OMNIBUS ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

(D.E. 78, 80, 84)

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE.

THIS CAUSE is before the Court on Defendant MDT Personnel, LLC's ("MDT") Motion for Summary Judgment, filed on January 5, 2015. (D.E. 78.) Plaintiffs filed their Response on January 29, 2015, (D.E. 95), to which MDT filed a Reply on February 9, 2015, (D.E. 101). The Parties' Statements of Undisputed Facts are incorporated into their respective pleadings.

Also before the Court is Defendant Labor Ready Southeast, Inc.'s ("Labor Ready") Motion for Summary Judgment, filed on January 5, 2015. (D.E. 80.) Plaintiffs filed their Response on January 29, 2015, (D.E. 96), to which Labor Ready filed a Reply on February 9, 2015, (D.E. 98). The Parties' Statements of Undisputed Facts are incorporated into their respective pleadings.

Also before the Court is Plaintiffs' Motion for Summary Judgment, filed on January 9, 2015. (D.E. 84.) MDT and Labor Ready each filed a Response on January 29, 2015, (D.E. 97, 98), to which Plaintiffs filed Replies on February 10, 2015, (D.E. 105, 106). Plaintiff filed a Statement of Undisputed Facts (D.E. 85); Defendants incorporated their statements of facts into their Responses.

Upon review of the Motions, Responses, Replies, and the record, the Court finds as follows.

I. Background1

MDT employed Plaintiffs to move and clean rental cars on behalf of Alamo Rent A Car at Miami International Airport ("Alamo MIA"). (Id. ¶ 5.) Labor Ready acquired MDT's assets in February or March, 2013. (Id. ¶ 6.)2 Plaintiffs are suing Defendants pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, and Florida's Minimum Wage Act, Florida Statute § 448.110. (MDT Mot. (D.E. 78) ¶ 1.) They allege minimum wage and unpaid overtime violations, for which they seek actual and liquidated damages. (Id. ¶¶ 2-4.)

Plaintiffs were hourly-paid employees of MDT and Labor Ready. (Pls. Facts (D.E. 85) ¶ 12.) Alexander Grullon was the branch manager and the person in charge of employee payroll for MDT and Labor Ready at the Alamo MIA location until April 2014. (Id. ¶¶ 13, 16.) In April 2014, Ami Pavon became the branch manager at Alamo MIA. (Labor Ready Resp. ¶ 14.) She was also in charge of paying Plaintiffs' wages. (Pls. Facts ¶ 14.)

Frank Maresca was MDT and Labor Ready's regional manager at the Alamo MIA location. (Id. ¶ 18.) Mr. Maresca delegated to Mr. Grullon the responsibility of monitoring the hours employees worked. (Id.) Because MDT/Labor Ready did not have an overtime bill rate for Alamo, they were required to bill Alamo for "straight time" even when employees were working overtime. (Id. ¶ 19.) Because Defendants could lose money this way, Mr. Maresca spoke with Mr. Grullon about reducing and limiting employee overtime. (Id.) Mr. Maresca limited Mr. Grullon to offering twenty hours of overtime per week, and told him that the ultimate goal is zero overtime. (Id. ¶ 20.)

Plaintiffs state that Mr. Grullon deleted hours from Plaintiffs' time records and that Plaintiffs were not paid for those deleted hours. (Id. ¶¶ 21, 23.) Labor Ready contends that the hours Mr. Grullon deleted were fraudulently-entered, non-worked hours. (D.E. 98 ¶¶ 21, 23.)

Plaintiffs allege that each workday, Defendants required Plaintiffs to report to a remote employee parking facility at MIA and wait for a shuttle to transport them to Alamo MIA. (D.E. 85 ¶ 24.) The parking facility did not have a time clock, and Plaintiffs were not paid for the time spent waiting for the shuttle and travelling to the work site, which amounted to approximately 25 to 40 minutes of uncompensated time each day. (Id.) Defendants also required Plaintiffs to clock out before shuttling back to the employee parking lot at the end of each workday, which amounted to an additional 25 to 40 minutes of uncompensated work time. (Id.) Defendants state that Plaintiffs were not required to park in the employee parking lot and that, regardless, time commuting to and from the employee lot is not compensable under the FLSA. (See MDT Resp., D.E. 97 ¶ 24; Labor Ready Resp., D.E. 98 ¶ 24.)

