Civil Court of the City of New York, Kings County, March 9, 2023

Gregory Hunter, plaintiff pro se.

Kaufman, Dolowich & Voluck, LLP, Woodbury, for defendant.

Introduction

This honorable court decides and orders upon due deliberation of evidence at a nonjury trial held on January 13, 2023; pursuant to the Fair Labor Standards Act, the New York Labor Law and the Motor Carrier Act, plaintiff truck driver did not engage in interstate commerce and is not exempt from entitlement to overtime pay at time and a half of his regular pay. Judgment in favor of plaintiff as set forth infra.

Procedural and Factual History

On September 15, 2021, pro se plaintiff commenced a complaint in this instant action, alleging violations of the overtime provisions of the Fair Labor Standards Act (hereinafter [*2]FLSA),^[FN1] and New York Labor Law (hereinafter NYLL) 12 NYCRR 142-2.2 against defendant for failure to pay plaintiff overtime at 11/2 times his regular hourly rate of pay for hours worked over 40 hours per week.^[FN2] At issue is 331.75 overtime hours, in which plaintiff was paid $22.50 per overtime hour as opposed to his demanded $30.00 per overtime hour; therefore plaintiff was short-paid by $7.50 per overtime hour, which calculates to a total short-pay of overtime pay of $2,488.12.

Rather, defendant paid overtime over 40 hours per week at the rate of time and a half times the New York State minimum wage pursuant to NYLL 12 NYCRR 142-2.2.^[FN3]{**79 Misc 3d at 214}

At a nonjury trial held on January 13, 2023, plaintiff and defendant's chief operating officer (hereinafter COO), and dispatcher testified. As factfinder, the court found that pro se plaintiff truck driver was credible, so much so that he was emphatic as to an admission clearly against his own interest during aggressive cross-examination. Plaintiff quite indignantly responded, "I ain't never drove a truck 10,000 pounds. Every truck I ever drove was 26,000 pounds and more" (tr at 21, lines 14-15 [emphasis added]). Whereas, defendant's COO testimony was found so lacking in candor and tailored to{**79 Misc 3d at 215} comport with the law of its defense argument. The COO was so well versed in the law of the FLSA exemption that he corrected defense counsel on the law in real time.^[FN4] Defendant dispatcher's testimony appeared coerced evinced by her uncomfortable body language and [*3]paused hesitant tentativeness. Plaintiff testified that the dispatcher called him and said, "we don't need for you to come in. We will call you when we need you" (tr at 11, lines 5-6 [emphasis added]). This language by the dispatcher is inconsistent with termination for cause as alleged by defendant at trial thereby undermining its allegations of plaintiff stealing time. Rather, this language evinces a layoff. However, it is found that this was defendant's attempt to impeach plaintiff's credibility through the allegation of prior bad acts by alleging plaintiff stole time twice by sitting in one spot without moving. On his direct case, plaintiff testified credibly as to the alleged two occasions in which defendant accused plaintiff of stealing time. Plaintiff testified that he was terminated in direct contradiction of defendant's direction that if the leased garage space is blocked plaintiff is to remain with the truck until the blockage is cleared to allow him to garage the truck,^[FN5] and in the second instance, for stopping to pick up a sandwich.^[FN6] Without any reasonable justification, defendant did not similarly terminate plaintiff's on-board shredder technician helper who reported the same alleged stolen time. Neither did defendant provide a letter of termination for cause. The court finds that plaintiff's repeatedly confronting defendant's COO about his time and a half overtime pay being short was the predominant catalyst for plaintiff's termination and the allegations of stealing time but a mere pretext for defendant's transparent attempt to besmirch plaintiff's credibility. Most notably, defendant opted not to file a counterclaim for alleged stealing time.

