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August 17, 2005.

TROY MASSON, individually and on behalf of others similarly situated, Plaintiff,
ECOLAB, INC., Defendant.

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


Plaintiff Troy Masson, individually and on behalf of others similarly situated, sues Ecolab, Inc. for overtime pay under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. Ecolab moves for summary judgment, arguing that Masson is subject to the authority of the United States Secretary of Transportation with respect to his qualifications and maximum hours of service and thus exempt from the overtime requirement of the FLSA. Masson opposes the motion and seeks approval for distribution of collective action notices and opt-in consent forms to potential plaintiffs. So far, two others, Claude Gerald Hester, Jr. and Justin Duffie, have submitted opt-in forms. Although the record does not contain enough evidence for this court to determine as a matter of law which plaintiffs, if any, are entitled to overtime compensation under the FLSA, the parties have provided enough evidence for this court to determine which job activities potential plaintiffs would have had to have performed at Ecolab so as to be exempt from the FLSA's overtime requirement. Hence, for the reasons set forth below, Ecolab's motion is denied and Masson's is granted.


  Ecolab develops and markets cleaning, sanitizing, pest control, and other maintenance products and services. (Ecolab Rule 56.1 Statement ¶ 1; Affidavit of Gilbert Lewis ("Lewis Aff.") ¶ 4) It employs more than 21,000 people worldwide. (Ecolab Rule 56.1 Statement ¶ 2) Its customers, located in over 160 countries, include hotels, restaurants, health and educational facilities, convenience and grocery stores, commercial and institutional laundries, food and beverage processors, and car washes. (Id.)

  Ecolab's leases of commercial equipment include regular preventive maintenance and repair services. (Id. ¶ 9) Ecolab's Route Managers provide these services. (Id. ¶ 10) According to Ecolab, Route Managers are assigned to specific geographic territories, of which some cover parts of two states. (Id. ¶ 14) Ecolab claims that as of February 2005, it employs approximately 642 Route Managers throughout the country and that approximately 17 percent of these Route Managers are assigned to territories covering more than one state. (Id.)

  Masson worked as a Route Manager from April 7, 2003 to May 21, 2004 (Ecolab Rule 56.1 Statement ¶¶ 15-16), Duffie from April 8, 2002 to January 15, 2004 (Id. ¶¶ 23-24),*fn1 and Hester from June 2, 2003 to July 9, 2004. (Id. ¶¶ 31-32) All three worked in the Southeast Area of Ecolab's Institutional Division, which serves the foodservice and hospitality industries. (Lewis Aff. ¶ 11) The Southeast Area appears to cover South Carolina, North Carolina, most of Georgia, and part of Tennessee. (Ex. B to Lewis Aff.) However, plaintiffs provided maintenance and repair services for dishwashing machines leased by Ecolab to customers only in the Atlanta metropolitan area; none left Georgia as part of their employment with Ecolab. (Pls.' Rule 56.1 Response ¶¶ 19, 27, 35) Ecolab provided them with company vehicles to drive to customer locations. (Ecolab Rule 56.1 Statement ¶¶ 20, 28, 36) None reported regularly to an Ecolab office. Instead, they drove from customer to customer during the work day and at day's end returned to their respective homes. (Id. ¶¶ 21, 29, 37)

  Plaintiffs did not fill out timesheets. (Ecolab Rule 56.1 Statement ¶ 11) However, they were required to fill out "Edge Reports" that identified customers served each day. (Id.)

  Masson states that he had about 115 to 130 customers on his route, and on average made between eight and 10 service calls per day. (Ex. 3 to Affidavit of Tara Bernstein ("Bernstein Aff.")) Hester served 156 customers, and on average made 45 service calls per week. (Ex. 4 to Bernstein Aff.) He made an additional 10 to 12 service calls every third weekend. (Id.) Duffie states that "the number of customers on [his] route fluctuated between about 110 and 180, depending on the time period" and that during an average week, would make 45 service calls. (Ex. 5 to Bernstein Aff.) Like Hester, he made about 15 additional service calls every third weekend. (Id.)

