In the past few years, California employers have witnessed a drastic increase in overtime claims brought by former and current employees. Because of the statutory one-way attorney fee provision under Labor Code section1194, these claims are exceedingly expensive to defend and often employers are compelled to settle to avoid exposure. Therefore, employers must be careful when scheduling their employees to work over 8 or 12 hours per work day and must compensate them in accordance with Labor Code section 510.
One of my clients recently asked me to determine whether tour bus drivers who do not cross state lines are exempt from California overtime law (Labor Code section 510 and Industrial Welfare Commission Wage Order No. 9). California overtime law for transportation employees is somewhat complicated, because drivers’ hours are regulated not only by the Department of Industrial Relations, but also by the Department of Transportation. This article discuses California overtime law for drivers who operate tour buses designed for caring more than sixteen passengers and do not cross state lines. To learn more about the FLSA overtime requirements for commercial bus drivers and applicability of the Motor Carrier Act exemption, please refer to the following post.
Industrial Welfare Commission (IWC) Wage Order No. 9 regulates standards for minimum wages and maximum hours for transportation employees. Wage Order No. 9 also sets forth a list of exempt drivers who are not entitled to overtime. For example, Wage Order No. 9, section 3(L) reads, in pertinent part, as follows:
The provisions of the [overtime] section are not applicable to employees whose hours of service are regulated by:
(1) The United States Department of Transportation Code of Federal Regulations, Title 49, Sections 395.1 to 395.13, Hours of Service of Drivers, or;
(2) Title 13 of the California Code of Regulations, subchapter 6.5, Section 1200 and the following sections, regulating hours of drivers.
Therefore, under Wage Order No. 9 the exemption provisions for drivers are divided in two categories: (1) interstate drivers covered by Federal law and (2) intrastate drivers covered by Title 13 of the California Code of Regulations (Motor Vehicles).
Let’s take a look at Section 1200 of Title 13, entitled “Scope”, to determine what type of vehicles fall within its regulation. By its terms, section 1200 covers the following vehicles:
1) farm labor vehicles,
2) vehicles listed in Vehicle Code Sections 34500 and 34500.1, and
3) two-axle trucks weighing 26,000 pounds or less which transport hazardous materials.
Because tour buses are not farm vehicles, or two axle trucks which transport hazardous materials, this leaves us with the question as to whether tour bus drivers are within the scope of vehicles listed in Vehicle Code sections 34500 and 34500.1.
The vehicles listed in section 34500 are:
- Motor trucks of 3 or more axles weighing over 10,000 lbs.;
- Truck tractors;
- Buses, school buses, school pupil activity buses, youth buses, and general public paratransit vehicles;
- Trailers and semitrailers;
- Pole or pipe logging dolly trailers and semitrailers;
- Any combination of motortruck and vehicles described above;
- Trucks transporting hazardous materials;
- Manufactured homes;
- Park trailers;
- Any other motortruck regulated by the PUC or ICC;
- Any commercial motor vehicle with a gross weight exceeding 26,001 lbs. or which tows another vehicle which has a gross weight exceeding 10,000 lbs.
In our case, the applicable type of vehicle listed by Vehicle Code Section 34500.1 is a “bus” or “tour bus”, which is defined at Section 612 as buses “designed for carrying more than 16 passengers” and which are “operated by or for a charter-party carrier of passengers, as defined in section 5360 of the Public utilities Code.” Therefore, tour buses clearly constitute a “charter-party carrier of passengers” within the meaning of the Public utilities Code, because they are designed for carrying more than 16 passengers, and hence, are within the meaning of Vehicle Code Section 34500.1.
Because operation of tour buses is regulated by Title 13 of the California Code of Regulations, subchapter 6.5, Section 1200, tour bus drivers are exempt from the overtime provisions of Labor Code section 510 and not entitled to overtime payments.