Particularly problematic and so lacking in candor as to be an affront even to a lay juror of ordinary intelligence, common knowledge, and common life experiences was defendant's testimony that plaintiff's work route assignments from 2019 to 2021, but a mere previous five years of its business records, were unavailable because of expired software. Most incredulously, defendant produced an irrelevant, lacking in any probative value, generic "unassigned" work route sheet to prove that {**79 Misc 3d at 216}plaintiff had driven to New Jersey and Connecticut at some amorphous time during his employment from January 16, 2019, to September 16, 2021. This defendant's testimony truly defied credulity from a corporation that is engaged in interstate commerce with 12 trucks over 26,000 pounds. Rudimentarily, these route records must be maintained in perpetuity for the history of the company as it forecasts its industry viability and developing growth. But more importantly, defendant's industry profile is subject to significant regulatory, civil, or criminal audits, inspections, and investigations at a moment's notice by myriad federal, state, and local agencies. Thus, this line of reasoning as to expired unavailable business records so defies credulity. Defendant is a New York corporation formed in 2006, which is engaged in the business of shredding of papers for businesses and individuals in New York, New Jersey, Connecticut, and Pennsylvania. Defendant operates 12 trucks above 26,000 pounds which may be dispatched to various interstate or intrastate routes with drivers that may be accompanied by shredding technician helpers who retrieve bins of papers from the customers and shred those documents on the truck. Plaintiff holds a class B license and has been driving large trucks over 26,000 pounds for 15 years. Plaintiff alleges that he was employed as a truck driver solely assigned to the East Side of Manhattan from the Brooklyn, New York City leased parking garage. Plaintiff's hourly rate of pay was $20.00. Therefore, time and a half, pursuant to FLSA [*4]and NYLL, would have been calculated at $30.00 per overtime hour.

As its defense, defendant argued that plaintiff was exempt from overtime at time and one half of his regular hourly pay rate pursuant to FLSA (29 USC § 213 [b] [1]), the Motor Carrier Act^[FN7] (49 USC § 31502 [hereinafter MCA])^[FN8]

and NYLL (12 NYCRR 142-2.2). Defendant failed to include this statutory exemption in its answer as an affirmative defense and it is{**79 Misc 3d at 217} thereby deemed as waived pursuant to CPLR 3018. Defendant's introduction of this statutorily hyper-technical complex affirmative defense at trial particularly as against this pro se plaintiff is unduly prejudicial. Thus, this court declines to exercise its discretion to grant its introduction at trial as an affirmative defense. Nevertheless, arguendo, were the affirmative defense to be decided on the merits, the outcome would be the same. To wit, judgment in favor of the plaintiff.

Discussion

It is well-established law that FLSA 29 USC § 213 (b) (1) in conjunction with MCA 49 USC § 31502 (b) exempts from overtime employees of motor carriers or private motor carriers who directly affect the safety of operations of motor vehicles larger than 10,001 pounds, who are engaged in interstate commerce of property or passengers, subject to the authority of the Secretary of Transportation to prescribe requirements for qualifications and maximum hours of service of those employees pursuant to MCA 49 USC § 31502 (b). The legislative purpose underpinning the statute is to promote safety of operation for traverse on the highways in interstate commerce. The motor carrier overtime exemption often applies to truckers (see Fox v Commonwealth Worldwide Chauffeured Transp. of NY, LLC, 865 F Supp 2d 257, 266 [ED NY 2012]). However, there are generally four categories of workers whose duties are considered to directly affect the safety of motor vehicle operation: drivers, mechanics, loaders, and their respective helpers. It has also been held that other employees not so included in these four categories, although remaining intrastate but whose duties could directly affect the safety profile in interstate commerce, may similarly be found to be subject to the exemption.^[FN9] The [*5]analysis of the application of the FLSA exemption to safety{**79 Misc 3d at 218} affecting employees engaging in interstate commerce is complex, as in addition to the acts and respective Code of Federal Regulations (CFRs), which are mandatory yet subject to judicial interpretative analysis, there are many federal interagency interpretive promulgations of administrative rules, guidance, and commentary that although not binding may be mutually persuasive, subject to judicial scrutiny:^[FN10] Department of Labor (DOL),^[FN11] Office of Motor Carrier and Highway Safety (OMCHS), Motor Carrier Safety Assistance Program (MCSAP), and Department of Transportation (DOT)^[FN12] which subsumed the formerly titled Federal Highway Administration (FHWA), which is now currently titled the Federal Motor Carrier Safety Administration (FMCSA). In reconciling these various interagency interpretive commentaries collectively in conjunction with both MCA and FLSA, it has been held that safety in interstate{**79 Misc 3d at 219} commerce pursuant to MCA is of the utmost paramount concern and the Secretary of Transportation's authority predominates any and all tangential albeit relevant federal agencies. No other agencies' interpretive promulgations may "reduce the jurisdiction of the Commission^[FN13] under the Motor Carrier Act" (Levinson v Spector Motor Service, 330 US 649, 684 [1947]). Thus, where there is conflict between agencies, in placing safety first, [*6]the Secretary of Transportation's directives are determinative subject to judicial scrutiny (id.).

