Up until May 18th, I was a professional Helicopter Pilot based in NJ.

On several occasions, it was explained that we as pilots were FLSA Non-Exempt, yet not entitled to Overtime compensation. Altho I never did receive any official documentation to this effect, I was told simply that "Helicopter Pilots are not eligible for overtime, and are paid a straight salary regardless of hours worked." It was also explained to me in detail that Helicopter Pilots were not considered to be Professional employees, according to the FLSA, and could therefore not be considered Exempt.

While it was true that whether we worked 3 days a week, or 6, we received the same amount every two weeks, I am also a Military Reservist and on the occasions that my Military duty interfered with my civilian job, my pay was adjusted to reflect the time not worked.

My question is this: How is it I can be salaried when I work 60 hours in a 7 day period, but hourly (As per the company HR rep) when I miss a day due to Military duty?

As I understand it, with certain few exceptions (and Helicopter Pilots are not mentioned anywhere in the exceptions), Non-Exempt employees are entitled to time and a half for any and all time worked in excess of 8 hours per day, 40 hours per week, and I forget the monthly allowance. Period. The law seems to be fairly cut and dried with regards to who is and is not eligible, and allows very little wiggle room.

I have all my Email correspondence with the company HR manager, all records of time worked, and pay stubs that reflect both standard pay and pay that has been adjusted for military duty. I've been told on several occasions that I am entitled to back pay for all overtime due. Is this correct? Can I still file a complaint/claim even though I am no longer employed by this company?

Any and all help is greatly appreciated.

For whom do you work? The state, the county? The reason I ask is that there is an exemption from overtime for those working for a public entity.

Ms. Connell, thank you for your response.

I worked for a private company operating private and charter helicopters in Newark, NJ. No government affiliations of any sort with this company.

The company is rather small and relatively new (Began operations in 1998) and until last year was headquartered in Fort Worth, TX, although the only helicopters were in NJ. The company has been known to use TX Labor law as a reference for company policy, even though they've repeatedly been advised against such practices.

I have been researching this issue for nearly two years now, and cannot find any reference that would allow a company to withold overtime compensation from Non-Exempt helicopter pilots. The HR rep has continued to side-step the requests for legal references, telling me that if I wanted further explaination, I would need to contact the company's lawyers directly, and that she (HR rep) would no longer be willing to answer my questions. I attempted on several occasions to contact the Law firm, but my calls were never returned. The only answer I ever got when I asked about overtime was that "Helicopter pilots are not eligible for overtime", with no explaination as to why.

I even have a letter written by the company's law firm outlining the fact that my paycheck was based on my working 14 hours a day for 6 days in a row, at an hourly rate of $XX.XX. Now, I'm not the brightest bulb in the box, but 6 x 14 = 84 hours a week that I was expected to be on duty. In all fairness, if we were not scheduled to fly, we normally were not required to come in to the office, but we also had to be ready to come in at a moments' notice, so the time was not ours to do with what we pleased either. Even if you just count the time I was physically at work, there are still dozens of times in the past 3 years that I worked in excess of the normal 8 hour day/40 hour week.

My questions are:

Am I (And every other employee that has worked for the company) entitled to overtime compensation?

If so, then can I still recover back pay since I am no longer employed by the company?

If so, how would I go about filing a claim and would I need a lawyer to assist me?


Many thanks again for your time and assistance.

You are right in that your employer is subject to NJ law, rather than Texas law. However, you may not be eligible for overtme due to an exemption for motor carrier companies. http://www.dol.gov/esa/regs/compliance/whd/whdfs19.htm

Am I (And every other employee that has worked for the company) entitled to overtime compensation? Not necessarily - that statement is a bit too broad. Only non-exempt employees are subject to federal overtime laws. Eve then, there are several exceptions. The exemption for motor carrier companies is an example.

If so, then can I still recover back pay since I am no longer employed by the company? Yes, you have up to 2 years to file a claim. If the violation is considred as "willful", then you have 3 years by which to file a claim.

If so, how would I go about filing a claim and would I need a lawyer to assist me? You can read about filing a claim at:
http://www.state.nj.us/labor/lsse/lsgenfaq.html

Ms. Connell, again many thanks for your continued assistance. For the first time in a long time I feel I am actually learning something and getting somewhere with this issue.

The Motor Carrier exception specifically refers to Motor Vehicles and those who operate, maintain or work directly with them. Ref:

Only drivers, driver's helpers, loaders who are responsible for proper loading, and mechanics working directly on motor vehicles that are to be used in transportation of passengers or property in interstate commerce, can be exempt from the overtime provisions of the FLSA under Section 13(b)(1).

The Legal definition of "Motor Vehicle" is as follows:

MOTOR VEHICLE - Includes an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle designed for running on land but not on rails. 18 USC

My Questions are now these:

As my helicopter clearly does not fit the definition of Motor Vehicle, and my job title was "Pilot", not "Driver", would that then cancel the validity of the motor carrier clause in my case?

