Fifth Circuit Weighs in on Motor Carrier Act Overtime Exemption and Small Vehicle Exception

by Littler
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It is commonly understood that employees bear the burden of proving that they are covered by the Fair Labor Standards Act (FLSA), and, to avoid minimum wage or overtime obligations, the employer bears the burden of proving that an exemption to the FLSA applies. One such exemption – common in the transport and energy industries – is the exemption under the federal Motor Carrier Act (MCA). If an employer can demonstrate that workers are covered by the MCA exemption,1 then the FLSA’s overtime requirements will not apply to those workers—with one major caveat.

The Technical Corrections Act (TCA) created an exception to the MCA exemption.  Under that exception, employers must comply with the FLSA’s overtime requirements for employees who operate vehicles weighing 10,000 pounds or less (the “small vehicle exception”).  

Litigators in this field have debated two fundamental questions not answered in the TCA regulations: (1) who bears the burden of proving that an employee operated a “small vehicle” subject to the exception, and, (2) how does one “weigh” a vehicle?

The Fifth Circuit answered both of these questions in an opinion issued this week, Carley v. Crest Pumping Technologies, L.L.C. Rather predictably, the Fifth Circuit opined that the Gross Vehicle Weight Rating (GVWR) of a vehicle (the value specified by the manufacturer as the loaded weight of a single vehicle), rather than the “weight on a scale,” is the appropriate measure of vehicle weight for the small vehicle exception. In a more surprising – but logical – decision, the Fifth Circuit also held that the plaintiff, not the defendant, must bear the burden of proving that the small vehicle exception to the MCA exemption applies.

Background and the Court’s Decision

The Crest Pumping opinion grew out a jury verdict in favor of two former employees of the defendant employer. The employees formerly worked as cementers, providing services on behalf of the employer in the oil field services industry. After their employment ended, the two plaintiffs sued Crest for unpaid overtime wages. Crest raised the MCA exemption as an affirmative defense, and the parties eventually stipulated that the elements of that exemption were met.

The critical issue was whether the small vehicle exception applied. If it did, the employees were entitled to overtime wages for any hours worked over 40 in a workweek. If it did not, the MCA exemption would exempt them from the FLSA’s overtime requirements. At trial, the employer presented evidence that the employees operated Ford F-350 trucks, and those trucks had a GVWR of over 10,000 pounds. The employees did not counter this with alternative evidence of the trucks’ GVWR, but instead submitted evidence that the trucks weighed – on a scale – fewer than 10,000 pounds.

At the district court level, the parties disagreed on the application of the burden of proof for the small vehicle exception: the employer argued the employees should bear the burden of proving they drove trucks weighing 10,000 pounds or less, and the employees argued the burden properly rested with the employer to prove the employees did not drive such vehicles.2 The district court ultimately sided with the employees and the jury returned a verdict for the employees. 

On appeal, the Fifth Circuit reversed the verdict. The court reasoned that the burden to show that the small vehicle exception applied was similar to a plaintiff’s initial burden to demonstrate that they were covered by the FLSA’s overtime requirement. Because the TCA’s exception was “not codified as an exemption” under 29 U.S.C. § 213, and was instead codified under the provision “defining when the FLSA mandates overtime pay” under 29 U.S.C. § 207, an employer should not have to carry the burden like it would an exemption. Instead, it should be part of the employee’s burden to show the FLSA’s overtime provision applies at all. Because the employees had failed to present evidence they drove vehicles weighing 10,000 pounds or less, the Fifth Circuit decided the employees had not met their burden of proof and rendered judgment for the employer.

In doing so, the court further confirmed that GVWR was the appropriate measure of vehicle weight for the small vehicle exception.  The court gave significant weight – known as Skidmore deference – to the U.S. Department of Labor guidance that determined the weight of vehicles should be determined by relying on the GVWR, and not the actual weight of the vehicle.

Takeaways

This straightforward decision touches on every aspect of small vehicle exception litigation. Now that it is decided that it is the plaintiff employee – not the defendant employer – who must prove that the small vehicle exception applies in the Fifth Circuit, employers should consider whether plaintiffs also bear the burden of proof for other aspects of the exception to the MCA exemption. For example, do plaintiffs now bear the burden of proving that they operated multiple vehicles of varying weights (to establish a “mixed fleet” scenario)? Must they also demonstrate how frequently they operated small vehicles (to prove it was not de minimis time)? Must they demonstrate that the vehicle operations were work-related and not voluntary? What about the other exceptions to the TCA (applicable to vehicles carrying hazardous materials, or passenger vehicles) – do plaintiffs also bear the burden of proving those elements where they are at issue?

 

Footnotes

1 The MCA exemption applies to “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49.” 29 U.S.C. § 213(b)(1). To be covered by the MCA exemption, an employee must: (1) be employed by a motor carrier or motor private carrier, as defined by 49 U.S.C. § 13102, and (2) work as a driver, driver’s helper, loader, or mechanic whose duties affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce. 49 U.S.C. § 31502.

2 Critically, the burden of proof issue had yet to be clearly decided in the Fifth Circuit, and district courts in the Circuit were split.  Compare Aikins v. Warrior Energy Servs. Corp., 2015 U.S. Dist. LEXIS 32870, *16 n.3 (S.D. Tex. Mar. 17, 2015) (“[B]ecause it is ordinarily the plaintiff’s burden to establish that he or she is covered by the FLSA, that is likely the case under the TCA coverage provision as well.”) with Roche v. S-3 Pump Services, Inc., 154 F. Supp. 3d 441 (W.D. Tex. 2016) (opining that defendant failed to meet burden of proof on the small-vehicle exception).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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