United States District Court, E.D. Michigan, Northern Division
R. ALEXANDER ACOSTA Secretary of Labor, United States Department of Labor Plaintiff,
TIMBERLINE SOUTH LLC, a Michigan limited liability company, and JIM PAYNE, an individual, Defendants.
Patricia T. Morris
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT IN PART, DENYING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT, GRANTING PLAINTIFF'S MOTION TO AMEND, DENYING
PLAINTIFF'S MOTION TO STRIKE, DIRECTING SUPPLEMENTAL
BRIEFING AND ENJOINING DEFENDANT FROM VIOLATING OVERTIME AND
L. LUDINGTON UNITED STATES DISTRICT JUDGE
April 29, 2016, Plaintiff Secretary of Labor filed a
Complaint in this Court against Defendants Timberline South
LLC, a timber felling concern, and its manager Jim Payne,
alleging violations of the overtime and recordkeeping
provisions of the Fair Labor Standards Act of 1938. The Wage
and Hour Division of the Department of Labor (“Wage and
Hour”) initiated an investigation of Timberline's
employee compensation practices in July 2015. Investigators
Jeffrey Wrona and Randy Whitemire conducted the
investigation, which included the time period from August 25,
2013 through August 20, 2015 (the “Investigation
Period”). The investigators concluded that Timberline
employees frequently worked in excess of forty hours per
week, Timberline did not pay any of its employees a rate of
one and one-half times their regular rate for hours worked
beyond forty hours per week, and that Timberline did not
maintain records of hours worked for most non-hourly
employees. Plaintiff seeks recovery of unpaid overtime
compensation in amount of $468, 595.08, an equal amount of
liquidated damages, and injunctive relief restraining
Defendants from further violations of the Act.
moved for summary judgment on April 19, 2017, asserting that
the facts giving rise to liability are not in dispute, as it
is apparent from the face of the employer's records that
Defendants failed to comply with the overtime and record
keeping provisions of the FLSA. Defendants moved for summary
judgment on April 20, 2017, asserting that Timberline is not
a covered enterprise under the FLSA or is exempt from the
FLSA under numerous provisions. The parties agree that
Timberline operations are conducted wholly within the state
of Michigan, and that Timberline purchases and uses equipment
manufactured out of state. The parties dispute whether
purchasing and using equipment manufactured out of state
subjects Timberline to FLSA coverage, and dispute the
applicability of various exemptions under the FLSA. The
parties dispute whether the Wage and Hour Investigators used
reliable methods to calculate overtime due. Finally, the
parties dispute whether Defendants made a good faith and
reasonable determination that the wage and hour provisions of
the FLSA do not apply to Timberline operations, so as to
insulate them from liability for liquidated damages.
filed a Motion to Strike on May 11, 2017, seeking to strike
certain exhibits attached to Defendants' Motion for
Summary Judgment, and the portions of Defendants' Motion
for Summary Judgment that rely on such evidence.
Specifically, Plaintiff seeks to strike the USDOT Company
Snapshot of Timberline Logging, Inc., and portions of Jim
Payne's affidavit stating that Timberline drivers
maintain CDL licenses. These documents were produced for the
first time as an attachment to Defendants' Motion for
Summary Judgment. Defendants rely on this evidence in their
Motion for Summary Judgment to support the argument that
Timberline drivers are subject to the Secretary of
Transportation's authority to set qualifications and
maximum hours and, therefore, that its drivers are exempt
from the overtime provisions of the FLSA under the Motor
filed a Motion to Amend Complaint on April 19, 2017.
Plaintiff's Proposed Amended Complaint seeks 1) to add
additional employees and former employees of Defendants
identified during discovery to whom Plaintiff alleges
overtime compensation is due; 2) to allege additional
recordkeeping violations of the Act identified during
discovery; and (3) to amend the Complaint to conform to facts
identified during discovery. Defendants oppose the Motion on
grounds of futility, undue delay, and prejudice.
reasons that follow, Plaintiff's Motion for Summary
Judgment will be granted in part and denied in part;
Defendants' Motion for Summary Judgment will be denied;
Plaintiff's Motion to Strike will be denied;
Plaintiff's Motion to Amend will be granted; supplemental
briefing on damages will be ordered; and Defendants will be
enjoined from further violations of the overtime and record
keeping provisions of the Act.
