The Fair Labor Standards Act’s
Motor Carrier Exemption

by  

Raymond L. Hogge, Jr., Esq.
PAYNE, GATES, FARTHING AND RADD, P.C.
Attorneys and Counsellors at Law
Dominion Tower, Fifteenth Floor
999 Waterside Drive
Norfolk, Virginia 23510
Telephone: (757) 640-1500
Fax: (757) 627-6583
E-Mail: rhogge@paynegates.com
www.PayneGates.com
www.VirginiaLaborLaw.com  

May 1998

        Preface

        This outline describes, in a summary fashion, certain provisions of  Fair Labor Standards Act.  It is provided solely for the information and education of the reader, and does not constitute legal advice.  For legal advice, the reader should consult qualified counsel of his or her choosing.

        Applicable Statutory Provisions

         Section 13(b)(1) of the Fair Labor Standards Act provides an exemption from the maximum hours and overtime requirements of FLSA Section 7. In general, the exemption is applicable 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 204 of the Motor Carrier Act of 1935.  29 C.F.R. § 782.1.

        Applicability of the Motor Carrier Exemption in General

        The "Motor Carrier Exemption" is applicable, under decisions of the U.S. Supreme Court, only to an employee who is a driver, driver's helper, loader, or mechanic, and whose work directly affects the safety of operation of motor vehicles on the public highways in transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act.  29 C.F.R. § 782.2; Pyramid Motor Freight Corp.  v. Ispass, 330 U.S. 695; Levinson  v. Spector Motor Service, 330 U.S. 649); Morris  v. McComb, 332 U.S. 442. Although the Supreme Court recognized that the special knowledge and experience required to determine what classifications of work affects safety of operation of interstate motor carriers was applied by the Commission, it has made it clear that the determination whether or not an individual employee is within any such classification is to be determined by judicial process. In determining whether an employee falls within such an exempt category, neither the name given to his position nor that given to the work that he does is controlling; what is controlling is the character of the activities involved in the performance of his job. 29 C.F.R. § 782.2; see, e.g., Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; cf Missel  v. Overnight Motor Transp., 40 F. Supp. 174 (D. Md.), reversed on other grounds, 126 F.2d 98 (4th Cir.), aff’d 316 U.S. 572); Magann v. Long's Baggage Transfer Co., 39 F. Supp. 742 (W.D. Va.).

        As a general rule, if the bona fide duties of the job performed by the employee are in fact such that he is (or, if a member of a group of drivers, driver's helpers, loaders, or mechanics, is likely to be) called upon in the ordinary course of his work to perform, either regularly or from time to time, safety-affecting activities, then he comes within the exemption in all workweeks when he is employed at such a job. This general rule assumes that the activities involved in the continuing duties of the job in all such workweeks will include activities which have been determined to affect directly the safety of operation of motor vehicles on the public highways in transportation in interstate commerce. Where this is the case, the rule applies regardless of the proportion of the employee's time or of his activities which is actually devoted to such safety-affecting work in the particular workweek, and the exemption will be applicable even in a workweek when the employee happens to perform no work directly affecting "safety of operation." 29 C.F.R. § 782.2.

        On the other hand, where the 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 to him in any workweek so long as there is no change in his duties. If in particular workweeks other duties are assigned to him which result, in those workweeks, in his performance of activities directly affecting the safety of operation of motor vehicles in interstate commerce on the public highways, the exemption will be applicable to him those workweeks, but not in the workweeks when he continues to perform the duties of the non-safety-affecting job. 29 C.F.R. § 782.2.  Example of employees who are not within the definitions of drivers, driver's helpers, loaders, and mechanics include the following, whose duties are considered to affect safety of operation, if at all, only indirectly, include  stenographers (including those who write letters relating to safety or prepare accident reports), clerks of all classes (including rate clerks, billing clerks, clerks engaged in preparing schedules, and filing clerks in charge of filing accident reports, hours-of-service records, inspection reports, and similar documents), foremen, warehousemen, superintendents, salesmen, and employees acting in an executive capacity.  29 C.F.R. § 782.2(f).  

