{ "id": 8410954, "name": "RICKY WHITEHEAD, on behalf of himself and all other similarly situated persons, Plaintiff v. SPARROW ENTERPRISE, INC., d/b/a LABOR FINDERS, Defendant", "name_abbreviation": "Whitehead v. Sparrow Enterprise, Inc.", "decision_date": "2004-12-07", "docket_number": "No. COA04-208", "first_page": "178", "last_page": "193", "citations": [ { "type": "official", "cite": "167 N.C. App. 178" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "29 C.F.R. \u00a7 785.38", "category": "laws:admin_compilation", "reporter": "C.F.R.", "opinion_index": -1 }, { "cite": "262 F.2d 552", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 437465 ], "weight": 2, "year": 1958, "pin_cites": [ { "page": "553-54" } ], "opinion_index": 0, "case_paths": [ "/f2d/262/0552-01" ] }, { "cite": "798 F.2d 1345", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1610115 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "1346" } ], "opinion_index": 0, "case_paths": [ "/f2d/798/1345-01" ] }, { "cite": "229 F. Supp. 746", "category": "reporters:federal", "reporter": "F. 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Va. 1992) (citing 29 U.S.C. \u00a7 254(a)(2), (b)), aff'd per curiam, 993 F.2d 1539 (4th Cir. 1993" } ], "opinion_index": 0, "case_paths": [ "/f-supp/950/1317-01" ] }, { "cite": "29 U.S.C. \u00a7 254", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 6, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis supplied" }, { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "36 F.3d 417", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 6122954, 10524060 ], "weight": 12, "year": 1994, "pin_cites": [ { "page": "425" }, { "page": "424" }, { "page": "424" }, { "page": "423" }, { "page": "425" } ], "opinion_index": 0, "case_paths": [ "/br/172/0417-01", "/f3d/36/0417-01" ] }, { "cite": "29 C.F.R. \u00a7 531.3", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 2004, "pin_cites": [ { "page": "(d)(1)" } ], "opinion_index": 0 }, { "cite": "29 C.F.R. \u00a7 531.32", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 2, "year": 2004, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis supplied" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "29 C.F.R. \u00a7 531.27", "category": "laws:admin_compilation", "reporter": "C.F.R.", "year": 2004, "opinion_index": 0 }, { "cite": "29 U.S.C. \u00a7 203", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(m)" } ], "opinion_index": 0 }, { "cite": "305 F.3d 1228", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11393654 ], "weight": 10, "year": 2002, "pin_cites": [ { "page": "1236", "parenthetical": "quoting 29 U.S.C. \u00a7 203(m)" }, { "page": "1241-42" }, { "page": "1228" }, { "page": "1232" }, { "page": "1234" }, { "page": "1231-32" }, { "page": "1242" }, { "page": "1242-43" } ], "opinion_index": 0, "case_paths": [ "/f3d/305/1228-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 95-25.14", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "515 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "350 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132244 ], "year": 1999, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0567-01" ] }, { "cite": "545 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135880 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0445-01" ] }, { "cite": "538 S.E.2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "630", "parenthetical": "quotation omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 737", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12134800 ], "year": 2000, "pin_cites": [ { "page": "738", "parenthetical": "quotation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0737-01" ] }, { "cite": "565 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "17", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511222 ], "year": 2002, "pin_cites": [ { "page": "13", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0001-01" ] }, { "cite": "513 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "574" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240754 ], "year": 1999, "pin_cites": [ { "page": "809" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0807-01" ] }, { "cite": "571 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "851", "parenthetical": "citing Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999)" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249232 ], "year": 2002, "pin_cites": [ { "page": "167", "parenthetical": "citing Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0163-01" ] }, { "cite": "179 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560114 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0268-01" ] }, { "cite": "192 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "97", "parenthetical": "citing State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971)" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 407", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551504 ], "year": 1972, "pin_cites": [ { "page": "409-10", "parenthetical": "citing State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0407-01" ] }, { "cite": "488 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "634" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11795256 ], "year": 1997, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0312-01" ] }, { "cite": "29 U.S.C. \u00a7 201", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 95-25:1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 95-25.