                                 PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                 No. 14-3679
                _____________

               JOSEPH RESCH,
ON BEHALF OF HIMSELF AND OTHERS SIMILARLY
                 SITUATED,
                                 Appellant
                     v.

           KRAPF’S COACHES, INC.
              ______________

 APPEAL FROM THE UNITED STATES DISTRICT
                COURT FOR THE
   EASTERN DISTRICT OF PENNSYLVANIA
            (D.C. No. 2:11-cv-06893)
      District Judge: Hon. William H. Yohn
                 ______________

             Argued: April 15, 2015
               ______________

Before: AMBRO, VANASKIE, and SHWARTZ, Circuit
                  Judges.

             (Filed: May 12, 2015)
                ______________
                         OPINION
                      ______________

R. Andrew Santillo, Esq. [ARGUED]
Peter D. Winebrake, Esq.
Winebrake & Santillo
715 Twinning Road
Suite 211, Twinning Office Center
Dresher, PA 19025

      Counsel for Appellant

Randall C. Schauer, Esq. [ARGUED]
Jennifer J. Hanlin, Esq.
Fox Rothschild
747 Constitution Drive
Suite 100
Exton, PA 19341

      Counsel for Appellee

SHWARTZ, Circuit Judge.

        Joseph Resch, a driver for Krapf’s Coaches, Inc.
(“KCI”), filed this collective action on behalf of himself and
thirty-three other KCI drivers (collectively, “Plaintiffs”)
seeking unpaid overtime under the Fair Labor Standards Act
of 1938 (“FLSA”) and the Pennsylvania Minimum Wage Act
of 1968 (“PMWA”). Because Plaintiffs fall within the
“Motor Carrier Act exemption” to these statutes’ overtime
provisions, the District Court correctly granted summary
judgment to KCI and we will therefore affirm.




                              2
                              I

       KCI is a motor coach company based in West Chester,
Pennsylvania, and has a Transit Division that provides bus
and shuttle services on set routes. Since 2009, KCI has
operated thirty-two such routes, four of which cross state
lines. From 2009 through 2012, the share of total Transit
Division revenue generated by interstate routes fluctuated
between 1.0% and 9.7%.

       KCI employs between thirty-six and sixty-two drivers
in a given month and trains its drivers on multiple interstate
and intrastate routes. Plaintiffs concede that KCI retains the
discretion to assign a driver to any route on which he has
been trained, including interstate routes, and to discipline a
driver who refuses to drive a route as assigned.

       Because KCI is a “common carrier by motor vehicle”
authorized to engage in interstate commerce, it is subject to
Federal Motor Carrier Safety Administration (“FMCSA”)
regulations.1 JA 330a. Accordingly, KCI possesses a U.S.
Department of Transportation (“DOT”) registration number,
requires that each driver possess a Commercial Driver
License (“CDL”), maintains a “Driver Qualification File” for
each driver that includes FMCSA-required documentation,
and must submit to DOT audits to ensure its compliance with
FMCSA regulations. KCI also provides each driver with a
“Federal Motor Carrier Safety Regulations Pocketbook”

      1
       The FMCSA is an administration within the U.S.
Department of Transportation responsible for regulating
commercial motor carriers. See 49 U.S.C. § 113.




                              3
detailing the driver’s responsibilities under DOT regulations,
JA 81a, as well as a separate KCI Handbook making clear
that they “are expected to meet” FMCSA regulations. JA
77a.

        Plaintiffs were Transit Division drivers who, at some
point during the relevant time period, worked more than forty
hours in a week without receiving overtime pay. Of the
13,956 total “trips” Plaintiffs drove, 178 (or 1.3%) required
them to cross state lines. Sixteen plaintiffs never crossed
state lines, eight crossed state lines only one time, and five
crossed state lines fewer than five times.2

       Resch brought this collective action under the FLSA
and PMWA to recover unpaid overtime. The District Court
granted his request to conditionally certify a class of
“individuals who were employed by defendant as Transit
Route drivers who worked over 40 hours during any
workweek within the past three years,” JA 49a, and thereafter
granted KCI’s summary judgment motion, holding that
Plaintiffs are ineligible for overtime under the Motor Carrier
Act exemption to the FLSA and PMWA. 29 U.S.C.
§ 213(b)(1); 43 Pa. Cons. Stat. Ann. § 333.105(b)(7).
Plaintiffs appeal.

