The Eighth Circuit Court of Appeals (covering Minnesota, North Dakota, South Dakota, Iowa, Missouri, Kansas, and Nebraska) recently reaffirmed that the United States Department of Transportation (DOT) — not the Department of Labor (DOL) — has jurisdiction to control the qualifications and maximum hours of service for certain employees of interstate motor carriers. Williams v. Central Transport International, Inc., Case 15-2201, (8th Cir. Ct. App. July 28, 2016) In many cases over the years, courts considered the interaction between the original 1935 Motor Carrier Act (which gave the DOT the power to govern such employees pre-empted) and the later 1938 Fair Labor Standards Act which requires overtime pay under certain circumstances, generally, for work over 40 hours per week. Several years after both acts, in 1940, the Supreme Court limited the DOT’s power over interstate motor carrier employees only if those employees’ activities affected the safety of the motor carriers’ operations. Importantly, a few years later, in 1943, the Supreme Court further explained the exemption that it applies whether or not the DOT actually does, or does not, issue rules regarding qualifications and maximum hours.
Of course, the DOT, and its motor carrier agency, the Federal Motor Carrier Safety Administration (FMCSA) have controlled drivers’ commercial motor vehicles quite extensively with maximum hours of service regulations for many years. In its roughest form, drivers may work no more than 60 hours in six days and no more than 70 hours in seven days. Period. There are a number of details and exceptions to those rules but that is the gist. DOT has no analogous regulation for overtime pay. None. It is well settled law that even if a driver works those maximum hours, she is not entitled to FLSA overtime because the DOT retains jurisdiction to set qualifications and maximum hours of service. In fact, if the driver works more than that, she is breaking the law. So, in the case of drivers of commercial motor vehicles, the DOT did what it is authorized to do. Unfair? Maybe. But it’s the law.
The more interesting situations, of course, are where there are no express DOT regulations regarding maximum hours of service for other motor carrier employees who “affect” the safety of the motor carrier’s operations. Such employees can include load planners, loaders, and mechanics. Despite the authority to do so, the DOT has never issued regulations regarding maximum hours of service for these types of motor carrier employees. But it could. Therefore, such employees who work long hours, frequently well over 40 per week, occasionally claim that they are entitled to overtime under the FLSA. The factual dispute then focuses on just how much that employee’s duties affect the safety of the motor carrier. For the most part, courts will engage in a fact intensive search to see how much of that employee’s work is, and how much isn’t, affecting safety on the road. The rule is that a “substantial” part of the employee’s work must be so safety related. Job titles are considered, but far from determinative. An employee who spends a substantial part of her time loading trucks and is responsible for proper securement of cargo would be exempt from the FLSA overtime provision no matter how many hours she worked. Conversely, an employee who takes direction from someone else on such duties, or just unloads trucks or pushes freight around the dock, would not be exempt from the FLSA and would be entitled to overtime. This can lead, sometimes, to employees legally being compensated very differently even though their jobs may be remarkably similar.
This recent Eighth Circuit opinion is unique in that it expressly ignores the DOL’s regulations which purport to require an employee to “exercise judgment and discretion” in loading because, as the Court says, the DOL has no authority to issue any regulations or opinions about what the DOT’s authority might be. In short, the DOL can’t issue a regulation to determine application of a DOT regulation or DOT jurisdiction.
And that is the takeaway for a motor carrier facing this type of situation. The opinion offers a small haven for employers who seek a regulatory exception from DOL regulation. When a DOL regulator, or a disgruntled employee, tells you that you are breaking some law or regulation, you don’t have to believe her. Although you might be technically “breaking” the law, remember that law may not apply to you. You need to be sure. As a famous professional wrestler once said, and I’m paraphrasing, it’s against the rules to choke your opponent for five seconds. That doesn’t mean, for a wrestler, all choking is against the rules. A wrestler can choke her opponent for four seconds. However, if you own a paint store you can’t choke your competitor, or your employees, at all. Are you a professional wrestler or paint store owner? Are you a motor carrier or not?
If you find yourself at odds with the DOL, give us a call.