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 95-25.8", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 13, "pin_cites": [ { "page": "(2)(a)" }, { "page": "(2)(a)" }, { "page": "(2)(b)" }, { "page": "(2)(b)" }, { "page": "(2)(a)" }, { "page": "(2)(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 95-25.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "et seq." }, { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "29 C.F.R. \u00a7 785.38", "category": "laws:admin_compilation", "reporter": "C.F.R.", "weight": 3, "opinion_index": 0 } ], "analysis": { "cardinality": 1250, "char_count": 36377, "ocr_confidence": 0.741, "pagerank": { "raw": 2.4033137686923415e-07, "percentile": 0.799140799328455 }, "sha256": "837537453b25ff5a8d0edd2865182207def42f3c133adcd1c1b7161bfdd5fa0b", "simhash": "1:89315c80a7aa0fb0", "word_count": 5882 }, "last_updated": "2023-07-14T15:53:28.670431+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and LEVINSON concur." ], "parties": [ "RICKY WHITEHEAD, on behalf of himself and all other similarly situated persons, Plaintiff v. SPARROW ENTERPRISE, INC., d/b/a LABOR FINDERS, Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nRicky Whitehead (\u201cplaintiff\u2019) on behalf of those similarly situated (collectively, \u201cthe class members\u201d) appeal from entry of summary judgment in favor of Sparrow Enterprise, Inc. (\u201cdefendant\u201d) after the trial court found no violations of the North Carolina Wage and Hour Act (\u201cthe NCWHA\u201d), N.C. Gen. Stat. \u00a7 95-25.1 et seq. (2003)). We affirm.\nI. Background\nDefendant is a temporary employment agency that hires individuals on a daily basis for casual labor. Defendant markets and provides the temporary labor to businesses that periodically need additional workers.\nDefendant\u2019s hiring policy is structured on a first come first serve basis. Individuals seeking work must arrive at defendant\u2019s office early in order to be considered available for employment. At their first hiring, the class members are required to sign the \u201cHouse Rules.\u201d The \u201cHouse Rules\u201d discloses defendant\u2019s hiring process, the details and rules of employment, hours of operation, the hourly wage, hours worked, and standard deductions which include optional transportation expenses. Plaintiff signed the \u201cHouse Rules\u201d on 2 January 2001.\nUpon arrival in the morning, the class members write their names on a sign-in sheet and wait for an assignment of available jobs. The \u201cHouse Rules\u201d specifically states such time is not compensable, \u201cHours worked and pay are determined from the time the worker starts working at the customer\u2019s establishment And (sic) ends when the work is completed at the customer\u2019s establishment.\u201d While waiting, the class members often eat breakfast, read a newspaper, watch television, talk, or sleep.\nThe class members who are offered work are called to the assignment desk and provided a description of the job and pay. If they accept the position, they are asked whether they have transportation available. If they do not, the class members will ride with either a fellow employee or in defendant\u2019s van. The cost to the class members is $1.00 each way. The \u201cHouse Rules\u201d explains the transportation program and cost to the participant.\nAfter receiving work assignments, defendant provides general safety equipment like hard hats, boots, and gloves to those employees who would need them. The class members either wait for the van pool or secure their own transportation to the job site. They are allowed to do whatever they want during this period, so long as they arrive at the job site on time. Those who select defendant\u2019s van pool are not given any instructions about the job during the ride. Plaintiffs have the option to be paid at the end of the workday or at a later time.\nOn 12 June 2002, plaintiff, acting on behalf of himself and the class members, filed a class action complaint under Rule 23 of the North Carolina Rules of Civil Procedure asserting two claims. First, plaintiff argued the wage deductions for the communal transportation were illegal under N.C. Gen. Stat. \u00a7 95-25.8. Second, plaintiff argued employees who elect to use the optional transportation should be paid for time spent while both waiting for the van and riding to and from the job sites under N.C. Gen. Stat. \u00a7 95-25.6. Plaintiff sought redress solely under the NCWHA. Defendant answered on 16 January 2003.\nDefendant filed a Motion for Summary Judgment on 16 September 2003. It asserted: (1) plaintiff agreed to both situations by signing enforceable contracts; (2) defendant is exempt from the jurisdiction of the NCWHA; and (3) plaintiff is not an adequate class representative to allow the class action to proceed.\nOn 21 November 2003, the trial court found the \u201cmaterial facts regarding these claims are not in significant dispute [and] [t]he issue ... is whether or not the undisputed material facts of record establish a violation of the Wage and Hour Act.\u201d The trial court held plaintiff made no showing of a violation of the NCWHA and granted defendant\u2019s motion for summary judgment on both claims. Plaintiff appeals.