A Primer on the FLSA Motor Carrier Exemption
The motor carrier exemption is one of several exemptions from the Fair Labor Standards Act which generally requires employees engaged in commerce to be paid at least time and a half for the time worked above forty hours in one week. The motor carrier exemption provides: “The provisions of section 207 [maximum hours] of this title shall not apply with respect 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.” 29 U.S.C. § 213(b)(1).
In other words, the jurisdictions of the Secretary of Labor and the Secretary of Transportation are mutually exclusive. If the Secretary of Transportation has the authority to regulate a driver’s qualifications and maximum hours of service, the motor carrier exemption applies.
49 U.S.C. section 31502 grants “the Secretary of Transportation the power to regulate the qualifications and maximum number of hours for employees of motor carriers engaged in interstate transportation.”
The Department of Labor’s regulations explain that the Secretary of Transportation may establish maximum hours and qualifications of service for employees, and thereby trigger application of the motor carrier exemption, if two requirements are met: first, an employee must be employed by a carrier whose transportation of passengers is subject to the Secretary of Transportation’s jurisdiction under section 204 of the Motor Carrier Act; second, an employee must engage in activities of a character directly affecting the safety of operation of motor vehicles in interstate or foreign commerce within the meaning of the Motor Carrier Act. See 29 C.F.R. section 782.2. The regulations further explain that that “[t]he work of an employee who is a full-duty or partial-duty ‘driver,’ ..., directly affects ‘safety of operation’ ... whenever he drives a motor vehicle in interstate or foreign commerce within the meaning of [the Motor Carrier Act.]” 29 C.F.R. section 728.3(b).
In short, to determine the applicability of the motor carrier exemption, two questions must be answered: (1) Is the employer subject to the jurisdiction of the Department of Transportation? and (2) Is the employee engaged in safety-related activities for a motor carrier in the interstate or foreign transportation of persons or property?
What does "interstate or foreign transportation" mean? Transportation across state and international borders counts, but so does transportation within a single state "where it forms a part of a practical continuity of movement across State lines from the point of origin to the point of destination.” 29 C.F.R. § 782.7(a)
My firm is currently representing a charter bus company in an FLSA collective action involving the application of the motor carrier exemption. Most of the 63 plaintiffs have never driven across state lines. However, in ruling on the company's motion for summary judgment, the court found that 45 of the plaintiffs had driven, or could reasonably have been expected to drive, in-state routes that are part of the practical, continuous interstate (or international) movement of passengers. In particular, pursuant to contracts with cruise lines or their agents, with tour operators and travel agents, and with other entities that charter buses, the drivers regularly transport passengers to and from South Florida cruise ship terminals, where the passengers embark on, or debark from, international cruises. The court found that these airport-seaport trips are in the continuous stream of interstate commerce, even though the routes themselves do not cross state lines. Thus, applying the motor carrier exemption, the court dismissed the overtime claims of the plaintiffs who drove these routes, or could reasonably have been expected to do so.
The 18 remaining plaintiffs, whose overtime claims were not dismissed, claim that they are not exempt because they mainly drive bus shuttles for local universities. Their case is scheduled for trial in January 2009. The court's order on summary judgment is reported at 2008 WL 2967170.
