Wage and Hour Defense Blog

Wage and Hour Defense Blog

There Are 50 States – and Epstein Becker Green’s Free Wage-Hour App Has Them All

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Wage & Hour Guide for Employers AppMany of our clients have downloaded our free, first-of-its-kind Wage & Hour Guide for Employers app, available for Apple, Android, and BlackBerry devices.

We have just updated the app, and the update is a significant one.

While the app originally included summaries of federal wage-hour laws and those for several states and the District of Columbia, the app now includes wage-hour summaries for all 50 states, as well as D.C. and Puerto Rico.

Now, more than ever, we can say that the app truly makes nationwide wage-hour information available in seconds. At a time when wage-hour litigation and agency investigations are at an all-time high, we believe the app offers an invaluable resource for employers, human resources personnel, and in-house counsel.

Key features of the updated app include:

  • New summaries of wage and hour laws and regulations are included, including 53 jurisdictions (federal, all 50 states, the District of Columbia, and Puerto Rico)
  • Available without charge for iPhoneiPad, Android, and BlackBerry devices
  • Direct feeds of EBG’s Wage & Hour Defense Blog and @ebglaw on Twitter
  • Easy sharing of content via email and social media
  • Rich media library of publications from EBG’s Wage and Hour practice
  • Expanded directory of EBG’s Wage and Hour attorneys

If you haven’t done so already, we hope you will download the free app soon.  To do so, you can use these links for iPhoneiPad, Android, and BlackBerry.

Court of Appeals Restores DOL Regulation Barring Third-Party Employers from Claiming Exemptions for Companionship and Live-In Domestic Service Workers

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Reversing a decision by the United States District Court for the District of Columbia, an August 21, 2015 decHomeHealthision by the Court of Appeals for the District of Columbia Circuit in Home Care Association of America v. Weil (pdf) has approved a regulation by the United States Department of Labor (“DOL”) extending federal minimum wage and overtime protections to home care workers and live-in domestic service employees employed by third parties.

We previously wrote about the decision by the District Court for the District of Columbia that vacated a DOL regulation that had been scheduled to go into effect January 1, 2015. The regulation would have eliminated a long-existing prior regulation and would have barred third-party employers from claiming minimum wage and overtime exemptions for “companionship” domestic service workers and live-in domestic service employees. The same court later also vacated a new, narrower definition of “companionship services.”

The D.C. Circuit thoroughly rejected the district court’s analysis and held that under the Supreme Court’s decision in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007), the question of whether to include workers paid by third parties within the scope of the statutory exemptions for companionship series and live-in domestic service employees was within the discretion of the DOL under its general grant of authority to promulgate implementation regulations.

The D.C. Circuit further found that the new, narrower construction of the statutory exemption was appropriate and consistent with a Congressional intention to include within FLSA coverage employees whose vocation is domestic service, rather than the type of assistance provided by a neighbor or an “elder sitter,” and that this construction was not arbitrary and capricious because DOL justified its shift in policy based on the changes in the industry since the prior regulation issued in 1975.

Finally, the D.C. Circuit rejected arguments that the new regulation would make home care less affordable and create an incentive to re-institutionalize the elderly and disabled, in particular relying on a lack of evidence that this had occurred in states that already had minimum wage and overtime projections for third party-employed home care workers.

Home health care providers already work on narrow margins and typically cannot recover overtime costs from the Medicare, Medicaid or other government program that pay for most of their services only at a flat hourly rate (which sometimes does not reflect recent increases in state and local minimum wages). Providers in states where the exemption was previously available will now have to absorb the costs of any overtime pay. In many cases, this will mean changing schedules to limit to the number of hours a home health care provider works  (thereby causing a reduction in the provider’s income rather than an increase) and hiring additional staff (with attendant additional administrative costs) to cover the hours that a single provider previously worked. This may also be be disruptive to the persons receiving the services, who may prefer having the same persons come every day, rather than multiple providers.

