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When is Overtime Pay Mandatory for CDL-A Drivers?

Overtime is not a given for CDL drivers.  In fact many times there will be no overtime, unless the employer is offering it as part of a job as an incentive to attract better drivers.

It’s not the CDL license itself, nor the requirement that a CDL license is required that exempts the driver from overtime.  Rather it’s provisions in the various state and Federal laws which do it.  Many states exempt commercial drivers from overtime coverage, and some do not.  Typically the state law will read something like this:

Maryland Labor and Employment § 3-415.

      (a)      Except as otherwise provided in this section, each employer shall pay an overtime wage of at least 1.5 times the usual hourly wage, computed in accordance with § 3-420 of this subtitle.
(c)      This section does not apply to an employer with respect to:
(1)      an employee for whom the United States Secretary of Transportation may set qualifications and maximum hours of service under 49 U.S.C. § 3102;

Of course some states, such as Washington have no such exemption, and you must be paid overtime if you live in Washington, even if you cross state lines.

Bostain v. Food Exp., Inc., 153 P. 3d 846 – Wash: Supreme Court 2007
The Bostains maintain that Mr. Bostain’s employer, respondent Food Express, Inc., is liable to Mr. Bostain under Washington’s Minimum Wage Act (MWA), chapter 49.46 RCW, for overtime based on all hours worked, whether within Washington State or outside the state. We agree. By definition, an interstate trucker will spend some hours driving outside Washington State. RCW 49.46.130(1) requires overtime compensation for interstate truck drivers. The statute makes no distinction between the hours spent driving in state and those spent driving outside Washington. Accordingly, we reverse the Court of Appeals.

In the Washington case above, the Court overruled years of interpretation by the state regulators in favor of the driver.  Further some states like New Jersey have found that the overtime exemption in their own laws don’t apply to various types of CDL work, even if they would appear to do so at first glance.  So study your state’s laws closely.  Assuming you aren’t protected by state law, you need to then analyze the Federal laws.  In this area Federal law does not preempt state law, and you get the benefit of the more favorable law.

If you are exempt from overtime under the state law (most states, but not all), then we look to see if you are owed overtime under the Federal laws.  The Fair Labor Standards Act (“FLSA”) requires overtime for work over 40 hours, except for exempt employs.  However, Section 13(b)(1) of FLSA (commonly known as the “motor carrier exemption”) exempts drivers from the maximum hour and overtime provisions of the Act. See 29 U.S.C. § 213(b)(1). Specifically, the motor carrier exemption states that FLSA’s hour and overtime provisions are not applicable 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.”  Section 31502 provides the Secretary of Transportation with the power to regulate employees who work for motor carriers and motor private carriers “when needed to promote safety of operation.” 49 U.S.C. § 31502(b)(2).

The Department of Transportation has defined interstate commerce as:

“A motor carrier is engaged in ‘interstate commerce’ when transporting goods either originating in transit from beyond the State or ultimately bound for destination beyond the State, even though the route of a particular carrier is wholly within one State. Merchants Fast Motor Lines, Inc. v. Interstate Commerce Commission, 528 F.2d 1042 (5th Cir. 1976). Traffic need not physically cross state lines to be in interstate commerce if the goods carried are in the course of through transit. ‘Through Transit’ is not to be confused with purely ‘local’ traffic not destined for points outside the state of origin. Id. For example, though the transportation by a carrier may be between points wholly in the same state, if the shipment originated outside of the state and was part of a continuous movement, then the in-state movement would be considered to be in interstate commerce.” Shew v. Southland Corporation (Cabell’s Dairy Division), 370 F.2d 376 (1966). See United States v. Western Pacific Railroad Co., 352 U.S. 59, 77 S.Ct. 161 (1956).

The United States Department of Labor has a fact sheet (written 5 years ago) which reads,

Fact Sheet #19: The Motor Carrier Exemption under the Fair Labor Standards Act (FLSA)

Section 13(b)(1) of the FLSA provides an overtime exemption for employees who are within the authority of the Secretary of Transportation to establish qualifications and maximum hours of service pursuant to Section 204 of the Motor Carrier Act of 1935, except those employees covered by the small vehicle exception described below.