"Although the Supreme Court recognized that the special knowledge and experience required to determine what classifications of work affects safety of operation of interstate motor carriers was applied by the Commission, it has made it clear that the determination whether or not an individual employee is within any such classification is to be determined by judicial process . . . In determining whether an employee falls within such an exempt category, neither the name given to his position nor that given to the work that he does is controlling" (29 CFR 782.2 [b] [2], citing Pyramid Motor Freight Corp. v Ispass, 330 US 695 [1947]).

The activities of both the employee as engaging in a safety activity that affects interstate commerce as well as the employer as a motor carrier or private motor carrier must be considered.

"From the point of view of the Commission and its jurisdiction over safety operations, . . . [i]t is the character of [an employee's] activities rather than the proportion of . . . [his] time or of his activities that determines the . . . need for the Commission's power to establish . . . qualifications, [and] maximum hours of service" (Levinson, 330 US at 674-675).

The same character of activity analysis applied even if only a part of the employee's duties affects the safety of operations in interstate commerce (Morris v McComb, 332 US 422 [1947]).

"Cases interpreting this statute and the regulations promulgated pursuant to the statute do not require that an employee spend all of their work time performing exempt activities. The actual percentage{**79 Misc 3d at 220} of time required for the exemption varies. One court held that 'sometimes' participating in exempted activity is sufficient. Ford, et al. v. Gannett, Co. Inc., 2005 WL 3115846[, 2005 US Dist LEXIS 30106 (WD NY, Nov. 18, 2005, No. 03-CV-6454-CJS-MWP)]. Other courts held that daily participation in exempted activity or twice per week is sufficient. Barron, et al. v. Lee Enterprises, Inc., 183 F.Supp.2d 1077, 1085-87 (C.D.Ill.2002); Hutson v. Rent-A-Center, Inc., 209 F.Supp.2d 1353 (M.D.Ga.2001). Thus, it appears that the term 'engaged in' is similarly applied in both the Motor Carrier Act exemption and when determining whether an employee conducts enough duties within interstate commerce to apply the provisions of the FLSA" (Louis-Charles v Sun-Sentinel Co., 595 F Supp 2d 1304, 1308 [SD Fla 2008]).^[FN14]

On July 23, 1981, the Secretary of Transportation promulgated the "four month rule":

"[I]nterpretative guidance from the Department of Transportation indicates that an employee's performance of duties that directly affect the safety of operation of motor vehicles in interstate commerce at least once every four months is sufficient to the bring the employee under the Motor Carrier Exemption. This is known as the 'four month rule.' The Department of Labor also takes the position that—pursuant to this 'fourth month rule'—mechanics (and other covered employees) who 'performed, or could have been called upon to perform, duties affecting the safe operation of a motor vehicle in interstate commerce in any workweek are exempt from FLSA [*7]overtime requirements for the next four months.' U.S. Department of Labor ('DOL') Field Assistance Bulletin No. 2010-2 ('FAB 2010-2'). The Court finds the guidance above from both the DOT and the DOL on this 'four month rule' are persuasive and concludes that this 'four month' standard has been met as Ammann engaged in{**79 Misc 3d at 221} mechanic work (or could reasonably be expected to engage in such work) at least every two to three months" (Gonzalez v Dom's Lawnmaker, Inc., 2022 WL 17488524, *6, 2022 US Dist LEXIS 220899, *16-17 [ED NY, Dec. 7, 2022, No. 17-CV-3519 (JMA) (SIL)], citing 46 Fed Reg 37902-02 [July 23, 1981]).

This 1981 "four month rule" was amended, effective Tuesday, February 8, 2000, as follows:

"The FMCSA does not disagree with the legal conclusions the FHWA reached in the 1981 notice of interpretation. However, in the interest of simplicity and workability, I have decided to replace the so-called 4-month rule with a 14/15-day rule" (Federal Motor Carrier Safety Administration, 49 CFR § 390.3T General Applicability, Question 24 [Feb. 8, 2000]).

