ; DONALD GUIDRY;
OLJUWAN TOBIAS; KOUA XIONG;
HELIO S. RODRIQUEZ; CARLOS
TORRES; JOSEPH TILDEN; JUAN M.
URBINAF; ISMAEL MENDOZA, JR.;
OCTAVIO MENDOZA; JEFFREY
DOUGLAS; LEONARD JOHNSON;
ALEJANDRO MONCADA; TODD
TOUCHET; DANIEL WETHERBY;
SANTIAGO CANALES; LARRY
WILSON; ROBERT L. JEFFERSON, JR.;
OSCAR WILLIAMS; TERRY WHITE;
JIREH L. MONROE, SR.; JUAN
CARRILLO; DONNTEL DION BAILEY;
JUAN HERNANDEZ; WAYNE BURNS;
JEREMY FRAZIER; KEVIN
RESENDEZ; GREGORY PENATZER;
NORBERTO HERNANDEZ; DARYL
SMITH; JAMES WALKER; MATEOS
GARCIA; DARRICK WEATHERSBY;
JARED LEGGETT; CALEB
WEATHERSPOON; CHARLIE LEE, JR.;
MARCUS PRICE; DAMION WALKER;
LEBRODERICK JONES, SR.;
ROLANDO BATES; SHON M.
PHILLIPS; SHAWN BROWN; ERIC L.
BURROUGHS; JOSE CARDENAS;
PABLO CAVALLERO; TRAMAINE
CHAPMAN; FRANCISCO DIAZ; PAUL
DUTCHOVER; MARTIN GARZA; JOSE
G. GOMEZ; JOHN L. GRANGER;
LEKEITH HANDY, SR.; ROBERT
HOAGLIN; MICHAEL HOLMES;
KALUNA KOVIN; DARIUS LEBLANC;
DARYL MCCRAY; DENNIS R. MILLS;
J. MARK MORGAN; JOSE ALBERTO
NAVAEZ; DAVID PEREZ; ARTURO
RAMIREZ; ARDELL ROBINSON, JR.;
ARTURO SAENZ, JR.; KHAMMALA
SY; RAYMOND A. THIELE; ROBERT
VAN DEN BRINK; SOUTHEP
VONGKHAMCHAN; DAOKHAM
XAYSY; BASSIROU M. BAYE;
JALANTE M. BROWN; NOBLE
CAMPBELL; PAO X CHANG; ANDRES
B. CORTEZ; CHRISTOPHER
DEMARTIN; SHAWN DICKERSON;
EDDIE GONZALEZ; LUIS R. GARCIA;

                                    2
ERIC HAND; KUNTA HICKMON;
GEORGE HUNT; RODERICK
JEFFERSON; TONY JENKINS;
CHARLES JOHNSON; SOUKHY
KEOMANIVONG; PHRA MANIDONE;
NIKITA MINOR; JORGE L. NARVAEZ;
PHETSOMONE NAVONGSA; PHO
NGEUNE; RICKY V. NORRIS, JR.;
ARTHUR L. NUNNERY; DERRICK
POPE; JESUS S. RODRIGUEZ; JOHN
RODRIGUEZ; ROBERT A. SMITH;
GEORGE STINSON; NICK STINSON;
SOULIVANH SYLAPHET; MARQUS
TURNER; BRUCE WILLIAMS;
EDWARD D. BAITY; EDGAR CERDA;
MONTREAL CHAPMAN; RUSSELL
CHAPMAN; JOSEF DEBLANC;
DESMOND DENNIS; JORGE FRANCO;
BRYAN GODINEZ; EDSON
GONZALEZ; VICTOR GUTIERREZ;
TRAVIS GREGORY HAMMONDS;
ROGELIO HERNANDEZ; SHAWN L.
JACKSON; TYRONE D. JACKSON;
ALAN ROY JOHNSON, SR.; SERGIO
JUAREZ; KONGVIENG KHAMMALA;
LESLIE R. LIPPERT; CHRISTOPHER A
MARTIN; CERGIO MARTINEZ; JAIME
MARTINEZ; ARTHUR MENDOZA;
JUSTIN MERILLAT; JOHN
NICKERSON, JR.; MANUEL ORTIZ;
BRANDON S. PARRISH; DAMIAN
SMITH; BOUBACAR MBERRY SYLLA;
CARL TOTI; JULIO VELASQUEZ;
EDDIE LEE WHITE, JR.; JOSEH
DEBLANC; BRYAN GODINEZ; CESAR
O. CANIZALES; EMILIO DELACRUZ;
DAVID DELLAR; ELEAZOR
GUTIERREZ; DIONDRICK HURST;
BARTHELEMY KASSI; JIM
KEOMORAKOTH; ARMANDO LOYA;
MARY OLZWESKI; TEVIN L.
PITTINGER; MARA PRIESTELY;
BOUNLEUTH RASAVONGSY;

