Technical Amendments to SAFETEA-LU Reaffirm Overtime Protection for Light Weight Truck Drivers
In June 2008, Congress passed a Technical Corrections Act amending the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users passed in August 2005 and the Fair Labor Standards Act (FLSA) to provide that drivers, drivers’ helpers, loaders and mechanics of vehicles weighing 10,000 lbs. or less who perform tasks that affect the safety of vehicles operating in interstate commerce are encompassed within the maximum hours provisions of 29 U.S.C. §207. This article will examine that legislation and demonstrate its retroactive impact on the eligibility of these workers to obtain overtime wages under the Fair Labor Standards Act between 2005 and June 2008.
When Congress passed the FLSA in 1938, its principal purpose was to protect all covered workers from “substandard wages” and “oppressive working hours…labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.”1 The FLSA was designed to give specific minimum protections to individual workers and to ensure that each employee covered by the act would receive “’[a] fair day’s pay for a fair day’s work’” and would be protected from “the evil of ‘overwork’ as well as ‘underpay.’”2 Congress attempted to secure this goal, in part, by enacting a prohibition which generally mandated that individuals who work more than 40 hours in a week receive an overtime premium.3
Upon its enactment of the FLSA, Congress provided that its overtime pay requirements should not apply with respect to any employee to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service under the Motor Carrier Act (MCA).4 The exemption of employees regulated by the Secretary of Transportation from the overtime requirements of the FLSA was based on the fact that since the enactment of the Motor Carrier Act in 1935, the Secretary of Transportation (DOT) and its predecessor, the Interstate Commerce Commission, had the authority to establish maximum hours of service for drivers, drivers’ helpers, loaders, and mechanics employed by “motor carriers” and “motor private carriers” who engage in performing tasks that affect the safety of vehicles operating in interstate commerce.5 Congressional provision of an exemption from the overtime requirements of the FLSA for workers under the jurisdiction of the Secretary of Transportation reflected its expectation that the secretary would enact legislation regulating the maximum hours of service for employees within his or her jurisdiction.6
Notwithstanding her authority to do so,7 during the 73 years since the enactment of the MCA, the Secretary of Transportation never exercised his or her power to establish qualifications and maximum hours of service over light weight (10,000 lbs. or less GVW) motor private carriers.8 Instead, the secretary focused primarily on safety regulations for commercial vehicles exceeding 10,000 lbs.
Because the Secretary of Transportation preserved but did not exercise jurisdiction over motor private carriers, the hours of employees affecting safety of operation or working on vehicles in interstate commerce weighing 10,000 lbs. or less were left unregulated by either the secretary’s hours-of-work regulations or the overtime premium requirements of the FLSA. However, allowing employees to work without regulations restricting their maximum hours or imposing overtime premiums that would deter employers from imposing onerous work requirements was at odds with the purpose of the MCA to ensure the safety of vehicles operating in interstate commerce. This oversight resulted in an unsafe and unfair situation in which many workers in the transportation industry were deprived of protections from substandard and unsafe work requirements, as well as overtime premiums, which other workers in the U.S. enjoy.
Furthermore, the MCA exemption from the FLSA was not restricted to individuals employed as drivers in interstate commerce. Even workers whose primary duties were arguably outside or peripheral to the transportation industry, with only an incidental involvement with interstate transportation, have been held to have an impact on the safety of vehicles operating in interstate commerce that places them within the jurisdiction of the Secretary of Transportation. A notable example involved computer field service technicians who drove their personal vehicles (and occasionally flew and rented cars) to travel between job sites to perform installation, preventive maintenance, diagnostics, and repairs on their customers’ computer hardware. The computer technicians routinely traveled in and out of state transporting tool kits weighing approximately 35 lbs. Their transportation of this minimal amount of property across state lines was sufficient to disqualify them from the protections of the FLSA9 and leave them, unregulated and unprotected, within the jurisdiction of the Secretary of Transportation.