It is undisputed that in March 2014, Mr. Maresca became aware that employees were not being paid "right away." (Labor Ready's Resp., D.E. 98 ¶ 27; Pls. Facts ¶ 27.) Mr. Maresca reprimanded Mr. Grullon for this and instructed Mr. Grullon that "from now on we need to pay everybody on Mondays." (Pls. Facts ¶ 27.) However, the late payments continued and Mr. Grullon was ultimately terminated in part because he was not paying employees on a timely basis. (Id.)

Labor Ready states that its policy and practice was to pay workers based on a Saturday to Friday work week and to pay workers within seven to eight days following the Friday of the preceding pay period. (Labor Ready Mot. ¶ 6.) Plaintiffs dispute that the payroll records support Labor Ready's assertion, but stop short of disputing that they were, in fact, paid within eight days of the end of the pay period. (See Pl. Resp., D.E. 96 ¶ 6.)

MDT states that during the relevant time period, it had no corporate policy to hold two weeks of pay from its employees, (MDT Mot. ¶ 10), but Plaintiffs argue that Defendant did have such a policy and withheld wages in abeyance, (D.E. 95 ¶ 10).

On September 4, 2014, Plaintiffs filed the operative Second Amended Complaint (D.E. 33) alleging claims for: unpaid overtime against Labor Ready and MDT, respectively (Counts I and II); minimum wage violations for failure to promptly pay wages against Labor Ready and MDT, respectively (Count III and IV); unpaid minimum wages against Labor Ready and MDT, respectively (Counts V and VI).

Additional facts will be developed where relevant to the Court's discussion.

II. Legal Standards

On a motion for summary judgment, the Court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In addition, under Federal Rule of Civil Procedure 56(f)(1), the Court may grant summary judgment for the non-moving party "[a]fter giving notice and a reasonable time to respond." Fed. R. Civ. P. 56(f)(1); see also Gentry v. Harborage Cottages-Stuart, LLLP, 654 F.3d 1247, 1261 (11th Cir.2011). The Supreme Court has explained the summary judgment standard as follows:

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation omitted). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine if the evidence is such that a reasonable fact-finder could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. 2505; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the movant makes this initial demonstration, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548; see also Fed. R. Civ. P. 56(c). In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Id. at 587, 106 S.Ct. 1348. An action is void of a material issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Id.

III. Discussion

In their cross-motions for summary judgment, the Parties argue their respective positions concerning: (1) Plaintiffs' unpaid overtime wage claims; (2) Plaintiffs' unpaid minimum wage claims; and (3) whether Defendants failed to promptly pay Plaintiffs' wages.3 The Court will discuss each in turn.

a. Counts I and II: unpaid overtime

Counts I and II of the Complaint allege unpaid overtime wage claims under the FLSA and Florida's Minimum Wage Act against Labor Ready and MDT, respectively. (D.E. 33 ¶¶ 19-25, 26-32.) Plaintiffs argue that Defendants have not met their burden of producing evidence to negate the reasonable inference that they performed overtime for which they were not paid. (Pl. Mot., D.E. 84 at 2.) Labor Ready appears to argue that there is evidence in the record that Plaintiffs were paid for hours they did not actually work, thereby offsetting any deficiency. (D.E. 97 at 8-9.) Both Defendants argue that Plaintiffs are not entitled to compensation for travel time commuting from the employee parking lot to Alamo MIA. (Id. at 11-14; D.E. 98 10-14.)

The Eleventh Circuit has explained that to prevail on an FLSA claim, a plaintiff "must prove that they were suffered or permitted to work without compensation." Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1314 (11th Cir.2007). "Courts have interpreted this to mean that a FLSA plaintiff must demonstrate that (1) he or she worked overtime without compensation and (2) the [defendant] knew or should have known of the overtime work." Id. at 1314-15 (citing Reich v. Dep't of Conservation and Natural Res., 28 F.3d 1076, 1082 (11th Cir.1994)).