Further, under the "Guidance" section is provided:

"The FMCSA must show that the driver or motor carrier has actually operated in interstate commerce within a reasonable period of time prior to its assertion of jurisdiction. Mere solicitation of business that would involve operations in interstate commerce is not sufficient to establish jurisdiction. If jurisdiction is claimed over a driver who has not driven in interstate commerce, evidence must be presented that the carrier has operated in interstate commerce and that the driver could reasonably be expected to make one of the carrier's interstate runs" (id.).

"This general rule assumes that the activities involved in the continuing duties of the job in all such workweeks will include activities which have been determined to affect directly the safety of operation of motor vehicles on the public highways in transportation in interstate commerce. Where this is the case, the rule applies regardless of the proportion of the employee's time or of his activities which is actually devoted to such safety-affecting work in the particular workweek, and the exemption will be applicable even in a workweek when the employee happens to perform no work directly affecting 'safety of operation.' On the other hand, where the continuing duties of the employee's job have no substantial direct effect on such safety of operation or where such safety-affecting{**79 Misc 3d at 222} activities are so trivial, casual, and insignificant as to be de minimis, the exemption will not apply to him in any workweek so long as there is no change in his duties" (Gonzalez, 2022 WL 17488524, *7, 2022 US Dist LEXIS 220899, *18-19).

The employee's actual activities must affect vehicular safety operations in interstate commerce even if remaining intrastate. If the employee's activities are a metaphorical leg of a relay race analogy, where those activities form a "practical continuity of movement" interstate from the point of origin to the point of destination, the exemption applies to that employee (see Thompson v Eldorado Coffee Roasters Ltd., 246 F Supp 3d 697, 701-702 [ED NY 2017], citing Walling v Jacksonville Paper Co., 317 US 564, 572 [1943], 29 CFR 782.7 [b] [1], and Deherrera v Decker Truck Line, Inc., 820 F3d 1147, 1155 [10th Cir 2016] [quoting Foxworthy v Hiland Dairy Co., 997 F2d 670, 672 (10th Cir 1993), and citing Bilyou v Dutchess Beer Distribs., Inc., 300 F3d 217, 224-225 (2d Cir 2002)]; Swanson v Manhattan Beer Distribs., 2018 WL 4008012, *7, 2018 US Dist LEXIS 218219, *24 [ED NY, June 28, 2018, No. 15-CV-05383 (ENV) (RLM)]). Thus, delivery route drivers who do not cross state lines, such as with newspapers assembled interstate, may yet be [*8]found subject to the exemption (Louis-Charles v Sun-Sentinel Co., 595 F Supp 2d 1304, 1309 [SD Fla 2008]). It is a fact intensive analysis of the employee's activities in the evaluation of whether exemption applies or not, separate and apart from an employer's indisputable status as a motor carrier or private motor carrier. The Second Circuit, which is the jurisdiction of this case at bar, has "traditionally construed FLSA exemptions narrowly and against the employers asserting them" (Munoz-Gonzalez v D.L.C. Limousine Serv., Inc., 904 F3d 208, 215-216 [2d Cir 2018]; Bilyou v Dutchess Beer Distribs., Inc., 300 F3d at 224-225). In the tipping of the scales in favor of the motor carrier corporations as against the aggrieved employees, in a five-four opinion by Justice Thomas with dissent by Justice Ginsburg, SCOTUS' conservative tranche overruled the previously well-established and long-standing "narrowly construed" interpretation of the exemption in favor of the employee in Encino Motorcars, LLC v Navarro (584 US —, —, 138 S Ct 1134, 1142 [2018]):

"The Ninth Circuit also invoked the principle that exemptions to the FLSA should be construed narrowly. [Navarro v Encino Motorcars, LLC, 845 F3d{**79 Misc 3d at 223}925,] 935-936 [9th Cir 2017]. We reject this principle as a useful guidepost for interpreting the FLSA. Because the FLSA gives no 'textual indication' that its exemptions should be construed narrowly, 'there is no reason to give [them] anything other than a fair (rather than a "narrow") interpretation.' Scalia, Reading Law, at 363. The narrow-construction principle relies on the flawed premise that the FLSA ' "pursues" ' its remedial purpose ' "at all costs." ' American Express Co. v. Italian Colors Restaurant, 570 U. S. 228, 234 (2013) (quoting Rodriguez v. United States, 480 U. S. 522, 525-526 (1987) (per curiam)); see also Henson v. Santander Consumer USA Inc., 582 U. S. —, — (2017) (slip op., at 9) ('[I]t is quite mistaken to assume . . . that whatever might appear to further the statute's primary objective must be the law' . . . ). But the FLSA has over two dozen exemptions in § 213(b) alone, including the one at issue here. Those exemptions are as much a part of the FLSA's purpose as the overtime-pay requirement. See id., at — (slip op., at 9) ('Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage'). We thus have no license to give the exemption anything but a fair reading."

