The Fair Labor Standard Act (FLSA) exempts from its overtime requirements certain employees who work for motor carriers and motor private carriers as discussed below. 29 USC 13(b)(1); 49 USC 31502; 29 CFR 782.2.
Requirements
Employees who are exempt under the motor carrier overtime exemption are those who:
- are employed by a:
- motor carrier or
- motor private carrier;
- work as
- drivers,
- driver’s helpers,
- loaders, or
- mechanics;
- have job duties that affect the safety of operation of motor vehicles while in transportation on public highways in interstate or foreign commerce, and
- drives a motor vehicle that does not fall within the small vehicle exception.
29 USC 13(b)(1); 49 USC 31502; 29 CFR 782.2; US v. American Trucking Ass’n, 310 US 534 (1940); Pyramid Motor Freight Corp. v. Ispasse, 330 US 695 (1947); Levinson v. Spector Motor Service, 330 U.S. 649; DOL Wage & Hour Field Assistance Bulletin 2010-2; DOL Wage & Hour Fact Sheet #19
Performing exempt and non-exempt work
Employees who work as drivers, driver’s helpers, loaders, and mechanics do not need to perform safety-affecting tasks all the time to qualify for the exemption. In fact, such employees may still qualify for the exemption even though safety-affecting tasks make up only a small portion of the regular job duties. 29 CFR 782.2(b)(3); Morris v. McComb, 332 US 422 (1947). Moreover, even if such an employee performs safety-affecting duties for a small portion of their time, the exemption applies at all times to the employee. 29 CFR 782.2(b)(3) The only time the exemption would not apply is when safety-affecting duties are performed for periods of time that are trivial, casual, and insignificant. 29 CFR 782.2(b)(3); Pyramid Motor Freight Corp. v. Ispasse, 330 US 695 (1947); Wirtz v. C&P Shoe Corp., 336 F.2d 21 (5th Cir. 1964).
Motor Carrier and Motor Private Carrier
A motor carrier is defined as a person providing motor vehicle transportation for compensation. 49 USC 13102(14)
A motor private carrier is defined as a person, other than a motor carrier, who transports property by motor vehicle and
- the person is the owner, lessee, or bailee of the property being transported; and
- the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise.
- the property is being transported in interstate or foreign commerce as defined in 49 USC 13501.
Driver
A driver is the individual that drives the motor vehicle. A driver is not required to spend all of his work time driving and may perform other duties. Examples of drivers eligible for the exemption include:
- drivers who spend part of their time in intrastate commerce in addition to driving in interstate commerce;
- individuals who act as assistants or relief drivers on vehicles in addition to loading, unloading, and similar work;
- drivers of charter buses or farm trucks who perform duties unrelated to driving or the safety of operations; and
- “driver salesmen” who spend much of their time selling rather than engaging in activities related to the safety of operations.
Driver’s Helper
A driver’s helper is an employee, other than a driver, who rides on a motor vehicle. To qualify for the exemption, the driver’s helper must have job duties that relate to the safety of operation of the motor vehicle. Examples of these types of duties include:
- assist with loading
- dismount from the vehicle at railroad crossings and flag the driver across the tracks
- dismount from the vehicle and assist the driver when turning around or entering or exiting a driveway
- assist when the vehicle breaks down by performing such duties as: setting up flags, flares, and fuses; going for assistance; waiting with the vehicle; helping change tires or perform minor repairs; and putting on or removing chains.
Loader
A loader is an employee who is responsible for the proper loading of a motor vehicle so that it may be safely operated. In performing these duties, the loader must have the responsibility for exercising judgment and discretion in planning and building a balanced load in the vehicle or placing, distributing, or securing the freight in such a manner that the vehicle may be operated safely. Loading activities that do not require planning or strategy, e.g. light weight or loose items, do not fall within the exemption. Wirtz v. C&P Shoe Corp., 336 F.2d 21 (5th Cir. 1964); Barrick v. South Chicago & Dock Co., 149 F2d 960 (7th Cir. 1945). Other job titles that may include employee performing exempt loading duties include: dockman, stacker, or helper. 29 CFR 782.5
The following duties do not qualify an employee for the exemption:
- unloading
- moving freight within a terminal
- checking bills of lading
- wheeling or calling freight being loaded or unloaded
- loading vehicles that will not be used in interstate or foreign commerce
Mechanic
A mechanic is an employee who is responsible for repairing and maintaining the motor vehicle so it can safely operate. 29 CFR 782.6. The following are duties that qualify a mechanic for the exemption:
- inspecting, repairing, adjusting, and maintaining steering, lights, brakes, horns, windshield wipers, wheels and axles, bushings, transmissions, differentials, motors, starters and ignitions, carburetors, fifth wheels, springs and spring hangers, frames, and gasoline tanks
- inspecting and checking air pressure in tires, changing tires, and repairing and rebuilding tires for immediate replacement
- hooking up tractors and trailers, including light and brake connections, and inspecting hook ups.