        Where the same employee of a carrier is shifted from one job to another periodically or on occasion, the application of the exemption to him in a particular workweek is tested by application of the above principles to the job or jobs in which he is employed in that workweek. Similarly, in the case of an employee of a private carrier whose job does not require him to engage regularly in exempt safety-affecting activities and whose engagement in such activities occurs sporadically or occasionally as the result of his work assignments at a particular time, the exemption will apply to him only in those workweeks when he engages in such activities. Also, because the jurisdiction of the Secretary of Transportation over private carriers is limited to carriers of property, a driver, driver's helper, loader, or mechanic employed by a private carrier is not within the exemption in any workweek when his safety-affecting activities relate only to the transportation of passengers and not to the transportation of property.  29 C.F.R. § 782.2.

        The Motor Carrier Exemption does not apply to employees of carriers who are not carriers subject to the jurisdiction of the Department of Transportation, or to employees of non-carriers such as commercial garages, firms which maintain and repair motor vehicles owned and operated by carriers, firms which lease motor vehicles to carriers and keep such vehicles in condition for service pursuant to the lease agreement.  See Boutell v. Walling , 327 U.S. 463; Walling v. Casale , 51 F. Supp. 520. Similarly, the exemption does not apply to an employee whose job does not involve any activities which have been defined as those of drivers, drivers' helpers, loaders, or mechanics, or as directly affecting the "safety of operation" of motor vehicles. The exemption does not extend to employees merely because they engage in activities affecting the safety of operation of motor vehicles operated on private premises, nor does it extend to employees engaged solely in such activities as operating freight and passenger elevators in the carrier's terminals of moving freight or baggage therein or the docks or streets by hand trucks, which activities have no connection with the actual operation of motor vehicles. 29 C.F.R. § 782.2.

        The following are Department of Labor examples of the application of 29 C.F.R. § 782.2:

Example 1: 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 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 [predecessor to the Department of Transportation] 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.

Example 2: In another situation, the United States Court of Appeals for the Seventh Circuit held that the exemption would not apply to truck drivers employed by a private carrier on interstate routes who engaged in no safety-affecting activities of the character described above even though other drivers of the carrier on interstate routes were subject to the jurisdiction of the Motor Carrier Act. The court reaffirmed the principle that the exemption depends not only upon the class to which the employer belongs but also the activities of the individual employee. Goldberg v. Faber Industries, 291 F.2d 232 (7th Cir.).

        Drivers

        A "driver," as defined for Motor Carrier Act jurisdiction (49 C.F.R. Parts 390-395), is an individual who drives a motor vehicle in transportation which is, within the meaning of the Motor Carrier Act, in interstate or foreign commerce. This definition does not require that the individual be engaged in such work at all times; it is recognized that even full-duty drivers devote some of their working time to activities other than such driving.  The definition of "Drivers" in this context encompasses, for example, such partial-duty drivers as the following, who drive in interstate or foreign commerce as part of a job in which they are required also to engage in other types of driving or non-driving work:

29 C.F.R. § 782.3(a); see, e.g., Morris  v. McComb, 332 U.S. 422; Richardson  v. James Gibbons Co.,  132 F.2d 627 (4th Cir.), aff’d 319 U.S. 44.