However, this court is in agreement with the body of post-Encino case law that in essence holds that this change from "narrow" to "fair" reading does not change the fact intensive analysis required nor does it shift the employer's burden to prove its affirmative defense that exemption applies: "Encino Motorcars does not require any change in the features to be evaluated in determining whether the exception applies, but rather encourages a more open understanding of the significance of the concern for safety" (Belliard v Koryeo Intl. Corp., 2019 WL 13213671, *5, 2019 US Dist LEXIS 245095, *12 [ED NY, Mar. 4, 2019, No. 14-cv-03495 (ENV) (ST)]).

"The Court does not consider recent decisions from the Supreme Court and the Third Circuit, indicating that certain aspects of the FLSA should be 'fairly construed,' to be to the contrary" (Xiao v Sichuan Gourmet LLC, 2022 WL 819096, *9 n 10, 2022 US Dist LEXIS 49050, *22 n 10 [WD Pa, Mar. 18, 2022, No. 2:21-cv-00482], citing Encino Motorcars, LLC v Navarro, 584 US —, —, 138 S Ct 1134, 1142 [2018] [declining to construe exemptions from the FLSA narrowly and explaining{**79 Misc 3d at 224} that "(t)he narrow-construction principle relies on the flawed premise that the FLSA 'pursues' its remedial purpose 'at all costs' "], and Secretary United States Dept. of Labor v Bristol Excavating, Inc., 935 F3d 122, 135 [3d Cir 2019] [" '(A) fair reading' of the [*9]FLSA, neither narrow nor broad, is what is called for" (quoting Encino Motorcars, 584 US at —, 138 S Ct at 1142)]). "No 'broad' or 'narrow' construction (as a matter of statutory interpretation) is necessary to conclude that the definitions of 'employer' and 'employee' in the FLSA are facially quite expansive" (2022 WL 819096, *9 n 10, 2022 US Dist LEXIS 49050, *22 n 10).

Scalia v Peters held that,

"even if Defendants cited Encino in their motion or reply, it would not have produced a different result. In that case, the United States Supreme Court considered whether service advisors employed at car dealerships were exempt from the FLSA's overtime-pay requirement under 29 USC § 213 (b) (10)(A), which applies to 'any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements' " (Scalia v Peters, 2020 WL 4734414, *2, 2020 US Dist LEXIS 147179, *6 {**79 Misc 3d at 6}[D Md, Aug. 14, 2020, Civil Action No. GLR-18-2933], citing Encino, 584 US at —, 138 S Ct at 1138).

"In concluding that service advisors are exempt, the Supreme Court ultimately rejected the notion that exemptions to the FLSA should be narrowly construed, reasoning: 'Because the FLSA gives no "textual indication" that its exemptions should be construed narrowly, there is no reason to give [them] anything other than a fair (rather than a "narrow") interpretation' " (2020 WL 4734414, *2, 2020 US Dist LEXIS 147179, *6-7).

"However, as the Secretary correctly notes, Encino is silent as to whether courts should read factual allegations in an FLSA complaint broadly or narrowly and merely sets forth a principle of statutory construction, requiring a fair reading of exemptions to the FLSA" (2020 WL 4734414, *2, 2020 US Dist LEXIS 147179, *7).

In Evans v Distance Learning it was found, "[i]n this case, the Supreme Court's recent pronouncement in Encino has no real effect; the court does not need to choose between reasonable interpretations of the statutory language" (Evans v{**79 Misc 3d at 225}Distance Learning Sys. Indiana, Inc., 2018 WL 6308818, *4, 2018 US Dist LEXIS 237401, *13-14 [SD Ind, Aug. 15, 2018, No. 1:15-cv-00519-DML-SEB], citing Mechmet v Four Seasons Hotels, Ltd., 825 F2d 1173, 1177-1178 [7th Cir 1987] [generalization about interpreting FLSA exemption narrowly is "at best" a tie-breaker and "not even that if some offsetting 'canon of construction' is in play"]).

