Employer Law: 29 USCS § 213 Analysis

MOHAJERIAN LAWYERS REPRESENT EMPLOYERS THROUGHOUT CALIFORNIA

29USCS 213
(b)  Maximum hour requirements. The provisions of section 7 [29 USCS § 207] shall not apply with respect to–
(1)  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 204 of the Motor Carrier Act, 1935 [49 USCS § 31502]; or
Garcia v. Western Waste Servs., Inc., 2013 U.S. Dist. LEXIS 126276 (D Idaho Sept. 3, 2013).
Overview: There was question as to whether former employee was covered employee under Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users Technical Corrections Act small vehicle exception due to his work as mechanic as court could not have determined how much of his time was spent performing duties on small service vehicles.
• The Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq., specifically exempts 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 49 U.S.C.S. § 31502(Motor Carrier Act). 29 U.S.C.S. § 213(b)(1). For an employee to be exempt from overtime-pay requirements under the Motor Carrier Act, the employer has the burden of showing that the employee meets the requirements set out in 29 C.F.R. § 782. In general, the employer must show: (1) that it is a carrier whose transportation of passengers or property by motor vehicle is subject to the Secretary of Transportation’s jurisdiction, i.e., its transportation of passengers or property takes place in interstate commerce; (2) the employee is a driver, driver’s helper, loader, or mechanic; and (3) the employee engages in activity that affects the safety of operation of motor vehicles in the transportation of passengers or property in interstate or foreign commerce. Go To Headnote

Lloyd v. Hi-Ridge Transp., 396 F. Supp. 2d 1290, 2005 U.S. Dist. LEXIS 25631 (MD Ala Oct. 18, 2005).
Overview: Where a white co-worker reported late to work on a daily basis and was not fired, but the African-American employee was only late five times and was fired, the employee had established a prima-facie case of discriminatory discharge under the Civil Rights Act of 1866, 42 U.S.C.S. § 1981, because he was terminated while the white co-worker was not.
• Not only must the employer qualify as a motor carrier for the overtime pay exemption under 29 U.S.C.S. § 213(b)(1) to apply, but the specific employee must also engage in activities that directly affect the safe operation of motor vehicles in interstate transportation. 29 C.F.R. § 782.2(a). Only certain classes of workers affect safety: drivers, driver’s helpers, loaders, and mechanics. 29 C.F.R. § 782(b)(1). In determining whether a specific employee falls within an exempt class, neither the title of the position or name given to the duties is controlling. 29 C.F.R. § 782(b)(2). Instead, the character of the duties involved in the performance of the job are determinative. 29 C.F.R. § 782(b)(2). As with all exemptions under the Fair Labor Standards Act of 1938, 29 U.S.C.S. §§ 201-219, the employer bears burden of proving that the motor-carrier exemption applies to a particular employee. Go To Headnote

On August 10, 2005, Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), Pub.L. No. 109-59. This act limited the DOT’s authority by defining the term “motor carrier” to  [*1257]  mean “a person providing commercial motor vehicle . . . transportation for compensation.” 49 U.S.C. § 13102(14). A commercial motor vehicle was defined as a vehicle with “a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater.” 49 C.F.R. § 390.5.1 Thus, under the SAFETEA-LU, an employee did not fall under the MCA exemption unless he worked with vehicles weighing 10,001 pounds or more.
On June 6, 2008, HN9 Congress passed the SAFETEA–LU Technical Corrections Act of 2008, Pub.L. 110-244 (“TCA”). The TCA restored the previous definition of “motor carrier” by replacing “commercial motor vehicle” with “motor vehicle.” Id. § 305(c); 49 U.S.C § 13102(14). “This amendment restored the DOT’s regulatory jurisdiction to its pre-SAFETEA-LU scope.” Allen v. Coil Tubing Services, LLC, 846 F.Supp.2d 678, 692 (S.D. Tex. 2012). However, the TCA included an exception that extended FLSA overtime protection to certain “covered” employees notwithstanding the MCA exemption. Id.; Pub.L. 110-244, § 306(a). A “covered” employee is defined, in relevant part, as an individual employed by a DOT-regulated motor carrier whose work, as a driver or mechanic, “in whole or in part,” affects “the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate or foreign  [**10] commerce” Id. § 306(c).

Defendants claim that Plaintiffs are exempt from the payment of overtime wages, however, pursuant to 29 U.S.C. § 213(b)(1), otherwise [**5]  known as the motor carrier exemption. HN3 Under the motor carrier exemption, “the provisions of section 207  [*1276]  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.” HN4 Title 49 U.S.C. § 31502(b)(1), (2) provides that “the Secretary of Transportation may prescribe requirements for (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation.”
HN5 As explained by the Eleventh Circuit, “the Secretary has power to establish qualifications and maximum hours of service for employees who (1) are employed by carriers whose transportation of passengers or property by motor vehicle is subject to the Secretary’s jurisdiction under the Motor Carrier Act; and (2) engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation [**6]  on the public highways of passengers or property in interstate or foreign commerce within the meaning of the Motor Carrier Act.” Baez v. Wells Fargo Armored Service Corp., 938 F.2d 180, 181-82 (11th Cir. 1991) (citing 29 C.F.R. § 782.2(a)); see also Opelika Royal Crown Bottling Co. v. Goldberg, 299 F.2d 37, 43 (5th Cir. 1962) (holding that driver-helpers who load and unload cargo affect the safety of the vehicle and are therefore exempt from the overtime provisions of the FLSA by section 13(b)(1)). Therefore, in order to determine whether summary judgment should be granted for the employer in this case under the motor carrier exemption, the Court must determine whether (1) the employer is a motor carrier and (2) if the Plaintiffs were engaged in activity directly affecting the safety of operation of motor vehicles in interstate commerce.

