Vega v. Gasper

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 91-8416
__________________

MARIA VEGA, EVA TREVINO,
on behalf of herself and as
next friend of PEDRO TREVINO,
ET AL.,

Plaintiffs-Appellees

versus

JOHN W. GASPER,

Defendant-Appellant

______________________________________________

Appeal from the United States District Court for the
Western District of Texas
______________________________________________

(October 14, 1994)

Before REYNALDO G. GARZA and GARWOOD, Circuit Judges, and
ROSENTHAL,* District Judge.

GARWOOD, Circuit Judge:

Defendant-appellant, John W. Gasper (Gasper), appeals the

district court's judgment following a bench trial in favor of

plaintiffs-appellees, seasonal farm workers, under the Fair Labor

Standards Act, 29 U.S.C. § 201 et seq. (FLSA), and the Migrant and

Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1801 et

*
District Judge of the Southern District of Texas, sitting by
designation.
seq. (AWPA).1

The district court awarded nine plaintiffs recovery under the

FLSA at minimum wage rates for their time spent traveling to and

from the farm where they worked, and for their time waiting at the

farm before and after working, for none of which Gasper had

compensated them. FLSA recovery was also awarded these plaintiffs

for the amount below minimum wage levels that Gasper had paid them

for their working time at the farm. Liquidated damages under the

FLSA were also awarded these plaintiffs, and attorneys' fees were

assessed against Gasper.2 Gasper's appeal challenges only the

awards for travel and wait time and the related portion of the

liquidated damages.

We hold that the workers' travel time is not compensable under

the FLSA. We remand for additional fact findings concerning the

compensability of the workers' wait time and for recalculation of

the FLSA damage award. Because we are reducing the FLSA damage

award, we also remand for recalculation of damages under the AWPA.

APPELLEES' SUGGESTION OF MOOTNESS

Before turning to the merits, we address appellees' suggestion

of mootness, which Gasper has opposed. It appears that after this

appeal was perfected Gasper filed for protection under Chapter 13

of the Bankruptcy Code. Plaintiffs promptly filed an unsecured

1
Plaintiffs-appellees also filed a notice of appeal, but
subsequently dismissed their cross-appeal.
2
Some 75 other plaintiffs, who had no recovery under the
FLSA, were each awarded $50 under the AWPA, 29 U.S.C. § 1854(c).
The plaintiffs who recovered under the FLSA did not recover under
section 1854(c).

2
claim in the bankruptcy court based on the entire judgment below

($61,309.30). A few weeks later, the bankruptcy court, on the

joint motion of Gasper and plaintiffs "and after noting the Ch. 13

bankruptcy trustee's approval," entered an order referring to the

present appeal and decreeing that:

"the automatic stay of Section 362(a) of the Bankruptcy
Code is terminated for the limited purpose of permitting
the Debtor [Gasper] and the Farmworkers [plaintiffs] to
proceed with the above described appeal and in order that
the Fifth Circuit may decide and issue its opinion and
judgment regarding the Debtor's appeal, but the automatic
stay shall otherwise remain in effect as to all other
actions against the Debtor, to include any attempt to
collect or proceed against the Debtor on any judgment
already rendered or which may be modified as a result of
the appeal."

Subsequently, after this appeal was orally argued, on Gasper's

motion his bankruptcy proceeding was converted from Chapter 13 to

Chapter 7. Several months later, plaintiffs filed an adversary

proceeding in the bankruptcy court objecting under 11 U.S.C. §

523(a)(6) to the dischargeability of Gasper's judgment debt to them

"for failure to pay the minimum wage and for costs and attorneys'

fees arising therefrom." The adversary stated it related to

"unpaid minimum wages for time spent harvesting" but "does not

include the amount of money awarded for travel and waiting time,

which Plaintiffs do not seek to be determined non-dischargeable."

This adversary is apparently still pending before the bankruptcy

court. Some weeks later, the bankruptcy court entered an order

discharging Gasper, and stating:

"1. The above-named debtor is released from all
dischargeable debts.

2. Any judgment heretofore or hereafter obtained in
any court other than this court is null and void as a

3
 determination of the personal liability of the debtor
with respect to any of the following:

(a) debts dischargeable under 11 U.S.C. Sec.
523;

(b) unless heretofore or hereafter determined
by order of this court to be nondischargeable, debts
alleged to be excepted from discharge under clauses (2),
(4) and (6) of 11 U.S.C. Sec. 523(a);

(c) debts determined by this court to be
discharged."

