Another “mixed fleet” FLSA case has recently been decided, with the Fourth Circuit ruling favorably for the plaintiffs.  As I have previously written, a “mixed fleet” case is one in which a worker suing for unpaid overtime under the FLSA drove vehicles weighing more than 10,000 pounds as well as vehicles weighing less than 10,000 pounds in the performance of his or her job duties.  This issue is significant because in such cases the Defendant often argues that the worker is exempt from overtime pay under the Motor Carrier Act exemption.  This position has been rejected with increasing frequency over the past several years.  The new case from the Fourth Circuit further highlights that almost every court that has considered the Technical Corrections Act of 2008 (the “TCA”) – particularly after the Third Circuit issued the McMaster opinion in 2015 – has held that a worker driving a vehicle weighing 10,000 pounds or less for anything more than a de minimis amount of time is considered a covered employee under the TCA and thus is not subject to the motor carrier exemption and is entitled to overtime pay. The Fourth Circuit case is Schilling v. Schmidt Baking Company, Inc., 876 F. 3d 596 (4th Cir. 2017).  Schilling is important because it is the second federal appellate court to consider the “mixed fleet” issue. In Schilling, the defendant provided baked goods to restaurants, grocery stores, and other small businesses across several states.  The plaintiffs were paid a salary, and filed suit for unpaid overtime.  The type of vehicles the plaintiffs used to make the deliveries varied according to the delivery requirements of a given day, but the plaintiffs used their personal vehicles for between 70% and 90% of the deliveries they made, with the remaining time spent driving large box trucks weighing more than 10,000 pounds.  The Defendant claimed that the workers were not entitled to overtime under the Motor Carrier Act exemption.  The Fourth Circuit rejected this argument, holding as follows:

The precise issue before us already has been considered by one of our sister circuits, which held in favor of the plaintiff litigant. In McMaster v. Eastern Armored Services, Inc., 780 F.3d 167 (3d Cir. 2015), the Third Circuit held that a driver employed by a motor carrier was entitled to overtime compensation under the FLSA because she spent part of her work week driving a vehicle weighing less than 10,000 pounds. In McMaster, the plaintiff’s duties consisted of driving armored vehicles of varying weights within the defendant’s mixed fleet. The Third Circuit reasoned that because the plaintiff spent 51% of her work days working on vehicles weighing 10,001 pounds or more, and 49% of her work days working on vehicles weighing 10,000 pounds or less, her job placed her “squarely within” the TCA’s requirement of working “in whole or in part” on smaller vehicles. The Third Circuit declined to establish a strict definition of the phrase “in part,” noting that, whatever the term “in part” means, the plaintiff “certainly satisfied” that standard because she spent nearly half of her day driving vehicles weighing less than 10,000 pounds.

We agree with the Third Circuit’s reasoning…The text of the TCA plainly provides that employees working on mixed fleet vehicles are covered by the TCA exception. Section 306 of the TCA expressly amended the FLSA by providing that overtime compensation would be available to “covered employee[s]” even when the MCA Exemption ordinarily would exempt those employees from the FLSA’s overtime requirements. By stating in section 306(a) of the TCA that the TCA “shall” apply to covered employees, Congress mandated that even if the MCA Exemption applied to certain drivers, those drivers nevertheless would be entitled to overtime compensation.  The structure of the TCA exception also makes clear that an employee need only work on smaller vehicles “in part” to qualify for overtime compensation, thereby placing drivers of mixed fleets within the FLSA’s requirements. Sections 306(c)(1), (2), and (3) of the TCA collectively list requirements that an employee must meet in order to be excepted from the MCA Exemption and entitled to overtime wages. The language of Section 306(c)(2), which modifies the two subsections that follow, refers to individuals “whose work, in whole or in part” meets the requirements of those subsections.

Subsection 306(c)(2)(A) describes the nature of the covered employee’s job, as an employee “whose work, in whole or in part, is defined [] as that of a driver, driver’s helper, loader, or mechanic[.]” Thus, by using the phrase “in part,” the statute does not require that an employee perform one of the listed jobs during all working hours. Instead, an employee satisfies subsection 306(c)(2)(A) if she works as a driver, driver’s helper, loader, or mechanic for a portion of her working hours.

Similarly, subsection 306(c)(2)(B) describes the effect of an employee’s work, meaning that a covered employee is one “whose work, in whole or in part, is defined [] as affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate or foreign commerce….” A covered employee’s work must therefore, entirely or partially, affect the operational safety of vehicles weighing less than 10,000 pounds.

There is nothing in the language or structure of the statute indicating that Congress intended to limit the reach of the TCA to exclude employees working on mixed fleets of vehicles. For example, if Congress had intended for employees working on mixed fleets to be exempt from overtime compensation requirements, Congress could have made the current content of subsection 306(c)(2)(B) its own separate section, with the effect that the term “in whole or in part” would not modify the phrase “motor vehicles weighing 10,000 pounds or less.” But Congress did not do so. Likewise, if Congress had intended to exclude mixed fleet employees from the FLSA’s overtime compensation requirements, it could have made that intent explicit in Section 306(c)(3), by defining a “covered employee” as an employee “who exclusively performs duties on motor vehicles weighing 10,000 pounds or less.” But, again, Congress did not do so.

The Schilling case is yet more welcome news for FLSA plaintiffs seeking unpaid overtime, particularly those working in the oil and gas sector, who frequently operate a “mixed fleet” of larger and smaller vehicles and thus are commonly misclassified as exempt from overtime pay.  If you or a family member or friend has driven larger and smaller vehicles when performing a job and have been denied overtime pay, consult with an experienced overtime attorney to learn of your legal rights.  Josh Borsellino is a Texas attorney who represents workers (particularly those in the oil and gas sector) in overtime pay lawsuits.  For a free consultation of your unpaid overtime claim, call Josh at 817.908.9861 or complete this free form.  For more information, feel free to visit our firm’s other website, oilfieldovertime.com.