If no further review is sought, the previously vacated regulations could go into effect as early as September 21, 2015. Accordingly, home health providers should begin planning for this transition now. Note, however, that a petition for rehearing or for hearing en banc would delay effectiveness until two weeks after the petition is ruled upon. Also, if review is then sought before the Supreme Court, a stay may be sought. It is also possible that DOL will announce some type of transitional limited enforcement policy, similar to the policy it previously announced (pdf) of not bringing enforcement actions for the first six months of 2015 and exercising “prosecutorial discretion” in the next six months based on the extent to which there had been good faith efforts to bring home care programs into compliance. Home health providers should watch for DOL pronouncements in this regard.

Second Circuit Holds FLSA Cases Cannot Be Settled Without Court Review

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On August 7, 2015 the Second Circuit held that parties cannot enter into private settlements of Fair Labor Standards Act (“FLSA” or the “Act”) claims without  the approval of either the district court or the Department of Labor. Cheeks v. Freeport Pancake House, Inc., No. 14-299 (2nd Cir. 2015).

Although other circuits are split on the issue of whether pre-suit agreements to settle FLSA claims are enforceable, this is the first appellate decision to address the issue of whether judicial approval is required to terminate an FLSA lawsuit once it has been filed. See Lynn’s Food Stores, Inc. v. US., 679 F. 2d 1350 (11th Cir. 1982); Martin v. Spring Break’83 Productions, LLC, 688 F. 3d 247 (5th Cir. 2012). Despite holding that district courts must approve the settlement, the court expressed no opinion regarding “what the district court must consider in deciding whether to approve the putative settlement.”

Unlike most causes of action, which may be settled merely by filing a stipulation of dismissal, courts apply extra scrutiny to FLSA settlements to prevent workers from waiving the protections of the Act. To ensure workers maintain their rights under the FLSA, courts will only enforce FLSA settlements if the settlement amount is for the full amount claimed, or if less, there is “a bona fide dispute between the parties” regarding the amount owed. See Brooklyn Savings Bank v. O’Neil, 324 13 U.S. 697 (1945) and D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946).

The court rested its holding on the argument that judicial approval was necessary to ensure that private settlements furthered the policy goals underlying the Act. The concern is that plaintiffs may agree to compromise settlement amounts that do not achieve the goal of deterring employers from violating the Act.

Plaintiffs in need of immediate cash may value an immediate settlement at a discounted amount over the potential for a larger judgment at some future date. Although this resolution may be agreeable to both parties, it does not achieve the goal of preventing employers from deriving a competitive advantage by violating the Act.

In dicta, the decision went on to add that “to prevent abuses by unscrupulous employers, and remedy the disparate bargaining power between employers and employees” courts must scrutinize settlement agreements to ensure “employee protections, even where the employees are represented by counsel.”

Other than seeking court approval of all settlement agreements resolving cases with FLSA claims, it remains to be seen how this decision will be used in litigation. Employers should pay particular attention as to whether judges reserve their role to ensuring that the settlement resolves a bona fide dispute, or whether they instead use their power to second guess plaintiff’s counsel and demand more favorable settlement terms.

A question that remains unanswered is whether the federal courts will defer to a decision of an arbitrator in resolving FLSA claims.

The Department Of Labor Addresses Independent Contractor Misclassification And Concludes That “Most Workers Are Employees”

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The Administrator of the Wage Hour Division of U.S. Department of Labor has issued an Administrator’s Interpretation of the FLSA’s definition of “employ.” And the conclusion is one that not only could have a significant impact on the way companies do business, but lead to numerous class and collective actions alleging that workers have been misclassified as independent contractors.

Addressing the misclassification of employees as independent contractors, the Administrator’s Interpretation notes that the FLSA’s defines the term “employ” as “to suffer or permit to work.” Based on that definition, the DOL concludes that “most workers are employees.”

The Interpretation cites to the six-factor “economic realities” test the DOL applies as indicia of employment, but emphasizes certain aspects of that test.  Notably, the Administrator states that the goal of the “economic realities” test is to determine whether a worker is “economically dependent” on the alleged employer, or is really in business for himself or herself.

1.  Is the Work an Integral Part of the Employer’s Business?

The Administrator’s Interpretation emphasizes that a workers’ duties are likely to be an “integral part” of an employer’s business if they relate to the employer’s core products or services.

For example, the Interpretation cited to the Seventh Circuit’s decision in Secretary of Labor v. Lauritzen, a self-described “federal pickle case” in which the issue was “whether the migrant workers who harvest the pickle crop of defendant … are employees … or are instead independent contractors….”

