Tag Archives: Motor Carrier Act Exemption

N.D.Ga.: “Yard Hostler” Not Exempt Under The Motor Carrier Act; Defendant Failed To Show That He “Affected The Safety Or Operation Of Motor Vehicles In Transporting Property In Interstate Or Foreign Commerce On The Public Highways”

Billingslea v. Southern Freight, Inc.

The case was before the Court on Defendant’s motion for summary judgment.  Defendants’ sought summary judgment finding that Plaintiff, a “yard hostler,” was exempt from the overtime provisions of the FLSA.  Although it was not disputed that Defendant was/is a Motor Carrier, subject to the MCA, the Court determined that Defendant had failed to demonstrate that Plaintiff was individually exempt, because there was no showing that as a “yard hostler” he “affected the safety of operation of motor vehicles in transporting property in interstate or foreign commerce on the public highways.”  Therefore, Defendant’s motion was denied.

The Court highlighted the following applicable facts:

“Defendant employed Plaintiff as a “yard hostler” at the Nestle distribution facility from August 2008 until November 2008, when he voluntarily resigned [Doc. 22-2, ¶ 20]. Prior to his employment, Defendant required Plaintiff to undergo a drug test and satisfy various physical requirements, consistent with standards set by the Department of Transportation [Doc. 22-2, ¶ 9]. Plaintiff satisfactorily completed the drug test and met the physical requirements [Doc. 22-2, ¶ 10]. Also, prior to his employment, Plaintiff was trained in relevant safety procedures and protocols for his position and acknowledged in writing that he received training on those procedures [Doc. 22-2, ¶ 11].

As a yard hostler at the Nestle distribution facility, Plaintiff drove a “hostler tractor,” which he connected to freight trailers in order to transport the trailers from a staging area to loading docks at the facility [Doc. 22-2, ¶ 12].  Once Plaintiff moved a given trailer to the distribution facility loading dock, the freight in that trailer would be unloaded into the facility; afterwards, Plaintiff would use a hostler tractor to return emptied trailers to the staging area [Doc. 22-2, ¶ 13]. Nothing in the record indicates that Plaintiff ever drove a hostler tractor or any trucks on a public roadway or interstate highway, or that Defendant ever assigned Plaintiff the duty of driving any vehicles on a public roadway or interstate highway. Instead, the record indicates that Plaintiff performed all of his duties as a yard hostler on private property at the distribution facility.

In addition to his core duties, Plaintiff performed various additional tasks designed to promote safety at the distribution facility. At the start of each of his shifts, Plaintiff inspected his assigned hostler tractor for any noticeable maintenance or damage issues [Doc. 22-2, ¶ 14]. If any such issues existed, he reported them to an on-site administrator and made a written report detailing the issues [Doc. 22-2, ¶ 14].

Plaintiff also inspected trucks, trailers, and freight that arrived at the distribution facility. When Plaintiff received refrigerated trucks that he was assigned to transfer, he ensured that the fuel and temperature levels of the truck remained satisfactory during the transfer [Doc. 22-2, ¶ 15]. When Plaintiff received a sealed freight trailer, he often used a bolt cutter to break the trailer’s seal and opened one of the trailer’s back doors before backing the trailer onto the loading dock [Doc. 22-2, ¶ 16]. After opening the back door of a given trailer, Plaintiff would assess whether the freight inside the trailer had shifted during transport or posed any danger to unloaders [Doc. 22-2, ¶ 16]. Plaintiff also inspected trailers that he transported for any noticeable damage, such as broken taillights or flat tires [Doc. 22-2, ¶ 19]. Plaintiff reported such damage to the administrative office and would then move the trailer to the maintenance area of the distribution facility yard [Doc. 22-2, ¶ 19].

When other yard hostlers backed trailers up to the distribution facility’s loading dock, Plaintiff helped “spot” those trailers [Doc. 22-2, ¶ 17]. When Plaintiff backed trailers up to the loading dock, he often chocked the trailer tires to ensure that the trailer did not slide or roll unintentionally after being parked at the loading dock [Doc. 22-2, ¶ 18].

Defendant compensated Plaintiff on an hourly basis and internally classified him as exempt from the overtime compensation requirements of the FLSA, based on its interpretation of an exemption provision in the MCA [Doc. 22-2, ¶ 23].

Defendant and SFI clearly fall into the class of employers whose motor-vehicle transportation the Secretary of Transportation could, and did, regulate. In viewing the evidence in the light most favorable to Plaintiff, however, the Court concludes that Defendant has not borne its burden of showing that Plaintiff, through the actual work that he performed as a yard hostler, “plainly and unmistakably” fell within the terms of the motor carrier exemption to the overtime compensation requirement found in the FLSA. Hodgson, 472 F.2d at 47.”

