     Case: 12-40382       Document: 00512110349         Page: 1     Date Filed: 01/11/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         January 11, 2013

                                     No. 12-40382                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JUSTIN GRIFFIN,

                                                  Plaintiff-Appellant,
v.

S&B ENGINEERS & CONSTRUCTORS, LIMITED,

                                                  Defendant-Appellee.



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 1:11-CV-60


Before STEWART, Chief Judge, and KING, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Justin Griffin appeals the district court’s grant of
summary judgment in favor of S&B Engineers and Constructors, Limited
(“S&B”), claiming that the travel time spent on S&B mandatory bus rides to and
from the Motiva Enterprises, L.L.C.’s Port Arthur Refinery Crude Expansion
Project (“Motiva Plant”) is compensable under the Fair Labor Standards Act of




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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1938 (“FLSA”), 29 U.S.C. § 201 et seq. For the following reasons, we AFFIRM
the district court’s grant of summary judgment.
                                             I.
       S&B is an engineering and construction services contractor in the
petrochemical and refining industry. In 2007, S&B began providing construction
services at the Motiva Plant in Port Arthur, Texas. Starting in May 2008, S&B
hired manual laborers to work at the Motiva Plant. Laborers had the option of
either parking at the F Parking lot, which was located nearby the Motiva Plant,
or participating in a park and ride program.
           In May 2010, S&B required its laborers to participate in a mandatory
park and ride scheme.1 This scheme required all laborers to park and ride S&B
provided buses from the National Parking Lot (the “National Lot”), which is
located approximately six to seven miles away from the Motiva Plant. Before
boarding the buses between 5:30 a.m. to 6:30 a.m., laborers had to walk through
turnstiles and were required to scan their Motiva Plant badge. S&B also
provided a late arrival bus, which departed at 6:45 a.m.
       The National Lot and S&B buses were considered Crude Expansion
Project site extensions, and as a result, Motiva’s rules of conduct applied to these
areas. In particular, laborers were required to follow Motiva’s Transportation
Rules of Conduct, which included, but were not limited to, prohibitions of
fighting and littering, using tobacco, consuming alcohol or controlled substances,
and possessing weapons. Additionally, Motiva prohibited cell phones with
cameras on the site. Laborers who violated these rules could be subject to



       1
         Griffin disputes the motives behind the implementation of S&B’s busing scheme. He
contends that the busing scheme was based on the “business convenience and choices of
Griffin’s employer and its clients,” and thus served as a commercial benefit to S&B. However,
Griffin’s commercial benefit argument does not bear on our decision because the material
fact–that Griffin was required to ride S&B’s buses to and from the Motiva Plant–is not in
dispute.

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disciplinary action such as removal from the bus, notification of misconduct to
Motiva Plant officials, or termination from employment.
       After arriving at the Motiva Plant, laborers had to scan their S&B badges
and then proceeded to their appropriate work stations. At approximately 5:30
p.m., the buses transported the laborers back to the National Lot. The daily
round-trip travel time to and from the Motiva Plant lasted approximately forty
to sixty minutes.2 S&B did not provide laborers with any job-related instructions
prior to or during the bus rides or compensate them for the travel time to and
from the Motiva Plant.
       In December 2010, S&B hired Griffin to work as a journeyman electrician
in the Sulphur Block Unit at the Motiva Plant. As did the other laborers, Griffin
boarded and rode the buses to and from the Motiva Plant. On December 20,
2010, Griffin started working at the Motiva Plant and his job duties included
running cable trays and pipe, pulling wire, performing electrical work, and
completing paperwork.          Griffin ended his employment with S&B in early
January 2011.
       After leaving S&B, Griffin filed a collective action suit on his behalf, and
on behalf of similarly situated laborers, alleging S&B’s mandatory busing
scheme violated the FLSA because laborers were not compensated for their
travel time. On June 3, 2011, the district court bifurcated discovery into two
phases, limiting phase one to the issue of whether the travel time was
compensable under the FLSA or precluded under the Portal to Portal Act. 29
U.S.C. § 254 (a). After the conclusion of phase one, S&B filed a motion for
summary judgment, and Griffin filed a partial motion for summary judgment


       2
         Griffin testified that the travel time to the Motiva Plant lasted approximately fifteen
to thirty minutes. Griffin clarified however, that the travel time from the National Lot to the
Motiva Plant was approximately twenty to twenty-five minutes. Nevertheless, S&B’s busing
schedule provided, “Normal bus run time is ~20 minutes, but, allowed [sic] 30 minutes per run
for possible delays.”

