The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Greg Kuebel, ("plaintiff" and/or "Kuebel") brings this collective action for declaratory relief, injunctive relief and monetary damages on behalf of himself and all others similarly situated, alleging violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §201 et seq . ("FLSA") and violations of New York Labor Law against defendant Black & Decker (U.S.) Inc., ("Black & Decker" and/or "defendant"). Specifically, plaintiff seeks wages for the time he spent commuting from his home to his first job site of the day and from his last job site of the returning back to his home.
Defendant moves for partial summary judgment with respect to whether its policy of compensating Retail Specialists*fn1 for their commute time in excess of sixty miles or in excess of 60 minutes complies with the FLSA. Black & Decker argues that the Portal-to-Portal Act ("Portal Act") amendments to the FLSA bars plaintiff's claim for wages for commute time because the normal commute time from an employee's home to the first job site and from the last job site of the day to home is not compensable. In addition, Black & Decker argues as a matter of law that the incidental tasks that plaintiff performed in the morning or evening before or after working in his assigned Home Depot stores were not "principal activities," such that his entire commute to and from his home was compensable. Moreover, defendant contends its good faith reliance on the Department of Labor ("DOL") regulations and a DOL opinion letter*fn2 is a complete defense to damages under the FLSA.*fn3 Further, defendant argues that the applicable statute of limitations is two years instead of three years because there is no evidence that Black & Decker's compensation policy was "willful."
Plaintiff opposes defendant's motion on grounds that there are questions of material fact in dispute, and therefore, summary judgment is inappropriate. Plaintiff argues that all of his commute time should be compensable because he performed certain tasks at his home prior to and after commuting to his assigned Home Depot stores and/or storage unit. Accordingly, plaintiff contends that once he performed any work at home, all the time that followed, including commute time, was compensable. Alternatively, plaintiff's counsel has filed a Rule 56(f) request arguing that plaintiff has not had reasonable opportunity to conduct discovery on substantive issues relating to the motion for partial summary judgment. For the reasons set forth below, I grant defendant's motion for partial summary judgment, and dismiss plaintiff's claims relating to compensation of Retail Specialists for their commute time in excess of sixty miles or sixty minutes.
On January 10, 2008, plaintiff filed a Collective Action Complaint alleging violations of the FLSA and the New York Labor Law. See Docket # 1. The Complaint alleges that defendant failed and has refused to pay plaintiff as well as all other current and former Retail and Sales & Marketing Specialists,*fn4 straight time and overtime compensation for all hours worked. See id. In addition, plaintiff seeks wages for his commute time from his home to his first store or storage unit and from his last store or storage unit to his home at the end of the day ("Commute Time") since he did not have a designated place of work. In the alternative, plaintiff alleges that he is owed wages for his Commute Time because his workday began and ended at home where he performed tasks including synching his Personal Digital Assistant ("PDA"), loading and unloading his car, reviewing company training and instructions and receiving and responding to e-mails and voice mails.
A notice was sent on August 26, 2008 to all former and current Retail and Sales and Marketing Specialists who were employed by Black & Decker at any time from June 1, 2005 to present permitting them to join plaintiff's FLSA action. A cut-off date of October 25, 2008 was established for people to respond to the notice. Of the 742 former and current Retail and Sales and Marketing Specialists who received the notice, 130 opted-in to join plaintiff's FLSA action.
A. Duties and Responsibilities of Retail Specialists
Black & Decker employs Retail Specialists like plaintiff*fn5 who are responsible for enhancing the image of Black & Decker's brands at the retail level. See DSOF, 4. In addition, they are assigned to Home Depot stores within a geographical area and are responsible for inventory management, event and brand marketing and product training within their assigned stores. See id., 5. In this case, plaintiff was assigned to six Home Depot stores, ranging in distance from 20-25 minutes to three hours from his home. See Plaintiff's Response ("Pl. Response") to DSOF, ¶ 6.*fn6 Plaintiff was also provided with a storage unit that was within one mile of his Johnson City, New York store, which he typically visited once a week on the day that he worked at the Johnson City store. See DSOF, 6. In general, plaintiff worked at only one Home Depot store per day and was compensated for any Commute Time at either the start or end of the workday that exceeded 60 minutes. See id., 8.