"Although a FLSA plaintiff bears the burden of proving that he or she worked overtime without compensation, `[t]he remedial nature of this statute and the great public policy which it embodies... militate against making that burden an impossible hurdle for the employee.'" Id. at 1315 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). "It is the employer's duty to keep records of the employee's wages, hours, and other conditions and practices of employment." Id. (citing Anderson, 328 U.S. at 687, 66 S.Ct. 1187). The Supreme Court in Anderson stated that if an employer has failed to keep proper and accurate records and the employee cannot offer convincing substitutes,

328 U.S. at 687, 66 S.Ct. 1187, superseded by statute on other grounds as stated in Sandifer v. U.S. Steel Corp., ___ U.S. ___, 134 S.Ct. 870, 875-76, 187 L.Ed.2d 729 (2014). Instead, "an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Id.

Id. at 687-88, 66 S.Ct. 1187.

The Second Amended Complaint states that Plaintiffs worked in excess of forty hours per week and "were paid for some of the overtime hours they worked, but were not paid for all of the overtime hours they worked." (Sec. Am. Compl. ¶¶ 21, 28.) They argue that Defendants owe them for the hours Grullon deleted from their timesheets, and for time commuting between the employee parking lot and Alamo MIA.

1. Deleted hours

The time records submitted as Exhibit 19 to Plaintiffs' Motion reflect that "Alex Grullon" did, in fact, delete hours from Plaintiffs' time sheets.4 (See Exhibit 19, D.E. 84-18.) For example, for the week ending October 31, 2013, Grullon deleted 2.50 hours from Plaintiff Quintanilla's time sheet; thus, instead of getting paid 6.74 hours of overtime that period, Quintanilla was only paid 4.24 hours of overtime.5 (Id. at 25.) For the week ending October 3, 2013, Grullon deleted 2.5 hours from Plaintiff Vazquez's time sheet; so instead of getting paid for 40 hours of regular time and 1.54 hours of overtime, Vazquez was only paid 39.04 hours of regular time and no overtime. (Id. at 42; see also id. at 58, 74, 95-100, 104, 107, 118-24, 132, 134-36.) Plaintiffs' affidavits aver that Defendants intentionally deducted hours worked from their timesheets. (See D.E. 84-5 ¶ 8; 84-9 ¶ 8.) Plaintiff Del Rosario's affidavit states that he "personally observed Mr. Grullon tampering with the payroll and time records so that employees were not paid for all of the hours worked." (D.E. 85-4 ¶ 8.)

Labor Ready argues that the deleted hours were fraudulently entered,6 (Labor Ready's Facts, D.E. 98 ¶ 21.) Labor Ready further argues that Grullon paid Plaintiffs for hours they did not work, apparently suggesting that the deletions were therefore justified and/or inconsequential. (Id.) It relies on the Declaration of Michael Livolsi, who "personally spoke to Alexander Grullon" on January 5, 2015. (See Livolsi Decl., D.E. 98-2 ¶ 2.)

(Id. ¶¶ 3-4.) Plaintiffs ague that this is inadmissible hearsay, (Reply, D.E. 106 ¶ 3); Labor Ready states that "Mr. Grullon's statements are admissible pursuant to [Federal Rule of Evidence] 804(b)(3)(A)," (Labor Ready's Resp., D.E. 98 at 9 n.2), but they do not offer any argument or citation in support.

In general, an out of court statement offered to prove the truth of the matter asserted is inadmissible as evidence. See Fed. R. Evid. 801(c); 802. One exception to this general rule is a statement made by an unavailable declarant that:

Id.(b)(3)(A). The Court finds that Grullon's statements to Mr. Livolsi do not fit the Rule 804(b)(3)(A) exception for statements against interest. Simply put, the at-issue statements were not against Grullon's interests, "when made" or otherwise, much less so contrary to his interests that he would not have said it unless he believed it to be true. That Grullon added hours to Plaintiffs' time sheets — an assertion which, unlike the deletions, is not reflected on the timesheets — does not affect Grullon's pecuniary or proprietary interests. Grullon was fired from Labor Ready in March or April 2014 when Ami Pavon took over. (Labor Ready's Resp., D.E. 98 ¶ 14, 16.)Id. Thus, when Grullon made the at-issue statements, he had not worked for Labor Ready for approximately eight months. If the at-issue statements were ever against Grullon's interests, it was not when they were made in January 2015. Therefore, Grullon's statements to Mr. Livolsi constitute inadmissible hearsay; accordingly, they cannot be considered on Plaintiffs' Motion for Summary Judgment. See Fed. R. Civ. P. 56(c)(4) (stating that "[a]n affidavit or declaration used to support or oppose a motion must...set out facts that would be admissible in evidence"); see also Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir.1999) ("The general rule is that inadmissible hearsay cannot be considered on a motion for summary judgment.") (citation and internal quotation marks omitted).

