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Truck Drivers and Overtime

             Because of little known change to in the law, many of these drivers of “commercial motor vehicles” must now be paid an overtime premium. The Fair Labor Standards Act of 1938 (the “FLSA”) Motor Carrier Exemption historically exempted from the overtime requirement most truck and bus drivers who transported property or passengers in interstate commerce.  Drivers engaged in intrastate transportation of goods were also exempted if the transportation was part of a “practical continuity of movement in the flow of interstate commerce.”[1]  As a result, employers had not been required to pay many drivers overtime when they worked more than 40 hours in a week. 

            Prior to August 10, 2005, thousands of employees who transported property in personal vehicles and small vans could be properly classified as exempt from the overtime requirements of the FLSA. Motor Carrier Exemption applied to drivers who met the 3-part Motor Carrier Exemption test.  Under the test it was not relevant whether an employee transporting property was driving a commercial vehicle, a small truck, or other vehicle, because the definition of “motor carrier” and “motor private carrier” did not contain weight limitations.[2]            

            The enactment of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy For Users (SAFETEA-LU) in 2005 had significant, but until now, little understood collateral effect on the Motor Carrier Exemption.  Only recently recognizing the implications of SAFETEA-LU, the U.S. Department of Labor issued guidance advising the public about the changes and its interpretation of the revised Motor Carrier Exemption.[3]  

            Under SAFETEA-LU, the term “commercial motor vehicle” applies only to a) vehicles with a gross weight of at least 10,001 pounds, b) vehicles designed to transport more than eight passengers for compensation, c) vehicles designed to transport more the fifteen passengers not for compensation, or d) vehicles used to transport hazardous materials.[4] 

             As a result, an entire class of vehicles, which had previously been considered commercial vehicles, no longer meets this definition.  In its new form, the Motor Carrier Exemption applies to employees who drive “commercial motor vehicles,” effectively disqualifying drivers of smaller vehicles from the Motor Carrier Exemption.  For example, a driver using a small delivery van with a gross weight of under 10,000 to deliver goods across state lines is no longer exempt from the overtime requirement, because she now operates a vehicle not subject to regulation under the Motor Carrier Act. 

            It appears that Congress did not intend for the amendments to the Motor Carrier Act to affect the FLSA Motor Carrier Exemption.  There are indications that Congress will attempt to enact corrective legislation.  Nevertheless, drivers of smaller vehicles that do not meet the definition of “commercial motor vehicle” should no longer be considered exempt from overtime pay. 

            Clients should immediately begin tracking and recording hours worked, and comply with overtime and other record keeping requirements of the FLSA, as well as any applicable state regulation.

  

2/15/08

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

   

GC Defamation Suit Against

Union Attorney Lays an Egg

----------------------------------

Tile Workers Lawyer Covered

by Special Privilege

 

            There has been another state court ruling on alleged union torts; this one found no liability.

            Kevin Atkinson worked for Dobbins Group as a site superintendent at a project at Fort Sheridan.  Dobbins had subcontracted floor installation to Polco Flooring, a nonunion subcontractor, and Local 67 of the Tile Installers Union picketed the site in July 2003.  During the occasions when picketers were present Atkinson confronted them, particularly the business agent.  Although he claimed they were obstructing workers the picketers claimed that he threw their drinks and food on the ground, insulted them, stabbed their inflatable rat to deflate it, and otherwise harassed them.  On July 28 Atkinson was arrested, and shortly thereafter Frank Marco, union counsel, wrote a letter to Dobbins Group.

            Seeking reimbursement for the damage to union property, Marco’s letter advised that “your employee Kevin Atkinson…as your superintendent, ….has destroyed and damaged property belonging to our local.”  The letter went on to threaten litigation, but a third party covered the cost of the damage. 

            An appellate court has upheld the dismissal of a subsequent defamation claim by Atkinson against individual union officials, including the business agent present during the picketing.   Kevin Atkinson v. Ralph Affronti, et al, No. 1-05-3992 (1^st Dist. Dec. 2006).  Such a letter “is absolutely privileged to public defamatory matter concerning another in communications preliminary to a proposed judicial proceeding,” the court ruled.  An attorney must be free to “candidly and zealously represent his client in communications to potential opposing parties in litigation or other proceedings,” without the potential dangerf legal exposure because of his efforts.

            Atkinson had argued that the privilege should not apply when such a communication is made in bad faith, but the court ruled that the privilege was absolute.

 

1/23/07