Timberline South, LLC (“Timberline”) is organized
as a Michigan limited liability company and is based in
Gaylord, MI. Pl.'s Mot. Summ. J. at 2, ECF No. 18;
Defs.' Mot. Summ. J. at 4, ECF No. 19. Timberline engages
exclusively in harvesting and felling raw timber and
delivering the timber to mills located solely within the
state of Michigan. Def. Mot. at 2. Timberline harvests the
timber from professionally managed timber stands owned by
state and private entities. Id. Timberline is a
small business employing less than thirty employees at any
given time. Id. Prior to the formation of Defendant
Timberline South, LLC, Defendant Payne operated a company
known as Timberline Logging, Inc., (“Timberline
Logging”), a timber harvesting business based in
Tennessee. Pl.'s Mot. at 2, 6. Timberline Logging went
out of business in 2010. Timberline South, LLC was founded at
or about the same period of time. Id.
Timberline's business operations occur solely within the
state of Michigan. Id.
have no financial or ownership interest in the mills they
deliver timber to. Pl.'s Mot. at 3; Defs.' Mot. at 4.
The equipment used by Timberline in its logging operations,
including harvesters and forwarders, was purchased in
Michigan but manufactured outside Michigan. Pl's Mot. at
3-4; Defs.' Mot. at 3. It is undisputed that Timberline
qualifies as an “enterprise” under Section
203(r)(1) of the Act. Defs.' Resp. at 2, ECF No. 24. It
is undisputed that Timberline is also an
“employer” under Section 203(d) of the Act.
Id. Timberline has had an annual gross volume of sales
of more than $500, 000 for each year relevant to this
litigation. Pl.'s Mot. Ex. B (Defs.' Admiss.) at 4,
ECF No. 18-3; Ex. E (Defs.' Interrogs.) at 10, ECF No.
employees work in a variety of roles including equipment
operators, loaders, mechanics, truck drivers, and
administrative staff. Pl.'s Mot. at 3; Defs.' Mot. at
5, 12, 18. More than eight Timberline employees are engaged
in felling operations during each workweek of the
Investigation Period. Defs.' Resp. at 16.
Timberline's administrative employees are paid on an
hourly, not salary basis. Pl.'s Mot. Ex. C (Payne Tr.) at
96, ECF No. 18-4; Ex. G (Empl. Hrs. and Gross) at 1, 26, 51,
ECF No. 18-8. Timberline's trucks operate under USDOT
registration numbers, and its drivers maintain Commercial
Drivers Licenses (“CDLs”). Defs.' Mot. Ex. DX
6 (USDOT Registration Numbers), ECF No. 19-7; Def. Resp. at
Timberline employees are paid hourly rates, some non-hourly
rates, and some a combination of hourly rates as well as day,
cord, piece, and/or load rates. Pl's Mot. at 4; Ex. I
(Payroll Journal), ECF No. 18-10; Defs.' Mot. at 4.
Defendants recorded hours worked for hourly employees.
Pl's Mot. Ex. P (Wrona Decl.) ¶¶ 10-17; ex. Q
(Wage and Hour Form 55). Defendants did not record hours
worked for most non-hourly employees, did not compute regular
hourly rates for employees, and have never paid an overtime
wage of one and one-half times the regular hourly rate for
hours worked beyond forty. Payne Tr. at 168-170, 280.
Defendants assert they did not compute a “regular
[hourly] rate, ” because Timberline's compensation
structure included compensation for travel to work time,
lunch pay, fuel, daily rates, piece rates, and a company
mobile phone. Payne Aff. ¶ 11-12.
and Hour initiated an investigation of Timberline in July
2015 that covered the time period from August 25, 2013
through August 20, 2015 (the “Investigation
period”). Pl's Mot. at 9; Def. Mot. at 2.
Investigator Wrona calculated overtime wages due to hourly
employees based on payroll records produced by the Defendants
as well as interviews with employees. Wrona Decl.
¶¶ 10-17; Wage and Hour Form 55. Wrona calculated
overtime wages due to non-hourly employees based upon
employee interviews. Wrona Decl. ¶¶ 10-17.
