The U.S. District Court of Appeals for the District of Columbia Circuit has rejected a challenge to the FMCSA's Interim Final Rule on Hours of Service. The rule was printed in the Federal Register Vol. 72, No. 241, starting at p. 71247. For those of you who don't have that copy of the Federal Register laying around, you can look up the IFR at the FMCSA's web site.
The challenge was made by a coalition of forces including Public Citizen, and the Teamsters. I will be reviewing the court's ruling to determine why the court rejected the challenge.
The new HOS rules, which were adopted in 2005, thrown out by the court last year, and then re-adopted and now pending review, increase the consecutive hours a driver can drive to 11, and lower the restart (the minimum hours a driver can rest before starting the clock again) to 34. Public comments are open until February 15, 2008.
I will be reviewing the court's order rejecting the challenge, and will report on it in a future post.
Thursday, January 31, 2008
Monday, January 28, 2008
Drivers and Overtime, Meal/Rest Breaks
I get a lot of questions about employment law issues. One of the most common is related to whether a driver is entitled or overtime and whether they have to take breaks.
California law regarding who is exempt (meaning they don't get paid overtime) and non-exempt (meaning they do) has developed over a long period of time. The rules are set forth by the Industrial Welfare Commission. For drivers, the issues of overtime pay and entitlement to take time for meals and breaks are separate.
To be considered exempt from overtime pay, an employee must be:
Executive, meaning they are involved in management, have power to hire and fire, or regularly exercise independent discretion and judgment. Drivers don't generally fall into this category, although they arguably exercise independent discretion and judgment when they are driving.
Administrative this is someone who works in an office, exercises regular discretion and judgment, and is under general supervision. Except for the office part, this could be a driver too.
Professional, meaning doctors, lawyers, etc. Clearly not drivers.
Not an easy call. The argument could be made that drivers regularly use independent judgment and discretion when they drive, but that is only one part of these criteria. It looks very much like a driver is entitled to overtime.
So are drivers subject to overtime? Answer: no.
The IWC has issued an exception for drivers. The reasoning is that drivers' hours of service are regulated by federal and state laws. Since these laws regulate how much a driver can work over a given period of time. So, drivers whose hours are regulated by federal and state law are not eligible for overtime pay.
What About Meal Breaks?
The exemption does not extend to meal breaks. Employers are required to permit their drivers to take their meal breaks (at least 30 minutes after five hours, unless the shift is six hours, another 30 minutes after 10 hours, unless the shift is 12 hours) and breaks (10 minutes for every four hours worked).
Drivers are not required to log their meal and break periods. While this may seem to make things easier, it can create problems later if a driver ever claimed his or her employers never let him or her take meals or breaks, and the employer has no documentation to back it up.
The challenge is for the employer and driver to devise a system where they can ensure that the meals and breaks are taken and recorded. That's a post for another time.
California law regarding who is exempt (meaning they don't get paid overtime) and non-exempt (meaning they do) has developed over a long period of time. The rules are set forth by the Industrial Welfare Commission. For drivers, the issues of overtime pay and entitlement to take time for meals and breaks are separate.
To be considered exempt from overtime pay, an employee must be:
Executive, meaning they are involved in management, have power to hire and fire, or regularly exercise independent discretion and judgment. Drivers don't generally fall into this category, although they arguably exercise independent discretion and judgment when they are driving.
Administrative this is someone who works in an office, exercises regular discretion and judgment, and is under general supervision. Except for the office part, this could be a driver too.
Professional, meaning doctors, lawyers, etc. Clearly not drivers.
Not an easy call. The argument could be made that drivers regularly use independent judgment and discretion when they drive, but that is only one part of these criteria. It looks very much like a driver is entitled to overtime.
So are drivers subject to overtime? Answer: no.
The IWC has issued an exception for drivers. The reasoning is that drivers' hours of service are regulated by federal and state laws. Since these laws regulate how much a driver can work over a given period of time. So, drivers whose hours are regulated by federal and state law are not eligible for overtime pay.
What About Meal Breaks?
The exemption does not extend to meal breaks. Employers are required to permit their drivers to take their meal breaks (at least 30 minutes after five hours, unless the shift is six hours, another 30 minutes after 10 hours, unless the shift is 12 hours) and breaks (10 minutes for every four hours worked).
Drivers are not required to log their meal and break periods. While this may seem to make things easier, it can create problems later if a driver ever claimed his or her employers never let him or her take meals or breaks, and the employer has no documentation to back it up.
The challenge is for the employer and driver to devise a system where they can ensure that the meals and breaks are taken and recorded. That's a post for another time.
Hello and Welcome!
Welcome to my new blog about California Transportation and Trucking law! I have been practicing transportation law for about three years, and have been an attorney for over seven. In my experience in talking with truckers, trucking company owners, and others involved in the transportation industry, I get a lot of questions about issues as diverse as Hours of Service, Safety, worker's compensation, employment law, and more.
I've decided to start this blog as a way to discuss these issues, and to bring other issues to the attention of those transportation industry, and to comment on other legal trends and issues.
I welcome your input and comments. Please check back to this site regularly, as I intend to post every few days!
Thank you, and Welcome!
I've decided to start this blog as a way to discuss these issues, and to bring other issues to the attention of those transportation industry, and to comment on other legal trends and issues.
I welcome your input and comments. Please check back to this site regularly, as I intend to post every few days!
Thank you, and Welcome!
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