Section 207 of the FLSA requires that employees be paid overtime wages of time and one-half for hours worked in excess of 40 hours in a workweek. Employers may also be required to pay truck drivers for overtime. However, a so-called “13(b)(2) exemption,” also known as the “MCA Exemption”, may apply to some employees who are part of a “pool of drivers” who may be called to make out-of-state trips within a given period of time. If a member of the pool of drivers makes a trip across state lines, the exemption from paying overtime wages may apply, but only for a 4-month period, and after that the exemption has historically been applied to reset. Thus, if another interstate run is not made within a 4-month period, and the exemption period is not re-set, then the employer may be obligated to pay overtime to the pool of drivers. 

Whether the exemption applies may be a fact intensive inquiry. Employers may use methods such as requesting employees sign an acknowledgement of receipt of the application of the “13(b)(1) exemption”, signing forms at the time they are hired. However, just because the employee signs the form, does not mean that the exemption necessarily applies, especially if the employer’s so-called “pool of drivers” are not actually making the required out-of-state runs. If they are not, a given group of employee-drivers may have a good claim against their employer for failure to pay overtime, including attorney fees and costs. If you are a driver who has not received payment for overtime, CONTACT REAMS LAW at (405) 285-6878 to discuss your rights and options. 

Section 13(b)(1) exempts employees from overtime with respect to those 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 (MCA) of 1935. 

The Motor Carrier Exemption is commonly referred to as the “13(b)(1) exemption,” from section 213(b)(1) of the FLSA:

“The provisions of section 207 of this title shall not apply with respect 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;…”

Regulations provide:

“It is not material whether such qualifications and maximum hours of service have actually been established by the Secretary of Transportation; the controlling consideration is whether the employee comes within his power to do so. The exemption is not operative in the absence of such power, but an employee with respect to whom the Secretary of Transportation has such power is excluded, automatically, from the benefits of section 7 of the Fair Labor Standards Act.” 29 CFR 782.1(a)

Section 204 of the MCA, states that “Other provisions… confer regulatory powers with respect to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce . . . and reserve to each State the exclusive exercise of the power of regulation of intrastate commerce by motor carriers on its highways;” Thus, when drivers are driving only intrastate, within a given state, the MCA exemption may not apply to them, and a given driver working more than 40 hours per week may be entitled to receive overtime wages. If they do not, they may be entitled to make an claim for unpaid overtime.

Regulations further state at 29 CFR 782.2(a):

“The power of the Secretary of Transportation to establish maximum hours and qualifications of service of employees, on which exemption depends, extends to those classes of employees and those only who: (1) Are employed by carriers whose transportation of passengers or property by motor vehicle is subject to his jurisdiction under section 204 of the Motor Carrier Act. His jurisdiction over private carriers is limited by the statute to private carriers of property by motor vehicle, as defined therein, while his jurisdiction extends to common and contract carriers of both passengers and property.”

Thus, if an employer’s drivers are making interstate trips, they may come within the jurisdiction of the Secretary of Transportation (DOT), and qualify for the 13(b)(1) exemption from overtime.

The Wage and Hour Division of the Department of Labor has used a Field Operation Handbook, which details the Division’s policies and guidelines to investigators. Chapter 24 of the Field Operation Handbook provides in part:

2401(a) – “DOT has held that drivers, driver’s helpers, loaders and mechanics engaged in activities which directly affect the safe operation of motor vehicles in interstate commerce will be subject to its jurisdiction under section 204 of the Motor Carrier Act. This applies to such employees who are employed by a common carrier, or private carrier which has engaged in the interstate transportation of goods. In the case of a common carrier that has solicited interstate transportation business pursuant to a valid Interstate Commerce Commission certificate, it would not be necessary to have actually engaged in the interstate transportation of goods.”

2401(b) – “Where a driver or driver’s helper has not made an actual interstate trip, or a loader or mechanic has not been working on an interstate shipment or vehicle which has been utilized in such a shipment, they may still be subject to DOT’S jurisdiction, if: (1) the carrier is shown to have an involvement in interstate commerce and (2) It can be established that the driver or driver’s helper could have, in the regular course of his/her employment, been reasonably expected to make one of the carrier’s interstate runs or, in the case of a loader or mechanic, could have been reasonably expected to perform as such in the carrier’s interstate activity.

Satisfactory evidence of the above could take the form of statements from the carrier’s employees, or documentation such as employment agreements. Where such evidence is developed with regard to an employee, DOT will assert jurisdiction over that employee for a 4-month period beginning with the date they could have been called upon to, or actually did, engage in the carrier’s interstate activity. Thus, such employees would be exempt under section 13(b)(1) for the same 4-month period, notwithstanding references to the contrary contained in 29 CFR 782.2.”

The Wage and Hour Division of the Department of Labor has interpreted and applied its Handbook to exempt drivers when evidence shows that: (1) there was a pool of drivers who could reasonably have been called to make cross-state-lines (interstate) trips in their work and (2) at least one driver from the pool of drivers has made an out-of-state trip during a particular 4-month period.

Such evidence of a pool of drivers, to whom exemption may apply, would come from the employer, drivers, customers, receipt and other sources, like trip tickets, invoices, work orders, notes, photographs, statements, texts, emails and other sources. Thus, according to the empirical interpretation of the 13(b)(1) exemption, a given driver who is part of a such a pool of drivers is not necessarily required to have personally made an interstate trip, across state lines, as long as they could have been called upon to do so during their employment. However, once the exemption is triggered, the 4-month exemption is reset for the pool of drivers when a driver from the pool makes an out-of-state run.

Ultimately, depending on whether a dispute is in court or part of an investigation by the Department of Labor, or both, a judge or the Wage & Hour Division would decide which rules to apply and whether competent evidence supports an employer’s application of an exemption.

Also, according to the Corrections Act of 2008, there is a so-called “small vehicle” exception to the exemption, which provides that it does not apply to drivers of vehicles less than 10,000 pound:

“Section 7 of the Fair Labor Standards Act… shall apply to a covered employee notwithstanding section 13(b)(1) of that Act,” including the definition, “a covered employee is an employee of a motor carrier whose job “in whole or in part” affects the safe operation of vehicles lighter than 10,000 pounds, except vehicles designed to transport hazardous materials or large numbers of passengers.”

As one can see, whether an exemption for overtime applies to a given driver or pool of drivers can be a detailed legal and factual analysis. Hiring an attorney to address such questions is an important decision. If you are a driver who has not been paid overtime, contact REAMS LAW at (405) 285-6878 to discuss your rights. Be advised that, depending on the jurisdiction and facts of each case, the statute of limitations (limitation on the time for you to make a claim for overtime) may be as short as two (2) years. So, time is of the essence for employees to pursue overtime claims. Do not delay. Contact REAMS LAW now.