  According to Ecolab, when customers needed equipment or other products from Ecolab, plaintiffs ordered the products from Ecolab's manufacturing facilities located outside Georgia, most often from Beloit, Illinois. (Ecolab Rule 56.1 Statement ¶ 41) The products were shipped either to each customer's location or to the Route Manager's home address. (Lewis Aff. ¶ 48)

  Ecolab has submitted lists of products ordered by plaintiffs during their employment with Ecolab that show most orders were shipped to plaintiffs' homes. (Ex. C to Lewis Aff.) For example, the first entry, Order Number 299402, indicates that Masson ordered four items on May 3, 2004 from the Beloit, Illinois facility. (Id.) These items were shipped to Masson's home in McDonough, Georgia. (Id.) In contrast, the second entry lists "A&A Steakhouse" as the customer and the location where the item was shipped. (Id.) The lists show a total of 605 orders by Masson, 473 by Duffie, and 114 by Hester.*fn2

  According to Gilbert Lewis, a former Area Route Manager for the Southeast Area of Ecolab's Institutional Division,*fn3 "some of the equipment and products that were ordered by Plaintiffs and shipped directly to their homes were for use as truck stock, while other equipment and products were for specific customers." (Ecolab Rule 56.1 Statement ¶ 49; Lewis Aff. ¶ 52) Separate lists submitted by Ecolab show which orders, according to Lewis, were shipped to plaintiffs' homes pursuant to specific customer orders as opposed to orders to fill plaintiffs' inventory. (Ex. 3 to Lewis Aff.) Of such orders 64 are attributed to Masson, 242 to Duffie, and 13 to Hester. (Id. ¶¶ 53-55) Lewis stated also that "[b]ecause any of Plaintiffs' customers could, at any time, require replacement parts or products, Plaintiffs could be called upon to transport a shipment of goods in interstate commerce at any time." (Id. ¶ 61)

  Lewis "was able to identify which products and equipment were customer specific orders based on [his] approximate ten years of experience working in the Institutional Division [the Division in which Plaintiffs were employed], in various supervisory positions." (Lewis Supplemental Aff. ¶ 4) He cites three examples. The first "customer-specific item listed for ? Masson . . . is one of Ecolab's dispensing systems" for certain detergents and sanitizers. (Id. ¶ 5) Lewis claims that the dispenser "would not be a dispenser ? Masson would have kept as truck stock" and that "[i]t was probably ordered because" one such dispenser "that a customer was using malfunctioned." (Id.) Moreover, according to Lewis, "Route Managers do not keep dispensers as truck stock, nor do they have large enough trucks that would enable them to do so." (Id.)

  The second example is "a solid rinse additive" that Lewis surmises "was likely ordered for a specific customer as a means to improve customer relations because a dispenser malfunctioned." (Id. ¶ 6) The third item, a dishwasher motor, is "too heavy to keep as truck stock." (Id. ¶ 7) Lewis noted also that chemical products are not kept as truck stock. (Id. ¶ 6)

  Plaintiffs contend that they have not had adequate opportunity to discover how these lists were compiled. In any event, plaintiffs state that they kept an inventory of products and equipment needed to maintain and repair customers' dishwashing machines. (Ex. 3 to Bernstein Aff. ¶ 4; Ex. 4 to Bernstein Aff. ¶ 4; Ex. 5 to Bernstein Aff. ¶ 4) Masson and Duffie kept inventory in their trucks and homes (Ex. 3 to Bernstein Aff. ¶ 4; Ex. 5 to Bernstein Aff. ¶ 4); Hester states that he kept inventory in his truck. (Ex. 4 to Bernstein Aff. ¶ 4) Plaintiffs claim that they ordered new inventory to be sent directly to their homes so that they could restock whenever they used a part on a service call or when inventory ran low. (Exs. 3-5 to Bernstein Aff. ¶ 4) Hester states that he never ordered products for specific customers to be sent to his home and that such products were sent directly to the customer. (Ex. 4 to Bernstein Aff. ¶ 4) Masson claims that "[o]nly under extraordinary circumstances would [he] order a part for a specific customer delivered directly to [him]" instead of to the customer. (Ex. 3 to Bernstein Aff. ¶ 4) Upon his "information and belief," such deliveries "occurred only 10 times in the entire time [he] worked for Ecolab," constituting "approximately 0.4% of [his] service calls." (Id.) Duffie remembers "two instances that a product or equipment for a specific customer was delivered directly to [his home address]," constituting "approximately 0.04% of the calls that [he] made." (Ex. 5 to Bernstein Aff. ¶ 4)

