any information regarding, among other things, the purposes for
which Church investments are made, the relation between
miscellaneous income and the Church's operations, and the extent
to which the Church, if at all, solicited contributions for the
purpose of furthering its rental activities, summary judgment on
this issue is not appropriate at this stage.
II. Individual Coverage under the FLSA
Under individual or "traditional" coverage under the FLSA, an
individual is covered by the Act if he has either "engaged in
commerce" or "engaged in the production of goods for commerce."
29 U.S.C. § 207(a)(1) (1999). The parties agree that plaintiff
did not participate in the production of goods for commerce, and
that accordingly, FLSA individual coverage depends upon the
extent to which he was "engaged in commerce." To be engaged in
commerce, "a `substantial part' of the employee's work must be
related to interstate commerce." Divins v. Hazeltine Electronics
Corp., 163 F.2d 100, 103 (2d. Cir. 1947) (quoting Walling v.
Jacksonville Paper Co., 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. 460
(1943)). Thus, under an individual theory of coverage, "[t]he
test under this present act, . . . is not whether the employee's
activities affect or indirectly relate to interstate commerce but
whether they are actually in or so closely related to the
movement of the commerce as to be a part of it." McLeod v.
Threlkeld, 319 U.S. 491, 497, 63 S.Ct. 1248, 87 L.Ed. 1538
Plaintiff contends initially that he has engaged in commerce by
ordering cleaning supplies and equipment for the Church from
out-of-state vendors by telephone and facsimile. Such purchases
will be sufficient to invoke the protection of the FLSA unless
they involve only "sporadic and occasional shipments of
insubstantial amounts of goods." See Mabee v. White Plains Pub.
Co., 327 U.S. 178, 181, 66 S.Ct. 511, 90 L.Ed. 607 (1946);
Remmers v. Egor, 332 F.2d 103, 104 (2d Cir. 1964). The legal
standards are not clear as to when a shipment of goods is more
than sporadic or occasional. In this Circuit, an employee that
wrapped a single package for interstate mailing and on one
occasion personally delivered a manufactured good across state
lines was held not to be engaged in commerce under the FLSA.
Remmers, 332 F.2d at 104 (accord Parks v. Puckett,
154 F. Supp. 842, 848-49 (W.D.Ark. 1957)) (holding that plaintiff who
signed nineteen receipts for interstate goods within a two year
period and occasionally handled empty barrels, some of which were
subsequently shipped in interstate commerce, did not engage in
commerce). In the Fourth Circuit, however, an employee that
received between eleven and twenty-three shipments from across
state lines each month met the FLSA standard, despite spending
only one-half hour per week on such tasks. See Wirtz v. Durham
Sandwich Company, 367 F.2d 810, 812 (1966).
Here, plaintiff's purchases were made from five different
vendors, and included not only custodial supplies but also other
important items to the Church like a computer, electronic
equipment and a refrigerator. See Jt. Stmnt. ¶¶ 40, 44-46.
Additionally, as the parties have stipulated, documentary
evidence produced in this case indicates plaintiff made between
fourteen and thirty such purchases over the course of his
employment. Moreover, beyond documentary evidence, the Church's
Director of Management and Marketing has estimated that plaintiff
made "dozens" of purchases from only one of these vendors, and
that it was a "normal part" of plaintiff's duties to place orders
with such vendors. See id. at ¶ 48.
Such recurrent and frequent purchases of goods from
out-of-state vendors is more than sufficient to trigger the
protection of the FLSA. Clearly plaintiff's purchases in
interstate commerce exceed the one delivery made across state
lines by the plaintiff in Remmers. Such purchases obviously
also constitute more interstate
activity than that which took place in Parks, where the
plaintiff merely signed receipts for the goods received by
defendant company when her supervisor was unavailable. 154
F. Supp. at 845, 848. Indeed, plaintiff's interstate activity at
least parallels that which took place in Wirtz, and may even
exceed it because plaintiff himself both ordered and received
important goods from at least five vendors on a regular basis.
Accordingly, such actions bring plaintiff within the protection
of the FLSA, and plaintiff is entitled to summary judgment on
Under the FLSA, an employee is due back wages for two years
from the filing of his action, unless the employer willfully
violates the Act, in which case back wages are due for three
years. 29 U.S.C. § 255(a) (1999). A violation is "willful" for
the purposes of the Act's limitations provision "only if the
employer violates or shows a reckless disregard for the
provisions of the Act." Brock v. Superior Care, Inc.,
840 F.2d 1054, 1062 (2d Cir. 1988); See also McLaughlin v. Richland Shoe
Co., 486 U.S. 128, 139, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988).
Willfulness cannot be found on the basis of mere negligence or
"on a completely good faith but incorrect assumption that a pay
plan complied with the FLSA in all respects." McLaughlin, 486
U.S. at 135, 108 S.Ct. 1677.
Similarly, an employer found to have violated the pay
provisions of the Act shall be liable not only for "payment of
wages lost," but also "an additional amount as liquidated
damages," 29 U.S.C. § 216(b) (1999), unless:
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 [Act, in which
case] the court may, in its sound discretion, award
no liquidated damages or award any amount thereof not
to exceed the amount specified in section 216 of the
29 U.S.C. § 260 (1999).