Smith v. Aztec Well Servicing Co.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
September 12, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

W ILLIAM E. SM ITH, III; DEN NIS L.
A LCON ; ER IC ALC ON ; PA U L
A LCON ; SIG FR ED O A LC ON ; TONY
A LCON ; D A RR ELL FR ED ER ICK;
C HESTER TILEY ; C AR LO S
M O N TA NO ,

Plaintiffs-Appellants/Cross-
Appellees,
v. No. 04-2153 & 04-2168
A ZTEC WELL SER VIC IN G
C OM PA N Y ,

Defendant-Appellee/Cross-
Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D.C. NO . CV -00-957-LH /RL P)

E. Justin Pennington, Law Offices of E. Justin Pennington, Albuquerque, New
M exico (Lisa K. Vigil, Vigil Law Firm, Albuquerque, New M exico, and Shannon
L. Donahue, Shannon L. Donahue, P.C., with him on the briefs), for Plaintiffs-
Appellants/Cross-Appellees.

Robin A. Goble (Alice Tomlinson Lorenz with her on the briefs), of M iller
Stratvert P.A., Albuquerque, New M exico, for Defendant-Appellee/Cross-
Appellant.

Before L UC ER O, Circuit Judge, BROR BY, Senior Circuit Judge, and
M cCO NNELL, Circuit Judge.
M cCO NNELL, Circuit Judge.

Aztec W ell Servicing Company (“Aztec”) is a natural gas and oil well

drilling company located in Aztec, New M exico. The plaintiffs are present or

former Aztec employees who worked on drilling rigs in the San Juan basin. They

brought suit under the Fair Labor Standards A ct (“FLSA”), claiming that their

employer should be required to pay them for the time they spend traveling from

Aztec to the drill sites – some of them in remote locations hours away. The

plaintiffs later sought to add FLSA claims related to work performed at their job

site, but the district court held that they were limited to their original travel-time

claims. A jury found in favor of the plaintiffs on the travel-time claims, but the

district court granted A ztec’s motion for judgment as a matter of law . The court

ruled that the plaintiffs’ claims are barred by the Portal-to-Portal Act, which

states that the FLSA does not require employers to compensate an employee for

time spent “walking, riding, or traveling to and from the actual place of

performance of the principal activity or activities w hich such employee is

employed to perform.” 29 U.S.C. § 254(a)(1). In this appeal, we address whether

the district court acted within its discretion by limiting the plaintiffs to their

travel-time claims and whether the district court correctly found that, as a matter

of law, the Portal-to-Portal Act removed any obligation Aztec might otherwise

have under the FLSA to compensate the plaintiffs for their travel time.

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 W e A FFIR M .

I. FACTS

A. Pre-Trial Proceedings in the District Court

On June 5, 2000, W illiam E. Smith, III, a former Aztec rig worker, filed a

complaint in New M exico state court against Aztec, arguing that its policy of

refusing to pay wages to drill rig crews for their travel time was a violation of the

FLSA. Aztec removed the action to federal court and filed a motion to dismiss.

Aztec argued that the plaintiff’s claim for compensation under the FLSA for time

spent traveling to and from his w ork site was barred by the Portal-to-Portal Act,

29 U.S.C. § 254(a). The district court denied A ztec’s motion to dismiss.

After the district court denied Aztec’s motion to dismiss, a number of other

current and former Aztec rig workers consented to have M r. Smith’s attorney

represent them in a joint action against Aztec for all unpaid wages owed under the

FLSA. On October 23, 2001, the district court granted M r. Smith’s m otion to

certify his lawsuit as a class action.

The plaintiffs filed an amended complaint on January 18, 2002, asserting

that Aztec owes “unpaid wages and overtime compensation due to [its] employees

under the Fair Labor Standards Act.” R. Vol. I at 31. To support their travel time

claim, the plaintiffs made the following allegations: (1) “Aztec W ell requires its

twenty-four hour rig hands to meet at a designated location within the tri-city area

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of Farmington - Aztec - Bloomfield prior to the commencement of each work

shift”; (2) “The rig hands are further required to travel from this designated

location to remote well sites . . . in a vehicle under the supervision and control of

agents or employees of Aztec”; and (3) “During this travel to and from the well

site, rig hands perform work . . . for which they are not compensated, nor is such

travel time counted by Aztec Well towards hours worked by the rig hands, for

purposes of calculating overtime pay.” Id. at 34.

On February 15, 2002, the district court approved the plaintiffs’ notice of

pendency of class action, and the parties distributed the notice to other potential

members of the class. The notice stated that “the Plaintiffs claim Aztec Well has

failed to lawfully compensate its employees for all hours worked, including

overtime, where . . . rig hands are not paid for travel time to and from well sites.”

Id. at 39. Subsequently, a number of Aztec employees opted into the law suit with

respect to the travel-time claim.

In their answers to Aztec’s interrogatories, the plaintiffs raised factual

allegations that could support additional FLSA claims against Aztec based on pre-

and post-shift work allegedly performed at the w ell sites. The interrogatory

answers— which were not submitted to Aztec until October 11, 2002, several

weeks after the close of discovery— contain the follow ing allegations:

[O ]n arrival at the w ell site, usually about 30 minutes before

commencement of paid time, these plaintiffs w ould change into

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 specialized protective gear required by the employer . . . . The crew

would then meet sometimes with the tool pusher to discuss safety-

related concerns. . . . Each crew member would then meet with his

counterpart on the preceding crew . . ., and each would be briefed on

the special concerns or considerations relevant to the performance of

duties on that shift. At that time the crew members would then

commence their paid period.

Id. at 170–71. Despite raising these allegations in their interrogatory answers, the

plaintiffs made no attempt to include them in their pleadings by formally

amending their complaint.

On November 4, 2002, Aztec filed a motion to dismiss several of the

plaintiffs from the action because they had filed their notice of consent to

representation after the statute of limitations on their FLSA claims had run.