Enactment of the SAFETEA-LU
On August 10, 2005, the scope of the FLSA’s §213(b)(1) exemption was markedly decreased when the Secretary of Transportation’s jurisdiction over motor carriers and private motor carriers which weigh less than or equal to 10,000 lbs. was withdrawn.10 This happened as a result of the enactment in August 10, 2005, of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).
The SAFETEA-LU was transportation reauthorization legislation enacted to allow vehicles not subject to safety regulations to pass through U.S. borders without inspection by safety inspectors.11 The bill eliminated the requirement for motor carriers to register with the Secretary of Transportation, unless they were also subject to the secretary’s federal Motor Carrier Safety regulations.12 Section 4142 of SAFETEA-LU amended the definitions of “motor carriers” and “motor private carriers” in §13102 of Title 49 of the U.S. Code to cover only commercial motor vehicle transportation as defined in 49 U.S.C. §31132.
A commercial motor vehicle is defined in 49 U.S.C. §31132(1) as, a self-propelled or towed vehicle used on the highway in interstate commerce to transport passengers or property, if the vehicle—
(A) has a gross vehicle weight rating or gross vehicle weight of at least 10,001 lbs., whichever is greater;
(B) is designed or used to transport more than 8 passengers (including the driver) for compensation;
(C) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
(D) is use in transporting material found by the Secretary of Transportation to be hazardous under Section 5103 of this title [49 U.S.C. §5103] and transported in a quantity requiring placarding under regulations prescribed by the Secretary under Section 5103 [49 U.S.C. §5103].
inserting the modifier “commercial” into the definition of motor carrier and private motor carrier, Congress narrowed the secretary’s power to establish qualifications and maximum hours of service of drivers, drivers’ helpers, loaders, and mechanics of vehicles in interstate commerce heavier than 10,000 lbs., thus substantially decreasing the scope of the FLSA’s §213(b)(1) exemption. As a direct result of the enactment of the SAFETEA-LU, individuals performing tasks affecting the safety of vehicles operating in interstate comerce in vehicles weighing 10,000 lbs. or less came within the regulatory arm and maximum hour requirements of the FLSA.13
Reaction to SAFETEA-LU
Proponents of employee rights, including the National Employment Lawyer’s Association,14 applauded the passage of SAFETEA-LU, viewing that the jurisdictional change it afforded to drivers of light weight vehicles to the DOL created a sensible regulatory scheme under which the DOT would continue to regulate the hours of drivers of large trucks transporting goods on interstate highways, while the DOL would regulate workers who drive light weight vehicles, usually in local (noninterstate commerce). This would have the overall effect of enhancing safety in interstate commerce by reducing the amount of overtime that drivers work, thus promoting the primary goals of the FLSA and the MCA.
Upon passage of the SAFETEA-LU and the industry’s realization of its impact on the scope of §213(b)(1), many transportation industry employers objected to the imposition of an increased overtime obligation. For nearly three years following the passage of the SAFETEA-LU, lobbyists and industry representatives lobbied Congress to repeal the pertinent provisions of the SAFETEA-LU or delay its effective date. The insertion of the word “commercial” in the definitions §13102 was characterized as an “unintended result” or a “drafting error that was never negotiated or discussed.”15 On July 17, 2006, Rosalind Knapp, acting general counsel for the DOT, wrote to key members of the Senate’s Committee on Commerce, Science and Transportation and the House Committee on Transportation and Infrastructure. In her letter, the general counsel urged the repeal of SAFETEA-LU §4142 because the “overall effect on related safety provisions was not adequately anticipated and could undermine efforts to maximize the safety of the traveling public.” In fact, such a repeal was proposed in the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia and Independent Agencies (THUD) Appropriations Act of 2007.16
Many organizations such as The International Brotherhood of Teamsters, the American Association for Justice, and the National Employment Lawyers’ Association strongly opposed such a repeal and argued that the SAFETEA-LU should be retained, as having “furthered important public policies that protect the health and safety of drivers who work long hours without basic overtime compensation … and [Congress] should not undo the clear public benefits resulting from the 2005 bill’s enactment.”17 Ultimately, the proposed repeal of §4142 did not pass.