Several months thereafter plaintiffs filed in this Court their

"Suggestion of Mootness," contending that "this Appeal is now moot"

because Gasper has been discharged from the only obligations at

issue on this appeal, the travel and wait time. Subsequently,

plaintiffs have filed an affidavit of the bankruptcy trustee

indicating that the estate is still being administered, that

unsecured creditors have received no distribution from the estate

but it is possible that some distribution will be made to them on

their claims, and stating "I do not believe there is any reason to

continue with the appeal" and "I believe the matter is more

properly the subject of the claims objection process in the

Bankruptcy Court."3

We conclude that the appeal is not moot. Certainly it will

affect what plaintiffs may recover from the bankruptcy estate.4

3
No authority is cited to support this latter statement, and
we do not agree with it. If this Court determines that plaintiffs
are not entitled to recover some or all of their claims at issue
on this appeal, those claims will be invalid.
4
Gasper, in addition to contending the appeal is not moot,
alternatively suggests that if it is moot then, under United
States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950), we should
vacate the judgment on the appealed claims and remand with
directions to dismiss them as moot. We reject that suggestion,

4
Assuming, as appears to be the assumption of the parties but has

not been expressly stated or reflected by any of the material filed

with us, that the liabilities of the estate exceed its assets, then

what other unsecured creditors will receive will also be affected

by this appeal. If the mentioned assumption is not accurate, or

would not be accurate were Gasper to prevail on all issues he

raises on appeal, then the appeal will clearly affect what Gasper

receives from the estate. Moreover, if plaintiffs prevail in their

objection to dischargeability (or if any other creditors

successfully object to the dischargeability of any debt), then

Gasper will be affected because if he prevails on appeal the

undischarged debt or debts will be reduced below what they

otherwise would be by application of estate funds which would

otherwise be applied to the debts at issue on this appeal. Cf.

Abel v. Campbell, 334 F.2d 339, 341 (5th Cir. 1964) ("Because the

tax liability survives . . . the bankruptcy, the bankrupt has

standing to attack the proof of claim before the Referee and a

right to appeal an adverse judgment as would an ordinary

creditor"); Matter of Dooley, 41 B.R. 31, 33 (Bank. N.D. Ga. 1984)

(debtor has standing to object to claim); In re McCorhill Pub.,

Inc., 89 B.R. 393, 396 (Bank. S.D.N.Y. 1988) ("a debtor has

standing to object to claims where disallowance of the claims would

produce a surplus"). We conclude that the case is not moot in the

sense of no longer presenting a case or controversy. See also Cox

as it would improperly deprive plaintiffs (without any
adjudication of the merits) of the judgment on which their
bankruptcy claims (which, if valid, they may be able to collect
something on) are founded.

5
v. Sunbelt Sav. Ass'n of Texas, 896 F.2d 957, 959-60 (5th Cir.

1990); Triland Holdings & Co. v. Sunbelt Service Corp., 884 F.2d

205, 208 (5th Cir. 1989); Ratner v. Sioux Natural Gas Corp., 770

F.2d 512, 516 (5th Cir. 1985).

We recognize, of course, that where a debtor is in bankruptcy

a suit against the debtor for a post-petition debt must make the

trustee a defendant. Bellini Imports v. Mason and Dixon Lines,

Inc., 944 F.2d 199, 201-202 (4th Cir. 1991). Suits against the

debtor commenced before bankruptcy or on pre-petition claims are

stayed by the automatic stay of 11 U.S.C. § 362(a). Here, however,

there was no bankruptcy until after Gasper had perfected the

instant appeal. Subsequently, the bankruptcy court, on motion of

Gasper and plaintiffs, and with the approval of the Chapter 13

trustee, lifted the automatic stay for the specific purpose of

allowing Gasper "to proceed with" this appeal "in order that the

Fifth Circuit may decide and issue its opinion and judgment

regarding the Debtor's [Gasper's] appeal." The subsequent

conversion to Chapter 7 did not invoke another automatic stay or

modify this order. See In Re Parker, 154 B.R. 240, 243 (Bank. S.D.