        The work of an employee who is a full-duty or partial-duty "driver" directly affects "safety of operation" whenever he drives a motor vehicle in interstate or foreign commerce (within the meaning of the Motor Carrier Safety Act). 29 C.F.R. § 782.3(a); See Levinson v. Spector Motor Service, 330 U.S. 649 (citing Richardson  v. James Gibbons Co., 132 F.2d 627 (4th Cir.), aff’d, 319 U.S. 44. However, this does not mean that an employee of a carrier who drives a motor vehicle is exempted as a "driver" by virtue of that fact alone. He is not exempt, for example, if his job never involves transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act, or if he is employed by a private carrier and the only such transportation called for by his job is not transportation of property. 29 C.F.R. § 782.3(b); see Colbeck v. Dairyland Creamery Co. , 17 N.W.2d 262 (S.D.) (driver of truck used only to transport himself to job sites, as an incident of his work in servicing his employer's refrigeration equipment, was non-exempt); Keegan v. Ruppert, 7 Labor Cases, Par. 61,726, 6 Wage Hour Rept. 676 (S.D.N.Y.) ("hostlers" who "spot" trucks and trailers at a terminal dock for loading and unloading are not exempt as drivers merely because as an incident of such duties they drive the trucks and tractors in and about the premises of the trucking terminal).

        Driver’s Helpers

        A "driver's helper," as defined for Motor Carrier Act jurisdiction, is an employee (other than a driver or an employee who rides on the vehicle and acts as an assistant or relief driver) who is required to ride on a motor vehicle when it is being operated in interstate or foreign commerce within the meaning of the Motor Carrier Act. Under this definition, many employees (including, for example, armed guards on armored trucks and conductors on buses) may be "driver’s helpers" if they  engage in activities which directly affect the safety of operation of such motor vehicles in interstate or foreign commerce.  Some such activities can include, for example, dismounting the vehicle when it approaches a railroad crossing, and flagging the driver across the tracks or, if the vehicle breaks down on a highway, placing the flags, flares, and fuses as required by the safety regulations, going for assistance while the driver protects the vehicle on the highway, or vice versa, or assisting the driver in changing tires or making minor repairs or putting on or removing chains.  29 C.F.R. § 782(a).

        An employee may be a "driver’s helper" under the official definition even though such safety-affecting activities constitute only a minor part of his job. Thus, although the primary duty of armed guards on armored trucks is to protect the valuables in the case of attempted robberies, they are classified as "helpers" where they ride on such trucks being operated in interstate or foreign commerce, because, in the case of an accident or other emergency and in other respects, they act in a capacity somewhat similar to that of the helpers described in the text. Similarly, conductors on buses whose primary duties are to see to the comfort of the passengers are classified as "drivers’ helpers" if the buses are being operated in interstate or foreign commerce, because in instances when accidents occur, they help the driver in obtaining aid and protect the vehicle from oncoming traffic. 29 C.F.R. § 782(b).

        The Motor Carrier Exemption applies to employees who are, under the Secretary of Transportation's definitions, engaged in such activities as full- or partial-duty "drivers’ helpers" on motor vehicles being operated in transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act. The exemption has been held inapplicable, however, to helpers who ride on motor vehicles but do not engage in any of the activities of "drivers’ helpers" which have been found to affect directly the safety of operation of such vehicles in interstate or foreign commerce. 29 C.F.R. § 782(c); see, e.g., Walling v. Gordon's Transports, 10 Labor Cases 62,934, 6 W.H. Cases 831 (W.D. Tenn.), aff’d, 162 F.2d 203 (6th Cir.), cert. denied, 332 U.S. 774 (helpers on city "pickup and delivery trucks" where it was not shown that the loading in any manner affected safety of operation and the helper's activities were "in no manner similar" to those of a driver's helper in over‑the‑road operation).

        It also should be noted that an employee, to be exempted as a "driver's helper," must be "required" as part of his job to ride on a motor vehicle when it is being operated in interstate or foreign commerce.  An employee of a motor carrier is not exempted as a "driver’s helper" when he rides on such a vehicle, not as  a matter of fixed duty, but merely as a convenient means of getting himself to, from, or between places where he performs his assigned work. 29 C.F.R. § 782(c).