  From some customers, the three plaintiffs picked up checks payable to Ecolab for services, parts, or equipment, either because the customer preferred to pay the Route Manager or because the customer's payment was late or the account not fully paid. (Ecolab Rule 56.1 Statement ¶¶ 22, 30, 39) Ecolab claims that on each such occasion, the Route Managers delivered the customer check to a local post office or the local Ecolab office for mailing to North Carolina where Ecolab collects and processes the checks. (Id. ¶¶ 22, 30, 39) Ecolab states also that none of the checks were processed at the local office in Georgia and that customer invoices "specifically state that payment must be sent to Charlotte, North Carolina." (Supplemental Affidavit of Gilbert Lewis ("Lewis Supplemental Aff.") ¶ 8)

  Masson claims that he picked up checks from customers only about three times per week and "typically deliver[ed] [them] to Ecolab's local office in Georgia." (Pls.' Rule 56.1 Response ¶ 22) He gave the checks to his supervisor or another repairman to bring back to the local office. (Id.) Only about two or three times per month did he mail a customer's check himself. (Id.) Duffie claims that he picked up checks from customers approximately once in every 45 service calls as payment on overdue accounts. (Id. ¶ 30) He "almost always delivered the check to his supervisor" and "remembers only two occasions when he mailed a customer's check" himself. (Id.)

  Hester participated in an Ecolab pilot program referred to as the "Atlanta Delivery Model," from December 2003 to July 2004. (Ecolab Rule 56.1 Statement ¶ 38) Under this program, Ecolab itself shipped products to a warehouse in Georgia, instead of using a third party carrier such as the United Parcel Service. (Id.) According to Ecolab, Hester then would pick up a product from the warehouse and deliver it to the customer. He collected a check from the customer and delivered it to a local post office, where it was mailed to an Ecolab office in North Carolina. (Id.) Hester claims that under the program, he picked up products from the warehouse to store on his truck and distribute to customers as they needed them — i.e., as inventory, and that "[a]ny checks he picked up from customers were not for the specific products, but for payment on the customer's account." (Pls.' Rule 56.1 Response § 38) In addition, as part of the pilot program, he claims that he "ordinarily went to the local Ecolab office each work day and delivered any checks he received from customers at that time." (Id.)

  Before Hester participated in the pilot program, "a substantial part of his customers did not ask him to accept checks" and of the times he did pick up checks from customers, he remembers only two occasions when he mailed them. (Id. ¶ 39) He delivered all of the other checks to the local Ecolab office in Georgia. (Id.)

  Plaintiffs claim that they regularly worked more than 40 hours per week for Ecolab and that Ecolab failed to pay them overtime compensation at the rate of time and one-half for all hours worked over 40. (Compl. ¶¶ 16-17; Declaration of Troy Masson dated 2/15/05 ("Masson Decl.") ¶¶ 7, 9; Declaration of Justin Duffie dated 2/15/05 ("Duffie Decl.") ¶¶ 8, 10); Declaration of Claude Gerald Hester, Jr. dated 2/16/05 ("Hester Decl.") ¶¶ 7, 9) Ecolab admits that it did not pay Masson overtime at the one and one-half rate. (Ex. D to Pls.' Brief (Ecolab Answer) ¶ 17) Moreover, Ecolab admits that "it does not pay time-and-one-half overtime premium pay to salaried employees." (Id. ¶ 8)

  Masson filed the instant complaint on June 15, 2004, suing for a declaration that Ecolab violated the FLSA willfully, and for damages in the amount of unpaid overtime wages as well as liquidated damages. On October 25, 2004, Hester filed a consent form "opting in" to the lawsuit. (Ex. 1 to Affirmation of Marc Wenger ("Wenger Aff.") Duffie did the same on November 5, 2004. (Id.)


  Congress' goal in enacting the FLSA was "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. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (quoting 29 U.S.C. § 202(a)). Section 207 of the FLSA provides that covered employees who work more than 40 hours in a workweek shall be paid at least one and one-half times their regular pay rate for those hours worked above 40 hours. See 29 U.S.C. § 207(a)(1).

  Three years before passing the FLSA, Congress enacted the Motor Carrier Act of 1935 ("MCA"). The purpose of the MCA was to promote efficiency, economy, and safety in the motor transportation industry and, to help achieve that purpose, the MCA gave the Interstate Commerce Commission ("ICC") the authority to regulate the maximum hours of work for employees of "common carriers" and "contract carriers" by motor vehicle. The MCA also gave the ICC similar regulatory authority over employees of "private carriers" by motor vehicle if the ICC concluded that such regulation was necessary to promote safety on the nation's roadways. See Friedrich v. U.S. ...

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