Ohio, W.D., 1993) ("the conversion of the debtors' Chapter 7 case

to Chapter 13 did not cause the stay to be reimposed and that

conversion did not affect this court's earlier order granting

relief from stay"); Matter of Winslow, 39 B.R. 869, 871 (Bank. N.D.

Ga. 1984) ("An order which lifts the automatic stay returns the

parties to the legal relationships which existed before the stay

became operative"). Of course, the general rule is that "once a

trustee is in a bankruptcy case, the trustee, not the debtor or the

6
debtor's principal, has the capacity to represent the estate and to

sue and be sued. . . ." In Re Gulph Woods Corp., 116 B.R. 423, 428

(Bank. E.D. Pa. 1990). This principle, however, is not without

exceptions. See id. at 429-430. Plainly, its purpose is to allow

the trustee to collect and protect the estate and avoid unnecessary

estate expenses. Here, dismissing the appeal as moot could not

possibly subserve any of these purposes, and we note that the

trustee has never moved to intervene in this appeal or to have the

appeal dismissed.

In Smith v. State Farm Fire and Cas. Co., 633 F.2d 401 (5th

Cir. 1980), a fire insurance policyholder owning a life estate in

an insured building destroyed by fire successfully sued the

insurance company to recover on the policy. When the suit was

commenced, and at all times thereafter, this plaintiff was in

bankruptcy. However, the trustee in bankruptcy was not made a

party, and the insurance company, after verdict for the insured,

unsuccessfully moved to have the suit dismissed because the trustee

was not a party. The insurance company appealed the adverse

judgment, again urging that the suit should have been dismissed

because the trustee was not a party. We affirmed, stating:

"The absence of the trustee in no legal way affects the
according of complete relief to those already parties.
Neither is the trustee's ability to protect his interest
in the life estate significantly impaired. It is clear
from the record that the trustee was aware of this
litigation yet did not attempt to be made a party. He
instead secured an order of the bankruptcy court
requiring Gladys Smith to pay the trustee the value of
the life estate from any proceeds of this action." Id.

7
 at 405.5

See also Kelly v. Commercial Union Insurance Co., 709 F.2d 973, 978

(5th Cir. 1983).

The present appeal is analogous to Smith. The bankruptcy

court lifted the automatic stay and allowed Gasper to pursue his

appeal to conclusion in this Court; the Chapter 7 trustee has long

been aware of the appeal and has never sought to intervene nor

sought to have it dismissed; prosecution of the appeal is without

expense to the estate and can only benefit the estate; and any

relief on appeal which Gasper achieves will automatically inure to

the benefit of the estate, as well as indirectly to Gasper's

benefit (either by producing a surplus or by reducing the amount of

any debtSQsuch as that which is the subject of plaintiffs' pending

adversary proceedingSQfound nondischargeable).

Accordingly, we reject the suggestion of mootness. We turn

now to the merits.

MERITS

Facts and Proceedings Below

Gasper is a farm labor contractor. Farmers hire Gasper and

other contractors to employ, transport, supervise, and pay the farm

workers whom the contractors recruit.

Gasper recruited workers for the 1983-84 chile pepper harvest.

5
We also observed that the judgment made the life estate
award payable to the trustee, that the insurance company's
potential liability was limited to the sum specified in the
policy, and that "a letter from the bankruptcy trustee to the
district court, placed in the record by State Farm, . . .
indicates . . . [the trustee] would be satisfied by the amount
specified by the jury as the value of the life estate." Id.

8
Gasper had a "day haul operation" in which potential workers who

hoped to be hired that day would assemble at a pickup point. Each

worker was employed on a daily basis and would be rehired each day

that the worker arrived at the pickup point on time (provided there

was sufficient available work).

The workers furnished their own transportation from their

homes, usually in Juarez, Mexico, to El Paso, Texas, where Gasper

would meet them. The last bus from Juarez arrived in El Paso at

midnight. Initially, Gasper's bus would meet the workers in El

Paso between 1:00 A.M. and 2:00 A.M. and depart shortly thereafter.

Based on the workers' desire to avoid the dangers of El Paso

streets in the early morning, Gasper soon arranged for the bus to

arrive at the El Paso pickup point between 11:00 P.M. and midnight.

The bus remained parked until Gasper arrived and departed for the

fields between 1:00 A.M. and 1:30 A.M. A few workers would skip

the pickup point and provide their own transportation to the

fields.