Actions for unpaid wages under the FLSA are “forever barred unless commenced

within two years after the cause of action accrued, except that a cause of action

arising out of a willful violation may be commenced within three years after the

cause of action accrued.” 29 U.S.C. § 255(a). The district court found that there

was still a material question of fact as to the w illfulness issue, and therefore

dismissed only those plaintiffs who filed their consent to representation more than

three years after leaving Aztec’s employment.

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 At a subsequent hearing, on April 2, 2003, the district court granted A ztec’s

motion for partial summary judgment dismissing all travel-time claims that arose

after January 27, 2000— the date w hen Aztec distributed a travel policy to its

employees. Aztec’s travel policy states “that it does not control or direct the

travel or transportation of any 24-hour rig employee to or from the rig location,”

that no crew member “is required to travel to or from the 24-hour rig location

with the [supervisor of the crew],” and that “24 hour crew members . . . may not

be asked or required to perform any service or duty for the company or any

company supervisor while traveling to or from the 24 hour location.” R. Vol. I at

70 (emphasis omitted). The district court held that no reasonable jury could find

for the plaintiffs on travel-time claims arising after this travel policy was

announced, and ordered the plaintiffs to submit a revised list of the remaining

class members in light of its ruling.

W hen the plaintiffs submitted their “revised” list of class members, they

took the position that no one should be dismissed from the class pursuant to the

district court’s summary judgment order. The plaintiffs contended that the

district court’s order related only to their requests for travel-time compensation

based on the nature of the traveling, not their travel-time claims based on “w ork

activities performed by Plaintiffs during the travel period.” R. Vol. I at 106, 107.

The plaintiffs argued that because all of the class members w ere asserting both

types of travel-time claims, they all remain parties to the action. Aztec contended

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that the district court’s previous order applied to both sets of travel-time claims,

and therefore that any plaintiff who did not work for Aztec before January 27,

2000 should be dismissed from the action. Both parties appeared to agree that

“[t]he only claim remaining in this litigation is the FLSA travel time claim.” R.

Vol. I at 95; see also R. Vol. I at 107–08 & n.1.

The district court agreed with Aztec’s interpretation of its previous order,

and dismissed thirty-four plaintiffs from the action who did not work for Aztec

before January 27, 2000. Fifty-two plaintiffs remained in the action after the

district court’s order.

On December 10, 2003, the parties filed their pretrial order. Both parties

stipulated to a number of facts in pretrial order, including the following: (1)

“Aztec W ell employed the Plaintiffs w orking on a ‘24 hour rig’”; (2) “the well

sites on which Aztec Well performs its work vary in distance from the Aztec,

New M exico yard where Aztec Well’s offices are located”; (3) “Aztec Well’s 24-

hour crew members are not paid for the time that they travel to and from well

sites”; (4) there “is no contract . . . that required Aztec W ell to compensate

[plaintiffs] for time spent traveling”; (5) “it is the standard practice of other

oilfield companies in the San Juan basin not to compensate 24-hour crew

members for the time that they travel to and from a well site”; and (6) “[t]hree or

four-person crews generally, but not alw ays, drive together to well sites.” R. Vol.

I at 122.

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 The plaintiffs alleged in the pretrial order that they “regularly worked hours

for which they were not compensated by Defendant, including required and

necessary meetings, drive time, travel and other preliminary and postliminary

activities which are an integral part of the Plaintiffs’ principal activities.” Id. at

120. In the section of the pretrial order containing the plaintiffs’ factual

contentions, the plaintiffs reasserted their claim from the October 2002

interrogatory answers that they performed work at the well sites before and after

their shift. Aztec asserted that the plaintiffs’ claim for relief “is barred in its

entirety by the Portal-to-Portal Act, 29 U.S.C. § 254(a).” Id. at 121.

At the pretrial conference, ten days after the parties submitted their pretrial

order, the district court heard arguments on whether the plaintiffs should be

allowed to assert an FLSA claim against Aztec based on time allegedly spent

changing into specialized clothing and attending pre-shift safety briefings. Aztec

argued that these were “brand new claims” that have “not been in a complaint, an

amended complaint, in a pretrial order, . . . [or] in any of the documents filed with

the Court,” and should be denied as untimely. Id. at 150-51. The plaintiffs

argued that the claims were not new because they had been raised in the October

2002 interrogatory answers.

The district court agreed with Aztec, noting that the two additional claims

would unduly complicate the case and weaken the commonalities of the class, and

that the plaintiffs made no effort to amend their complaint to assert these two new

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claims despite knowing about them for more than a year. Consequently, the court

limited the plaintiffs’ lawsuit against A ztec to the travel time claims asserted in

their amended complaint.

B. The Evidence Presented at Trial

The trial began on February 18, 2004, and lasted four days. The central

issue at trial was whether the time the plaintiffs spent traveling to and from the

well sites before and after their shift constituted “work” within the meaning of the

FLSA, which meant whether their traveling was an integral and indispensable part

of the principal activities for w hich they were employed by Aztec. See 29 U.S.C.

§ 254(a). W ith respect to that question, the evidence presented by both parties

was relatively consistent.

Aztec is a natural gas and oil well servicing company, hired by oil and gas

companies to drill new wells and to service existing wells. W hen Aztec has been

contracted to drill or service a well site, it provides the drilling rig along with the

fuel, equipment, and personnel necessary for its operation. It employs a manager,

known as the “tool pusher,” to stay on site with the drilling rig while it is

operational. The tool pusher oversees the other Aztec employees working at the

well site and is responsible for transporting equipment and paperwork to and from

the w ell site. The drilling rig itself is operated by a four-person crew, know n as a

“24-hour crew,” w hich consists of a foreman, called the “driller,” and three rig

hands. Although the tool pusher has authority over the 24-hour crews working at

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the rig, drillers are in charge of the three rig hands on their crew. Drillers have

the authority to remove rig hands from their crew, but cannot fire them from their

employment with Aztec.

The 24-hour crews work in eight-hour shifts at the rig, and commute back

and forth to the well site each day. The crew members typically live in the “tri-

city area” of Farmington, Bloomfield, and Aztec, and the well sites can be

anywhere from thirty minutes to a three-and-a-half-hour drive from those towns.