\nII. Issues\nThe issues on appeal are whether: (1) defendant is exempt from the jurisdiction of the NCWHA; (2) the trial court properly granted summary judgment in favor of defendant on the class members\u2019 transportation deduction claim; and (3) the trial court erred in granting summary judgment in favor of defendant on the class members\u2019 time spent both waiting and traveling claim.\nIII. Federal Statutes. Regulations, and Cases as Guidance\nWe note at the outset that the issues before us arise from employment and labor law, a substantive area monopolized by federal statutes, regulations, and case law. Plaintiff\u2019s claims are based on the NCWHA, N.C. Gen. Stat. \u00a7 95-25:1 et. seq. The NCWHA is modeled after the Federal Fair Labor Standards Act (\u201cthe FLSA\u201d), 29 U.S.C. \u00a7 201 et seq. Laborers\u2019 Int\u2019l Union of North America, AFL-CIO v. Case Farms, Inc., 127 N.C. App. 312, 314, 488 S.E.2d 632, 634 (1997). The North Carolina Administrative Code (\u201cthe Code\u201d) states that \u201cjudicial and administrative interpretations and rulings established under [] federal law\u201d may serve as a guide for interpreting North Carolina laws when our Legislature has adopted provisions of the FLSA. N.C. Admin. Code tit. 13, r. 12.0103 (June 2004).\nWe are not bound by decisions of Federal circuit courts other than those of the United States Court of Appeals for the Fourth Circuit arising from North Carolina law. Haynes v. State, 16 N.C. App. 407, 409-10, 192 S.E.2d 95, 97 (1972) (citing State v. Barber, 278 N.C. 268, 179 S.E.2d 404 (1971)).\nIV. Standard of Review\nWe review a trial court\u2019s entry of summary judgment de novo. Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 167, 571 S.E.2d 849, 851 (2002) (citing Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999)). Under de novo review, a reviewing court considers the matter anew, and it may substitute its own judgment for that of the trial court. Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002) (citation omitted).\nA grant of summary judgment is proper when: \u201c(1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law.\u201d Von Viczay v. Thoms, 140 N.C. App. 737, 738, 538 S.E.2d 629, 630 (2000) (quotation omitted), affdper curiam, 353 N.C. 445, 545 S.E.2d 210 (2001). The moving party has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 572, 515 S.E.2d 438, 441 (1999). Both this Court and the trial court must view the evidence in the light most favorable to the non-moving party and all inferences from that evidence must be drawn against the moving party and in favor of the non-moving party. Id.\nAfter a review of the record and hearing the parties\u2019 oral arguments, we conclude no genuine issues of material fact exist. We review the trial court\u2019s conclusions of law.\nV. Exemption from the NCWHA\nDefendant asserts, as an enterprise engaged in interstate commerce, its relationships with the class members are covered by the FLSA and not within the jurisdiction of the NCWHA. We disagree.\nN.C. Gen. Stat. \u00a7 95-25.14(a) (2003) provides exemptions to employers from the NCWHA in limited circumstances, which states:\nThe provisions of G.S. 95-25.3 (Minimum Wage), G.S. 95-25.4 (Overtime), and G.S. 95-25.5 (Youth Employment), and the provisions of G.S. 95-25.15(b) (Record Keeping) as they relate to these exemptions, do not apply to:\n(1) Any person employed in an enterprise engaged in commerce or in the production of goods for commerce as defined in the Fair Labor Standards Act....\nPlaintiff\u2019s claims arise from N.C. Gen. Stat. \u00a7\u00a7 95-25.6 and 95-25.8 which address Wage Payment and Withholding of Wages respectively. The statute defendant relies upon for exemption does not cover either section of the NCWHA. Defendant\u2019s argument is overruled.\nVI. Transportation Deduction Claim\nPlaintiff asserts defendant failed to comply with the North Carolina statutes and the Code, which provide when and how employers may deduct wages from employees\u2019 paychecks. We disagree.\nA. Specific Authorization of Wage Withholding\nN.C. Gen. Stat. \u00a7 95-25.1 et seq. comprise the NCWHA. N.C. Gen. Stat. \u00a7 95-25.8 (2003) addresses wage withholding, which states:\nAn employer may withhold or divert any portion of an employee\u2019s wages when:\n(1) The employer is required or empowered to do so by State or federal law, or\n(2) The employer has a written authorization from the employee which is signed on or before the payday for the pay period from which the deduction is to be made indicating the reason for the deduction. Two types of authorization are permitted:\n(a) When the amount or rate of the proposed deduction is known and agreed upon in advance, the authorization shall specify the dollar amount or percentage of wages which shall be deducted from one or more paychecks, provided that if the deduction is for the convenience of the employee, the employee shall be given a reasonable opportunity to withdraw the authorization;\n(b) When the amount of the proposed deduction is not known and agreed upon in advance, the authorization need not specify a dollar amount which can be deducted from one or more paychecks, provided that the employee receives advance notice of the specific amount of any proposed deduction and is given a reasonable opportunity to withdraw the authorization before the deduction is made.\nThe statute offers employers two options of written authorization to deduct wages. First, N.C. Gen. Stat. \u00a7 95-25.8(2)(a) addresses deductions of a \u201cknown\u201d sum of money, a specific authorization. N.C. Admin. Code tit. 13, r. 12.0305 (June 2004). Employees who agree to specific authorizations must receive from their employers an opportunity to withdraw the authorization before the deduction is made, \u201cif the deduction is for the convenience of the employee ....