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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17254
Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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I had an employee (Truck Driver) that was paid as a percentage

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I had an employee (Truck Driver) that was paid as a percentage of gross. His housing was provided for by the company. He paid for 60% of propane that he used. The company picked up the other 40% of the propane cost. His pay was calculated at 27% of the hourly gross of what the truck made, while he was driving it. His paychecks were calculated as a straight hourly wage, based on the 27%. Eventually, some of the work from an hourly wage to a barrel rate. He was still paid the same percentage rate of the gross, the truck made. Some of the companies lowered the hourly rate, and consequently his amounts went down as well. Since there was a variety of wage rates, we decided on a set hourly wage, which was close to the original amount, regardless of what the truck made, and the company would start paying for his travel to and from Washington State and North Dakota, at his choose of travel, fuel to drive or flight costs. Work slowed, and as a result, he quit. I received a certified letter today stating that he has secured a lawyer, and that he wants to be paid for any OT hours worked since April of last year. The letter wasn't from a law firm, rather a personal account of the situation.What is the possibility of him collecting.
Is that a possibility
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,

Thank you for the information and your question. This employee, since he was a truck driver who drove in interstate commerce is not entitled to overtime. That is because of the Motor Carrier Exemption under the Fair Labor Standards Act. That exemption relieves employers of paying overtime to certain employees, in this case a trucker who drives in interstate commerce. You can see the details of the exemption by going to: http://www.dol.gov/whd/regs/compliance/whdfs19.htm

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Customer: replied 1 year ago.

He mainly drove within the state of ND, which would be instrastate. My corporation is registered as an Interstate filing, for Wyoming, Montana, and ND. The employee has never driven for me, in any other state, except twice, briefly thru the NW tip of SD going to Wyoming from ND, on a haul. Does this Act still apply. And what should I do as a reaction to his letter?


 

Expert:  Marsha411JD replied 1 year ago.
Hello again and thank you for your reply. As you may know, since you are a regular customer on JustAnswer, I cannot provide you with legal advice. I can only tell you what the law is. I might suggest that you read the information at the link I provided carefully. You spoke of his travel from Washington to ND, if that was in a company truck, then that is interstate commerce. In addition, if he was driving on public highways and took the goods to a location where they continued on in interstate transit. In addition, if he did any interstate transportation, he would arguably be covered. Ultimately, if this is not clear after you read the DOL guidance, you have a few choices. One is to sit down with a local employment law attorney who understands the FLSA to discuss in detail what this driver's duties are and see if they think you should make him an offer to pay legitimate overtime. If not, he can write the driver a letter and tell him that you are denying that you owe him anything and in the future to contact your attorney. The only other option, is to pay him what he is asking for. However, I would not recommend you do that until you sit down and have that consultation with the attorney I mentioned.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17254
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
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