Buntin v Schlumberger Tech. states,

"[a]s the Court explicitly stated in its Order denying summary judgment, Defendant is not entitled to summary judgment under either a narrow or fair reading of the relevant exemptions. By their plain language, the FLSA's supporting regulations require Defendant to prove that Plaintiff's primary duty was to perform exempt work. The regulations also define the term 'primary duty' and provide factors to consider when evaluating an employee's primary duty. Unlike in Encino Motorcars, these regulations as applied to the facts of this case are not susceptible to different interpretations when read narrowly or fairly. The Court concluded that genuine issues of material fact—most importantly, that the parties provide contrasting accounts of Plaintiff's day-to-day work—preclude summary judgment. The Court reaches the same conclusion now, as it is consistent with a fair reading of the AWHA, FLSA, and supporting regulations.

"The Court cannot, as Defendant asks, ignore disputed, material facts and focus only on the exempt duties Plaintiff performed. Defendant's request misconstrues the fair reading standard. That standard might change how a court interprets an exemption when the meaning of that exemption is unclear under a set of undisputed facts. But the standard does not require a court to either ignore disputed facts or weigh facts in an employer's favor. Doing so would contravene the summary judgment standard, and Defendant cites to no authority for the proposition that Encino Motorcars' rule of construction was intended to supplant the ordinary approach to summary judgment" (Buntin v Schlumberger Tech. Corp., 2021 WL 4448922, *5, 2021 US Dist LEXIS 185063, *10-11 [D Alaska, Sept. 28, 2021, No. 3:16-cv-00073-TMB]).

In considering this same issue, Johnson v Mattress Warehouse considers that "[t]he Fifth [*10]Circuit recently recognized {**79 Misc 3d at 226}that FLSA exemptions are given 'a fair reading, not a narrow one,' but still held 'the burden of establishing an exemption remains with the employer, who must do so by a preponderance of the evidence.' The Eleventh Circuit did the same" (Johnson v Mattress Warehouse, Inc., 2021 WL 4206722, *4, 2021 US Dist LEXIS 176104, *10-11 [ED Pa, Sept. 15, 2021, No. 20-891], quoting Hobbs v EVO Inc., 7 F4th 241 [5th Cir 2021], and citing Ramirez v Statewide Harvesting & Hauling, LLC, 997 F3d 1356, 1359 [11th Cir 2021] ["The employer bears the burden of establishing that an employee is exempt"]). Further, "the Court is unaware of any district court that has shifted the burden of proving FLSA exemptions from employers to employees since Encino Motorcars" (2021 WL 4206722, *4, 2021 US Dist LEXIS 176104, *11). "If the employer claims that the suing employee is exempt from the overtime requirement, then the employer has the burden of proving that the employee falls within the claimed exempted category" (2021 WL 4206722, *4 n 2, 2021 US Dist LEXIS 176104, *11 n 2, quoting Patai v Marquez Constr. & Maintenance, 2021 WL 1436693, *3, 2021 US Dist LEXIS 76018, *3 [WD Tex, Mar. 2, 2021, No. MO:19-CV-281-DC], and citing Latham v High Mesa Communications, 2020 WL 1626976, *1, 2020 US Dist LEXIS 60455, *3 [D Colo, Feb. 7, 2020, Civil Action No. 17-cv-02118-JLK-GPG] ["(N)otwithstanding Encino, the employer still has the burden of showing the exemption applies"], Sanchez Carrera v EMD Sales, Inc., 402 F Supp 3d 128, 146 [D Md 2019] ["(N)othing in the Encino decision relates to evidentiary burdens"], Wilson v Schlumberger Tech. Corp., 2019 WL 1916200, *2, 2019 US Dist LEXIS 74573, *5 [D Colo, Apr. 24, 2019, Civil Action No. 17-cv-00281-RBJ] [acknowledging "the employer's burden is somewhat relaxed" following Encino but confirming the employer "bears the burden to prove that plaintiffs fall within the . . . exemption"], McKinnon v City of Merced, 2018 WL 6601900, *3, 2018 US Dist LEXIS 212176, *8 [ED Cal, Dec. 17, 2018, No. 1:18-cv-01124-LJO-SAB], and Flores v City of San Gabriel, 2018 WL 8017788, *3 n 1, 2018 US Dist LEXIS 225258, *10 n 1 [CD Cal, Nov. 5, 2018, No. LACV 12-4884 JGB (JCGx)] ["(A)fter Encino, the assertion of overtime exemptions remains an affirmative defense and the employer still carries the burden of establishing that it qualifies for an exemption"]).