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regarding the application of the Portal to Portal Act. Griffin maintained that the
travel time was compensable because 1) the mandatory busing scheme served
as an economic commercial benefit for S&B; 2) laborers were considered “to be
on the worksite” during the bus rides and subject to Motiva Plant’s rules of
conduct which, if violated, could result in disciplinary action; and 3) the bus
rides to and from the Motiva Plant were “integral and indispensable” to his work
at the Motiva Plant under Dunlop v. City Electric Inc., 527 F.2d 394 (5th Cir.
1976).3 The district court granted summary judgment in favor of S&B, ruling
that the travel time was not compensable under the FLSA. The district court
further noted that the sole fact that S&B instituted a mandatory scheme does
not per se render such travel time compensable. With respect to Motiva’s
Transportation Rules of Conduct, the district court explained that these rules
were reasonably related to the “logistics of commuting,” which is not a principal
activity. Regarding Griffin’s contention that the bus rides were “integral and
indispensable” to his employment under Dunlop, the court stated that the
“propriety of applying the Dunlop factors . . . is unclear.” Nevertheless, even
assuming Dunlop was applicable, the district court concluded that a full analysis
under Dunlop was not necessary because “merely traveling or commuting does
not confer a benefit on the employer because it does not relate to the duties the
employee was hired to perform.” Griffin timely appealed.
                                             II.
       This court reviews the district court’s grant of summary judgment de novo.
Admiral Ins. Co. v. Ford, 607 F.3d 420, 422 (5th Cir. 2010). Summary judgment
is appropriate “if the pleadings, depositions, answers to interrogatories, and


       3
          In Dunlop, we stated that activities are “principal” and thus “integral and
indispensable” if the activities are “performed as part of the regular work of the employees in
the ordinary course of business.” 527 F.2d at 400-01. We further stated, “what is important
is that such work is necessary to the business and is performed by the employees, primarily
for the benefit of the employer, in the ordinary course of that business.” Id. at 401.

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admissions on file, together with the affidavits, if any, show that there is no
genuine dispute as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). The court must view all
facts and evidence in the light most favorable to the non-moving party in
considering a motion for summary judgment. Dameware Dev., L.L.C. v. Am.
Gen. Life Ins. Co., 688 F.3d 203, 206-07 (5th Cir. 2012).
      “In 1938 Congress enacted the FLSA as a means of regulating minimum
wages, maximum working hours, and child labor in industries that affected
interstate commerce.” Reich v. Tiller Helicopter Servs., Inc., 8 F.3d 1018, 1024
(5th Cir. 1993).     Under the FLSA, “no employer shall employ any of his
employees . . . for a workweek longer than forty hours unless such employee
receives compensation for his employment in excess of the hours above specified
at a rate not less than one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1).
      In 1947, Congress amended the FLSA by enacting the Portal to Portal Act
as a legislative countermand to earlier Supreme Court jurisprudence. 61 Stat.
84 (codified at 29 U.S.C. § 251(a)). Prior Supreme Court precedent accorded an
expansive interpretation of “work” and “workweek,” which was not defined in the
FLSA. IBP, Inc. v. Alvarez, 546 U.S. 21, 25-26 (2005) (discussing prior Supreme
Court precedent which evidenced broad interpretations of “work” and
“workweek”). Pursuant to the Portal to Portal Act, employers are not subject to
the payment of minimum wage to an employee under the FLSA for the following
non-compensable activities:

            (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,


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              which occur either prior to the time on any particular
              workday at which such employee commences, or
              subsequent to the time on any particular workday at
              which he ceases, such principal activity or activities.
              For purposes of this subsection, the use of an
              employer’s vehicle for travel by an employee and
              activities performed by an employee which are
              incidental to the use of such vehicle for commuting
              shall not be considered part of the employee’s principal
              activities if the use of such vehicle for travel is within
              the normal commuting area for the employer’s business
              or establishment and the use of the employer’s vehicle
              is subject to an agreement on the part of the employer
              and the employee or representative of such employee.

