Winebrake & Santillo recently filed a brief with the Third Circuit Court of Appeals arguing that it should affirm the summary judgment decision on behalf of delivery drivers for Eastern Armored Services, Inc in New Jersey. The district court ruled that the named plaintiff Ashley McMaster was not exempt under the Motor Carrier Act Exemption to the Fair Labor Standards Act and entitled to overtime premium pay because she drove vehicles with gross vehicle weight ratings both above and below 10,000 pounds. See McMaster v. Eastern Armored Servs., Inc., 2013 U.S. Dist. LEXIS 42721 (D.N.J. Mar. 26, 2013). Oral arguments are currently scheduled for October 23, 2014. A copy of the brief is below:
I. STATEMENT OF ISSUE PRESENTED FOR REVIEW
Did the district court correctly interpret Section 306(c)(2) of the SAFETEA-LU Technical Corrections Act of 2008 (“TCA”) to find that Plaintiff/Appellee Ashley McMaster (“McMaster”) did not fit within the Motor Carrier Exemption to the Fair Labor Standards Act’s overtime pay mandate.
II. STATEMENT OF CASE
A. Relevant Facts
Defendant/Appellant Eastern Armored Services, Inc. (“Eastern”) provides “armored courier transport, same day credit, cash/coin processing, vaulting services, [and] customer security consulting” services in New Jersey, Pennsylvania, New York City, and Delaware. See Joint Appendix (“JA”) at 57A at ¶ 1. Eastern employs individuals who are paid on an hourly basis and perform Driver/Guard tasks. Id. at ¶ 2. These individuals are referred to as “Driver/Guards.”
From approximately March 2010 until approximately June 2011, McMaster worked for Eastern as a Driver/Guard employee. JA at 58A at ¶ 3. McMaster was assigned a single route each day that she either drove alone or with a partner. Id. at ¶¶ 4-6. For each assigned route there was a corresponding vehicle to perform the pick-up and deliveries associated with that route. Id.
It is undisputed that some of the vehicles that McMaster was assigned had a gross vehicle weight (“GVW”) of 10,000 pounds or less. JA at 58A-59A at ¶¶ 7-13; see also id. at 87A; 89A-92A. In fact, according to Eastern’s own analysis, 49% of the days McMaster worked for Eastern she was not assigned to a vehicle with a GVW of over 10,000 pounds. Id. at 59A at ¶¶ 12-13; see also id. at 87A, 89A.
It is also undisputed that McMaster frequently worked over 40 hours per week. JA at 59A-60A at ¶ 14. Eastern does deny that on those occasions in which she worked over 40 hours in a single workweek, she was not paid overtime premium pay equal to 150% of her regular hourly rate. Id. at 60A at ¶¶ 15-16. Instead, McMaster only received “straight time” or her regular hourly rate without any overtime premium pay. Id. at ¶ 17.
B. Procedural History
On August 26, 2011, McMaster filed a Complaint alleging that Eastern violated the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. §§ 201, et seq. by failing to pay her and other similarly situated Driver/Guards overtime premium pay. See generally JA at 35A-41A. Eastern countered that McMaster and other Driver/Guard employees were not entitled to overtime premium compensation because they were exempt under the FLSA’s Motor Carrier Exemption 29 U.S.C. § 213(b)(1) (“MCA Exemption”). Id. at 44A at First Affirmative Defense.
On January 30, 2012, the parties agreed to conditional certification. See JA at 47A-53A. At the close of the consent period, a total of twenty-five (25) current and former Driver/Guards had joined the lawsuit pursuant to 29 U.S.C. §216(b). Id. at 29A-31A. The parties then conducted some initial discovery.
During a June 27, 2012 conference with Magistrate Judge Tonianne J. Bongiovanni, the parties agreed to use McMaster’s individual claim as a “test case” because the legal and factual issues surrounding her claim are likely to be applicable to the claims of the other Appellees. See JA at 54A. In August 2012, the parties cross-moved for summary judgment concerning whether McMaster was covered by the MCA Exemption. Id. at 55A-213A. The briefing on the cross-motions for summary judgment closed in November 2012. Id. at 32A-33A.
C. The District Court’s Summary Judgment Opinion
On March 26, 2013, Judge Michael A. Shipp issued an order granting McMaster’s summary judgment motion and finding that she “is entitled to be paid overtime wages pursuant to the requirements of the Fair Labor Standards Act for all hours she works over forty (40) hours in a given workweek.” See JA at 19A. The district court simultaneously denied Eastern’s summary judgment motion. Id.
In its supporting memorandum opinion, the district court observed that the parties' cross-motions for summary judgment “primarily concern statutory interpretation” of the SAFETEA-LU Technical Corrections Act of 2008 Pub. L. No. 110-244, 122 Stat. 1572, 1620 (“TCA”), “which made significant alterations to the MCA Exemption from the FLSA.” See JA at 22A-23A. Included in these alterations was the expansion of the definition of “covered employees” to include “those individuals whose work, in whole or in part [affects] the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate or foreign commerce.’” Id. at 23A (TCA at Section 306(c)(2)). Thus, the district court reasoned: “If it is determined that [McMaster] worked in part with non-commercial vehicles [weighing less than 10,000 pounds], she is a ‘covered employee and is entitled to FLSA overtime payments notwithstanding the MCA Exemption.” Id. (emphasis supplied).
Before addressing the merits of the party's arguments, the district court reiterated that “[i]t is well-settled that exemptions from the FLSA are construed narrowly, against the employer” and that a “party seeking to invoke the MCA Exemption ‘carries the burden of proving plainly and unmistakably that it is entitled to the exemption.’” See JA at 23A.