\u201d N.C. Gen. Stat. \u00a7 95-25.8(2)(a). Second, N.C. Gen. Stat. \u00a7 95-25.8(2)(b) refers to a blanket authorization, one made for an unknown amount of money. N.C. Admin. Code tit. 13, r. 12.0305. Before a deduction may be completed under a blanket authorization, the employee must receive notice of the specific amount and a reasonable opportunity to withdraw the authorization. N.C. Gen. Stat. \u00a7 95-25.8(2)(b).\nThe Code further requires valid wage deduction authorizations by employees to be: (1) written; (2) signed by the employee on or before the payday for the pay period for which the deduction is made; (3) show the date of signing by the employee; and (4) state the reason for the deduction. N.C. Admin. Code tit. 13, r. 12.0305(b). If the authorization is specific, the dollar amount or percentage of wages withheld must be provided. Id. Before an employer may deduct wages under a blanket authorization, it must first provide the employee: (1) advance notice of the specific amount of the proposed deduction; (2) a reasonable opportunity of at least three calendar days from the employer\u2019s notice of the amount to withdraw the authorization. N.C. Admin. Code tit. 13, r. 12.0305(d).\nEach employee hired by defendant must read and sign defendant\u2019s form, the \u201cHouse Rules.\u201d It includes the following language:\nAnyone choosing to accept transportation from Labor Finders, to one of our job sites, will be charged no less than .50 to and .50 from and no more than $1.00 to and $1.00 from the job site. Worker understands that this offer of transportation is for the worker\u2019s benefit and if worker chooses to accept transportation, worker authorizes Labor Finders to deduct the cost of that transportation in both overtime and non-overtime weeks.\nThis provision qualifies as a specific authorization under N.C. Gen. Stat. \u00a7 95-25.8(2)(a). The optional transportation service offered by defendant and its associated cost is explained. Although a range is given for the dollar amount, we hold it is sufficiently narrow to provide adequate notice to the class members. We further note the deductions for transportation expenses are not automatic. They are conditioned upon the class members specifically requesting use of the van pool each morning. Only then are wages withheld. The class members receive frequent and sufficient notice of the cost to use defendant\u2019s van pool. We hold the \u201cHouse Rules\u201d complies with the requirements of N.C. Gen. Stat. \u00a7 95-25.8(2)(a) as a specific authorization.\nFinally, the \u201cHouse Rules\u201d satisfies the Code\u2019s formatting and content- requirements. The authorization form is written, signed by the class members on or before the payday for the pay period from which the deduction is made, includes the date signed, and states the reason for the deduction. N.C. Admin. Code tit. 13, r. 12.0305(b). We hold that defendant\u2019s \u201cHouse Rules\u201d form and wage deduction procedure complies with N.C. Gen. Stat. \u00a7 95-25.8 and N.C. Admin. Code tit. 13, r. 12.0305.\nThis portion of plaintiff\u2019s assignment of error is overruled.\nB. Incident of and Necessary to Employment\nPlaintiff contends the optional transportation services offered by defendant to its employees benefit defendant and are considered neither wages nor deductible. We disagree.\nEmployers may \u201ccount as wages the reasonable cost \u2018of furnishing [an] employee with board, lodging, or other facilities, if such board, lodging, or other facilities are customarily furnished by such employer to his employees.\u2019 \u201d Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228, 1236 (2002) (quoting 29 U.S.C. \u00a7 203(m)). The employer may deduct the reasonable cost from the employee\u2019s paycheck, even if the net amount falls below the minimum wage. 29 C.F.R. \u00a7 531.27 (2004).\nThe United States Department of Labor (\u201cUSDOL\u201d) defines \u201cother facilities\u201d as:\nMeals furnished at company restaurants or cafeterias or by hospitals, hotels, or restaurants to their employees; meals, dormitory rooms, and tuition furnished by a college to its student employees; housing furnished for dwelling purposes; general merchandise furnished at company stores and commissaries (including articles of food, clothing, and household effects); fuel (including coal, .kerosene, firewood, and lumber slabs), electricity, water, and gas furnished for the noncommercial personal use of the employee; transportation furnished employees between their homes and work where the travel time does not constitute hours worked compensable under the Act and the transportation is not an incident of and necessary to the employment.\n29 C.F.R. \u00a7 531.32(a) (2004) (emphasis supplied). If the \u201cfacilities\u201d are primarily for the benefit of the employer, the cost may not be included in computing wages and the employer must \u201creimburse the expense up to the point the FLSA minimum wage provisions have been met.\u201d Arriaga, 305 F.3d at 1241-42; 29 C.F.R. \u00a7 531.3(d)(1) (2004). The issue here is whether the optional transportation service offered to the class members is \u201can incident of and necessary to the employment\u201d and primarily for the benefit of defendant. 