After discussing the application of the MCA to drivers, driver’s helpers, loaders and/or mechanics, the Court held that Defendant had failed to show Plaintiff, a “yard hostler,” was individually covered by the MCA, because Defendant’s had failed to show that his work affected the safety of operations of motor vehicles in transporting property in interstate or foreign commerce on the public highways.  In doing so, the Court drew a clear line between simply safety involved internally at Defendant’s facility, and the safety involved in operating the vehicles outside, on public roadways, in interstate commerce.

“Defendant emphasizes the numerous safety-related activities that Plaintiff undisputedly undertook as a yard hostler and stresses the effect that those activities arguably had on the safe operation of trucks and trailers used to transport property through interstate commerce. But the second prong of the motor carrier exemption test contains two wholly independent parts. To bear its burden of showing that Plaintiff fell within the motor carrier exemption, Defendant was required to show that Plaintiff performed the work of either a driver, driver’s helper, loader, or mechanic, and that such work directly affected the safety of operation of motor vehicles in transporting property in interstate or foreign commerce on the public highways. Though the record reflects that some of Plaintiff’s activities as a yard hostler promoted the safe operation of trucks and trailers transporting property through interstate commerce, nothing in the record indicates that those activities were those of a driver, driver’s helper, loader, or mechanic as defined by the FLSA regulations. Without more, the Court finds summary judgment in Defendant’s favor on the basis of the motor carrier exemption inappropriate.”

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11th Cir.: Bus Drivers Exempt From FLSA Under Motor Carrier (MCA) Exemption; Bus Company’s Airport-to-Seaport Shuttle Routes Shared A Practical Continuity Of Movement Due To Interstate Travel Of Cruise Line Customers Shuttled

Walters v. American Coach Lines Of Miami, Inc.

This appeal required the Court to determine whether Appellants, who are all current or former bus drivers for American Coach Lines of Miami (“ACLM”), were subject to a provision in the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., exempting from the FLSA’s overtime requirements any employees who fall under the jurisdiction of the Secretary of Transportation under the Motor Carrier Act (“MCA”). The district court found Appellants to be eligible for this “motor carrier” exemption and therefore granted the portion of ACLM’s motion for summary judgment addressing Appellants’ claims for overtime wages. After reviewing the record and the parties’ briefs and hearing oral argument, we AFFIRM the grant of summary judgment.

The Court stated the relevant facts to its inquiry as follows:

“ACLM is a private motor carrier providing for-hire ground transportation for passengers that holds itself out to be an “interstate” motor carrier. It is licensed with the United States Department of Transportation (“DOT”), holds all the authorizations from the Federal Motor Carrier Safety Administration (“FMCSA”) necessary to be an interstate passenger motor carrier, and has been issued a DOT number. Since 2004, federal transportation agencies have audited ACLM at least twice, on at least one occasion in combination with Florida authorities. ACLM also requires its drivers to meet DOT safety standards, which Florida has adopted as well. See
Fla. Stat. § 316.302. ACLM does not pay its drivers overtime wages.

ACLM primarily provides transportation within the state of Florida, though some of its business is between Florida and other states. Much of ACLM’s revenue comes from shuttling cruise ship passengers between the Miami and Fort Lauderdale airports and local hotels and cruise ship ports. Since September 2006, ACLM has had a written contract to be the sole provider of such transportation for Royal Caribbean Cruise Lines (“Royal Caribbean”) during daytime hours. ACLM asserts that between April 2006 and December 2007 it transported more than 500,000 Royal Caribbean passengers, trips that resulted in over $4.4 million in revenues. Appellants contend that there is no proof that ACLM provided such transport prior to September 2006, though they appear not to dispute the total revenue figure. In addition to this written arrangement with Royal Caribbean, ACLM maintains that it earned over $700,000 from earlier informal agreements to provide similar shuttle transportation for Costa Cruises and Princess Cruises. Appellants likewise dispute the existence of such arrangements.

Under ACLM’s contract with Royal Caribbean, it provides ground transportation for passengers who book vacation packages through travel agents or Royal Caribbean. For those passengers, ground transportation is included as part of the overall package and is not priced or itemized separately. Passengers who do not pre-purchase ground transportation can request shuttle service when they arrive at the airport or cruise ship terminal, which will then be charged to that passenger’s Royal Caribbean account.  Under the agreement, Royal Caribbean provides ACLM with weekly manifests listing the expected time, date, and number of passengers for each shuttle trip. Royal Caribbean employees greet passengers on arrival, contact ACLM when a bus is required, and collect vouchers from passengers before they board the bus. Royal Caribbean does not keep the vouchers nor does it give them to ACLM; rather, it gives ACLM a “load slip” with a head count for each trip. ACLM then uses these load slips to invoice Royal Caribbean for the trips. The agreement stated that ACLM would receive payment only if a passenger actually boarded the bus, with Royal Caribbean deciding whether to pay based on a per-person or per-bus rate. FN2 As a result, ACLM receives all of its payments from Royal Caribbean, rather than the passengers.

