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Overtime
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Overtime
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Hello,
Just need some feedback from fellow HR professionals. My husband started a job a few months ago in IL as a delivery driver. He is just delivering merchandise, no CDL or OTR driver. The positi
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Forums » Topic Forums » Benefits & Compensation » Overtime
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Overtime
posted at 3/28/2011 10:28 AM EDT
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Posts: 92
First: 2/4/2002 Last: 3/28/2011 |
Hello,
Just need some feedback from fellow HR professionals. My husband started a job a few months ago in IL as a delivery driver. He is just delivering merchandise, no CDL or OTR driver. The position requires him to travel out of state once per week. The company pays him for 40 hours only as a salaried employee. No OT payments regardless of hours worked and he was actually docked 4 hours of pay when they didn't have work for him one day. What are the requirements for compensation when an employee has to travel out of town for work? They also wanted him to start an additional route where he would be out of town 3 days per week and then still be required to work an additional 2 days locally but only be paid for 40 hours. My husband argued that he would be traveling Mon-Wed out of state and he would be gone for 56 hours and yet still be required to work another 16 hours when he returned and only receive pay for 40 hours. He stated it is not fair to make him travel all that time and receive no additional compensation. Any thoughts? I have thought about calling IL Dept. of Labor. Thank you. |
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Overtime
posted at 3/28/2011 1:37 PM EDT
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
First of all, there is no way that a delivery driver is an exempt salaried employee. Your husband is entitled to overtime for all hours worked.
If your husband is the driver of the vehicle making out of town deliveries, that's compensable time. If that time puts him over 40 hours worked in a work week, then it's paid at overtime rates. Your husband can complain to a state department of labor or a federal DOL Wage and Hour office. What he should be doing right now is keeping a very detailed record of his actual hours worked. Time he started work, time he ended work, time he took for meals, and what his days activities were. Not only will you want that to substantiate the claim, but you'll also want it to help DoL calculate the treble damages he'll be entitled to. |
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Overtime
posted at 3/29/2011 2:39 AM EDT
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Posts: 1771
First: 10/24/2002 Last: 9/14/2011 |
I was under the impression that some types of truck drivers were exempt from OT pay - that while they must be paid at their regular rates for every hour they work, there's no legal requirement to pay them OT rates for any hours worked above 40 in a week. Maybe I'm misinformed on this? |
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Overtime
posted at 3/29/2011 5:26 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
(sorry this is a bit long, but I like to provide actual references directly from the DOL that he could copy, print and use)
From the DOL : http://www.dol.gov/whd/regs/compliance/hrg.htm#8 Exemptions from Both Minimum Wage and Overtime Pay Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and employees in certain computer-related occupations (as defined in DOL regulations); Employees of certain seasonal amusement or recreational establishments, employees of certain small newspapers, seamen employed on foreign vessels, employees engaged in fishing operations, and employees engaged in newspaper delivery; Farmworkers employed by anyone who used no more than 500 âman-daysâ of farm labor in any calendar quarter of the preceding calendar year; Casual babysitters and persons employed as companions to the elderly or infirm. Exemptions from Overtime Pay Only Certain commissioned employees of retail or service establishments; auto, truck, trailer, farm implement, boat, or aircraft sales-workers; or parts-clerks and mechanics servicing autos, trucks, or farm implements, who are employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers; Employees of railroads and air carriers, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans; Announcers, news editors, and chief engineers of certain non-metropolitan broadcasting stations; Domestic service workers living in the employerâs residence; Employees of motion picture theaters; and Farmworkers. I see where it states "local delivery employees...", but when you add travel into that, I am not so sure it applies. I don't see any other exemption that could apply. Travel time is interesting as it usually MUST be paid (for non exempt employees) during normal work hours, including those that would fall on a weekend. However it does not have to be paid after normal hours unless the employee is actually still working. "§ 785.38 Travel that is all in the day's work. Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer's premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8 p.m. is home-to-work travel and is not hours worked. ( Walling v. Mid-Continent Pipe Line Co., 143 F. 2d 308 (C. A. 10, 1944)) Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile. FLSA § 785.39 Travel away from home community....§ 785.41 Work performed while traveling. Any work which an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer." Most of the above is found in Section 785 of the Fair Labor Standards Act (FLSA). You can google "FLSA Section 785" and you should read the actual regulations. They are pretty straight forward. Your best bet is to solve the "exempt"/"salaried" issue first and then the travel time issue will be solvable. Definitely track and document his time well. Because he can file a wage claim if needed that way. |
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Overtime
posted at 3/29/2011 5:36 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
I'd also have him read through :
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.2.41&idno=29#29:3.1.1.2.41.0.391.4 that explains the Motor carriers Exemption to see if it is something that applies. It gets into the knitty gritty and gets mind boggling at times. If the exemption does apply, it only exempts from OT, not from minimum wage for all hours worked. And honestly it looks like it is going to get down to the very details of the company and the job. Not sure you can post enough info for any of us to make a determination. I do know a consultant who worked for the DOL for years and is an expert on FLSA and FMLA if you are interested. |
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