After outlining the case law proffered by each party, the district court relied on the plain meaning of the TCA’s unambiguous language and held McMaster was a “covered employee” entitled to overtime premium compensation because her employment “in part” concerned vehicles weighing less than 10,000 pounds:
As set forth by the Parties, it is undisputed that 49% of the days [McMaster] worked for [Eastern], she was assigned to a non-commercial vehicle. The [TCA] clearly defines a covered employee to include individuals “whose work, in whole or in part affect[s] the safety of operation of” non-commercial vehicles. [TCA] § 306(c)(2). It is embedded in the very definition of “covered employees” that an employee’s work needs only involve the operation of non-commercial vehicles, in part, to be entitled to overtime.
See JA at 25A-26A (emphasis supplied). The district court also held that it did not need to determine if McMaster’s work on vehicles weighing less than 10,000 pounds qualified as “de minimis” because “although ‘de minimis’ does not lend itself to a simple quantitative definition, 49% is clearly more than de minimis.” Id. at 26A.
Judge Shipp then addressed Eastern’s secondary argument that if McMaster fit within the MCA Exemption, she “should only be paid for overtime for half of the hours that she works above the normal forty-hour work week.” See JA at 26A. The district court utilized the following example to articulate Eastern’s argument: “if [McMaster] worked 44 hours in a week, she would only be entitled to 2 hours at the overtime rate because she only worked approximately half of her time in a vehicle which qualifies her as a covered employee under the FLSA.” Id. The district court rejected this argument, stating that Eastern’s reading of the TCA was “too rigid and does not properly reflect Congress’ intent.” Id. The district court further observed:
The [TCA] states that a worker qualifies as a “covered employee” if she works in whole or in part on non-commercial vehicles. There is nothing in the Act that indicates that a “covered employee” is only covered by the FLSA for the portion of the time that she works on non-commercial vehicles. This reading is required in light of the fact that exceptions from the FLSA must be narrowly construed against the employer. As such, [McMaster] is entitled to overtime for all time worked over forty hours in a given workweek.
Id. at 26A-27A.
III. SUMMARY OF ARGUMENT
The district court relied on the plain and unambiguous language of the TCA and interpreted the MCA Exemption narrowly against Eastern to hold that McMaster was entitled to the FLSA’s overtime premium protection because her employment at Eastern concerned the operation of vehicles weighing less than 10,000 pounds “in part.” For these reasons, the Court should affirm the district court’s findings.
The district court’s holding did not break new ground. On the contrary, the preponderance of courts examining the TCA has recognized that it drastically altered the contours of the MCA Exemption.
Eastern attempts to avoid the plain and unambiguous language of the TCA and its expansion of the FLSA’s protections by arguing that pre-TCA case law should apply and exempt any individual whose work on vehicles weighing more than 10,000 pounds is more than de minimis. This argument should be rejected because it not only violates basic rules of statutory construction but also this Court’s instruction that the MCA Exemption is narrowly construed against the employer.
In the alternative, Eastern argues that if the TCA entitles McMaster to overtime pay, it should be limited to only those weeks in which she worked on vehicles weighing less than 10,000 pounds more than a de minimis amount. This argument should be rejected because it is inconsistent with both the express language of the TCA as well as the remedial nature of the FLSA. It would also create administrative difficulties that would be extremely burdensome for employers.
A. The MCA Exemption – Like All FLSA Exemptions – Must Be Narrowly Construed Against the Employer
Section 7 of the FLSA entitles employees to overtime premium pay equaling one and one-half times their regular pay rate for hours worked over 40 per week. See 29 U.S.C. § 207(a)(1). In Parker v. NutriSystem, Inc., 620 F.3d 274 (3d Cir. 2010), this Court described the public policy underlying the overtime pay mandate:
Congress enacted the FLSA “to protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.’” Barrentine v. Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981) (quoting 29 U.S.C. § 202(a)). The Act was designed “to ensure that each employee covered by the Act would receive ‘[a] fair day’s pay for a fair day’s work and would be protected from ‘the evil of overwork as well as underpay.’” Id. (quoting 81 Cong. Rec. 4983 (1937) (message of President Roosevelt)).
The legislative history of the overtime compensation provisions of the FLSA reveals a threefold purpose underlying them: (1) to prevent workers who, perhaps out of desperation, are willing to work abnormally long hours from taking jobs away from workers who prefer shorter hours, including union members; (2) to spread available work among a larger number of workers and thereby reduce unemployment; and (3) to compensate overtime workers for the increased risk of workplace accidents they might face from exhaustion or overexertion. Mechmet [v. Four Seasons Hotels, Ltd.], 825 F.2d at 1175-76 (7th Cir. 1987) (citing H.R. Rep. No. 1452, 75th Cong., 1st Sess. (1937); S. Rep. No. 884, 75th Cong., 1st Sess. (1937)).
Id. at 279; see alsoA.H. Phillips v. Walling, 324 U.S. 490, 493, 65 S. Ct. 807; 89 L. Ed. 1095 (1945); Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981). The Supreme Court has held that this “broad remedial goal of the [FLSA] should be enforced to the full extent of its terms.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173, 110 S. Ct. 482; 107 L. Ed. 2d 480 (1989).
Consistent with the above principles, the MCA Exemption – like all FLSA exemptions – must be “construed narrowly against the employer,” and the employer “bears the burden of proving ‘plainly and unmistakably that the drivers qualify for the MCA [E]xemption.” Packard v. Pittsburgh Transp. Co., 418 F.3d 246, 250 (3d Cir. 2005) (citing Friedrich v. U.S. Computer Servs., 974 F.2d 409, 412 (3d Cir. 1992)) (emphasis supplied); accord Pignataro v. Port Auth. of New York and New Jersey, 593 F.3d 265, 268 (3d Cir. 2010); Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008); Davis v. Mountaire Farms, Inc., 453 F.3d 554, 556 (3d Cir. 2006).