Since Aztec first started its drilling operations in 1967, it has never paid

crew members for their travel time to and from the well sites. According to

Aztec’s president and owner, Jerry Sandel, “their job starts at the rig site. How

they get there is their own business.” Trial Tr. 240. At trial, one of the plaintiffs

stated, “[w]hen I was first hired, . . . . [Aztec] told me the fact that . . . the reason

the wages were so much higher [for work at the 24-hour rigs] is because you

don’t get travel and you’re limited to eight hours, seven days on, two days off.”

Id. at 577. Consistent with this policy, Aztec charges its oil and gas company

clients the same drilling fees without regard to the time spent by its 24-hour

crews commuting to and from the well sites— a practice that appears to be

uniform among the drilling companies operating in the San Juan Basin area.

W hile Aztec does not require its 24-hour crews to drive together to and

from the well sites as a matter of official policy, there are a number of reasons

why the crews usually do so. First, the roads to the well sites are often

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impassable without a four-wheel drive vehicle, and not all 24-hour crew members

have such a vehicle. Second, most of the well sites are located 50 or more miles

outside of the tri-city area, and Aztec will pay the costs of gas for only one

vehicle for each shift worked by a 24-hour crew . Third, many well sites are

located on gated private property, and crew members driving separately from their

drillers would need to pick up the appropriate permits and gate keys from the

Aztec office before driving out to the well sites. Fourth, the space available for

parking at the well sites can be limited, and there were allegedly times when the

tool pushers would prohibit the rig hands from driving to the well sites alone

because there was not enough parking space for an additional vehicle. Fifth, the

drillers were under pressure from Aztec to arrive on site with a full crew, and the

best w ay for drillers to ensure that everyone on their crew arrived on time was to

drive them all to the well site personally.

As a result of these pressures, at least one former Aztec driller and

plaintiff, Paul Alcon, used to require his crew to drive with him to and from the

well sites. Another former Aztec driller and plaintiff, Charlie Kaiser, testified

that he allowed his crew members to drive themselves to the well sites until a tool

pusher expressed concern over the amount of parking space available. M r. Alcon

and M r. Kaiser both admitted that Aztec did not know about their practice of

requiring crew members to drive with them. Two other drillers testified that they

allowed their crews to drive to the well site on their own. Regardless of the

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differing policies adopted by Aztec’s various drillers, however, the rig hands

almost always drove w ith their drillers to the w ell sites because it was more

convenient and less expensive than driving alone.

Because of their carpooling arrangement, the 24-hour crews would meet

before each shift at a time and location designated by the driller. Usually this

was at the Sundial convenience store in Aztec. The meeting time depended on

which shift the crew was w orking and how far the well site w as from the Sundial.

W hen the 24-hour crew arrived at the Sundial before their shift, they would load

their personal safety equipment, including hard hats, gloves, steel toed boots, and

a type of coverall clothing they called “greasers,” into whichever vehicle that they

were driving out to the well site. One of the rig hands would fill a cooler with

water, which the crew would use for drinking water at the well site. 1 Some crew

members would purchase food and drinks at the Sundial as well. The crew

usually drove out in their driller’s vehicle, and the driller usually did the driving,

although sometimes one of the other rig hands would volunteer to drive, and a

few of the crews rotated the driving among the four members. On rare occasion,

drillers would be asked by a tool pusher to bring some paper work or equipment

1
Jerry Lacy, Aztec’s safety supervisor and senior drilling engineer, and
Clarence Smith, an Aztec tool pusher, both testified that there was certified
potable water provided for the 24-hour crews at each well site. Paul A lcon, a
former Aztec driller and plaintiff, testified that the water provided on site was
unsanitary, and that the crew members did not drink it.

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out to the well site, but it was always as a favor to the tool pusher rather than as a

regular part of their job.

Generally speaking, the crew members were free to spend their time as they

wished during the commute to and from the well site. They could sleep, eat, read,

listen to the radio or their own music, or discuss any subject of their choosing.

The crew members occasionally had to help their driller change a flat tire, open

and close access gates along the road, help push the vehicle out of the mud w hen

it was stuck, or put chains on the vehicle’s tires. But these tasks took only a

small portion of their total travel time.

According to Aztec, the only thing it ever asked of its 24-hour crews w hile

they were traveling back and forth from the well sites was to drive safely. On at

least one occasion, a 24-hour crew got into an automobile accident on their way

to a w ell site. The accident happened because all four of the crew members,

including the driver, had fallen asleep in the vehicle. To prevent similar such

accidents from occurring, Aztec’s safety supervisor and senior drilling engineer,

Jerry Lacy, told the 24-hour crews that at least one other person in addition to the

driver should stay awake during the drive. According to M r. Kaiser, a plaintiff

and former Aztec driller, M r. Lacy told his crew “that [they] ought to talk about

little things like safety and this, that and the other to keep everybody awake.” Id.

at 593.

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 M ost of the drillers apparently ignored this advice and still allowed their

crews to sleep during the drive to and from the well sites. But one of the

plaintiffs, M r. Alcon, testified that he never let any of his crew members sleep

while he was driving because he “didn’t want to fall asleep on the wheel and . . .

have an accident.” Trial Tr. 364. Instead, he would talk about work-related

matters with his crew because “that’s what kept our eyes open.” Id. at 429–30.

He used these conversations to talk about “[s]afety and basically giving them the

knowledge of what’s going on out there [at the rig] and what to do and what not

to do, what they did wrong the day before and how to correct it.” Id. at 423.

According to M r. Alcon, he spent approximately 75% of the travel time out to the

well site engaged in these conversations, and the entire time coming back from

the rig. Consequently, M r. Alcon estimated that he spent, on average, somew here

between three to six hours each day talking about safety with his crew while

traveling.

