Professional truck drivers are no strangers to 70 hour workweeks. It is a part of the job that is accepted by all truckers and eventually, one becomes accustomed to receiving only 3-5 hours of actual sleep per day. That one day per week when a truck driver can finally shut down and catch up on much needed rest is long awaited for by all drivers. This one aspect of trucking is the major cause as to why so many who enter trucking as a career will fail. If you are planning for a 9 to 5 job . . . then trucking is not for you.
Whether it be local driving, regional or long haul trucking, the workweek for truckers are long and the truck is always calling you. With 60 and 70 hour workweeks, why are truckers not given overtime pay? According to the most recent study in 2008, median hourly wages of tractor-trailer drivers were $17.92 with the middle 50% earning between $14.21 and $22.56. The lowest 10% earned less than $11.63, and the highest 10% earned more than $27.07 per hour. An overall average hourly wage for truckers is difficult to determine due to the fact that geographical location must be considered. Using an average pay of .32 cents per mile at 2500 miles per week, how would this compare to drivers being paid hourly with overtime pay included?
Running under the straight CPM rate, a driver would earn $800 per week gross. Setting an average hourly rate of only $12.00 per hour, a driver would earn $1,020 gross in a 70 hour workweek. Using the above median wage of $17.92 per hour, a driver working 70 hour weeks, would pull in $1,523.20 gross per week. The Fair Labor Standards Act (FLSA) requires employers to pay most employees the statutory overtime rate of 1 ½ times regular wages for hours worked in excess of 40 in a single workweek. So why does this not apply to truck drivers? For the answer, we have to look at the Motor Carrier Exemption under the FLSA. Yes, wouldn’t you know that there is an exemption for truckers?
Section 213(b)(1) of the FLSA provides that overtime requirements do not apply to “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours.” Therefore, employees who are subject to the authority of the Secretary of Transportation qualify for the exemption, and includes employees of a “motor carrier” and, under some circumstances, a “motor private carrier.” However, there seems to be a discrepancy.
An Appellate Court recently upheld a New Jersey Department of Labor and Workforce Development ruling that the state’s version of this exemption applies only to businesses primarily engaged in trucking or moving and storage. What this established is that under the FLSA, when federal and state wage laws are in conflict, employees must be given the benefit of the law that is the most favorable to them. Drivers for the New Jersey trucking company sued for back overtime wages. The company argued that its trucking operation was completely separate from its retail furniture business, and that the states’ trucking industry exemption applied with respect to its transportation and distribution employees. The Court disagreed, ordering the company to pay nearly 500 current and former delivery workers more than $2 million in back overtime wages. Therefore, even though the truck drivers might have been covered by the federal exemption from overtime pay, the narrower New Jersey exemption did not cover them. What this established for drivers is that state laws must be considered when it comes to the Motor Carrier Exemption as cited under the FLSA. Furthermore, I found what could also be another discrepancy.
The FLSA, under the United States Department of Labor, there are two ways in which an employee can be covered by the law, meaning they are entitled to receiving overtime pay: ”
- Enterprise Coverage and
- Individual Coverage
Enterprise coverage pertains to those businesses which have at least two employees and that:
- Have an annual dollar volume of sales or business of at least $500,000
Individual Coverage applies to employees whose work regularly involves them in commerce between states. According to the FLSA individual workers are covered under the law who are: “Engaged in commerce or in the production of goods for commerce.”
Examples of employees who are involved in interstate commerce include those who:
- Produce goods that will be sent out of state
- Regularly make telephone calls to persons located in other States
- Handle records of interstate transactions
- Travel to other States on their jobs and
- Do janitorial work in buildings where goods are produced for shipment outside the State.
Furthermore, the U. S. Department of Labor Wage and Hour Division states that drivers are exempt under the law if:
- The employer is shown to have an involvement in interstate commerce, and
- The employee could, in the regular course of employment, reasonably have been expected to make an interstate journey or could have worked on the motor vehicle in such a way as to be safety-affecting.
Should these statements have a direct affect on local drivers, presently not receiving overtime pay from their employer? Under the “Safety Affecting Activities” :
“Only drivers, drivers’ helpers, loaders who are responsible for proper loading, and mechanics working directly on motor vehicles that are to be used in transportation of passengers or property in interstate commerce can be exempt from the overtime provisions of the FLSA under Section 13(b)(1).”
Therefore, if a driver is working as a local driver only, but their company also engages in interstate operations, should he or she should be entitled to overtime compensation?
Are these discrepancies between the Fair Labor Standards Act, the Motor Carrier Exemption and the authority of the Secretary of Transportation?
Are professional truck drivers being deprived of receiving overtime pay? According to the Wage and Hour Division . . . it is quite possible.
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