Summarizing the point, the Administrator’s Interpretation quoted the Seventh Circuit’s statement in that case stating that it “does not take much of a record to demonstrate that picking the pickles is a necessary and integral part of the pickle business. . . .”

2.  Does the Worker’s Managerial Skill Affect the Worker’s Opportunity for Profit or Loss?

The Administrator’s Interpretation emphasizes that the opportunity for profit or loss reflects independent contractor status only when it is dependent on managerial skill.

By contrast, the Administrator opines that the fact that a worker that can increase his or her earnings by working longer hours is not evidence that the worker is an independent contractor

3.  How Does the Worker’s Relative Investment Compare to the Employer’s Investment?

Previously, the DOL had stated that the relative investment of a worker “compared favorably” if the investment was substantial and could be used for the purpose of sustaining a business beyond the particular job or project the worker was performing.

While these factors are mentioned in the new guidance, the Administrator’s Interpretation appears to place greater emphasis on a comparison of the investments of the worker and the potential employer.  The Administrator opines that even if a worker has made an investment, that investment has to be significant when compared to the investment of the purported employer.

4.  Does the Work Performed Require Special Skill and Initiative?

The Administrator’s Interpretation asserts that it is a worker’s business skills as an independent business person, not his or her technical skills, that support independent contractor status.

The Administrator states that only skilled workers who operate as independent businesses, as opposed to being economically dependent on a potential employer, are independent contractors.

5.  Is the Relationship between the Worker and the Employer Permanent or Indefinite?

The DOL’s prior Fact Sheet on independent contractor status stated that the absence of a permanent relationship may not suggest independent contractor status when arising from “industry-specific factors” or the fact that the potential employer “routinely uses staffing agencies.”

The Administrator’s Interpretation adds to this opinion by opining that the finite nature of an independent contractor relationship should be the result of the worker’s “own business initiative.”

Thus, an employer who imposes limits on the duration of its independent contractor relationships should consider whether that policy will continue to have the desired results.

6.  What is the Nature and Degree of the Employer’s Control?

The Administrator’s interpretation emphasizes that an independent contractor must control “meaningful aspects” of the work demonstrating that the worker is conducting his or her own business.  However, the Interpretation does not specifically explain what aspects of a job are “meaningful.”

The Administrator does make clear that flexible work arrangements are common forms of employment.  Therefore, the Interpretation concludes the fact that an individual works from home or controls the hours of work is not particularly indicative of independent contractor status.

While the Administrator’s Interpretation does not have the force of law (or regulation), it will be applied by the DOL and may be given deference by courts.  Accordingly, employers should evaluate the extent to which they are relying on criteria addressed by the Administrator (such as flexible work arrangements and relationships of finite duration) as justification for classifying workers as independent contractors.

 

Seventh Circuit Finds Window Washers Exempt From Overtime As Commission Paid Employees

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Most of us don’t think of window washers on high rise buildings as employees who qualify for an exemption from overtime pay.  But under an unusual set Clear blue skyof facts, this is precisely what the Seventh Circuit Court of Appeals held in Alvarado v. Corporate Cleaning Services, Inc., 782 F.3d 365 (7th Cir. 2015).

Corporate Cleaning Services (“CCS”) provided window washing services to high rise buildings.  When it received an order for a window washing job, it calculated a number of points, based on the job’s complexity and the number of hours estimated to complete it, to determine the price to charge the customer.  It also used that number of points to determine employees’ pay.  Generally, each window washer received the same number of points, and those points were multiplied by a rate specified in the collective bargaining agreement with the union to determine the amount each employee was paid for the job.  Employees worked primarily in the warmer months and were paid $40,000 to $60,000 per year.

Although the company called this compensation system a “piece rate” system, the Court found the company’s label was not determinative, and the employees actually were paid on a commission basis.  Under 29 U.S.C. §207(i), certain commission paid employees need not be paid time and one half for hours worked over 40 in a work week if they meet three requirements: (1) their regular pay is more than one and one half times the federal minimum wage; (2) more than half their compensation for a representative period of time (not less than one month) represents commission on goods or services; and (3) they are employed by a retail or service establishment.

