In Butcher v. TSWS d/b/a Pot-O-Gold, (S.D.Tex. August 25, 2011), the Southern District of Texas denied an employer’s motion for summary judgment in a case involving FLSA overtime claims brought by truck drivers. The employer argued that the plaintiffs were subject to the FLSA’s motor carrier exemption (which would mean that the drivers were not entitled to overtime pay) because the plaintiffs work affected the safety of interstate transportation. Although the plaintiffs never crossed state lines in driving their trucks for the defendant, the company claimed that the employees could have been called upon to drive interstate at any time. The court acknowledged that under Songer v. Dillon Resources, 618 F.3d 467 (5th Cir. 2010), an intrastate driver may be exempt during periods when the driver “could have been called upon” to drive interstate.
However, the southern district found a trial-worthy issue as to whether the plaintiffs could have been called upon, or could reasonably have expected, to drive interstate. The court found it significant that the defendant’s drivers volunteered for interstate trips and that such trips never had to be assigned, let alone assigned indiscriminately. The plaintiffs generally had the same intrastate routes every day.
The defendant also argued that its drivers’ intrastate routes were intended to facilitate the eventual interstate movement of the portable toilets being transported. However, the court found a further trial issue as to whether the plaintiff’s intrastate trips were part of a larger interstate movement completed by others, or merely facilitated local storage. To read the full text of the court’s ruling, click here: http://tinyurl.com/m2lwxdz
The lesson of the Pot-O-Gold case for employment law practitioners is that the “could have been called upon” standard adopted in Songer does not result in an automatic overtime exemption for everyone who drives a truck over 10,000 pounds in weight. While the Songer test sounds like an easy one on its face, the employer is still required to show facts suggesting that an interstate assignment was either likely or expected. The mere physical and legal capability of taking interstate commercial trips may not be sufficient to support exemption when there is no specific reason to expect such trips. For a broader explanation of this area of law, click on “read more”.
By way of background, the federal Fair Labor Standards Act (FLSA) is the primary law which gives employees the right to overtime. Some states have added their own legal protections for employee wages, but these are only permitted to the extent that they do not remove the employee’s rights under the FLSA. The FLSA contains an exemption for interstate truck drivers, called the Motor Carrier Exemption (MCE). The reason for the MCE is that the hours of work for interstate truck drivers’ are regulated by the Motor Carrier Act, not the FLSA. However, the MCE does not apply to purely local transportation that is neither part of interstate transportation, nor closely connected to it. For this reason, the court in the Pot-O-Gold case needed to determine whether the plaintiff truck drivers worked in intrastate (that is purely local) transportation or were close enough to multi-state transportation to be exempt.
It is not always easy to see the line between local and interstate transportation. As a result, the MCE exemption can stretch to cover activities that might not appear to be part of interstate transportation at first glance. It is possible for a truck driver whose routes are entirely contained within a single state to be exempt from overtime under the MCE anyway, if either (1) his trips within the state were part of a larger interstate movement of the same goods or materials, or (2) the driver “could have been called upon” to make interstate trips. An example of the first alternative would be a driver who delivers materials to a train station for immediate transportation to a specific location out of state, where the out-of-state location has been determined at the time of the local movement. In such a situation, the driver’s local trip is merely the first leg of an interstate journey. An example of the second alternative would be a driver who performed only local trips, but who worked for a trucking company with substantial interstate deliveries, and which assigned those interstate deliveries indiscriminately to its drivers. In such a situation, the local driver is a “potential” interstate driver and is treated as if he were already an interstate driver.
Given how the MCE can be stretched to cover local drivers as shown above, it is interesting to consider how the local drivers in the Pot-O-Gold case prevailed. The plaintiffs in Pot-O-Gold cleaned, maintained, and emptied portable toilet stations along specific fixed routes in Houston and surrounding areas. The waste materials being transported, therefore, were of local origin and (presumably) ended up in local landfills. The plaintiffs thus did not drive their local routes for the purpose of facilitating any larger interstate journey. The plaintiffs also had fixed, predictable routes, making it less likely that they “could be called upon” to participate in interstate transportation. Thus, despite the breadth and relative ease of applying the MCE to truck drivers, the MCE is not an overtime exemption for all truck drivers everywhere; it is an exemption for truck drivers engaged in interstate transportation; truck drivers who are engaged in purely local transportation can challenge a company’s refusal to pay for overtime, by going to court for back wages.
There is one more aspect of the MCE that deserves attention. As of 2008, drivers of vehicles weighing 10,000 pounds or less are not subject to the MCE and therefore entitled overtime wages under the FLSA. See Albanil v. Coast 2 Coast (5th Cir. 2011). This is true regardless of whether the employee is part of interstate transportation. To read the text of the Albanil opinion, click here: http://tinyurl.com/ldcm5kf
The source of this change in the law is the Technical Corrections Act, which effectively modifies the Motor Carrier Exemption provision in the FLSA, to exclude the drivers of light trucks or similarly light vehicles. As Albanil held, the relevant weight is the combined weight of the truck and any trailer or other attachment. The end result is that the argument over what is interstate and what is intrastate only matters for the drivers of vehicles weighing more than 10,000 pounds. The drivers of the light vehicles will be eligible for overtime regardless of the route, unless another FLSA exemption applies.