Gasper was the workers' employer. He chose whom to hire, he

owned the buses, he set the pay rate, he determined which field the

workers picked, and he supervised the workers. Gasper owned two

buses and used one or two daily depending on how many workers he

needed. Gasper considered the workers hired if they were on his

bus when it left the recruitment site. Until then, the driver

could throw a work applicant off the bus and refuse to hire him or

her. The bus trip to the fields lasted two to two-and-a-half

hours. The bus would stop at a truck stop in Demming, New Mexico,

where the workers who had money could buy coffee and use the

9
restroom. This stop lasted between thirty minutes and an hour

daily. During the bus ride, usually at the Demming truck stop, the

workers were told which of the different fields they would harvest

that day. After arrival at a field, the workers waited about an

hour for the sun to rise before beginning work. The workers were

unable to use this wait time meaningfully for themselves because

the fields were isolated and they lacked transportation. They

normally picked only one field per day.

During the day, they received a token from Gasper or one of

his employees for each basket of peppers they picked. At the end

of the day, the workers waited two hours while Gasper counted the

tokens for each worker and computed their pay. During this time,

Gasper or an employee cashed a check from the farmer, which was

used to pay the workers in cash. The employees could not use this

time for themselves since they lacked transportation from the

fields. After this two hour wait, Gasper transported the workers

back to the drop-off point in El Paso. The trip home took two

hours, and the workers returned to El Paso between 5:00 P.M. and

7:00 P.M.

Gasper did not always pay his workers the minimum wage for the

hours they actually worked in the fields each day. Gasper never

paid the workers for the time spent traveling to work, nor for that

waiting at the job site. Gasper failed to keep the business

records required by the AWPA. In fact, Department of Labor records

reveal that Gasper was fined for inadequate recordkeeping in 1981

and for other Department of Labor violations in 1979, 1980, and

1981.

10
 Plaintiffs (the workers), a group of Gasper's regular workers,

filed a class action suit seeking the minimum wage for their travel

time, waiting time, and unpaid field-working time under the FLSA.

They also sought compensation for Gasper's violations of the AWPA.

29 U.S.C. § 1831. The district court, following a bench trial,

rendered judgment for the workers on all these claims and awarded

additional liquidated damages under the FLSA.6 Gasper appeals the

award of wages and liquidated damages for the travel and wait time.

He does not appeal the holding that he did not pay some of his

workers the minimum wage for time spent picking chile peppers or

the liquidated damages awarded respecting that time.

Discussion

We will address the compensability of the workers' travel and

waiting time separately, and then consider the issues of liquidated

damages and damages under the AWPA.

I. Travel Time

The workers spent at least four hours daily traveling to and

from work. They seek the minimum wage for this travel time.

Under the FLSA, 29 U.S.C. § 206, employers must pay their

employees the hourly minimum wage for time on the job. Under the

"Portal-to-Portal Act," 29 U.S.C. § 254, employers do not have to

pay the minimum wage to an employee for the following activities of

the employee:

"(1) walking, riding, or traveling to and from

6
Gasper failed to keep adequate pay records as required by
the AWPA, 29 U.S.C. 1831(c) (1988), so the court estimated the
damages due to each plaintiff under Belitz v. W.H. McLeod & Sons
Packing Co., 765 F.2d 1317, 1330-31 (5th Cir. 1985).

11
 the actual place of performance of the
principal activity or activities which such
employee is employed to perform, and

(2) activities which 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).

Thus, employees are entitled to compensation for travel time that

is a principal activity of the employee. The question for us is

whether the travel time of these farmworkers to and from the fields

is a compensable principal activity or a noncompensable preliminary

or postliminary activity.

This Court traditionally has construed the term "principal

activity" to include activities "performed as part of the regular

work of the employees in the ordinary course of business. . . .

[the] work is necessary to the business and is performed by the

employees, primarily for the benefit of the employer . . . ."

Dunlop v. City Electric, Inc., 527 F.2d 394, 401 (5th Cir. 1976)

(electricians' prework activities of preparing timesheets, supply

requests, loading and cleaning trucks are principal activity).

Ordinary home-to-work travel is clearly not compensable under

the Portal-to-Portal Act unless a contract or custom of

compensation exists between the employer and the employees. 29

U.S.C. § 254; 29 C.F.R. § 785.34-35, 790.8(f) (1990). "An employee

who travels from home before his regular workday and returns to his

home at the end of the workday is engaged in ordinary home-to-work

travel which is a normal incident of employment. This is true

12
whether he works at a fixed location or at different job sites.

