In one of the previous posts, we discussed how some commercial bus drivers may be exempt from California overtime laws under Industrial Welfare Commission Wage Order No. 9 section 3(L). It is crucial to keep in mind that in addition to state law, hours and days of work of commercial bus drivers are also regulated by federal law, namely, the Federal Standard Labor Act of 1938 (“FLSA”.) The FLSA, among other things, establishes a premium or penalty rate for all work above 40 hours per week for all covered employees, unless specific exemption is provided. Therefore, commercial bus drivers engaged exclusively in intrastate commerce may be entitled to overtime compensation under the federal overtime provision if their employers are covered by the FLSA.
This post is intended to provide brief guidance to commercial bus drivers cialis online 20mg and their employers on applicability of the Motor Carrier Act (“MCA”) exemption to commercial bus drivers for purposes of the FLSA’s overtime provisions.
The language of the Motor Carrier Act exemption is contained in 29 U.S.C. § 213(b)(1) and reads that the FLSA’s overtime provisions (section 207) shall not apply to any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of title 49. Under section 31502, the Secretary of Transportation may prescribe requirements for:
(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and
(2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation.
What it means is that any driver who falls under the jurisdiction of the Department of Transportation (“DOT”) will be exempt from the FLSA’s overtime requirements. The next logical question is under what circumstances a driver falls under the DOT’s jurisdiction. The answer is that the DOT’s jurisdiction extends to all employees whose activities affect the safety of operation of interstate motor vehicles. Consequently, any driver who provides services in interstate commerce is exempt from federal overtime laws. Generally, the MCA Exemption also applies to the following classes of motor carrier employees:
1. Drivers of motor vehicles operating in interstate commerce;
2. Drivers’ helpers on such vehicles;
3. Mechanics who repair
4. Loaders of such vehicles
Effect of the SAFETEA-LU on the MCA Exemption
In 2005, after Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), the MCA Exemption and its coverage was effectively narrowed to exclude certain unqualified vehicles.
Prior to the SAFETEA-LU, the MCA exemption applied to all “motor carriers” providing motor vehicle transportation for compensation or “motor private carriers” meeting three criteria. 49 U.S.C. § 13105. However, with the enactment of the SAFETEA-LU, Congress added a modifier “commercial” and now the language reads “commercial motor vehicles.” Also, the pre-SAFETEA-LU MCA did not refer to the size or weight of the vehicle; however, now, under the SAFETEA-LU, “commercial motor vehicle” means a self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle:
a) has a gross vehicle weight rating or gross vehicle weight of at least 10,0001 pounds, which ever is greater;
b) is designed or used to transport more than 8 passengers (including the driver) for compensation;
c) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
d) is used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of this title and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section 5103.
In essence, as a result of the SAFETEA-LU, drivers who do not operate “commercial” vehicles are now entitled to overtime compensation under the FLSA. Therefore, on May 23, 2007, the Department of Labor, Wage and Hour Administrator, Paul DeCamp, issued a Field Assistance Bulletin, No. 2007-2, addressed to Regional Administrators and District Directors, advising his staff that “employees engaged in transportation via vehicles such as most light pick-up trucks and automobiles, who historically had been covered by the FLSA § 13(b)(1) exemption from overtime, are no longer exempt.”
Drivers must be involved in interstate commerce to qualify for the MCA exemption.
As stated above, only those drivers whose activities affect the safety of operation of interstate “commercial” motor vehicles are exempt from the FLSA’s overtime requirements. In short, the DOT does not have automatic jurisdiction over all drivers of an interstate carrier. Its jurisdiction extends only to drivers who reasonably could be expected to make one of the carrier’s interstate runs, and that means more than a remote possibility. Reich v. American Driver Service, Inc., 33 F.3d 1153, 1156 (9th Cir.1994).
For example, an “employee’s minor involvement in interstate commerce does not necessarily subject that employee to the DOT’s jurisdiction for an unlimited period of time, and if the employee’s minor involvement can be characterized as de minimis, that employee may not be subject to the DOT’s and is entitled to overtime compensation. ” Moreover, for the reasonable expectation test to apply, “a carrier’s involvement in interstate commerce must be established by some concrete evidence such as an actual trip in interstate commerce or proof that interstate business was solicited,” Rossi v. Associated Limousine Svcs., 438 F.Supp.2d 1354, 1361, 1362 (S.D.Fla.2006), and the carrier must be shown to “have engaged in interstate commerce within a reasonable period of time prior to the time at which jurisdiction is in question,” Reich, 33 F.3d at 1156. See also Hoffman v. First Student, Inc. (D. Md., June 23, 2009, CIV AMD 06-1882) 2009 WL 1783536 (holding that fewer than two interstate trips per year by school bus drivers was a minor involvement in interstate commerce that did not entitle the employer to the MCA exemption); Gilmer v. Alameda-Contra Costa Transit Dist. (N.D. Cal., Jan. 15, 2010, C 08-05186 CW) 2010 WL 289299.
In determining whether an employee’s activities would be part of interstate commerce for purposes of the FLSA, courts are usually guided by practical considerations. Marshall v. Victoria Transp. Co., Inc., 603 F.2d 1122, 1123 (5th Cir.1979) As a result, even purely intrastate transportation can constitute part of interstate commerce if it is part of a “continuous stream of interstate travel.” As long as the employer can show a “practical continuity of movement” between the intrastate segment and the overall interstate flow, its drivers will be covered by the MCA exemption. Chao v. First Class Coach Co., Inc., 214 F.Supp.2d. 1263, 1272 (M.D.Fla.2001)
For example, in United States v. Capital Transit Co., 338 U.S. 286 (1949), the Supreme Court held that a bus service that drove routes within the District of Columbia that took commuters to locations where they then could board buses bound for Virginia was involved in interstate commerce.
Exceptions to the MCA exemption
49 U.S.C. §13506 set forth a number of exceptions applicable to specific drivers over whom the DOT has no jurisdiction. While there is a judicial split as to the extent of this regulatory exclusion, it may be argued that these drivers are not covered by the MCA and are entitled to overtime under the FLSA. The following are some examples of the excluded vehicle categories:
- a motor vehicle transporting only school children and teachers to or from school;
- a motor vehicle providing taxicab service;
- a motor vehicle owned or operated by or for a hotel and only transporting hotel patrons between the hotel and the local station of a carrier; …
- a motor vehicle carrying not more than 15 individuals in a single, daily roundtrip to commute to and from work…
In determining whether an exemption exists, the burden is on the employer to prove the applicability of all exemptions. All exemptions are subject to a rule of strict construction and any doubt is ruled in favor of the employee.
As you can see the MCA exemption and its applicability are highly complex matters that require a careful evaluation of all facts by an employment law professional. If you have questions regarding this post or other employment law related issues, feel free to contact one of our employment law attorneys, located in San Francisco, California.