May 13, 2009

Holding that an employer had failed to prove its employees were covered by the motor carrier exemption to the overtime compensation requirements of the California wage and hour laws, the California Court of Appeal has reversed summary adjudication for the employer. Gomez v. Lincare, Inc., No. G040338 (Cal. Ct. App. Apr. 28, 2009).  The Court concluded the employer had not shown that its employees qualified for the exemption, because it was unable to demonstrate they drove a vehicle carrying hazardous materials each workday.  The Court remanded the case for further proceedings.

The plaintiffs worked as service representatives for a respiratory services and medical equipment provider.  Their duties included transporting oxygen, oxygen concentrators and liquid oxygen systems and setting up the equipment for homebound patients.  The plaintiffs worked eight-hour shifts, Monday through Friday; if they worked more than eight hours in a day as part of their regular hours, they were paid overtime.  They also carried pagers or cell phones to respond to patient phone calls after hours and on the weekend.  The employer’s on-call policy required the plaintiffs to respond to pages within 30 minutes and to be available to respond to patient calls, in person, within two hours.  The plaintiffs were prohibited from consuming alcohol while on call, but otherwise were free to engage in personal activities.  When the plaintiffs made service visits after hours, they were compensated at their regular rate of pay.  If they were able to resolve the customer’s problem by telephone without making a service visit, they were instructed not to record that time, and they were not compensated for it. 

The plaintiffs sued the employer, among other things, for allegedly unpaid compensation and overtime.  The employer moved for summary adjudication on the plaintiffs’ wage claims, arguing that they were exempt from overtime under the motor carrier exemption of the California Labor Code because they transported hazardous materials.  The trial court granted the employer’s motion, and the plaintiffs appealed.

Under the California Code of Regulations, employees who transport hazardous materials are exempt from the rules regarding overtime compensation.  Addressing this exemption, the Division of Labor Standards Enforcement Policies and Interpretations Manual states that it “only applies to employees whose regular duty is that of a driver, not any other category of worker.”  The Manual also states, “any driver who does not drive or operate a truck for any period of time during an entire workday is entitled to overtime premium compensation for all overtime hours worked performing duties other than driving during that day.” 

The Court found that the employer failed to offer evidence showing that the plaintiffs drove a vehicle containing hazardous material every workday.  The plaintiffs did not drive every day, the Court said, and they did not always have the employers’ vans with them when they were on call.  Accordingly, it held that the employer failed to prove that the motor carrier exemption applied and that the trial court had erred in granting summary disposition on this claim.

This case reminds employers that overtime exemptions are interpreted narrowly and that they need to pay close attention to the specific requirements of any exemption to avoid liability.  Employers should review their policies and practices regularly to ensure compliance.  Jackson Lewis attorneys are available to train managers regarding California’s complex wage and hour requirements and to conduct audits of time records to ensure compliance with federal and state wage and hour laws.

© 2007 Jackson Lewis LLP. Reprinted with permission. Originally published at www.jacksonlewis.com. Jackson Lewis LLP is a national workplace law firm with offices nationwide.