None of the other plaintiffs claimed that they spent this much time talking

about work w hile driving to and from the w ell sites. They all agreed, however,

that crew members usually spent at least some of their travel time discussing

work-related matters. New rig hands w ould often receive advice about how to

handle themselves and the equipment out at the rig. The driller might also take

time during the drive back from the well site to chastize or provide instructions to

a crew member who did something wrong out on the rig during their previous

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shift. Also, some drillers would talk with their crew about safety or the work that

needed to be done at the rig. The plaintiffs testified that when the driller was

lecturing them about a safety-related matter, they were required to listen. One

plaintiff estimated that these discussions typically lasted about ten minutes, and a

witness for A ztec agreed with that assessment.

Two of the plaintiffs claimed at trial that they conducted a formal safety

meeting while traveling, even though Aztec requires that those meetings take

place at the well site. W hen the 24-hour crews arrive at the well site each day,

they are supposed to hold a “Job Hazard Analysis” meeting, where they “spend

anywhere from five to fifteen minutes” talking about what work needs to be done

over the next eight hours, the hazards involved in the job, and how to minimize or

eliminate those hazards. Id. at 563. M r. Alcon and M r. Kaiser both testified that

they usually held their safety meetings while driving to the well site so that they

could start working on the rig immediately after arriving. 2 Other plaintiffs

testified that their drillers sometimes held the safety meetings w hile driving out to

the rig, but that they were usually conducted at the w ell site. Several of Aztec’s

2
At trial, Aztec disputed whether it was even possible for drillers to hold a
Job Hazard Analysis meeting while traveling to the well site, since it is difficult
to predict what work will need to be done before arriving at the well site and
talking with the outgoing crew. Additionally, the driller is required to fill out
certain paperw ork during the meeting, and that paperw ork is kept at the well site.
The plaintiffs argued that they could reasonably predict the type of work that
would be required at the rig based on what was happening at the end of their
previous shift, and that they could do the paperwork after arriving.

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witnesses testified that the safety meetings w ere always conducted at the well

site, and that even if there was no time at the beginning of the shift to hold the

safety meeting, there were always slow points during the day when they could

hold the meeting.

C. Disposition of the Case in the District Court

At the close of the plaintiffs’ case, Aztec moved to dismiss the case for

failure to provide a sufficient evidentiary basis upon which a reasonable jury

could find for the plaintiffs. Aztec also asked the court to dismiss the plaintiffs’

willfulness claim. The district court held under advisement the motion to dismiss

the case, but granted the motion to dismiss the willfulness claim, ruling that “the

plaintiffs have not established that the defendant knew or show ed reckless

disregard for the fact that its conduct was prohibited by the Fair Labor Standards

Act, which is the requirement for willfulness.” Id. at 694. As a result, the

plaintiffs were all subject to the two-year statute of limitations applicable to non-

willful violations of the FLSA. 29 U.S.C. § 255(a). Of the fifty-two plaintiffs in

the class at the start of trial, only seven plaintiffs remained in the action when the

defendants began presenting their case to the jury.

After the close of evidence, on February 20, 2004, Aztec renewed its

motion to dismiss the plaintiffs’ case, which the district court denied. The case

went to the jury after closing arguments on February 23, 2004. The Special

V erdict Form provided to the jury asked a single question: “DID DEFENDAN T

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A ZTEC W ELL SER VIC IN G COM PANY VIOLATE THE FAIR LABOR

STA N D A RD S A CT B Y FA ILIN G TO COM PENSATE THE PLAINTIFFS FOR

THEIR TRAVEL TO AND FROM THEIR W ORK SITES?” R. Vol. I at 217.

The jury returned a verdict for the plaintiffs later that same day.

After the jury’s verdict in favor of the plaintiffs, the district court issued a

sua sponte order on M arch 30, 2004 ruling that the plaintiffs who were drillers for

Aztec were not “similarly situated” to the plaintiffs who were rig hands, and

therefore dismissed them from the action. Id. at 221–225. In the same order, the

court informed the parties that it would decide the issue of liquidated damages

based on the evidence presented at trial, and ordered the parties to submit briefs

on the issue no later than April 23, 2004.

Aztec submitted a brief on the liquidated damages issue on April 23, 2004,

arguing that the evidence at trial showed that any FLSA violation was a good

faith mistake by Aztec. The plaintiffs failed to submit a brief on the issue of

liquidated damages, although they had recently submitted a motion for

reconsideration of the order dismissing the willfulness claim, which involves

similar legal and factual issues. On M ay 11, 2004, the court found that liquidated

damages should not be awarded because “[t]he evidence adduced at trial” showed

that Aztec “made every attempt to comply with the law.” R. Vol. I at 279. The

court also noted that “the Plaintiffs’ failure to comply with the Court’s order to

brief this issue was persuasive as well.” Id.

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 Shortly thereafter, on M ay 24, 2004, the district court granted A ztec’s

motion for judgment as a matter of law on the plaintiffs’ travel-time claim. The

court found that there was no evidence “to establish that the travel time in and of

itself was work for which [the plaintiffs] must be compensated.” Id. at 292. The

court also found that the plaintiffs’ work-related activities while traveling were

either preliminary and postliminary to the principal activity for which they are

employed, or were de minimis, and hence were non-compensable. It concluded

that “[t]he evidence at trial was therefore insufficient to support the jury’s

verdict.” Id. at 297.

The plaintiffs filed a timely notice of appeal on June 23, 2004.

D. The Appeal

On appeal, the plaintiffs challenge the following six of the district court’s

rulings: (1) the order entering judgment as a matter of law in favor of Aztec

following the jury’s verdict; (2) the order dismissing the plaintiffs’ travel-time

claims that arose after Aztec promulgated its written travel policy on January 27,

2000; (3) the order granting Aztec’s motion to limit the case to the plaintiffs’

travel-time claims, and exclude their claims for pre- and post-shift work

performed at the well sites; (4) the sua sponte order dismissing from the action

those plaintiffs who were drillers for Aztec on the ground that they are not

“similarly situated” to the rig hands; (5) the order directing a verdict in favor of

Aztec on the issue of whether Aztec willfully violated the FLSA ; and (6) the

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order denying the plaintiffs’ liquidated damages. Aztec filed a cross appeal,

arguing that the district court erred in failing to instruct the jury that “a

corporation was bound only by actions of managerial level employees taken

within the course and scope of their employment.” Appellee’s Br. 53.