In addition to these local shuttle services, ACLM also provided other forms of in-state and out-of-state motor coach transportation, including driving shuttle bus routes at the University of Miami. Between 2004 and 2007, ACLM drivers made at least 148 trips that involved out-of-state travel, some for as long as 90 days. Both parties agree that approximately $1.7 million, or 4.06% of ACLM’s total revenue during that period, came from these out-of-state trips and that about 19% of its drivers made such trips. There appear to have been 75 ACLM drivers who made out-of-state trips during the time frame, which constitutes 19.08% of the 393 drivers employed by ACLM for that period.FN5 Nine of the 63 Appellants (14.29%) made out-of-state trips for ACLM, and Appellants spent less than 286 days on such trips during the period in question. ACLM does not keep records of how many trips its drivers make on a daily or annual basis, and there is no solid evidence regarding how many overall trips ACLM drivers made between 2004 and 2007 nor of what percentage of those trips involved out-of-state travel. One ACLM executive agreed that 10,000 total trips a year would be a reasonable estimate. He stated that, if this estimate were correct, then around 100 of those trips would involve out-of-state travel, which would mean that approximately 1% of ACLM’s total trips were out of state.”

After finding that the Defendant was a “motor carrier” the Court turned its inquiry to that of whether Plaintiffs were covered by the MCA. “Courts are ‘guided by practical considerations’ in determining whether an employee’s activities would be part of interstate commerce for purposes of the FLSA. Marshall v. Victoria Transp. Co., Inc., 603 F.2d 1122, 1123 (5th Cir.1979) (quotation marks and citation omitted). “When persons or goods move from a point of origin in one state to a point of destination in another, the fact that a part of that journey consists of transportation by an independent agency solely within the boundaries of one state does not make that portion of the trip any less interstate in character.”United States v. Yellow Cab Co., 332 U.S. 218, 228, 67 S.Ct. 1560, 1566, 91 L.Ed. 2010 (1947), overruled on other grounds by Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). As a result, purely intrastate transportation can constitute part of interstate commerce if it is part of a “continuous stream of interstate travel.” Chao v. First Class Coach Co., Inc., 214 F.Supp.2d. 1263, 1272 (M.D.Fla.2001). For this to be the case, there must be a “practical continuity of movement” between the intrastate segment and the overall interstate flow. Walling v. Jacksonville Paper Co., 317 U.S. 564, 568, 63 S.Ct. 332, 335, 87 L.Ed. 460 (1943); see also Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217, 223 (2d Cir.2002) (applying this standard in analyzing applicability of motor carrier exemption).

In Marshall, we addressed a city bus service in Brownsville, Texas, which often transported people who had walked across the Mexican border before boarding the bus. See Marshall, 603 F.2d at 1123-24. We characterized the transportation of people making international journeys as “a regular, recurring and substantial part” of the bus drivers’ overall workload. Id. at 1125. Because the drivers’ work thereby was “entwined with a continuous stream of international travel,” we concluded that the drivers were engaged in interstate commerce, even though their routes were solely intrastate. Id. The Supreme Court reached a similar conclusion in United States v. Capital Transit Co., 338 U.S. 286, 70 S.Ct. 115, 94 L.Ed. 93 (1949). That case involved a bus service that drove routes within the District of Columbia that took commuters to locations where they then could board buses bound for Virginia. See id. at 288, 70 S.Ct. at 116. The Court found that the Interstate Commerce Commission (“ICC”) had regulatory authority under the MCA over those intra-district bus routes because they were “part of a continuous stream of interstate transportation” and thus formed “an integral part of an interstate movement.” Id. at 290, 70 S.Ct. at 117.

These cases indicate that ACLM’s airport-to-seaport routes would come under the Secretary’s MCA jurisdiction. Its shuttle trips share a practical continuity of movement with the interstate or international travel of the cruise lines and their passengers, just as the Brownsville bus routes did for their riders’ cross-border journeys. For cruise ship passengers arriving at the airport or seaport, ACLM’s shuttle rides would be part of the continuous stream of interstate travel that is their cruise vacation. The Royal Caribbean patrons in particular would have no reason to have any alternate view since the fee for the shuttle ride would either be bundled as part of their cruise vacation package or would be included on the bill for their Royal Caribbean shipboard account.”

The Court shot down each of Plaintiffs arguments that they were not subject to the MCA. The Court said: (1) application of the MCA did not require travel in interstate trips; (2) the incidental-to-air exemption was inapplicable; and (3) Defendants were not required to have a “through-ticketing” arrangement with the cruise line to argue that the passengers were all moving in the continuity of interstate commerce.

Therefore, the Court found that under the circumstances, the bus drivers were not entitled to the benefits of the FLSA, because they were exempt under the Motor Carrier Act (MCA) exemption to the FLSA.

