07/10/2002

17. Does your truck driver or delivery people qualify for the exemption for overtime pay?

Your truck driver or delivery people can be paid on an hourly rate, salary, commission, day rate, etc. as long as the weekly payment yields at least the legal minimum rate for the weekly hours. You do not have to pay them time -and a- half for hours worked in excess of 40 hours per week-provided they qualify for this exemption for premium pay.

WARNING: This special exemption applies ONLY to truck drivers. YOU WILL be required to pay time- and -one -half to delivery men who deliver on foot, with the use of a bicycle, or even on a motor scooter. This exemption from the "time-and-one-half for all hours in excess of 40 hours per week" applies ONLY to those who engage in activities of a character directly affecting the safety of operation of motor vehicles and only in those workweeks in which such "interstate" deliveries are made. Just because you classify an employee on the payroll as a "truck driver" will not suffice. He must be, in fact, a truck driver for you. He may put up stock, sweep out, work in the shipping department, or do anything you request him to do when he has no deliveries to make.

If your "truck driver" performs the following duties, he will come within the above exemption:

1. Pick up or deliver any interstate mail or parcel post.
2. Pick up or deliver any interstate shipments to or from bus depots.
3. Deliver merchandise which has been especially ordered for your customer and which has not "come to rest".
4. Pick up or deliver any interstate freight or express at freight or express stations.
5. Deliveries and/or pick up of goods which cross state lines, and move in interstate commerce.

The exemption for "truck drivers" exempting them from the overtime provisions of the Wage-Hour Law, but not from the minimum wages thereof, applies ONLY to the truck drivers and/or assistant drivers of the safety of operation of the motor vehicle. Previous court decisions clearly point out that it does not apply to dispatchers, truck painters, washers, and we believe it is questionable whether it applies to the loaders.

It is extremely doubtful if the "truck driver" exemption would apply, for example, to a clerk or counterperson, who only occasionally, and for short periods of time, pick up or deliver mail at the post office, and perform no other significant or regular driving duties.