                             II3

      2
          The remaining five plaintiffs drove interstate 58
(3.1%), 43 (16.5%), 25 (4.4%), 16 (37.2%), and 11 (6.4%)
times, respectively. JA 136a.
       3
         The District Court had jurisdiction under 29 U.S.C. §
216(b) and 28 U.S.C. § 1331. We exercise jurisdiction under
28 U.S.C. § 1291. Our review of the grant of summary




                              4
                              A

       This appeal requires consideration of two statutes: the
FLSA and the Motor Carrier Act of 1935 (the “MCA”).4 The
FLSA “requires employers to pay overtime compensation to
employees who work more than forty hours per week, unless
one or another of certain exemptions applies.” Packard v.
Pittsburgh Transp. Co., 418 F.3d 246, 250 (3d Cir. 2005); 29
U.S.C. § 207(a)(1). Congress enacted the FLSA “to protect
all covered workers from substandard wages and oppressive
working hours” and to ensure that covered employees “would
receive a fair day’s pay for a fair day’s work.” Parker v.
NutriSystem, Inc., 620 F.3d 274, 279 (3d Cir. 2010) (internal
quotation marks and alterations omitted).

       Congress enacted the MCA in response to a “wide
scope of [] problems” in the motor carrier industry and “to
adjust a new and growing transportation service to the needs
of the public.” United States v. Am. Trucking Ass’ns, 310


judgment is plenary. Mylan Inc. v. SmithKline Beecham
Corp., 723 F.3d 413, 418 (3d Cir. 2013). Summary judgment
is appropriate where “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). A disputed issue is
“genuine” only “if there is a sufficient evidentiary basis on
which a reasonable jury could find for the non-moving party.”
Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).
We view the facts and draw all reasonable inferences in the
non-movant’s favor. Hugh v. Butler Cnty. Family YMCA,
418 F.3d 265, 266–67 (3d Cir. 2005).
       4
          The parties agree that identical principles govern
Plaintiffs’ PMWA claim.




                              5
U.S. 534, 538 & 542 (1940). The MCA “vest[s] in the [DOT]
power to establish reasonable requirements with respect to
qualifications and maximum hours of service of employees
and safety of operation and equipment of common and
contract carriers by motor vehicle.”5 Levinson v. Spector
Motor Serv., 330 U.S. 649, 658 (1947). The MCA’s
requirements in this area are “intended to prevent accidents
due to fatigue, without regard to consideration of adequacy of
compensation.” Starrett v. Bruce, 391 F.2d 320, 323 (10th
Cir. 1968).

        At issue is the MCA exemption that removes from the
FLSA’s overtime protections “any employee with respect to
whom the Secretary of Transportation has [the] power to
establish qualifications and maximum hours of service
pursuant to the provisions of section 31502 of Title 49” of the
MCA. 29 U.S.C. § 213(b)(1). Section 31502(a)(1) applies to
transportation “described in” § 13501, which in turn gives the
DOT jurisdiction “over transportation by motor carrier . . . to
the extent 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. Through the MCA
exemption, Congress has “prohibited the overlapping of . . .
jurisdiction” between the U.S. Department of Labor and the
DOT regarding “maximum hours of service.” Levinson, 330
U.S. at 661; see also Southland Gasoline Co. v. Bayley, 319
U.S. 44, 48 (1943) (because it enacted the MCA before the
FLSA, Congress apparently relied on the MCA to “work out

       5
         In 1966, the DOT assumed the Interstate Commerce
Commission’s [ICC] authority to regulate motor vehicle
carriers. Moore v. Universal Coordinators, Inc., 423 F.2d 96,
97 n.1 (3d Cir. 1970).




