United States District Court, E.D. Arkansas, Western Division
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Kristine G. Baker, United States District Court Judge
Casy Carlton, Jonathan Jones, and Bobby Harrison bring this
action against defendants JHook Investments, Inc.
(“JHook”), Jeff Hooker, and Ivy Hall, Inc.
(“Ivy Hall”), under the overtime provisions of
the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 201 et seq., and the overtime provisions of
the Arkansas Minimum Wage Act (“AMWA”), Arkansas
Code Annotated § 11-4-201 et seq. (Dkt. No. 1).
Defendants filed a motion for summary judgment (Dkt. No. 17).
Plaintiffs also filed a motion for partial summary judgment
(Dkt. No. 20). The Court denied both defendantsâ motion for
summary judgment and plaintiffsâ motion for partial summary
judgment (Dkt. No. 40).
then filed a motion for order to provide documents and
incorporated brief (Dkt. No. 43). The Court held a hearing on
this motion on February 1, 2019. For the reasons stated by
the Court at that hearing, the Court grants plaintiffs’
motion for order to provide documents Id.).
plaintiff Mr. Jones has filed a motion to dismiss without
prejudice (Dkt. No. 49). In this motion, Mr. Jones requests
that the Court dismiss his claims without prejudice
(Id.). The Court finds that Mr. Jones’ motion
to dismiss without prejudice accords with the terms of
Federal Rule of Civil Procedure 41(a)(2). The Court therefore
dismisses without prejudice Mr. Jones’ claims against
defendants. Accordingly, to the extent the Court in this
Order refers to “plaintiffs, ” the Court is
referring only to Mr. Carlton and Mr. Harrison.
matter came before the Court for a bench trial. The parties
were represented by counsel. Pursuant to Federal Rule of
Civil Procedure 52(a), the Court makes the following findings
and conclusions. The Court denies defendants’ oral
motion for a directed verdict under Federal Rule of Civil
Procedure 52(c). The Court determines that plaintiffs have
sustained their burden of proof and are entitled to damages,
as set forth below.
Findings Of Fact
bench trial was held on this matter on February 4, 2019.
Plaintiffs filed proposed findings of fact (Dkt. No. 45).
Defendants agreed with many of those proposed findings of
fact, except to the extent set forth below (Dkt. No. 48). To
the extent defendants did not object to plaintiffs’
proposed findings of fact, such findings are adopted by the
Court as its findings and cited below.
following individuals testified at trial: Mr. Hooker, Mr.
Carlton, Mr. Harrison, Tim Moody, Jim Heverly, Tony Martin,
and Tammy Moody.
trial, plaintiffs introduced six exhibits. Both sides agreed
to rely upon these exhibits:
a. Exhibit 1 contains partial payroll records for each of the
plaintiffs when they worked for defendants (Ex. 1).
b. Exhibit 2 is an earning statement for Mr. Harrison dated
November 13, 2015 (Ex. 2).
c. Exhibit 3 includes “Employee Commission Log”
sheets that have Mr. Carlton’s name written in the
heading (Ex. 3).
d. Exhibit 4 includes “Employee Commission Log”
sheets that have Mr. Harrison’s name written in the
heading (Ex. 4).
e. Exhibit 5, which originally included Mr. Jones’
commission logs, was substituted by agreement of the parties
for a collection of payroll records for Mr. Harrison.
f. Exhibit 6 is a spreadsheet prepared by plaintiffs that
lists the following information for each plaintiff by pay
period: work location, regular on-duty hours, call-out time,
hours per week, regular pay, commission, total earnings,
regular pay rate, overtime pay rate, unpaid overtime wages,
liquidated damages, and total damages (Ex. 6).
Plaintiffs also presented three new exhibits attached to
their post-trial briefing. The first post-trial exhibit is a
summary of Exhibit 3 that was introduced at trial (Dkt. No.
55-1). This post-trial exhibit is a spreadsheet that lists
every day that Mr. Carlton worked for defendants and lists
how much time per day, according to his commission sheets,
Mr. Carlton worked after-hours (Id.). This exhibit
also includes weekly totals of after-hours time worked by Mr.
