SHANE VILLARINO

v.

PACESETTER PERSONNEL SERVICE, INC.

23-10645 Opinion of the Court 3

I.

Pacesetter Personnel Service provides temporary labor to clients in various industries across the Southeast, ranging from construction to hospitality. Would-be employees known as “daily ticket workers” gather at a Pacesetter labor hall, signing in to say that they are available to work that day. Any worker who receives a job offer is given a ticket that includes a start time, the worksite’s location, and any suggested or required equipment. Pacesetter’s transportation agreement advises the daily ticket workers that it is their responsibility to arrive at assigned jobs on time. That same agreement, signed by workers, provides several options for getting to and from worksites—the worker’s own vehicle, public transportation, Pacesetter vans, or carpools in coworkers’ cars. Pacesetter deducts $3.00 per day ($1.50 each way) from the paychecks of those workers who ride in a carpool or van and pays carpool drivers $1.50 for each person driven per leg of the trip. Many jobs require tools, and here too workers have options. They can either bring their own or use Pacesetter’s—basic items like goggles, gloves, shovels, masks, and work boots. Workers who fail to return the equipment after work are eventually charged for it, but that is typically a last resort after unfruitful attempts to retrieve the tools. In most cases, at day’s end the workers return to the labor hall, give back the equipment, and get paid. Shane Villarino and around 300 other daily ticket workers in Broward County, Florida, brought a hybrid collective and class

23-10645 Opinion of the Court 5 subclass of plaintiffs bringing excessive-transportation-charge claims under the Florida Labor Pool Act.

II.

We review the district court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to Villarino and drawing all inferences in his favor. Nehme v. Fla. Int’l Univ. Bd. of Trs., 121 F. 4th 1379, 1383 (11th Cir. 2024). Summary judgment is appropriate if “there is no genuine dispute as to any material fact” meaning that Pacesetter is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review the denial of class certification under Rule 23 for abuse of discretion. Cherry v. Dometic Corp., 986 F. 3d 1296, 1300 (11th Cir. 2021). Factual determinations are reviewed for clear error and legal determinations de novo. Vega v. T-Mobile USA, Inc., 564 F. 3d 1256, 1265 (11th Cir. 2009).

III.

We proceed in three parts, considering Villarino’s transportation deduction and unpaid time claims, as well as his disagreement with one of the district court’s class certification decisions.

A.

Villarino first argues that Pacesetter was wrong to deduct Pacesetter-arranged transportation from the daily pay of the workers who used those services. This deduction, Villarino says, “resulted in pay of less than the applicable minimum wage,”

23-10645 Opinion of the Court 7 provided for workers was “primarily for the benefit or convenience of the employer." 29 C.F.R. § 531.32(c). It was not. To start, the company's transportation agreement tells workers that once they are assigned to a job—and accept it—it is their own "responsibility to arrive at that job/customer/work site by the time designated in [their] Time Ticket." And that same agreement emphasizes that workers have several "options" to get to jobsites, including their own vehicles, public transit, Pacesetter vans, or a carpool. The evidence backs this up the company's regional vice president testified that customers never require workers to be dropped off by Pacesetter at a jobsite, and confirmed that workers can take their transportation of choice, including a van, carpool, public transit, or rideshare service. In fact, the workers' own deposition testimony confirms two things: they knew they had options, and they used them. One worker said he varies between a Pacesetter van, a carpool, or a bus. Another explained that Pacesetter never told him he could not drive himself to work. And a third testified that no one instructed her which form of transportation to use. The bottom line is that if workers needed transportation the company would assign it, but they remained free to choose other options—and did so regularly. No doubt, organizing transportation for those who needed it likely helped Pacesetter live up to its promise of a "comprehensive employee transport system" that provided "dependable, timely general labor" for clients. But the fact that Pacesetter also benefited from the options it offered employees

23-10645 Opinion of the Court 9 transportation we consider here. Pacesetter workers’ transportation is more like ordinary commuting that Department of Labor regulations already make clear are to benefit employees, not employers. See 29 C.F.R. § 531.32(a); Arriaga, 305 F. 3d at 1242. The transportation is an optional benefit distinct from the “free and clear” minimum wage that workers already receive. 29 C.F.R. § 531.36(a). That means Pacesetter can lawfully deduct the workers’ transportation costs from their wages without running afoul of the Fair Labor Standards Act and the Florida Minimum Wage Act.

