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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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