Carlton, as well as the amount of after-hours work he
performed on his on-call and off-call weeks (Id.).
second post-trial exhibit is a spreadsheet that calculates
revised damages for Mr. Harrison, taking into account the new
payroll records for Mr. Harrison that are included in Exhibit
5 (Dkt. No. 55-2). The third post-trial exhibit is a
spreadsheet calculating after-hours worked by Mr. Harrison as
reflected in Mr. Harrison’s commission sheets
introduced as Exhibit 4 at trial (Dkt. No. 55-3).
Separate defendant JHook is a for-profit corporation
registered to conduct business in the State of Arkansas (Dkt.
No. 45, ¶ 1). JHook operates a towing services company
based in North Little Rock, Arkansas, under the business name
of JHook Towing and Recovery (Id., ¶ 2). JHook
also completes some recovery services and has a repair shop
operating as a small mechanic garage for tractor trailers.
JHook had a previous location in Lonoke before it was
suspended by state police for improper staffing. From June
2015 until early 2017, JHook had 11 to 12 drivers out of
approximately 13 to 20 total employees.
Separate defendant Mr. Hooker is an individual and resident
of Arkansas (Id., ¶ 3). Mr. Hooker is an
officer and director of JHook (Id., ¶ 4). Mr.
Hooker testified that he is sole owner of JHook, though he
conceded that his wife may be a co-owner. Mr. Hooker is an
officer, director, and owner of Ivy Hall.
Separate defendant Ivy Hall is a for-profit corporation
registered to conduct business in the State of Arkansas
(Id., ¶ 5). Ivy Hall provides towing services
in and around Jacksonville (Id., ¶ 6). Ivy Hall
files a separate tax return than JHook, and has a separate
federal tax I.D., payroll, bank account, phone number, fax
machine, email address, and logo. From June 2015 into early
2017, Ivy Hall employed three to four employees.
JHook and Ivy Hall’s revenue primarily consists of
towing fees, sales of wrecked vehicles, and repairs of large
trucks (Id., ¶ 7). Both JHook and Ivy
Hall’s primary revenue is derived from fees for tows
for the general public, police departments, and car
dealerships, and, for JHook only, big tows such as
tractor-trailers. JHook and Ivy Hall obtain revenue each year
from selling unclaimed vehicles to car dealerships and
Defendants contend that Ivy Hall is a separate towing
Defendants also called Mr. Moody, Mr. Heverly, Mr. Martin,
and Ms. Moody to testify.
Moody is the general manager of JHook and Ivy Hall and has
been for 11 to 12 years. Mr. Moody conducts initial
interviews of prospective employees for the businesses, and
Mr. Hooker will sometimes come in once the prospective
employee is determined to be qualified.
Heverly is employed at JHook and has worked as a roll back
driver for close to five years.
Martin is employed at Ivy Hall and has worked as a rollback
driver for ten years.
Moody is employed at JHook and has worked as a dispatcher for
Hooker testified that JHook and Ivy Hall infrequently borrow
and loan employees to each other. When this occurs, according
to Mr.Hooker, the employee is still paid by the company that
Hooker and Mr. Moody have set the method and manner of
payment for JHook and Ivy Hall drivers. Mr. Hooker testified
to having three methods to pay a driver: (1) an hourly rate;
(2) an overtime rate; and (3) a commission. Rollback drivers
are to be paid salary plus commission for every call they
run. Drivers are self-reporting and turn in a weekly
commission sheet in order to calculate their pay.
Mr. Carlton’s Job Duties
Carlton entered into an employer-employee relationship with
JHook and Mr. Hooker in February 2016 (Id., ¶
8). In February 2016, JHook and Mr. Hooker hired Mr. Carlton
as a tow truck driver (Id., ¶ 9). Mr. Carlton
worked for JHook and Mr. Hooker until February 2017
(Id.). Mr. Carlton performed towing services and
other duties incidental to towing on JHook and Mr.