                                   3
FRANCISCO JAVIER RIOS-FAVELA;
PAPA ROBINSON; JOSEPH RYALS;
CHRISTOPHER SMITH; ANTHONY
WEEKS; ROBERT BYERS; SEAN
ALLISON; JOSE LAZARO YANES;
ALAN ROY JOHNSON, SR.; OCTAVIO
ESPARZA ALVAREZ; RODERRICK
BROWN; RONALD O. BATES; JASON
T. ENGLE; HARRY L. MCGHEE, JR.;
FREDDIE L. RUFFIN; JESUS E. OJEDA,
JR.; FRED E. TRUEBLOOD; JOSE F.
SCOTT; URSULA SPRING WEEKLY, as
executor for son Jordan Kyle Gatte;
FRANCISCO CONTRERAS
HERNANDEZ; BERMARDO
ZACARIAS; JUAN M. ESPARAZA;
JULIO C. FERRUFINO; FREDERICK M.
FELTON; EDUARDO A. PEREZ, JR.;
JAMES LORELL DOWNS; JOE LEWIS
MARS; LUIS BENETIZ, SR.; CHAD A.
KNIEPER; DERECK J. SMITH; JOSE
ANGEL GUEVERA-GOMEZ;
SENGKHAM MANIVONG; JAIME
MEDINA; OMERO GARCIA, JR.;
OMAR AGUIRRE; SITTHISAK
MEUANGKHOT,

     Plaintiffs - Appellants,

v.

CGG LAND (U.S.) INC.,

     Defendant - Appellee.
                     _________________________________

                    Appeal from the United States District Court
                      for the Northern District of Oklahoma
                      (D.C. No. 4:14-CV-00614-CVE-TLW)
                      _________________________________




                                         4
J. Vince Hightower, Law Offices of J. Vince Hightower, Tusla, Oklahoma, for Plaintiffs-
Appellants.

Laurence E. Stuart, Stuart PC, Houston, Texas (Hollie Leanne Reiminger, Stuart PC,
Houston, Texas, with him on the brief), for Defendant-Appellee.
                        _________________________________

Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

PHILLIPS, Circuit Judge.
                     _________________________________

      CGG Land (U.S.) Inc.’s employees (Employees) brought this collective action

alleging violations of the Fair Labor Standards Act (FLSA). The FLSA generally

requires employers to compensate overtime hours at one and one-half times the

employee’s “regular rate” of pay. See 29 U.S.C. § 207(a)(1) (2012). Employees claim

that CGG violated the FLSA by not including in their regular rates reimbursement

payments for $35 of daily meal expenses while working away from home. Thus,

Employees claim that CGG undervalued their pay in calculating their overtime

compensation. We hold that 29 U.S.C. § 207(e)(2) exempts such payments from the

regular rate as travel expenses incurred in furtherance of the employer’s interest. We

affirm the district court’s grant of summary judgment in favor of CGG.