                                6
satisfactory adjustments for employees charged with the
safety of operations” in the transportation industry);
McMaster v. E. Armored Servs., Inc., 780 F.3d 167, 171 (3d
Cir. 2015) (recognizing that the MCA “establish[es] a strict
separation between the Secretary of Transportation’s
jurisdiction and the ambit of the [FLSA’s] overtime
guarantee”).

        Two considerations dictate whether the MCA
exemption applies: the class of the employer and the class of
work the employees perform. See 29 C.F.R. § 782.2(a).
Specifically, the MCA exemption applies if the employer is a
carrier subject to the DOT’s jurisdiction and the employee is
a member of a class of employees that “engage[s] 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
within the meaning of the [MCA].” Id. In determining
whether the exemption applies, we are mindful of the FLSA’s
broad remedial purposes, and “that exemptions from the
FLSA are construed narrowly[] against the employer,” with
the employer bearing the burden to prove “plainly and
unmistakably” that its employees are exempt. Packard, 418
F.3d at 250.6

                              B

      The parties agree that KCI is a “motor carrier” subject

      6
        Whether employees’ “particular activities excluded
them from the overtime benefits of the FLSA is a question of
law.” Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709,
714 (1986).




                              7
to the DOT’s jurisdiction, thus satisfying the first
requirement.       We must therefore examine whether
Plaintiffs—many of whom rarely or never crossed state
lines—satisfy the second requirement by being a member of a
class of employees engaging “in activities of a character
directly affecting the safety of operation of motor vehicles in
the transportation . . . of passengers or property” in interstate
commerce. 29 C.F.R. § 782.2(a). The District Court
answered yes to this question based primarily on Morris v.
McComb, 332 U.S. 422 (1947).

        In Morris, the Supreme Court addressed whether a
group of truck drivers and mechanics employed by a Detroit-
based common carrier fell within the MCA exemption. Only
3.65% of the truck drivers’ trips were interstate, and the
employer assigned such trips to the truck drivers “generally
throughout the year” and “in the normal operation of [its]
business.” Morris, 332 U.S. at 433. All of the truck drivers
“shared indiscriminately” in the interstate trips, which were
“mingled with the performance of other like driving services
[they] rendered.” Id. Of the employer’s forty-three truck
drivers: “every driver[] except two[] made at least one”
interstate trip; the average truck driver made sixteen interstate
trips; and the only two truck drivers who did not drive
interstate had been employed “for only about one-half the
year and that was during the months when the trips in
interstate commerce were . . . less frequent.” Id.

       The Supreme Court held that the DOT’s predecessor,
the ICC, had jurisdiction to regulate all forty-three drivers—
even those who never drove interstate—and that none of the
drivers were entitled to overtime under the FLSA. See id. at
434–36. “From the point of view of safety in interstate




                               8
commerce,” the Supreme Court reasoned, the case would be
the same “if each [of the employer’s] driver[s] drove 4% of
his driving time each day in interstate commerce,” as there
would be “the same essential need for the [ICC’s]
establishment of reasonable requirements with respect to
qualifications and maximum hours of service of employees.”
Id. at 434; see also Starrett, 391 F.2d at 323 (observing that
“it is not the amount of time an employee spends in work
affecting [interstate] safety, rather it is what he may do in the
time thus spent, whether it be large or small, that determines
the effect on safety”).

       Applicable regulations echo the Morris Court’s focus
on the “class of work” performed by the employees
occupying the same position, 29 C.F.R. § 782.2(a), and the
likelihood of the employer distributing those duties among
the employees in question:

       As a general rule, if the bona fide duties of the
       job performed by the employee are in fact such
       that he is (or . . . is likely to be) called upon in
       the ordinary course of his work to perform,
       either regularly or from time to time, safety-
       affecting activities of [a driver, driver’s helper,
       loader, or mechanic], he comes within the
       exemption in all workweeks when he is
       employed at such job. This general rule
       assumes that the activities involved in the
       continuing duties of the job in all such
       workweeks will include activities which have
       been determined to affect directly the safety of
       operation of motor vehicles on the public
       highways in transportation in interstate




                                9
       commerce. Where this is the case, the rule
       applies regardless of the proportion of the
       employee’s time or of his activities which is
       actually devoted to such safety-affecting work
       in the particular workweek, and the exemption
       will be applicable even in a workweek when the
       employee happens to perform no work directly
       affecting “safety of operation.”

