Trucks and Guns: An Employment Law Fable, Part I (Overtime for Truck Drivers)
He’s there for a meeting with an HR manager from his company’s regional office to discuss why he’s not paid overtime.
The manager, who was on his way home from his office, explains it’s because he drives in interstate commerce, and federal overtime law exempts such drivers.
The driver says that’s wrong; his route is entirely within his home state.
The manager says that doesn’t matter, it’s still interstate driving.
The argument quickly escalates, until the driver pulls a gun and shoots at the manager, wounding him as well as another truck stop customer.
- Who’s right about the overtime obligation?
- Can the manager collect workers’ compensation for his injuries?
- Can the customer successfully sue the employer of the driver and manager?
My failure to write any new posts on this Blawg for a few weeks is largely due to time-consuming, in-depth study and writing on the law related to these questions.
I’ve been writing a chapter on workplace violence for a new edition of the Missouri Bar deskbook on Employer-Employee Law. In earlier editions, this subject had not been covered.
I’ve also been doing some very thorough research for a client on the “Motor Carrier Exemption” from the Fair Labor Standards Act, under which employers of truck drivers may be exempt from the federal-law obligation to pay overtime premium at time-and-a-half.
So, I thought I’d take this opportunity to outline a bit of what I’ve learned on these two subjects, which I artificially combined, law-school-exam style, in the above trucks-and-guns “hypothetical.”
Today, we’ll cover the first question: Was the Driver Exempt?
Answer: Maybe (the lawyer’s favorite answer). This is a complicated subject, so what follows is necessarily a gross oversimplification. For example, not all vehicles qualify for the exemption, but I’m leaving that aspect out and assuming we’re talking big rigs.
Caveat: If you’re considering not paying any employee overtime, you should consult an experienced employment attorney knowledgeable not only in federal overtime requirements, but also in applicable state laws. Overtime litigation is popular and lucrative for the attorneys who pursue it; mistakes can be very costly.
That said, under federal law there are basically three ways a truck driver can become exempt:
- Regularly driving across state lines.
- Being a member of a driver workforce that performs some driving across state lines, and working under rules and policies that make it possible that the driver will be required to perform such driving, even if it occurs infrequently or not at all. What matters is that the driver “is subject to being called on to drive in interstate commerce as part of his regular employment.”
- Driving entirely within one state, where at least some of the goods being shipped are effectively in continuous movement in interstate commerce. That the particular driver only drives the intrastate leg of the trip is irrelevant if the interruption of the journey by in-state storage or inter-modal transfer is not deemed to break its essential continuity. This is determined under a fairly complex test, with the overall consideration being whether the out-of-state shipper has a “fixed and persisting transportation intent beyond the [in-state] terminal storage point.”
So the violent driver in our story may have been wrong (and properly exempted from overtime) if routes were assigned in such a way that he was subject to being required to drive across state lines.
For example, if drivers could decline particular interstate runs based on seniority, and he was low on the seniority roster, he could very well get stuck with such a run if it was undesirable for some reason, such as proximity to a holiday.
He also may have been wrong if the continuous movement rule applied. For example, if he picked up goods at a warehouse for local delivery to wholesale or retail customers, but many or all of the goods had been delivered to the warehouse from out of state pursuant to specific customer orders and held only briefly there, he would likely be found exempt.
One surprise in my research was that increasingly courts find the exemption applicable on this basis despite the lack of specific customer orders, if the quantities are shipped based on relatively precise and well-founded estimates of demand. This is a tricky area, and cases must be examined closely before making a bet-the-farm decision to treat intrastate drivers as exempt under such circumstances.
Note as a final word of caution that some states require payment of overtime to drivers who are exempt under federal law, further complicating the task of making legally correct decisions in this area.
Next in Series: Can the manager who was shot collect workers’ comp?
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photo credit: Douglas-westbound via flickr