For example, for an employee working 60 hours and earning $1,
500 in a given week, I would determine the regular rate by
dividing 1, 500 by 60, to obtain a regular rate of $25 per
hour. Then I would multiply half the regular rate that week,
$12.50, by the number of overtime hours worked, 20, to
determine back wages due that workweek of $250.
Mr. Wrona knew that employee estimates often included drive
time and meal time, which were included in his calculations.
Def. Mot. Ex. DX-5 (Wrona Dep.) at 53-54. For some employees
paid a combination of hourly, cord, and day rates, when he
did not estimate hours worked based on an interview Mr. Wrona
divided gross pay for a workweek by the hourly rate to
determine hours worked. Id. at 57-58. In one case,
Mr. Wrona divided a gross pay of $2, 448 by an hourly rate of
$22.00 to determine that the employee worked 111.27 hours
that week. Id. He then multiplied the hours in
excess of 40, or 71.27, by a 0.5 multiplier to calculate the
overtime due. Id.
record contains declarations of eight employees and a
deposition of one employee containing estimated hours worked.
Pl's Mot. Ex. O (Empl. Decl.), ECF No. 18-16; Ex. U
(Cheryl Klein Dep.), ECF No. 18-22. “Wage and Hour
ultimately determined that Defendants failed to pay $468,
595.08 in back wages to fifty employees through March 17,
2017.” Wrona Decl. ¶¶ 10-17; see
Wage and Hour Form 55.
also seeks liquidated damages on the grounds that Defendants
did not make a good faith and reasonable determination that
the provisions of the FLSA did not apply to Timberline. Prior
to the formation of Timberline South, LLC, office manager
Lorrie Grubbe, at the request of Defendant Payne, sent an
email to Timberline Logging, Inc.'s accountant, Mr.
Rooyakker, asking “do you know if we would be exempt
under FLSA in Tennessee.” Pl.'s Mot. at 6, Ex. K
(Rooyaker email), ECF No. 18-12; Def. Mot. at 3. Mr. Rooyaker
informed Defendant Payne that Timberline Logging, Inc. was
exempt from overtime obligations based on an agricultural
exemption. Id. Mr. Rooyaker did not offer an opinion
about which specific employees of Timberline Logging, Inc.
were subject to the exemption, the applicability of the
exemption to Timberline South, LLC, or the applicability of
any other exemption. Pl.'s Mot. Ex. L (Rooyakker Tr.) at
61-62, ECF No. 18-13.
Rooyaaker did not instruct Mr. Payne to not pay time and
one-half for his employees. He left the decision to
“Jim Payne and his personnel” to determine what
employees the agricultural exemption applied to. Id.
at 80. Mr. Payne established Timberline's compensation
and recordkeeping practices without consulting Mr. Rooyakker.
Defs.' Admiss. at 2-3; Payne Tr.at 173. Mr. Payne did not
believe that truck drivers were agricultural
employees. Payne Tr. at 306. Mr. Payne read parts of
U.S. DOL Fact Sheet #19 on the Motor Carrier Exemption, but
does not recall whether he did so prior to initiation of the
DOL investigation. Payne Tr. at 351-54.
motion for summary judgment should be granted if the
“movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The moving party
has the initial burden of identifying where to look in the
record for evidence “which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The burden then shifts to the opposing party who must set out
specific facts showing “a genuine issue for
trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986) (citation omitted).
The Court must view the evidence and draw all reasonable
inferences in favor of the non-movant and determine
“whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Id. at 251-52.
Fair Labor Standards Acts compels covered employers to
provide overtime pay to any non-exempt employee who works
more than forty hours per workweek for “employment in
excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1); Jewell Ridge
Coal Corp. v. Local No. 6167, 325 U.S. 161, 167 (1945).