B.

Villarino’s next claim is that workers should have been paid for the time they spent (1) traveling to and from worksites, (2) collecting tools for their respective jobs, and (3) waiting for transportation. He says Pacesetter’s failure to pay for this time violated the Fair Labor Standards Act and its Florida equivalent. That’s true only if traveling, collecting tools, or waiting is part of the core work that the workers were hired to perform—in other words, whether any of these was an “integral and indispensable part of the principal activities” of the job. Integrity Staffing Sols., Inc., v. Busk, 574 U.S. 27, 33 (2014) (quotation omitted); Portal-to-Portal Act, 29 U.S.C. § 254(a)(1). And an activity is “integral and indispensable” if it is “an intrinsic element” of the principal activities—something that an employee must perform to carry out her primary duties. Busk, 574 U.S. at 33. None of these meets the test.

1.

We begin with the travel-time claim. The Portal-to-Portal Act amended the FLSA to exempt from compensation the time workers spend "traveling to and from the actual place of performance of the principal activity or activities." 29 U.S.C. § 254(a)(1). That explains why "[n]ormal travel from home to work is not compensable as “worktime.” 29 C.F.R. § 785.35. The fact that workers need to get to their jobs in order to do them is not enough-if “mere causal necessity was sufficient to constitute a compensable activity, all commuting would be compensable because it is a practical necessity.” Bonilla v. Baker Concrete Const., Inc., 487 F. 3d 1340, 1344 (11th Cir. 2007). And that would make the Portal-to-Portal Act a dead letter. What's more, ordinary commutes do not become compensable just because an employer provides the transportation. The Department of Labor itself characterizes riding "between a town and an outlying mine or factory” as an example of "walking, riding, or traveling” that is "preliminary” or "postliminary” to the workday and thus noncompensable. 29 C.F.R. § 790.7(f). The same is true for "riding on buses or trains from a logging camp to a particular site at which the logging operations are actually being conducted." Id. Indeed, the Labor Department's own Field Operations Handbook-in a section addressing temporary labor firms like Pacesetter-explains that travel from a central location to a

23-10645 Opinion of the Court 11 customer’s establishment and back is noncompensable.[fn 5] U.S. Dep’t of Labor, Wage and Hour Division, Field Operations Handbook 31c09 (Aug.¹⁰, 2016). “In other words,” the handbook explains, the employee’s “working time is computed in the same manner as if he or she had gone directly from his or her home to the customer’s establishment and returned home from there at the end of the day.” Id. Though we are not bound by that guidance, we find it persuasive, and conclude that the time Pacesetter workers spend traveling to and from worksites is not compensable. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412–13 (2024); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Villarino disagrees. He does not argue that the employees are performing any work before or during their travel time, but says that the time is compensable because they “were required to report to the Pacesetter labor hall.” That requirement is not enough. If the integral-and-indispensable test could be “satisfied merely by the fact that an employer required an activity”—as Villarino would have it—the test “would sweep into ‘principal activities’ the very activities that the Portal-to-Portal Act was designed to address,” including time spent “walking, riding, or

2.

Villarino next argues that because Pacesetter-issued tools were “integral and indispensable” to workers’ principal job duties, they must be paid for the time spent collecting and returning those tools to Pacesetter’s labor hall. The Portal-to-Portal Act once again governs. In this context, the test is whether a non-travel activity “preliminary to or postliminary to” a worker’s “principal activity” is integral and indispensable to that activity. 29 U.S.C. § 254(a)(2); see Busk, 574 U.S. at 33. Those two words have different meanings: “indispensable is not synonymous with integral.” Llorca v. Sheriff, Collier Cnty., 893 F. 3d 1319, 1323 (11th Cir. 2018) (alteration adopted and quotations omitted). So to qualify, a worker’s activities must be integral, which means that they must form an “intrinsic portion or element” of her principal activities. Busk, 574 U.S. at 33