                                  BACKGROUND

      The Parties stipulated to the following undisputed facts. Employees are former

hourly employees of CGG. CGG provides seismic-mapping services at remote

locations throughout the United States. To reach the remote locations, CGG required

its employees to travel away from home and stay in hotels near remote job sites for


                                           5
four-to-eight-week intervals. Employees then returned home for about two-to-four-

week intervals before again traveling to remote locations.

      Employees often worked more than forty hours per week while at the remote

locations, and CGG paid them overtime based on Employees’ regular rates of pay.

When CGG’s employees worked away from home, CGG also provided them a $35

per diem for meals, including on days spent traveling to and from the remote job

locations. In the district court, the Parties stipulated that $35 “was a reasonable

amount for meal expenses incurred by the Plaintiffs while living and working on

CGG Land business at work locations away from their home locations.” Appellant’s

App. vol. I at 64. CGG didn’t pay the $35 when employees worked from their home

locations or when food was provided at the remote locations.

      In determining Employees’ regular rates of pay, CGG didn’t include the daily

$35 payments. Contesting this calculation method, Employees filed a collective

action against CGG asserting that CGG violated the FLSA by calculating their

overtime pay on undervalued regular rates of pay. After stipulating to material facts

in the district court, the Parties each sought summary judgment. The district court

granted summary judgment for CGG, agreeing with CGG that the $35 payments were

exempt from the regular rates of pay under 29 U.S.C. § 207(e)(2).

      On appeal, Employees argue that the district court erred in treating the $35

payments as exempt travel expenses under § 207(e)(2). First, Employees claim that

travel expenses are not exempt for days when they traveled to or from remote job

sites because they didn’t do any work for CGG on those days. And second,

                                          6
Employees claim that the $35 payments remained not exempt for all days they

worked at the remote job site because for those days they were no longer traveling

over the road. In addition, Employees claim that CGG has waived all defenses except

its claim that the $35 payments are exempt under § 207(e)(2).1

                             STANDARD OF REVIEW

      “We review the district court’s summary judgment decision de novo, applying

the same standard as the district court.” McBride v. Peak Wellness Ctr., Inc., 688

F.3d 698, 703 (10th Cir. 2012) (internal quotation marks omitted). Under this

standard, summary judgment is appropriate “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. Civ. P. 56(a). Here, the Parties stipulated to the material facts

in the district court, so the sole issue is whether those facts justify granting CGG

summary judgment.

                                    DISCUSSION

      “The purpose of FLSA overtime is ‘to compensate those who labored in excess

of the statutory maximum number of hours for the wear and tear of extra work and to

spread employment through inducing employers to shorten hours because of the

pressure of extra cost.’” Chavez v. City of Albuquerque, 630 F.3d 1300, 1304 (10th

Cir. 2011) (quoting Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 460 (1948)).


      1
       Because we affirm the district court’s grant of summary judgment in favor of
CGG, Employees’ argument that CGG waived its other affirmative defenses is moot
and we refrain from addressing that argument.

                                           7
An employer must compensate overtime hours “at a rate not less than one and one-

half times the regular rate at which [the employee] is employed.” 29 U.S.C. §

207(a)(1). “‘The proper determination of that [regular] rate is therefore of prime

importance’ in calculating the amount of overtime wages due.” Albers v. Bd. of Cty.

Comm’rs of Jefferson Cty., Colo., 771 F.3d 697, 704–05 (10th Cir. 2014) (quoting

Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945)).

       The first step in resolving this FLSA dispute is to determine Employees’ regular

rates. Chavez, 630 F.3d at 1304. The regular rate “shall be deemed to include all

remuneration for employment paid to, or on behalf of, the employee,” subject to eight

exceptions. 29 U.S.C. § 207(e). One exception exempts “reasonable payments for

traveling expenses, or other expenses, incurred by an employee in the furtherance of his

employer's interests and properly reimbursable by the employer; and other similar

payments to an employee which are not made as compensation for his hours of

employment.” Id. § 207(e)(2). This exception applies “[w]here an employee incurs

expenses on his employer’s behalf or where he is required to expend sums solely by

reason of action taken for the convenience of his employer.” 29 C.F.R. § 778.217(a)

(2016). For instance, this exception includes the “reasonably approximate amount

expended by an employee, who is traveling ‘over the road’ on his employer’s business,

for . . . living expenses away from home . . . .” Id. § 778.217(b)(3).

