This month’s expert is Laura E. Innes, Esq.,
with the law firm of Simpson, Garrity & Innes, PC, in
As explained last month in the first of this two-part series on
the motor carrier overtime exemption, most of the California Wage Orders exempt
two types of truck drivers from overtime: 1) those who drive in interstate
commerce; and 2) those who drive trucks of a certain size. Last month, I
untangled the complexities of the interstate commerce provision. Here, in Part
2, I detail which drivers qualify for the motor carrier exemption based on
truck size. I also shed light on the types of duties, in addition to driving,
that qualify for the motor carrier exemption in general.
Truck Size
The truck-based exemption applies to drivers whose hours of
service are governed by the California Code of Regulations, Title 13,
Subchapter 6.5, Section 1200 and the sections that follow. These regulations
cover drivers’ hours of service and apply only to operating vehicles that are
listed in California Vehicle Code Sections 34500 and 34500.1. These vehicles
include:
1. motor trucks of three or more axles weighing 10,000 pounds (or
more) gross vehicle weight rating
2. any commercial vehicle with a gross weight rating of 26,001
pounds (or more) and other vehicles the code specifically defines
Thus, this exemption rests on relatively straightforward questions
about the vehicles’ size—their number of axles and weight. Drivers of these
vehicles are exempt from daily and weekly overtime under
overtime exemption based on a vehicle’s size is not available under federal
law. Thus, weekly overtime (more than 40 hours per week) may apply, even though
the state doesn’t require daily overtime for those drivers of large vehicles.
Which Duties Are Exempt?
Regardless of whether the motor carrier exemption for a driver is
based on truck size or because he or she drives in interstate commerce (as
discussed in Part 1 last month), an important question arises: Which duties are
encompassed in the motor carrier exemption? Drivers may do much more than
simply provide service behind the steering wheel. For example, if the driver of
a three-axle truck weighing more than 10,000 pounds spends a good chunk of time
assisting with loading or doing safety checks, are those other duties also
exempt?
On-duty time for drivers is defined in federal regulations as ‘All time from the time a driver begins to work, or is required to be in readiness to work, until the time he or she is relieved from work and all responsibility for performing work’
On-duty time (that is, time that qualifies for the motor carrier
exemption) for drivers is defined in federal regulations as “All time from the
time a driver begins to work, or is required to be in readiness to work, until
the time he or she is relieved from work and all responsibility for performing
work.” The regulations further clarify that on-duty time encompasses a range of
tasks besides time behind the wheel, including many duties incidental to
driving, as follows:
• all time at a carrier or shipper plant, terminal, facility, or
other property, or on any public property, waiting to be dispatched, unless the
motor carrier has relieved the driver of duty
• all time the driver spends inspecting, servicing, or conditioning
the vehicle
• all time, other than driving time, in or on any motor vehicle
while working, except time spent resting in a sleeper berth
• all time loading or unloading a vehicle, supervising or
assisting in the loading or unloading, attending a vehicle being loaded or
unloaded, remaining ready to operate the vehicle, or giving or receiving receipts
for loaded or unloaded shipments
• all time complying with driver requirements relating to
accidents
• all time repairing, obtaining assistance, or remaining in attendance
in or about a disabled vehicle while on the job
• all time spent providing a breath sample or urine specimen,
including travel time to and from a collection site, to comply with drug
testing requirements
• all time spent performing any other work in the capacity of, or
in the employ or service of, a common, contract, or private motor carrier
• all time spent performing any compensated work for any
non-motor-carrier entity
One additional point to keep in mind: If an employee works in an
exempt motor carrier role and
in a nonexempt role (such as a general warehouse
worker who also drives), you might have to pay overtime. Overtime would be due
if the employee is working in the nonexempt role during an hour that is an
overtime hour. But if the employee is working in the exempt driver role during
an hour that would be an overtime hour, no overtime is due.
Paying Overtime: 10 Key Exemption Concepts
Only one thing really matters in the determination as to whether or not an employee is exempt: The duties the employee performs. Learn how to avoid costly, preventable mistakes with our free White Paper, Paying Overtime: 10 Key Exemption Concepts.
Two-Part Test
In summary, when the
issue of the motor carrier overtime exemption for drivers comes up, consider these
two factors to decide whether a driver qualifies as exempt: 1) whether the
driver could reasonably be expected to drive to deliver goods in interstate
commerce (or a leg of interstate commerce); and 2) the vehicle’s size.