                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2710
                        ___________________________

Richard Alexander; Bennie Collum; Don Davis; Duane Grimes; John Houpt; John
  Howland; Jason Phillips; Dwayne Pritchard; Randy Schroeder; Kylan Utley;
                               Robert McNeil,

                      lllllllllllllllllllll Plaintiffs - Appellants,

                                           v.

Tutle and Tutle Trucking, Inc.; Tommy Paul Tutle, Individually and as Officer and
Director of Tutle and Tutle Trucking, Inc.; Gary Tutle, Individually and as Officer
      and Director of Tutle and Tutle Trucking, Inc.; Schlumberger Limited,
   (Schlumberger NV); Schlumberger Technology Corporation; Schlumberger
                                Technologies Inc.,

                     lllllllllllllllllllll Defendants - Appellees.
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: April 13, 2016
                              Filed: August 22, 2016
                                  ____________

Before COLLOTON and GRUENDER, Circuit Judges, and BOUGH,1 District Judge.
                          ____________



      1
      The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
COLLOTON, Circuit Judge.

       Richard Alexander and ten other plaintiffs brought suit against Tutle and Tutle
Trucking, Inc. and its directors and officers (collectively, “Tutle”), and three entities
with the Schlumberger name that owned a fleet of trucks operated by Tutle
(collectively, “Schlumberger”). Tutle employed the plaintiffs as truck drivers, and
the drivers contend that Tutle and Schlumberger failed to pay them overtime
compensation in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 207(a)(1), and the Arkansas Minimum Wage Act (“AMWA”), Ark. Code Ann.
§ 11-4-211(a). The district court2 determined that no overtime wages were due,
because an exemption under the federal Motor Carrier Act applied to the drivers. The
court thus granted summary judgment for the defendants, and the drivers appeal. We
affirm.

                                           I.

       Tutle provides trucking services for hydraulic fracturing companies. During
the relevant period, Tutle owned and operated its own fleet of trucks. Schlumberger
supplies a range of services to customers in the oil and gas industry. In March 2011,
Tutle entered into an agreement with Schlumberger to operate a fleet of Schlumberger
trucks using Tutle employees as drivers.

       Tutle employed Alexander and the other plaintiffs as truck drivers based in
Arkansas. The drivers understood that Tutle could assign them to drive routes
outside of Arkansas as part of their employment. Each plaintiff driver was designated
to drive Schlumberger trucks at some point in 2012 or 2013. The drivers contend that
when Tutle recruited them to the Schlumberger assignment, the company told each


      2
       The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.

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driver that he would drive Schlumberger trucks only within Arkansas. The drivers
assert that their primary responsibility when driving the Schlumberger trucks was to
haul within Arkansas loads of “frac sand,” a specialized type of sand that is added to
fracking fluids that are injected into wells during hydraulic fracturing.

        In practice, however, each driver traveled outside Arkansas in a Schlumberger
truck at least once, and up to five times, while designated as a Schlumberger driver.
These trips involved vehicle inspections or equipment relocation. On some
occasions, the drivers hauled sand into Arkansas when returning from an out-of-state
trip in a Schlumberger truck. Five drivers operated Schlumberger trucks in Oklahoma
and Texas for approximately one month in July and August 2013. These month-long
trips out of Arkansas were to haul frac sand to wells in Oklahoma and Texas.

       While designated as Schlumberger drivers, several of the drivers also operated
Tutle trucks when Tutle required it. Although the drivers were assigned primarily to
the Schlumberger trucks, Tutle asserts that it retained authority to require the drivers
to drive a Tutle truck or to drive out of state as needed. Even when driving
Schlumberger trucks, the drivers continued to receive trip instructions from Tutle
dispatchers.

      The drivers contend that as operators of Schlumberger trucks, they were subject
to a different set of policies than other drivers whom Tutle employed. Drivers
assigned to Schlumberger trucks were paid a flat daily or weekly rate, while drivers
assigned to Tutle trucks received a commission and “demerge pay” for waiting to
load or unload cargo. The drivers also assert that they worked different hours than
other Tutle drivers. The drivers complied with a safe driving program and used an
E-Journey software system to log their trips when driving Schlumberger trucks.

     This dispute concerns whether the drivers were entitled to overtime
compensation. Both federal law and Arkansas state law require employers to pay

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employees overtime compensation for hours worked in excess of forty hours per
workweek. 29 U.S.C. § 207(a)(1); Ark. Code Ann. § 11-4-211(a). One exception to
this general rule is the Motor Carrier Act exemption, which excepts from overtime
requirements “any employee with respect to whom the Secretary of Transportation
has power to establish qualifications and maximum hours of service.” 29 U.S.C.
§ 213(b)(1); see also Ark. Code Ann. § 11-4-211(d).

       The drivers sued Tutle and Schlumberger, alleging that the companies had
violated the FLSA and the AMWA by failing to pay overtime compensation. The
drivers also sought punitive damages based on the alleged violations of state law,
pursuant to the Arkansas Civil Justice Reform Act. Ark. Code Ann. § 16-55-206.