W e need address only two of the plaintiffs’ arguments: that the district

court wrongfully limited their case to the travel-time claims before trial, and that

the district court erred in granting judgment as a matter of law to Aztec after the

jury verdict.

II. DISCUSSION

A. Pre- and Post-Shift W ork Performed at the W ell Sites

W e must first decide whether the district court erred in limiting the

plaintiffs’ case to their travel-time claims. During the pretrial conference, the

district court ruled that the plaintiffs could not seek to recover against Aztec for

time allegedly spent in mandatory pre-shift safety meetings and changing into and

out of their specialized safety gear because they failed to raise these issues until

the pretrial order. The plaintiffs argue that these claims w ere properly pled in

their amended complaint, and that because the district court applied a “heightened

pleading standard” that “conflicts with the well-established and liberal notice

pleading rule” of Federal Rule of Civil Procedure 8(a), its decision should be

reversed. Appellants’ Br. 38.

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 The plaintiffs argued that language in the amended complaint claiming that

they are “entitled to be compensated from the time they met at the designated

meeting place until their return to that meeting place,” necessarily encompasses

claims for pre- and post-shift work at the well sites. Appellant’s Br. 36. This

argument borders on frivolous. The amended complaint merely states that “Aztec

W ell requires its twenty-four hour rig hands to meet at a designated location

within the tri-city area,” w here they “are further required to travel from this

designated location to remote w ell sites and to return to the designated location in

a [single] vehicle.” R. Vol. I at 34. The complaint then alleges that Aztec

violated the FLSA because “[d]uring this travel to and from the well site, rig

hands perform work for Aztec W ell for which they are not compensated, nor is

such travel time counted by Aztec Well towards hours worked by rig hands.” Id.

Although courts must construe the pleadings “as to do substantial justice,” Fed. R.

Civ. P. 8(f), this “does not require the district court to fabricate a claim that a

plaintiff has not spelled out in the complaint.” 5 Charles Alan W right and Arthur

R. M iller, Federal Practice and Procedure § 1286 (3d ed. 2004). The amended

complaint in this case is clear. The plaintiffs sought to recover unpaid wages for

time spent at the designated meeting place in town and traveling to and from the

well sites. The only reference to “work” is to work performed “[d]uring this

travel to and from the well site.” R. Vol. 34. There is nothing in the complaint

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to support a claim based on time spent in pre-shift safety meetings at the well site

or in changing into and out of specialized safety gear.

The plaintiffs argue that even if they failed to include these claims in their

amended complaint, their interrogatory answ ers notified Aztec of the claims in

October 2002, more than a year before trial. Although interrogatory answers can

be “relevant to discerning the breadth of a complaint,” Sundstrand Corp. v.

Standard Kollsman Indus., Inc., 488 F.2d 807, 811 (7th Cir. 1973), we typically

expect plaintiffs to file a formal motion to amend their pleadings if they want to

add an entirely new claim to their complaint. Cf. Calderon v. Kan. Dep’t of Soc.

& Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999) (noting that “normally a

court need not grant leave to amend when a party fails to file a formal motion”).

Yet the plaintiffs made no attempt to amend their complaint until submitting the

pretrial order in December 2003, fourteen months after identifying the new claims

in their interrogatory answers. During that fourteen-month period, both parties

filed briefs indicating that the plaintiffs’ only claim against A ztec was for unpaid

wages related to their travel time, and the district court dismissed over a third of

the plaintiffs from the action based solely on its conclusion that their travel-time

claims had to be dismissed. The plaintiffs’ contention that they effectively raised

the pre- and post-shift work claims in their October 2002 interrogatory answ ers is

inconsistent with the position they took for more than a year afterwards. They

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cannot now argue that the October 2002 interrogatory answers expanded the scope

of their pleadings.

W hen the plaintiffs finally raised the FLSA claims related to pre- and post-

shift work at the well sites in the pretrial order, the district court acted within its

discretion in refusing to allow the new claims. Because the pretrial order is the

controlling document at trial, a plaintiff’s “attempt to add a new claim to the

pretrial order [is] the equivalent of asking leave to amend his complaint, and must

be evaluated by the court under the standards set forth in Rule 15(a).” M inter v.

Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). W hile Rule 15(a)

provides that leave to amend “shall be freely given when justice so requires,” Fed.

R. Civ. P. 15(a), if there has been undue delay on the part of the plaintiff in

raising the claim, the district court may properly deny the motion as untimely.

See Durham v. Xerox Corp., 18 F.3d 836, 840 (10th Cir. 1994). W hen

determining whether a newly raised claim is untimely under Rule 15(a), “[t]his

Circuit . . . focuses primarily on the reasons for the delay. W e have held that

denial of leave to amend is appropriate ‘when the party filing the motion has no

adequate explanation for the delay.’” M inter, 451 F.3d at 1206 (quoting Frank v.

U.S. West, 3 F.3d 1357, 1365–66 (10th Cir. 1993)). The plaintiffs offer no

explanation for their 14-month delay other than the dubious assertion that “[u]ntil

the district court’s ruling at the pre-trial conference, [they] had no idea an

amendment was necessary.” Appellants’ Reply Br. 19. W e therefore find that the

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district court did not abuse its discretion by limiting the plaintiffs to the travel-

time claims raised in their amended complaint.

B. Time Spent Traveling To and From the W ell Sites

The FLSA typically requires employers to pay their employees for all time

spent working on their behalf. See United Transp. Union Local 1745 v. City of

Albuquerque, 178 F.3d 1109, 1116 (10th Cir. 1999) (citing 29 U.S.C. §§ 206,

207). Congress has never defined the term “w ork,” however, and the courts are

thus left to determine on a case-by-case basis whether an employee’s activities

are compensable under the FLSA. See IBP, Inc. v. Alvarez, 126 S. Ct. 514,

518–19 (2005); D A & S Oil Well Servicing, Inc. v. M itchell, 262 F.2d 552,

554–55 (10th Cir. 1958). Early Supreme Court decisions on the issue defined

“work” as “physical or mental exertion (whether burdensome or not) controlled or

required by the employer and pursued necessarily and primarily for the benefit of

the employer and his business.” Tenn. Coal, Iron & R. Co. v. M uscoda Local No.