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S.D.Fla.: Airport Shuttle Operating Within A Single State Without An Arrangement With The Air Carrier(s) Is Not Engaged In Interstate Commerce; MCA Exemption Inapplicable

Gilbert v. Southern Shuttle Services Inc.

This case was before the Court upon Defendant Motion for Judgment as a Matter of Law, or in the Alternative, Motion for New Trial (DE 90). The Motion is fully briefed and ripe for review, following a verdict for Plaintiffs, drivers for Defendant, a company that primarily provides transportation services to people who are going to and from local airports. Denying Defendant’s Motion, the Court explained the “interstate” travel requirements of a Defendant seeking to claim the Motor Carrier Act (MCA) Exemption in Order to avoid FLSA liability.

Discussing the issue before the Court, the Court stated, “Defendant challenges only the portion of the instruction regarding the interstate commerce requirement. (Mot. at 4-5). The Motor Carrier Exemption, 29 U.S.C. § 213(b)(1), mandates that overtime pay is not required for any employee with respect to whom the Secretary of Transportation (“Secretary”) has power to establish “qualifications and maximum hours of service pursuant to section 21502″ of the Motor Carrier Act. Thus, the question of whether a plaintiff is exempt from the overtime provisions of the FLSA under 29 U.S.C. 213(b)(1) turns on whether the Secretary had such power with respect to the plaintiff. Baez v. Wells Fargo Armored Service Corp., 938 F.2d 180, 181 (11th Cir.1991).

A requirement of the motor carrier exemption is that the carrier transports persons by motor carrier between a place in a state and a place in another state or “in the practical continuity of movement in the flow of interstate commerce.”See Powell v. Carey Intern., Inc., 483 F.Supp.2d 1168, 1179 (S.D.Fla.2007); see also29 C.F.R. § 782.2 (“The activities of drivers … in connection with transportation which is not in interstate or foreign commerce within the meaning of the Motor Carrier Act provide no basis for exemption under section 13(b)(1) of the Fair Labor Standards Act.”); see also McIntyre v. FLX of Miami, Inc., 2008 WL 4541017, *5 (S.D.Fla.2008) ( “Transportation within a single state may remain ‘interstate’ in character when it forms a part of a ‘practical continuity of movement’ across state lines from the point of origin to the point of destination.”) (citations omitted).

Even if the passengers came from or were destined to points in another state, the carrier is not engaged in interstate commerce if the carrier operates within a single state unless there is a “common arrangement” or through-ticketing between the motor carrier and the air carrier for continuous passage or interchange. See James T. Kimball-Petition for Declaratory Order, 131 M.C.C. 908, 1980 WL 14197 (1980) ((“Kimball” );Motor Transp. of Passengers Incidental to Air, 95 M.C.C. 526 (1964); see also Powell, 483 F.Supp.2d at 1179-82 (holding that plaintiffs limousine service drivers did not fall under the jurisdiction of the Department of Transportation for purposes of the Motor Carrier Exemption where there was insufficient evidence of through-ticketing arrangement between defendants and Virgin Atlantic); Rossi v. Associated Limousine Services, Inc., 438 F.Supp.2d 1354, 1362 (S.D.Fla.2006) ( “Notwithstanding, a through-ticketing arrangement must be between the motor carrier and air carrier for continuous passage in order to render the motor carrier’s operation interstate transportation. See In re Kimball, supra.Associated has no such arrangement with any air carrier.”). A common travel arrangement with a ground transportation company or a travel agency is insufficient to meet the interstate commerce requirement. See id.; Kimball, 131 M.C.C. at 918; Morrison v. Quality Transports Services, Inc., 474 F.Supp.2d 1303, 1310 (S.D.Fla.2007). The Court concludes that the instruction given was legally correct. Accordingly, the Court finds that it did not err in instructing the jury on the Motor Carrier Exemption.

Finally, the Court rejects Defendant’s claims that the evidence at trial established that it fell within the Taxicab and Motor Carrier Exemptions to the FLSA. The jury instructions were correct, both legally and in light of the evidence presented at trial, and the jury’s verdict was not against the weight of the evidence.” Accordingly, Defendant’s Motion was denied.

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D.Md.: Although Defendant Is A Motor Carrier, Factual Issues Preclude SJ On Motor Carrier Exemption, Where School Bus Drivers Drive No More Than 2 Interstate Charter Trips Per Year On Average

Hoffman v. First Student, Inc.

In this FLSA case, both the Plaintiffs, school bus drivers, and Defendant, a motor carrier, who employed them, moved for summary judgment as to whether Plaintiffs were exempt employees under the motor carrier act (MCA) exemption to the FLSA. The Court denied both motions, finding that factual issues precluded a finding one way or another.