Enter the SAFETEA-LU Technical Corrections Act
On June 8, 2008, President Bush signed into law the SAFETEA-LU Technical Corrections Act of 200818 (SAFETEA-LU TCA).19 This bill was a compromise crafted to 1) confirm that the scope of §207 of the FLSA encompasses employees engaged in transportation involving light weight vehicles; 2) restore the secretary’s jurisdiction over vehicles weighing 10,000 lbs. or less; and 3) provide for a limited one-year limitation on liability from the date of the enactment of the SAFETEA-LU on employers who failed to pay overtime as a result of ignorance of the impact of SAFETEA-LU.20
The sections of the SAFETEA-LU TCA directly impacting the MCA are §305, Motor Carrier Transportation Registration; and §306, Applicability of Fair Labor Standards Act Requirements and Limitation on Liability. These sections amended the definitions of “motor carrier” and “private motor carrier,” by specifically extending the maximum hours protections over employees not engaged in transportation involving commercial motor vehicles and by providing a grace period for the initial year after passage of SAFETEA-LU.
Motor Carrier Transportation Registration
Section 305 of the SAFETEA-LU TCA, Motor Carrier Transportation Registration, amends the section on Commercial Motor Vehicle Safety, Minimum Financial Responsibility for Transporting Passengers in 49 U.S.C. §31338, by striking “commercial motor vehicle” and replacing the phrase with the words “motor vehicle.” Section 13102 is similarly amended in §305 at paragraphs 6B, 7B, 14, and 15 of 49 U.S.C. §13102 to replace references to “commercial motor vehicle” with “motor vehicle.” The import of these amendments to the Motor Carrier Act, which redefine the term “motor vehicle” by elimination of the modifier “commercial,” is to restore the jurisdiction of the Secretary of Transportation over vehicles less than 10,000 lbs. This provision, without more, would have restored the applicability of the FLSA overtime exemptions at 29 U.S.C. §213(b)(1) to all drivers, driver’s helpers, loaders, and mechanics employed in interstate commerce to vehicles over and under 10,000 lbs. upon its effective date.
Applicability of FLSA Requirements and Limitation on Liability
However, restoration of the secretary’s jurisdiction over light weight vehicles was not intended to modify the applicability of §207 of the FLSA to these vehicles. Section 306 of the SAFETEA-LU TCA, Applicability of Fair Labor Standards Act Requirements and Limitation on Liability, constitutes an amendment to the scope of the overtime provisions of §207 of the FLSA even though the SAFETEA-LU TCA reaffirms the jurisdiction of the DOT over employees engaged in interstate commerce involving light weight vehicles.
Specifically, §306 states that the overtime requirements of the FLSA apply to a “covered employee” notwithstanding §213(b)(1). It defines “covered employees” as drivers, drivers’ helpers, loaders, or mechanics whose work affects the safety of operation of motor vehicles weighing 10,000 lbs. or less or who perform duties on such vehicles.21 The effect of this section is to codify and reaffirm the additional scope of §207 FLSA overtime coverage which resulted from the enactment of SAFETEA-LU.
However, §306 also includes an affirmative defense to liability for overtime, whereby an employer who did not have actual knowledge of the requirements of the SAFETEA-LU is not liable for violations occurring during the one-year period beginning on August 10, 2005.22 The proactive use of this grace period is limited by the proviso at §306(b)(2), which establishes that §306 does not constitute a cause of action by which an employer can recover overtime amounts paid before enactment of the SAFETEA-LU TCA regarding a claim occurring during the grace period.
Impact of the SAFETEA-LU TCA
The SAFETEA-LU TCA does not retroactively repeal the amendments to the U.S. Code affected by the SAFETEA-LU or restore the secretary’s jurisdiction over light weight vehicles retroactive to 2005. Instead, it confirms the enlarged coverage of §207 from August 2005 through to the present. A close examination of the effective dates of each provision demonstrates these points.