123, 321 U.S. 590, 598 (1944); see also Anderson v. M t. Clemens Pottery Co.,

328 U.S. 680, 691–92 (1946). In both Tennessee Coal and Anderson, the

Supreme Court held that time spent by employees w alking or riding to their

workstation from the mine or factory entrance was compensable under the FLSA.

Tenn. Coal, 321 U.S. at 598; Anderson, 328 U.S. at 691.

In 1947, one year after the Supreme Court’s decision in Anderson,

Congress passed the Portal-to-Portal Act, 29 U.S.C. § 254, which amended the

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FLSA to shield employers from “judicial interpretations of the FLSA [that] had

superseded ‘long-established customs, practices, and contracts between employers

and employees, thereby creating wholly unexpected liabilities.” Alvarez, 126 S.

Ct. at 519. The Portal-to-Portal Act provides that

no employer shall be subject to any liability or punishment under the
Fair Labor Standards Act of 1938, as amended . . ., on account of the
failure of such employer to pay an employee minimum wages, or to
pay an employee overtime compensation, for or on account of any of
the following activities of such employee . . . —

(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 w hich are preliminary to or postliminary to said
principal activity or activities,

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.

29 U.S.C. § 254(a). Employers are therefore not required to compensate

employees for time spent commuting between home and their workplace, or for

any activities that are “preliminary to or postliminary to” their principal activities

at w ork. Id.; see also 29 C.F.R. § 790.7(f) (explaining that “[e]xamples of

walking, riding, or traveling which . . . would normally be considered

[noncompensable] ‘preliminary’ or ‘postliminary’ activities” include “riding on

buses between a town and an outlying mine or factory where the employee is

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employed,” and “riding on buses or trains from a logging camp to a particular site

at w hich the logging operations are actually being conducted”).

W hile the Portal-to-Portal Act clearly excludes normal home to work travel

from the scope of the FLSA, see 29 C.F.R. § 785.35, 3 the Supreme Court has held

that the “Act does not purport to change this Court’s earlier descriptions of the

term[] ‘work.’” Alvarez, 126 S. Ct. at 520. In Steiner v. M itchell, 350 U.S. 247,

254 (1956), the Supreme Court found that Congress passed the Portal-to-Portal

Act still intending for an employee’s activities to fall “within the protection of the

[Fair Labor Standards] Act if they are an integral part of and are essential to the

principal activities of the employees.” The Court therefore held “that activities

performed either before or after the regular work shift . . . are compensable under

the portal-to-portal provisions of the Fair Labor Standards Act if those activities

are an integral and indispensable part of the principal activities for which covered

workmen are employed.” Id. at 256. The Supreme Court recently clarified this

3
FLSA regulations interpreting the Portal-to-Portal Act do not require
compensation for time spent in “ordinary home to work travel which is a normal
incident of [the worker’s] employment.” 29 C.F.R. § 785.35. Although the
regulation uses the terms “ordinary travel” and “normal travel,” this “does not
represent an objective standard of how far most workers comm ute or how far they
may reasonably be expected to commute. Instead, it represents a subjective
standard, defined by what is usual within the confines of a particular employment
relationship.” Kavanagh v. Grand Union Co., 192 F.3d 269, 272 (2d Cir. 1999).
Consequently, even though the plaintiffs sometimes spent up to seven hours
commuting each day, their travel is still “ordinary” and “normal” home to w ork
travel if it “was a contemplated, normal occurrence under the employment
contract.” Id. at 273.

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rule in Alvarez, explaining “that any activity that is ‘integral and indispensable’ to

a ‘principal activity’ is itself a ‘principal activity’ under § 4(a) of the Portal-to-

Portal A ct,” and is thus compensable under the FLSA. Alvarez, 126 S. Ct. at 525.

Consistent with this ruling, the Portal-to-Portal Act “has been interpreted

not to prohibit overtime compensation when active duties are performed during

travel time.” Crenshaw v. Quarles Drilling Corp., 798 F.2d 1345, 1350 (10th Cir.

1986). Such active duties include when employees for an oil and gas w ell

servicing company “transport equipment without which well servicing could not

be done,” and are therefore “performing an activity which is so closely related to

the work which they and other employees perform, that it must be considered an

integral and indispensable part of their principal activities.” D A & S Oil Well

Servicing, 262 F.2d at 555. However, when the travel is “solely for the

transportation of employees to and from their principal place of work, then . . .

the drivers are ‘riding, or traveling’ within the exclusion of Section 4 of the Act.”

Id.

The plaintiffs contend that the district court erred in holding, as a matter of

law, that “the Defendant did not violate the FLSA by failing to compensate the

Plaintiffs for their travel to and from their work sites.” R. Vol. I at 297. They

argue that the evidence at trial provided the jury with two grounds upon which it

could have reasonably reached its verdict: first, that their “travel to and from” the

well sites “was an integral and indispensable part of their principal activity of

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working oil and gas rigs at remote locations”; and second, that they were

“required to perform work-related activities” w hile traveling that were

“predominantly for the benefit of the[ir] employer.” Appellants’ Br. 28–29.

“[W ]e review a judgment as a matter of law under the same standard

regardless of whether the judgment is rendered before or after the jury renders its

verdict.” Weese v. Schukman, 98 F.3d 542, 547 (10th Cir. 1996). Our review of

the district court’s order granting judgment as a matter of law is de novo. See

Black v. M & W Gear Co., 269 F.3d 1220, 1238 (10th Cir. 2001). W e apply the

same standard applied by the district court, and thus will “uphold a JM L order

only if the evidence points but one way and is susceptible to no reasonable

inferences supporting the party for whom the jury found.” Weese, 98 F.3d at 547

(internal quotation marks omitted).