Normal travel from home to work is not worktime." 29 C.F.R. §

785.35 (1990) (emphasis added). "[R]iding on buses between a town

and an outlying mine or factory where the employee is employed" is

a preliminary or postliminary activity. 29 C.F.R. § 790.7 (1990);

Sen. Rep. No. 48, 80th Cong., 1st Sess., at 48 (1947); Ralph v.

Tidewater Construction Corp., 361 F.2d 806, 808 (4th Cir.), cert.

denied, 87 S.Ct. 294 (1966) (riding fifteen minutes to an hour by

boat from shore to work is a preliminary noncompensable activity);

Dolan v. Project Construction Corp., 558 F.Supp. 1308, 1309-11 (D.

Colo. 1983) (thirty minute ride from main camp on employer buses

not compensable; intermittent receipt of work information during

bus ride did not make ride compensable). "Travel time at the start

or end of the workday . . . from home to work (or from the bridge

at the border to the fields) need not be counted as hours worked .

. . ." Wage & Hour Opinion Letter No. 1484 (Aug. 26, 1977), Lab.

L. Rep. (CCH) (Transfer Binder, June 1973-Sept. 1978) ¶ 31,133, at

42,800 (D.O.L. Opinion).

Travel that is an indispensable part of performing one's job

is a principal activity and is compensable. Crenshaw v. Quarles

Drilling Corp., 798 F. 2d 1345, 1359 (10th Cir. 1986) (travel time

in specially equipped employer truck compensable); Spencer v.

Auditor of Public Accounts, No. 90-5750 (6th Cir. 1991)

(unpublished) (travel between job sites compensable, but not travel

from home to different job sites on different days); Wirtz v.

Sherman Enterprises, Inc., 229 F.Supp. 746 (D. Md. 1964) (job site

to job site indispensable and compensable). A district court

13
opinion states:

"Where . . . an employee is required to report to a
designated meeting place . . . to receive instructions
before he proceeds to another workplace (such as the
jobsites . . .), the start of the workday is triggered at
the designated meeting place, and subsequent travel is
part of the day's work and must be counted as hours
worked for purposes of the FLSA, regardless of contract,
custom, or practice." Dole v. Enduro Plumbing, Inc.,
117 Lab. Cas. (CCH) ¶ 35,418 (C.D. Cal. 1990) (plumbers
paid for travel from check-in site at shop where they
collected and loaded a few tools and rode in company-
owned truck to job site).

"Where an employee is required to report at a meeting place to

receive instructions or to perform other work there, or to pick up

and to carry tools, the travel from the designated place to the

workplace is part of the day's work, and must be counted . . . ."

29 C.F.R. § 785.38 (1990) (emphasis added). Travel between sites

or from the last site to the office is compensable, but not travel

from the last site home. Id.

Several facts have persuaded us that the travel time here was

indisputably ordinary to-work or from-work travel and not

compensable. The workers rode Gasper's buses to work and back.

Unlike the plumbers in Dole v. Enduro Plumbing, 117 Lab. Cas. (CCH)

¶ 35,418, the workers here performed no work prior to or while

riding on Gasper's buses. They did not load tools or engage in

activities that prepared them or their equipment for picking chile

peppers before or while riding the buses. The workers were told on

the bus which field they would pick and what the pay rate would be

each day. Merely receiving this information is not enough

instruction from Gasper to render the time compensable. See 29

C.F.R. § 785.38 (1990); Dolan, 558 F.Supp. at 1309-11. The workers

14
were not required to use Gasper's buses to get to work in the

morning. They chose where they lived and how to get to and from

work. Not all of Gasper's field workers rode his buses. The fact

that the travel time was so long does not make it compensable under

the statute. See 29 C.F.R. § 790.7 (1990). That Gasper owned the

buses or that he considered workers "hired" if they were on the

buses when they left the pickup site does not matter under the

statute. See Sen. Rep. No. 48, 80th Cong., 1st Sess., at 48

(1947); Wirtz v. Flint Rig Co., 222 F.Supp. 707 (D. Mont. 1963)

(that employer owned bus does not matter). We note that there was

no travel between job sites after the workers began picking chile

peppers. The travel time was just an extended home-to-work-and-

back commute. We hold that the travel time here is a

noncompensable preliminary and postliminary activity based on the

Portal-to-Portal Act and related jurisprudence.