“Under the FMCSR, First Student was a “for-hire” private motor carrier of passengers, and its school bus drivers were subject to the federal safety regulations contained in 49 C.F.R. Parts 382, 383, 387, 390-96. The FMCSR’s regulatory guidance, which can be found on the Federal Motor Carrier Safety Administration’s (“FMCSA”) website at http://www.fmcsa.dot.gov, sets forth the types of school bus services covered by the regulations. The FMCSA mandates that “anyone operating school buses under contract with a school is a for-hire motor carrier,” and when a “for-hire motor carrier transports children to school-related functions other than ‘school bus operation’ (as defined in 49 C.F.R. § 390.5), such as for “sporting events, class trips, etc., and operates across State lines,” the carrier is covered by the safety regulations. See FMCSR Regulatory Guidance Part 390.3, Question 14, available at http://www.fmcsa.dot.gov. Normal “school to home and home to school” driving activities are not covered. Id. In full accordance with this guidance, it was Defendant’s policy to pay its Baltimore bus drivers pursuant to the FLSA for “school to home and home to school” trips, but not for charter trips.

The U.S. Department of Transportation has determined that “if in the regular course of employment a driver is, or could be, called upon to transport a shipment in interstate commerce the driver would be subject” to the Department of Transportation’s jurisdiction and “even a minor involvement in interstate commerce as a regular part of an employee’s duties will subject that employee to the jurisdiction” of the Department of Transportation. See FMCSR Regulatory Guidance, Part 390.3, Question 24, at http://www.fmcsa.dot.gov. Furthermore, the U.S. Department of Labor states that:

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 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. See U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division, Fact Sheet # 19: The Motor Carrier Exemption Under the Fair Labor Standards Act (FLSA), available at http://www.dol.gov.

Thus, First Student posits that the drivers who volunteer to join its “charter pool” are categorically ineligible for overtime pay under the statutory and regulatory regime described above because: (1) FLSA’s overtime provisions do not apply to “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and hours of service,”29 U.S.C. § 213(b) (1), and (2) the Secretary of the Department of Transportation is authorized to prescribe the “qualifications” and “hours of service” of drivers in the “charter pool.”

Plaintiffs seek to avoid this result with two arguments. First, they point to an exception set out in the Motor Carrier Act which plausibly creates a categorical exclusion for school bus drivers from the jurisdiction of the Secretary of Transportation. Second, plaintiffs contend that even if they are not categorically excluded from coverage under the Motor Carrier Act, First Student has not established the motor carrier defense as a matter of law (and summary judgment must be denied) because defendant has failed to demonstrate that, as a matter of law, plaintiffs’ involvement with interstate commerce is other than “trivial” and de minimis, or that interstate travel was a “natural, integral and … inseparable part of the position plaintiffs held,” Dauphin v. Chestnut Ridge Transportation, Inc., 544 F.Supp.2d 266, 275 (S.D.N.Y.2008), and that proper evaluation of that defense must await trial.

As explained herein, I conclude that while defendant correctly contends that the motor carrier exemption defense is available, the record does not establish the elements of that defense as a matter of law. Accordingly, defendant’s motion for summary judgment as to the overtime claims is granted in part and denied in part 2.

The Motor Carrier Act (hereafter, “the MCA”) is found at 49 U.S .C. § 13501 et seq.Section 13501 gives the Secretary of the Department of Transportation (hereafter, “the Secretary”) jurisdiction over interstate motor carriers, and a separate section, 49 U.S.C. § 31502(b)(2), empowers the Secretary to set “qualifications” and “hours of service” for employees of interstate motor carriers. As a matter of law, First Student is a form of “motor carrier” within the jurisdiction of the MCA. However, certain types of interstate travel are not within the Secretary’s jurisdiction because they are exempted from the MCA.

One exemption excludes from the Secretary’s jurisdiction “a motor vehicle transporting only school children and teachers to or from school.”49 U.S.C. § 13506(a)(1). On its face, this exemption from the Act seems to mean that the routine carriage of students by the drivers employed by contract motor carriers such as defendant on behalf of local school districts renders the drivers eligible for overtime under the FLSA, i.e., that such employees are not within the class of employees “with respect to whom the Secretary of Transportation has power to establish qualifications and hours of service.”29 U.S.C. § 213(b)(1). And, the statutory term “to or from school” could reasonably be interpreted to include not only transportation “to or from [home to] school [and back],” but also “to or from school[, including any trips from school to other locations related to the educational mission of the school, such as school-sponsored field trips, and back to school."] Put differently, one might justifiably infer that students on field trips and/or being transported to and from athletic contests almost always depart from and return to the school location at the beginning and end of such transportation.

