Waynes World - November 2008
SAFETY DIRECTOR & DRIVERS SENTENCED
IN FALSE LOGBOOK SCHEME, AND...
NEW LAW LOOSENS
LIMITS
ON OVERTIME PAY
by Wayne Schooling
NEW LAW CHANGES OVERTIME PAY
If you missed it, Congress passed a law which may change the way you do business. There are significant potential consequences from the amendment to the Motor Carrier Exemption to the Fair Labor Standards Act. Historically, before the passage of this law, employees of public or private motor carriers who were drivers, driver helpers, loaders or mechanics, whose work could affect the safety of operation of vehicles in interstate commerce, were not entitled to overtime due to something called the 13(b)(1) or Motor Carrier Exemption. That has now changed, and it could cost business owners plenty.
Back in June, Congress changed the law and severely limited the application of that exemption. Now, it appears that what is critical to determine whether employees are or are not entitled to overtime is the type of vehicle they are either driving, loading, or working on. Before this act, an employer could argue that so long as the employer was a motor carrier, it did not matter whether their employees worked on “motor vehicles” or “commercial motor vehicles.” But now, according to this new law, the type of vehicle those particular employees work on is critical and will determine whether or not they will be subject to receive overtime pay.
In this new law, the term “commercial motor vehicle” includes all of the following vehicles: 1) Vehicles weighing 10,001 pounds or more; 2) Vehicles designed or used to transport more than 8 passengers (including the driver) for pay; 3) Vehicles designed or used to transport more than 15 passengers without pay; or 4) Vehicles used to transport hazardous materials. If a vehicle does not fit into one of these four categories, it is just a “motor vehicle.” Simply put, from June 6, 2008 forward, any driver, driver’s helper, loader or mechanic whose work, in whole or in part, that affects the safety of operation of “motor vehicles” will be subject to overtime.
The critical reference to “whose work in whole or in part” suggests that an employee who may historically have been exempt from overtime, who performs any duties on “motor vehicles” is now entitled to overtime unless some other exemption is applicable besides the Motor Carrier Exemption. An example might illustrate how the exemption could be lost. Suppose, for example, shop mechanics performed work on a variety of “commercial motor vehicles” but occasionally worked on a “motor vehicle.” Because they worked “in part” on a “motor vehicle” they would lose their exemption from overtime and would be entitled to statutory overtime pay. This is not a bad deal for the worker, but it could be quite devastating to the employer.
This significant change will affect the trucking industry, limousine carriers and other motor carriers, both public and private. Before this law was enacted, the 13(b)(1) exemption applied to even those employees who worked only some portion of the week as a driver, helper, loader or mechanic if their work affected the safety of operation of any motor vehicle in interstate commerce. It was irrelevant how much of the employee’s time was actually devoted to safety-affecting work. Furthermore, the employee was not entitled to overtime pay, even in a week when they performed no work affecting the safety of operation of motor vehicles in interstate commerce (like crossing state lines or driving an intrastate leg of an interstate trip).
The new law appears to change that analysis. From June 6, 2008 forward, an employer will have to break down the duties of its drivers, helpers, loaders or mechanics. The overtime exemption is lost when an employee performs any duties on a vehicle other than a commercial motor vehicle, which entitles the employee to get overtime pay for that entire week. On the other hand, if the employee was restricted to working on only commercial motor vehicles, then no overtime would be owed and the 13(b)(1) exemption would be preserved.
So, what do these industries need to do to maintain the exemption? I would suggest assigning a particular employee or group of employees to work on motor vehicles, such as part-time workers or anyone who wouldn’t work more than 40 hours per week, or simply contract out this type of work.
FIVE SENTENCED IN FALSE LOGBOOK SCHEME
On July 21, 2008, in the U.S. District Court of Fresno, California, five defendants were sentenced after pleading guilty for false statements and aiding and abetting in their false driver’s logbook scheme. Sukhwinder Singh, Tarsem Singh Pahal, Bhinder Singh Raju, Daljit Singh and Jaspreet Singh were sentenced for keeping false logbooks while employed as truck drivers for Nijjar Brothers Trucking, Inc. of Madera, CA. Mr. Sukhwinder Singh, the company’s Safety Director, was sentenced to 6 months of home detention and 24 months probation. The other defendants were sentenced to 3 months of confinement, 3 months of home detention and 24 months probation. In addition, all defendants were ordered not to work in the trucking industry unless approved by the Probation Office.
During the investigation, a truck driver for Nijjar Brothers Trucking, Inc. caused a four-vehicle collision, killing a father and his 13-year-old son and seriously injuring six others. The driver, Baljinder Singh, had been driving for at least 19 hours. He was subsequently convicted and sentenced for falsifying his logbook entries and served time in jail. As part of a sentencing agreement, the owners of the company were required to inactivate their DOT numbers, dissolve the company, and each pay a fine of $50,000. The investigation was conducted by the Office of Inspector General, with assistance from the FMCSA and the CHP.
~ NTA remains a name you can trust. Our website (www.ntassoc.com) is your official U.S. DOT Internet Training Site and we are administrators of a Nationally Accredited Drug and Alcohol Program. If you have any questions, call me at (562) 279-0557 or send me an e-mail to wayne@ntassoc.com. Until next month, “Drive Safe – Drive Smart!”