This summary of recent motor carrier exemption case law was written by Jackson Lewis partner Jeff Brecher.
The motor carrier exemption is one of the original exemptions contained in the 1938 Fair Labor Standards Act. But seventy years later courts continue to clarify its contours. In just the past few months, several decisions have addressed the exemption—some addressing basic threshold issues and others addressing changes made by dizzying legislation passed between 2005-2008 affecting the exemption and its applicability. As a general proposition, the motor carrier exemption applies to employees who transport property in interstate commerce. But the devil is in the details.
The first case we discuss addresses a basic threshold issue: in determining whether a vehicle meets the 10,001 lb. weight requirement needed to establish the applicability of the exemption, does the weight include only the vehicle, or can it also include the trailer it is carrying? In Albanil v. Coast 2 Coast, Inc., 2011 U.S. App. Lexis 20842 (5th Cir. October 13, 2011), the Fifth Circuit held the combined weight is what counts.
A little background to understand why this dispute arose: from 1938 until August 10, 2005, the motor carrier exemption applied regardless of the weight of the vehicle. But after passage of SAFETEA-LU on August 10, 2005, the motor carrier exemption applies only to “commercial motor vehicles” (subject to a safe harbor provision extending coverage of smaller vehicles through August 10, 2006). A “commercial motor vehicle” is defined as a “self-propelled or towed vehicle used on the highways in interstate commerce to transport passengers or property, if the vehicle has a gross vehicle weight rating or gross vehicle weight of at least 10,001 lbs, whichever is greater (the definition also includes vehicles used to transport more than eight passengers or hazardous materials).
Plaintiffs were employed as “chippers” who were responsible for removing hardened concrete from the inside of concrete mixer drums and other enclosed spaces. They traveled in pickup trucks with a trailer and attached compressor. While the pickup truck and trailer each were less than 10,000 lbs, when combined, the total weight exceeded 10,000 lbs. Finding the statutory definition ambiguous, the Court relied on a Department of Transportation regulation, 49 C.F.R. § 390.5, defining a commercial motor vehicle to include the combined weight of the vehicle.
The Court also explained this construction was consistent with the purpose of the Motor Carrier Act, since it brought heavy vehicles within the jurisdiction of the Department of Transportation, making safety regulations applicable. The Court noted that that Plaintiffs’ construction would allow coverage of a pickup truck that was 10,001 pounds and a trailer that was 10,001 lbs., but not a pickup truck weighing 10,000 lbs towing a trailer weighing 10,000 lbs (20,000 lbs combined) even though such a vehicle implicates the same, if not greater, safety concerns. Because it was undisputed the combined weight of the vehicles exceeded 10,001 lbs, the Court affirmed the grant of summary judgment.
Two cases, one decided in September and the other October, address another basic threshold issue—under what circumstances does the exemption apply to “loaders”? In Lewis v. Eskridge Trucking, Co., Inc., 2011 U.S. App. Lexis 20476 (11th Cir. October 6, 2011), the Eleventh Circuit held an employee who was responsible for filling trailers with wood shavings and ensuring that the loads were balanced, weighing the trailers, and inspecting them for maintenance, was a loader covered by the exemption, and therefore affirmed the grant of summary judgment to the employer. The Court held that while the motor carrier exemption is most often applied to drivers of motor vehicles, it also applies to “loaders”—employees who duties include the proper loading of motor vehicles so that they may be safely operated on the highways and who exercise 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.
Similarly, in Graham v. Town & Country Disposal of Western Missouri, Inc., 2011 U.S. Dist. Lexis 106798 (W.D. Mo. September 20, 2011), the Court found plaintiffs who worked as “throwers,” responsible for loading garbage trucks with trash, were also exempt under the motor carrier exemption as “loaders” since they too exercised discretion and judgment in placing, distributing, and securing trash in such a manner to permit the safe operation of the vehicles on the road, and granted summary judgment to the employer.
Finally, in Johnson Jr. v. Hix Wrecker Service, Inc., 651 F.3d 658 (7th Cir. 2011), the Seventh Circuit addressed the issue of when the exemption applies to employees who travel only intermittently in interstate commerce. The Court adopted a “four-month” rule, set forth by the Department of Transportation, but reversed the grant of summary judgment to the employer finding the evidence submitted was insufficient to satisfy the employer’s burden of proving the applicability of the exemption.
Relying on a 1981 Notice of Interpretation issued by the Department of Transportation, the Court held that for the motor carrier exemption to apply, the carrier must be shown to have engaged in interstate commerce within a reasonable period of time prior to the time at which jurisdiction is in question, and if jurisdiction is claimed over a driver who has not driven in interstate commerce, evidence must be presented that the carrier has engaged in interstate commerce and that the driver “could reasonably have been expected to make one of the carrier's interstate runs”. Adopting the Notice of Interpretation, the Court held that evidence of driving in interstate commerce or being subject to being used in interstate commerce should be accepted as proof that the driver is subject to jurisdiction of the Department of Transportation for a 4-month period from the date of the proof.
In this case, however, the Court held the evidence submitted by the employer (an affidavit) was “inconclusive and ambiguous” regarding the extent to which the employer engaged in interstate commerce prior to the time in which it sought to rely on the exemption or that the employee was “subject to begin used in interstate commerce”, and therefore summary judgment was improper.
While these cases add some clarity to the application of the motor carrier exemption, they highlight that this exemption, even though it has been part of the FLSA since 1938, still has many twists and turns that must be navigated. Further, as with all exemptions, employers also must analyze applicable state law to ensure the exemption is applicable under state law, with or without any tangents.