29 U.S.C. § 254(a).
       Thus, the Portal to Portal Act exempts employee compensation for
ordinary commuting to and from work, or activities which are preliminary to or
postliminary to the principal activity. Id.
                                              III.
                                               A.
       Primarily, Griffin contends that S&B’s mandatory busing scheme renders
the applicable travel time compensable under the FLSA. In support of this
contention, Griffin submits that our decision in Vega v. Gasper, 36 F.3d 417 (5th
Cir. 1994), and an Eastern District of Texas federal district court’s decision in
Johnson v. RGIS Inventory Specialists, 554 F. Supp. 2d 693 (E.D. Tex. 2007)
emphasized the voluntary use of transportation in concluding such travel time
was not compensable under the FLSA.4 Griffin contends that the travel time in
the instant case is compensable because S&B’s mandatory busing scheme is not


       4
        Griffin also cites Morillion v. Royal Packing Co., 995 P.2d 139 (Cal. 2000), a California
Supreme Court decision, and Hyman v. Efficiency, Inc., 605 S.E.2d 254 (N.C. Ct. App. 2004),
a North Carolina Court of Appeals decision. These cases, however, are inapplicable to the
present matter, as those courts interpreted state substantive law.

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analogous to the transportation schemes in Vega and Johnson. Griffin further
maintains that the laborers were considered to be “on the worksite” and subject
to rules of conduct during the bus rides and that the bus rides were “integral and
indispensable” to his work. Before assessing the merits of Griffin’s arguments,
we first consider our decision in Vega and the district’s court’s decision in
Johnson.
                                       B.
      In Vega, we addressed the question of whether farm workers’ travel time
to and from chile pepper fields was compensable under the FLSA. Vega, 36 F.3d
at 424. We held that the travel time constituted ordinary-to-work or from-work
travel, and thus was not compensable under the FLSA. Id. at 425. Vega
involved a farmer contractor arrangement in which Gasper, a farm contractor,
was hired by farms to hire, supervise, and pay farm workers. Id. at 422-23. The
workers that Gasper hired provided their own transportation to a meeting site
in El Paso, and were provided the option of riding Gasper’s buses to the farms.
Id. at 423. The travel time to the farms lasted approximately two to two-and-a
half hours and the farmers were informed which fields they would work on that
day during the ride. Id. The travel time from the farms back to El Paso lasted
two hours. Id. Some of the workers filed suit against Gasper, claiming, inter
alia, compensation for travel time to and from the farms under the FLSA. Id.
      In holding that the travel time constituted ordinary to-work or from-work
travel, and therefore was not compensable under the FLSA, we noted the
following factors supporting our decision: 1) the workers performed no work
prior to or during the bus rides; 2) the workers did not load tools or otherwise
engage in preparatory work during the bus rides or prior to harvesting the chile
peppers; 3) the workers’ mere receipt of Gasper’s instructions regarding field
work and pay rate was insufficient to render such time compensable; 4) the
workers’ use of Gasper’s buses was voluntary; 5) the length of travel time in

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itself, did not render the travel time compensable; and 6) the workers did not
have to travel between job sites after harvesting the chile peppers. Id. at 425.
      In Johnson, a federal district court addressed the issue of whether an
auditor’s travel time to and from stores was compensable under the FLSA.
Johnson, 554 F. Supp. 2d at 703-06. The Johnson court held that the travel time
constituted ordinary home-to-work-and-back travel, and thus was not
compensable under the FLSA. Id. at 706. RGIS, a provider of inventory services
in the retail industry, furnished voluntary transportation from a meeting site for
auditors who were assigned to work at retail stores located more than twenty
miles from town or at stores located closer if there were logistical issues
regarding transportation. Id. at 696-97. Johnson, who worked as an auditor
with RGIS, typically rode on RGIS’s vans from the meeting site to stores that she
was assigned to audit. Id.
       Johnson filed suit under the FLSA alleging, inter alia, the travel time
was compensable because travel was a principal activity of her work and that
she performed work prior to leaving the meeting site, which, according to
Johnson, included loading equipment into the van. Id. at 703. As in Vega, the
Johnson court evaluated many factors before concluding that Johnson’s travel
time was not compensable under the FLSA. The court first noted that use of
RGIS’s company van at the meeting site was voluntary but stated that, “[e]ven
if use of the transportation was strongly encouraged by RGIS, this was related
to business and commuting logistics rather than the auditors’ principal activities
. . . .” Id. at 704-05. The Johnson court further explained that Johnson was not
required to report to the meeting site to receive work-related instructions, to pick
up and carry equipment, or to perform other work. Id. at 705.
                                        C.
      As an initial matter, we note that there is no circuit precedent addressing
whether a mandatory transportation scheme per se renders such travel time