In an action by the employee to recover unpaid wages under
the FLSA, the employee “must prove by a preponderance
of evidence that he or she performed work for which he was
not properly compensated.” Myers v. Copper Cellar
Corp., 192 F.3d 546, 551 (6th Cir. 1999) (citing
Anderson v. Mt. Clemens Potter Co., 328 U.S. 680,
FLSA overtime provisions do not apply to all employers, but
apply only to enterprises “engaged in commerce or in
the production of goods for commerce.” Section 29
U.S.C. § 203(s)(1)(A)(i). Such an enterprise includes
one that “has employees engaged in commerce or in the
production of goods for commerce, or that has employees
handling, selling, or otherwise working on goods or materials
that have been moved in or produced for commerce by any
person; is an enterprise whose annual gross volume of sales
made or business done is not less than $500, 000.”
its original enactment in 1938, Congress has amended the FLSA
three times, each time enlarging the number of entities
subject to coverage under the Act.” Polycarpe v.
E&S Landscaping Serv., Inc., 616 F.3d 1217, 1220
(11th Cir. 2010). The Act initially defined coverage solely
in terms of covered employees, as opposed to covered
employers. Id. Employees were covered if they were
engaged in commerce or the production of goods for commerce.
Id. Congress amended the act in 1961 to provide for
enterprise wide coverage for employers with two or more
workers engaged in commerce or the production of goods for
commerce. See Fair Labor Standards Amendments of
1961, Pub.L. No. 87-30, 75 Stat. 65 (1961).
1961 amendments also added another alternative avenue for
enterprise coverage to attach, which has become known as the
“handling clause.” Polycarpe at 1220.
The handling clause extends coverage to any enterprise who
“has employees handling, selling, or otherwise working
on goods or materials that have been moved in or produced for
commerce by any person.” 29 U.S.C. §
203(s)(1)(A)(i). This amendment has been interpreted to allow
the FLSA “potentially to reach retail and service
businesses that were otherwise locally focused.”
Polycarpe, 616 F.3d at 1220 (citing Dunlop,
516 F.2d at 501).
amended the Act again in 1974, substituting the word
“or” for the word “including”
directly before the handling clause. See Fair Labor
Standards Amendments of 1974, Pub.L. 93-259, 88 Stat. 55
(1974). This implemented Congress's intent that the
handling clause provided a second independent avenue for
enterprise coverage to attach. Polycarpe at 1221.
Contrary to the first half of section 203(s)(1)(A)(i), which
applies only to employees engaged in commerce or production
of goods for commerce, the handling clause applies to
enterprises whose employees have handled goods and materials
that have moved through commerce, even if they cease to so
move after coming into possession of the enterprise and its
1974 amendment also added the words “or
materials” to the handling clause. Id. Prior
to the 1974 amendments the handling clause applied to
enterprises with employees handling, selling or working on
“goods” that had moved in interstate commerce.
Id. After the 1974 amendments, the handling clause
extended coverage to enterprises with employees handling,
selling, or working on “goods or
materials” that had moved in interstate commerce.
provides an exception to the applicability of the handling
clause in its definition of goods, excluding “goods
after their delivery into the actual physical possession of
the ultimate consumer thereof other than a producer,
manufacturer or processor thereof.” 29 U.S.C. §
203(i). Thus, an enterprise would not be considered engaged
in commerce under the handling clause simply by virtue of
handling goods that have moved through commerce if the
enterprise is the ultimate consumer thereof. Id.
This is often referred to as the
“ultimate-consumer” exception. Id.
the text only provides an ultimate-consumer exception for
goods, and not for materials. Although
“materials” is undefined in the Act, the Senate
report provides one example: “soap used by a
laundry.” S. Rep. No. 93-690, at 17 (1974) (internal
citations omitted). Case law has interpreted
“materials” under the Act to mean “tools or
other articles necessary for doing or making
something.” Polycarp at 1224. The context of
the article's use must be considered to determine if it
is a material. Id. For instance, a china plate used
by a catering business to serve customers is a “tool
or other article necessary for doing or making something,
” whereas a decorative china plate hung on a wall is
not. Id. Additionally, an article that constitutes a
material under the above definition must also bear a
significant connection with the enterprise's commercial
activity; “the business may not just somehow internally
and incidentally consume the item.” Polycarp
case law and senate report reflect that the statute is not to
extend to incidental consumption by an enterprise such as
hand soap used in a restroom, which would be subject to the
ultimate consumer exception as a good. Rather the intent is
to cover articles or equipment used in the enterprise's
commercial activity. Such use by an enterprise renders the
article a material, rather than a good, and the enterprise is
therefore engaged in commerce under the Act.
have concluded that enterprises are engaged in commerce under
the Act where their employees handled and used equipment
purchased locally which had previously moved through
commerce. E.g., Dole v. Morefield Const.
