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Stephen C. Pehle,*Fn1 v. Ronald David Dufour

September 28, 2012



This is an action brought under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., with pendent claims under the California Labor Code.*fn2 The matter was tried before the Court on September 13, 2011 and December 5, 6, and 8, 2011.*fn3 Plaintiff was represented by Matthew J. Gauger and Russell Naymark; defendants were represented by Leonard Hart Nibbrig. The court's Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure are set forth below.


The primary issue in this case is whether plaintiff, who was an electrician employed by defendants from February 2005 through June 2006, was engaged in compensable work under the FLSA and/or the California Labor Code when he spent time transporting tools, materials, and co-workers to various job sites. Plaintiff claims that this was working time under the FLSA and California law and was not compensated because it was defendants' policy not to pay for any work time except work on the job sites themselves. Additionally, plaintiff claims that this policy led to defendants not keeping proper records of working time for compensation purposes.

Defendants claim that they paid plaintiff all of the wages plaintiff himself reported, including shop time, travel time between job sites, overtime, vacation pay, and paid holidays, and that the time for which he now seeks compensation constitutes commute time that need not be compensated. Defendants also contend that they kept adequate records, and that the record does not support individual liability for Ronald DuFour.

Plaintiff alleges violations of (1) the FLSA, 29 U.S.C. § 207(a); (2) Wage Order 16-2001 and California Labor Code sections 203, 204.3, 510, and 1810 et seq.; and (3) California Labor Code section 226. Plaintiff seeks compensation for all unpaid hours worked, including overtime pay where applicable, and liquidated damages under both the FLSA and the California Labor Code. Plaintiff also seeks penalties for failure to keep accurate paycheck stubs pursuant to California Labor Code section 226(a).


As noted in the August 29, 2011 final pretrial order, Dckt. No. 74, the following facts are not in dispute:

1. Defendants Ronald David DuFour and DuFour Enterprises Inc. dba DuFour Electric & Construction, a California corporation (hereinafter collectively referred to as "defendants"), were the employers of plaintiff Pehle, who was an employee engaged in electrical work.

2. From on or about February 2005 and continuing through June 2006, plaintiff was employed by defendants as an electrician. Defendants paid plaintiff on an hourly basis.

3. This case concerns plaintiff's claims for uncompensated time spent during workdays with respect to: a) starting the day at defendants' shop or yard to retrieve the truck which defendants required to be stored at the shop, but also required to be present at the work site; b) hauling material in the truck to the work site; c) picking up crew members between the shop and the work site; d) caring for defendants' truck and equipment; e) picking up supplies at a third party supply house; and f) transporting tools and materials between specific jobs once the workday begins.

4. Plaintiff and other employees reported to either the job site or the company yard each day.

5. Electricians employed by defendants were organized in "crews" of two to four workers.

6. Plaintiff reported either to the yard maintained by defendants or individual job sites. Reporting times could be 5:00 a.m. or before.

7. On some workdays, plaintiff would pick up other electricians at a pre-designated spot after reporting to a job.

8. Plaintiff traveled to job sites in a company truck.

9. Plaintiff loaded and unloaded supplies from defendants' trucks and picked up supplies for defendants.

10. Defendants' records consist of time cards kept by individual workers. 11. There was no separate clock in or clock out system in place at the yard or individual job sites.

12. Plaintiff was responsible for keeping complete and accurate records of the time he worked.

13. DuFour Enterprises maintained documents that show the time of day that defendants began crediting plaintiff for compensable time each day based on the time cards submitted by plaintiff.

14. Plaintiff reported to the yard on a daily basis. On rare occasions he reported directly to the job.

15. When plaintiff reported to the yard, he was required to do so by defendants. 16. When plaintiff would pick up other electricians at pre-designated spots on the way to the yard or to a job, he was authorized to do so by defendants.

17. When electricians such as plaintiff traveled to the job site in defendants' trucks, they were never paid for this travel or work because it was defendants' policy and practice to pay them only when they were actually at the job site.

18. When plaintiff traveled back to designated points to drop off some of the crew, plaintiff continued on to defendants' yard at the end of the day. He performed various indispensable tasks on the trip back to the yard and at the yard, such as retrieving parts and supplies, purchasing fuel, performing minor maintenance on the truck, storing equipment at the yard and securing the yard.

19. Plaintiff performed the above-described work off the clock on most working days.


Ronald DuFour is the sole owner of DuFour Enterprises, Inc. Tr. 112.*fn4 He is also the sole officer of DuFour Enterprises, Inc.; he retains with his brother, Randy DuFour, the power to hire and fire employees; he personally hired and supervised plaintiff; he set plaintiff's rate of pay and signed plaintiff's paychecks; he made the decision not to pay plaintiff for travel time between the shop and the job sites; he oversaw the maintenance of plaintiff's employment records; he controls the spending of DuFour Enterprises, Inc.; he determines how to comply with labor standards; he decides what jobs to bid on and how much to bid for a particular job; and he has loaned money to DuFour Enterprises, Inc. and vice versa. Tr. 113-17.

While employed by defendants, plaintiff completed his own timesheets on a daily basis at defendants' direction. Tr. 11-13, 70. When plaintiff was first hired, Mr. DuFour instructed plaintiff to account on his timesheets only for time spent at job sites or between job sites, since the company did not pay for travel time before arriving at the first job site of the day or after leaving the last job site of the day. Tr. 22. As a result, except on the rare occasions when plaintiff expressly claimed his "shop" time on his timesheets,*fn5 plaintiff did not record and was not paid for any time at defendants' shop, travel time going to the first job of the day, or travel time returning from the last job of the day. Tr. 16, 22, 32, 40, 426. Plaintiff's self-reported work hours were never deducted by ...

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