Just maybe the FLSA will finally apply to trucking

March 30, 2022

John Bendel

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Hallelujah!

There it is. Number 40 of 62 policy recommendations in a document of more than 100 pages: “Urge Congress to eliminate the Fair Labor Standards Act motor carrier exemption.”

It’s about time. The Fair Labor Standards Act was passed in 1938 – 84 years ago. For all that time, commercial and private carrier drivers, dock workers and mechanics have not been covered by the law that requires other employers to pay workers time-and-a-half for more than 40 hours. It wasn’t a big deal when most drivers earned overtime because of union contracts. But it became a big deal with the end of economic regulation and spread of mileage pay in the burgeoning truckload sector.

The recommendation to end the exemption appears in a U.S. Department of Transportation document titled “Supply Chain Assessment of the Transportation Industrial Base: Freight and Logistics.” The study was ordered by the Biden administration in 2021 in response to the ongoing logistics logjam. The FLSA may just be the tiniest of the study’s concerns, but it matters.

The trucking exemption to the FLSA is mean and disrespectful. It was unconscionable in 1938 and is even more so now. The truckload industry has used it for decades to shift the cost of delays onto drivers. It’s hard to believe it has taken this long for anyone in national government to recommend we get rid of it.

How did the trucking exemption happen in the first place?

In 1937, the Franklin D. Roosevelt administration proposed the Fair Labor Standards Act to abolish child labor, set a national minimum wage, and make overtime pay mandatory. The White House sent a draft of the bill to Congress. Of course, affected businesses lobbied Congress for self-serving changes. If they couldn’t stop the FLSA completely, they demanded that their workers be exempted.

Lobbying against the FLSA was effective. The minimum wage proposed in the original version of the law was 40-cents an hour. In the final bill after months of lobbying, it had been whittled down to 25 cents. Large numbers of workers in industries with political clout across many states – agriculture, for example – were exempted from the law. Many other industries carved out exemptions for, if not all, then at least some employees.

But why was trucking exempted?

Once, an officer of the Truckload Carrier Association told me overtime pay would encourage drivers to work too many hours. Baloney, of course. Maybe someone did suggest that to congressional committees working on the FLSA. Maybe they sobbed to senators that management couldn’t monitor drivers on the road, that FLSA would bankrupt carriers, and that overtime for drivers would send the entire industry off a cliff. Maybe the trucking industry – much of which had been represented in Washington, D.C., by ATA since 1933 – came up with other reasons to leave drivers without FLSA protection.

Some opponents even claimed the FLSA would affect safety. Safety is still cited in legal references to the trucking exemption. According to a Department of Labor fact sheet, the trucking exemption from the FLSA applies to carrier workers engaged in “safety-affecting activities,” including drivers, drivers’ helpers, loaders, and mechanics.

Sure, driving is a “safety-affecting activity,” but drivers’ helpers? Are mechanics more likely to tighten bolts better on straight time than on time-and-a-half? Would loaders on time-and-a-half stack the freight too high? When it came to drivers, hours-of-service were regulated that same year by the ICC. Driver logs were a fact. It was not a real issue.

It’s true that the ability to directly supervise drivers was out of management’s hands. But drivers worked out of management’s sight whether they earned overtime or not. No matter what the industry said to Congress or the public, the real issue was money – about having to pay drivers more. All the other reasons to exempt trucking from the FLSA were – and are – nonsense.

Does the latest policy suggestion mean trucking’s exemption from the FLSA is on the way out?

In the short term, the answer is maybe. The change would have to be approved by both houses of Congress and the President, which isn’t going to happen any time soon – especially not as a freestanding piece of legislation. The proposal would probably have to be rolled into a larger bill, say a future transportation funding measure. Of course, that can only happen with enough sponsors and support in the legislature.

But the issue is now on the table. In fact, OOIDA is bringing the FLSA exemption issue to lawmakers in D.C. now. According to Bryce Mongeon, OOIDA’s director of legislative affairs, OOIDA is the only trucking organization actively working on the exemption issue.

Sadly, an end to the exemption would not make a big and immediate difference in what drivers earn. Obviously, carriers would have to pay for hours worked, including overtime, but the FLSA does not preclude mileage pay. Carriers would probably pay a combination of both, and you can bet that carriers would reduce mileage pay to make up the difference.

But it would mark a fundamental change. Drivers’ time would be worth something, even if it was just a federal or state minimum wage. Hopefully, driver compensation could then evolve so that carriers would have an economic incentive to face down those shippers and consignees who tie up trucks for hours on end – the bane of the trucking industry and a drag on national productivity.

The policy suggestion itself won’t bring change, but it may be a straw in wind. With luck and some serious effort, healthy, righteous change could be on the horizon and headed our way. LL

John Bendel is Land Line’s contributing editor-at-large. A former trucker, former editor at National Lampoon and two trucking magazines, John is an author, photographer, and freelancer. His work has appeared in the New York Times, The Washington Post, and many U.S. newspapers.