United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-4308WMS
___________
ALEXIS M. HERMAN, SECRETARY *
OF LABOR, *
*
Appellee, *
*
v. * Appeal from the
* United States District Court
RICH KRAMER CONSTRUCTION, * For the Western District
INC., * of Missouri, Southern
* Division
Appellant. *
[UNPUBLISHED]
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Submitted: June 10, 1998
Filed: September 21, 1998
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Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit
Judges, and PANNER1, District Judge
___________
PER CURIAM
The Secretary of Labor brings this action against Rich Kramer Construction, Inc.
(Kramer), claiming that Kramer failed to pay overtime to six employees, violating the Fair
1
The Honorable Owen M. Panner, United States District Judge for the District
of Oregon, sitting by designation.
Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219. After a bench trial, the District
Court2 ruled that Kramer should have paid employees for traveling to and from job sites.
Kramer appeals. We affirm.
BACKGROUND
Kramer constructed metal buildings, usually within sixty miles of its shop in
Springfield, Missouri. Kramer employed five foremen, who drove company-owned trucks
carrying laborers, equipment, and supplies from Kramer's shop to job sites. Early in the
morning before driving to a job site, the foremen loaded trucks, received crew
assignments, and studied blueprints. When the foremen returned to Kramer's headquarters
after a day's work, they filled out time-sheets, unloaded and locked the trucks, and secured
equipment. Kramer did not pay foremen for travel time to and from job sites or for time
spent in the shop before and after their regular shifts.
Kramer employed a bookkeeper, Joyce King. Kramer did not pay King overtime
wages unless she worked more than forty-five hours in a week.
After a bench trial, the District Court ruled that Kramer should have paid foremen
for shop time and travel time. Based on its finding that Kramer failed to pay foremen for
one hour per weekday and two hours per alternate Saturdays, the District Court awarded
a total of $32,940 in back wages, plus prejudgment interest.
The District Court granted the Secretary's motion to alter the judgment. The District
Court concluded that Kramer had failed to prove that its bookkeeper fell under an
exemption for administrative employees, 29 C.F.R. § 541.2, and awarded the bookkeeper
$660 in back wages. The District Court denied Kramer's post-judgment
2
The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri.
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motion, ruling that Kramer was on notice that the Secretary sought back wages from
September 1993 to September 1995.
DISCUSSION
I. Appeal from Summary Judgment Order
Kramer appeals the District Court's partial denial of its motion for summary
judgment. An order denying summary judgment, however, is "not appealable after a full
trial on the merits." Johnson Int'l Co. v. Jackson Nat'l Life Ins. Co., 19 F.3d 431, 434 (8th
Cir. 1994); Metropolitan Life Ins. Co. v. Golden Triangle, 121 F.3d 351, 356 (8th Cir.
1997).
II. Appeal from Final Judgment
A. Standard of Review
In an FLSA action, we review for clear error the district court's findings on the
number of hours worked and the duties performed by an employee. See Reich v. Stewart,
121 F.3d 400, 404 (8th Cir. 1997). We review de novo whether activities before or after
an employee's official work shift are compensable. See Barrentine v. Arkansas-Best
Freight Sys., Inc., 450 U.S. 728, 738-39 n.13 (1981).
B. Travel Time
Kramer contends that the Portal to Portal Act, 29 U.S.C. §§ 251-262, exempts the
foremen's travel time. We agree, however, with the District Court that driving to job sites
was compensable as a principal activity because Kramer could not have constructed
buildings without the tools, supplies, and employees transported by foremen. See
Secretary v. E.R. Field, Inc., 495 F.2d 749, 751 (1st Cir. 1974). Although providing trucks
may have been convenient for the foremen, it also benefited Kramer. See id. (activity
compensable if done partially for employer's benefit, even if employee also benefits).
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Alternatively, travel time was compensable because the work day began when
foremen reported to the shop. 29 C.F.R. § 785.38 (if employer requires employees to
report at meeting place to receive instructions or to pick up and carry tools, "travel from
the designated place to the work place is part of the day's work, and must be counted as
hours worked regardless of contract, custom, or practice"); Dole v. Enduro Plumbing, Inc.,
No. 88-7041-RMT (KX), 1990 WL 252270, at *5 (C.D. Cal. Oct. 16, 1990).
Kramer argues that the travel time is excluded from FLSA coverage by the
Employee Commuting Flexibility Act of 1996 (ECFA), which amended the Portal to Portal
Act, 29 U.S.C. § 254. Section 254 now provides that
the use of an employer's vehicle for travel by an employee and activities
performed by an employee which are incidental to the use of such vehicle
for commuting shall not be considered part of the employee's principal
activities if the use of such vehicle for travel is within the normal commuting
area for the employer's business or establishment and the use of the
employer's vehicle is subject to an agreement on the part of the employer
and the employee or representative of such employee.
The District Court correctly held that the ECFA did not apply because Kramer's foremen
were not using the company trucks to commute between home and work, but to drive
between work and job sites. Cf. Baker v. GTE North Inc., 110 F.3d 28, 30-31 (7th Cir.
1997) (ECFA applied to employee who parked company vehicle two miles from home
and drove own car rest of the way; employee was entitled to drive company vehicle
home). The foremen were not merely commuting but were also transporting other
employees, equipment, and supplies.
C. Shop Time
Kramer contends that its foremen's shop time is not compensable either because
it was preliminary or "postliminary" to regular work, or because the amount of shop time
was de minimis. See 29 U.S.C. § 254(a)(2) (exempting from FLSA coverage "activities
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which are preliminary to or postliminary to . . . principal activity or activities"); Bobo v.
United States, 136 F.3d 1465, 1468 (Fed. Cir. 1998) (applying test for determining
whether work was so brief or sporadic as to be de minimis). The District Court did not
err in concluding that the foremen's shop time benefited Kramer, and that the shop time,
though brief, should be aggregated with travel time to determine total uncompensated
time.
D. Calculation of Damages
Kramer challenges the District Court's calculation of damages. Because Kramer
did not keep records on travel time or most shop time, the District Court properly drew
reasonable inferences from the evidence at trial. See Martin v. Tony & Susan Alamo
Foundation, 952 F.2d 1050, 1052 (8th Cir. 1992) ("[W]hen an employer has failed to
keep proper records, courts should not hesitate to award damages based on the 'just and
reasonable inference' from the evidence presented.") (quoting Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 687 (1946)). The District Court's calculation of damages is
not clearly erroneous.
III. Post-Judgment Issues
The District Court did not abuse its discretion in ruling that Kramer should have
known that the Secretary's claims encompassed FLSA violations from September 1993
to September 1995, when the complaint was filed. See Twin City Constr. Co. v. Turtle
Mountain Band of Chippewa Indians, 911 F.2d 137, 139 (8th Cir. 1990) (rulings on post-
judgment motions under Fed. R. Civ. P. 59 reviewed for abuse of discretion). The
complaint and other documents put Kramer on notice of the relevant period.
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We also see no abuse of discretion in the District Court's post-judgment ruling that
Kramer failed to establish that the bookkeeper was an administrative employee.
Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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