There appeared to be no dispute that the plaintiffs received more than one and one half times the federal minimum wage, and the Court found that the plaintiffs were paid on a commission basis because they were paid only if there was a sale of window washing services to the public.  The Court had no difficulty in concluding that CCS was a “retail or service establishment”  because it sold its window washing services to building owners and managers who were the ultimate customers—they did not resell the window cleaning services.

Because the window washers met all three requirements for the overtime pay exemption for commissioned paid employees, the Court concluded they were not entitled to overtime pay.

The Court made some interesting observations about commission paid employees.

Work paid on a commission basis involves irregular hours of work, according to the Court.  An employee paid by the sale is not a commission paid worker if his sales are made at a uniform rate, such as one sale each hour.  Because the ratio of his hours of work to his pay is constant, that employee is effectively an hourly paid employee.

The CCS window washers necessarily worked irregular hours because they could not work in high winds, rain, snow, sleet and freezing temperatures.  While many of the workers took long vacations during the winter, they often worked more than eight hours a day during the other three seasons.  Because, among other factors supporting the commission exemption, the window washers could not count on working 40 hours per week for the entire year, the Court reasoned that the employer was exempt from the requirement of paying time and a half for overtime hours.

New Second Circuit Opinion Provides Guidance for Employers with Unpaid Interns

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On July 2, 2015, the U.S. Court of Appeals for the Second Circuit reversed a federal district court decision that held that unpaid interns should have been classified and paid as employees under both the federal Fair Labor Standards Act (“FLSA”) and the New York State Labor Law. Glatt v. Fox Searchlight Pictures, Inc., Nos. 13-4478-cv, 13-4481-cv (2d Cir. July 2, 2015). The Second Circuit’s decision provides valuable guidance to employers with unpaid interns.

In the case, the Second Circuit noted the U.S. Department of Labor’s (“DOL’s”) 1967 and 2010 informal guidance on “trainees” and “interns” respectively, and specifically the DOL’s six-part test regarding the “intern” exception to the definition of “employee” under the FLSA. The Second Circuit found the factors considered by the DOL to be useful, but expressly declined to defer to the DOL’s guidance requiring that ALL six parts be met to find non-employee status. Further, the Second Circuit stated that, unlike court deferral to an agency’s interpretation of its own statute or regulation, the DOL here was interpreting the Supreme Court’s decision in Walling v. Portland Terminal Co., 330 U.S. 148 (1947) and had no special expertise in interpreting court decisions.

As to the merits of the intern issue, the Second Circuit said that the DOL and the courts should weigh all the factors addressed in Portland Terminal and additional factors and consider the totality of the circumstances. Most importantly, the Second Circuit said, the district courts should focus on whether the company or the intern was the “primary beneficiary” of the relationship. In this regard, the Second Circuit suggested that the following seven non-exclusive factors be considered:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including clinical and other hands‐on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

The Second Circuit expressly stated that in applying these factors, no one factor is determinative and every factor need not point in the same direction. Further, courts may consider other relevant evidence beyond the specified factors in appropriate cases.

The decision provides valuable guidance to employers with unpaid interns. In light of Fox Searchlight, employers everywhere – but particularly those in New York, Connecticut and Vermont (within the jurisdiction of the Second Circuit)– should carefully review their internship programs.   Among other things, they should carefully tailor such programs to insure that they are designed and implemented so that the interns are the “primary beneficiaries” of their internships.

For additional information, please read Epstein Becker Green’s recent advisory.

Proposed DOL Rule To Make More White Collar Employees Eligible For Overtime Pay

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More than a year after its efforts were first announced, the U.S. Department of Labor (“DOL”) has finally announced its proposed new rule pertaining to overtime. And that rule, if implemented, will result in a great many “white collar” employees previously treated as exempt becoming eligible for overtime pay for work performed beyond 40 hours in a workweek – or receiving salary increases in order that their exempt status will continue.