II. Wait Time

The workers urge that they are entitled to the minimum wage

for their morning and afternoon wait time. The standard under the

Portal-to-Portal Act for "wait time" is the same as for "travel

time." Wait time is compensable when it is part of a principal

activity of the employee, but not if it is a preliminary or

postliminary activity. See text of 29 U.S.C. § 254, supra.

The legislative history of the Portal-to-Portal Act and

several cases have addressed the issue of compensability of wait

time as a principal activity. Normal "[c]hecking in or out and

waiting in line to do so, changing clothes [for the employee's

convenience], washing up or showering, [and] waiting in line to

15
receive paychecks" is not a principal activity. S. Rep. No. 48,

80th Cong., 1st Sess. p. 47 (1947) (emphasis added).

This Court considers two wait time factors. First, waiting

time is compensable if the wait predominately benefits the

employer. Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1411 (5th

Cir. 1990). Waiting benefits the employer when it is requested or

required by the employer. Wirtz v. Sullivan, 326 F.2d 946, 948

(5th Cir. 1964). "Where an employee is required by his employer to

report to work at a specified time, and the `employee is there at

that hour ready and willing to work but' is unable to . . . for

some reason beyond his control, the employee is engaged to wait and

is entitled to be paid for the time spent waiting." Mireles, 899

F.2d at 1414; Halferty v. Pulse Drug Co., 864 F.2d 1185, 1189 (5th

Cir. 1989). See Sedano v. Mercado, 124 Lab. Cas. (CCH) ¶ 35,756

(D.N.M. 1992) ("Time spent . . . waiting in the fields for the

fields to dry . . ., for trailers to arrive, or for their employer

to prepare to begin the work day is predominately for the benefit

of the employer."); Fields v. Luther, 108 Lab. Cas. (CCH) ¶ 35,072,

at 45,666 (D. Md. 1988) (Time waiting in fields for dew to dry

compensable because workers are on duty); DOL Opinion Letter 1507,

1973-1978 [Transfer Binder] Lab. L. Rep. (CCH) ¶ 31,172, at 42,876

(Feb. 9, 1978). Second, "[w]hether idle time is compensable

depends on whether employees are able to effectively use the time

for their own purposes, not on the 'reasonableness' [in duration]

of the wait." Mireles, 899 F.2d at 1413; Halferty, 864 F.2d at

1189.

Also, employees requesting schedule changes for their own

16
convenience cannot demand payment for wait time resulting from this

accommodation. Blum v. Great Lakes Carbon Corp., 418 F.2d 283,

287-88 (5th Cir.), cert. denied, 90 S.Ct. 1361 (1969) (citing

Jackson v. Air Reduction Co., 402 F.2d 521, 523 (6th Cir. 1968))

(waiting in employee's interest noncompensable). After work wait

time may be compensable. See D.O.L. Opinion Letter WH-533 (Dec.

16, 1991) (wait "purely incidental to postliminary transportation"

home is not compensable, wait for instructions or while other

workers finish for group transportation home is compensable).

Gasper urges that none of the wait time is compensable because

no work of consequence was performed during the wait period. He

argues that the workday began when the workers began picking chiles

and ended when the chile picking ended.

The workers argue that the morning wait time is compensable as

being more than an incident of transportation, and that they were

"on duty" during this period. See Fields, 108 Lab. Cas. (CCH) ¶

35,072, at 45,666. The workers argue that the afternoon time

waiting to get paid was compensable because the wait served Gasper,

not the workers. They contend that Gasper devised his own daily

pay system as opposed to a weekly or get-paid-the-next-day system,

that Gasper did not have to wait until the end of the day to cash

a check from the farmer, and that he did not have to pay his

employees daily or pay them in cash. They assert that Gasper's

failure to keep required business records delayed payment, and that

the system Gasper chose to use was impractical, created burdensome

delays, and served Gasper. The workers could not use the waiting

time for their own purposes because the fields were isolated and

17
they lacked transportation. See D.O.L. Opinion Letter WH-533 (Dec.

16, 1991). Because of Gasper's asserted inefficiencies, the

employees argue that the afternoon waiting was performed at "the

employer's behest" and should be compensable. See Dunlop, 527 F.2d

at 401; Sedano, 124 Lab. Cas. (CCH) ¶ 35,756.

