I have a puzzling question, my husband drives a delivery truck for a company in Mississippi; he has to do a lot of deliveries in Tennessee. He puts in an average of 60 hours a week, and only gets paid straight time for his work. The company has commented that they don't have to pay the drivers overtime since they have to cross the state line. My question is, Is the company telling the truth, that there is a law about not having to pay overtime if they cross the state line, or are the drivers getting cheated out of what's rightfully theirs? Thank you in advance to anyone that can help me find the answer to this question.

There is a truck driver exemption within the FLSA legislation. FLSA is the legislation that regulates minimum wage and overtime requirements. Also in an Opinion Letter (FLSA2005-2NA), the DOL reasserted this exemption under Section 13(b)(1) of the FLSA with respect to provisions of the Motor Carrier Act (MCA).

I am sorry to report that your husband's boss was correct about not being required to pay overtime.

does this law apply when the drivers are getting paid by the hour?

Hourly is just a pay method. All employees are either exempt or non-exempt. While it's less common, an exempt employee may be paid on an hourly. For example, the computer employee exemption allows for the employee to be paid on an hourly basis provided certain criteria are met.

http://www.dol.gov/esa/regs/compliance/whd/whdfs19.htm

I don't have a difinitive answer on this, but it appears to be ok.

Pattymd, care to share your $0.02?

It applies to all nonexempt employees, whether the pay method is "hourly" or "salary". "Salary nonexempt" is not a status recognized by the FLSA.

... "Salary nonexempt" is not a status recognized by the FLSA.

I am not sure exactly what this statement is supposed to mean. FLSA regulations 29 CFR 778.113 and 778.114 are specifically directed to non-exempt employees paid on a salaried basis. If you search the federal DOL website, you get a lot of hits for this phrase, including the following.

http://www.dol.gov/esa/whd/opinion/FLSANA/2006/2006_06_01_10NA_FLSA.htm

"A salaried non-exempt employee is subject to the same 40 hours per week overtime standard as employees paid on an hourly basis."

What Patty means is that a salaried non-exempt is still non-exempt. Salaried non-exempt is not a third classification with its own special rules and regs.

Would it not be equally accurate to say that "Hourly nonexempt is not a status recognized by the FLSA"?

The status(es) that are recognized for purposes of minimum wage and overtime eligibility are exempt and nonexempt.

The status(es) that are recognized for purposes of minimum wage and overtime eligibility are exempt and nonexempt.

Good non-answer answer! Factually correct while avoiding responding to the actual content of the question asked. One more time ...

Would it not be equally accurate to say that "Hourly nonexempt is not a status recognized by the FLSA"?

[ Hint - the above was actually a yes/no question].

I understand that this seems to be picking nits, but repetive statements (not just this thread) that "Salaried nonexempt is not a status recognized by the FLSA" with as far as I can tell no corresponding statements being made that "Hourly nonexempt is also not a status recognized by the FLSA" strongly implies that this condition exists for Salaried Non-Exempt employees only.

No, DAW, I do not believe it would be equally as accurate to say that hourly non-exempt is not a status recognized by the FLSA, because hourly non-exempt IS a status recognized under the FLSA.

An employee cannot be both non-exempt and paid on a straight salary. If an employee is non-exempt and works over 40 hours per week, they have to be paid overtime in addition to the salary. There is no separate provision for "salaried non-exempt". A non-exempt is by definition paid on the basis of the hours he works.

No, DAW, I do not believe it would be equally as accurate to say that hourly non-exempt is not a status recognized by the FLSA, because hourly non-exempt IS a status recognized under the FLSA.

If an employee is non-exempt and works over 40 hours per week, they have to be paid overtime in addition to the salary. There is no separate provision for "salaried non-exempt". A non-exempt is by definition paid on the basis of the hours he works.

Example. Joan is a Non-Exempt employee (under the 29 CFR 778.113 rules) who is paid a $1,000 salary each semi-monthly pay period. The pay period could have 72, 80, 88 or 96 standard hours. Joan never works overtime and never works less then standard hours.

How does your "An employee cannot be both non-exempt and paid on a straight salary" and "A non-exempt is by definition paid on the basis of the hours he works." statements relate to this situation?

Why does federal DOL have specific FLSA regulations related to the payment of salaried non-exempt employees (29 CFR 778.113 and 778.114) since per you there is no such thing?

Can Joan be paid that $1,000 salary each pay period even though the number of hours in the pay period varies from pay period to pay period?

Why does the www.dol.gov have hundreds of references to the phrase "salaried non-exempt" with detailed instructions on the handling of such employees since per you there is no such thing?

Why does the Payroll Source book (American Payroll Association), generally regarded as the premier payroll publication, have a section on "Salaried nonexempt employees" since per you there is no such thing?

Thank you in advance for your answers.

How does any of this apply to the OP's questions about the truck driver exemption from overtime? There are separate regulations that apply here. Not to discount your continued discussion, but it simply is not applicable to the existing question at hand. Thanks!

Robb, thank you. I heartily agree.

However, I will respond to say that I did not say there was no such thing. I said it is not a separate classification under the FLSA. And I stand by that.

The original issue at hand was rubie-doo’s concern for her husbands overtime pay. I have reviewed the link (http://www.dol.gov/esa/regs/compliance/whd/whdfs19.htm) provided by robb71 and discovered some issues that need clarification. The provided link has a disclaimer at the bottom that states that it is for general information and should not be considered in the same light as official statements of position contained in the regulations. In a nutshell, the information provided within that link is someone’s interpretation of the FLSA.

Section 13(b)(1) of the FLSA specifically states that the provisions of Section 7 (Maximum Hours) do not apply to any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours pursuant to section 31502 of Title 49 http://www.washingtonwatchdog.org/documents/usc/ttl49/subttlVI/ptB/ch315/sec31502.html

Basically, the way that I understand the code, the Secretary of Transportation can declare the maximum hours that an interstate driver can work within a given workweek (Section 7(a)(1). I see nothing that exempts that kind of worker from earning overtime pay. Granted, if the Secretary declared that the worker in question shall not work beyond 40 hours within a given work week, rubie-doo’s husband’s employer would be in violation of the regulations. I think that her husband may possibly qualify for overtime pay. This is a very complex issue that I think should be brought before the courts.

In an Opinion Letter (FLSA2005-2NA), the DOL reasserts their interpretation of Section 13(b)(1) of the FLSA exemptions. I copied the appropriate text below with a link to the opinion letter. While the letter addresses "intrastate" commerce, it also addresses the OP's question about overtime. Please see below:

Section 13(b)(1) of the FLSA exempts from its overtime pay requirements “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of [the Motor Carrier Act (MCA).]”

http://www.dol.gov/esa/whd/opinion/FLSANA/2005/2005_04_27_2NA_FLSA_TruckDrivers.htm

And with that, and considering how much of a tangent this thread has taken (and I accept responsibility for at least part of that), since the poster's question has been answered I think it's time to move on.