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UNITED STATES OF AMERICA

Part 782—Exemption From Maximum Hours Provisions for

Certain Employees of Motor Carriers

Section
782.0 Introductory statement.
782.1 Statutory provisions considered.
782.2 Requirements for exemption in general.
782.3 Drivers
782.4 Drivers' helpers.
782.5 Loaders.
782.6 Mechanics.
782.7 Interstate commerce requirements of exemption.
782.8 Special classes of carriers.

AUTHORITY: Sections 782.0 to 782.8 issued under 52 Stat. 1060, as amended; 29
U.S.C. 201 et seq.

SOURCE: Sections 782.0 to 782.8 appear at 13 F.R. 2346, Apr. 30, 1948, except as
otherwise noted.

SECTION 782.0 INTRODUCTORY

STATEMENT

(a) Since the enactment of the Fair Labor Standards Act of 1938, the views of the Administrator of the Wage and Hour Division as to the scope and applicability of the exemption provided by section 13(b) (1) of the act have been expressed in interpretations issued from time to time in various forms. This part, as of the date of its publication in the FEDERAL REGISTER, supersedes and replaces such prior interpretations. Its purpose it to make available in one place general interpretations of the Administrator which will provide “a practical guide to employers and employees as to how the office representing the public interest in enforcement of the law will seek to apply it.” 1 The interpretations contained

in this part indicate, with respect to the scope and applicability of the exemption provided by section 13(b) (1) of the Fair Labor Standards Act, the construction of the law which the Secretary of Labor and the Administrator believe to be correct in the light of the decisions of the courts and of the Interstate Commerce Commission, and which will guide them in the performance of their administrative duties under the act unless and until they are otherwise directed by authoritative decisions of the courts or conclude, upon reexamination of an interpretation that it is incorrect. The interpretations contained in this part are interpretations on which reliance may be placed as provided in section 10 of the Portal-to-Portal Act, so long as they remain effective and are not modified, amended, rescinded, or determined by judicial authority to be incorrect. (16 F.R. 4272, May 9, 1951)

SECTION 782.1 STATUTORY PROVI

SIONS CONSIDERED

1 Skidmore v. Swift & Co., 323 U.S. 134. "Under Reorganization Plan No. 6 of 1950 (15 F.R. 3174), effective May 24, 1950 and pursuant to General Order No. 45A issued by the Secretary of Labor on the same date, interpretations of the provisions (other than the child labor provisions) of the Fair Labor Standards Act, as amended, are issued by the Administrator of the Wage and Hour Division on the advice of the Solicitor of Labor, subject to the general direction and control of the Secretary. See 15 F.R. 3290."

Section 16(c) of the Fair Labor Standards Amendments of 1949 (63 Stat. 910) provides :

"Any order, regulation, or interpretation of the Administrator of the Wage and Hour Division or of the Secretary of Labor, and any ingrerment entered to by the Administrator or the Secretary, in effect under the provisions of the Fair Labor Standards Act of 1938, as amended, on the effective date of this act, shall remain in effect as an order, regulation, interpretation, or agreement of the Administrator or the Secretary, as the case may be, pursuant to this act, except to the extent that any such order, regulation, interpretation, or agreement may be inconsistent with the provisions of this act, or may from time to time be amended, modified, or rescinded by the Administrator or the Secretary, as the case may be, in accorda uce with the provisions of this act."

(a) Section 13(b) (1) of the Fair Labor Standards Act provides an exemption from the maximum hours and overtime requirements of section 7 of the act, but not from the minimum wage requirements of section 6. The exemption is applicable to:

: Public Law 19, soth Cong., 1st sess. (61 Stat. 84), discussed in l'art 790 (statement on effect of l'ortal-to-Portal Act of 1947). See

in this connection Reorganization Plan No. 6 of 1950 (15 F.R. 3174) and footnote 1, above.