Could a judge possibly twist the definition of "Motor Carrier" (Seems fairly clear to me) to include a Helicopter operator?

Would case law have any bearing on the outcome? Lately there have been several suits regarding overtime pay for helicopter pilots, and it all cases that I'm aware of, the pilots were awarded back pay for overtime worked. These suits were filed in states other than NJ however.

Again, my sincere thanks for your time and assistance.

I have found an article that may assist in understanding whether helicopter pilots may be considered non-exempt employees and, therefore, subject to overtime rules. You can read about it at: http://rotor.com/article.php?sid=1311

Ms. Connell, thank you for your time and research. I read that article previously, and all I get from it is that nothing has changed unless you are an airline pilot or make in excess of $100,000 per year. I also understand that the DOL has made it a policy not to enforce their own regulations, which I simply do not understand.

It has been made clear to me on several occasions, by several people, both verbally and in writing that I am an hourly, non-exempt employee. I believe the company made this determination in order to avoid having to pay my full salary while I was away on Military duty once a month. In fact, for the first 18 months of my employment, my military leave was not an issue, and my pay was not affected in any way. It was only after the company started having some financial issues that I was told that I was "Hourly" and therefore would not be paid while away on Mil leave (Only two to three days a month plus the two weeks in the summer). If I was considered Salaried - Exempt, they would not have been able to adjust my wages, as long as I had worked at least one day in that pay period which my military leave fell. Would this count as a Willful violation, since I can prove for the first 18 months that I was not penalized in any way for my Military duty?

I am still left with the following impressions. Would you agree or disagree?

1. I am an Hourly, FLSA non-exempt employee, as evidenced by correspondence both from the HR manager and the company's attorneys.

2. I am not a Driver or engaged in the operation of Interstate Motor Vehicle commerce, as evidenced by the legal definition of Motor Vehicle and the wording of the Motor Vehicle exception.

3. Given the above information, I am entitled to overtime compensation for all hours worked in excess of 40 hours per week.

4. The most likely reason I have not been paid overtime is because the DOL has set a precedent of non-enforcement, and my company therefore felt they could get away with not paying us what we deserve.

Does this sound accurate? Would I be justified in filing a NJDOL claim based on this information?

Again, my sincere thanks and appreciation for your assistance. If there is ever anything I can do to return the favor, please let me know.

I agree with you. When filing a claim with the state, make sure that you come prepared with the information about the federal stance of non-exempt (but, of course, leaving off the piece related to non-enforcement).

Ms. Connell, when you say information about the federal stance of non-exempt, are you referring to the Motor Carrier exception and the definitions I posted?

No, come with the following information highlighted, information that is found on the DOL website http://www.dol.gov/esa/regs/compliance/whd/fairpay/preamble_final.htm:
section 13(b)(3) of the Act, which exempts ``any employee of a
carrier by air subject to the provisions of title II of the Railway
Labor Act.'' Thus, pilots who are employed by commercial airlines are
exempt from overtime under section 13(b)(3). However, the exempt status
of other pilots, such as pilots of corporate jets, is determined under
section 13(a)(1), and has been the subject of recent litigation.
The Department has taken the position that pilots are not exempt
professionals. We have maintained that aviation is not a ``field of
science or learning,'' and that the knowledge required to be a pilot is
not ``customarily acquired by a prolonged course of specialized
intellectual instruction.'' See Wage and Hour Opinion Letter dated
January 20, 1975; In re U.S. Postal Service ANET and WNET Contracts,
2000 WL 1100166, at *7 (DOL Admin. Rev. Bd.).
A contrary result was reached in Paul v. Petroleum Equipment Tools
Co., 708 F.2d 168 (5th Cir. 1983). In Paul, the Fifth Circuit allowed
the learned professional exemption for a company airline pilot who held
an airline transport pilot (ATP) certificate, a flight instructor
certificate, a commercial pilot certificate, an instrument flight rules
(IFR) rating, and was authorized to fly both single and multiengine
airplanes. The court examined the Federal Aviation Authority
regulations setting forth the requirements for the licenses and
ratings, finding the combination of instruction and flight tests
sufficient to satisfy the requirement of a prolonged course of
specialized instruction, ``despite its distance from campus.'' Id. at
173.
Despite Paul, the Department continued to assert that pilots are
not exempt in Kitty Hawk Air Cargo, Inc. v. Chao, 2004 WL 305603 (N.D.
Tex. 2004) (Service Contract Act case), supported by the decision in
Ragnone v. Belo Corp., 131 F. Supp. 2d 1189, 1193-94 (D. Ore. 2001),
holding that a helicopter pilot was not exempt under section 13(a)(1).