In 2014, President Obama directed the DOL to enhance the “white collar” exemptions to the Fair Labor Standards Act (“FLSA”), which currently exempt from overtime some employees who earn $455 per week, or $23,660 per year.  The DOL’s proposed rule would more than double the salary threshold for an executive, administrative or professional exemption to apply, increasing it to $970 per week, or $50,440 per year.  In addition, the highly compensated employee exemption would increase from $100,000 to $122,148.  Not unimportantly, pursuant to the proposed rule, These salary figures would automatically adjust for annual inflation.  

Somewhat surprisingly, the proposed rule does not propose any enhancements to the duties requirements for an employee to qualify for any of the “white collar” exemptions.  The proposed rule does, however, invite comments regarding the amount of time employees should be engaged in executive, administrative, or professional work to qualify for the exemption.  Under the current federal regulations, exempt work must constitute the employee’s “primary duty.”  That is a qualitative analysis, not a quantitative one.  By inviting comments on consideration of California’s requirement that exempt duties be performed more than 50 percent of the time – a quantitative analysis – the DOL has suggested the possibility of another significant change to “white collar” exemptions.  As California employers know all too well, employees frequently file suit alleging they spend less than 50 percent of their time in exempt activities, challenging their employers to prove otherwise.  

The proposed rule likely will be published shortly in the Federal Register.  Upon publication, the proposed rule will be open to a 60-day comment period.  The DOL will review the comments, respond where appropriate and issue its final regulations.  The regulations will not be subject to Congressional approval.  It is important to note that when the “white collar” exemptions were last revised in 2004, the DOL received over 100,000 comments and spent nearly a full year responding to those comments before finalizing the regulations. 

 

Ninth Circuit Addresses Whether California Employers Need to Reimburse Employees for Non-Slip Safety Shoes

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On June 18, 2015, the Ninth Circuit issued an unpublished opinion in Lemus v. Denny’s, Inc. The opinion provides guidance to California employers that require their employees to wear non-slip shoes as a condition of employment.

California law generally requires that an employer must reimburse employees for “necessary expenditures.”  However, not all expenses are reimbursable.

In addressing Denny’s requirement that employees wear non-slip black shoes for which they are not reimbursed, the Court noted that, under California law, a “‘restaurant employer must only pay for its employees’ work clothing if the clothing is a ‘uniform’ or if the clothing qualifies as certain protective apparel regulated by CAL/OSHA or OSHA.’” The plaintiff who sued Denny’s did not argue that the non-slip black shoes were part of a “uniform,” nor did he argue that such shoes were not “generally usable in the [restaurant] occupation.” As such, the Court held that California law does not require Denny’s to reimburse the cost of its employees’ slip-resistant footwear. Notably, the Court did not address whether such shoes qualified as reimbursable protective apparel because the plaintiff conceded that issue.

The Court also found in favor of Denny’s on the plaintiff’s challenge to the use of computerized authorizations for certain wage deductions. California requires that when wages are deducted from an employee’s paycheck (other than taxes, Social Security, etc.), the employee must expressly authorize such a deduction in writing. The plaintiff claimed that the cost of non-slip shoes was not properly deducted because employees did not sign a paper authorizing such deductions; but did so electronically. The Court rejected that argument.

Finally, the Court rejected the plaintiff’s argument that employees were coerced into buying non-slip shoes from a particular vendor.  However, the plaintiffs did not present any evidence that employees were required to purchase from that vendor.

The Ninth Circuit’s opinion  provides guidance on the issue of whether employees must be reimbursed for non-slip shoes. In particular, unless the shoes were considered part of a uniform and were not usual and generally usable in the employer’s industry, it would appear that reimbursement of such is not required under California law. Additionally, where an employee authorizes a deduction electronically using some form of personal identification, the opinion provides a California employer with some comfort that it has met its obligation so long as such a record is retained. Also, where there is no actual coercion for an employee to purchase something from the employer or a specified third party for employment, the opinion again provides employers with comfort that they have complied with the law.