        Loaders

        A "loader" is an employee of a carrier subject to Section 204 of the Motor Carrier Act (other than a driver or driver's helper) whose duties include, among other things, the proper loading of his employer's motor vehicles so that they may be safely operated on the highways. A "loader" may be called by another name, such as "dockman," "stacker," or "helper," and his duties will usually also include unloading and transferring freight between the vehicles and the warehouse, but he engages, as a "loader," in work directly affecting "safety of operation" so long as he has responsibility when such motor vehicles are being loaded, for exercising judgment and discretion in planning and building a balanced load or in placing, distributing, or securing the pieces of freight in such a manner that the safe operation of the vehicles on the highways in interstate or foreign commerce will not be jeopardized. 29 C.F.R. §782.5(a). Where a checker, foreman, or other supervisor plans and immediately directs the proper loading of a motor vehicle as described above, he may come within the exemption as a partial-duty loader.  29 C.F.R. §782.5(b).

        An employee is not exempt as a loader where his activities in connection with the loading of motor vehicles are confined to classes of work other than the kind of loading that directly affects "safety of operation." The mere handling of freight at a terminal, before or after loading, or even the placing of certain articles of freight on a motor carrier truck, may form so trivial, casual, or occasional a part of an employee's activities, or his activities may relate only to such articles or to such limited handling of them, that his activities will not come within the kind of "loading" which directly affects "safety of operation." Thus, the following activities have been held to provide no basis for exemption:

29 C.F.R. §782.5(c); see, e.g., Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Levinson  v. Spector Motor Service, 330 U.S. 649. 

       Thus, in general, an employee who has no responsibility for the proper loading of a motor vehicle is not within the exemption as a "loader" merely because he furnishes physical assistance when necessary in loading heavy pieces of freight, or because he deposits pieces of freight in the vehicle for someone else to distribute and secure in place, or even because he does the physical work involving discretion as to the manner in which the loading is done. Such activities are not generally held to constitute the kind of "loading" which directly affects the safety of operation of the loaded vehicle on the public highways, under the official definitions. 29 C.F.R. §782.5(c).

        Mechanics

        A "mechanic," for purposes of safety regulations under the Motor Carrier Act, is an employee who is employed by a carrier subject to the Secretary's jurisdiction under section 204 of the Motor Carrier Act and whose duty it is to keep motor vehicles operated in interstate or foreign commerce by his employer in a good and safe working condition. It has been determined that the safety of operation of such motor vehicles on the highways is directly affected by activities of mechanics, such as keeping the lights and brakes in a good and safe working condition, which prevent the vehicles from becoming potential hazards to highway safety and thus aid in the prevention of accidents. 29 C.F.R. § 782.6(a).

        The courts have held that mechanics perform work of this character where they actually do inspection, adjustment, repair or maintenance work on the motor vehicles themselves (including trucks, tractors and trailers, and buses) and are, when so engaged, directly responsible for creating or maintaining physical conditions essential to the safety of the vehicles on the highways through the correction or prevention of defects which have a direct causal connection with the safe operation of the unit as a whole. The activities performed by mechanics on motor vehicles operated in interstate or foreign commerce which the courts, in applying the foregoing principles, have regarded as directly affecting "safety of operation" include, for example:  

29 C.F.R. § 782.6(a).

        The Motor Carrier Exemption to an employee whose job involves activities consisting wholly or in part of doing, or immediately directing, a class of work which, under the definitions referred to above, is that of a "mechanic" and directly affects the safety of operation of motor vehicles on the public highways in interstate or foreign commerce, within the meaning of the Motor Carrier Act.  Thus, a supervisory employee who plans and immediately directs and checks the proper performance of this class of work may come within the exemption as a partial‑duty mechanic. 29 C.F.R. § 782.6(a).  An employee of a carrier by motor vehicle is not exempted as a "mechanic" from the overtime provisions of the Fair Labor Standards Act, however, merely because he works in the carrier's garage, or because he is called a "mechanic," or because he is a mechanic by trade and does mechanical work.  The exemption applies only if he is doing a class of work defined as that of a "mechanic," including activities which directly affect the safety of operation of motor vehicles in transportation on the public highways in interstate or foreign commerce.

