Narrowed FLSA Motor Carrier Exemption to be Enforced by DOL

Volume 6, Issue 6
September 18, 2007

Under the Fair Labor Standards Act ("FLSA"), employers are required to pay all non-exempt employees an overtime rate of one and one-half times the employees' regular rate of pay for time worked in excess of forty hours in a workweek. Section 13(b)(1) of the FLSA provides an overtime exemption, commonly referred to as the motor carrier exemption, for employees who are within the authority of the Secretary of Transportation to establish qualifications and maximum hours of service pursuant to section 204 of the Motor Carrier Act of 1935, including drivers, drivers' helpers, loaders and mechanics.

Historically, the motor carrier exemption applied to employees of motor carriers and motor private carriers engaged in transportation involving motor vehicles used in interstate commerce regardless of the size of the motor vehicle or the number of passengers transported in the motor vehicle. However, in August 2005, Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act: a Legacy for Users ("SAFETEA-LU"), which altered the power of the Department of Transportation to set hour standards for employees of motor carriers and motor private carriers from transportation involving the operation of "motor vehicles" to transportation involving "commercial motor vehicles." As a result, only those employees engaged in transportation involving a commercial motor vehicle as defined by the SAFETEA-LU are now eligible for the motor carrier exemption found in section 13(b)(1) of the FLSA.
Significantly, the SAFETEA-LU defines "commercial motor vehicle" as a vehicle used on the highways in interstate commerce to transport passengers or property if it: "(1) has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater; (2) is designed or used to transport more than 8 passengers (including the driver) for compensation; (3) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or (4) is used in transporting material found by the Secretary of Transportation to be hazardous...and transported in a quantity requiring placarding under regulations prescribed by the Secretary..." 49 U.S.C. § 31132(1). Thus, employees engaged in transportation by lighter vehicles such as light pick-up trucks, automobiles and compact vans, which would have been eligible for the motor carrier exemption prior to the enactment of the SAFETEA-LU, are no longer eligible for the exemption.

While many originally believed that the SAFETEA-LU's effect on the motor carrier exemption was unintentional, the Department of Labor recently advised its field agents that the narrowed motor carrier exemption will apply. Indeed, the recent Department of Labor's Fact Sheet regarding the motor carrier exemption states, "Only drivers, drivers' helpers, loaders who are responsible for proper loading, and mechanics working directly on [commercial motor vehicles as defined above] that are to be used in transportation of passengers or property in interstate commerce can be exempt from the overtime provisions of the FLSA under section 13(b)(1). Accordingly, employers should ensure that the motor carrier overtime exemption is only applied to employees engaged in transportation involving commercial motor vehicles.

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