1. Travel T ime

The plaintiffs raise three arguments for why their travel to and from the

well sites was integral and indispensable to their principal activities, and thus

compensable under the FLSA. First, they argue that Aztec placed requirements

on them during their travel— namely, that it required them to ride together w ith

the other members of their crew— which made the Portal-to-Portal Act

inapplicable to their travel-time claim. Second, they claim that their travel time

was compensable because their workdays started and ended at the Sundial

convenience store, where they were picked up and dropped off before and after

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their shift. Third, they argue that their travel time was itself “work” within the

meaning of the FLSA because they were required to transport equipment and

paperwork necessary for Aztec’s drilling operations while traveling to and from

the well sites. W e evaluate each argument in turn.

W ith respect to the plaintiffs’ first contention, even if we assume that there

was sufficient evidence to show that most drillers required their rig hands to

travel with them to and from the well sites, and that Aztec knew or should have

known about this practice, the district court correctly held that “[t]his alone is

insufficient to support the jury’s verdict.” R. Vol. I at 292. 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-w orkers. 29 U.S.C. § 254(a)(1). 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.

Consequently, unless the plaintiffs’ travel was an integral and indispensable

part of their principal activities because they were traveling together with their

crew, then the alleged carpooling requirement does not transform the plaintiffs’

travel time into compensable work hours. See Alvarez, 126 S. Ct. at 521;

Crenshaw, 798 F.2d at 1350. If Aztec required its 24-hour crews to drive

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together for the purpose of allowing them to conduct essential planning and

preparation work needed for their job at the well site, then the travel time might

well be integral and indispensable to their principal activities. As President

Truman stated in the President’s M essage to Congress on Approval of the Portal-

to-Portal Act, “I am sure the courts will not permit employers to use artificial

devices such as the shifting of work to the beginning or end of the day to avoid

liability under the law.” Bobo v. United States, 37 Fed. Cl. 690, 698 (Fed. Cl. Ct.

1997) (quoting 93 Cong. Rec. 5418, 80th Cong., 1st Sess. (1947), reprinted in

1947 U.S.C.C.A.N. 1827-28). In this case, however, the plaintiffs allege that

Aztec required them to travel together “because there was insufficient parking at

the well sites” and it wanted “a full crew [present] . . . at the start of the job.”

Appellants’ Br. 27. In other words, the plaintiffs were required to travel together

for reasons related to the logistics of commuting rather than anything integral and

indispensable to their principal activities. Additionally, the plaintiffs

acknowledged that they would have traveled together even if their drillers did not

require them to do so because it is more convenient than driving alone. Under

these circumstances, even mandatory carpooling to and from the well sites is still

“riding, or traveling” within the meaning of the Portal-to-Portal Act.

The plaintiffs’ second argument for why their “travel time itself” should be

“defined as compensable” is because they were “required to meet and perform

some other work or get instructions before proceeding to their job site.”

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Appellants’ Br. 26. The plaintiffs largely rely on one of the federal regulations

interpreting the FLSA, 29 C.F.R. § 785.38, which states that,

[w]here an employee is required to report at a meeting place to
receive instructions or to perform other work there, . . . the travel
from the designated place to the work place is part of the day’s work,
and must be counted as hours worked . . . .

This regulation follows from the “whistle to whistle” rule, w hich provides that,

“during a continuous workday, any walking[, riding, or traveling] time that occurs

after the beginning of the employee’s first principal activity and before the end of

the employee’s last principal activity is excluded from the scope of that provision,

and as a result is covered by the FLSA .” Alvarez, 126 S. Ct. at 525. If the

plaintiffs’ first principal activity took place at the Sundial convenience store

before traveling to the well site, and their last principal activity took place at the

Sundial after returning from the w ell site, then, under Alvarez, their travel time

would be included within their workday.

Although the plaintiffs make a valiant attempt to characterize their

activities at Sundial as integral and indispensable to their principal activities,

their efforts are unavailing. There is no evidence that they received necessary

instructions at the Sundial related to their work at the well site, which, according

to 29 C.F.R. § 785.38, would trigger the start of the workday. See Vega v.

Gasper, 36 F.3d 417, 425 (5th Cir. 1994). Nor is there any evidence that Aztec

regularly required the plaintiffs to pick up or drop off essential equipment or

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paperwork while traveling, which could also constitute a “principal activity”

within the meaning of the Portal-to-Portal Act. See D A & S Oil Well Servicing,

262 F.2d at 555.

The plaintiffs assert that their workday started at the Sundial because, after

they arrived there, they were required to load their personal safety

equipment— including their hard hats, gloves, steel-toed boots, and coverall

clothing— into their driller’s vehicle. This argument is foreclosed by our holding

in Reich v. IBP, Inc., 38 F.3d 1123, 1126 & n.1 (10th Cir. 1994), where we

explained that when an employee’s activity “takes all of a few seconds and

requires little or no concentration,” then the activity is “properly considered not

work at all.” M oreover, “[r]equiring employees to show up at their work stations

with such standard equipment [as a hard hat, safety glasses, earplugs, and safety

shoes] is no different from having a baseball player show up in uniform, . . . or a

judge with a robe. It is simply a prerequisite for the job, and is purely

preliminary in nature.” Id. at 1125, 1126 n.1; see also 29 C.F.R. § 790.7(d).

Consequently, the plaintiffs’ travel to and from the well sites was not integral and

indispensable to their principal activities merely because they were required to

carry their personal safety equipment along with them.

Additionally, the plaintiffs assert that their workday started at the Sundial

because they would often purchase food and drinks there, and because one crew

member would fill a cooler with drinking water and load it into the vehicle.

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Although these activities might be necessary in some sense, they are not “so

closely related to the work which [the plaintiffs] and the other employees

perform, that it must be considered an integral and indispensable part of their

principal activities.” D A & S Oil Well Servicing, 262 F.2d at 555. Buying snacks

at the Sundial is no more part of the “work” than fixing a tuna sandwich to take

for lunch. These activities are preliminary to or postliminary to the principal

activities for w hich the plaintiffs are employed.