        Activities which do not directly affect such safety of operation include those performed by employees whose jobs are confined to such work as that of dispatchers, carpenters, tarpaulin tailors, vehicle painters, and servicemen who do nothing but oil, gas, grease, or wash the motor vehicles.  To these may be added activities such as filling radiators, checking batteries, and the usual work of such employees as stockroom personnel, watchmen, porters, and garage employees performing menial nondiscretionary tasks or disassembling work. Employees whose work is confined to such "nonsafety" activities are not within the exemption, even though the proper performance of their work may have an indirect effect on the safety of operation of the motor vehicles on the highways.  29 C.F.R. § 782.6(b).  Similarly, the exemption has been held inapplicable to mechanics repairing and rebuilding parts, batteries, and tires removed from vehicles where a direct causal connection between their work and the safe operation of motor vehicles on the highways is lacking because they do no actual work on the vehicles themselves and entirely different employees have the exclusive responsibility for determining whether the products of their work are suitable for use, and for the correct installation of such parts, on the vehicles. 29 C.F.R. § 782.6(b).

        Mechanical work on motor vehicles of a carrier which is performed in order to make the vehicles conform to technical legal requirements rather than to prevent accidents on the highways has not been regarded by the courts as work directly affecting "safety of operation." 29 C.F.R. § 782.6(b).

        No mechanical work on motor vehicles can be considered to affect safety of operation of such vehicles in interstate or foreign commerce if the vehicles are never in fact used in transportation in such commerce on the public highways. 29 C.F.R. § 782.6(b).

        Interstate Commerce

        The Fair Labor Standards Act Section 13 does not exempt an employee of a carrier from the Act's overtime provisions unless it appears, among other things, that his activities as a driver, driver's helper, loader, or mechanic directly affect the safety of operation of motor vehicles in transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act. What constitutes such transportation in interstate or foreign commerce, sufficient to bring such an employee within the regulatory power of the Secretary of Transportation under section 204 of that act, is determined by definitions contained in the Motor Carrier Act itself. These definitions are, however, not identical with the definitions in the Fair Labor Standards Act which determine whether an employee is within the general coverage of the wage and hours provisions as an employee "engaged in (interstate or foreign) commerce." For this reason, the interstate commerce requirements of the FLSA Section 13 exemption are not necessarily met by establishing that an employee is "engaged in commerce" within the meaning of the Fair Labor Standards Act when performing activities as a driver, driver's helper, loader, or mechanic, where these activities are sufficient in other respects to bring him within the exemption.

        For example, employees of construction contractors are, within the meaning of  the Fair Labor Standards Act, engaged in commerce where they operate or repair motor vehicles used in the maintenance, repair, or reconstruction of instrumentalities of interstate commerce (for example, highways over which goods and persons regularly move in interstate commerce). Employees so engaged are not, however, brought within the exemption merely by reason of that fact. In order for the exemption to apply, their activities, so far as interstate commerce is concerned, must relate directly to the transportation of materials moving in interstate or foreign commerce within the meaning of the Motor Carrier Act. Asphalt distributor-operators, although not exempt by reason of their work in applying the asphalt to the highways, are within the exemption where they transport to the road site asphalt moving in interstate commerce. 29 C.F.R. § 782.7(a); see, e.g., Richardson  v. James Gibbons Co., 132 F.2d 627 (4th Cir.), aff’d, 319 U.S. 44.

        Highway transportation by motor vehicle from one state to another, in the course of which the vehicles cross the state line, clearly constitutes interstate commerce under both Acts in the view of the Department of Labor. Employees of a carrier so engaged, whose duties directly affect the safety of operation of such vehicles, have been held to be within the Motor Carrier Exemption. 29 C.F.R. § 782.7(b).

