Dock loader who rides trucks to check freight safety is an exempt 'driver's helper'

Minimum Wage Opinion Letter 03-17-03 - Applicability of M.G.L. c. 151, §1A(8)

March 17, 2003

I am writing in response to your request for this Office's written opinion regarding the applicability of M.G.L. c.
151, §1A(8), a state overtime exemption, to a dock loader who primarily performs loading functions but also
spends a portion of the workday riding on loaded trucks. [1]

Generally, the Massachusetts Minimum Fair Wage Law, M.G.L. c. 151, requires employers to pay overtime
compensation for work in excess of 40 hours in a given workweek. Section 1A(8) provides an exemption from
this requirement. It provides, in pertinent part, that an employer need not pay overtime to "a driver or helper on
a truck with respect to whom the Interstate Commerce Commission has power to establish qualifications and
maximum hours of service pursuant to the provisions of section two hundred and four of the motor carrier act of
nineteen hundred and thirty-five." This exemption closely tracks an exemption found in federal minimum wage
and overtime law, the Fair Labor Standards Act, with an important exception. Section 1A(8) only exempts "a
driver or helper on a truck," while federal law exempts "any employee with respect to whom the Secretary of
Transportation has power to establish qualifications and maximum hours," which includes four categories of
workers: drivers, drivers' helpers, loaders and mechanics. [2] See 29 U.S.C. §213(b)(1).

Recognizing this distinction, this Office, in a letter opinion issued February 26, 2002, stated that for an
individual worker to be exempt from overtime compensation under M.G.L. c. 151, §1A(8), the following
criteria must be met: 1.) the driver or helper on a truck must be an employee with respect to whom the Secretary
of Transportation has power to establish qualifications and maximum hours of service pursuant to the Motor
Carrier Act of 1935 as codified; 2.) the employee must be a "driver" as defined by 29 C.F.R. §782.3 or a
"drivers' helper" as defined by 29 C.F.R. §782.4, i.e. be employed in these classes of work and be performing
safety-affecting activities. Loaders and mechanics are not included within the M.G.L. c. 151, §1A(8)
exemption.

Turning to the case presented, according to the job description for "Dock Loader" submitted to this Office, this
particular employee's "primary responsibility is loading of outbound trailers for delivery in a timely and
efficient manner [and] unloading of inbound trailers as necessary." The employee's time is apportioned as
follows:

Loading and securing of outbound freight — Daily — 65%
Unloading of inbound trailers as necessary — Daily — 10%
Timely and efficient submission of related paperwork — Daily — 10%
Secure and check freight for safety purposes via a short ride with driver — Daily — 5%
Marginal functions: housekeeping, re-stacking of freight, training and assisting new employees — Daily — 10%

As the state exemption is limited to drivers and helpers on trucks, the relevant question is whether the time spent
riding on the truck and assessing the load for safety purposes (5%) causes this employee to fall within the
category of a "drivers' helper," thereby changing the employee's otherwise non-exempt status as a loader under
state overtime law.

A "drivers' helper" is defined under 29 C.F.R. §782.4 as:

an employee other than a driver, who is required to ride on a motor vehicle when it is being operated in
interstate or foreign commerce within the meaning of the Motor Carrier Act . . . This definition has classified all

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such employees, including armed guards on armored trucks and [conductors] on buses, as "helpers" with respect
to whom he has power to establish qualifications and maximum hours of service because of their engagement in
some or all of the following activities which, in his opinion, directly affect the safety of operation of such motor
vehicles in interstate or foreign commerce (citation omitted):

Assist in loading the vehicles (they may also assist in unloading (citation omitted), an activity which has been
held not to affect "safety of operation," ...; dismount when the vehicle approaches a railroad crossing and flag
the driver across the tracks, and perform a similar duty when the vehicle is being turned around on a busy
highway or when it is entering or emerging from a driveway; in case of a breakdown, (1) place the flags, flares,
and fuses as required by the safety regulations. (2) go for assistance while the driver protects the vehicle on the
highway, or vice versa, or (3) assist the driver in changing tires or making minor repairs; and assist in putting on
or removing chains.

29 C.F.R. §782.4(a). Such an employee may be a "helper... even though such safety-affecting activities
constitute but a minor part of his job." 29 C.F.R. §782.4(b). Section 782.4(c) further states that this "exemption
applies to employees who are, under the Secretary of Transportation's definitions, engaged in such activities as
full- or partial- duty helpers' on motor vehicles being operated in transportation in interstate or foreign
commerce within the meaning of the Motor Carrier Act."

Given this broad definition, it would appear that the employee in question, who rides on the truck to check
freight for safety purposes, would be considered a "drivers' helper" (and therefore a "helper on a truck" within
the meaning of M.G.L. c. 151, §1A(8)), provided the employee is required to ride on the motor vehicle when it
is being operated in interstate or foreign commerce within the meaning of the Motor Carrier Act. [3] Even
though this employee's primary duties are clearly those of a "loader," it is equally clear that the federal overtime
exemption applies regardless of the proportion of the employee's time which is devoted to "safety-affecting"
driver's helper activities. See 29 C.F.R. §§782.2(b)(3), 782.4(b), 782.4(c). See also Morris v. McComb, 332
U.S. 422 (1947) (exemption applied where total trips made by drivers in interstate commerce was three to four
percent of carrier's business). Given that the state exemption mirrors the federal exemption as it relates to these
driver's helpers, it is this Office's opinion that M.G.L. c. 151, §1A(8) should similarly apply regardless of the
proportion of time spent performing "safety-affecting" driver's helper activities. [4] See Goodrow v. Lane
Bryant, Inc., 423 Mass. 165, 169-170 (2000) (in the absence of a statutory definition, we may look to
interpretations of analogous Federal statutes for guidance). Therefore, the employee in question is a "helper on a
truck" within the meaning of M.G.L. c. 151, §1A(8), and is exempt from state overtime law, provided the
employee is required to ride on the motor vehicle when it is being operated in interstate or foreign commerce
within the meaning of the Motor Carrier Act.

I hope this information has been helpful. Please note that this opinion is based solely on the information
provided with your request. The existence of other facts not contained in your request might require a different
conclusion. If you have any further questions, please feel free to contact me.

Sincerely,
Lisa C. Price
Legal Counsel

Footnotes:

1. I will assume, for the purposes of this discussion, that the individual is employed by a carrier whose
   transportation of passengers or property by motor vehicle is subject to the Secretary of Transportation's
   jurisdiction under section 204 of the Motor Carrier Act as codified, and that the trucks involved are transporting
   goods moving in interstate commerce.

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2. The relevant functions, powers, and duties of the Interstate Commerce Commission were transferred to the
   Secretary of Transportation in 1966.
3. A dock loader who is not required to ride on a motor vehicle when it is being operated in interstate or foreign
   commerce within the meaning of the Motor Carrier Act is not a "helper on a truck" within the meaning of
   M.G.L. c. 151, §1A(8). See DOS Minimum Wage Opinion Letter, dated August 6, 2002.
4. This assumes that such "safety-affecting" activities are not so insignificant as to be de minimus. See 29
   C.F.R. §782.2(b)(3).