I am a big student of the FLSA motor carrier exemption and have handled many such cases.  I often find that a big obstacle for the employer claiming the exemption is to prove that the drivers are engaged in “interstate commerce.”  This is especially so when the drivers at issue do not cross state lines.  There are, however, circumstances when such intra-state transportation is the equivalent of interstate transportation.  A recent case illustrates this important principle.  The case is entitled Ash v. Flowers Foods and issued from the Fifth Circuit Court of Appeals.

The drivers had claimed that the interstate portion of the journey was broken by the time they picked up the products to make the ultimate delivery.  The bread delivered by these men was baked before it arrived in Louisiana.  The men picked up the bread for delivery to ultimate customers.  The Court observed that the employer had the intention of delivering the product to stores in that State.  The Court noted that “it is clear that Flowers had the intention, when it shipped the specially ordered products from its out-of-state facilities, that the products would reach Louisiana customers.”

This intention of the shipping employer is key.  If there is a persisting intent by the shipper to deliver goods to particular entities or stores, then the fact that the goods are picked up by drivers who never leave their home State does not take the shipment out of interstate commerce.  As long as the goods remain in their original “form,” the shipment is still interstate in nature. 

For example, if a shipper of milk sends thousands of gallons of milk to a warehouse hundreds of miles away and that milk is intermingled with other gallons of milk in the warehouse, it has lost the interstate nature of its trip.  Then, when intra-state drivers pick up that milk (e.g. 1000 gallons), their trip is not a continuation of the interstate trip.  Importantly, that is not what happened in this case because there was no intermingling or breaking down of the goods ordered.

The Takeaway

Defense counsel must always consider the concept of practical continuity when defending an overtime case involving truck drivers. That they drive trucks, and the employer is a motor carrier, the first two prongs of the motor carrier exemption, are fairly/very easy to meet. Most of the controversies center around that third prong, i.e. interstate commerce. This involves careful analysis of the actual mechanics and details of the drivers’ journey.

Keep your eyes on the (legal) road…

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