Hooker’s behalf (Id., ¶ 10). Mr. Carlton
worked in three different locations: Jacksonville, North
Little Rock, and Lonoke (Id., ¶ 11).
Carlton entered an employer-employee relationship with Ivy
Hall and Mr. Hooker in February 2016. Mr. Carlton was
dispatched out of JHook’s Lonoke location during
November 2016, and he was dispatched out of the North Little
Rock location from December 2016 until February 2017 (Ex. 6).
While employed, Mr. Carlton drove a rollback truck, and his
primary duties were performing towing services and other
duties incidental to towing on behalf of JHook and Ivy Hall.
Plaintiffs assert that after JHook and Mr. Hooker hired Mr.
Carlton as a tow truck driver, Ivy Hall regularly dispatched
Mr. Carlton to perform towing services on its behalf (Dkt.
No. 45, ¶ 12). Defendants deny this assertion and state
that, if it occurred, it was infrequent (Dkt. No. 48, ¶
2). At the hearing, testimony was presented that, while at
Ivy Hall, Mr. Carlton would receive calls from JHook to
perform towing services on JHook’s behalf. While at
JHook, Mr. Carlton would also receive calls from Ivy Hall to
perform towing services on its behalf (Id.).
Carlton performed towing services for defendants solely
within the State of Arkansas (Dkt. No. 45, ¶ 13). JHook
assigned Mr. Carlton to drive a “rollback” truck
(Id., ¶ 14).
JHook’s rollback trucks were manufactured, either
wholly or partially, in a location outside the State of
Arkansas (Id., ¶ 15).
Carlton’s rate of pay was $250.00 per week, plus
commissions (Id., ¶ 16). The commission
percentage he received was 25% of the total cost of the tow.
Mr. Hooker testified that he could not testify as to whether
Mr. Carlton ever worked more than 40 hours in a week. Mr.
Hooker also testified that he could not remember if Mr.
Carlton was ever paid hourly due to a large truck accident.
Carlton did not possess a commercial drivers’ license
(“CDL”) when he performed towing services for
defendants (Id., ¶ 45). None of the defendants ever
required Mr. Carlton to possess or obtain a CDL to perform
duties as a driver (Id., ¶ 46).
Mr. Harrison’s Job Duties
Defendants represented that Mr. Harrison worked for
defendants as a tow truck driver from at least June 2015
through February 2017. Mr. Harrison worked in three different
locations: Ivy Hall in Jacksonville, JHook in North Little
Rock, and JHook in Lonoke (Id., ¶ 32). Mr.
Harrison performed towing services and other duties
incidental to towing on JHook and Mr. Hooker’s behalf
(Id., ¶ 36).
From May 2015 to June 2016, Mr. Harrison’s rate of pay
was $250.00 per week, plus commissions. The commission
percentage he received was 25% of the total cost of the tow.
Around the end of June 2016 or the first of July 2016, Mr.
Harrison’s rate of pay was changed to receive $15.00 an
hour, plus commissions at 30% of the total cost of the tow.
Mr. Harrison’s pay change occurred because he received
While at Ivy Hall, Mr. Harrison drove an F-650 large-wrecker
and a 1500 Chevy tow truck. The F-650 wrecker was for towing
large semi-trucks and box trucks. He also testified that he
drove the Chevy 1500 tow truck approximately once a week, and
he testified that the Chevy 1500 tow truck had a gross
vehicle weight rating (“GVWR”) of 10, 000 pounds
Hooker testified that, if Mr. Harrison did drive a Chevy 1500
tow truck, he did so infrequently. Mr. Hooker also testified
that he has no evidence that Mr. Harrison did not drive the
Chevy 1500 tow truck at least once a week. Mr. Hooker stated
that he knows that Mr. Harrison only infrequently used the
Chevy 1500 tow truck because Mr. Hooker was onsite when Mr.
Harrison worked from 2016 until 2017.