Work that only indirectly affects operation safety is not exempt work. 29 CFR 782.6(c); Morris v. McComb, 332 US 422 (1947). Duties that typically do not qualify a mechanic for the exemption include:
- dispatching
- carpentry work
- painting
- checking and replacing oil, gas, or grease
- washing
- filling radiators
- checking batteries
- stocking inventory
- acting as a watchman
- acting as a porter
- manufacturing or rebuilding a vehicle
Interstate Commerce
A motor vehicle is being operated in interstate commerce if:
- the motor vehicle is travels from one state to another, or
- the motor vehicle does not travel to another state, but the goods or people being transported are in the process of being transported to another state
29 CFR 782.7; Morris v. McComb, 332 US 422 (1947); Walling v. Mutual Wholesale Food & Supply Co., 141 F2d 331 (8th Cir. 1944).
A motor vehicle is not being operated in interstate commerce if the motor vehicle picks up and transports goods within the same state and the shipper, at the time of shipment, has no fixed or persisting intent other than to store the goods, even if the goods originated from outside the state. There is no fixed or persisting intent to transport goods where:
- at the time of shipment, there is not an existing order being filled for a specific quantity of the good that will be moved beyond the storage terminal;
- the terminal storage facility is a distribution point or local marketing facility from which specific amounts of product are sold or allocated, and
- further transportation of the goods is arranged only after the sale or allocation from storage.
29 CFR 782.7(b)(2); Baird v. Wagoner Transportation Co., 425 F2d 407 (6th Cir. 1970)
The following are examples of drivers who are not exempt because they are not engaged in interstate transportation:
- drivers transporting goods around a plant that produces goods for commerce
- chauffeurs or drivers of company cars or buses that transport officers or employees from place to place within an facility which produces goods for commerce
- drivers who transport goods from a producer’s plant to the processor’s plant to be used as a part or ingredient of the second producer’s goods that will be sold in commerce
- drivers transporting goods between a factory and the plant of an independent contractor who performs part of the manufacturing of the goods, after which they are returned to the factory for further processing
- drivers transporting machinery or tools and dies to be used in the production of other goods for commerce
29 CFR 782.7(c); Walling v. Comet Carriers, 151 F2d 107 (2nd Cir. 1945); Griffin Cartage Co. v. Walling, 153 F2d 587 (6th Cir. 1946); Walling v. Morris, 155 F2d 832 (6th Cir. 1946); Hamlet Ice Co. v. Fleming, 127 F2d 165 (4th Cir. 1942); Atlantic Co. v. Walling, 131 F2d 518 (5th Cir. 1942).
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Small Vehicle Exception
The motor carrier overtime exemption does not apply to employees who work as drivers, driver’s helpers, loaders, or mechanics on certain small vehicles. This means that an employer must pay employees who work on small vehicle overtime for all hours worked over 40 in a workweek, as required by the FLSA. Vehicles that fall within the small vehicle exception are those that:
- have a gross vehicle weight rating (GVWR) or gross combined vehicle weight rating (GCVWR) of 10,000 pounds or less;
- are designed or used to transport more than 8 passengers, including the driver, for compensation;
- are designed or used to transport more than 15 passengers, including the driver, and not used to transport passengers for compensation; or
- are used to transport hazardous material and requires placarding under Department of Transportation regulations.
DOL Wage & Hour Field Assistance Bulletin 2010-2; DOL Wage & Hour Fact Sheet #19
In situations where an employee works as a driver, driver’s helper, loader, or mechanic split time between small vehicles and vehicles that qualify for the motor vehicle exemptions, the employer must pay the employee overtime in all workweeks in which the employee works on a small vehicle. For all other weeks, the motor vehicle overtime exemption would apply and overtime would not need to be paid. DOL Wage & Hour Field Assistance Bulletin 2010-2
Four-Month Rule
The Department of Transportation and Department of Labor recognize a four-month rule when applying the motor vehicle overtime exemption. Under the four-month rule, the exemption will apply to employees who qualify for four months from the date they engage in or could have engaged in covered work. DOL Wage & Hour Field Assistance Bulletin 2010-2