In this case at bar, there is no probative value in construing plaintiff's FLSA overtime exemption fairly pursuant to Encino{**79 Misc 3d at 227}(Encino Motorcars, 584 US —, 138 S Ct 1134). Rather, it is a fact intensive inquiry determining whether plaintiff meets his prima facie burden establishing his entitlement to overtime pay at time and a half of his regular pay pursuant to FLSA. The burden then shifts the fact intensive inquiry to determining whether defendant meets its burden establishing that plaintiff is not entitled to and is exempt from overtime pay at time and a half of his regular pay pursuant to FLSA. It is not in dispute that defendant is indeed a motor carrier that engages in interstate commerce in New York, New Jersey, Connecticut, and Pennsylvania. The determinative inquiry here is whether based upon the well-established body of statutory, precedential case law and persuasive federal multi-agency promulgated rules, guidance and comments as set forth in depth, supra, plaintiff engaged in safety affecting activities in interstate commerce. Undoubtedly, it is not in dispute that plaintiff as a driver of 26,000-pound trucks engaged in safety affecting activity. However, the inquiry does not end there. In order for the FLSA overtime exemption to be invoked against plaintiff, defendant must also prove that plaintiff's safety affecting activity of driving 26,000-pound trucks was engaged in interstate commerce. Notwithstanding defendant's aggressive attempt to impeach plaintiff's credibility through unproven bad acts found not to be credible and a pretext for plaintiff's retaliatory termination, the factfinder found that plaintiff credibly testified. So much so that plaintiff made an [*11]admission against his own interest.^[FN15] Plaintiff credibly testified that during his entire tenure from January 16, 2019, to September 16, 2021, his sole route assigned was the East Side of Manhattan:

"I never drove in New Jersey. I did Manhattan on the East Side. That was my route. I ain't never did Jersey, I wasn't hired for Jersey.^[FN16] . . . yes, from this here company, they gave me the East Side. I did East Side every day I was there.^[FN17] . . . Never. Never. Never. No.^[FN18] . . . Never drove out of state. My job was East Side of Manhattan.^[FN19] . . . all the{**79 Misc 3d at 228}customers I did was in Manhattan."^[FN20]

