The full panoply of wage and overtime rip-offs in the landscaping and construction industries are too vast to be covered by this mere Newsletter.  Notwithstanding, when you speak with your clients in the landscaping and construction industries, you should be on the lookout for the Company’s failure to pay for travel between the company headquarters and the work location.

Many landscaping and contracting companies require the workers to report to headquarters at the beginning of the workday.  There, the workers gather equipment and materials needed for the day’s project, load the company vehicle, and travel to the worksite.  Then, at the end of the day, the workers must return to headquarters, unload the vehicle, and perform other end-of-shift duties.

The illegality arises when the Company pays the workers only for the time spent on-site at the work location.  Under such circumstances, workers are cheated out of many hours of compensable work.  Indeed, we have represented clients who have been owed thousands of dollars for of unpaid travel time at the beginning and end of the workday.

The Department of Labor has enacted a regulation that specifically addresses travel during the (more…)

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.

I recently read an interesiting (and, I think, important) decision in which Middle District of Pennsylvania Judge Thomas I. Vanaskie reasoned that a “workweek standard” must be applied in determining whether a company violated the minimum wage provisions of the Pennsylvania Minimum Wage Act (“PMWA”), 43 P.S. sec. 333.101, et seq., by failing to pay workers for all hours worked.  In Masterson v. Federal Express Corp., 2008 U.S. Dist. LEXIS 99622 (M.D. Pa. Dec. 10, 2008), the workers claimed that the copmany did not pay them for all hours worked and they sought the minimum wage of $7.15 for every unpaid hour.  After analyzing the PMWA, Judge Vanaskie held that an employer does not violate the PMWA’s minimum wage provision so long as the employee’s weekly pay divided by all hours worked (including the unpaid hours) exceeds the $7.15 minimum wage.  In applying this method, the court utilized what is known as the “workweek standard” and rejected the view that every hour stands alone under the PMWA’s minimum wage provision.  This case has important implications for “off-the-clock” cases in which the workers do not work in excess of 40 hours per week.  Of course, once the work hours cross the 40-hour threshold, the PMWA’s overtime pay provisions kick in, and the workers’ damages will flow from their “regular rate” of pay.  So Masterson has no bearing on overtime cases.