Finally, Labor Ready argues that the Motion must be denied because at the time Plaintiffs' Motion and Labor Ready's Response were filed, the Parties had tried, without success, to depose Mr. Grullon. (Response, D.E. 98 at 9.) It argues that pursuant to Rule 56(d), the motion must be denied until Grullon can be examined under oath. (Id.) That rule provides:

Fed. R. Civ. P. 56(d). Labor Ready has not cited to an affidavit or declaration specifying the reasons it could not present facts essential to justify its opposition, i.e., why it could not secure Mr. Grullon's testimony prior to the extended December 15, 2014 fact discovery deadline. (See D.E. 45.) Indeed, Plaintiffs assert, and Defendants do not dispute, that "Defendants made no attempts to procure the deposition of Mr. Grullon." (Pl. Mot. at 4.) Regardless, the Court finds that denying Plaintiffs' Motion pursuant to Rule 56(d) is improper without the declaration or affidavit that the Rule requires.

In sum, Plaintiffs have submitted records that clearly show that Mr. Grullon deleted hours from Plaintiffs' timesheets on weeks that they worked more than 40 hours (or would have worked more than 40 hours but for the deletion). (See D.E. 84-18.) Labor Ready admits as much. (See Labor Ready Resp., D.E. 98 at 8-9.) Defendants have therefore failed to keep proper and accurate records. See Allen, 495 F.3d at 1315-16. Plaintiffs have further submitted affidavits establishing that the hours Grullon deleted were hours they actually worked. (See, e.g., Del Rosario Aff., D.E. 85-4 ¶ 8.) In such a situation, "`an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.'" Id. (quoting Anderson, 328 U.S. at 687, 66 S.Ct. 1187.) Here, Plaintiffs have carried their burden by submitting the records showing precisely how many hours Grullon manually deleted from Plaintiffs' timesheets. (See D.E. 84-18.) The burden then shifts back to Defendants to "bring forth either evidence of the precise amount of work performed or evidence to negate the reasonableness of the inference to be drawn from the employee's evidence." Allen, 495 F.3d at 1315-16 (citing Anderson, 328 U.S. at 687-88, 66 S.Ct. 1187). Because Defendants have failed to satisfy this burden, Plaintiffs are entitled to summary judgment on their claims for unpaid overtime wages with respect to the hours Grullon deleted from their timesheets. See id.

2. Commuting from remote parking facility to Alamo MIA

Next, it is undisputed that Plaintiffs were not paid for the time they spent commuting from the employee parking lot to Alamo MIA when they arrived to work, or from Alamo MIA to the employee lot at the end of their shift. (See Pl. Facts, D.E. 84 ¶ 24; MDT Resp., D.E. 97 ¶ 24; Labor Ready Resp., D.E. 98 ¶ 24.) Plaintiffs argue that this commute is compensable time under the FLSA. (Pl. Mot. at 6-7.) Defendants argue, however, that Plaintiffs were not required to park at the remote parking facility and, regardless, their time riding the shuttle back and forth is not compensable as a matter of law under the Portal-to-Portal Act. (See MDT Resp., D.E. 97 ¶ 24; Labor Ready Resp., D.E. 98 ¶ 24.) Plaintiffs do not allege that they performed any labor while waiting for or riding the vehicles, either at the beginning or the end of each workday.