Mielke v. Laidlaw Transit, Inc., 102 F.Supp.2d 988, 992 (N.D.Ill.2000), essentially adopted the above interpretation of the term “to or from school” in the MCA and reasoned that, categorically, “school bus operation” (which is the Secretary’s regulatory term, meaning “the use of a school bus to transport school children and/or school personnel from home to school and from school to home,”49 C.F.R. § 390.5), is outside of the Secretary’s jurisdiction and thus is not encompassed by the FLSA’s motor carrier exception. Specifically, the Mielke court concluded that “the phrase ‘to and from school’ includes transportation to or from school sponsored events.” 102 F.Supp.2d at 990 (citation omitted).

In reaching its conclusion that school bus drivers who drove on so-called “charter trips” were entitled to overtime notwithstanding the FLSA’s motor carrier exception, the Mielke court flatly rejected defendant’s argument that the MCA’s exception for “a motor vehicle transporting only school children and teachers to or from school” applied “only to tariff, licensing, and rate regulations” governing motor carriers, and not to the Secretary’s authority to prescribe school bus drivers’ “qualifications and maximum hours of service.”Id.

At the time the case at bar was filed in June 2006, Mielke was the sole opinion by a federal court interpreting and harmonizing the FLSA motor carrier exception with the MCA’s exclusion from the Secretary’s authority “a motor vehicle transporting only school children and teachers to or from school.”In Mielke, the former gave way to the latter and school bus drivers were deemed by the court entitled to overtime pay under the FLSA.

There is now a second case elucidating this somewhat convoluted statutory and regulatory regime treating school bus drivers’ entitlement to overpay pay under the FLSA. Dauphin v. Chestnut Ridge Transportation, Inc., 544 F.Supp.2d 266 (S.D.N.Y.2008). In Dauphin, the court declined to follow Mielke and reached a contrary conclusion, namely, that the FLSA motor carrier exception potentially applied to school bus drivers (essentially on a week-by-week, employee-by-employee basis, see 544 F.Supp.2d at 275 (“However, because this testimony fails to establish whether interstate travel was part of either plaintiff’s job duties during the entire period at issue in this litigation, the Court cannot determine whether the motor carrier exemption applies to them for all the relevant workweeks.”)). Thus, the motor carrier exception would exonerate the defendant in Dauphin provided that it could show “either that the activities of the individual plaintiffs involved interstate travel of a character that was more than de minimis or that interstate travel was a ‘natural, integral and … inseparable part’ of the position plaintiffs held.”Id.

Specifically, the Dauphin court concluded, contrary to Mielke, that the limitation on the Secretary’s jurisdiction to regulate “school bus operations” had no bearing on the Secretary’s ability to set “qualifications and maximum hours of service” for school bus drivers who operated school buses in interstate commerce. Id. at 272.That is, the court reasoned that § 13506‘s limitation on the Secretary’s jurisdiction applies only to the economic and licensing authority (found in Subtitle IV of the MCA), and not to the issue of qualifications and maximum hours of service (found in Subtitle VI of the MCA).Id. (citing Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217, 229 (2d Cir.2002)).

Dauphin readily acknowledged that, consistent with the statutory language in the MCA, the Federal Motor Carrier Safety Regulations except from certain regulations “[a]ll school bus operations,” pursuant to 49 C.F.R. § 390.3(f).See 544 F.Supp.2d at 274. Nevertheless, the court concluded that this regulatory exclusion is not an indication that the Secretary does not have the authority to regulate school bus transportation; rather, it concluded, the exclusion reflects the Secretary’s determination that regulating home-to school and school-to-home transportation is not necessary for public safety. Id. (citing 53 Fed.Reg. 18,043 (May 19, 1988)).

I have carefully considered the conflicting approaches of the only two federal courts to have examined this awkward statutory regime. To be sure, Mielke’s approach is fully consistent with the well-settled doctrine that FLSA exemptions and exceptions are to be construed narrowly against the employer seeking to assert them, e.g., Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960) (citing Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 295, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959)). Nonetheless, I am persuaded that some deference is owed to the Secretary’s interpretation of his authority, acquiesced in by the Department of Labor, see29 C.F.R. § 782.2(a), to regulate the qualifications and hours of service of interstate school bus drivers. Furthermore, I am persuaded by Judge Stein’s analysis in Dauphin that the broadly-worded exception set forth in the MCA does not extend to the qualifications and hours of service of interstate school bus drivers employed by motor carriers within the jurisdiction of the Secretary. Accordingly, as in Dauphin, and contrary to Mielke, I conclude that the motor carrier defense is potentially applicable here.

