Back in August of 2005, Congress passed a law entitled the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Among the myriad of provisions, there was a the following:
(a) Definitions Relating to Motor Carriers. — Paragraphs (6), (7), (12), and (13) of section 13102 of title 49, United States Code, are each amended by striking "motor vehicle" and inserting "commercial motor vehicle as defined in section 31132."
At first, these seems like a minor changes of little consequence. The law only sets out what types of operations the Department of Transportation can regulate, and the DOT has only ever regulated commercial motor vehicles. That is, the DOT had never previously exercised its authority to regulate non-commercial vehicles. Thus, from the DOT's point of view, that particular section was a non-event. However, the Department of Labor has a very different point of view.
It has long been the law that truck drivers were either subject to regulation by the Department of Transportation or the Department of Labor, but not both. This law removed the ability of the DOT to regulate vehicles of less than 10,001 lbs, and thus would subject the drivers of these vehicles to Department of Labor regulation -- and the drivers would be entitled to overtime.
Prior to the 2005 law, the idea that the motor carrier exemption could extend to any vehicle had created some unfortunate results. For instance, in Friedrich v. U.S. Computer Services, 974 F.2d 409 (3rd Cir. 1992), the motor carrier exemption, commonly called the "truck driver exemption," was applied to field service engineers who provided computer hardware and software to customers engaged in the cable television business. Apparently, the engineers drove their personal vehicles across state lines but were carrying tools and replacement parts. This was sufficient to make them "private motor carriers," and thus exempt from overtime. Since then, employers have been trying to apply this exemption to anyone who ever drove across state line carrying anything at all (pens, pencils, papers, etc.).
Since the enactment of the SAFETEA-LU, the DOL has taken the position that drivers of vehicles with a gross weight rating of 10,000 lbs or less are entitled to overtime pay, even if they driver interstate. The DOL has posted its position on the Motor Carrier Exemption on the web.
In addition, courts have started to agree with the DOL. For instance, in Musarra v. Digital Dish, Inc., 454 F.Supp.2d 692 (S.D. Ohio 2006), the court notes:
Before August 10, 2005, the FLSA's MCA exemption applied to most employees who drove any type and size of motor vehicle in interstate commerce. After the passage of SAFETEA-LU, however, vehicles that were previously exempt under the old definition of "motor vehicle" are no longer exempt because they are not "commercial motor vehicles." See Felhaber, Larson, Felon, Vogt, P.A., Big Changes in Exempt Status for Drivers and Mortgage Loan Officers, 16 No. 4 Minn. Emp. L. Letter 2, at *2 (June 2006).
Other courts have also been willing to follow this holding.
Unfortunately, these interpretations by the courts have not gone unnoticed by Congress. In the 109th Congress, H.R. 5576 attempted to undo the amendment and revert the FLSA to its previous status. This bill failed to pass the Senate, and it does not seem that Congress has expressed an interest in picking it back up this year. As such, a confusing and much abused loophole in the Motor Carrier Exemption seems to finally have been closed.