While at JHook in North Little Rock, Mr. Harrison testified
to driving an F-650 rollback, large wreckers, and a parts
truck. He also testified to driving the parts truck for
business purposes one to two times a week and that the parts
truck had a GVWR of 10, 000 pounds or less. Mr. Hooker
testified there was a Chevy 1500 pickup truck located in
North Little Rock that Mr. Harrison used infrequently.
While at JHook in Lonoke, Mr. Harrison testified to driving a
large wrecker, a rollback, and an F-250 service truck. He
also testified to driving the F-250 service truck once or
twice a week and that the F-250 had a GVWR of 10, 000 pounds
was not common for Mr. Harrison, as part of his employment,
to take a vehicle out of the state of Arkansas. Mr. Harrison
once took either a truck or a trailer to Las Vegas on
regular work schedule for defendants’ tow truck drivers
was 8:00 a.m. to 5:00 p.m., with a one-hour lunch. Mr.
Carlton testified that he was always subject to being called
out during his lunch breaks, which he testified meant that,
if he went to get lunch and he received a call, he would have
to take the call, especially if it was a police call. Mr.
Carlton also testified that he often took his lunch with him
on calls because he could not afford to eat out. Mr. Harrison
testified that, during the day, he would eat food while
working and that he could not recall any particular days when
this did not happen.
Heverly testified that he was able to take a full lunch hour
on a regular basis but would have had to leave lunch for a
tow if called by the dispatcher.
Moody testified that she would go to the next driver if she
called a driver while he or she was in the middle of lunch.
She also testified that, if there was not another driver
available, the driver on lunch would take the call and then
return to lunch. Ms. Moody stated that she does not pull away
drivers from their lunches often, except for police calls.
Moody testified that drivers were supposed to take their hour
lunch whenever there was a break between calls.
Heverly testified to leaving the site regularly to take
lunch, and he remembered Mr. Harrison leaving the yard to eat
lunch. He also testified that he recalled Mr. Carlton
bringing his lunch and eating in the break room. Mr. Heverly
testified that he did not know how long plaintiffs’
Carlton testified that he used time outside of calls to mow
grass, pick up parts in the yard, and perform other duties
besides driving a tow truck. Mr. Moody and Mr. Hooker
testified that there was down time for plaintiffs when they
were not working during business hours and that plaintiffs
were paid for that time. Mr. Hooker also testified that
waiting and being ready to go to a tow is a part of the job.
Moody testified that there is not much grass to cut at Ivy
Hall and that there is an individual, Willie Kline, who is
paid to cut the grass and do clean up.
Carlton testified that drivers were to be on-call and paid
commission on tows after 5:00 p.m. or before 8:00 a.m.
Moody testified that drivers were on-call every other week.
Carlton and Mr. Harrison testified that they did not keep any
record of the hours worked for JHook or Ivy Hall. Mr. Hooker
testified that he did not know how many hours Mr. Carlton
worked during his employment. Mr. Hooker also testified that
he did not have any records of how many hours Mr. Harrison
worked prior to Mr. Harrison obtaining his CDL.
Hooker testified that a driver would be the only person to
know whether he or she did or did not work overtime. Mr.
Hooker also testified that he has made no efforts to ensure
that rollback drivers are not driving more than 40 hours in a
Moody testified that drivers would have a better
understanding of the weekly average number of hours they
worked on-call in the evenings and the weekends.
addition to the regular work schedule, Mr. Carlton testified
to working an extra two hours every other Saturday to run the
Ivy Hall office. While at Ivy Hall, Mr. Carlton estimated,
based on his recollection, that he worked an average 47 hour
or 45 hour regular on-duty hour work week based on Saturday
Carlton testified to being on-call for an average of 15 hours
weekly as a best estimate of unpaid hours for the whole time
period. This estimate was based off his recollection of a
seven-day work week, working through his lunch hours, two to
three after-hour calls a night, and being on-call during
Saturday and Sunday.
While at JHook in Lonoke, Mr. Carlton testified to being
constantly on-call. Mr. Carlton also testified to being
on-call approximately 26 unpaid hours per week while at the
North Little Rock location. The estimate was based off a
seven-day work ...