Question about overtime for drivers helpers in the moving industry
 

I am trying to do some research about whether packers and loaders in the moving industry are entitled to overtime. Those that do not drive but ride with a driver or by other means go to jobsites and pack people's belongings. I was instructed that they are not entitled to overtime, but I disagree and was looking for some advice or your thoughts.
Say for instance, somebody gets in a regular company straight truck rides 350 mile, packs a customers belongings, and then rides back to the employers address. Let's say you did this five times a week and it took you 60 hours total, would this person be eligble for 20 hours overtime? Not sure really how to explain what I am trying to get at, but hopefully this will make some sort of sense.

In many cases the answer is no, they are not entitled to overtime pay under the federal law.

elaws - Fair Labor Standards Act Advisor

http://www.dol.gov/esa/whd/regs/compliance/whdfs19.pdf (PDF File)

I once worked for a local moving company. Everyone got paid differently, according to what they did, but everyone got time-and-a-half, after 40 hours.

I reckon some places are different than others.

In most cases, the driver is subcontracting work to the labor, and is paying on a 1099. They are not, in that case, eligible for overtime.

I may have mis-read the question. Was the OP talking about "lumpers"?
If that's the case, I guess it would be up to the driver if he wanted to pay his lumpers overtime. :lol:

No, I am not talking about lumpers. Was wondering about regular company employees paid hourly, W2 workers, who pack people's belongings or take furniture and/or boxes out of people's house so that the van operator might load them on to his truck. It would seem that these folks do not provide any safety sensitive function pertaining to operating a commercial vehicle and thus be entitled to overtime.

Ummmm....Those are lumpers. They are casual labor which is paid via a 1099 by the driver. They are self employed when working for the driver, and are simply provided via a labor pool by the moving company. They are occasionally employed by the moving company themselves, but rarely (if ever) see 40 hours a week doing so. If they do, they would be paid overtime.

The proper loading of a trailer is a safety sensitive function.

Are they employed by an agent?

When I worked for Allied, I was considered an employee of the agent. Paid by W-2, by the hour, overtime after 40 hours, and OT on any office move after 5PM.(regardless if I had 40 hours already or not).

I guess you can call them lumpers if you like, hell, you can call them Smurfs if it make you feel better but they are paid by the hour and do receive a W2. The driver/s are paid by the hour, as well. This is an agent of U.V.L. and we do alot of local moves, office stuff, and storage; but they are saying that the guys that ride with the driver to the job site are to be paid .16 cents per mile if the trip is over 100 miles. They usually don't travel father than 300 miles but sometimes have to travel back and forth for several day to complete a job. And I am the guy that they come complaining to because they are not getting overtime when they get paid for these lenghty drives. Just trying to figure out the legality of this situation. If they get paid hourly normally, why would they not get paid by the hour when they have to ride 120 miles or so? They do not actually load the trailer, the van operator *AKA the driver* does, which is why I was asking is their job really a safety sensitive situation. Sometimes no loading at all is involved, just four or five employees going out to someone's residence and pack up all of a customer's belongings and then go home at the end of the day. Even then they are saying they should receive mileage pay for drive time instead of their normal hourly wage,on trips over 100 miles, which sometimes eliminates their overtime.


I found this from Layover.com and is worth a read. Interesting!




New Overtime Rules
You might have missed it, but Congress passed a law, which may change the way you do business. There are significant potential consequences from the amendment to the so-called Motor Carrier Exemption to the Fair Labor Standards Act. Historically, before the passage of this law, employees of public or private motor carriers who are drivers, drivers' helpers, loaders, or mechanics, whose work could arguably affect the safety of operation of motor vehicles in interstate commerce, are not entitled to overtime due to something called the 13(b)(1) or Motor Carrier exemption.
Back in June, Congress changed the law and severely limited the application of that exemption. Now, it appears that what is critical is to determine whether those employees are or are not entitled to overtime is the type of vehicle they are either driving, loading, or working on. Before this Act, an employer could argue that as long as the employer was a motor carrier, it did not matter whether these types of employees performed work on "motor vehicles" or "commercial motor vehicles." Now, according to this new law, the type of vehicle those particular employees work on is critical and will determine whether or not they will be subject to overtime.

In this new law, the term "commercial motor vehicle" includes the following vehicles:

Vehicles weighing ten thousand one (10,001) pounds or more
Vehicles designed or used to transport more than eight (8) passengers (including the driver) for compensation
Vehicles designed or used to transport more than fifteen (15) passengers without compensation
Vehicles used in transporting hazardous materials
If a vehicle does not fit into one of these four categories described above, it is a "motor vehicle."

Simply put, from June 6, 2008 forward, any driver, driver's helper, loader, or mechanic whose work, in whole or in part affects the safety of operation of motor vehicles will be subject to overtime.

The critical reference to "whose work in whole or in part," suggests that an employee who may historically have been exempt from overtime, who performs any duties on "motor vehicles" is now entitled to overtime unless some other exemption is applicable besides the Motor Carrier Exemption. An example might illustrate how the exemption could be lost. Suppose, for example, shop mechanics perform work on a variety of "commercial motor vehicles," but on occasion perform work on "motor vehicles." Because they worked "in part" on "motor vehicles," they would lose their exemption from overtime and would be entitled to statutory overtime.

The change is significant and will affect such industries as trucking, limousine carriers, and other "motor carriers" both public and private.

Before this law, the 13(b)(1) exemption applied to those employees who worked only some portion of the week as a driver, driver's helper, loader, or mechanic if their work affected the safety of operation of "motor carriers" in interstate commerce. It was irrelevant how much of the employee's time was actually devoted to such safety-affecting work in the particular work week. Furthermore, the employee was not entitled to overtime even in a work week when the employee performed no work directly affecting the safety of operation of "motor vehicles" in interstate commerce (i.e., crossing state lines or completing an intrastate leg of an interstate trip).

The new law appears to change that analysis. From June 6, 2008 forward, an employer will have to break down the duties of its drivers, driver's helpers, loaders, or mechanics perform. The overtime exemption dramatically changes if one of those employees occasionally performs duties on a "motor vehicle," as opposed to a "commercial motor vehicle." Thus, the employee would apparently be entitled to overtime for the entire week in which he performed any work on a "motor vehicle." On the other hand, if the employee did not work on any "motor vehicles," but restricted himself to work on "commercial motor vehicles," then no overtime would be owed and the 13(b)(1) exemption would be preserved.

The next question is what these industries should do to maintain the exemption. I would suggest assigning a particular employee or group of employees to work on motor vehicles, such as part-time workers or anyone who wouldn't work more than 40 hours per week or simply, contract out this type of work