Standards Act. Since the Commission has disclaimed jurisdiction over this type of operation,92 it is the Divisions' opinion that drivers, drivers' helpers, loaders, and mechanics employed by companies engaged in such activities are covered by the wage and hours provisions of the Fair Labor Standards Act, and are not within the exemption contained in section 13 (b) (1).93

94

(b) The Interstate Commerce Commission has disclaimed jurisdiction under the Motor Carrier Act of employees engaged in the transportation of mail under contract with the Post Office Department in vehicles used exclusively for that purpose. It would thus appear that such employees of mail contractors are not within the exemption provided by section 13 (b) (1) of the Fair Labor Standards Act. Employees of mail contractors are not employees of the United States within the meaning of section 3 (d) of the Fair Labor Standards Act. Since they are considered "engaged in commerce" within the meaning of the act, it is the position of the Divisions that they are entitled to overtime compensation under section 7 of the Fair Labor Standards Act.96

95

4 See 3 M. C. C. 694, 697.

Repsher v. Streepy (E. D. Pa.), 7 Wage Hour Cases 769, 14 Labor Cases par. 64,364; Fleming v. Gregory, 36 F. Supp. 776; Thompson v. Daugherty, 40 F. Supp. 279; Magann v. Long's Baggage Transfer Co., 39 F. Supp. 742.

Repsher v. Streppy (E. D. Pa.), 7 Wage Hour Cases 769, 14 Labor Cases par. 64,364; Thompson v. Daugherty, 40 F. Supp. But see Magann v. Long's Baggage Transfer Co., 39 F. Supp. 742, contra.

279.

motor carrier

or

water carrier * a freight forwarder * * * in the performance within terminal areas of transfer, collection, or delivery service." Thus, drivers, drivers' helpers, loaders, and mechanics of a motor carrier performing pick-up and delivery service for a railroad, express company, or water carrier are to be regarded as within the 13 (b) (1) exemption." The same is true of drivers, drivers' helpers, loaders, and mechanics employed directly by a railroad, a water carrier or a freight forwarder in pick-up and delivery service. Section 202 (c) (1) of the Motor Carrier Act, as amended on May 16, 1942, includes employees employed by railroads, water carriers, and freight forwarders, in transfer, collection, and delivery service in terminal areas by motor vehicles within the Interstate Commerce Commission's regulatory power under section 204 of the same act.98 Both before and after the amendments referred to, it has been the Divisions' position that the 13 (b) (1) exemption is applicable to drivers, drivers' helpers, loaders and mechanics employed in pick-up and delivery service to linehaul motor carrier depots or under contract with forwarding companies, since the Interstate Commerce Commission had determined that its regulatory power under section 204 of the Motor Carrier Act extended to such employees.

CODIFICATION: In sec. 782.8 footnote 92 was amended to read as set forth below, 16 F. R. 4273, May 9, 1951.

See Levinson v. Spector Motor Service, 330 U. S. 649 (footnote 10); cf. Cedarblade v. Parmelee Transp. Co. (C. A. 7), 166 F. (2d) 554, 14 Labor Cases, par. 64,340.

See Morris v. McComb, 332 U. S. 422 (footnote 14). Such employees of a carrier subject to Part I of the Interstate Commerce Act may come within the exemption from the overtime requirements provided by section 13 (b) (2). Cf. Cedarblade v. Parmelee Transp. Co. (C. A. 7), 166 F. (2d) 554, 14 Labor Cases, par. 64,340. Thus, only employees of a railroad, water carrier, or freight forwarder outside of the scope of Part I of the Interstate Commerce Act and of the 13 (b) (2) exemption are affected by the above on and after the date of the amendment.

OCTOBER 1959 ISSUE

U.S. GOVERNMENT PRINTING OFFICE: 1963 O691-355