       On competing motions for summary judgment, the district court concluded that
the Motor Carrier Act exemption applied to the drivers, because there was a
reasonable expectation that the drivers would travel in interstate commerce, and such
activity was not de minimis. The court therefore granted summary judgment for Tutle
and Schlumberger. We review the district court’s ruling de novo, viewing the record
in the light most favorable to the drivers. Thomas v. Heartland Emp’t Servs. LLC,
797 F.3d 527, 529 (8th Cir. 2015). Summary judgment is appropriate if there is no
genuine dispute of material fact, and Tutle and Schlumberger are entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a).

                                         II.

     In the district court, the drivers sought overtime compensation from January
2012 through August 2013, the entire time that they were designated to drive
Schlumberger trucks. On appeal, the drivers seek compensation only for the period
between January 2012 and mid-July 2013. The drivers’ refined position on appeal,
however, cannot artificially limit the evidence that is relevant to determining the



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nature of their work and their eligibility for overtime compensation. We consider the
entire record developed in the district court.

        Application of the Motor Carrier Act exemption depends both on the nature of
the employer and the type of work done by the employee. 29 C.F.R. § 782.2(a).
First, the exemption applies only to workers employed by a carrier who is subject to
the jurisdiction of the Secretary of Transportation. Id.; see 49 U.S.C. § 31502(b)
(stating that the Secretary may prescribe requirements for the employees of motor
carriers and motor private carriers). The drivers do not dispute that Tutle is a motor
private carrier and thus subject to the jurisdiction of the Secretary of Transportation.
See 49 U.S.C. § 13102(15). Although Schlumberger did not employ the drivers
directly, the drivers argued in the district court that Schlumberger was liable as a joint
employer with Tutle. On appeal, the drivers contend the district court failed to
determine whether Schlumberger was also entitled to the Motor Carrier Act
exemption. We have considered the point, and assuming for the sake of analysis that
Schlumberger is a joint employer of the drivers, Schlumberger also would be a carrier
subject to the jurisdiction of the Secretary by virtue of its joint employer status. See
Songer v. Dillon Res., Inc., 618 F.3d 467, 472-73 (5th Cir. 2010).

       Second, the employees must “engage in activities of a character directly
affecting the safety of operation of motor vehicles in the transportation on the public
highways of passengers or property in interstate or foreign commerce.” 29 C.F.R.
§ 782.2(a). As a general rule, an employee fits into this category if the employee is
“called upon in the ordinary course of his work to perform, either regularly or from
time to time, safety-affecting activities” in transportation in interstate commerce. 29
C.F.R. § 782.2(b)(3). Citing a notice of interpretation from the Department of
Transportation, the parties agree that the exemption applies if there is a “reasonable
expectation” that the employee will be directed to perform interstate driving.
Application of the Federal Motor Carrier Safety Regulations, 46 Fed. Reg. 37,902-02,
37,903 (Dep’t of Transp. July 23, 1981) (“DOT Notice”); see Songer, 618 F.3d at

                                           -5-
474. The exemption does not apply, however, where the continuing duties of an
employee’s job have no substantial direct effect on the safety of transportation in
interstate commerce or where “such safety-affecting activities are so trivial, casual,
and insignificant as to be de minimis.” 29 C.F.R. § 782.2(b)(3).

       As drivers, the plaintiffs performed job duties that affected “the safety of
operation” of motor vehicles. Levinson v. Spector Motor Serv., 330 U.S. 649, 677-78
(1947); 29 C.F.R. § 782.3(b). The contested question on appeal is whether the
drivers’ activities had a sufficient connection to interstate commerce. See 29 C.F.R.
§ 782.2(a). The drivers contend that because they were designated to drive
Schlumberger trucks in Arkansas and drove primarily within that State, they were not
called upon in the ordinary course of their duties to make interstate trips. They rely
on the facts that no single plaintiff drove outside of Arkansas more than five times
between January 2012 and July 2013, and that the drivers, as a group, drove in
interstate commerce on fewer than 1% of the days that they were designated as
Schlumberger drivers.

       “[I]t is ‘the character of the activities rather than the proportion of either the
employee’s time or of his activities’” that determines the Secretary’s jurisdiction to
regulate employees. Morris v. McComb, 332 U.S. 422, 431 (1947) (quoting
Levinson, 330 U.S. at 674-75); see also 29 C.F.R. § 782.2(b)(2). Tutle is an interstate
trucking company. Even when the plaintiffs were assigned to drive Schlumberger
trucks, they remained Tutle employees and continued to receive their trip instructions
from Tutle dispatchers. Tutle retained the ability to reassign the drivers to operate
Tutle trucks and did assign eight of the employees to drive Tutle trucks when the
company needed drivers to move equipment or when there was little work available
on the Schlumberger detail. That no plaintiff drove an interstate route in a Tutle truck
during the relevant time period is not determinative, for drivers who were assigned
to Tutle trucks often drove interstate routes. The Motor Carrier Act exemption
applies to a driver who performs no interstate driving if the driver is “subject to

                                          -6-
be[ing] assigned an interstate trip” and there is a reasonable expectation of such an
assignment. Starrett v. Bruce, 391 F.2d 320, 323-24 (10th Cir. 1968); see DOT
Notice, 46 Fed. Reg. at 37,902.