       Here, the Parties stipulated that CGG’s $35 payments were reasonable amounts to

compensate Employees for their approximate meal expenses while away from home.

Further, they agree that CGG’s employees received the $35 payments only when CGG

                                              8
required them to work away from home. Employees traveled away from home because

CGG required them to do so. So the issue is whether the $35 reimbursement for meals is

a living expense away from home.

      While conceding that living expenses are exempt from the regular rate, Employees

argue that the phrase “living expenses” doesn’t include the cost of food. But the

Department of Labor (DOL) has rejected this argument, concluding that “the phrase

‘living expenses’ includes the cost of food, and the necessity of eating meals away from

home is an additional expense that the employee incurs for the employer’s benefit.”

Wage and Hour Division Opinion Letter, FLSA 2004-3 (May 13, 2004); see McBride,

688 F.3d at 705 (“Given their provenance and legal effect, [DOL] opinion letters are

entitled to great weight when they interpret the DOL’s own (ambiguous) regulations.”

(internal quotation marks omitted) (quoting In re Wal-Mart Stores, Inc., Fair Labor

Standards Act Litig., 395 F.3d 1177, 1184 (10th Cir. 2005))). We agree with the DOL

that the cost of food away from home is an additional expense that the employee incurs

while traveling for the employer’s benefit and is thus exempt as a living expense.

      Despite this, Employees argue that they were no longer “traveling over the road”

once they reached their remote job site, so the $35 cannot be excluded. We agree with the

district court that “this is a hyper-literal interpretation of the term ‘traveling.’”

Appellant’s App. vol. I at 192. The term “traveling” includes more than the time spent in

transit to or from the remote job site. See Wage and Hour Division Opinion Letter, FLSA

2004-3 (May 13, 2004) (explaining that all meals would be excluded as living expenses

away from home when an employee travels for work). Instead, we must read “traveling”

                                            9
more broadly as time “away from home,” not just time in transit. 29 C.F.R. §

778.217(b)(3). So the proper focus under section 778.217(b)(3) is whether the $35

payments are for reimbursement of travel expenses incurred in furtherance of the

employer’s interests—not whether the employee is in transit at any given moment when

the employee has traveled to a remote job site requiring that the employee be away from

home during mealtimes. See 29 U.S.C. § 207(e).

      Finally, despite stipulating that the $35 per diem payment is a reasonable meal

allowance, Employees still suggest that CGG paid the $35 as part of a scheme to set an

artificially low hourly pay rate to underpay overtime pay. Employees’ stipulation defeats

this argument.

      And Employees’ cited cases on this issue are easily distinguishable—they involve

instances where employers tied per diem payments to the amount of hours that employees

worked. For example, in Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33, 39

(1st Cir. 2014) and Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1042 (5th Cir.

2010), the courts disallowed employers from excluding per diem payments from

employees’ regular rates when the per diem payments depended on the number of hours

worked. See 29 U.S.C. § 207(e)(2) (exempting expenses “incurred by an employee in the

furtherance of his employer’s interests and properly reimbursable by the employer” but

not excluding payments made “as compensation for his hours of employment”). In

contrast, here, Employees do not receive higher per diem payments after working longer

hours. And it bears repeating that the Parties stipulated that the payments were reasonable

payments for meals.

                                            10
      Here, Employees traveled to remote job sites away from home to perform lengthy

work stints for CGG. While away from home, Employees incurred meal expenses while

serving CGG as employees and while furthering CGG’s interests. For all the reasons

stated, these travel expenses are exempt under 29 U.S.C. § 207(e)(2).

                                    CONCLUSION

      The district court’s decision granting summary judgment in favor of CGG is

AFFIRMED.




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