29 C.F.R. \u00a7 531.32(a).\nPlaintiff cites Arriaga as persuasive authority to show the optional transportation service was \u201can incident of and necessary to\u201d defendant\u2019s business and primarily for defendant\u2019s own benefit. 305 F.3d at 1228. There, domestic agricultural employers hired nonimmi-grant aliens from Mexico as farm laborers to work on a seasonal basis. Id. at 1232. Laborers who passed the interview process paid for their own passage to the United States, visa costs, and various recruiting fees. Id. at 1234. After deducting these expenses from wages earned, the net income fell below the statutory minimum wage. Id. at 1231-32.\nThe Eleventh Circuit held the transportation costs were \u201can incident of and necessary to the employment\u201d and the employers must reimburse the laborers for expenses paid in coming to the employment. Id. at 1242. The court noted the determining factor was the transportation costs were \u201can inevitable and inescapable consequence of having foreign .. . workers employed in the United States.\u201d Id. The court carefully distinguished that situation from one where an employer \u201chires from its locale.\u201d Id. Further, the court distinguished between costs \u201carising from the employment itself and those that would arise in the course of ordinary life\u201d by interpreting \u201cother facilities\u201d as meaning \u201cemployment-related costs . . . that would arise as a normal living expense.\u201d Id. at 1242-43.\nWe find Arriaga persuasive, but not as plaintiff argues. The paramount distinction between the facts here and therein Arriaga is exactly what the Court discussed. In Arriaga, transportation expenses were both inevitable under the program employers used to recruit and hire foreign workers, and is substantially different from normal commuting costs. Here, defendant\u2019s transportation service is one of several options available to the class members to travel to and from job sites. They are free to use their own vehicles, ride public transportation, walk, ride with a co-worker, or defendant\u2019s van. The choice facing the class members is the same encountered by every worker every day and is not unique to defendant\u2019s business. It matters not that the trip is between defendant\u2019s home office and the job sites. Vega v. Gaspar, 36 F.3d 417, 425 (5th Cir. 1994).\nWe find the optional transportation service offered by defendant falls within the category of \u201cother facilities\u201d and may be counted towards wages. Defendant properly deducts the associated transportation cost from the class members\u2019 paychecks in compliance with N.C. Gen. Stat. \u00a7 95-25.8 and N.C. Admin. Code tit. 13, r. 12.0305.\nPlaintiff has failed to show and we find no evidence in the record that a genuine issue of material fact exists or defendant improperly withheld wages from the class members. Defendant\u2019s authorization form, the \u201cHouse Rules,\u201d satisfies the requirements of both N.C. Gen. Stat. \u00a7 95-25.8 and N.C. Admin. Code tit. 13, r. 12.0305. The class members received sufficient notice of the transportation option, its cost, and the process of electing to use the van pool and the subsequent wage withholding. This assignment of error'is overruled.\nVII. Time Spent Waiting and Traveling to and from Work\nPlaintiff contends that time spent waiting and traveling between defendant\u2019s office and the job sites is compensable under N.C. Gen. Stat. \u00a7 95-25.6 (2003), which states, [e]very employer shall pay every employee all wages and tips accruing to the employee on the regular payday. Pay periods may be daily, weekly, bi-weekly, semi-monthly, or monthly. Wages based upon bonuses, commissions, or other forms of calculation may be paid as infrequently as annually if prescribed in advance. We disagree.\nA. N.C. Gen. Stat. \u00a7 95-25.6\nPlaintiff argues defendant is breaching \u201can express oral if not written contract\u201d between the parties requiring defendant to pay the class members in accordance with the FLSA, which triggers the requirements of N.C. Gen. Stat. \u00a7 95-25.6. Plaintiff concedes the \u201cHouse Rules\u201d specifically addresses this issue in defendant\u2019s favor. However, he requests this Court to \u201clook[] beyond the language contained in the [House Rules]\u201d to federal statutes, regulations, and case law, to find waiting and traveling time compensable under these circumstances.\nThe applicable provision of defendant\u2019s employment contract, the \u201cHouse Rules,\u201d states:\nWe open between 5:30 & 6:30 AM. To improve your chance of employment, you may choose to \u201cshow up\u201d at the earliest possible time and no less than one hour before a repeat ticket\u2019s delivery time. This is entirely voluntary on the worker\u2019s part. During the waiting time in our lobby, the worker is waiting to be engaged rather than engaged to Wait (sic). Hours worked and pay are determined from the time the worker starts working at a customer\u2019s establishment And (sic) ends when the work is completed at the customer\u2019s establishment.... The worker understands that waiting time for assignments at Labor Finders, and travel time from Labor Finders to the customer\u2019s establishment and back, as well as waiting to be picked up from the job site, is not compensable work time.