29 C.F.R. § 782.2(b)(3); see also Application of the Federal
Motor Carrier Safety Regulations, 46 Fed. Reg. 37,902–02,
37,903 (July 23, 1981) (“DOT Notice”) (“a driver will remain
under the [DOT’s] jurisdiction . . . for as long as the driver is
in a position to be called upon to drive in interstate commerce
as part of the driver’s regular duties.”). The DOT has
jurisdiction “even if the driver has not personally driven in
interstate commerce if, because of company policy and
activity, the driver could reasonably be expected to do
interstate driving.” DOT Notice, 46 Fed. Reg. at 37,903
(citing Morris, 332 U.S. 422). Moreover, whether an
employee “engage[s] in activities of a character directly
affecting the safety of operation of motor vehicles” in
interstate commerce, 29 C.F.R. § 782.2(a), depends “neither
[on] the name given to his position nor that given to the work
that he does,” id. § 782.2(b)(2) (citing Pyramid Motor Freight
Corp. v. Ispass, 330 U.S. 695, 707 (1947)). Put simply, it is
“the character of the activities rather than the proportion of
either the employee’s time or of his activities” that controls.
Levinson, 330 U.S. at 674.7

       7
         Because the inquiry focuses on what the class of
employees could have reasonably been expected to do, the
District Court properly declined Plaintiffs’ request to perform




                               10
       “On the other hand, where the continuing duties of the
employee’s job have no substantial direct effect on such
safety of operation or where such safety-affecting activities
are so trivial, casual, and insignificant as to be de minimis,
the exemption will not apply to [the employee] in any
workweek so long as there is no change in his duties.” 29
C.F.R. § 782.2(b)(3) (citing Pyramid, 330 U.S. at 707–08).
The DOT thus “has authority over drivers only where the
employees regularly travel interstate or reasonably are
expected to do interstate driving.” DOT Notice, 46 Fed. Reg.
at 37,903.

       Therefore, the relevant inquiry here is whether
Plaintiffs reasonably could have expected to drive interstate,
which we answer by “look[ing] at,” among other things,
“whether the carrier (employer) does any interstate work,”
“assigns drivers randomly to that driving,” and maintains a
“company policy and activity” of interstate driving. Id.
(citing Morris, 332 U.S. 422). The undisputed evidence
establishes that, during the relevant time period, 6.9% of all
trips drivers took were interstate, as much as 9.7% of the
Transit division’s annual revenues derived from interstate
routes, and KCI always operated at least one interstate route
per month. With regard to distribution of interstate routes,
KCI had a “company policy” of training its drivers on as
many routes as possible, retaining discretion to assign drivers
to drive either interstate or intrastate routes—at any time—on
which they had been trained, and disciplining any driver who
refused. See 46 Fed. Reg. at 37,903. Given this evidence, the


an “individualized analysis” of the “actual employment
circumstances” of each Plaintiff.




                              11
District Court properly found no genuine dispute of material
fact regarding whether Plaintiffs reasonably could have
expected to drive interstate. Friedrich v. U.S. Computer
Servs., 974 F.2d 409, 417 (3d Cir. 1992).

