['Compensation']
['Transportation Overtime Exemptions']
05/16/2022
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The Department of Labor's Wage and Hour Division issued a memorandum dated November 4, 2010, to explain some provisions of the overtime exemption for certain employees of motor carriers who affect safety in interstate commerce. In particular, the memo addresses how the "four month" rule is applied in relation to smaller vehicles. Under the four month rule, the overtime exemption may be applied during a four-month period beginning on the date the employee engaged in exempt activities (or could have been called upon to do so).
NOTE: The "four-month" rule stems from the Department of Transportation's Federal Motor Carrier Safety Administration's interpretation of the Motor Carrier Act of 1935, conferring that agency jurisdiction over drivers and certain other 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, triggering the overtime pay exemption for that period.
As described above, certain employees may be treated as exempt from overtime if they operate or work on vehicles which weigh more than 10,000 pounds and are operated in interstate commerce, or other vehicles (regardless of weight) which are:
- Designed or used to transport more than eight passengers (including the driver) for compensation;
- Designed or used to transport more than 15 passengers (including the driver) and not used to transport passengers for compensation; or
- Used in transporting hazardous material, requiring placarding under regulations prescribed by the Secretary of Transportation.
This "small vehicle" exemption means that certain employees can still be exempt from overtime if they drive or work on smaller vehicles (under 10,000 pounds) if the vehicle meets one of these criteria. Operating or working on any other vehicle under 10,000 pounds during a particular week means that the overtime exemption cannot be applied during that week.
The following example may help clarify how this interpretation will be applied:
- During the first week of employment, an employee operates or works on vehicles over 10,000 pounds, and/or vehicles meeting the criteria above, so the employee can be exempt from overtime and can remain exempt for four months.
- During the second week, the employee operates or works on a vehicle less than 10,000 pounds which does not meet one of the above criteria. Even if he also performs duties involving exempt vehicles, he must receive overtime for hours over 40 during this week.
- During the third week, the employee does not operate or work on vehicles under 10,000 pounds (or only does so on vehicles which meet the above criteria). Since the four-month rule still applies, the employee can again be exempt from overtime during this week.
In other words, employees who perform duties affecting the safe operation of a motor vehicle in interstate commerce are exempt from overtime for the next four months, except for workweeks in which their duties affect the safe operation of a small vehicle which does not meet one of the criteria above. Any employee who performs duties involving such small vehicles for even part of the week must receive overtime pay for hours over 40 in that week, even if they also performed duties that would qualify for the exemption during that week.
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