The 11th Circuit has a new explanation for why a company employing valets might be a covered enterprise under the FLSA. Asalde v. First Class Parking (11th Cir 08/03/2018) [PDF] In its June 29 opinion [PDF] the court said that a jury could find that the uniforms worn by valets are "materials" and that the valets "handle" the uniforms. In its August 3 opinion – without explaining why – the court ignores uniforms and examines valet tickets.
Asalde, a valet, brought claims in a putative collective action under the minimum-wage and overtime provisions of the Fair Labor Standards Act (FLSA). The trial court granted summary judgment for the employer; the 11th Circuit reversed. The case turned on whether the employer was a covered enterprise under the FLSA, and that question turned on whether valets who park customers' cars are "handling … materials" that have moved in commerce. 29 U.S.C. § 203(s)(1)(A)(i). The court concluded that a jury could find that the valet tickets used by the plaintiff are "materials," so the employer could possibly be a covered enterprise.
The court had previously held that cars parked by valets are not "materials" because they are an item on which a service is performed rather than the means of performing the service. Tickets are a different matter. "A jury could find that the valet tickets are 'articles necessary for doing . . . something,' i.e., providing the commercial service of parking cars. Second, a jury could find that the valet tickets have a "significant connection' with [defendant]'s commercial activity."
The court also found that there was evidence to support a finding that the tickets "moved in commerce" into the state of Florida. A ticket was stamped "PRINTED IN USA," as well as "SOUTHLAND PRINTING, SHREVEPORT, LA." [In its June 29 opinion the court was impressed that uniforms had labels such as "Made in ________."]
By the way, the judge who dissented in the original decision has retired, so the most recent decision was from the remaining two – a "quorum."