Virginia Lawyers Weekly VA Lawyers Weekly
A tow-truck driver suing for extra pay, who tows vehicles between private lots in Virginia, may have not have individual coverage under the Fair Labor Standards Act, but there is a genuine issue of material fact as to whether the towing company has the requisite $500,000 gross sales volume for coverage as an “enterprise” under the FLSA, says an Alexandria U.S. District Court.
Turning first to the question of whether plaintiff was engaged in commerce or in the production of goods for commerce, the 4th Circuit has found that employees working for a wrecking business that also towed vehicles from interstate highways were engaged in commerce because they helped to keep the interstate flow of traffic free and unobstructed. The 4th Circuit also has considered whether the employee crosses state lines in connection with his employment and whether the employee handles goods directly moving in the channels of interstate commerce. In another case, the 4th Circuit found that employees who mailed newsletters (among other things) to people outside the state in an attempt to obtain out-of-state customers were engaged in commerce.
Plaintiff’s duties as a tow truck driver consisted primarily of towing vehicles that were illegally parked or violated private parking rules from private lots in Arlington County, Fairfax County and Alexandria City. Plaintiff never towed any of those vehicles across state lines to Washington, D.C. or Maryland. Thus, unlike individuals who cleared wrecked vehicle from the interstate, plaintiff was not regularly engaged in helping keep the interstate flow of traffic free and unobstructed.
Further, plaintiff does not allege he handled interstate phone calls or credit card transactions and it is undisputed that plaintiff did not cross state lines in connection with his employment. Plaintiff did handle some objects that likely had crossed state line and likely would do so again, but there is no evidence they were goods directly moving in the channels of interstate commerce. Plaintiff argues that being towed constitutes transportation in the course of interstate travels for those vehicle owners without out-of-state plates. Yet, there is no evidence indicating the vehicles were transporting goods across state lines, that he vehicles themselves were being transported as goods, or that any goods were directly moving in an identifiable stream of commerce.
Although plaintiff may have had an effect on a vehicle moving in interstate commerce, it was not one that is directly and vitally related to the functioning of an instrumentality or facility of interstate commerce. This court finds plaintiff’s towing of vehicles between private lots within Virginia to other private lots within Virginia is a decidedly local pursuit. The court grants defendant’s motion for summary judgment on the basis that plaintiff is not entitled to coverage under the FLSA as an individual employee.
However, plaintiff may be covered under the FLSA as an employee in an “enterprise” engaged in commerce or in the production of goods for commerce. Plaintiff has produced evidence that suggests East Coast Towing has the requisite connection to interstate commerce. Especially since computation of annual gross volume of sales is not limited to any particular 12-month period, this court finds plaintiff has alleged sufficient evidence to create a genuine issue of material facts as to whether East Coast Towing meets the $500,000 threshold. The court denies defendants’ motion for summary judgment on the basis that East Coast Towing does not qualify as an “enterprise” under the FLSA.
Rains v. East Coast Towing & Storage LLC (Cacheris) No. 1:11cv189, Sept. 20, 2011; USDC at Alexandria, Va. VLW 011-3-514, 16 pp.
