                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 19-1703
LEONID BURLAKA, et al.,
                                                Plaintiffs-Appellants,
                                 v.

CONTRACT TRANSPORT SERVICES LLC,
                                                 Defendant-Appellee.
                     ____________________

         Appeal from the United States District Court for the
                    Eastern District of Wisconsin.
          No. 1:17-cv-1126 — William C. Griesbach, Judge.
                     ____________________

  ARGUED SEPTEMBER 18, 2019 — DECIDED AUGUST 21, 2020
                ____________________

   Before KANNE, HAMILTON, and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge. Leonid Burlaka, Timothy Keuken,
Travis Frischmann, and Roger Robinson are truck drivers
who brought individual, collective, and class action claims
against Contract Transport Services (CTS), their former em-
ployer, for failing to provide overtime pay in violation of the
Fair Labor Standards Act (FLSA), which requires overtime
pay for any employee who works more than forty hours in a
workweek. 29 U.S.C. § 207(a)(1). The entitlement to overtime
2                                                         No. 19-1703

pay, however, is not absolute: as relevant here, the statute ex-
empts employees who are subject to the Secretary of Trans-
portation’s jurisdiction under the Motor Carrier Act (MCA).
29 U.S.C. § 213(b)(1). This carveout is known as the “MCA ex-
emption,” and its rationale is safety. It is dangerous for driv-
ers to spend too many hours behind the wheel, and “a re-
quirement of pay that is higher for overtime service than for
regular service tends to … encourage employees to seek”
overtime work. Levinson v. Spector Motor Serv., 330 U.S. 649,
657 (1947). 1
    The viability of these claims therefore depends on whether
the plaintiffs are subject to the jurisdiction of the Secretary of
Transportation, which extends “over transportation by motor
carrier and the procurement of that transportation, to the ex-
tent that passengers, property, or both[] are transported by
motor carrier … between a place in … a State and a place in
another State.” 49 U.S.C. § 13501(1)(A). Importantly, drivers
need not actually drive in interstate commerce to fall within
the Secretary’s jurisdiction. As the Department of Transporta-
tion has explained through a notice of interpretation, the
MCA exemption applies even to drivers who have not driven
in interstate commerce so long as they are employed by a car-
rier that “has engaged in interstate commerce and that the
driver could reasonably have been expected to make one of
the carrier’s interstate runs.” Application of the Federal Motor
Carrier Safety Regulations, 46 Fed. Reg. 37,902, 37,903 (July
23, 1981).

    1  The plaintiffs also asserted claims under Wisconsin law, which
tracks both the federal overtime pay requirement and the MCA exemp-
tion. See WIS. ADMIN. CODE DWD § 274.04(4). We will focus on the federal
law claims because the same analysis applies to both.
No. 19-1703                                                     3

    The scope of an interstate commerce run under the MCA
is generous. It includes a purely intrastate run so long as it is
a part of a continuous interstate journey. See Collins v. Heritage
Wine Cellars, Ltd., 589 F.3d 895, 898 (7th Cir. 2009). This conti-
nuity is not broken by routine interruptions that “are no more
than the normal stops or stages that are common in interstate
sales.” Id. As the Court explained in Walling v. Jacksonville Pa-
per Co., “if the halt in the movement of the goods is a conven-
ient intermediate step in the process of getting them to their
final destinations, they remain ‘in commerce’ until they reach
those points.” 317 U.S. 564, 568 (1943).
   With the statutory scheme in mind, we turn to the facts.
CTS is a Wisconsin-based motor carrier company that pro-
vides truckload transportation services for client companies
primarily in Wisconsin, Minnesota, Iowa, Illinois, and Michi-
gan. It employs drivers that provide both over-the-road ser-
vices—transportation of clients’ goods over long distances
(up to 500 miles) within and across state lines—as well as yard
management and spotting services—transportation of loaded
and empty trailers over short distances among and within cli-
ents’ facilities.
    CTS contends that the scope of the plaintiffs’ employment
included over-the-road driving—which matters because
merely being subject to over-the-road assignments would be
enough to render the plaintiffs subject to the MCA exemption.
According to CTS, all of its drivers are hired for the same po-
sition, and although some are assigned to spotting duties, all
drivers can be called on to perform any driving assignment.
That is why, CTS explains, it requires all drivers to hold com-
mercial driver’s licenses and to comply with the same Federal
Motor Carrier Safety Regulation requirements. The plaintiffs,
4                                                  No. 19-1703