Any employee with respect to whom the Interstate carriers of property by motor vehicle,' and motor
Commerce Commission has power to establish qualifica vehicle ;8 those which confer regulatory powers
tions and maximum hours of service pursuant to the pro-
visions of section 204 of the Motor Carrier Act, 1935.'

on the Commission with respect to the transportaexcept that the exemption is not applicable to

tion of passengers or property by motor carriers any employee with respect to whom the Interstate engaged in interstate or foreign commerce (as Commerce Commission has power to establish defined in the act) 10 and reserve to each State the qualifications and maximum hours of service

1 Motor Carrier Act, sec. 203(a) (14), (15), (16), (17), 49 solely by virtue of section 204(a) (3a) of Part II

U.S.C., sec. 303(a) (14), (15), (16), (17). of the Interstate Commerce Act.3a The act con "(14) The term 'common carrier by motor vehicle' means any

person which holds itself out to the general public to engage in fers no authority on the Administrator to extend the transportation by motor vehicle in interstate or foreign

commerce of passengers or property of any class or classes or restrict the scope of this exemption. It is

thereof for compensation, whether over regular or irregular settled by decisions of the United States Supreme

routes, except transportation by motor vehicle by an express

company to the extent that such transportation has heretofore Court that the applicability of the exemption to been subject to Part I, to which extent such transportation shall

continue to be considered to be and shall be regulated as transan employee otherwise entitled to the benefits of

portation subject to Part I."

** (15) The term 'contract carrier by motor vehicle' means any the Fair Labor Standards Act is determined ex

person which engages in transportation by motor vehicle of pas

sengers or property in interstate or foreign commerce, for comclusively by the existence of the power of the In

pensation (other than transportation referred to in paragraph terstate Commerce Commission, under section 204 (14) of this section and the exception therein), under continuing

contracts with one person or a limited number of persons either of the Motor Carrier Act, to establish qualifica (a), for the furnishing of transportation services through the

assignment of motor vehicles for a continuing period of time to tions and maximum hours of service with respect the exclusive use of each person served or (b) for the furnishing

of transportation services designed to meet the distinct need of to him. It is not material whether such qualifi each individual customer."

“(16) The term 'motor carrier' includes both a common carrier cations and maximum hours of service have actu

by motor vehicle and a contract carrier by motor vehicle."

"(17) The term 'private carrier of property by motor vehicle' ally been established by the Commission; the con

means any person not included in the terms "common carrier by trolling consideration is whether the employee motor vehicle' or 'contract carrier by motor vehicle,' who or

which transports in interstate or foreign commerce by motor comes within the power of the Commission to do vehicle, property of which such person is the owner, lessee, or

bailee, when such transportation is for the purpose of sale, lease, so. The exemption is not operative in the absence rent, or bailment, or in furtherance of any commercial enter

prise." of such power, but an employee with respect to 8 Motor Carrier Act, sec. 203(a) (13), 49 U.S.C. sec. 803(a) (18) :

“(13) The term 'motor vehicle' means any vehicle, machine, whom the Commission has such power is excluded,

tractor, trailer, or semitrailer propelled or drawn by mechanical

power and used upon the highways in the transportation of automatically, from the benefits of section 7 of the

passengers or property, or any combination thereof determinined Fair Labor Standards Act.

by the Commission, but does not include any vehicle, locomotive,

or car operated exclusively on the rail or rails, or a trolley bus (6) Section 201 of the Motor Carrier Act, operated by electric power derived from a fixed overhead wire,

furnishing local passengers transportation similar to street1935, provides that it shall be the duty of the railway service."

Motor Carrier Act, sec. 202 (a), 49 U.S.C. sec. 302(a): "The Interstate Commerce Commission to regulate

provisions of this part apply to the transportation of passengers

or property by motor carriers engaged in interstate or foreign common and contract carriers by motor vehicle

commerce and to the procurement of and the provisions of facili

ties for such transportation, and the regulation of such transas provided in that act, and that "to that end the

portation, and of the procurement thereof, and the provision of Commission may establish reasonable require facilities therefor, is hereby vested in the Interstate Commerce

Commission." ments with respect to *** qualifications and 10 Motor Carrier Act, sec. 203 (a) (10), (11), 49 U.S.C., sec.

303(a) (10), (11) : maximum hours of service of employees, and "110) The term “Interstate commerce' means commerce be

tween any place in a State and any place in another State or sa fety of operation and equipment." 5 Section

between places in the same State through another State, whether

such commerce moves wholly by motor vehicle or partly by motor 204 further provides that it shall be the duty of

vehicle and partly by rail, express, or water: Provided, That to the Commission to “establish for private carriers the extent that such transportation in “interstate commerce

between points in Alaska and points in other States is performed of property by motor vehicle, if need therefor is within a foreign country, the application of this chapter shall

not include any requirement as to conduct in such foreign counfound, reasonable requirements to promote safety try which is in conflict with a requirement of such foreign coun

try, but shall include as a condition to engaging in such operaof operation, and to that end prescribe qualifica tions within the jurisdiction of the l'nited States, the observance

as to the entire service, of the requirements of this chapter with tions and maximum hours of service of employees,

respect to rates, fares, charges, and practices pertaining to such

transportation.' and standards of equipment.'