"The Portal-to-Portal Act, 29 U.S.C. § 251 et seq., which amends the FLSA, identifies those employee activities which are not compensable under the FLSA." Burton v. Hillsborough Cnty., Fla., 181 Fed.Appx. 829, 833 (11th Cir.2006). Specifically, employers are not subject to liability under the FLSA for failure to pay employees overtime compensation for:

29 U.S.C. § 254(a). The Department of Labor ("DOL") has interpreted Section 254(a) as follows:

29 C.F.R. § 790.7(f).

In Bonilla v. Baker Concrete Construction, Inc., 487 F.3d 1340, 1343-45 (11th Cir.2007), the Eleventh Circuit was called upon to determine (coincidentally) whether travel time between the employee parking lot and Miami International Airport qualified as a non-compensable activity under Section 254(a). In that case, the appellants were construction workers employed by the appellee subcontractor, Turner-Austin, on a project at MIA. Id. at 1341.

Id. The district court granted summary judgment for the employer, id. at 1342, and the Eleventh Circuit affirmed, concluding that the appellants' claim fit "squarely within" the statutory exception found in 29 U.S.C. § 254(a), as interpreted by the DOL. Id."The fact that the workers were required to ride authorized transportation after the security gate but the transportation to the security gate was optional is not relevant to the outcome of this case because even mandatory travel time is exempted from compensation under the Portal-to-Portal Act." Id. (emphasis added). Thus, the Eleventh Circuit held that "the time appellants spent traveling on the vehicles both before and after the security check point is exempt from compensation under the FLSA." Id.

In all relevant respects, Bonilla is materially indistinguishable from the case at bar. The commute between the employee parking lot and Alamo MIA fits "squarely within" the preliminary and postliminary activities exception found in 29 U.S.C. § 254(a), as interpreted by the DOL, 29 C.F.R. § 790.7(f). See id. Accordingly, the Court finds that pursuant to Bonilla, Plaintiffs are not entitled to compensation for the time spent travelling between the remote parking facility and Alamo MIA. Therefore, Defendants are entitled to summary judgment on Plaintiffs' claims of unpaid overtime wages regarding the commute between the employee parking facility and Alamo MIA.

b. Counts V and VI: unpaid minimum wage

Counts V and VI of the Second Amended Complaint allege claims for unpaid minimum wages under the FLSA and Florida's Minimum Wage Act against Labor Ready and MDT, respectively. (D.E. 33 ¶¶ 47-55, 56-64.) Plaintiff's argue that Defendants failed to pay them minimum wage for (1) the hours Grullon deleted from their timesheets, and (2) the time spent travelling between the employee parking facility and Alamo MIA. (Motion at 6-7.) Additionally, Plaintiffs Quintanilla, Rodriguez, Ricardo, Aguilera, and Vazquez argue that because they were paid precisely minimum wage, their hourly rate necessarily fell below minimum wage on each workweek Grullon deleted hours. (Id. at 7-8.) With respect to the deleted hours, Labor Ready argues that Plaintiffs were paid for hours they did not actually work, thereby offsetting any deficiency.7 (D.E. 98 at 8-9.) With respect to the commute time, both Defendants argue that Plaintiffs are not entitled to compensation. (D.E. 97 at 11-14; D.E. 98 10-14.)

"Employers must provide workers' weekly wages `in cash or in facilities', `free and clear' of improper deductions, at a rate no lower than the minimum wage rate[.]" Arriaga v. Fla. Pac. Farms, L.L.C., 305 F.3d 1228, 1235 (11th Cir.2002) (citing 29 U.S.C. § 206(a)(1)); see also Fla. Stat. § 448.110. "The effective hourly rate for determining minimum wage violations is calculated by dividing the amount of compensation paid during a workweek by the total number of hours the employee worked during that workweek. In other words, it is the workweek as a whole rather than each individual hour within a workweek that is the relevant unit for determining compliance with the minimum wage requirement." Walters v. Am. Coach Lines of Miami, Inc., 569 F.Supp.2d 1270, 1300 (S.D.Fla.2008), aff'd 575 F.3d 1221 (citing Posely v. Eckerd Corp., 433 F.Supp.2d 1287, 1308 (S.D.Fla.2006) (granting summary judgment for employer on minimum wage claim where plaintiffs conceded "that when dividing their total weekly compensation by the total number of hours they worked in any given week, they never received less than $5.15 per hour"); United States v. Rosenwasser, 323 U.S. 360, 363-64, 65 S.Ct. 295, 89 L.Ed. 301 (1945) (approving the averaging of earnings over a standard workweek to determine whether minimum wage law has been violated); Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 580 n. 16, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942) (holding that to determine whether minimum wage law has been violated, one must divide total weekly pay received by total number of hours worked); Dove v. Coupe, 759 F.2d 167, 168 (D.C.Cir.1985); Roland Elec. Co. v. Black, 163 F.2d 417, 420-21 (4th Cir.1947); Hutson v. Rent-A-Center, Inc., 209 F.Supp.2d 1353, 1359-60 (M.D.Ga.2001); Marshall v. Sam Dell's Dodge Corp., 451 F.Supp. 294, 302 (N.D.N.Y.1978)).