Section 121 of the SAFETEA-LU TCA under the title “Highway Provisions,” entitled “Effective Date,” provides that SAFETEA-LU TCA and the amendments it makes take effect on June 8, 2008, except as otherwise provided in the act, and should be treated as being included in SAFETEA-LU as of June 6, 2008. Excepted are all relevant provisions of the SAFETEA-LU, which are to take effect and be treated as effective as of the date of the act, August 10, 2005.23 Section 121(b)(2) further provides that the effect of the SAFETEA-LU TCA should be that each provision of the SAFETEA-LU amended by the Technical Amendments Act should be treated “as not ever having been enacted [except those specifically excluded from §121(b)(1)].”24
Section 305, Motor Carrier Transportation Registration, under the title “Other Surface Regulations,” specifically states that it is amending §§31138, 31139, and 13102 of Title 49 of the U.S. Code. As an amendment to the code rather than to the SAFETEA-LU it is effective on June 6, 2008, pursuant to the unambiguous directive in §121.25 On October 3, 2008, a federal district court in the Northern District of Georgia entered an order concurring with this interpretation as to §305’s effective date, pointing out that the fact “that Congress described many sections of the Technical Corrections Act expressly as amendments to the SAFETEA-LU, but did not for Section 305, implies that Congress did not consider Section 305 as an amendment to the SAFETEA-LU.”26
Section 306, Applicability of Fair Labor Standards Act Requirements and Limitation on Liability, amends the scope of the overtime provisions of §207 of the FLSA. Section 306 contains its own retroactivity provision which states that it is effective on the date of enactment of the SAFETEA-LU TCA, or June 6, 2008. It identifies itself as “liability limitation following SAFETEA-LU.”27 Section 306 was not included in the SAFETEA-LU and is clearly an amendment or addition to the U.S. Code. As an amendment to the U.S. Code, it is effective on June 6, 2008, in accordance with §121.28
Reading §§305 and 306 together as effective on June 6, 2008, does not repeal the SAFETEA-LU but in fact specifically adopts the allegedly “unintentional” effect of decreasing the coverage of 29 U.S.C. §213(b)(1) in the SAFETEA-LU by declaring that §207 of the FLSA encompasses employees engaged in transportation involving vehicles of 10,000 lbs. or less in interstate commerce, as effective going forward from June 6, 2008. Read with the SAFETEA-LU, these individuals provide coverage under §207 from August 10, 2005, to the present.
Section 306 mitigates the impact of extending FLSA overtime coverage to employers whose employees were formerly under the jurisdiction of the secretary, by affording a grace period from August 10, 2005, through August 10, 2006, to those employers who can prove they had no knowledge of their overtime payment obligations to drivers, drivers’ helpers, loaders, and mechanics of vehicles weighing 10,000 lbs. or less under §207 during the first year the SAFETEA-LU was in effect. However, for the following two years and subsequent to the enactment of the SAFETEA-LU TCA, no affirmative defense is available.
In the wake of the SAFETEA-LU TCA, some employers have argued that §305 is an amendment to SAFETEA-LU, which should be deemed effective on August 10, 2005.29 They argue that §305 restores the definition of motor vehicle in 29 U.S.C. §13105 as if the SAFETEA-LU amendments had never been written. This interpretation requires disregarding the language in §305 introducing the amendments therein as an amendment to the U.S. Code, which pursuant to §121 should be read as effective June 6, 2008, unless specifically provided to the contrary.
Moreover, accepting this argument means that no exception from §213(b)(1) exists for drivers of vehicles weighing 10,000 lbs. or less until the enactment of the SAFETEA-LU TCA on June 6, 2008. This reading does not harmonize with §306 of the SAFETEA-LU TCA. If §305 is deemed retroactive to August 10, 2005, “as if the SAFETEA-LU had never been written” (per §121(1)), then employers have no liability for overtime violations from August 10, 2005, to June 6, 2008, for drivers of light weight vehicles. This would make the SAFETEA-LU TCA’s limitation on liability at §306(b) superfluous since no liability limitation would be required for any of the period preceding June 6, 2008. A “reading out” of that provision also violates the “cardinal principle” of statutory construction that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”30 Interpreting the revisions to the U.S.C. §305 as effective August 10, 2005, is also unworkable because “Congressional enactments … will not be construed to have retroactive effect unless their language requires this result.”31 Only mere technical corrections [with no indication to the contrary] should be given retroactive effect.32
Proponents of this argument as to the effective date of §305 have attempted to explain away the resulting superfluity of §306(b) by suggesting that §306(b)(1) refers only to defendants who have already been found liable for a violation of §207. This interpretation requires disregarding language in §306(b)(2) which is plainly not limited to defendants already subject to a judgment, because it references “settlements” or “compromises” of “potential claims” in its language cautioning that nothing in the “Limitation on Liability” provision in §306(1) should be construed to establish a cause of action for “recovery of amounts paid” for the period August 10, 2005, through 2006.