B. The MCA Exemption and Recent Legislative Changes
The MCA Exemption excludes from the FLSA’s overtime pay mandate “any employee with respect to whom the Secretary of Transportation has the power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of title 49.” 29 U.S.C. § 213(b)(1). Specifically, Congress provided for the Secretary of Transportation (or “DoT”) to “prescribe requirements for qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier,” 49 U.S.C. § 31502(b), if it provides interstate transportation of property or passengers, id. at § 13501(1).
1. The 2005 Change in the Definition of “Motor Carrier”
Prior to August 2005, a “motor carrier” was defined as a “person providing motor vehicle  transportation for compensation.” 49 U.S.C. § 13102(12) (2000). However, on August 10, 2005, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. No. 109-59, § 4142(a), 119 Stat. 114, 1747 (“SAFETEA-LU”) was enacted.
As part of this legislation, SAFTEA-LU changed the definition of a “motor carrier” in the MCA to “a person providing commercial motor vehicle (as defined in [49 U.S.C. §] 31132) transportation.” 49 U.S.C. § 13102(14) (2005) (emphasis supplied). The term “commercial motor vehicle” was defined as:
a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle — (A) has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater; (B) is designed or used to transport more than 8 passengers (including the driver) for compensation; (C) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or (D) is used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of this title and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 5103.
49 U.S.C. § 31132(1) (emphasis supplied). By replacing the term “motor vehicle” with “commercial motor vehicle”:
Those who did not use commercial motor vehicles were no longer considered motor carriers. Consequently, for those persons or entities who did not operate commercial motor vehicles, the Motor Carrier Act exemption would not apply because the Secretary of Transportation no longer had regulatory authority. These carriers were now within the Department of Labor’s jurisdiction and employers could be required to provide overtime compensation.
Mayan v. Rydbom Express, Inc., 07-cv-2658, 2009 U.S. Dist. LEXIS 90525, *12-13 (E.D. Pa. Sept. 30, 2009); see also Bedoya v. Aventura Limousine & Transp. Serv., 11-cv-24432, 2012 U.S. Dist. LEXIS 128826, *7-8 (S.D. Fla. Sept. 11, 2012) (“Thus, beginning in 2005, a motor carrier was exempt from having to pay its employees overtime only if the vehicles the motor carrier owned: ‘(1) traveled in interstate commerce; and (2) weighed over 10,001 pounds [or] were designed to transport more than 8 passengers including the driver. This represented a fairly significant change, as ‘employees of motor carriers . . . historically ha[d] not been entitled to overtime compensation.’”) (internal citations omitted).
2. The MCA After the SAFETEA-LU Technical Corrections Act of 2008
On June 6, 2008, Congress enacted the SAFETEA-LU Technical Corrections Act of 2008, Pub. L. No. 110-244, 122 Stat. 1572, 1620.  For purposes of this appeal, the TCA made two notable alterations to SAFETEA-LU.
First, Section 305(c) of the TCA (entitled “Definitions Relating to Motor Carriers”), eliminated the SAFETEA-LU’s definition of “commercial motor carrier” and reinserted the prior definition of “motor carrier.” Id.; see also JA at 142A-143A. This change “expanded the scope of the [DoT]’s authority to entities that operated any kind of vehicle, see 49 U.S.C. § 13102(16), not merely entities that operated commercial motor vehicles.” Allen v. Coil Tubing Servs., L.L.C., 846 F. Supp. 2d 678, 704 (S.D. Tex. 2012) (emphasis supplied).
Second, Section 306 of the TCA (entitled “Applicability of the Fair Labor Standards Act Requirement and Limitation on Liability”) addressed the scope of the MCA Exemption to the FLSA’s overtime premium mandate. Id.; see also JA at 143A-144A. Section 306(a) provides that: “Beginning on the date of enactment of this Act, section 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 207) shall apply to a covered employee notwithstanding [the MCA Exemption].” Id. (emphasis supplied). Section 306(c) defines a “covered employee” as follows:
COVERED EMPLOYEE DEFINED. – In this section, the term “covered employee” means an individual –
(1) who is employed by a motor carrier or motor private carrier (as such terms are defined by section 13102 of title 49, United States Code, as amended by section 305);
(2) whose work, in whole or in part, is defined –
(A) as that of a driver, driver’s helper, loader, or mechanic; and
(B) as affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate or foreign commerce, except vehicles –
(i) designed or used to transport more than 8 passengers (including the driver) for compensation;
(ii) designed or used to transport more than 15 passengers (including the driver) and not used to transport passengers for compensation; or
(iii) used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of title 49, United States Code, and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section 5103 of title 49, United States Code; and
(3) who performs duties on motor vehicles weighing 10,000 pounds or less.
Id. (emphasis added); see also JA at 144.
As the Southern District of Texas observed in Allen v. Coil Tubing Servs., L.L.C.:
This change thus narrowed the range of employees who were covered by the MCA Exemption. By this provision, Congress broke with its legislative tradition pursuant to which expansion of the [DoT]’s jurisdiction concomitantly narrowed the reach of the DOL’s authority and thus the applicability of FLSA overtime provisions. Notwithstanding the MCA Exemption, under the TCA, the FLSA’s overtime provisions now apply to any ‘covered employee as defined in section 306. In substance, under the TCA, an employee of a motor carrier or motor private carrier who works with ‘non-commercial motor vehicles’ defined as vehicles weighing 10,000 pounds or less may now be entitled to overtime compensation.