       Tutle also sent the drivers on multiple interstate trips when they drove
Schlumberger trucks. From January 2012 to July 2013, nine of the eleven plaintiff
drivers drove at least one interstate route in a Schlumberger truck. Five of those nine
drivers made multiple interstate trips during that period. In July and August 2013,
five Schlumberger drivers hauled sand in Oklahoma and Texas for approximately one
month. Over the time that the drivers operated Schlumberger trucks, every plaintiff
driver traveled outside of Arkansas in a Schlumberger truck, and nine of the drivers
made more than one interstate trip. The Motor Carrier Act exemption applies even
where interstate transportation makes up a small percentage of an employee’s duties.
See Morris, 332 U.S. at 433-34 (applying the exemption where interstate trips
constituted 4% of employee drivers’ duties); DOT Notice, 46 Fed. Reg. at 37,902.
When viewed collectively, this evidence establishes that the character of the drivers’
job duties was such that they were called upon “either regularly or from time to time”
to drive in interstate commerce. 29 C.F.R. § 782.2(b)(3). There was a reasonable
expectation of interstate travel.

       The drivers make several arguments to rebut the conclusion that they were
expected to drive interstate routes. They rely on their testimony that Tutle managers
told them that they would stay in Arkansas when recruiting them to the Schlumberger
assignment. The drivers do not argue that their expectations are dispositive but assert
that the managers’ statements are relevant to discerning whether the drivers had a
reasonable expectation of driving in interstate commerce. Even accepting that the
managers made the asserted recruiting pitch, those statements do not counter the
weight of undisputed evidence described above. The drivers were Tutle employees,
Tutle drivers covered interstate routes, Tutle directed the drivers when driving both
Tutle and Schlumberger trucks, the drivers drove Tutle trucks when needed even

                                         -7-
while on the Schlumberger detail, and the drivers drove interstate trips in
Schlumberger trucks.

       Nor does the drivers’ claim that they drove out of Arkansas on only 0.45% of
days during which they were designated Schlumberger drivers preclude summary
judgment. The drivers’ statistic is not easily compared to statistics in other cases,
because the drivers measure the number of days in which they drove out of Arkansas,
rather than the proportion of trips that were interstate. Cf. Morris, 332 U.S. at 432-
33; Resch v. Krapf’s Coaches, Inc., 785 F.3d 869, 874 (3d Cir. 2015); Songer, 618
F.3d at 476; Kimball v. Goodyear Tire & Rubber Co., 504 F. Supp. 544, 547-48 (E.D.
Tex. 1980). The drivers also do not disclose whether there were days on which no
trips were made or days where multiple trips were made. Without additional
information, we cannot determine whether the 0.45% number describes accurately the
proportion of the drivers’ duties that affected interstate commerce. In any event, even
a small proportion of interstate travel does not eliminate the Secretary’s jurisdiction,
because it is the character of the drivers’ activities that matters.

      The drivers also argue that their interstate trips were for “extraordinary
purposes, outside their normal, sand-hauling duties.” But while many interstate trips
involved vehicle inspections or equipment relocation, those tasks were within the
scope of their employment with Tutle. On multiple occasions, moreover, the drivers
returned to Arkansas with a load of sand.

       The drivers next argue that any interstate driving that they performed was de
minimis. While the regulations recognize a de minimis exception to the Motor Carrier
Act exemption, see 29 C.F.R. § 782.2(b)(3), drivers should “seldom, if ever” fall
within that exception. Resch, 785 F.3d at 875 (quoting Friedrich v. U.S. Comput.
Servs., 974 F.2d 409, 417 n.10 (3d Cir. 1992)). “The activities of one who drives in
interstate commerce, however frequently or infrequently, are not trivial. Such
activities directly affect the safety of motor vehicle operations.” Crooker v. Sexton

                                          -8-
Motors, Inc., 469 F.2d 206, 210 (1st Cir. 1972). As the Supreme Court explained,
“the driver’s work more obviously and dramatically affects the safety of operation of
the carrier during every moment that he is driving than does the work of the loader
who loaded the freight which the driver is transporting.” Levinson, 330 U.S. at 678.
The drivers each drove interstate as a requirement of their employment with Tutle,
and the majority of drivers made multiple interstate trips. The effect of these trips on
the safety of the operation of motor vehicles in interstate commerce was not trivial,
casual, or insignificant, 29 C.F.R. § 782.2(b)(3), so the de minimis exception does not
apply.

                                   *       *       *

       Because the Motor Carrier Act exemption applies to the drivers, they are not
entitled to overtime compensation. The judgment of the district court is affirmed.
                       ______________________________




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