Within the realm of federal wage and hour law, enactment of the SAFETEA-LU TCA reaffirms the equities afforded transportation employees as a result of the SAFETEA-LU’s enactment. The codification of §306 of the SAFETEA-LU TCA makes clear Congress’ intention that from August 10, 2005, through to the present, the hours of service of drivers, drivers’ helpers, loaders, and mechanics of vehicles weighing 10,000 lbs. or less should no longer remain unregulated and that they will not be disqualified from overtime protection under the FLSA merely because they perform tasks that affect the safety of vehicles operating in interstate commerce. The SAFETEA-LU TCA limits the impact of these changes by affording partial relief to employers caught off guard by liability for overtime pay as a result of the passage of the SAFETEA-LU.
1 Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 739 (U.S. 1981) (citations omitted).
3 29 U.S.C. §207.
4 29 U.S.C. §213(b)(1).
5 Prior to 1966, the Interstate Commerce Commission (ICC) was authorized to establish requirements with respect to qualification and maximum hours for drivers of common carriers whose work affects safety. In 1966, these duties were transferred to the Department of Transportation.
6 Safety through the establishment of maximum hours for drivers was an important consideration in the enactment of the MCA. See Southland Gasoline Co. v. Bayley, 319 U.S. 44, 48 (1943).
7 49 U.S.C. §31502(b).
8 Under the MCA, the term “motor carriers” encompasses both “motor common carriers” and “motor contract carriers.” Friedrich v. U.S. Computer Services, 974 F.2d 409, 412 n. 4 (3d Cir. 1992.) “Motor common carriers are those that hold themselves out to the general public to provide motor vehicle transportation for compensation.” Motor contract carriers do so in accord with continuing agreements. Id.
9 Id. at 411 and n. 11.
10 49 U.S.C. §31502(b).
11 Daniel G. Vliet and Brian J. Waterman, State of the Motor Carrier Exemption Under the FLSA (Thompson Publishing Group 2008).
12 153 Cong. Rec. H3041, h3052 (daily ed. Mar. 26, 2007) (statement of Rep. Duncan).
13 See, e.g., Dell’Orfano v. Ikon Office Solutions, Inc., 2006 U.S. Dist. LEXIS 61563, * 5 (M.D. Ga., August 29, 2006) (finding “it is clear that the motor carrier exemption has no application to any claims in this case after August 10, 2005,” when “[i]t is undisputed in this case that [p]laintiff drove a vehicle that weighed substantially less than 10,001 lbs.”); Musarra v. Digital Dish, Inc., 454 F. Supp. 2d 692, 701 (S.D. Ohio 2006), appeal pending on other grds., (finding workers who were previously exempt under the old definition of “motor private carrier” are no longer exempt under the revised definition of “motor private carrier” if they travel in vehicles weighing less than 10,001 lbs.); King v. Asset Appraisal Servs., Inc., 2006 U.S. Dist. LEXIS 94937, *11 (D. Neb. October 23, 2006) (supporting same view); O’Neal v. Kilbourne Med. Labs., 2007 U.S. Dist. LEXIS 22620, **24-25 (E.D. Ky. March 28, 2007) (same); Kautsch v. Premier Comm’ns, 502 F. Supp. 2d 1007, 1015 (W.D. Mo. 2007) (same). See also DOL Field Assistance Bulletin 2007-2 confirming that as a result of passage of SAFETEA-LU, only employees engaged in transportation involving commercial motor vehicles come within scope of §213(b)(1).