846 F. Supp. 2d at 692-93 (internal citations omitted); see also O’Brien v. Lifestyle Transp., Inc., 956 F. Supp. 2d 300, 305 (D. Mass. 2013) (“Thus, even if subject to the jurisdiction of the Secretary of Transportation, an employer may still be obligated to pay its employees overtime if the employees meet the definition of a covered employee. And only those employees who operate vehicles of 10,000 pounds or less are ‘covered employees.’”); Vanzzini v. Action Meat Distribs., 11-cv-4173, 2014 U.S. Dist. LEXIS 13781, *20 (S.D. Tex. Jan. 31, 2014) (“[T]he TCA both restored the scope of the Secretary of Transportation’s regulatory jurisdiction to what it was prior to the enactment of SAFETEA-LU, and simultaneously narrowed the scope of the MCA [E]xemption.”).
C. The District Court Correctly Relied on the Unambiguous Language of the TCA to Interpret the Scope of the MCA Exemption
As discussed, Section 306 of the TCA made significant alterations to the MCA Exemption in June 2008  by limiting those individuals who are excluded from the FLSA’s overtime premium compensation mandate while still retaining the DoT’s jurisdiction over such employees. Specifically, the definition of “covered employees” entitled to FLSA overtime payments was expanded to include those individuals “whose work, in whole or in part, is defined as affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate or foreign commerce.” See TCA in Section 306(c) (emphasis added).
Congress’s intention to extend the overtime premium compensation requirement to those individuals whose employment concerns 10,001 pounds or less vehicles during at least part of their employment is clear based on the plain and unambiguous language of the TCA. As this Court has repeatedly recognized:
The role of the courts in interpreting a statute is to give effect to Congress’s intent. Because it is presumed that Congress expresses its intent through the ordinary meaning of its language, every exercise of statutory interpretation begins with the plain language of the statute itself. Where the statutory language is plain and unambiguous, further inquiry is not required, except in the extraordinary case where a literal reading of the language produces an absurd result. Moreover, a court may depart from the plain language of a statute only by an extraordinary showing of a contrary congressional intent in the legislative history. In interpreting a statute, courts should endeavor to give meaning to every word that Congress used and therefore should avoid an interpretation that renders an element of the language superfluous.
Idahoan Fresh v. Advantage Produce, 157 F.3d 197, 202 (3d Cir. 1998) (internal quotations and citations omitted); see alsoParker, 620 F.3d at 277-78; Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001).
As discussed on pages 3-5 supra, the district court recognized that the TCA’s insertion of the phrase “in part” represented a significant legislative change to the parameters of the MCA Exemption because it required that employees’ work only involve the operation of vehicles weighing less than 10,001 pounds during a portion of their employment to be entitled to the FLSA’s overtime protections. The district court relied on not only the plain meaning of “in part” to reach this conclusion, but also this Court’s instruction that the MCA Exemption is narrowly construed against the employer.
Furthermore, the district court’s application of the TCA’s “in whole or in part” language to McMaster’s employment is consistent with our Supreme Court’s interpretation of identical language in the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et. seq. See CSX Transportation, Inc. v. McBride, _ U.S. _, 131 S. Ct. 2630, 180 L. Ed. 2d 637 (2011). CSX Transportation is concerned with the appropriate causation jury charge for cases arising under § 51 of FELA, which “renders railroads liable for employees’ injuries or deaths ‘resulting in whole or in part from [carrier] negligence.’” Id. at 2634; see also 45 U.S.C. § 51 (“Every common carrier by railroad shall be liable in damages to any person suffering an injury while he is employed by such carrier . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier . . . .”).
The Supreme Court held that FELA’s “in part” phrase should be interpreted in accordance with the language Congress expressly utilized and include conduct “‘no matter how small.’” CSX Transportation, 131 S. Ct. at 2644; see also id. at 2634 (“The charge proper in FELA cases, we hold, simply tracks the language Congress employed, informing juries that a defendant railroad caused or contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in bringing about the injury.”) (emphasis supplied). In reaching this conclusion, the CSX Transportation Court relied on FELA’s “‘humanitarian’” and “‘remedial goal[s],’” id. at 2636, which mimics the objectives of the FLSA, see pages 7-8, supra.