\nThe contract defines \u201chours worked\u201d as beginning when \u201cthe worker starts working at a customer\u2019s establishment And (sic) ends when the work is completed at the customer\u2019s establishment.\u201d\nThe record on appeal indicates the class members will only be compensated for time spent working at the job sites. It includes a copy of the \u201cHouse Rules\u201d detailing the compensation process with plaintiff\u2019s signature. Plaintiff also testified that defendant never told him \u201chours worked\u201d included wait time or travel time to and from the job site.\nThe employment contract does not provide for the compensation the class members seek. Plaintiff admitted he understood this policy and a copy of the agreement bears his signature. We find no violation of N.C. Gen. Stat. \u00a7 95-25.6. We now consider whether federal law requires defendant to compensate the class members for time spent waiting and traveling.\nB. The Portal to Portal Act\nThe Portal to Portal Act, 29 U.S.C. \u00a7 254, does not require employers to pay employees for the following activities:\n(1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and\n(2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.\n29 U.S.C. \u00a7 254(a) (2003) (emphasis supplied). The issue before us is whether the class members\u2019 wait and travel time are principal activities and thus compensable. We hold that they are not.\nEmployers must compensate employees for time spent waiting and traveling when \u201cit is part of a principal activity of the employee, but not if it is a preliminary or postliminary activity.\u201d Vega, 36 F.3d at 424, 425 (citing The Portal to Portal Act, 29 U.S.C. \u00a7 254). Principal activities are those duties integral and indispensable to the employer\u2019s business. Karr v. City of Beaumont, Tex., 950 F. Supp. 1317, 1322 (E.D.Tex. 1997) (citing Truslow v. Spotsylvania County Sheriff, 783 F. Supp. 274, 277 (E.D. Va. 1992) (citing 29 U.S.C. \u00a7 254(a)(2), (b)), aff\u2019d per curiam, 993 F.2d 1539 (4th Cir. 1993). They include duties \u201c \u2018performed as part of the regular work of the employees in the ordinary course of business[,] work [that] is necessary to the business .... [and also] primarily for the benefit of the employer.\u2019 \u201d Vega, 36 F.3d at 424 (quoting Dunlop v. City Electric, Inc., 527 F.2d 394, 401 (5th Cir. 1976)).\nPreliminary activities are those \u201cengaged in by an employee before the commencement of his \u2018principal\u2019 activity or activities.\u201d 29 C.F.R. \u00a7 790.7 (2004). \u201c \u2018[Pjostliminary activity\u2019 means an activity engaged in by an employee after the completion of his \u2018principal\u2019 activity or activities . ...\u201d Id. Preliminary and postliminary activities are spent primarily for the employees\u2019 own interests, completed at the employees\u2019 convenience, and not necessary to the employer\u2019s business. Jerzak v. City of South Bend, 996 F. Supp. 840, 848 (N.D.Ind. 1998).\n1. Waiting Time\nPlaintiff asserts he and the class members should be compensated for waiting time both between receiving job assignments and physically commencing work at the job sites and between stopping work and returning to defendant\u2019s office. We consider two factors in determining whether plaintiff\u2019s waiting time is a principal activity and compensable under The Portal to Portal Act. The first issue is whether the time spent is predominantly to benefit the employer and integral to the job. Preston v. Settle Down Enterprises, Inc., 90 F. Supp. 2d 1267, 1278-79 (N.D.Ga. 2000) (citations omitted); Vega, 36 F.3d at 425 (citing Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1411 (5th Cir. 1990)). The second issue is whether the employee is able to use the time for their own personal activities. Vega, 36 F.3d at 426 (citing Mireles, 899 F.2d at 1413).\nDefendant is in the business of providing temporary labor to its customers on an as-needed basis. Customers request defendant\u2019s services when extra help is needed on any variety of construction projects. Defendant hires enough workers on a daily basis to satisfy that demand. Workers receive assignments because work is available on that particular day. Defendant does not retain individuals to wait for customers to request labor services.\nAfter receiving a work assignment, the class members elect how they will travel from defendant\u2019s office to the job site. They can use their own vehicle, ride public transportation, walk, car pool with another driver, or sign up for defendant\u2019s optional transportation service. Defendant does not restrict the mode, the class members\u2019 activities while they wait for the ride, or their activities in transit. The class members are free to do as they please. At the end of the day, defendant gives the class members the option whether to return to the office to get their paycheck at that time or at a later date.\nBased on this evidence, we hold the class members\u2019 time spent waiting is a preliminary and postliminary activity and noncompensable. The class members\u2019 principal activity, that which defendant hired them for, is to work for customers on a daily basis. Temporary labor is the entire scope of defendant\u2019s business. Customers pay for that service, which begins upon arrival at the job site and stops at the end of the work day. The class members\u2019 idle time either before or after the workday is personal. Many spend waiting time reading the newspaper, sleeping, drinking coffee, eating meals, watching television, or socializing with other waiting workers.