U.S. Supreme Court to Review Tyson Foods Donning and Doffing Decision

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On June 8, 2015, the U.S. Supreme Court granted Tyson Foods’ petition for review of the Eighth Circuit’s decision affirming the district court’s class and collective certification of a donning and doffing case under what Tyson Foods has described as “seriously flawed procedures.” While it does not appear that the Supreme Court’s review will deal directly with the standards for donning and doffing – i.e., the practice of employees putting on and taking off their uniforms and/or personal protective equipment pre- and post-shift – the Court appears likely to resolve how cases involving donning and doffing, as well as other wage-hour cases where not all employees in the putative class are impacted by a certain practice, will be scrutinized for purposes of applying class certification standards going forward. More specifically, the Court is expected to clarify what it means to have a class action “trial by formula,” of which the Court first disapproved in 2011 in Wal-Mart Stores, Inc. v. Dukes.

Motor Carrier Exemption Applies to Drivers Who can be Expected to Drive Interstate

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In Resch v. Krapf’s Coaches, Inc., the Third Circuit Court of Appeals ruled that drivers who “rarely or never crossed state lines” were nevertheless covered by the motor carrier exemption to the FLSA because they worked in safety-affecting jobs and reasonably could have been expected to drive interstate routes.

The FLSA’s motor carrier exemption creates an overtime exemption for employees who are covered by the Secretary of Transportation’s authority to regulate the safe operation of motor vehicles in interstate or foreign commerce.  To fall under the Secretary of Transportation’s authority, the transportation involved in the employee’s duties must cross state lines or, within a single state, be a continuation of the interstate “journey of goods.”

The exemption typically applies to drivers of large vehicles (as well as driver’s helpers, loaders, or mechanics) who work for employers providing motor vehicle transportation for compensation, or transporting their own property in support of a commercial enterprise.

The Supreme Court’s Decision in Morris v. McComb

The Third Circuit cited to Morris v. McComb, a United States Supreme Court case decided in 1947 regarding the jurisdiction of the DOT’s predecessor, the Interstate Commerce Commission (“ICC”).  In Morris, the Supreme Court found that a group of truck drivers and mechanics fell within the MCA exemption even though only 3.65% of the truck drivers’ trips were interstate transport, and those trips were “mingled” with the performance of intrastate driving services.  The Supreme Court noted that 41 of the 43 drivers had made at least one interstate trip, and the average truck driver had made sixteen interstate trips.

The Court held that the ICC had jurisdiction to regulate all of the drivers because interstate trips were actually taken, and had to be performed in accordance with the safety requirements established by the ICC.  Furthermore, the drivers and mechanics at issue performed work of a character directly affecting the safety of those operations. Thus, the Motor Carrier Act exemption applied and none of the drivers or mechanics in Morris were entitled to overtime under the FLSA.

The Code of Federal RegulationsTruck

Furthermore, the Third Circuit cited to 29 C.F.R. § 782.2(a), which states that if the duties of a driver are such that he or she is or “is likely to be” called upon to perform activities that impact the safety of interstate transportation, the employee comes within the motor carrier exemption.  That regulation further states that it “applies regardless of the proportion of the employee’s time or of his activities which is actually devoted to such safety-affecting work in the particular workweek, and the exemption will be applicable even in a workweek when the employee happens to perform no work directly affecting ‘safety of operation.’”

The Plaintiffs Reasonably Could Have Expected to Drive Interstate

In Resch, the plaintiff’s contended that they “rarely or never crossed state lines,” and thus were not covered by the motor carrier exemption.

The Third Circuit held that the plaintiffs could have been expected to drive interstate since company drivers regularly drove such routes and were trained on as many routes as possible.  Furthermore, the company retained discretion to assign drivers to drive either interstate or intrastate routes at any time and adhered to federal regulations regarding its drivers.  Thus, the plaintiffs were covered by the Motor Carrier Act exemption.

The Third Circuit also considered the plaintiffs’ assertion that their interstate responsibilities fell under the de minimis exception to the Motor Carrier Act exemption.  The Circuit Court pointed out that a number of courts have held that drivers should seldom, if ever, fall within that exception because of the impact their work has on safety.  Pointing out that the company’s interstate operations accounted for roughly 1% to 10% of its transit revenue, the Third Circuit held that the plaintiffs were covered by the Motor Carrier exemption.

Conclusion

Employers applying the Motor Carrier Act exemption therefore should be aware that the precise amount of time devoted to interstate transport may not be the sole factor determining the applicability of the exemption.  Rather, employers should also consider whether an employee performs work that affects the safety of transportation operations that reasonably can be expected to cross state lines.

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