D. Federal Courts Across the Country Have Similarly Relied on the Plain Meaning of “In Part” to Recognize the Expansion of the FLSA’s Overtime Protections through the TCA
Several courts have agreed that the TCA limited the MCA Exemption and provided the FLSA’s overtime protections to individuals who worked on vehicles weighing both more and less than 10,000 pounds. These opinions include:
- Allen v. Coil Tubing Services, L.L.C., 846 F. Supp. 2d 678, 705 (S.D. Tex. 2012) (“To be entitled to overtime pay, an employee must perform some meaningful work for more than an insubstantial time with vehicles weighing 10,000 pounds or less.”) (emphasis supplied);
- Garcia v. Western Waste Services, Inc., 969 F. Supp. 2d 1252 (D. Idaho. 2013) (“The TCA specifically states that a mechanic who works on small vehicles, ‘in whole or in part,’ is excepted from the MCA [E]xemption. It logically follows that any mechanic whose work on small vehicles is more than de minimis fits under the TCA exception.”);
- O’Brien v. Lifestyle Transp., Inc., 956 F. Supp. 2d 300, 305 (D. Mass. 2013) (“In sum, covered employees are entitled to overtime, regardless of the MCA [E]xemption. The test is clear: if an employee works as a driver of motor vehicles that weigh less than 10,000 pounds in the provision of interstate transportation and is employed by a motor carrier, that employee is entitled to overtime pay under the FLSA.”);
- Vanzzini v. Action Meat Distribs., 11-cv-4173, 2014 U.S. Dist. LEXIS 13781, *25-27 (S.D. Tex. Jan. 31, 2014) (denying an employer’s summary judgment motion because a plaintiff “may have been given the assignment to complete a business-related task” using a vehicle weighing less than 10,000 pounds) (emphasis supplied);
- Botero v. Commonwealth Limousine Serv., 12-cv-10428, 2013 U.S. Dist. LEXIS 104947, *36 (D. Mass. Apr. 12, 2013) (“the TCA expressly recognized that covered employees would receive compensation under the FLSA even though they were under the jurisdiction of the [DoT]. Moreover, the statutory language notes that there is overtime coverage if the employee’s work “in whole or in part” is on vehicles that weigh less than 10,000 pounds.”);
- Westberry v. William Joule Marine Transp., Inc., 12-cv-486, 2013 U.S. Dist. LEXIS 24882, *10 (M.D. Fla. Feb. 22, 2013) (“[A]lthough Plaintiffs as escort drivers affected the safety of the operation of the 18-wheeler semi-trucks, i.e., motor vehicles weighing 10,001 pounds or more, Plaintiffs also affected the safety of the operation of the vehicles they were driving and those vehicles undisputably weighed 10,000 pounds or less. Thus, Plaintiffs have covered employees because their work, at least in part, was that of a driver affecting the safety of the operation of a vehicle weighing 10,000 pounds or less in transportation on public highways in interstate or foreign commerce, and who performed duties on that vehicle.”);
- Hernandez v. Alpine Logistics, LLC, 08-cv-6254, 2011 U.S. Dist. LEXIS 96708, *14, *17-18 (W.D.N.Y. Aug. 29, 2011) (“Congress determined that even if the [MCA] Exemption applied to certain drivers, those drivers would still nevertheless be entitled to overtime compensation if they qualified as ‘covered employees’” because “Section 306, clearly and unmistakably, provides that notwithstanding the existence of the [MCA] Exemption, employees who work on exclusively or in part on vehicles weighing less than 10,000 pounds are entitled to overtime compensation.”);
- Mayan v. Rydbom Express, Inc., 07-cv-2658, 2009 U.S. Dist. LEXIS 90525, *31 (E.D. Pa. Sept. 30, 2009) (holding that “Section 306(c) [of the TCA] clearly states that the employee’s work needs only ‘in whole or in part affect the safety of operation of vehicles weighing 10,000 pounds or less. . . . In short, the employees must simply perform some work on such vehicles” to be entitled to overtime pay).
Several of these courts reached this conclusion regarding the post-TCA claims even though the employees at issue could have been asked to operate vehicles weighing more than 10,000 at any time as part of their employment. See, e.g., Hernandez, 08-cv-6254, 2011 U.S. Dist. LEXIS 96708, *4 (“Under the terms of their employment, any of the drivers could be required to drive any one of the vehicles regardless of its weight.”); Mayan, 07-cv-2658, 2009 U.S. Dist. LEXIS 90525, at *3 (“A driver might drive a vehicle weighing more than 10,000 pounds on one day and then a vehicle weighing less than 10,000 pounds on the next day. Consequently, all drivers were trained to operate any of the vehicles in the fleet.”).
E. No Other Circuit Court Has Addressed the Applicability of the TCA’s Amendments to the MCA Exemption to Drivers Whose Work Concerns Vehicles Weighing Both More and Less than 10,000 Pounds
In its brief, Eastern states that “[t]hree different United States Circuit Courts have held drivers of mixed fleets, that is, those working on both commercial and non-commercial vehicles are exempt from overtime under the MCA if the exempt work is more than de minimis.” See Eastern Brief at 16 (emphasis supplied and citing to Collins v. Heritage Wine Cellars, Ltd., 589 F.3d 895, 901 (7th Cir. 2009); McCall v. Disabled American Veterans, 723 F.3d 962, 966 (8th Cir. 2013); and Buckner v. United Parcel Service, Inc., 489 Fed. Appx. 709 (4th Cir. 2012)). As discussed below, this assertion is not accurate:
First, in McCall, supra, the Eighth Circuit was not asked to decide whether individuals who operated vehicles weighing both more and less than 10,000 pounds were entitled to overtime pay as Eastern suggests. Rather, the McCall court was confronted with the very different question of what metric – a vehicle’s “actual weight” or its “Gross Vehicle Weight Rating” (“GVWR”) – should be used to determine if an employee is a “covered employee” entitled to overtime pay under the TCA. See 723 F.3d at 966. The McCall court held that “the overtime-pay provision of [the FLSA] applies to vehicles with a GVWR of 10,000 pounds or less.” Id.; see also id. (“McCall argues that he was a covered employee with overtime rights under the FLSA because the trucks that he operated actually weighed less than 10,000 pounds despite having GVWRs greater than 10,000 pounds. Upon review, we agree with the district court that GVWR, not the actual weight, is the appropriate criterion for determining if the TCA applies to place a driver’s wage regulation under the FLSA rather than the Transportation Secretary.”).  However, since the McCall plaintiff only “operated trucks with GVWRs in excess of 10,000 pounds,” he was “not entitled to overtime under the FLSA.” Id. Thus, contrary to Eastern’s assertion otherwise, McCall did not address the applicability of the TCA to employees who operated qualified vehicles during a portion of their employment like McMaster.
Second, all of McMaster’s claims (and those of the other 25 Appellees) arise after the TCA was enacted in 2008. As discussed on pages 11-13, supra, Congress used the express language of the TCA to not only expand the DoT’s jurisdiction back to its pre-SAFETEA-LU levels by deleting the definition of commercial motor carriers but also broadened the Department of Labor’s (or “DoL”) domain by excluding “covered employees” from the MCA Exemption to the FLSA’s overtime pay mandate.
