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Hostlers, Switchers, and Yardmen, Oh My!

The Fair Labor Standards Act (FLSA) require that covered, non-exempt employees be paid one and one-half times their regular rate of pay for all hours worked in excess of 40 per week. 29 U.S.C. 207.

The Motor Carrier Act, however, exempts drivers, driver’s helper, loaders, and mechanics, who work for a “private motor carrier” from the FLSA’s overtime requirement. Therefore, these classes of employees are not entitled to be paid one and one-half times their regular rate of pay for hours worked in excess of 40 hours per week.

The Act states:

[The] exemption from the overtime compensation requirement of the FLSA applies to those employees and those only whose work involves engagement in activities consisting wholly or in part of a class of work which is defined (i) as that of a driver, driver’s helper, loader, or mechanic, and (ii) as directly affecting the safety of operation of motor vehicles on the public highways in transportation in interstate or foreign commerce within the meaning of the Motor Carrier Act. 29 C.F.R. § 782.2(b)(2)

But what about “hostlers,” “switchers,” and “yardmen”?

Persons who move trailers from a warehouse to a nearby yard, or from a staging area to a loading dock, are called “hostlers,” “switchers,” “yardmen,” or “yard-hostlers.” These employees are moving trailers on the same premises, on private property.

A number of court decisions in the last 60-odd years have consistently held that switchers are not exempt from overtime premiums. See, e.g., Walling v. Gordon’s Transports, Inc., 162 F.2d 203 (6th Cir. 1947); Billingslea v. Southern Freight, Inc., 669 F. Supp.2d 1369 (N.D. Ga. 2010); Verdi v. Domino Logistics Co., (N.D. Ohio, June 16, 2011).

Even the federal regulations have taken notice of judicial cases that switchers are not exempt from overtime premiums:

It has been held that so-called ‘hostlers’ who ‘spot’ trucks and trailers at a terminal dock for loading and unloading are not exempt as drivers merely because as an incident of such duties they drive the tricks and trailers in and about the premises of the trucking terminal…. 29 C.F.R. 782.4.

Thus, employees who perform the job of switchers are entitled to overtime premium. If switchers aren’t paid overtime premium, they may sue their employers for unpaid overtime compensation for the past three years, liquidated damages, and declaratory relief. If the employees prevail, they may also be entitled to recovery of all attorney’s fees and costs.

In each case cited above, switchers have won and employers have lost.

Granted, the number of cases involving switchers who allege overtime premium violations are few and far in between. However, it is clear that the courts will scrutinize whether switchers do any of the work performed by drivers, driver’s aides, loaders, and mechanics.

If the employer stands a half-chance of winning, the employer must set forth a strong argument and analogize switchers as either drivers, driver’s aides, loaders, or mechanics. Put in another way, the employer must argue that she misclassified these so-called switchers.

The courts are cognizant that “[i]n determining whether an employee falls within such an exempt category, neither the name given to his position nor that given to the work that he does is controlling; what is controlling is the character of the activities involved in the performance of his job.” 29 C.F.R. 782.2(b)(2).

In addition to successfully analogizing switchers as one of the covered classes of employees, the employer must also show that these alleged switchers performed work that “directly affected the safety of operation of motor vehicles on the public highways in transportation in interstate or foreign commerce within the meaning of the [Motor Carrier Act].”

These are not easy arguments to make. The employer has a very high burden. No wonder switchers have prevailed… so far.

 

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