23-10645 Opinion of the Court 13 (quotation omitted). The activities must also be indispensable, which means that they “cannot be dispensed with, remitted, set aside, disregarded, or neglected." Id. (quotation omitted). So “[e]ven activities required by the employer and for the employer's benefit" remain outside the bounds of the employee's principal activity if they are "not integral and indispensable to the productive work that the employee is employed to perform.” Balestrieri v. Menlo Park Fire Prot. Dist., 800 F. 3d 1094, 1101 (9th Cir. 2015) (emphasis omitted) (quoting Busk, 574 U.S. at 36). And just because "certain preshift activities are necessary for employees to engage in their principal activities” does not mean they qualify. IBP, Inc. v. Alvarez, 546 U.S. 21, 40–41 (2005). On this record, tool collection and return are not an indispensable part of the daily ticket workers' duties. As discussed, the daily ticket workers voluntarily select which days to work “at their sole discretion.” Some jobs do not require tools, and for others Pacesetter clients will supply tools at the jobsite. And Pacesetter also allows workers to bring their own tools if they wish. Some-including Villarino-do. What's more, picking up generic equipment-hard hats, safety vests, gloves, brooms, rakes, and shovels—“may or may not be necessary in particular situations or for every employee." Id. at 40. While tools can increase the length of a daily ticket worker's employment, a worker may even arrive at a jobsite without the recommended tool and still receive work. That makes this case unlike Alvarez, where “the donning of certain types of protective gear"-in hazardous occupations, for

23-10645 Opinion of the Court 15 workers spend collecting and returning tools is noncompensable under the FLSA.

3.

We turn now to Villarino's waiting-time claim. He argues that Pacesetter needed to compensate workers “for all time after receiving their daily work ticket.” The reason? Workers, he says, were compelled "to wait for Pacesetter-assigned/coordinated transportation to take them to the job site," so they "could not use this time effectively for their own purposes." Not so. As before, the compensability of the workers' wait time hinges on whether it was integral and indispensable to their principal activities. See Busk, 574 U.S. at 32-33. The Field Operations Handbook again provides a helpful starting point: time spent "waiting for assignments" at a central location is noncompensable. Handbook 31c09. Supreme Court precedent offers helpful data points too. In one case, “the time battery-plant employees spent showering and changing clothes" was integral and indispensable to their work—and thus compensable—“because the chemicals in the plant were 'toxic to human beings.” Busk, 574 U.S. at 34 (quoting Steiner v. Mitchell, 350 U.S. 247, 249 (1956)). And in another, "the time meatpacker employees spent sharpening their knives” was compensable “because dull knives would 'slow down production' on the assembly line, 'affect the appearance of the meat as well as the quality of the hides,' 'cause waste,' and lead to 'accidents." Id. (quoting Mitchell v. King Packing Co., 350 U.S. 260, 262 (1956)).

23-10645 Opinion of the Court 17 travel from there to the customer’s establishment and return would not be compensable worktime.”⁸ Handbook 31c09; see also Bonilla, 487 F. 3d at 1341. On top of that, workers typically used their waiting time— both for assignments and for Pacesetter transportation—doing as they pleased. One testified that he watched the news or went to buy coffee while waiting for a job assignment. Another added that he would sit in the waiting room, sleep, go outside to smoke a cigarette, or pop by a food store to buy coffee. These personal activities are well removed “from the productive activity” that the workers were hired to perform at their respective jobsites, meaning their waiting time comfortably qualifies as preliminary activity. Alvarez, 546 U.S. at 42. In sum, because the workers’ wait time was neither “the principal activity or activities” that they were hired to perform nor “integral and indispensable” to their job duties, it was not compensable under the FLSA. Busk, 574 U.S. at 35 (quotation omitted).

C.

