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Appeals court reverses District Court on overtime pay

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The 7th Circuit Court of Appeals has reversed a District Court’s finding that a tow truck driver was not entitled to overtime pay.

Bobby Johnson was a tow truck driver for Hix Wrecker for about four months, during which he worked 12-hour shifts. In the U.S. District Court, Southern District of Indiana, Johnson and Hix filed cross motions for summary judgment, with Hix claiming that Johnson was not entitled to overtime pay due to the motor carrier exemption to the Fair Labor Standards Act. Johnson argued he was not subject to the exemption and that the company’s owners and corporate secretary were individually liable for unpaid overtime wages.

The FLSA requires employers to pay overtime to employees who work more than 40 hours a week, according to 29 U.S.C. Section 207(a)(1). Ordinarily, the employees of a motor carrier that engages wholly in intrastate commerce are subject to the Secretary of Labor’s jurisdiction, and consequently to the overtime and maximum hours provisions of the FLSA. In contrast, the employees of a motor carrier that engages in interstate commerce may come under the Secretary of Transportation’s jurisdiction under the Motor Carrier Act 49 U.S.C. Section 31502. Under Section 31502(b), the Secretary of Transportation, rather than the Secretary of Labor, has the power to prescribe these employees’ qualifications and maximum hours of service.

Employees subject to the Secretary of Transportation’s jurisdiction are exempt from the FLSA’s maximum hour and overtime provisions, and the motor carrier has the burden to show that an employee is exempt, the 7th Circuit noted.

Many motor carriers engage in both interstate and intrastate commerce, but a motor carrier employee cannot be subject to the jurisdiction of both the Secretary of Labor and the Secretary of Transportation simultaneously. Citing Goldberg v. Faber Indus., Inc., 291 F.2d 232, 234-35 (7th Cir. 1961), the Circuit Court held that an employee comes within the Secretary of Transportation’s jurisdiction so long as the employee is “subject, at any time, to be[ing] assigned to interstate trips.”

In the District Court, Hix submitted an affidavit from its corporate secretary, Gail Neil, in support of its claim that the FLSA motor carrier exemption applied to Johnson because the company routinely provides out-of-state services. The appeals court disagreed.

In its opinion, Bobby Johnson Jr. v. Hix Wrecker Service Inc., et al., No. 09-3023, the court held that Neil’s affidavit did not show that Hix engaged in interstate commerce within a “reasonable period of time” prior to the time during which it claims the exemption for Johnson. It also held that the affidavit did not establish that Johnson was subject to being used in interstate commerce during the four-month period or during any other “reasonable period of time.”

Johnson argued that the District Court erred in not finding that he was entitled to summary judgment on his claim that the owners and secretary – as employers under the FLSA –  were liable for unpaid wages. The District Court, finding that Johnson was exempt, did not address that issue, so the appeals court remanded for further proceedings consistent with its opinion.

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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