The plaintiffs’ third argument for why their travel was “work” within the

meaning of the FLSA is that they were allegedly required to transport essential

tools and paperwork while traveling to and from the well sites. Our Circuit has

previously held that “employees who transported equipment needed to service

producing oil wells must be compensated for their travel time.” Crenshaw, 798

F.2d at 1350. In the trial below, however, there was no evidence that the

plaintiffs regularly transported such equipment as a part of their daily travel.

Generally speaking, an activity is integral and indispensable to the principal

activities only if “such work is necessary to the [employer’s] business and . . .

performed by the employees . . . in the ordinary course of that business.” Dunlop

v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir. 1976) (W isdom, J.). W hile the

plaintiffs occasionally carried equipment and paperwork on behalf of the tool

pusher, this was a relatively rare occurrence, and the crews did it as a favor to the

tool pusher rather than as an ordinary part of their job. Because they did not

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transport essential equipment or papers in the ordinary course of business, the few

instances where they did transport such materials does not transform all of their

travel time into an integral and indispensable part of their principal activities.

W e therefore agree with the district court that “the Plaintiffs failed to

establish that the travel time in and of itself was work for which they must be

compensated.” R. Vol. I at 292.

2. Compensable Activities Performed W hile Traveling

Even though the Portal-to-Portal Act shields A ztec from any obligation to

compensate the plaintiffs for their travel, “it [does] not follow that the employer

is exempt from payment for actual work required to be done during such travel.”

Reich v. N.Y. City Transit Auth., 45 F.3d 646, 651 (2d Cir. 1995). As a general

rule, an “employee is entitled to payment for any work that the employer requires

the employee to perform during the commute.” Aiken v. City of M emphis, 190

F.3d 753, 758 (6th Cir. 1999). The plaintiffs argue that they engaged in a number

of compensable activities while traveling that, when considered in the aggregate,

support the jury’s verdict. Id.

Although the plaintiffs base this claim on their testimony about the various

activities they performed during the commute, such as holding safety discussions

and changing tires, their request for compensation is not limited to the time spent

on those activities. The plaintiffs still seek compensation for their travel time.

Indeed, the only question submitted to the jury was whether Aztec violated the

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FLSA “by failing to compensate the plaintiffs for their travel to and from their

work sites.” R. Vol. I at 217 (emphasis omitted). The jury was not asked, and

did not decide, whether Aztec could be required to compensate the plaintiffs for

any time spent on the individual activities they allegedly performed during the

commute. Id. W e express no opinion on the viability of such a claim.

Instead, we must determine whether the plaintiffs can be compensated for

the entirety of their travel time because of the actual work they performed during

a portion of that time. “[T]he test for whether an employee’s time constitutes

working time is whether the time spent is spent predominantly for the employer’s

benefit or for the employee’s.” United Transp. Union Local 1745 v. City of

Albuquerque, 178 F.3d 1109, 1116 (10th Cir. 1999) (internal quotation marks

omitted) (alteration in original). If the employer requires work “during the major

part of commuting time,” then the “entire commute should be compensated.” N.Y.

City Transit Auth., 45 F.3d at 651–52. W e therefore ask whether a reasonable

jury could have concluded that the plaintiffs spent the majority of their travel

time— which was somewhere between one and seven hours round trip— engaged

in actual work on behalf of Aztec.

The plaintiffs first point to the evidence at trial showing that, during their

comm ute, they were required to engage in activities such as “digging trucks out of

the mud and snow, changing tires, putting on chains, and opening and closing

gates.” A ppellants’ Reply Br. 10. All of these activities, however, are merely

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incidental to the plaintiffs’ travel to and from the well sites, and therefore fall

within the portal-to-portal exclusion. As the Ninth Circuit explained in Lindow v.

United States, 738 F.2d 1057, 1064 (9th Cir. 1984), “the Portal-to-Portal Act

specifically exempted from the FLSA overtime requirements the time plaintiffs

took to open and close the project gates” because the activity simply “enables the

employees to reach their actual place of performance.” Likewise, when the

plaintiffs must change a flat tire, push the vehicle out of the mud, or put chains on

the tires during the course of their commute, they are engaging in activities

necessary to arrive at work. This is nothing more than what commuters w ould

normally do if their vehicle encountered such exigencies. Those activities are

therefore preliminary to or postliminary to the plaintiffs’ principal activities at the

well sites, and do not qualify as “work” under the FLSA.

Finally, the plaintiffs argue that their travel time was compensable because

they spent the majority of it discussing matters essential to their work at the well

site, including workplace safety, training new rig hands, planning for the w ork

they expected to encounter that day, and criticizing or disciplining crew members

who did something wrong during the previous shift. But there is no evidence that

the plaintiffs spent the majority of their travel time engaged in these work-related

conversations. Indeed, all but one of the plaintiffs acknowledged that the 24-hour

crew members were generally free to spend their travel time as they wished: they

could sleep, eat, read, listen to a portable radio, or discuss any subject of their

-35-
choosing. M oreover, based on the testimony at trial, it is apparent that the

plaintiffs’ predominant activity while traveling was sleeping.

The plaintiffs rely on the testimony of M r. Alcon, a former driller and

plaintiff, to argue that the jury could have reasonably found that they spent the

majority of their travel time engaged in essential work-related conversations. M r.

Alcon testified that he would spend anywhere from 75% to 100% of his travel

time talking about safety and other work-related matters, and never let his crew

members fall asleep during the drive. M r. Alcon also testified, however, that the

reason he spent so much time lecturing his crew was because he “didn’t want to

fall asleep on the w heel and . . . have an accident,” and the conversations were

“what kept our eyes open.” Trial Tr. 364, 429–30. In light of this testimony, no

reasonable juror could have found that M r. Alcon’s lengthy talks about safety and

training were integral and indispensable to the plaintiffs’ principal activities at

the w ell sites, rather than just a technique he used to stay aw ake while driving. If

Plato were more interesting, they would have discussed the Theory of the Forms.

W e therefore agree with the district court that none of the plaintiffs’

activities w hile traveling to and from the well sites were sufficient to render their

entire travel time compensable under the FLSA.

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 III. C ON CLU SIO N

The district court’s order granting judgment as a matter of law to Aztec is

AFFIR M ED.

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