In a recent lawsuit, a group of truck drivers filed a FLSA collective action against their employer, which was a leasing company and the trucking company to which they were leased.  The drivers did not have assigned routes, but their routes changed on a daily basis, depending on a number of factors, such as customer requirements and the driver’s need to stay with DOT driving hours guidelines. The drivers claimed overtime and the Company defended on the grounds that the workers were exempt under the FLSA motor carrier exemption.  The case is entitled Songer v Dillon Resources, Inc. and was decided in the Fifth Circuit Court of Appeals.

The federal district court had ruled that because the men could be asked to drive interstate on any given day, all of the drivers were in interstate commerce and therefore the motor carrier exemption applied.  For that exemption to apply, the company must be recognized as a motor carrier under DOT law, the employees involved must affect safety (as drivers do) and the employees must be involved in interstate commerce.   Under the motor carrier regulations, if the drivers are in a “pool” by which on any day, any one of them can be required to drive out of state, all of the workers are deemed to be in interstate commerce.

The wrinkle here was that the men worked for the staffing company, which sent them to the actual trucking company so their claim was that they were one step removed from the company that actually conducted the interstate work.  The Fifth Circuit rejected that contention and found that the staffing company was a “joint employer” with the trucking company because it hired and trained the drivers and was responsible for their payroll, while the trucking company (the co-employer) controlled the day-to-day activities of the drivers.  Thus, the staffing company reaped the benefit enjoyed by the interstate trucking company and was found to be within the scope and protection of the motor carrier exemption.

This case is fascinating because in these unique circumstances, it benefited the leasing company to be found to be a joint employer with the other entity.  That relationship gave it the protection of the exemption.  It just goes to show that one size does not fit all when defending a FLSA collective action and the advocate must always be on the lookout for a strategy/defense that will find a safe harbor (e.g. exemption) defense.  The other lesson here is to be cognizant that state law may differ from federal law, as it does in New Jersey on the motor carrier exemption, so that contingency must be provided for as well.