Must We Pay Our Drivers Overtime?

Commercial motor vehicle drivers who are subject to the federal motor carrier hours of service requirements in 49 CFR Part 395 are exempt from the overtime requirements of the federal Fair Labor Standards Act (FLSA). The FLSA provides an exemption from the overtime requirements (but not the minimum wage requirements) of the Act 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 31502 of Title 49 U.S.C.”

In 1981, DOT issued an interpretation of its jurisdiction to regulate driver qualifications and hours of service of drivers engaged in interstate or foreign commerce for purposes of invoking the motor carrier exemption from the FLSA. The DOT concluded that a driver who is called on, or who is subject to being called on, to drive in interstate commerce as part of the driver’s regular employment is subject to DOT’s jurisdiction.

This jurisdiction applies even if the driver has not personally driven in interstate commerce if, because of company policy and activity, the driver could reasonably be expected to do interstate driving. For example, in one case, a court said that a driver was not exempt from the FLSA because he was available for interstate hauls, even though he had never made an interstate run and only two percent of the carrier’s total operations were interstate. In another case, a court stated that employees were not subject to DOT safety jurisdiction because they could not reasonably be expected to handle an interstate run in the normal performance of their duties.

In 2000, the Federal Motor Carrier Safety Administration revised the 1981 interpretation to institute a 14/15-day rule, as follows:

Any driver who begins a trip in interstate commerce must continue to meet the requirements of 49 CFR 395.3(a) and (b) through the end of the next seven to eight consecutive days, depending on which rule the motor carrier operates under. The driver must continue to comply with the requirements of 49 CFR Part 395, even if he/she operates exclusively in intrastate commerce for the remainder of the 60/70-hour period (i.e. seven to eight day schedule) at the end of the interstate trip. The driver must also continue to comply with the 10- and 15-hour rules as well as the 60- or 70-hour rules for the remainder of that day, and the following seven days (if the 60-hour rule was applicable) or eight days (if the 70-hour rule was applicable). A driver who begins a trip in interstate commerce in a CMV must have in his/her possession a copy of records of duty status for the previous seven consecutive days, as required by 49 CFR 395.8(k)(2) unless they meet 49 CFR 395.1(e), even if the driver operated only in intrastate commerce during that seven-day period. During the seven-day period prior to the interstate trip, the driver may follow the state regulations applicable to intrastate commerce with regard to the states’ CMV driving and on-duty requirements. FMCSA investigators should cite drivers for violations of the 10- or 15-hour rules or the 60- or 70-hour rules that are committed while on the interstate trip or during the seven or eight days after completing the interstate trip (depending on which rule the motor carrier operates under). The driver remains subject to Part 395 for seven or eight days after a trip in interstate commerce even if he/she drives only in intrastate commerce for that period. Thus, a CMV driver who operates a vehicle across state lines becomes subject to the Federal Motor Carrier Safety Regulations when the driver begins the trip in interstate commerce. The driver is then subject to the FMCSRs for the seven-day period prior to the trip (for purposes of hours of service requirements) and for either seven or eight days after the trip is ended, depending on whether the carrier uses a seven or eight-day week for hours of service purposes. Such drivers would be exempt from the FLSA overtime provisions for the period that they were subject to DOT’s jurisdiction under the 14/15-day rule.

Those drivers who operate solely within a single state are not subject to the FMCSA’s jurisdiction under 49 U.S.C. § 31502 and are therefore not covered by the motor carrier exemption to the overtime provisions of FLSA under 29 U.S.C. § 213(b)(1), however. But federal overtime rules do not supersede state laws, and state overtime rules might apply even if the driver is exempt under FLSA.

Gases and Welding Distributors Association
Meet the Author
GAWDA’s Government Affairs and Human Resources Legal Consultant Richard P. Schweitzer, Esq., is president of Richard P. Schweitzer, PLLC in Washington, D.C. Members can reach him at 202-223-3040 and rpschweitzer@rpslegal.com.