The district court did not articulate why the wait time should

be compensable as a principal activity because it viewed all time

as compensable after travel began. We conclude that if the wait

time in the morning was the result of the workers' request for a

schedule changeSQto have the bus pick them up earlier to avoid the

dangers of nights in El PasoSQthen the morning wait time is not

compensable as it benefits the workers, not Gasper.7 On the other

hand, if the workers were on duty in the morning so as to get an

early start for their employer's benefit (e.g., to assure that work

would start promptly at sunrise) or because of Gasper's scheduling,

the morning wait time is a compensable principal activity. See

Fields, 108 Lab. Cas. (CCH) ¶ 35,072, at 45,666. That no work was

done during the wait is not necessarily controlling here. Because

the district court did not express findings about the purpose of

the morning wait, we cannot decide whether the time is compensable.

We therefore remand for additional findings concerning the purpose

7
Although Gasper arranged for the bus to arrive in El Paso
two hours early to accommodate the workers, it is unclear whether
the bus departed El Paso any earlier. Findings on this issue
should be made on remand. If the bus left El Paso at the same
time as before the schedule change and arrived in the fields at
the same time, then it is probable that the morning wait at the
fields was predominately for the benefit of Gasper. There is no
doubt that any wait time on the bus prior to departing El Paso
served the workers and not Gasper because of this scheduling
change.

18
of the morning wait. See Halferty v. Pulse Drug Co., 821 F.2d 261,

269-271 (5th Cir. 1987) (remand for findings concerning purpose of

wait time).

We also remand for findings concerning the purpose of the

afternoon wait period, whether the wait served Gasper as a result

of his burdensome pay system, and whether the workers could

effectively use this time for their own purposes. See Sedano, 124

Lab. Cas. (CCH) ¶ 35,756 ("Time spent waiting for Defendant Jara to

complete his payroll records in the afternoon is predominantly for

the benefit of the employer. Because of the isolation of the chile

fields and the need to wait for their turn to give . . . Jara

payroll information and their tokens, workers cannot use this time

effectively for their own benefit.").8 For example, if the

afternoon wait resulted from Gasper's decision to have his

employees wait while he cashed the farmer's check, then the wait

benefits Gasper and is compensable. Gasper owes wages to his

employees whether or not the farmer pays Gasper. If, on the other

hand, Gasper's pay system is reasonably efficient, but the wait

results from the number of employees involved, then the wait is not

compensable. In light of the conflicting testimony in the record,

this issue should be resolved by the district court on remand. See

D.O.L. Opinion Letter WH-533 (Dec. 16, 1991). The Sedano case

8
That no work was done during or after the afternoon wait
does not of itself determine whether this time is compensable.
We recognize that the Portal-to-Portal Act legislative history
indicates that waiting in line to receive paychecks is ordinarily
not compensable, but we believe that this statement did not
necessarily speak to a wait of the present nature under these
circumstances. S. Rep. No. 48, 80th Cong., 1st Sess. p. 47
(1947).

19
provides an example of the type of fact findings needed to support

an FLSA claim respecting wait time.

Finally, Gasper argues that no compensation is owed because

there was an implied agreement of nonpayment. Implied agreements

of noncompensability may be found where employees continue to work

after they are on notice of an employer policy of noncompensation.

Rousseau v. Teledyne Movibile Offshore, Inc., 805 F.2d 1245, 1248

(5th Cir. 1986), reh'g denied, 812 F.2d 971, and cert. denied, 108

S.Ct. 95 (1987). We reject Gasper's contention. The workers here

were hired and rehired each day and no continuing agreement was

shown. The district court's failure to find such an agreement was

not clearly erroneous.

III. Liquidated Damages

Gasper claims that liquidated damages were improperly awarded

to the workers because he did not violate the FLSA and because he

acted in good faith. He does not challenge the liquidated damages

for the underpayment of minimum wages for the time spent picking

the crops; and, in any event, we discern no error in that respect.

Under 29 U.S.C. § 216(b) (1988) employers who violate the

FLSA's minimum wage provisions "shall be liable to the . . .

employees affected in the amount of their unpaid minimum wages . .