Nevertheless, again as in Dauphin, the motor carrier exception defense cannot be applied on this record as a matter of law. Because an employee’s exempt status is an affirmative defense to a claim for non-payment at an overtime rate, the employer bears the burden of proving the exemption by clear and convincing evidence. Stricker v. Eastern Off Road Equip., Inc., 935 F.Supp. 650, 654 (D.Md.1996). Viewed in the light most favorable to plaintiffs, the evidence in the record shows that fewer than two interstate trips per year, on average, were worked by the employees in the First Student “charter pool” during the pendency of defendant’s contracts in Maryland. Moreover, as disclosed during the hearing in this case, each such driver seems to have had the option whether to accept an assignment to operate a vehicle outside of Maryland. See Dauphin, 544 F.Supp.2d at 274-76. Thus, to paraphrase Dauphin”whether the activities of [First Student's] [former] drivers involve[d] interstate transportation of passengers in a way that would bring them within the scope of the motor carrier exemption from the FLSA” cannot be determined as a matter of law. Id. (alterations added).

Accordingly, I conclude that, as a matter of law, although the Secretary of Transportation is authorized to regulate the qualifications and hours of service of those members of the plaintiff class who volunteered for the “charter pool,” genuine disputes of material fact preclude a determination as a matter of law whether the FLSA motor carrier exception applies to any particular member of the plaintiff class for any particular work week. Therefore, as to the motor carrier exception, plaintiffs’ motion for partial summary judgment is denied, and defendant’s motion for partial summary judgment is granted in part and denied in part.”


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S.D.Ind.: Tow Truck Driver Exempt Under Motor Carrier Act (MCA), Because Might Be Called To Perform Interstate Wrecking Services

Johnson v. Hix Wrecker Service, Inc.

The case was before the Court on several motions for summary judgment. The Court granted Defendant’s motion for summary judgment, finding that the Plaintiff was exempt from the FLSA’s overtime provisions pursuant to the Motor Carrier Act (MCA) exemption. This case contrasts the proof (and result) of a similar case discussed here yesterday.

The Court explained, “Defendant Hix Wrecker Service, Inc., (“HWS”) is an Indianapolis business that, as its name suggests, performs wrecker services; the remaining Defendants are individuals who manage and operate HWS. Plaintiff Bobby J. Johnson, Jr., worked for HWS for several months in 2006 as a tow truck driver. Johnson asserts several claims in his complaint. At issue in the instant motion is his claim that HWS violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., (“FLSA”), by failing to pay him overtime wages for occasions in which he worked more than forty hours in a given week. HWS argues that the FLSA overtime provisions were inapplicable to Johnson because the motor carrier exemption applied to him during his employment with HWS. The Court agrees.

The motor carrier exemption is found at 29 U.S.C. § 213(b)(1) and provides that “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″ is exempt from the overtime provisions of the FLSA. Among other things, 49 U.S.C. § 31502 extends the Secretary of Transportation’s power to “employees of, and safety of operation and equipment of, a motor carrier” that transports property across state lines. “The Secretary has the power to set maximum hours for drivers if the company engages in more than de minimis interstate commerce, and that includes a company that holds itself out as an interstate company and solicits that business even though its prospect of obtaining much of that business is poor and some of its drivers never drive in interstate commerce.” Garcia v. Pace Suburban Bus Service, 955 F.Supp. 75, 77 (N.D.Ill.1996) (citing Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947); Reich v. American Driver Service, Inc., 33 F.3d 1153 (9th Cir.1994); Marshall v. Aksland, 631 F.2d 600 (9th Cir.1980); Brennan v. Schwerman Trucking Co. of Virginia, Inc., 540 F.2d 1200 (4th Cir.1976)).”That does not mean, however, that the Secretary of Transportation has automatic jurisdiction over all drivers of an interstate carrier. Pursuant to a notice of interpretation, 46 Fed.Reg. 37,902, 37,903 (1981)… jurisdiction extends only to drivers who reasonably could be expected to make one of the carrier’s interstate runs, and that means more than a remote possibility.” Garcia, 955 F.Supp. at 77. Thus, as explained in the relevant Department of Labor regulation:

In a situation considered by the U.S. Supreme Court, approximately 4 percent of the total trips made by drivers employed by a common carrier by motor vehicle involved in the hauling of interstate freight. Since it appeared that employer, as a common carrier, was obligated to take such business, and that any driver might be called upon at any time to perform such work, which was indiscriminately distributed among the drivers, the Court considered that such trips were a natural, integral, and apparently inseparable part of the common carrier service performed by the employer and driver employees. Under these circumstances, the Court concluded that such work, which directly affected the safety of operation of the vehicles in interstate commerce, brought the entire classification of drivers employed by the carrier under the power of the Interstate Commerce Commission to establish qualifications and maximum hours of service, so that all were exempt even though the interstate driving on particular employees was sporadic and occasional, and in practice some drivers would not be called upon for long periods to perform any such work. ( Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44)

29 C.F.R. § 782.2. In other words, it does not matter whether the driver in question actually has made an interstate run; as long as the driver is subject to being assigned to such a run at any time, the exemption applies to that driver.