        The result has been the same where the vehicles do not actually cross state lines, but instead operate solely within a single state, if what is being transported is actually moving in interstate commerce within the meaning of both acts.  In the view of the DOL, the fact that other carriers transport it out of or into the state is not material, and transportation within a single state is in interstate commerce within the meaning of the Fair Labor Standards Act where it forms a part of a "practical continuity of movement" across state lines from the point of origin to the point of destination, whether or not it also considered a movement in interstate commerce within the meaning of the Motor Carrier Act.  Under the enforcement policy of the Department of Labor, the DOL generally assumes that such a movement in interstate commerce under the Fair Labor Standards Act is also a movement in interstate commerce under the Motor Carrier Act, except in those situations where the contrary has been held by the Interstate Commerce Commission, the Secretary of Transportation, or the courts, and the DOL normally assumes that the interstate commerce requirements of the Motor Carrier Exemption are satisfied where it appears that a motor carrier employee is engaged as a driver, driver's helper, loader, or mechanic in transportation by motor vehicle which, although confined to a single state, is a part of an interstate movement of the goods or persons being thus transported. 29 C.F.R. § 782.7(b).

        That DOL enforcement policy does not extend to drivers, driver's helpers, loaders, or mechanics whose transportation activities are "in commerce" or "in the production of goods for commerce" within the meaning of the act but are not a part of an interstate movement of the goods or persons carried. Where it has been authoritatively held that transportation of a particular character within a single state is not in interstate commerce as defined in the Motor Carrier Act (as has been done with respect to certain transportation of petroleum products from a terminal within a state to other points within the same state), the Motor Carrier Exemption does not apply, even though the facts may establish a "practical continuity of movement" from out‑of‑state sources through such in-state trip so as to make the trip one in interstate commerce under the Fair Labor Standards Act. 29 C.F.R. § 782.7(b).

         It should be noted that the Motor Carrier Exemption never applies to local transportation which is entirely in intrastate commerce. 29 C.F.R. § 782.7(b).

         The Interstate Commerce Commission has 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 the Interstate Commerce Act if the shipper has no fixed and persisting transportation intent beyond the terminal storage point at the time of shipment. The Commission specifically ruled that there is not fixed and persisting intent where: (1) 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, (2) the terminal storage is a distribution point or local marketing facility from which specific amounts of the product are sold or allocated, and (3) transportation in the furtherance of this distribution within the single State is specifically arranged only after sale or allocation from storage.  Accordingly, the DOL holds that employees engaged in such transportation are not subject to the Motor Carrier Act and therefore are not eligible for the Motor Carrier Exemption. 29 C.F.R. § 782.7(c)

         Such employees may, however, be engaged in commerce within the meaning of the Fair Labor Standards Act.  The wage and hours provisions of the Fair Labor Standards Act are applicable not only to employees engaged in commerce, as defined in the act, but also to employees engaged in the production of goods for commerce. Employees engaged in the "production" of goods are defined by the act as including those engaged in "handling, transporting, or in any other manner working on such goods, or in closely related process or occupation directly essential to the production thereof, in any state."  Where transportation of persons or property by motor vehicle between places within a state falls within this definition, and is not transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act because movement from points out of the state has ended or because movement to points out of the state has not yet begun, the employees engaged in connection with such transportation (this applies to employees of common, contract, and private carriers) are covered by the wage and hours provisions of the Fair Labor Standards Act and are not subject to the jurisdiction of the Secretary of Transportation. Examples provided by the DOL are:  

29 C.F.R. § 782.7(c). These and other employees engaged in connection with the transportation within a state of persons or property by motor vehicle who are subject to the Fair Labor Standards Act because they are engaged in the production of goods for commerce and who are not subject to the Motor Carrier Act because they are not engaged in interstate or foreign commerce within the meaning of that act, are not within the exemption provided by section 13(b)(1). 29 C.F.R. § 782.7(c); Hamlet Ice Co. v. Fleming, 127 F.2d 165 (4th Cir.).

 

Copyright Raymond L. Hogge, Jr. 1998