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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14943
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D.C. Docket Nos. 1:15-cv-22174-JLK,
6:16-bk-07183-RAC
RENATO FONSECA,
SERGIO CARVALHO,
RONALD MARC GROSS,
Plaintiffs - Appellants,
versus
ALLTOUR AMERICA TRANSPORTATION, INC.,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 28, 2018)
Before JILL PRYOR, BRANCH and BOGGS, ∗ Circuit Judges.
∗
Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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PER CURIAM:
Renato Fonseca, Sergio Carvalho, and Ronald Gross (the “drivers”) filed
this action on behalf of themselves and others similarly situated, alleging that their
former employer AllTour America Transportation, Inc. (“AllTour”), failed to pay
overtime as required by the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 207(a)(1). AllTour filed a motion for summary judgment, arguing that the
drivers were exempt from the FLSA’s overtime requirement. The district court
agreed and granted AllTour’s summary judgment motion. We affirm.
I. FACTUAL BACKGROUND
AllTour operates shuttle services for foreign tourists visiting Florida.
AllTour’s customers are all international tourists, with approximately 90% coming
from Brazil. The tourists generally purchase transportation from AllTour through
travel agents as part of prepaid travel packages.
Fonseca, Carvalho, and Gross were AllTour shuttle drivers. While working
for AllTour, they were responsible for picking tourists up from the Miami airport
and taking them to their hotels and then picking them up from their hotels to take
them back to the airport. While the tourists stayed in Florida, the drivers also
would transport them between their hotels and other places in Miami and drive
them on city tours of Miami. The drivers sometimes would drive the tourists
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beyond the Miami area to Fort Pierce, Florida, where they would meet another
driver who would take the tourists the rest of the way to theme parks in Orlando.
For their services, AllTour paid each driver a weekly salary of between $500
and $600. A driver’s salary did not change based on the number of hours he
actually worked, and a driver received no overtime pay if he worked over 40 hours
in a week. But if a driver worked all seven days in a week, he was paid an extra
$85 to $100. The drivers received an additional $30 for each trip to Fort Pierce.
Fonseca and Carvalho sued AllTour in state court, alleging that AllTour
violated the FLSA by failing to compensate them and other similarly situated
drivers with overtime pay. After AllTour removed the action to federal court,
Gross joined the suit as a plaintiff. AllTour moved for summary judgment, arguing
that the drivers were exempt from the FLSA’s overtime pay requirement. The
district court agreed and granted summary judgment to AllTour. The drivers
appealed.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo, applying
the same legal standards as the district court. Hurlbert v. St. Mary’s Health Care
Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006). Summary judgment is
appropriate only “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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Civ. P. 56(a). The court must draw all reasonable inferences in favor of the non-
moving party. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1326 (11th
Cir. 1998).
III. DISCUSSION
This appeal requires us to consider the interaction of two statutes: the FLSA
and the Motor Carrier Act of 1935. The FLSA requires employers to compensate
covered employees at an overtime rate if they work more than 40 hours in a week.
29 U.S.C. § 207(a)(1). Congress enacted the FLSA “with the goal of protecting all
covered workers from substandard wages and oppressive working hours.”
Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 147 (2012) (alteration
adopted) (internal quotation marks omitted). But the FLSA’s overtime
compensation requirement “does not apply with respect to all employees.” Id. As
relevant here, under the “motor carrier exemption,” workers are exempt from the
FLSA’s overtime requirement if the United States Secretary of Transportation is
authorized to set their maximum hours. See 29 U.S.C. § 213(b)(1). We construe
FLSA exemptions, including the motor carrier exemption, narrowly against
employers. Walters v. Am. Coach Lines of Miami, Inc., 575 F.3d 1221, 1226 (11th
Cir. 2009).
In the Motor Carrier Act, Congress authorized the Secretary of
Transportation to set maximum hours of service for certain employees of a “motor
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carrier.” See 49 U.S.C. § 31502(b). The Secretary’s authority to set maximum
hours extends to all “transportation . . . described in section[] 13501 . . . of this
title.” Id. § 31502(a)(1). Section 13501, in turn, covers transportation between
places in different states, between places in the same state if the transport passes
through another state, and between the United States and a foreign country to the
extent that the transportation occurs in the United States. Id. § 13501(1).
From these statutory provisions, we have distilled two requirements for the
Secretary to have jurisdiction to set an employee’s maximum hours, considering
both the nature of the employer’s business generally and the nature of the work
involved in the employee’s job. First, the “employer’s business must be subject to
the Secretary of Transportation’s jurisdiction under the [Motor Carrier Act].”
Walters, 575 F.3d at 1227. Second, “the employee’s business-related activities
must directly affect 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 Motor Carrier Act.” Id. (alteration adopted) (internal
quotation marks omitted). We have recognized that even purely intrastate
transportation can constitute part of interstate or foreign commerce if “it is part of a
continuous stream of interstate [or foreign] travel,” meaning there is “a practical
continuity of movement between the intrastate segment and the overall interstate
[or foreign] flow.” See id. at 1229 (internal quotation marks omitted).