Thus, the 13(b)(1) overtime exemption applies to employees who are:

  1. Employed by a motor carrier or motor private carrier, as defined in 49 U.S.C. Section 13102 (see Employer below);
  2. Drivers, driver’s helpers, loaders, or mechanics whose duties affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce (see Employee Duties below); and
  3. Not covered by the small vehicle exception (see Small Vehicle Exception below).

1. Employer

  • Motor Carriers are persons providing motor vehicle transportation for compensation;
  • Motor Private Carriers are persons other than motor carriers transporting property by motor vehicle if the person is the owner, lessee, or bailee of the property being transported, and the property is being transported for sale, lease, rent, or bailment, or to further a commercial enterprise.

2. Employee Duties

  • The employee’s duties must include the performance, either regularly or from time to time, of safety-affecting activities on a motor vehicle used in transportation on public highways in interstate or foreign commerce.  Employees must perform such duties as a driver, driver’s helper, loader, or mechanic. Employees performing such duties meet the duties requirement of the exemption regardless of the proportion of “safety affecting activities” performed, except where the continuing duties have no substantial direct effect on “safety of operation,” or where such safety affecting activities are so trivial, casual, and insignificant as to be de minimis (so long as there is no change in the duties).
  • Transportation involved in the employee’s duties must be in interstate commerce (across State or international lines) or connect with an intrastate terminal (rail, air, water, or land) to continue an interstate journey of goods that have not come to rest at a final destination.
  • Safety affecting employees who have not made an actual interstate trip may still meet the duties requirement of the exemption if:

a)  The employer is shown to have an involvement in interstate commerce; and

b)  The employee could, in the regular course of employment, reasonably have been expected to make an interstate journey or could have worked on the motor vehicle in such a way as to be safety-affecting.

  • The Secretary of Transportation will assert jurisdiction over employees for a four-month period beginning with the date they could have been called upon to, or actually did, engage in the carrier’s interstate activities.  Thus, such employees would satisfy the duties requirement of the Section 13(b)(1) exemption for the same four-month period, notwithstanding references to the contrary in 29 C.F.R. § 782.2.

3. Small Vehicle Exception

Notwithstanding the Section 13(b)(1) exemption, the overtime provisions of Section 7 of the FLSA shall apply to an employee of a motor carrier or motor private carrier in any work week that:

1.    The employee’s work, in whole or in part, is that of a driver, driver’s helper, loader or mechanic affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate or foreign commerce, except vehicles:

(a)  Designed or used to transport more than 8 passengers, including the driver, for compensation; or

(b)     Designed or used to transport more than 15 passengers, including the driver, and not used to transport passengers for compensation; or

(c)  Used in transporting hazardous material, requiring placarding under regulations prescribed by the Secretary of Transportation;


2.    The employee performs duties on motor vehicles weighing 10,000 pounds or less.

The Section 13(b)(1) exemption does not apply to an employee in such work weeks even though the employee’s duties may also affect the safety of operation of motor vehicles weighing greater than 10,000 pounds, or other vehicles listed in subsections (a), (b) and (c) above, in the same work week.

Typical Problems

The Section 13(b)(1) overtime exemption does not apply to employees not engaged in “safety affecting activities”, such as dispatchers, office personnel, those who unload vehicles, or those who load but are not responsible for the proper loading of the vehicle. Only drivers, drivers’ helpers, loaders who are responsible for proper loading, and mechanics working directly on motor vehicles that are to be used in transportation of passengers or property in interstate commerce can be exempt from the overtime provisions of the FLSA under Section 13(b)(1).

The Section 13(b)(1) overtime exemption does not apply to employees of non-carriers such as commercial garages, firms engaged in the business of maintaining and repairing motor vehicles owned and operated by carriers, or firms engaged in the leasing and renting of motor vehicles to carriers.

So under the FLSA and related laws, if you haul in interstate commerce and you are subject to the Secretary of Transportation’s hour of service regulations, you don’t qualify for mandatory overtime.  Further, Interstate commerce can include operating a truck intrastate only, if the goods themselves are moving in interstate commerce.

So in summary, if you cross state lines in a CDL-A class vehicle, or you haul intrastate goods which are heading out in interstate commerce, you probably have no overtime protection available under the Federal laws.  But don’t forget to check your state’s law.

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Here are some related links you might want to read:

State Labor Laws Decide Paid Meal Breaks for Truck Drivers

California Overview – This overview is state specific by a California lawyer.

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Updated: August 6, 2014 — 1:03 pm

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