November 2009
Section 13(b)(1) of the FLSA provides an exemption from overtime pay for employees who are within the jurisdiction of the Secretary of Transportation to establish qualifications and maximum hours of service under Section 204 of the Motor Carrier Act of 1935, except for those employees subject to the small vehicle exception described below.
Consequently, the 13(b)(1) overtime pay exemption applies to employees who are:
- Employed by a motor carrier or private motor carrier, as defined in 49 U.S.C. Section 13102 (see Employer below);
- Drivers, drivers’ helpers, loaders, or mechanics whose duties affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce (see Employee Duties below); and
- Not subject to the small vehicle exception (see Small Vehicle Exception below).
1. Employer
- Motor carriers are persons providing motor vehicle transportation for compensation.
- Private motor carriers are persons other than motor carriers who transport property by motor vehicle when such person is the owner, lessee, or bailee of the property being transported, and such property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise.
2. Employee Duties
- An employee’s duties must include the performance, either regularly or from time to time, of activities that affect the safety of operation of a motor vehicle used in transportation on public highways in interstate or foreign commerce. Employees must perform duties as a driver, driver’s helper, loader, or mechanic. Employees performing such activities meet the duties requirement of the exemption regardless of the proportion of “safety-affecting activities” performed, except where the continuing duties have no substantial direct effect on “safety of operation” or where such safety-affecting activities are so trivial, casual, and insignificant as to be de minimis (provided there is no change in duties).
- The transportation involved in the employee’s duties must be interstate commerce (across state or international borders) or connect with an intrastate terminal (rail, air, water, or land) to continue an interstate journey of goods that have not reached their final destination.
- Safety-affecting employees who have not themselves made an interstate trip may still meet the duties requirement for exemption if:
- It is shown that the employer is engaged in interstate commerce; and
- In the regular course of employment, the employee could have reasonably been expected to make an interstate trip or could have worked on the motor vehicle in some way that affects safety.
- The Secretary of Transportation will have jurisdiction over employees for a period of four months starting from the date they could have been called upon, or were in fact called upon, for interstate transportation activities. Thus, such employees would satisfy the duties requirement for the Section 13(b)(1) exemption for the same four-month period, notwithstanding references to the contrary in 29 C.F.R. § 782.2.
3. Small Vehicle Exception
Notwithstanding the exemption in Section 13(b)(1), the overtime pay provisions of Section 7 of the FLSA will apply to an employee of a motor carrier or private motor carrier in any workweek in which:
- The employee’s work, in whole or in part, is that of a driver, driver’s helper, loader, or mechanic affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in interstate or foreign commerce on public highways, except vehicles:
- Designed or used to transport more than 8 passengers, including the driver, for compensation; or
- Designed or used to transport more than 15 passengers, including the driver, and not used to transport passengers for compensation; or
- Used in transporting hazardous materials, requiring placarding under regulations prescribed by the Secretary of Transportation; and
- The employee performs duties on motor vehicles weighing 10,000 pounds or less.
The Section 13(b)(1) exemption does not apply to an employee in such workweeks even if the employee’s duties may also affect the safety of operation of motor vehicles weighing more than 10,000 pounds, or other vehicles mentioned in subsections (a), (b), and (c) above, in the same workweek.
Typical Issues
The Section 13(b)(1) overtime exemption does not apply to employees who are not involved in “safety-affecting activities,” such as dispatchers, office personnel, those who unload vehicles, or those who load but are not responsible for the proper loading of the vehicle. Only drivers, drivers’ helpers, loaders who are responsible for proper loading, and mechanics who work directly on motor vehicles that will be used in the transportation of passengers or property in interstate commerce may be exempt from the overtime provisions of the FLSA under Section 13(b)(1).
The Section 13(b)(1) overtime exemption does not apply to employees who are not carriers, such as commercial garages, firms involved in the business of maintaining and repairing motor vehicles operated by and owned by motor carriers, or firms that lease or rent motor vehicles to motor carriers.
Where to Get Additional Information
For additional information, visit our Wage and Hour Web site at: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available from 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
The purpose of this publication is to provide general information and is not to be considered in the same light as official statements of position contained in the regulations.