\nThe class members\u2019 time spent waiting directly correlates to their choice of transportation. They are free to spend that time as they wish. It is neither beneficial nor indispensable to defendant\u2019s business. We decline to extend \u201chours worked\u201d to include the class members\u2019 waiting time prior to arrival at the job site and at the end of the day.\n2. Travel Time\nTravel time is only compensable under The Portal to Portal Act if it is a principal activity of the employee. 29 U.S.C. \u00a7 254. Normal commuting from home to work and back is considered ordinary travel and not a \u201cprincipal activity\u201d absent a contract stating otherwise. 29 U.S.C. \u00a7 254; 29 C.F.R. \u00a7\u00a7 785.34 and 785.35 (2004). Travel from an employer\u2019s campus to the \u201cactual place of performance\u201d is noncom-pensable. 29 C.F.R. \u00a7 790.7(e) (2004). However, travel between job sites after work has begun for the day is compensable. Wirtz v. Sherman Enterprises, Inc., 229 F. Supp. 746, 753 (1964) (emphasis supplied); 29 C.F.R. \u00a7 785.38 (2004).\nPlaintiff relies heavily on Preston, 90 F. Supp. 2d 1267, in arguing that travel time to and from the job sites is compensable as a principal activity. There, the court addressed this same issue. Similar to the present case, the defendant provided temporary labor to customers on a daily basis. Id. at 1272. Laborers hired were furnished transportation from the defendant\u2019s office to the job sites. Id. at 1273. The court analyzed the issue by reviewing 29 C.F.R. \u00a7 785.38, which states, in part:\nTime spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day\u2019s work, and must be counted as hours worked regardless of contract, custom, or practice.\nBased on this regulation, the court considered three important factors: (1) whether workers were required to meet at the defendant\u2019s office before going to the job site; (2) whether workers performed labor before going to the job site; and (3) whether workers picked up and carried tools to the job site. Preston, 90 F. Supp. 2d at 1280-81. Factors two and three did not apply in Preston. Id. at 1280. However, the court ruled on factor one that \u201carriving at a business on one\u2019s own initiative seeking employment\u201d is not the same as an employer requiring an employee to report at a meeting place. Id. at 1280-81. Thus, \u201chours worked\u201d did not accrue until after arrival at the job site.\nApplying the same analysis here, we find identical answers to factors one and two. First, defendant does not require employees to report at its office at a certain time. Rather, it established the policy for laborers to follow if they were interested in seeking employment from defendant on a daily basis. Second, the class members do not perform any work either at defendant\u2019s office, or in transit to the job sites. Third, unlike Preston, the record indicates that the class members are provided personal protective equipment after receiving an assignment and before reporting to the job site. We address factor three, the picking up and carrying of tools to the job site.\nIn Crenshaw v. Quarles Drilling Corp., 798 F.2d 1345 (10th Cir. 1986) and D A & S Oil Well Servicing, Inc. v. Mitchell, 262 F.2d 552 (10th Cir. 1958), the courts found travel time compensable as an indispensable part of the employees\u2019 jobs. Employer-defendants in both cases required their employees to transport specialized equipment necessary to service oil wells. Crenshaw, 798 F.2d at 1346; D A & S Oil Well Servicing, Inc., 262 F.2d at 553-54. In an unpublished opinion, the District Court for the Eastern District of Kentucky held that in situations where employees are transporting specialized equipment to the job site, \u201cit can be concluded that the transportation of specialized equipment, provided by the employer, is work in and of itself.\u201d Spencer v. Auditor of Public Accounts, No. 88-54, 1990 U.S. Dist. Lexis 1076 (E.D.Ky. Jan. 30, 1990).\nThe USDOL addressed this issue in 29 C.F.R. \u00a7 790.7, its own expansive interpretation of \u201cpreliminary\u201d and \u201cpostliminary\u201d activities. The regulation distinguished between an employee transporting heavy equipment and ordinary hand tools. 29 C.F.R. \u00a7 790.7(d) (2004). In considering heavy equipment, the regulation states the employee\u2019s travel \u201cis not segreable from the simultaneous performance of his assigned work (the carrying of the equipment, etc.) . . . .\u201d and does not fall under the noncompensable travel outlined by The Portal to Portal Act. Id.\nWe agree with this distinction between the transportation of specialized and heavy equipment and the non-unique protective equipment issued the class members by defendant. The record indicates the class members receive hard hats, boots, and gloves. These implements are not specialized and are used in a breadth of manual labor jobs. It is a different situation from an employee transporting specialized vehicles, tools, or heavy equipment necessary to perform highly sophisticated work. The receipt of nonspecialized protective equipment does not make travel time compensable under 29 C.F.R. \u00a7 785.38. If its issuance constituted the beginning of \u201chours worked,\u201d employers could just wait until employees were at the job site before passing them out to save money.