Company was motor carrier pursuant to 49 USCS § 13102(14) because it used commercial motor vehicles to transport property in interstate commerce as contemplated by 49 USCS § 31132(1); thus, requirements for maximum service hours of its delivery drivers could be prescribed by Secretary of Transportation pursuant to 49 USCS § 31502(1) and Motor Carrier Act Exemption, 29 USCS § 213(b)(1), applied; therefore, employees’ Fair Labor Standards Act claims pursuant to 29 USCS § 207(a)(1) were foreclosed. Tidd v Adecco USA, Inc. (2008, DC Mass) 2008 US Dist LEXIS 69825 (criticized in Tews v Renzenberger, Inc. (2009, DC Kan) 592 F Supp 2d 1331).

The Fair Labor Standards Act generally requires that overtime wages, at the rate of one and one-half times the employee’s regular wage, be paid to the employee for hours worked in excess of 40 hours per week, except in limited situations. 29 U.S.C.S. § 207(a)(1). One such exception is the Motor Carrier Act Exemption, 29 U.S.C.S. § 213(b)(1), which provides that 29 U.S.C.S. § 207 shall not apply regarding: (1) any employee with respect to whom the Secretary of Transportation can establish qualifications and maximum hours of service pursuant to 49 U.S.C.S. § 31502. The Secretary of Transportation can establish qualifications and maximum hours of service for certain employees of motor carriers. Section 31502 provides that the Secretary of Transportation may prescribe requirements for: (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation. § 31502(b)(1)-(2).

An employer is a “motor carrier” if it meets the definition of 49 U.S.C.S. §§ 13102(14) and 31132(1) because it uses 10,001 pound-plus trucks in interstate commerce, even if it also conducts other operations that do not meet that definition. In that case, the Motor Carrier Act Exemption, 29 U.S.C.S. § 213(b)(1), applies, and the Secretary of Transportation would be empowered, exclusively, to prescribe the maximum hours of service for the company’s drivers.

(2) The Interstate Commerce Commission held that transportation confined to points in a single State from a storage terminal of commodities which have had a prior movement by rail, pipeline, motor, or water from an origin in a different State is not in interstate or foreign commerce within the meaning of part II of the Interstate Commerce Act if the shipper has no fixed and persisting transportation intent beyond the terminal storage point at the time of shipment. See Ex parte No. MC-48 (71 M.C.C. 17, 29). The Commission specifically ruled that there is not fixed and persisting intent where: (i) At the time of shipment there is no specific order being filled for a specific quantity of a given product to be moved through to a specific destination beyond the terminal storage, and (ii) the terminal storage is a distribution point or local marketing facility from which specific amounts of the product are sold or allocated, and (iii) transportation in the furtherance of this distribution within the single State is specifically arranged only after sale or allocation from storage. In Baird v. Wagoner Transportation Co., 425 F. (2d) 407 (C.A. 6), the court found each of these factors to be present and held the intrastate transportation activities were not “in interstate commerce” within the meaning of the Motor Carrier Act and denied the section 13(b)(1) exemption. While ex parte No. MC-48 deals with petroleum and petroleum products, the decision indicates that the same reasoning applies to general commodities moving interstate into a warehouse for distribution (71 M.C.C. at 27). Accordingly, employees engaged in such transportation are not subject to the Motor Carrier Act and therefore not within the section 13(b)(1) exemption. They may, however, be engaged in commerce within the meaning of the Fair Labor Standards Act. (See in this connection, Mid-Continent Petroleum Corp. v. Keen, 157 F. 2d 310 (C.A. 8); DeLoach v. Crowley’s Inc., 128 F. 2d 378 (C.A. 5); Walling v. Jacksonville Paper Co., 69 F. Supp. 599, affirmed 167 F. 2d 448, reversed on another point in 336 U.S. 187; and Standard Oil Co. v. Trade Commission, 340 U.S. 231, 238).

(29 C.F.R. § 782.7 (Lexis Advance through the August 23, 2017 issue of the Federal Register. Pursuant to 82 FR 8346 (“Regulatory Freeze Pending Review”), certain regulations will be delayed pending further review. See Publisher’s Note under affected rules. Title 3 is current through August 4, 2017).)

Filed Under: Labor & Employment, Motor Vehicle Act