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Here, the drivers concede that the first requirement is satisfied because
AllTour is a motor carrier subject to the Secretary of Transportation’s jurisdiction.
The drivers assert that the second prong is not satisfied because the “vast majority”
of the work that they performed for AllTour involved the transportation of
passengers in intrastate commerce, rather than interstate or foreign commerce.
Appellants’ Br. at 20. The drivers concede that they engaged in interstate
commerce activities when they picked up tourists, who had just arrived in Florida,
at the airport and drove them to their hotels. But they assert that these trips were
insufficient to give the Secretary of Transportation authority to set their maximum
hours of service because the activities involving interstate commerce constituted
only a de minimis portion of their jobs.
We assume for purposes of this appeal that the drivers are correct that if
interstate or foreign commerce activities constituted only a de minimis portion of
their jobs, the Secretary of Transportation would lack the authority to set their
maximum hours and the FLSA’s motor carrier exemption would not apply. Even
assuming this, however, the drivers engaged in interstate or foreign commerce
activities on more than a de minimis basis. We reach this conclusion after
considering the Supreme Court’s decision in Morris v. McComb, 332 U.S. 422
(1947), and guidance from the United States Department of Transportation.
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In Morris, the Supreme Court considered whether drivers who worked for a
trucking company fell within the motor carrier exemption. Id. at 423, 426.
Although the drivers would occasionally transport freight in interstate commerce,
only 3.65% of their trips directly involved interstate commerce, and this business
made up only about 4% of the trucking company’s revenue. Id. at 427, 433.
Despite the company’s limited activities involving interstate commerce, the Court
held that the Interstate Commerce Commission (the “Commission”), the
predecessor to the Department of Transportation, had the power to establish
maximum hours for all the drivers and that none were entitled to overtime under
the FLSA. Id. at 437-38. The Court reached this conclusion because the employer
assigned the interstate commerce trips to the truck drivers “generally throughout
the year,” “in the normal operation of the business,” and drivers “shared
indiscriminately” in the trips. Id. at 433. Of the employer’s 43 truck drivers, 41
drivers had made at least one trip with interstate freight. Id. Additionally, on
average each driver had made over 16 such trips. Id. And the two drivers who had
not made any interstate trips had been employed for only about six months. Id.
Because the drivers were prepared at any time to engage in interstate commerce,
the Court concluded that the Commission had the authority to set their maximum
hours of service under the Motor Carrier Act, even for periods when they engaged
only in intrastate commerce. See id. at 434.
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Consistent with Morris, the Department of Transportation has explained that
the Secretary has authority to set maximum hours for a driver whose regular duties
include driving in interstate commerce. DOT Notice, 46 Fed. Reg. 37,902-02,
37,903 (July 23, 1981) (“[A] driver will remain under the [Secretary’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.”). And a driver is subject to the
Secretary’s jurisdiction even if he “has not personally driven in interstate
commerce if, because of company policy and activity, the driver could reasonably
be expected to do interstate driving.” Id. The Department has recognized a de
minimis exception, however, explaining that the Secretary lacks jurisdiction to set
maximum hours for a driver when over a lengthy period of time he made only a
few interstate trips. See id.; see also 29 C.F.R. § 782.2(b)(3). This court
previously has suggested that the de minimis exception applies only when a
driver’s interstate business “constitutes less than one percent of the overall trips.”
Walters, 575 F.3d at 1228.
Turning to the facts of this case, we acknowledge that the drivers spent a
significant amount of time each day driving passengers from their hotels to
locations within Florida. But Morris and the guidance from the Department of
Transportation tell us that the Secretary has authority to set a driver’s maximum
hours if the driver can reasonably be expected to engage in some driving that
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qualified as interstate or foreign commerce. See Morris, 332 U.S. at 433-34; 46
Fed. Reg. at 37,903. We accept that there may be a de minimis exception to this
general rule. But the evidence here, viewed in the light most favorable to the
drivers, shows that they engaged in transportation involving interstate or foreign
commerce on more than a de minimis basis. On most days the drivers picked
foreign tourists up from the Miami airport and drove them to their hotels. Fonseca
described a typical day as including taking the tourists to and from the airport,
Carvalho identified picking tourists up at the airport as a normal part of his duties,
and Gross estimated that 20% of his time was spent taking tourists from the airport
to their hotels.
In Morris, the Supreme Court recognized that the Commission had authority
to set the maximum hours for drivers who spent only about 4% of their time
engaged in interstate commerce but who were prepared at any time to transport
goods in interstate commerce. Morris, 332 U.S. at 433-34. The drivers here spent
more than 4% of their time transporting foreign passengers from the airport to their
hotels, which the drivers concede was in interstate or foreign commerce. Each day
the drivers reasonably expected that they might have to engage in interstate or
foreign commerce by picking up passengers at the airport because AllTour
assigned the drivers different routes each day and reserved the right to make last
minute changes to their schedules. Because the drivers were subject to the
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jurisdiction of the Secretary of Transportation, they were exempt from the FLSA’s
overtime requirement under the motor carrier exemption.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s grant of summary
judgment to AllTour.
AFFIRMED.
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