on the other hand, insist that they asked to be assigned only
to spotting duties and that CTS, respecting that request, did
not reprimand them for turning down over-the-road assign-
ments. Thus, they say, longer hauls were not actually within
the scope of their employment.
   If CTS is right, the case ends there. But the factual dispute
about whether the plaintiffs were reasonably expected to
drive across state lines makes that question one for a jury. So
we will focus instead on the connection between the plaintiffs’
spotting duties and the interstate shipment of the goods they
carried. If the undisputed facts establish that the plaintiffs
could be reasonably expected to drive intrastate routes that
were part of a continuous interstate journey, then the MCA
exemption applies.
    During the relevant period, all of the plaintiffs performed
spotting duties for Green Bay Packaging, one of CTS’s clients.
The plaintiffs were assigned to two of Green Bay Packaging’s
Wisconsin-based corrugated box manufacturing facilities:
Green Bay Shipping Container and De Pere Shipping Con-
tainer. As spotters, the plaintiffs drove loaded and empty
trailers either within these facilities (to loading docks) or to
nearby locations, where they drove short routes on public
roads. The public route at the De Pere location connected the
De Pere Container to the De Pere Folding Carton, and the
public routes at the Green Bay location connected the Green
Bay Container to three warehouses (Warehouse 3, Warehouse
6, and Quincy Warehouse) and a drop lot across the street
from the Green Bay Container. The plaintiffs were assigned to
these routes indiscriminately—in other words, they could be
expected to drive any of the routes.
No. 19-1703                                                    5

    After the spotters dropped off their trailers at these drop-
off locations, the trailers were picked up by different drivers
for delivery either within or outside Wisconsin. To show that
the trailers driven by the plaintiffs were among those used to
make out-of-state deliveries, CTS introduced Green Bay Pack-
aging’s bills of lading. These bills—which track the trailers’
identification numbers, pick-up locations at Green Bay Pack-
aging facilities, out-of-state delivery locations, and delivery
dates—show that some of the trailers dropped off by the
plaintiffs were used shortly thereafter (usually within a few
days) to deliver goods across state lines. The record reflects
that approximately 20% of the goods that passed through
Green Bay were either coming from or destined for a different
state. At De Pere, the same was true for between 24% and 54%
of the goods. And the handwritten notes on the bills of lading
show that at least some of these interstate goods passed
through the relevant warehouses.
    These facts plainly demonstrate that at least some spotters
drove trailers carrying finalized goods destined for out-of-
state delivery. Such a service, even if purely intrastate and in-
terrupted briefly, would nevertheless constitute “driving in
interstate commerce” because it would be part of the goods’
continuous interstate journey. See Collins, 589 at 898; see also
Walling, 317 U.S. at 568 (defining shipment in interstate com-
merce as the “practical continuity of movement of the
goods”). And while some of the plaintiffs’ runs may have
been purely local, the sheer volume of the interstate com-
merce through these facilities, combined with the fact that the
plaintiffs were assigned to their spotting duties indiscrimi-
nately, demonstrates that the plaintiffs had a reasonable
chance of being called upon to make some drives that were
part of a continuous interstate journey. See Morris v. McComb,
6                                                  No. 19-1703

332 U.S. 422, 423 (1947) (holding that the exemption applies to
drivers of a carrier that only devoted approximately 4% of its
total services to interstate commerce and distributed its inter-
state assignments indiscriminately).
    The plaintiffs make several weak attempts to undermine
this conclusion. First, they argue that as spotters, they were
not likely to be given over-the-road assignments. Thus, they
claim, there was only a “remote” chance that they’d be sent
on interstate runs. See Johnson v. Hix Wrecker Serv., Inc., 651
F.3d 658, 663 (7th Cir. 2011). This argument is wholly unper-
suasive. As we have already explained, the plaintiffs can fall
within the MCA exemption even if they were not expected to
take over-the-road assignments. The question is whether the
plaintiffs’ spotting duties were part of the interstate journey
of the goods. If they were, the MCA exemption applies. When
both over-the-road drivers and spotters take part in the inter-
state journey of the goods, both services affect “safety of op-
eration of an interstate motor carrier.” Levinson, 330 U.S. at
668.
    The plaintiffs also argue that any link between their spot-
ting services and the interstate shipment is too attenuated to
form a continuous interstate journey. They emphasize that the
interstate shipment process entailed several steps between the
initial spotting and the eventual delivery of the goods across
state lines. These steps included rotation among the drivers,
stops at different locations such as warehouses, and potential
unloading and reloading. But the existence of intermediary
steps does not sever the connection between the plaintiffs’
driving and the ultimate interstate movement of the goods.
None amounted to anything other than “interruptions in the
journey that … are no more than the normal stops or stages
No. 19-1703                                                                   7

that are common in interstate sales.” Collins, 589 F.3d at 898.2
The plaintiffs seem to imagine that a continuous journey must
resemble a relay race, in which the next driver immediately
picks up exactly where the other left off. But that is neither
how interstate shipments work nor what the MCA requires.
    Because the evidence establishes that plaintiffs were sub-
ject to performing spotting duties that comprised one leg of a
continuous interstate journey, the district court’s grant of
summary judgment is AFFIRMED.




    2 Plaintiffs also try to sever this link by noting that sometimes the trail-

ers driven by Robinson contained cardboard that needed to be processed
into finished boxes prior to being shipped to customers. They argue that
this process of transforming the cardboard into the finalized products in-
terrupted the continuous interstate journey. See Goldberg v. Faber Indus.,
Inc., 291 F.2d 232, 234 (7th Cir. 1961). As CTS correctly points out, the
plaintiffs did not raise this argument before the district court. Thus, this
argument is forfeited.