In essence, the TCA created dual jurisdiction by both the DoT and DoL over the same employees. Id. Thus, the analysis of drivers “working on both commercial and non-commercial vehicles” is no longer relevant. The Seventh Circuit’s examination in Collins was strictly limited to this dichotomy based on the definition of “motor carriers” under 2005’s SAFETEA-LU. See Collins, 598 F.3d at 901 (“We end with the plaintiffs’ back-up argument for reversal. Between 2005 and 2008 the Motor Carrier Act limited the definition of ‘motor carriers’ to carriers that provide transportation by a truck that weights at least 10,001 pounds.’”). Since the Seventh Circuit was not asked to consider the effects of the TCA on the claims in Collins, its concern that establishing dual jurisdiction by both the DoT and DoL absent express instruction to do so by Congress would create, inter alia, possible “confusion” and “disputes” should be given little weight.
Third, Eastern makes the dubious suggestion that the “Fourth Circuit affirmed a decision of the Eastern District of North Carolina finding that drivers of mixed fleets were not entitled to overtime.” See Eastern Brief at 17 (citing Buckner, supra). In Buckner v. United Parcel Service, Inc., the district court was confronted with a pro se plaintiff asserting, inter alia, claims for unpaid overtime premium compensation under the FLSA. 09-cv-411, 2012 U.S. Dist. LEXIS 63711, *4 (E.D.N.C. May 7, 2012). The plaintiff in Buckner only drove vehicles weighing more than 10,000 pounds. Id. at *13 (“Here, the records submitted by UPS demonstrate that plaintiff has regularly operated vehicles weighing at least 10,001 pounds throughout the course of his employment with UPS.”). Due to this undisputed evidence, the district court did not need to examine the plaintiff’s claims after June 2008 under the TCA to hold that he was not entitled to overtime pay under the MCA Exemption. The Buckner plaintiff appealed eight separate district court orders to the Fourth Circuit, which were affirmed without analysis. See Buckner v. United Parcel Service, Inc., 489 Fed. Appx. 709 (4th Cir. 2012).
F. The District Court Opinions Eastern Relies on are Factually Distinguishable and Often Rejected by the Courts Examining Post-TCA Claims
Eastern also attempts to avoid the consequences of the plain and unambiguous language of the TCA by citing district court opinions that purportedly hold that drivers of vehicles weighing less than 10,000 pounds are still ineligible for overtime after the TCA if their work on vehicles in excess of 10,000 pounds is more than de minimus. See Eastern Brief at 18-24. A brief review of these opinions demonstrates that they should be given little weight by the Court because they are factually distinguishable and repeatedly rejected by other courts:
First, in Avery v. Chariots for Hire, 748 F. Supp. 2d 492 (D. Md. 2010), the plaintiff drove vehicles that weighed less than 10,000 pounds throughout his employment for the defendant from November 2007 through August 2009. Id. at 498, 495. However, these lighter vehicles also were designed to transport at least eight passengers, and thus, were covered by the MCA Exemption even after the enactment of the TCA. Id. In addition, the defendant’s fleet in Avery included only one vehicle out of 28 that would qualify him as a covered employee under the TCA. Id. at 499. Since there was no evidence of the amount of time if any, the plaintiff drove this single small vehicle during his post-TCA employment, the Avery court relied on pre-TCA case law to state in dicta that “the [MCA E]xemption should apply so long as the time an employee spends operating commercial motor vehicles is more than de minimus.” Id. at 500.
This analysis is flawed because it is based on the premise that “[n]either the language of the FLSA or the [MCA E]xemption indicates how to categorize individuals who operate both commercial motor vehicles and non-commercial motor vehicles.” Id. at 499. This is incorrect because the TCA clearly defined a “covered” employee to include those driving qualified vehicles “in part.” See pages 11-13, supra. Moreover, Avery failed to follow the oft-repeated instruction that an FLSA exemption be construed narrowly against the employer asserting it.
Second, in Dalton v. Sabo, Inc., 09-cv-358, 2010 U.S. Dist. LEXIS 32472 (D. Or. Apr. 1, 2010), the plaintiffs only drove vehicles weighing more than 10,000 pounds. See id. at *9 (“I find that defendants produce competent and unrebutted evidence that the vehicles driven by Covington, Ritchie, and George either had gross vehicle weight ratings in excess of 10,000 [pounds] or actually weighed in excess of 10,000 pounds.”). Thus, the plaintiffs in Dalton clearly fell outside the definition of a covered employee under the TCA during their brief periods of employment after its enactment.
The Dalton court did express concerns that having employees fall under the jurisdiction of both the DoL and the DoT in the post-TCA world would “‘require burdensome record-keeping, create confusion, and give rise to mistakes and disputes.’” 2010 U.S. Dist. LEXIS 32472, at *12 (quoting Collins, 589 F.3d at 901). However, as the Hernandez court recognized in its rejection of Dalton:
I find, however, that such policy considerations cannot overcome the clear and express language of the [TCA] which unambiguously provides that covered employees are entitled to overtime compensation notwithstanding the fact that such employees may also be subject to regulation by the [DoT]. I, therefore, grant the plaintiff’s motion for a declaration that covered employees are entitled to overtime compensation under the FLSA.
08-cv-6254, 2011 U.S. Dist. LEXIS 96708, at *19.