\nWe note further that the Fifth Circuit encountered the issue of compensable travel time in Vega, 36 F.3d 417. The defendant, a farm laborer contractor, provided its employee-laborers transportation, for a fee, to and from the farm sites. Id. at 423. The court held the traveling time was preliminary and postliminary activity and not compensable. Id. at 425. It based its decision on factors present in the case at bar. First, the laborers performed no work prior to getting on the bus in the morning. Id. Second, the defendant offered the transportation as an option to the workers and did not require its usage. Id. Third, not all of the laborers elected to use the transportation. Id. The court concluded the travel from the defendant\u2019s office to the farm sites was \u201can extended home-to-work-and-back commute.\u201d Id.\nThese factors, together with our analysis of Preston, compels us, to hold that class members\u2019 travel time is a preliminary and postliminary activity and is noncompensable. This assignment of error is overruled.\nVIII. Conclusion\nDefendant complies with N.C. Gen. Stat. \u00a7 95-25.8 and N.C. Admin. Code tit. 13, r. 12.0305 in withholding the class members\u2019 wages to pay for an optional transportation service to and from job sites. The class members are not due compensation for time spent waiting for and traveling on defendant\u2019s optional transportation service under N.C. Gen. Stat. \u00a7 95-25.6. The trial court\u2019s grant of summary judgment is affirmed.\nAffirmed.\nJudges BRYANT and LEVINSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Law Offices of Robert J. Willis, by Robert J. Willis, for plaintiff - appellant.", "Richardson, Patrick, Westbrook & Brickman, LLC, by James L. Ward, Jr., and Rogers Townsend & Thomas, PC., by Paul M. Platte, for defendant-appellee." ], "corrections": "", "head_matter": "RICKY WHITEHEAD, on behalf of himself and all other similarly situated persons, Plaintiff v. SPARROW ENTERPRISE, INC., d/b/a LABOR FINDERS, Defendant\nNo. COA04-208\n(Filed 7 December 2004)\n1. Jurisdiction\u2014 North Carolina Wage and Hour Act \u2014 no exemption for temporary employment agency\nThe trial court did not err by concluding that defendant temporary employment agency is not exempt from the jurisdiction of the North Carolina Wage and Hour Act, because plaintiffs claims arise from N.C.G.S. \u00a7\u00a7 95-25.6 and 95-25.8 which address wage payment and withholding of wages respectively.\n2. Employer and Employee\u2014 wage withholding \u2014 transportation deduction \u2014 specific authorization\nA de novo review revealed that the trial court did not err by granting summary judgment in favor of defendant temporary employment agency based on defendant withholding class members\u2019 wages to pay for an optional transportation service to and from job sites, because: (1) defendant\u2019s house rules comply with the requirements of N.C.G.S. \u00a7 95-25.8(2)(a) as a specific authorization even though there is a range given for the dollar amount since it is sufficiently narrow to provide adequate notice to the class members, the deductions for transportation expenses are not automatic and are conditioned upon the class members specifically requesting use of the van pool each morning, and class members receive frequent and sufficient notice of the cost to use defendant\u2019s van pool; (2) defendant\u2019s house rules satisfy the formatting and content requirements under N.C. Admin. Code tit. 13, r. 12.0305(b) since the authorization form is written, signed by the class members on or before the payday for the pay period from which the deduction is made, includes the date signed, and states the reason for the deduction; and (3) the optional transportation service offered to the class members is not an incident of nor is it necessary to the employment, and it does not matter that the trip is between defendant\u2019s home office and the job sites.\n3. Employer and Employee\u2014 wage withholding \u2014 waiting and traveling to work\nA de novo review revealed that the trial court did not err by granting summary judgment in favor of defendant temporary employment agency based on class members not being entitled to compensation under N.C.G.S. \u00a7 95-25.6 for time spent waiting for and traveling on defendant\u2019s optional transportation service, because: (1) plaintiff testified that defendant never told him that hours worked included wait time or travel time to and from the job site, and the employment contract does not provide for the compensation the class members seek; (2) the class members\u2019 wait or travel time is not a principal activity requiring compensation, but instead is preliminary and postliminary activity since the class members\u2019 idle time either before or after the workday is personal; and (3) the receipt of general protective equipment does not make travel time compensable under 29 C.F.R. \u00a7 785.38.\nAppeal by plaintiff from order entered 21 November 2003 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 14 October 2004.\nLaw Offices of Robert J. Willis, by Robert J. Willis, for plaintiff - appellant.\nRichardson, Patrick, Westbrook & Brickman, LLC, by James L. Ward, Jr., and Rogers Townsend & Thomas, PC., by Paul M. Platte, for defendant-appellee." }, "file_name": "0178-01", "first_page_order": 208, "last_page_order": 223 }