       Further, unrefuted evidence reflects KCI’s adherence
to federal regulations regarding the drivers. For instance,
KCI requires that each driver possess a valid CDL, comply
with FMCSA drug testing requirements, submit to regular
DOT physical examinations, and provide a pre-employment
“Safety Performance History Record.” App. 77a. KCI also
maintains DOT-required “Driver Qualification Files” for all
drivers, App. 77a, which the FMCSA audits for compliance
on a recurring basis. KCI also issues all drivers a “KCI
Handbook” advising them of KCI’s expectation that they
meet these requirements, App. 77a, as well as a separate
“Pocketbook” detailing the FMCSA regulations. Since 2012,
KCI has also required all drivers to complete a “Self
Certification Form” wherein they check a box describing
themselves as “NI-Non-Excepted Interstate Transportation:
Interstate Drivers Who are Subject to the Federal Physical
Qualifications and Examination Regulations.” App. 80a.
This recognition on the part of the drivers, together with
evidence of KCI’s efforts to comply with DOT regulations—
which in large part consist of safety measures imposed on,
and communicated directly to, the drivers— reinforce the
drivers’ reasonable expectation of driving in interstate
commerce. See, e.g., Songer v. Dillon Res., Inc., 618 F.3d
467, 469–70 (5th Cir. 2010) (holding that truck drivers fell
within MCA exemption where employer required them each
to hold “a valid Class A commercial driver[’s] license and
meet the driver qualification requirements of” the FMCSA,
and issued them the Pocketbook containing “a compilation of




                            12
relevant regulatory information”). Because KCI is an
employer under the jurisdiction of the DOT and Plaintiffs are
members of a class of employees who could reasonably be
expected to drive interstate routes as part of their duties, the
MCA exemption to the FLSA applies and Plaintiffs are
ineligible for FLSA overtime wages.

                               C

        Lastly, we reject Plaintiffs’ attempted reliance on the
de minimis exception. See 29 C.F.R. § 782.2(b)(3) (noting
that the MCA exemption does not apply where the “safety-
affecting activities” of the employee’s “continuing duties”
“are so trivial, casual, and insignificant as to be de minimis”
(citing Pyramid, 330 U.S. at 707–08)). Although the
Supreme Court “has recognized a de minimis exception to the
application of the MCA,” we have noted that “[a] number of
courts have held that drivers should seldom, if ever, fall
within [it].” Friedrich, 974 F.2d at 416, 417 n.10 (citing
cases); see also Crooker v. Sexton Motors, Inc., 469 F.2d 206,
210 (1st Cir. 1972) (“The activities of one who drives in
interstate commerce, however frequently or infrequently, are
not trivial.”). Indeed, the DOT has recognized courts’
resistance to applying this exception to drivers. DOT Notice,
46 Fed. Reg. at 37,903 (“The courts that have applied this
principle find that it should seldom, if ever, be applied to
drivers because of the direct effect of driving on the safety of
motor vehicle operations.”). “This is because 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.




                              13
        The only binding authority regarding the de minimis
exception to which Plaintiffs direct us concerns employees
engaged in “the mere handling of freight at a terminal[]
before or after loading” such that none of their activities
affected “the safety of operation of motor vehicles” in
interstate commerce so as to “come within the kind of
‘loading’” contemplated under the MCA. Pyramid, 330 U.S.
at 708; see also, e.g., Reich v. Am. Driver Serv., Inc., 33 F.3d
1153, 1157 (9th Cir. 1994) (reversing and remanding where
there was no evidence at all that company engaged in
interstate commerce during relevant time frame and expressly
distinguishing “claims of jurisdiction over a motor carrier’s
drivers who have not driven in interstate commerce when
there is evidence that other drivers employed by the motor
carrier have driven in interstate commerce”). Other cases
“suggest that a company’s interstate business is de minimis if
it constitutes less than one percent of the overall trips taken
by the company,” Walters v. Am. Coach Lines of Miami,
Inc., 575 F.3d 1221, 1228 (11th Cir. 2009), circumstances not
present here, see also id. (finding “no cases” applying the de
minimis exception to an employer that “has the appropriate
federal licensing and [where] there is undisputed proof of
some transportation that crosses state lines”). Given the
undisputed facts concerning KCI’s interstate operations,
which accounted for 1% to 9.7% of its Transit Division’s
revenue, and Plaintiffs’ occupation, we decline to apply the
de minimis exception.

                              III

       Thus, we will affirm the orders of the District Court.




                              14