Third, the Northern District of Illinois’ opinion in Jaramillo v. Garda, Inc., 12-cv-662, 2012 U.S. Dist. LEXIS 149468 (N.D. Ill. Oct. 17, 2012) is readily distinguishable. In Jarmillo, the court found that the drivers were not entitled to overtime largely because the employer only had a “limited number of vehicles” with a GVWR of 10,000 pounds or less, and “21 out of the 34 named Plaintiffs [had] driven large trucks more than 80 percent of the time.” Id. at *2, *14 (emphasis added). The Jarmillo court based its conclusion on the incorrect premise that the TCA failed to articulate “whether employees who work on both vehicles weighing 10,001 pounds and vehicles less than 10,000 pounds would be subject to the jurisdiction of the Secretary of Transportation.” Id. at *8-9. As discussed at pages 11-13, supra, district courts repeatedly held that the TCA established just the opposite – that employees of motor carriers would be subject to both the safety regulations of the DoT as well as the DoL’s overtime protections. Thus, the district court’s rejection of Jarmillo was rationally based.
G. Eastern’s Argument that the District Court’s Opinion Creates “Safety Concerns” by Removing Drivers From the DoT’s Jurisdiction is Not Accurate
Eastern also argues that the district court should be reversed because it “focused on the wrong question” of whether the work on vehicles weighing 10,000 pounds or less was more than de minimis. Eastern Brief at 27. According to Eastern:
Here, the safety issue of operating a commercial vehicle weighing in excess of 10,000 pounds presents a far greater safety issue that requires the regulation and oversight of the Department of Transportation. The courts interpreting the mixed fleet issue in favor of an exemption cite issues with the safety of operating these commercial vehicles weighing over 10,001 pounds on the public highways in interstate commerce as a reason for the exemption. As noted above, the issue for the employee can be and has been addressed by limiting the amount of hours that drivers of commercial vehicles operate. 49 C.F.R. § 395.3.
As discussed on pages 11-13, supra, this assertion by Eastern creates a false choice for the Court. Several district courts have recognized that the plain and unambiguous language of the TCA restored the DoT’s jurisdiction to the pre-SAFETEA-LU scope by reestablishing the previous definition of “motor carrier” by replacing “commercial motor vehicle” with “motor vehicle.” Id. “Covered employees,” who the TCA now entitles to overtime pay under the FLSA, will still be under the jurisdiction of the DoT and subject to its safety restrictions and regulations. See id. Thus, the safety of our highways will in no way be compromised by affirming the district court’s holding in this case.
H. The TCA Does Not Require a Week-By-Week Analysis of the Work of “Covered Employees”
Eastern’s second argument is: “If this Court finds that McMaster was exempt, it still must reverse the district court’s order because the district court found that McMaster was entitled to overtime for all workweeks instead of looking to those workweeks where she worked on non-commercial vehicles more than a de minimis amount of time.” Eastern Brief at 29-34. The Court should reject this argument for three reasons:
First, the plain and unambiguous language of the TCA does not call for a week-by-week limitation on “covered” employees’ entitlement to the FLSA’s overtime protections. Rather, the TCA focuses on the duties and work that covered employees perform instead of their day-to-day or week-by-week activities. See TCA at Section 306(c)(2)-(3) (individuals “whose work, in whole or in part” and “who performs duties on motor vehicles weighing 10,000 pounds or less”) (emphasis supplied). The Supreme Court has repeatedly recognized that the terms such as “work” are to be construed “broadly.” See, e.g., IBP, Inc. v. Alvarez, 546 U.S. 21, 25-28, 126 S. Ct. 514; 163 L. Ed. 2d 288 (2005) Thus, Congress’s utilization of such broad terms to define “covered employees” logically leads to the conclusion that its intention was that a more generalized analysis of the duties performed throughout an individual’s employment is required.
Second, the week-by-week limitation proffered by Eastern would create administrative difficulties that would be extremely burdensome for employers. While the Seventh Circuit’s opinion in Collins, supra, is distinguishable from this case as detailed above, the Collins court was correct to find that week-by-week determinations advocated now by Eastern “would require burdensome record-keeping, create confusion, and give rise to mistakes and disputes.” Collins, 589 F.3d at 901. If Congress wanted to impose the burdensome record-keeping of week-by-week determinations, it certainly could have done so in the TCA. It did not, and this Court need not read such a requirement into the statute.
Third, a week-by-week analysis is inconsistent with not only the remedial nature of the FLSA, see, e.g., Hoffmann-La Roche Inc., 493 U.S. at 173 (The “broad remedial goal of the [FLSA] should be enforced to the full extent of its terms.”), but also this Court’s instruction that exemptions to the FLSA be interpreted narrowly against the employer asserting them, see, e.g., Packard, 418 F.3d at 250 (“It is well settled that exemptions from the FLSA are construed narrowly, against the employer.”).
Finally, if the Court were to find that a week-by-week analysis is warranted, it would need to be performed in a manner consistent with TCA’s plain and unambiguous “in whole or in part” language. As discussed above, this would entitle covered employees to overtime pay so long as they performed some work on vehicles weighing 10,000 pounds or less during a given week.
In conclusion, the Appellees respectfully request that this Court affirm the district court’s summary judgment order.
/s/ R. Andrew Santillo
R. Andrew Santillo
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Attorneys for Plaintiffs/Appellees
 McMaster and the 25 opt-in plaintiffs are collectively referred to as “Appellees.”
 A “motor vehicle” was simply defined as “a vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used on a highway in transportation.” 49 U.S.C. § 13102(14) (2000).
 A full version of the TCA is provided in the Joint Appendix at JA at 94A-146A.
 The claims of McMaster and the 25 other Appellees arise entirely after the enactment of the TCA.
 The word “part” is commonly defined as: “one of the equal or unequal portions into which something is or is regarded as divided: something less than a whole: a unit (as a number, quantity, or mass) held to constitute with one or more other units something larger.” Webster’s New International Dictionary Of The English Language Unabridged 1645 (3d 1993).