Co., 745 F.Supp. 1231 (E.D. Mich. 1990) (finding
construction company engaged in commerce under the Act
despite primarily conducting intra-state business where its
employees handled and used trenchers, bulldozers, and other
machinery manufactured out of state); Donovan v.
Pointon, 717 F.2d 1320, 1322 (10th Cir. 1983)
(affirming district court's holding that construction
company was engaged in commerce where it used locally
purchased equipment and replacement parts that were
manufactured out of state); Marshall v. Brunner, 668
F.2d 748, 751 (3d Cir. 1982) (affirming district court's
holding that garbage collection company was engaged in
commerce where it used trucks, truck bodies, tires, batteries
and accessories manufactured out of state); Polycarpe v.
E&S Landscaping Serv., Inc. 616 F.3d 1217, 1228
(11th Cir. 2010) (directing district court to consider on
remand the location where landscaping company's lawn
mowers, edgers, and trucks were manufactured in order to
determine whether the enterprise was engaged in commerce).
“coming to rest” theory is an erroneous legal
theory at odds with the amended text of 29 U.S.C. §
203(s)(1)(A)(i). The theory rests on an incorrect belief that
goods transported through interstate commerce lose their
interstate character once they have “come to
rest” locally. Polycarpe at 1221; see
Donovan v. Scoles, 652 F.2d 16, 18 (9th Cir.1981)
(stating that this doctrine was appropriate when FLSA
coverage depended not on enterprise coverage, but only on
individual coverage: employees who were “engaged in
commerce or the production of goods for commerce”).
This doctrine has been rejected in the enterprise coverage
context as based on an incorrect reading of the amended FLSA.
Polycarpe at 1221. “[T]he legislation was
designed to regulate enterprises dealing in articles
acquired intrastate after travel in interstate
commerce.” Id. (citing Brennan v.
Greene's Propane Gas Serv., Inc., 479 F.2d 1027,
1030 (5th Cir. 1973); see also 29 C.F.R.
§ 779.242 (stating that it is “immaterial ... that
the goods may have ‘come to rest' ”).
the language of the latter half of the handling clause is in
the past tense, providing that an enterprise is engaged in
commerce where it “has employees handling, selling, or
otherwise working on goods or materials that have been
moved in or produced for commerce by any person.”
29 U.S.C. § 203(s)(1(A)(i) (emphasis added). The plain
language of the statute imposes no continuous movement
requirement. The handling clause is still operative where a
good or material ceases to move through commerce and
“comes to rest” locally where it is then
purchased by an enterprise. Where such a good or material had
at one point been moved through commerce, and an
enterprise's employees handle or use such a good or
material in enterprise operations, the enterprise is engaged
in commerce under the Act. Polycarpe at 1228.
FLSA provides a number of exemptions to its overtime
provisions. An employer who falls within the broad scope of
enterprise coverage under § 203(s)(1)(A)(i) may
nonetheless be exempt from the overtime provisions if it
qualifies for an exemption. Particular employees may also be
exempt. Defendants believe the following exemptions apply in
this case: i) the Forestry Exemption; ii) the Agricultural
Exemption; iii) the Administrative Employees Exemption; and
iv) the Motor Carrier Exemption.
The forestry exemption applies to
any employee employed in planting or tending trees, cruising,
surveying, or felling timber, or in preparing or transporting
logs or other forestry products to the mill, processing
plant, railroad, or other transportation terminal, if the
number of employees employed by his employer in such forestry
or lumbering operations does not exceed eight[.]
U.S.C. § 213(b)(28) (emphasis added). Additionally, 29
C.F.R. § 788.13 provides guidance on the methodology for
determination of the number of employees employed in the
named operations is to be made on an occupational and a
workweek basis. Thus the exemption will be available in one
workweek when eight or less employees are employed in the
exempt operations and not in another workweek when more than
that number are so employed.
C.F.R. further states that all enterprise employees employed
each workweek count toward the eight employee total,
irrespective of whether any employee is engaged in exempt
Thus if an employer employs four employees in felling timber
and preparing logs at one location and five at another
location in those operations, the exemption would not be
available. Similarly, if he employs six employees in such
operations and three other employees in transportation work
as discussed in § 788.11, the exemption could not apply.
