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Published: 2008-03-26

The Motor Carrier Exemption Under the Fair Labor Standards Act



Employment Standards Administration
Wage and Hour Division


---DISCLAIMER---


Fact Sheet No. 019

The Motor Carrier Exemption Under the Fair Labor Standards Act (FLSA)

Section 13(b)(1) of the FLSA is an exemption from overtime. The provisions of Section 7 (overtime) do not apply with respect to any employee to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of Section 204 of The Motor Carrier Act of 1935.

Section 13(b)(1) of the FLSA provides an exemption from the overtime pay provisions, but not from the minimum wage (Section 6) requirements. This exemption has been interpreted as applying to any driver, driver's helper, loader or mechanic employed by a carrier and whose duties affect the safety of operation of motor vehicles in the transportation on public highways of passengers or property in interstate or foreign commerce.

Requirements

The Section 13(b)(1) overtime exemption applies to those employees for whom the Department of Transportation claims jurisdiction and if the employer is:

1) a private carrier and hauls property or;

2) a common or contract carrier and hauls property or passengers and additionally if;

a) the employee's duties (consisting wholly or in part) affect the safety of operation of a motor vehicle and;

b) the employee's travel is in interstate commerce (across State lines) or the employee handles trips which connect with an intrastate terminal (rail, air, water, or land) to continue an interstate journey of goods that have not come to rest at a final destination.

The exemption will apply to those employees called upon in the ordinary course of work to perform, either regularly or from time to time, safety-affecting activities. The employee comes within the exemption in all workweeks when he\she is employed in such work. This general rule assumes that the activities involved in the continuing duties of the job in all workweeks will include activities that affect safety of operation of motor vehicles. Where this is the case, the exemption will be applicable regardless of the proportion of "safety affecting activities" performed in a particular workweek.

On the other hand, where continuing duties of the employee's job have no substantial direct effect on such "safety of operation", or where such safety affecting activities are so trivial, casual, and insignificant as to be de minimis, the exemption will not apply in any workweek so long as there is no change in the duties.

Where safety affecting employees have not made an actual interstate trip, they may still be subject to DOT's jurisdiction if:

1) the employer is shown to have an involvement in interstate commerce and;

2) it can be established that the employee could have, in the regular course of employment, been reasonably expected to make an interstate journey or could have worked on the motor vehicle in such a way to be safety affecting.

Satisfactory evidence of the above could take the form of statements from the employees, or documentation from the employer, such as employee agreements. Where such evidence is developed with regard to an employee, the DOT will assert jurisdiction over that employee for a four (4) month period beginning with the date he\she could have been called upon to, or actually did, engage in the carrier's interstate activities. Thus, such employee(s) would be exempt under Section 13(b)(1) for the same four-month period, notwithstanding references to the contrary in Regulations, 29 CFR 782.2.

The overtime pay exemption does not apply to employees of non-carriers such as commercial garages, firms engaged in the business of maintaining and repairing motor vehicles owned and operated by carriers, or firms engaged in the leasing and renting of motor vehicles to carriers.

Typical Problems

A carrier may improperly apply the Section 13(b)(1) overtime exemption to employees of the company who are not engaged in "safety affecting activities", such as dispatchers, office personnel, those who unload vehicles or those who load but are not responsible for the proper loading of the vehicle. Only drivers, driver's helpers, loaders who are responsible for proper loading, and mechanics working directly on motor vehicles 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).

Where to Obtain Additional Information

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations. Copies of Wage and Hour publications may be obtained by contacting the nearest office of the Wage and Hour Division listed in most telephone directories under U.S. Government, Department of Labor.