 See alsoid. at *19 (“This is also abundantly clear from the language of the statute providing that a mechanic who works on small vehicles, ‘in whole or in part,’ is not covered by the MCA [E]xemption. With this in mind, the focus should be on the time spent with small vehicles, rather than the time spent on commercial vehicles.”).
 Magistrate Judge Dein’s Report and Recommendation were ultimately adopted by District Court Judge Nathaniel Gorton. See Botero v. Commonwealth Limousine Serv., 12-cv-10428, 2013 U.S. Dist. LEXIS 104944 (D. Mass. July 25, 2013).
 Even in cases that did not concern drivers of vehicles weighing both more and less than 10,000 pounds such as McMaster, district courts have regularly recognized that the plain and unambiguous language of the TCA drastically narrowed the confines of the MCA Exemption. See, e.g., Brooks v. Halsted Communication, Ltd., 620 F. Supp. 2d 193, 198 (D. Mass. 2009) (“[T]he TCA reconfirmed that the MCA exemption was inapplicable to employees of motor carriers who drove motor vehicles that weighed 10,000 pounds or less. Given the sharp clarity of the TCA’s language, Defendants do not, and could not, dispute their obligation to pay FLSA overtime after June of 2008.”) (emphasis added and internal citations omitted); Bedoya v. Aventura Limousine & Transp. Serv., 11-cv-244432, 2012 U.S. Dist. LEXIS 128826, *11 (S.D. Fla. Sept. 11, 2012) (“‘The Court pauses to emphasize that an employee’s work need only in part involve the operation of non-commercial vehicles to be entitled to overtime. See Technical Corrections Act § 306(c). Thus, if more than a de minimis portion of Plaintiff’s work involved driving non-commercial vehicles, he is eligible for overtime under the FLSA as a “covered employee.’”); Garza v. Smith International, Inc., 10-cv-100, 2011 U.S. Dist. LEXIS 22869, *8 (S.D. Tex. Mar. 7, 2011) (“The TCA reconfirmed that the MCA exemption does not apply to drivers operating motor vehicles that weigh 10,000 pounds or less.”); Miller v. Professional Transportation, Inc., 09-cv-0111, 2010 U.S. Dist. LEXIS 87940, *10-11 (S.D. Ind. Aug. 25, 2010) (“The net result of [the TCA] is that employees, who drive vehicles denoted in the Act as part of their employment that was once exempt from overtime prior to the passage of SAFETEA-LU, are now eligible for the benefits of overtime compensation by virtue of the fact that they are ‘covered employees.’ Covered employees are those that drive vehicles weighing 10,000 pounds gross vehicle weight or less and are designed or used to transport 8 or few passengers, including the driver.”).
 The GVWR “‘means the value specified by the manufacturer as the loaded weight of a single motor vehicle.’” Garcia, 969 F. Supp. 2d 1252, at *8 n1.
 This issue is not before the Court as part of this appeal.
 The TCA states that drivers of vehicles that transport eight (8) or more passengers or transport hazardous materials still qualify for the MCA Exemption even if the vehicle weighed less than 10,000 pounds. See Section 306(c)(2)(B); see also JA at 144A. Eastern has not asserted that McMaster drove such vehicles and her testimony confirms that she never did. See JA at 70A.
 The district court here, in addition to several others, recognized this flaw and rejected the Avery court’s analysis. See JA 24A-25A; see also Garcia, 969 F. Supp. 2d 1252, at *18-19 (characterizing Avery as “inconsistent with the plain language and purpose of the TCA”); accord O’Brien, 956 F. Supp. 2d at 306-07.
 Avery is also distinguishable because here it is undisputed that McMaster spent a significant amount of her employment (49%) driving vehicles that qualify her as a covered employee under the TCA. This is evident from a subsequent District of Maryland opinion that adopted Avery, but distinguished the district court’s opinion in this case because McMaster “spent more than a de minimus amount of time in driving non-commercial vehicles.” See Rucker v. Hoffberger Moving Services, LLC, 13-cv-2716, 2013 U.S. Dist. LEXIS 182052, *2 n.2 (D. Md. Dec. 31, 2013).
 This is significantly more than McMaster in this case, who drove vehicles weighing less than 10,000 at least 49% of the time. See pages 1-2, supra.
 Eastern also cites the decisions in Fox v. Commonwealth Worldwide Chauffeured Transp. of NY, LLC, 865 F. Supp. 2d 257, 260 (E.D.N.Y. 2012); Hernandez v. Brink’s Inc., 08-cv-20717, 2009 U.S. Dist. LEXIS 2726 (S.D.Fla. Jan. 15, 2009); and Garcia v. Western Waste Servs., Inc., 969 F. Supp. 2d 1252 (D. Idaho 2013). See Eastern Brief at 22-24. However, none of these cases support Eastern’s arguments. First, Garcia rejected the analysis in Avery and instead followed the district court’s opinion here to hold that if an individual “is working on small vehicles for more than a de minimis portion of his time, the TCA exception is applicable” and is entitled to overtime pay. 969 F. Supp. 2d 1252, at *19. Second, both Fox and Hernandez concern claims arising entirely prior to the June 2008 enactment of the TCA, eliminating any benefit their analysis may provide. See Fox, 865 F. Supp. 2d at 264 n.9 (“In June 2008, after Fox left Commonwealth, Congress removed the word ‘commercial’ from the definition of ‘motor carrier’ provided in 49 U.S.C. § 13102. But the [TCA] have not been given retroactive effect, and so the court will apply the [MCA E]xception as it existed during the time of Fox’s employment.”) (internal citations omitted, emphasis supplied); Hernandez, 08-cv-20717, 2009 U.S. Dist. LEXIS 2726, at *5 (“Plaintiffs seek to recover unpaid overtime compensation earned between March 19, 2005, and March 19, 2008.”)