• Employees who perform “safety-affecting activities” can be subject to the overtime exemption.
• Though most states adhere to the motor carrier overtime exemption, some states stipulate unusual provisions.

The following tips can help ensure that workers are properly classified.

The overtime exemption may apply to all employees for whom the U.S. Department of Transportation (DOT) claims jurisdiction. In other words, the exemption can apply to employees ordinarily called upon (either regularly or from time to time) to perform “safety-affecting activities.” The exemption can apply in all workweeks when the employee is employed in such work, regardless of the proportion of safety-affecting activities performed in a particular workweek.

On the other hand, if continuing job duties have no substantial direct effect on operation safety, or where safety-affecting activities are trivial, casual, and insignificant, the exemption will not apply in any workweek as long as there is no change in duties.

Drivers, loaders, and mechanics

Where safety-affecting employees have not made an actual interstate trip, they may still be subject to the DOT’s jurisdiction if the employer is shown to have an involvement in interstate commerce and it can be established that the employee could have, in the regular course of employment, been reasonably expected to make an interstate journey or could have worked on a motor vehicle in a safety-affecting way.

If the employer can offer evidence of these safety-affecting activities and involvement in interstate commerce, the DOT will assert jurisdiction over that employee for a four-month period, starting on the date the employee could have been called upon to (or actually did) engage in interstate activities. Such employees would be exempt from overtime during that four-month period.

State laws

Most states recognize the motor carrier overtime exemption, but some have unusual provisions. For example, New Jersey and New York require that interstate drivers be paid at least 1.5 times the state minimum wage for hours in excess of 40 per week. This does not automatically mean employers must pay 1.5 times the driver’s usual hourly rate. It only means the employee or driver must receive 1.5 times the minimum wage after 40 hours.

Normally, overtime is paid at 1.5 times the employee’s regular hourly rate. Under these state provisions, the calculation is a bit different. If the driver’s base rate of pay is more than 1.5 times the state minimum wage, no additional increase would be necessary.

For example, if the New York minimum wage is $9 per hour, then a driver would have to be paid at least 1.5 times this amount (or $13.50) for any hours after 40 per week. But if the driver is already being paid $14 per hour for all working time, regardless of total weekly hours, then the employer would not have to increase the pay after 40 hours. The driver is already getting paid at least 1.5 times the state minimum wage for hours in excess of 40 per week.

However, if a driver was paid a lesser amount (e.g., a rate of $12 per hour), the employer would have to pay at least $13.50 for time after 40 hours in order to meet the state requirement.