I just read an especially thoughtful opinion by Judge Catherine D. Perry of the United States District Court for the Eastern District of Missouri in an FLSA misclassification lawsuit entitled Kanatzer v. Dolgencorp, Inc., 2010 U.S. Dist. LEXIS 67798 (E.D. Missouri July 8, 2010). The decision is important in two respects. First, the Court finds disputed facts concerning the issue of whether plaintiff, a Dollar General Store Manager was properly classified as an FLSA-exempt “executive.” Applying the four factors described in 29 C.F.R. 541.700(a), the Court emphasized the common-sense notion that the amount of time a supposed “executive” spends performing non-exempt duties such as working the cash register, assisting customers, and performing other “hourly” tasks really DOES matter under the misclassification analysis. Second, the Court rejected Dollar General’s argument that, in calculating damages, plaintiffs’ economic expert was required to utilize the fluctuating workweek method (“FWM”) of overtime compensation. Here, the Court emphasized that the FWM cannot be applied retroactively since, among other reasons, the method requires that the employee actually received overtime pay. This opinion will provide guidance to retail employees seeking to vindicate their overtime rights.

Our firm has successfully handled claims involving the overtime pay rights of drivers employed by bus companies that provide transportation to disabled and elderly passengers.  These bus companies often operate under contracts with local governments or local public transit agencies, and they employ thousands of drivers throughout Pennsylvania and elsewhere.

Many of our friends in the workplace injury bar know how hard these drivers work and how often they get hurt while lifting and assisting passengers.  But what about their overtime rights? 

For sure, many local bus companies pay their drivers the time-and-one-half overtime premium required under the Fair Labor Standards Act (“FLSA”), the Pennsylvania Minimum Wage Act (“PMWA”), and similar state laws.  Unfortunately, less-generous bus companies deny their drivers overtime pay by asserting that the drivers are covered by the Motor Carrier Act Exemption (“MCA Exemption”) to overtime coverage.

The FLSA and similar state overtime laws contain an MCA Exemption that applies to “employee[s] with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service.”  See, e.g., 29 U.S.C. § 213(b)(1); 43 P.S. § 333.105(b)(7).  But the MCA Exemption is not as broad as some employers think.  As the Department of Labor has explained, the MCA Exemption is strictly limited to employees who, among other things, “engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the meaning of the Motor Carrier Act.”  29 C.F.R. § 782.2(a) (emphasis supplied); accord Dole v. Solid Waste Services, Inc., 733 F. Supp. 895, 929 (E.D. Pa. 1989).  In other words, for the MCA Exemption to apply, the drivers must be engaged in interstate commerce.

Therein lies the problem for many private bus companies throughout Pennsylvania and elsewhere.  In providing transportation services to disabled and elderly clients, the drivers almost never cross state lines.  This is especially true when the bus company’s service area lies well within a state’s boundaries.  But it also tends to hold true for bus companies that operate close to state borders.  Simply put, the day-to-day routines of most people – including most elderly and disabled people – rarely take them over state lines.

The case of Dauphin v. Chestnut Ridge Transportation, Inc., 544 F. Supp. 2d 266, 273 (S.D.N.Y. 2008), is instructive.  There, the federal judge carefully reviewed the pertinent legal authority and concluded that, for the MCA Exemption to cover a driver, the bus company must prove that the driver’s trips across state lines are “more than de minimis” or are “a ‘natural, integral and . . . inseparable part’ of” the driver’s job.  Id. at 275.

Here’s the bottom line:  If you represent drivers who currently or formerly worked for a local bus company, you should ask them three relevant questions:  (1) Did they ever work over 40 hours per week?  (2) On such occasions, did they receive time-and-one-half overtime pay?  (3) If they did not receive overtime pay, did they regularly drive over state lines?  If you client neither received overtime nor regularly drove over state lines, we would be delighted to provide the client with a free and confidential consultation.