14 The National Employment Lawyers Association and its 67 state and local affiliates is the only professional membership organization in the country comprised of lawyers who represent employees in primarily labor and employment-related disputes, including those arising under the FLSA. NELA’s wage and hour practitioners have much experience with the Motor Carrier Act exemption and its hardship for employees.
15 153 Cong Rec. H3041, H3052 (daily ed. Mar. 26, 2007 (statement of Rep. Duncan)).
16 H.R. 5576.
17 July 17, 2006, letter from International Brotherhood of Teamsters to Senate Appropriations Subcommittee.
18 P.L. 110-244.
19 Its full name is “An Act to Amend the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users to Make Technical Corrections, and for Other Purposes,” short name (“SAFETEA-LU Technical Corrections Act of 2008”). The bill was introduced by the Senate Committee on Environment and Public Works and passed in the Senate on April 17, 2008. See S1768. On April 30, the House agreed to the amendment and the TCA was sent to the president.
20 The act authorized funds for federal-aid highways, highway safety programs, and transit programs, and for other purposes.
21 Section 306(c)(1-3). Excepted from the definition of “covered employee” are employees whose work involves vehicles designed or used to transport more than eight passengers (including the driver) for compensation; designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. §5103 and transported in a quantity requiring placarding under regulations prescribed by the secretary under §5103.
22 Section 306(b)(1)(A). As an affirmative defense to liability under the FLSA, the burden of proof of “lack of knowledge” should be on the employer. See, e.g., Abshire v. County of Kern, 908 F.2d 483, 485-86 (9th Cir. 1990), citing, Arnold v. Ben Kanowski, Inc., 361 U.S. 388, 392 (1960).
23 Section 121(b)(1). With the exception of specific provisions of SAFETEA-LU (not pertinent to this article) as follows: §101(g) Surface Transportation Technical Corrections regarding Project Federal Share; §101(m)(1)(H) Correction of Highway Bridge Program by inserting text regarding Missisquoi Bay Causeway; §103 Projects of National and Regional Significance and National Corridor Infrastructure Improvement Projects; §105 Project Authorization; §109 Transportation Improvements, and §201(o) Transit Technical Corrections referencing Central Florida Commuter Rail Project, all of which are to take effect as to the date of SAFETEA-LU’s enactment, on August 10, 2005.
24 Fn. 15.
25 In fact, these definitional sections pre-date the SAFETEA-LU. See Sept. 20, 1982, Pub. L.97-261, §18(a), 96 Stat. 1121; July 1, 1980, Pub. L. 96-296, §30(h), 94 Stat. 823; Pub. L. 104-287, §5(27)(A).
26 Vidinliev v. Carey International, Inc., Case no. 1:07-cv-00762-TWT, Dkt. 145, p. 17.
27 §306(b) (emphasis added).
29 Donald T. Ryce, Congress Tries to Clarify FLSA’s Motor Carrier Exemption, The Checkoff (Florida Bar Labor and Employment Section, Sept./Oct. 2008).
30 Duncan v. Walker, 533 U.S. 167, 174 (2001).
31 Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208 (1988).
32 See, e.g., Landgraf v. USI Film Products, 511 U.S. 244, 267-68 (1994).
Marguerite M. Longoria and Sam J. Smith are partners in the law firm of Burr & Smith, L.L.P. Ms. Longoria is certified by The Florida Bar as a specialist in labor and employment law and specializes in the Fair Labor Standards Act. She is also on the executive board of the National Employment Lawyers Association. Mr. Smith is the plaintiffs’ co-chair of the FLSA subcommittee of the American Bar Associations’ Labor and Employment Section and the legislative liaison for the Wage and Hour Committee of the National Employment Lawyers Association. He is also the associate editor of the Supplements to the Fair Labor Standards Act.
This column is submitted on behalf of the Labor and Employment Law Section, Alan O. Forst, chair, and Frank E. Brown, editor.