Of interest to labor lawyers is Section 4143, of SAFETEA-LU, entitled Authority To Stop Commercial Motor Vehicles. That section provides:

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1 A CASE OF UNINTENDED CONSEQUENCES- The Disappearance the Motor Carrier Act Exemption Under the FLSA? BY Ellen C. Kearns On August 10,2005, President Bush signed into law an Act known as the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy For Users (SAFETEA- LU). The Act authorizes funds for Federal-aid highways, highway safety programs, and transit programs, and for other purposes. Its legislative history began as HR-3, introduced into Congress by Rep. Don Young (R-AK). On July 28,2005, Representative Young submitted a conference report (H. Rept ) on the bill that consisted of more than 507 pages in the Congressional Record (H H7550). Seventy nine legislators were listed as the bill s cosponsor. Of interest to labor lawyers is Section 4143, of SAFETEA-LU, entitled Authority To Stop Commercial Motor Vehicles. That section provides: (a) In General.--Chapter 2 of title 18, United States Code, is amended by adding at the end the following: Sec. 39. Commercial motor vehicles required to stop for inspections (a) A driver of a commercial motor vehicle (as defined in section of titk 49) shall stop and submit to inspection of the vehicle, driver, cargo, and required records when directed to do so by an authorized employee of the Federal Motor Carrier Safety Administration of the Department of Transportation, at or in the vicinity of an inspection site. The driver shall not leave the inspection site until authorized to do so by an authorized employee. (b) NOTE: Penalty. A driver of a commercial motor vehicle, as defined in subsection (a), who knowingly fails to stop for inspection when directed to do so by an authorized employee of the Administration at or in the vicinity of an inspection site, or leaves the inspection site without authorization, shall be fined under this title or imprisoned not more than 1 year, or both. (Emphasis supplied.) Ellen C. Kearns is a member of the Boston Office of Foley & Lardner, LLP. She is the Editor -in-chief of the BNA treatise, The Fair Labor Standards Act, a member of the Board of Editors for its Annual Supplement, and a Chapter Editor (Massachusetts) of the BNA Treatise, Wage and Hour Laws, A State-by-State Survey. She writes and lectures frequently on wage and hour matters. BOST

2 According to the Conference Report, Section 4143 was not part of the House Bill (HR- 3). It was added to the Act, by Senate Bill, Section The Conference Report stated: The section would authorize FMCSA officials to ordcr trucks on the road to stop for inspection. Today, State MCSAP officers, but not FMCSA officials, have such authority. With the opening of the Mexican border, however, Federal inspectors will play an expanded role in roadside enforcement. Tn addition, there is no parantee that State or local police officers will always be avaiiable at border facilities or at other vehicle inspection facilities throughout the nation to order trucks lo stop [or an FMCSA iiispcction. Conference Substitute The Conference adopts the Senate provision. Section 4142 of SAFETEA-LU then redefined certain terms found in the Motor Carrier Act (various parts of Title 49). Specifically Section 4142 provided: (a) Definitions Relating to Motor Carriers.--Paragraphs (6), (7), (12), and (13) of section I3 102 of title 49, United States Code, are each mended by striking motor vehicle and inserting commercial motor vehicle (as defined in section ). Prior to August 10,2005, the Motor Camer Act, in Paragraphs (1 2) and (1 3) of Section of Title 49 provided: (1 2) Motor carrier. - The term motor carrier means a person providing motor vehicle transportation for compensation. (13) Motor private carrier. - The term motor private camer means a person, other than a motor carrier, transporting property by motor vehicle when - (A) the transportation is as provided in section of this title; (B) the person is the owner, lessee, or bailee of the property being transported; and (C) the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise. As a result of SAFETEA-LU, those sections of the Motor Carrier Act will now read: (1 2) Motor carrier. - The term motor carrier means a person providing transportation for compensation by commercial motor vehicle, as defined in Section (1) of this title. 2

3 (13) Motor private carrier. - The term motor private carrier means a person, other than a motor carrier, transporting property by commercial motor vehicle, as defined in Section ( 1) of this title when - (A) the transportation is as provided in section of this title; (B) the person is the owner, lessee, or bailee of the property being transported; and (C) the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise. According to the Conference Report, Section 4142:...harmonizes the jurisdictional reach of the commercial and the safety statutes by eliminating the requirement for motor carriers to register if they are not subject to the Federal motor carrier safety regulations. Senate Bill No comparable provision in Senate bill. Conference Substitute The conference adopts the House version. It is not clear what the Conference Report means with respect to the jurisdiction of the Secretary of Transportation to prescribe requirements for - (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation. However, it does appear that if these motor carriers or motor private carriers are not commercial motor vehicles as defined in Section (1) of Title 49, then the Secretary lacks jurisdiction to prescribe qualifications and maximum hours of service. Section ( 1) of Title 49 provides: (1) commercial motor vehicle means a self-propelled or towed vehicle used 017 the highways in interstate commerce to transport passengers or property, if the vehicle - 3 BOST

4 ~~ (A) has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater; (B) is designed or used to transport more than 8 passengers (including the driver) for compensation; (C) is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or (D) is used in transporting material found by the Secretary of Transportation to be hazardous under section 5103 of this title and transported in a quantity requiring placarding under regulations prescribed by the Secretary under section Why are these definition changes important. Well, for the most part, most persons covered by the Motor Carrier Act Exemption of the FLSA drive a vehicle that is less than 10,000 pounds. Thus, SAFETEA-LU may have made it very difficult for an employee to be covered by the Motor Carrier Act Exemption of the FLSA unless he or she drives a motor vehicle in excess of 10,000 pounds.. Background When the Fair Labor Standards Act (FLSA) was passed, in 1938, it contained two exemptions from the requirement to pay overtime pay for time worked in excess of 40 hours in a workweek.2 Those exemptions were for employees covered by the Motor Carrier Act (MCA) and for railroad employees. Specifically, Section 21 3 (b) (1) of the FLSA provided: The provision of section 207 [overtime requirements] of this title shall not apply with respect to--- (1) 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 section of Title 49;... Prior to August 10,2005 the Secretary of Transportation could prescribe requirements pursuant to Section 31502(b)of the Motor Carrier Act. That Section provided: The Secretary of Transportation may prescribe requirements for - (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees The 1938 version of the Act set the maximum work hours per week at 44 hours. Shortly thereafter, overtime pay was required after 40 hours per week. 29 U. S. C (b) (I) and (2). mtt

5 of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation. After SAFETEA-LU, what is at issue is whether the new definitions of motor carrier and motor private carrier limit the Secretary of Transportation s jurisdiction to commercial motor vehicles. It seems clear that Section 4142 of SAFETEA-LU amended the definitions of motor carrier and motor private carrier to include only commercial motor vehicles. The Motor Carrier Act, in Section provides: (2) motor carrier, motor common carrier, motor private carrier, motor vehicle, and United States have the same meanings given those terms in section of this title [49]. The definitional changes found in SAFETEA-LU may seem like a legal maze to the non-lawyer. However, as referenced above, it appears that the persons over whom the Secretary of Transportation now has the power to establish qualifications and maximum hours of service are those who transport property by commercial motor vehicle as that term is defined in the Motor Carrier Act. This will limit the Motor Carrier Act exemption to those persons who drive vehicles in excess of 10,000 pounds. 5 BOST