Under such circumstances he would be employing more than
eight employees in the named operations. The fact that
some of these employees may not be engaged in commerce or the
production of goods for commerce or may be engaged in other
exempt operations will not affect these conclusions
(Woods Lumber Co. v. Tobin, 199 F.2d 455 (C.A. 5))
29 C.F.R. § 788.13 (emphasis added). The same analysis
applies where an employee engages in some exempt activities
and some non-exempt activities. Camargo v. Trammell Crow
Interest Co., 318 F.Supp.2d 443, 447 (E.D. Tex.
2004) (“If an employee in the same work week performs
both work which is exempt from overtime requirements and work
that is not exempt, he is not exempt that week, and the
overtime pay requirements of the FLSA are
applicable”)(citing 29 C.F.R. § 780.11).
Agricultural Exemption applies in part “to any employee
employed in agriculture.” 29 U.S.C. § 213(b)(12).
Agriculture is defined as
farming in all its branches and among other things includes
the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any
agricultural or horticultural commodities (including
commodities defined as agricultural commodities in section
1141j(g) of Title 12), the raising of livestock, bees,
fur-bearing animals, or poultry, and any practices
(including any forestry or lumbering operations) performed by
a farmer or on a farm as an incident to or in conjunction
with such farming operations, including preparation for
market, delivery to storage or to market or to carriers for
transportation to market 29 U.S.C. § 203(f) (emphasis
added). The definition contains two parts. Part one, also
known as the primary meaning, refers to farming in all its
branches. Farmers Reservoir & Irrigation Co. v.
McComb, 337 U.S. 755, 762 (1949). The secondary meaning
includes any other practices performed by a farmer as
incident to or in conjunction with farming operations.
Administrative Employee Exemption applies, in relevant part,
to “any employee employed in a bona fide executive,
administrative, or professional capacity . . .” The
Code of Federal Regulations provides guidance on the meaning
of “bona fide” administrative professional,
limiting the application to employees “compensated on a
salary or fee basis at a rate of net less than $455 per week
. . .” 29 C.F.R. § 541.200.
U.S.C. § 213(b)(1) provides an exemption from the
FLSA's overtime provisions for “any employee with
respect to whom the Secretary of Transportation has power to
establish qualifications and maximum hours of service”
(the “Motor Carrier Exemption”). 29 U.S.C. §
213(b)(1). The Secretary has jurisdiction over transportation
of passengers or property by motor carrier into interstate
commerce. See 49 U.S.C.A. § 13501.
into interstate commerce includes crossing state lines, and
also includes intrastate transportation that forms a
“practical continuity of movement” across state
lines from the point of origin to the point of destination.
29 C.F.R. § 782.7. A “practical continuity of
movement exists” where intrastate delivery is merely a
“convenient intermediate step in the process of getting
[the goods] to their final [interstate] destination.”
Walling v. Jacksonville Paper Co., 317 U.S. 564, 568
regulatory authority of the DOT is broad, including, for
example, the authority to regulate hazardous materials
transportation. Hazardous Materials Transportation Act, 49
U.S.C. § 5101 et seq. This broad authority to
regulate transportation is not necessarily co-extensive with
the Secretary's authority to establish maximum hour
requirements for motor carriers in interstate commerce, as
explained by the First Circuit:
The motor carrier exemption applies only when the Secretary
“has power to establish qualifications and maximum
hours of service” pursuant to 49 U.S.C. § 31502.
29 U.S.C. § 213(b). Whether the Secretary has power to
conduct other business and promulgate unrelated regulations
within Puerto Rico is irrelevant to this inquiry, and does
not create ambiguity from plain meaning.
(Herman v. Hector I. Nieves Transp., Inc., 244 F.3d
32, 36 (1st Cir. 2001).
an enterprise whose truck drivers are subject to some degree
of regulation by the Department of Transportation does not
automatically subject the enterprise to the Secretary of
Transportation's power to establish maximum hours of
service. The Secretary only has such power over motor
carriers transporting passengers or property in interstate
commerce, and only those motor ...