The principal job duties of a Retail Specialist, including plaintiff, was to make sure that Black & Decker products were properly stocked, priced and displayed within the space that he or Black & Decker negotiated in each of his six assigned Home Depot stores. See id., 9. Moreover, plaintiff provided product knowledge training sessions to store personnel and engaged in in-store sales conversations with Home Depot customers that were interested in Black & Decker's products. See id., 10. Importantly, the essential functions of plaintiff's job were to ensure that his six Home Depot stores were "fundamentally sound." See id., 11. This meant plaintiff had to make sure that: (1) the Black & Decker products in the store are priced correctly; (2) the product fact tags are accurate and properly displayed; (3) the Black & Decker products are adequately stocked; and (4) the Black & Decker products are clean, on the shelves and on display, and (5) the Black & Decker tool display is set in the pod correctly. See id., 11.
Retail Specialists did not report to a central office, instead they worked out of offices in their homes. See PSOF, ¶¶ 2-3. These offices were their home bases and contained everything that they would need to conduct business including desks, chairs, filing cabinets, computers and fax machines. See id., ¶¶ 4-5. Defendant requires its Retail Specialists to record the time spent working at home on their time sheets so it is compensated. See DSOF, 26.*fn7 Plaintiff contends that Retail Specialists performed several tasks at their home offices that are vital to their work day including: reviewing and responding to company e-mails,*fn8 receiving directives from their managers, printing and reviewing sales reports, training on the Black & Decker website via E-learning courses,*fn9 assembling point-of-purchase ("POP") materials and synchronizing the company-provided PDA.*fn10 See PSOF, ¶ 13. Defendant argues that before and after completing work at his first and last job sites of the day, plaintiff performed limited activities including "synching" his PDA, "collecting [and responding to] e-mail" and printing out vital information, "organizing" the POP once a week, making handmade signs, if necessary, loading materials into his car and unloading them at night. See DSOF, 21.
In addition, defendant contends there was no requirement that plaintiff synch his PDA, or check his e-mail or voice mail at any particular time of day--Keubel could choose to do so at times that were convenient to him. See id., 22. For instance, defendant's computer records reflect that plaintiff did not always synch his PDA immediately after returning home but rather he would do so very late at night. See id., 23. Moreover, Keubel was not required to make handmade signs or organize his POP at home since he also had the ability to perform those tasks at the Home Depot stores. See id., 24. There is no dispute and plaintiff testified that all of the activities combined took plaintiff a total of 15-30 minutes in the morning and 15-30 minutes in the evening.
In response to defendant's explanation, plaintiff states that although he could arguably synch his PDA and listen to his voice mail at any particular time of the day, he could only properly synch his PDA from his home office, and due to service outages, could only reliably check his voice mail from his home office. See Pl. Response, ¶ 22; see also PSOF, ¶¶ 37-39.*fn11 Plaintiff further contends that he would generally synch his PDA upon his return home, however, oftentimes he did not return home until late in the evening because of his commute time. See id., ¶ 23. In addition, plaintiff claims he made handmade signs for Home Depot at his home office when they required a lot of detail. See id., ¶ 24. Keubel asserts that his supervisor required him to put specific product details and specifications on signs and if he did not perform the task from his home office, he would not have the important information available to him. See id.
As a Retail Specialist, defendant contends that plaintiff was a field employee and spent almost all of his workday at Home Depot stores, where he was typically required to bring three things: a plastic bin, a tool bag and a binder. See DSOF, 16, 17. According to plaintiff, he spent a large part of his workday traveling to and from stores and working in his home office. See Pl. Response, ¶ 16; see also PSOF, ¶ 12. Defendant claims the items plaintiff had with him, took up the space of no more than two banker's boxes. See DSOF, 17. Plaintiff argues that he was also required to bring POP materials that consisted of several large boxes of material that were designed to fit into end caps or other large cardboard displays at the store. See Pl. Response, ¶ 17; see also PSOF, ¶ 46. Moreover, defendant contends the loading and unloading the plastic bin, tool bag and binder took plaintiff no more than two to three minutes. See DSOF, 18. There were some occasions when plaintiff was sent larger promotional items including cardboard cutout displays that plaintiff reports took as long as ten minutes to load or unload from his car. See id., 19. While defendant does not require that plaintiff unload and reload his plastic bin, tool bag and binder from his car each day, he sometimes did when he needed to use his car for personal reasons or when he had to do work fo his other employers. See id., 20.*fn12
Plaintiff worked for defendant as a full-time Retail Specialist from September 2006 to June 2007. See id., 1. Defendant claims that plaintiff was terminated for poor performance and falsification of company records less than a year into his employment with Black & Decker. See id., 28. Plaintiff argues he was terminated in retaliation for his complaints over failure to pay overtime ...