Regulatory Snafu Could Cost Overtime

This is a tale about how good intentions can end up with unintended results and cause a lot of people a throbbing headache — to say nothing of unexpected expense.
Last year, Congress passed the Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which authorizes the federal surface transportation programs for highways, highway safety, and transit from 2005 to 2009.
That law included amendments to the definitions of “motor carrier” and “private motor carrier” to conform with definitions contained in the Motor Carrier Safety Act of 1984 to include vehicles weighing 10,001 pounds or greater. The previous definitions included all commercial vehicles, regardless of weight.
According to Earl Eisenhart, transportation policy consultant to SFA, the new definition was drafted by DOT and included in SAFETEA-LU purely as a technical amendment designed to conform law with regulatory practice, as DOT has not applied motor carrier regulations to vehicles under 10,001 pounds.
However, a result of the amendment is that it actually removed DOT’s authority to register and regulate those lighter vehicles, and thus may have inadvertently provided a new right to overtime pay for thousands of drivers of commercial vehicles in that category, he said.
At least that’s what the U.S. Labor Department contends.
The Fair Labor Standards Act (FLSA) generally requires time-and-a-half pay for work in excess of 40 hours per week. However, there is an exception for employees who come under the authority of DOT hours-of-service rules. Since DOT now lacks authority over those lighter vehicles, lawyers at the Labor Department have concluded that drivers (both for-hire and private) who operate commercial vehicles under 10,001 pounds in interstate commerce now have a right to overtime pay under the FLSA if they work more than 40 hours per week.
“DOT is aware of this unintended consequence … and would like to correct it by means of a technical corrections bill in Congress,” Eisenhart said. However, he noted that such bills are usually passed in the wake of highway authorization bills to “clean up” mistakes and for other purposes. Unfortunately, he added, “a technical corrections bill for SAFETEA-LU is unlikely in the short term due to unrelated political reasons.”
While Eisenhart said SFA is working with an informal coalition of industry allies to find other ways to address the issue in Congress, he explained that there are other exemptions under the FLSA that SFA member companies may be able to invoke under certain circumstances.
A backgrounder prepared by SFA legal counsel, Hogan & Hartson, is available on the “members only” section of the SFA website, The backgrounder discusses the situation in detail and explains possible exemptions. It does not constitute legal advice, however, and Eisenhart said each company should consult its own legal counsel to determine whether, under the facts of its operations, exemptions might apply.