The Fair Labor Standards Act (“FLSA”) requires an employer to pay a minimum wage and overtime to all non-exempt employees for hours worked over 40 in one week. There are several exemptions to the overtime requirement including the widely used “motor carrier exemption.” The motor carrier exemption applies to employees “with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service” under the Motor Carrier Act.

Prior to August 10, 2005, the FLSA motor carrier exemption applied to most employees who drove any type of motor vehicle (for example, a van or delivery truck no matter what size) in interstate commerce. Recently changes were made to the Motor Carrier Act, which has had an impact on the motor carrier overtime exemption for certain vehicles.

The new legislation inserted the word “commercial” before the definition of “motor vehicle”. The term “commercial” only includes vehicles with a gross weight of at least 10,001 pounds, vehicles designed to transport more than eight passengers for compensation, vehicles designed to transport more the fifteen passengers not for compensation, or vehicles used to transport hazardous materials. This excludes an entire class of vehicles which had previously been exempt under the old definition of “motor vehicle”. For example, delivery vehicles that regularly crossed state lines.

The new Department of Transportation legislation impacts the FLSA motor carrier exemption because the motor carrier exemption now only applies to employees who drive “commercial motor vehicles” as defined above. The practical impact is that employees who may have been exempt in the past are no longer exempt. One example would be service technicians who cross state lines in vehicles once covered under the old definition of motor vehicle under the Motor Carrier Act. These employees would no longer be eligible for the overtime exemption under the new definition of motor vehicle because they are not driving “commercial” motor vehicles.

The Department of Labor (DOL) has not commented on the changes and has not changed their website to reflect the changes. It is not clear that the DOL knew about the changes when they took place. In fact, it is not even clear whether Congress intended for the changes in the Motor Carrier Act to impact the FLSA. There has been some discussion that Congress may pass future legislation to limit the impact. However, until there is further word, employees who drive vehicles that do not meet the definition of commercial motor vehicle should no longer be considered exempt from overtime.