. and in an additional equal amount as liquidated damages." A

judge may reduce the amount of liquidated damages only "if the

employer shows . . . that the act or omission giving rise to such

action was in good faith and that he had reasonable grounds for

believing that his act or omission was not a violation of the

[FLSA]." 29 U.S.C. § 260 (emphasis added); Mireles v. Frio Foods,

20
Inc, 899 F.2d at 1415. The employer has the substantial burden of

proving its good faith. Id. The district court's findings should

only be reversed if they are clearly erroneous. Id.

The district court held Gasper liable for the maximum

allowable amount of liquidated damages. The court did not explain

why Gasper failed to prove that he acted in good faith in not

paying the minimum wage for travel and wait time. Clearly no

liquidated damages may be awarded respecting the travel time, as it

is not compensable. If the district court on remand finds that

some or all of the wait time is compensable, the court should make

additional findings on whether Gasper proved that he acted in good

faith in failing to pay his employees for that time.9

IV. Damages Under AWPA

The district court held that its damage award compensated the

nine plaintiffs for Gasper's FLSA violations and his AWPA

violations of failing to keep proper business records. The court

computed the damage award to these nine plaintiffs as if only the

9
Gasper argues that his good faith was demonstrated by the fact
that he openly refused to pay his workers for their travel and
wait time and because local industry custom regarded travel and
wait time as noncompensable. Gasper's open refusal to pay is,
standing alone, of at best limited relevance to whether his
compensation scheme was grounded in a good faith attempt to
comply with the FLSA. Good faith involves showing that Gasper
thought he was paying his workers in compliance with the FLSA's
minimum wage rule. Gasper's reliance on industry custom as proof
of good faith is of greater relevance, but is not necessarily
controlling under this record. In Kimball v. Goodyear Tire &
Rubber Co., 504 F.Supp. 544, 549 (E.D. Tex. 1980), the court said
that acting on advice of counsel who explored industry custom
showed good faith. Here, at most, Gasper stated that he attended
Department of Labor information meetings for farm labor
contractors.

21
FLSA had been violated.10 Gasper did not keep the records required

of farm labor contractors under the AWPA. 29 U.S.C. § 1831. The

Department of Labor also fined Gasper in 1981 for inadequate

business records. Had the nine plaintiffs been awarded less

relief under the FLSA, the district court may have awarded them

more under the AWPA. If that be the case, then, since these

plaintiffs' damages under the FLSA will be reduced because their

travel time is not compensable, and may be further reduced if some

or all of their wait time is not compensable, the district court

may want to allow these nine plaintiffs a damage award for Gasper's

violations of the AWPA.11 Accordingly, we authorize the district

court to reconsider its zero AWPA award to these nine plaintiffs

(but not its AWPA award to the other class members), if and to the

extent the district court determines that a larger AWPA award would

properly have been made had these nine plaintiffs achieved an FLSA

award of the size ultimately determined on remand. The total

judgment on remand, however, may not exceed that previously

10
In computing damages, the district court said, "the nine
[named] plaintiffs awarded unpaid wages are adequately
compensated [by the FLSA award] for both violations of the FLSA
and the AWPA." The other plaintiffs who were not compensated for
violations of the FLSA were each awarded $50 of damages under the
AWPA. This method of computing damages is permissible, as
compensation for violation of one of these statutes may serve to
compensate plaintiffs for violations of the other. Belitz v.
W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1333 (5th Cir.
1985).
11
In class actions such as this, maximum damages for
intentional violations of section 1831 are $500 per plaintiff up
to a total of $500,000. 29 U.S.C. § 1854(c) (1988). See
Saintida v. Tyre, 783 F.Supp. 1368, 1375 (S.D. Fla. 1992) ($300
per plaintiff for section 1831 violation); Alvarez v. Joan of
Arc, Inc., 658 F.2d 1217 (7th Cir. 1981) ($100 each for 300
plaintiffs under section 1831).

22
imposed.

Conclusion

The district court's award of actual and liquidated damages

for travel time is reversed, and judgment on such claims shall be

rendered for Gasper. The award respecting time actually spent

working and for liquidated damages in respect thereto is affirmed.

The balance of the award is vacated, and the cause is remanded for

further findings concerning the compensability of the morning and

afternoon wait times, findings concerning Gasper's good faith in

respect to any such wait time found compensable, and for

recomputation of the ultimate award in light of such findings, this

opinion, and the AWPA.

AFFIRMED in part; REVERSED in part;
VACATED in part; and REMANDED

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