HWS has the burden of demonstrating that the exemption applied to Johnson during the time it employed him. Klein v. Rush-Presbyterian-St. Luke’s Medical Center, 990 F.2d 279, 283 (7th Cir.1993). To demonstrate the application of the exemption to Johnson, HWS has submitted evidence, in the form of the affidavit of Defendant Gail Neal, the corporate secretary of HWS, which establishes the following:

1. HWS has at all relevant times held a common-carrier certificate of authority from the Department of Transportation that permits it to transport property for hire in interstate commerce.

2. Since 1973, HWS has provided its customers with both intrastate and interstate wrecker services.

3. HWS routinely provides interstate wrecker services for several of its customers.

4. All HWS drivers are subject to being assigned to an out-of-state run, either as a driver or as a helper, as needed.

5. Johnson was subject to being assigned to an out-of-state run at all times during his employment with HWS.

Thus, HWS has submitted evidence sufficient to establish that the motor carrier exemption to the FLSA was applicable to Johnson during his employment with HWS.” Therefore the Court granted Defendant’s motion.

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N.D.Tex.: Absent Proof Of Likelihood Of Interstate Trips, Plaintiff Truckdrivers Not Subject To Motor Carrier Act (MCA) Exemption; Summary Judgment Held In Abeyance

Songer v. Dillon Resources, Inc.

Here, the parties moved by cross Motions for Summary Judgment for a determination as to whether the Plaintiff-truckdrivers were subject to the so-called Motor Carrier Exemption of the FLSA, based on the nature of their duties driving for Defendant, an interstate motor carrier. The Court held the Motions in abeyance, questioning the quality of proof offered by the Defendant.

After acknowledging the parties agreed Defendant was a “motor carrier” the Court examined the necessary proof the Defendant was required to come forward with in order to meet its burden of proof on the exemption, and concluded Defendant had failed to do so, “[c]oncluding that plaintiffs, as truck drivers, are subject to the Motor Carrier Act exemption, however, does not end the court’s inquiry. The court is not persuaded that the exemption bears the unlimited scope and duration defendants have suggested. In support of their respective positions, the parties argue regarding the application and authority of a number of interpretive guides, including an Interpretive Bulletin of the Department of Transportation, Federal Highway Administration, 46 Fed.Reg. 37902, 1981 WL 115508; the DOL Field Operations Handbook; and Opinion Letters of the DOL’s Wage and Hour Division. All of these sources, while not controlling or entitled to deference, are “entitled to respect” to the extent they are persuasive or offer guidance. Christensen v. Harris County, 529 U.S. 576, 587-88 (2000); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). All of these sources lead to the same conclusion: a driver is subject to the jurisdiction of the Secretary, and thus under the Motor Carrier Act exemption, for a “4-month period from the date of the proof” that he was, or could have been, called upon to engage in interstate commerce. 46 Fed.Reg. 37902, 37903.

Although the court concludes that plaintiffs, as drivers for at least one motor carrier, are subject to the Motor Carrier Act exemption to some extent, defendants have failed to adduce summary judgment evidence of the specific application of the exemption as to each plaintiff for these defendants. The summary judgment evidence submitted by defendants sets forth generally the dates of plaintiffs’ employment and states generally the number of interstate trips made by that plaintiff. However, defendants have adduced nothing as would show, as to each plaintiff, proof of when he or she was, or could have been, called upon to transport goods in interstate commerce such that the exemption clock began ticking as to that plaintiff.

Defendants submitted summary judgment evidence that purports to be bills of lading or similar types of work tickets showing that various plaintiffs transported goods across state lines or within Texas in the intrastate flow of interstate commerce. Insofar as the court can tell, none of these items show any of the defendants as the employer or trucking company of record. For example, many of the work tickets, under the heading “Carrier,” list “Sunset Transp” or, in some cases, “Sunset Trucking.” Neither of these entities is a party to this action, nor have defendants pointed the court to any summary judgment evidence explaining the relationship, if any, between them and either of those entities.

The court also has concerns about defendants’ summary judgment evidence generally. Defendants’ appendices as assembled do not correspond to either the tables of contents or to internal citations to exhibits within affidavits. By way of example, in volume I of the appendix, the affidavit of Edward Brady refers to exhibits A, B, C, etc., attached thereto. The exhibits themselves, however, are tabbed as number 1, 2, 3, etc., making it difficult for the court to identify exactly to which exhibit the affidavit refers. This pattern is repeated as to each affidavit with exhibits. Further, the affidavits contain many conclusory assertions and do not properly authenticate the documents attached thereto as exhibits. As the court would find it helpful for the parties to provide additional briefing and evidence on the limited issues set forth below, it is expected that any additional evidence submitted will be properly assembled and identified and internally consistent. Therefore,

The court ORDERS that plaintiffs’ partial motion for summary judgment, and defendants’ motion for summary judgment, be, and are hereby, held in abeyance pending further consideration by the court of the parties’ supplemental filings ordered below.”

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