"An employee who brings a lawsuit under the FLSA for unpaid minimum wages... and liquidated damages bears the initial burden of proving that she performed the work for which she was not properly compensated." Perez v. Palermo Seafood, Inc., 548 F.Supp.2d 1340, 1346 (S.D.Fla. 2008) (citations omitted).

Id. at 1346-47.

1. Deleted hours

As discussed in Section III(a)(1)(A), supra: (1) Defendants failed to keep proper and accurate records insofar as Grullon deleted hours from Plaintiffs' timesheets; (2) Plaintiffs have produced records showing precisely how many hours Grullon manually deleted from their timesheets, (see D.E. 84-18); and (3) Defendants have failed to produce evidence negating the reasonable inference to be drawn from Plaintiffs' evidence. Accordingly, Plaintiffs are entitled to summary judgment on their claims for unpaid minimum wages for the pay periods in which Grullon deleted hours from their timesheets, insofar as their total weekly compensation divided by the number of hours they actually worked fell below the applicable minimum wage rate.8 See Walters, 569 F.Supp.2d at 1300.

2. Commuting from remote parking facility to Alamo MIA

As previously discussed in Section III(a)(1)(B), supra, the time Plaintiffs spent commuting between the employee parking facility and Alamo MIA is not compensable under the FLSA, as amended by the Portal-to-Portal Act. See Bonilla, 487 F.3d at 1343. Accordingly, Defendants are entitled to summary judgment as to Plaintiffs minimum wage claims regarding the commute between the employee parking facility and Alamo MIA.9

c. Counts III and IV: late minimum wage payments

Counts III and IV allege minimum wage violations for failure to have a "regular pay period and make reasonably prompt payments in issuing pay for the work performed in the pay period." (See Compl. ¶ 42.) For these failures, Plaintiffs seek liquidated damages. (See id.)

Any employer who violates the minimum wage provisions of the FLSA "shall be liable to the employee or employees affected in the amount of their unpaid minimum wages... and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). In two unpublished opinions, the Eleventh Circuit has apparently taken the position that wages become "unpaid" when they are paid "unreasonably late during the relevant period." Arroyave v. Rossi, 296 Fed.Appx. 835, 836 (11th Cir.2008); see also Benavides v. Miami Atlanta Airfreight, Inc., 322 Fed.Appx. 746, 747 (11th Cir.2009). In Arroyave, the Eleventh Circuit found that a regular ten-day delay in payment was not unreasonable. 296 Fed.Appx. at 837. In Benavides, it found that a seven or eight day delay between the end of the pay period and the employer's regular payment date is not "actionably unreasonable or untimely." 322 Fed.Appx. at 747. See also Morales-Arcadio v. Shannon Produce Farms, Inc., No. 605CV062, 2007 WL 2106188, at *20 (S.D.Ga. July 18, 2007) ("[D]elayed payment only becomes `unpaid' (thus giving rise to FLSA liquidated damages under 29 U.S.C. § 216(b)) where payment is not reasonably prompt under the totality of the circumstances in the particular case.") (citation and quotation marks omitted); Ramos v. Guiribitey Cosmetic & Beauty Inst., Inc., No. 12-cv-24106-JLK, 2013 WL 6145115, at *2 (S.D.Fla. Nov. 21, 2013) ("It is permissible for an employer to tender payment a reasonable time after the pay period.") (citing Arroyave, 296 Fed.Appx. at 837).