Having rejected Villarino's substantive claims, we turn to his argument that the district court abused its discretion by refusing to certify the excessive-transportation-charge subclass under the Florida Labor Pool Act. Though the district court certified certain subclasses and refused to certify others, Villarino challenges only the denial of the class of workers alleging that some workers were charged more than the $1.50 each way that Florida law permits for transportation. See Fla. Stat. § 448.24(1)(b). The district court determined that this class failed Federal Rule of Civil Procedure 23(b)(3), which permits class certification if (among other things) “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members." But "certification is inappropriate" under this provision if plaintiffs must “introduce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individualized claims.” Sellers v. Rushmore Loan Mgmt. Servs., LLC, 941 F. 3d 1031, 1040 (11th Cir. 2019) (quotation omitted). Here the court determined that resolving the transportation-subclass claims would “require extensive amounts of individualized proof that would predominate.” Villarino contends that the class should be certified because Pacesetter's own records provide the necessary information, listing “each daily charge in excess of $3.00 for transportation." And he insists that

[fn 1]: The Florida Minimum Wage Act adopts many of the statutory and regulatory provisions of the Fair Labor Standards Act. See Fla. Stat. § 448.110(3). [fn²]: The court also granted summary judgment to Pacesetter on Villarino’s claim that Pacesetter had violated the Florida Labor Pool Act by charging above market value or the actual cost for equipment. Villarino does not appeal that decision. [fn 3]: Because neither Pacesetter’s motion for summary judgment nor the district court’s order granting that motion expressly addressed whether Pacesetter violated the Fair Labor Standards Act when it charged workers for transportation, Villarino says he was deprived of notice and an opportunity to respond on this claim. That is incorrect. Villarino himself raised this issue in his motion for summary judgment, which the district court denied after both parties briefed the issue. Villarino cannot now claim that he lacked notice to address an issue he himself raised. Cf. Denis v. Liberty Mut. Ins. Co., 791 F. 2d 846, 850 (11th Cir. 1986); Restigouche, Inc. v. Town of Jupiter, 59 F. 3d 1208, 1213 (11th Cir. 1995). [fn⁴]: Pacesetter's argument that 29 U.S.C. § 203(m)(1) allows employers to count certain non-cash benefits—room, board, and “other facilities”—as part of an employee's total wages to meet the minimum wage is true. See 29 C.F.R. § 531.32(a), (c). But because neither party contends that Pacesetter's cash wages do not meet the minimum wage in the first place, this rule is beside the point-it would only matter if Pacesetter was relying on the value of the transportation services to meet the minimum wage. And so long as the prices Pacesetter charged for transportation did not “exceed the ‘reasonable cost” of that transportation, which no one is arguing at this stage of the case, deductions could be made “even if they reduce the cash wage below the minimum wage.” Id. § 531.36(a). [fn 5]: We note that for this provision to apply, the “employment understanding” must “clearly” be that the employee’s pay or work “begins and ends at the customer’s establishment.” U.S. Dep’t of Labor, Wage and Hour Division, Field Operations Handbook 31c09 (Aug.¹⁰, 2016). That condition is satisfied here. [fn⁶]: It is true that travel from a central meeting spot like Pacesetter’s to another jobsite “must be counted as hours worked” when employees are “required” to report at the meeting place “to receive instructions.” 29 C.F.R. § 785.38. Even so, the nature of the daily ticket workers’ employment makes that regulation inapplicable here. The workers decide for themselves “when, if, and for what days they wish to seek and accept assignments,” and report to Pacesetter’s labor hall accordingly. Arriving at the labor hall on their own initiative to (hopefully) secure work is, by definition, not a “require[ment]” to do anything. Id. It therefore does not make the workers’ travel time compensable under the FLSA. [fn 7]: Even if Pacesetter required workers to wait for transportation, that would not make this time integral and indispensable to their principal activities at their respective jobsites. That is because “[t]he integral and indispensable test is tied to the productive work that the employee is employed to perform”—not “whether an employer required a particular activity.” Busk, 574 U.S. at 36. [fn⁸]: Here, we note a Department of Labor audit finding that Pacesetter had committed no minimum-wage violations at its Orlando, Florida, labor hall between 2016 and 2018. The audit report stated that “the time waiting for assignment or travelling from the central location to the worksite is not compensable.” Pacesetter attested that the policies at all Florida locations were the same during the relevant period. [fn 9]: Roper is binding precedent in the Eleventh Circuit under Bonner v. City of Prichard, 661 F. 2d 1206, 1207 (11th Cir. 1981) (en banc).