Plaintiff drove to his customers on the East Side of Manhattan with his onboard shredding technician helper. After shredding is done, defendant instructed plaintiff to park the truck at its leased garage space in Brooklyn. Defendant further instructed plaintiff never to leave the truck until parked in its leased parking space. If there was any blockage of the leased garage space, plaintiff had to wait until cleared for entry to park the truck. Plaintiff testified that when hired, defendant's COO told him that he would be paid overtime after 40 hours at time and a half his regular hourly rate of $20.00. But, when he began to work overtime hours it was not time and a half of his $20 hourly rate, to wit, $30 overtime pay. Rather, plaintiff was paid $22.50 overtime pay, which represented the NYLL minimum overtime pay of time and a half of New York's hourly minimum wage, to wit, $15. Plaintiff repeatedly complained to defendant's COO that he was not being paid his proper overtime pay, which is found to have resulted in his retaliatory pretextual termination. Plaintiff testified that he was reemployed as a truck driver the next day after termination by defendant. Nevertheless, he filed this suit to recover all due and owing overtime pay by defendant pursuant to FLSA. Defendant witnesses' predominant defense tactic was to impeach, discredit and besmirch plaintiff's honesty, integrity, and credibility, in which they woefully failed. On the contrary, it is found that defendant's witnesses were not credible. Defendant witnesses' testimonies were found to be inconsistent, illogical, and contortedly tailored to the law of its defense: particularly, where the COO and dispatcher testified that plaintiff had driven interstate to New Jersey and Connecticut without any scintilla of corroborating business documentary evidence as to the dates, times, and routes of those alleged interstate assignments to plaintiff. With utter lack of credibility, defendant's witnesses testified that said documentary evidence for plaintiff had expired and was no longer available to prove its defense that plaintiff was assigned to drive to New Jersey and Connecticut. Defendant, as a New York corporation motor carrier engaging in safety affecting activities placing dangerous 26,000-pound trucks in interstate commerce, allowed plaintiff's route assignment records, of a mere five-year period earlier from 2019-2021, to expire with no business record-keeping backup. In said alleged expiration, it is opined that those unavailable{**79 Misc 3d at 229} plaintiff specific documents [*12]were unavailable because they would have been adverse to defendant's defense narrative that plaintiff is lying as to his testimony of no interstate route assignments. Incredulously, defendant attempted to rather rely on circumstantial hearsay and irrelevant documents lacking in probative value to bear its burden in defense. Therefore, defendant failed to meet its burden that plaintiff engaged in interstate commerce, whether applying the overruled four-month rule or the current 14/15-day rule. It is found that even though plaintiff was a safety affecting truck driver of 26,000-pound trucks, defendant did not prove that plaintiff engaged in interstate commerce. Rather, plaintiff solely engaged in intrastate safety affecting activity, which based upon well-established law does not trigger the FLSA exemption against plaintiff. Alternatively, defendant did not attempt to establish that although plaintiff may be deemed to have solely engaged intrastate, he was nevertheless subject to FLSA exemption since his safety affecting truck driving was a leg of a continuous flow of commerce in a metaphorical relay race analogy to an interstate destination. In all respects, defendant fails to meet its defense burden to prove that plaintiff is exempt from time and a half of his regular pay pursuant to FLSA. Thus, plaintiff prevails on the merits. Moreover, upon due deliberation and careful consideration, it is found that defendant did not act in good faith in its intentional contrived deprivation of plaintiff's right to FLSA overtime pay and is therefore found liable for liquidated damages.^[FN21] Pursuant to FLSA 29 USC § 216 (b), plaintiff is entitled to double the award of calculated due and owing unpaid overtime pay as liquidated damages.

Ordered, judgment in the amount of $2,488.12 for compensatory damages with interest from June 20, 2019, costs, and disbursements.

Ordered, judgment in the amount of $4,976.24 for liquidated damages.

"(b) . . . The Secretary of Transportation may prescribe requirements for--

"(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and

"(2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation."

"Both the Webb and Barron courts granted judgment to the defendant newspapers holding that the Motor Carrier Act exemption to the FLSA applies to newspaper district managers who sometimes delivered newspapers containing inserts from out-of-state. For the same reasons stated in those cases, the Court finds that Ford and Hill were exempt from the FLSA overtime requirements" (see Ford v Gannett Co., 2005 WL 3115846, *6, 2005 US Dist LEXIS 30106, *16 [WD NY, Nov. 18, 2005, No. 03-CV-6454-CJSMWP], citing Webb v Athens Newspapers, Inc., 999 F Supp 1464, 1465 [MD Ga 1998], and Barron v Lee Enters., Inc., 183 F Supp 2d 1077 [CD Ill 2002]).

"for a continuous carriage or shipment, from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the District of Columbia, . . . [p]rovided, however, That the provisions of this act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a foreign country from or to any State or Territory as aforesaid. Proviso. Not applicable to traffic wholly within one State" (Pub L 49-41, 24 US Stat 379 [49th Cong, 2d Sess, ch 104, Feb. 4, 1887] [Interstate Commerce Act]).

The US 74th Congress on August 9, 1935, further empowered the ICC to regulate interstate carriers of property and passengers as it enacted the Motor Carrier Act (Pub L 74-255, 49 US Stat 543 [74th Cong, 1st Sess, ch 498, Aug. 9, 1935]).

The US 104th Congress on December 29, 1995, abolished the ICC as it enacted the "ICC Termination Act of 1995" (Pub L 104-88, 109 US Stat 803 [104th Cong, 1st Sess, Dec. 29, 1995]). Consequently, the regulatory authority of interstate motor carriers and private motor carriers was shifted to the US Department of Transportation which subsumed the formerly titled Federal Highway Administration (FHWA), which is now currently titled the Federal Motor Carrier Safety Administration (FMCSA).