Therefore, the rule in the Eleventh Circuit appears to be that an employer must pay its employees within a reasonable time after the end of the pay period. Minimum wages become unpaid, and an employer is liable under the FLSA for liquidated damages, when they are "unreasonably late during the relevant period." Arroyave, 296 Fed.Appx. at 836.

1. MDT

MDT argues that it paid its employees within six days of the end of the pay period. (MDT Mot., D.E. 78 at 7-8.) It cites to the Affidavit of Joey Guarino, MDT's Vice President of Human Resources and General Counsel, who states that "[a]ccording to each of the Plaintiffs' Employee Wage Statements, Plaintiffs were always paid within six days of the end of the pay period." (D.E. 78-1 ¶ 6 (citing to Employee Wage Statements, D.E. 78-1 at 5-27).)

Plaintiffs do not dispute that they were, in fact, paid within six days of the end of each pay period, but rather argue that the records provided by Guarino do not reflect such. (See D.E. 95 ¶ 7.) Although Plaintiffs argue that their payments were "late" or "untimely," (D.E. 95 at 10-11), the rule in the Eleventh Circuit is that payment must be unreasonably late. See Arroyave, 296 Fed.Appx. at 836. Plaintiffs do not argue that the payments were "unreasonably" late or untimely. (See id.) Nor do they cite to evidence in the record from which the Court could conclude that the payments were "unreasonably late during the relevant period." Arroyave, 296 Fed.Appx. at 836. The Court has reviewed the time records and paystubs provided by Plaintiffs and has found nothing that would arguably take this case beyond the realm of Arroyave and Benavides and into the realm of unreasonableness.

The paystubs Plaintiffs attach to their Response to MDT's Motion reflect that paychecks were always issued within a few days of the end of the pay period. For example, for the pay period ending September 29, 2012, Plaintiff Aguilera was issued a check three days later on October 2, 2012. (D.E. 95-1 at 3.) For the pay period ending April 26, 2012, Plaintiff Del Rosario was issued a check the next day, April 27, 2012. Id. at 82.) In fact, based upon the paystubs submitted by Plaintiffs in support of their own Motion, MDT never paid them more than four days from the end of the pay period. (See D.E. 84-30,-31,-33.)

Construing the evidence and factual inferences arising therefrom in the light most favorable to Plaintiffs, Adickes, 398 U.S. at 157, 90 S.Ct. 1598, the Court finds that there is no genuine issue of material fact regarding MDT's failure to timely pay Plaintiffs wages. Plaintiffs do not dispute that they were paid within six days of the end of each pay period, and they do not argue that such a delay is "unreasonable." Regardless, the Court's review of the record evidence reveals that MDT paid Plaintiffs within four days of the end of each pay period, and there is no evidence (or argument) to suggest that this was "unreasonably late during the relevant period." Arroyave, 296 Fed.Appx. at 836. Accordingly, MDT is entitled to summary judgment on Count III.

2. Labor Ready

As previously discussed, employers are liable for liquidated damages under the FLSA for "unpaid" wages. 29 U.S.C. § 216(b). Wages become "unpaid" when they are paid "unreasonably late during the relevant period." Arroyave, 296 Fed. Appx. at 836; see also Benavides, 322 Fed. Appx. at 747.

Labor Ready argues that it has an established pay period of Saturday to Friday, and that it always paid its employees within eight days of the end of the pay period. (Labor Ready Mot., D.E. 80 at 7 (citing Pavon Decl., D.E. 80-1 ¶¶ 3-4.) Although Plaintiffs argue that Labor Ready failed to make "prompt" payment of their wages, they do not argue that payment was "unreasonably" late. (Pl. Resp. at 14.) Rather, they argue that (1) Labor Ready's argument that it paid wages within eight days is based on a misinterpretation of the law, and (2) Labor Ready failed to satisfy its evidentiary burden. (Id. at 14-19.)

First, Plaintiffs appear to argue that Labor Ready misinterprets Arroyave as standing for the proposition that it may pay its employees up to ten days late, i.e., up to ten days after payday. (Id. at 16.) The Court interprets Arroyave to stand for the proposition that employers may pay their employees within a reasonable time after the end of the pay period.. See Section III(c)(1), supra. The Court interprets Labor Ready's argument as correctly relying on Arroyave for this proposition. (See Labor Ready Mot., D.E. 80 at 7 (arguing that "Labor Ready paid Plaintiffs within 8 days of the end of the pay period").