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compensable under the FLSA. However, our sister circuits that have discussed
mandatory employer transportation schemes have disfavored fashioning such
a per se rule. See, e.g., Bonilla v. Baker Concrete Constr. Inc., 487 F.3d 1340,
1343 (11th Cir. 2007) (“The fact that the [construction] workers were required
to ride authorized transportation . . . is not relevant to the outcome of this case
because even mandatory travel time is exempted from compensation under the
Portal to Portal Act.”); Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1288
(10th Cir. 2006) (“Pursuant to the Portal-to-Portal Act, employers are not
required to compensate their employees for time spent ‘traveling to and from’ the
place of their principal activities, and nothing in the statute indicates that there
is a per se exception for employees just because they must travel with their co-
workers.”). S&B’s mandatory busing scheme arrangement is simply normal
traveling time that laborers would also be required to undertake by the mere
fact of working at the Motiva Plant. 29 C.F.R. § 785.35 (“An employee who
travels from home before his regular workday and returns to his home at the end
of the workday is engaged in ordinary home to work travel which is a normal
incident of employment. . . . Normal travel from home to work is not worktime.”).
Equally in this case, we decline to adopt such a per se rule.
      Turning to the case at hand, we hold that the travel time is not
compensable under the FLSA, as it constitutes ordinary home-to-work-and-back
travel. First, Griffin’s interpretation of the holdings in Vega and Johnson is
misplaced.    The voluntary use of transportation in those cases was not
dispositive in concluding the travel time was noncompensable. In fact, as
previously stated, the Vega and Johnson courts expressly took the opposite
approach by specifically discussing several factors in concluding that the travel
time was not compensable under the FLSA. Additionally, Griffin’s deposition
testimony is particularly instructive in our assessment of the factors that we
deemed persuasive in Vega. Griffin conceded in his deposition that he neither

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performed any work prior to the beginning of his shift at the Motiva Plant nor
received any work-related instructions prior to or during the bus rides. He also
acknowledged that he retrieved his tools after the daily safety meetings, which
were held at the Motiva Plant at approximately 7:10am, and that he returned
his tools at 5:20pm, ten minutes prior to the end of his shift. Furthermore,
Griffin explained that S&B did not restrict him from engaging in personal
activities such as sleeping and reading during the rides. Based on these facts,
Griffin’s travel time is not compensable. Cf. 29 C.F.R. § 785.38 (“Where an
employee is required to report at a meeting place to receive instructions or to
perform other work there, or to pick up and to carry tools, the travel from the
designated place to the work place is part of the day’s work, and must be counted
as hours worked regardless of contract, custom, or practice.”).
      Although Griffin was required to follow Motiva’s Transportation Rules of
Conduct, we conclude these rules were simply logistical, administrative, and
marginally restrictive, and not “integral and indispensable” to Griffin’s activities
as a journeyman electrician. See Smith, 462 F.3d at 1288 (“A restriction imposed
on the manner in which the plaintiffs can travel to and from their workplace is
relevant only if it shows that their travel time was integral and indispensable
to their principal activities.”).
      Finally, we find persuasive the interpretative statements of the Wage and
Hour Division of the Department of Labor (the “Department”) in concluding the
travel time in this case is not compensable under the FLSA. The interpretative
statements issued by the Department are not promulgated regulations, but do
provide insightful guidance to courts in evaluating claims brought under the
FLSA. Wirtz v. Keystone Readers Serv., Inc., 418 F.2d 249, 257 (5th Cir. 1969)
(“[R]ulings, interpretations and opinions of the Administrator under [the FLSA],
while not controlling upon the courts by reason of their authority, do constitute



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a body of experience and informed judgment to which courts and litigants may
properly resort for guidance.”). In 29 C.F.R. § 790.7(f), the Department provides:
            Examples of walking, riding, or traveling which may be
            performed outside the workday and would normally be
            considered “preliminary” or “postliminary” activities are
            (1) walking or riding by an employee between the plant
            gate and the employee’s lathe, workbench or other
            actual place of performance of his principal activity or
            activities; (2) riding on buses between a town and an
            outlying mine or factory where the employee is
            employed; and (3) riding on buses or trains from a
            logging camp to a particular site at which the logging
            operations are actually being conducted.

The Department’s interpretative statements thus specifically contemplate
busing to a place of employment as an exemption under the FLSA pursuant to
the Portal to Portal Act. Therefore, the travel time on S&B’s mandatory busing
scheme is not in conflict with prevailing FLSA jurisprudence.
                                       IV.
      For these reasons, we AFFIRM the district court’s grant of summary
judgment.




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