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Friday, May 15, 2015

Drivers Not Entitled to Overtime Pay


By: Tommy Eden


Joseph Resch, a driver for Krapf's Coaches, Inc. ("KCI"), filed a collective action on behalf of himself and thirty­three other KCI drivers seeking unpaid overtime under the Fair Labor Standards Act of 1938 ("FLSA") and State Wage Act. The Drivers worked more than forty hours in a week without receiving overtime pay because of the Motor Carrier Exemption from overtime under the FLSA.


KCI is a motor coach company based in West Chester, Pennsylvania, and has a Transit Division that provides bus and shuttle services on set routes. Since 2009, KCI has operated thirty­two such routes, four of which cross state lines.  KCI retained the discretion to assign a driver to any route on which he has been trained, including interstate routes, and to discipline a driver who refuses to drive a route as assigned.


KCI requires that each driver possess a Commercial Driver License, provides each driver with a Federal Motor Carrier Safety Regulations Pocketbook detailing the driver's responsibilities under DOT regulations, as well as a separate KCI Handbook making clear that they are expected to meet FMCSA regulations.


While the parties to the lawsuit agreed that KCI was a "motor carrier" subject to the DOT's jurisdiction, thus satisfying the first requirement, the real question was whether the drivers—many of whom rarely or never crossed state lines—satisfied the second requirement by being a member of a class of employees engaging "in activities of a character directly affecting the safety of operation of motor vehicles in the transportation . . . of passengers or property" in interstate commerce. 29 C.F.R. § 782.2(a).  An employer must always carry the burden of proving a claimed exemption under the FLSA. The DOT has authority over drivers only where the employees regularly travel interstate or reasonably are expected to do interstate driving.


The Third Circuit Court of Appeals found that the DOT Motor Carrier exemption applied because the Drivers were training in interstate driving, reasonably could have expected to drive interstate, KCI assigned drivers randomly to that driving, maintained the discretion to assign a driver to an interstate route, 6.9% of all trips drivers took were interstate, as much as 9.7% of the Transit division's annual revenues derived from interstate routes, and KCI always operated at least one interstate route per month.


Common Sense Counsel: the Fair Labor Standards Acts exemptions are one of the most complex areas of Labor and Employment Law and the Motor Carrier Exemption is no exception.  If you seeking to apply this exemption for overtime pay make sure you have the records and evidence to pass the test.


Tommy Eden is a partner working out of the Constangy, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com and follow on twitter tommyeden3


The DOT has authority over drivers only where the employees regularly travel interstate or reasonably are expected to do interstate driving.


Because the Drivers were training in interstate driving, reasonably could have expected to drive interstate, assigned drivers randomly to that driving, maintained the discretion to assign a driver to an interstate route, 6.9% of all trips drivers took were interstate, as much as 9.7% of the Transit division's annual revenues derived from interstate routes, and KCI always operated at least one interstate route per month.