Second, with respect to Labor Ready's alleged failure to satisfy its evidentiary burden, Labor Ready has produced evidence that it always paid Plaintiffs within eight days of the end of the pay period. (See Pavon Decl., D.E. 80-1 ¶ 3.) Specifically, Alamo MIA branch manager Ami Pavon provided a Declaration stating:

(Id. ¶ 3 (emphasis added).) She goes on to describe pay records Labor Ready attached as Exhibits to its Motion. (See D.E. 80-2 through -18.) Plaintiffs argue that Pavon's Declaration should be stricken from the record as a sham pursuant to Federal Rule of Civil Procedure 56(h) because it contradicts her earlier deposition testimony that she had no "personal knowledge" of Labor Ready's operations prior to her taking over for Grullon in April 2014.10 (Pl. Resp., D.E. 96 at 17-18.)

The Court finds that Pavon's deposition testimony is not inconsistent with her Declaration. Pavon testified at her deposition (1) in her personal capacity as the Alamo MIA branch manager and the individual in charge of paying Plaintiffs' wages beginning in April 2014 and (2) as Labor Ready's corporate representative. See Fed. R. Civ. P. 30(b)(6). Rule 30(b)(6) requires a corporation to designate a person or persons to testify on its behalf. See id."The persons designated must testify about information known or reasonably available to the organization." Id.Thus, when Pavon testified from "personal knowledge," all parties understood that term to mean things Pavon knew from personal, first-hand experience after arriving at Labor Ready.

(D.E. 125-3 at 14-15 (emphases added).) Consequently, Pavon's deposition statement that she had no "personal knowledge" of Labor Ready's pay practices prior to her arrival merely reflects that she had no first-hand experience of those pay practices.12

On the other hand, Pavon's Declaration states that her "personal knowledge" of Labor Ready's operations prior to her arrival is based on a "review of the records." (D.E. 80-1 ¶ 3). This does not render her Declaration a "sham." Under Rule 56, a declaration in support of a motion for summary judgment must be based upon personal knowledge. Fed. R. Civ. P. 56(c)(4). "[P]ersonal knowledge can be based on a review of relevant business files and records." Duke v. Nationstar Mortg., L.L.C., 893 F.Supp.2d 1238, 1244 (N.D.Ala.2012) (citing Mid-Continent Cas. Co. v. Don Brady Constr. Co., No. 11-088-CG-C, 2012 WL 1598149, at *2 (S.D.Ala. May 7, 2012) (quoting In re Trafford Distrib. Ctr., Inc., 414 B.R. 858, 862 (Bankr. S.D.Fla.2009) ("[A]s a matter of law, `personal knowledge can come from the review of the contents of business files and records.'")). Accordingly, the Court finds that Pavon's Declaration should not be excluded.

As such, Labor Ready has sustained its burden of producing evidence that it paid Plaintiffs' wages within eight days of the end of each pay period. (See Pavon Decl., ¶ 3.) The record is replete with Plaintiffs' time records, and Labor Ready has provided copies of Plaintiffs' paychecks. (See D.E. 103-1.) Plaintiffs have failed to identify any checks that were issued more than eight days after the end of a pay period. Indeed, Plaintiffs do not dispute that they were, in fact, paid within eight days of the end of the pay period. (See Pl. Resp., D.E. 96 at 14-19.) Nor do they argue that an eight day delay in payment is "unreasonably late during the relevant period." Arroyave, 296 Fed.Appx. at 836.

The Court finds that there is no genuine issue of material fact as to whether Labor Ready timely paid Plaintiffs their wages. The wages were paid within eight days of the end of each pay period, and such a delay is not argued to be or shown to be "unreasonably late." See Arroyave, 296 Fed.Appx. at 836; see also Benavides, 322 Fed.Appx. at 747. As a result, Labor Ready is entitled to Summary Judgment on Count IV.

IV. Conclusion

Accordingly, it is ORDERED AND ADJUDGED that:

DONE AND ORDERED.