"(11) The term 'foreign coin merce' means commerce, whether (c) Other provisions of the Motor Carrier Act such commerce moves wholly by motor vehicle or partly by motor

vehicle and partly by rail, express, or water, (A) between any which have a bearing on the scope of section 204 place in the i'nited States and any place in a foreign country, or

between places in the United States through a foreign country ; include those which define common and contract or (B) between any place in the United States and any place in

a territory or possession of the United States insofar as such carriers by motor vehicle, motor carriers, private

transportation takes place within the United States. The term

'foreign commerce' also includes transportation between places 3 Part II of the Interstate Commerce Act, 49 Stat. 546, as in a foreign country, or between a place in one foreign country amended. 49 T.S.C. 304.

and a place in another foreign country, insofar as such trans3a Pub. No. 939, 84th Cong., 2d Sess. (Aug. 3, 1956, secs. 2 and

portation takes place within the Inited States, but only for

purposes of the application, to carriers engaged in such transSouthland Gasoline Co. v. Bayley, 319 VS. 44 : Boutell v.

portation, of the following provisions of this chapter : section Walling, 327 U.S. 463; Levinson v. Spector Motor Service, 330 315 of this title (which relates to insurance for the protection U.S. 649 ; P’yranid Motor Freight Corp. 1. Ispass, 330 C.S. 695 : of the public), section 321 of this title (which relates to desigMorris 1. McComb, 332 1.S. 422.

nation of an agent for service of process), and those prorisions 3 Motor Carrier Act, sec. 204(a) (1), (2), 49 C.S.C. sec. 304 of wection 304 of this title which relate to qualifications and (a) (1), (2).

maximum hours of service of employees and safety of operation Motor Carrier Act, sec. 204 (a) (3), 49 U.S.C. sec. 304(a) (3). and equipment."

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SECTION 782.2 REQUIREMENTS FOR

EXEMPTION IN GENERAL

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(a) The exemption of an employee from the hours provisions of the Fair Labor Standards Act under section 13(b) (1) depends both on the class to which his employer belongs and on the class of work involved in the employee's job. The power of the Interstate Commerce Commission to establish maximum hours and qualifications of service of employees, on which exemption depends, has been held to extend to those classes of employees and those only who (1) are employed by carriers whose transportation of passengers or property by motor vehicle is subject to the Commission's jurisdiction under section 204 of the Motor Carrier Act 13 and (2) engage in activities of a character directly affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce within the mean

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exclusive exercise of the power of regulation of intrastate commerce by motor carriers on its highways; " and those which expressly make section 204 applicable to certain transportation in interstate or foreign commerce which is in other respects excluded from regulation under the act.12

[13 F.R. 2346, Apr. 30, 1948, as amended at 22 F.R. 2662, Apr. 17, 1957, 28 F.R. 11685, Nov. 1, 1963]

11 Motor Carrier Act, sec. 202 (b), 49 U.S.C. sec. 302(b): "Nothing in this part shall be construed to affect the powers of taxation of the several States or to authorize a motor carrier to do an intrastate business on the highways of any State, or to interfere with the exclusive exercise by each State of the power of regulation of Intrastate commerce by motor carriers on the highways thereof."

iz Motor Carrier Act, sec 202(c), 49 Stat. 543, as amended, 49 U.S.C., 302(c): "Notwithstanding any provision of this section or of section 203, the provisions of this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation and equipment, shall not apply

(1) To transportation by motor vehicle by a carrier by a rail. road subject to part I, or by a water carrier subject to part III, or by a freight forwarder subject to part IV, incidental to transportation or service subject to such parts, in the performance within terminal areas of transfer, collection, or delivery services; but such transportation shall be considered to be and shall be regulated as transportation subject to part I when performed by such carrier by railroad, as transportation subject to part III when performed by such water carrier, and as transportation or service subject to part IV when performed by such freight forwarder ;

"(2) To transportation by motor vehicle by any person (whether as agent or under a contractual arrangement) for a common carrier by railroad subject to part I, an express company subject to part I, a motor carrier subject to this part, a water-carrier subject to part III, or a freight forwarder subject to part IV, in the performance within terminal areas of transfer, collection, or delivery service; but such transportation shall be considered to be performed by such carrier, express company, or freight forwarder as part of, and shall be regulated in the same manner as, the transportation by railroad, express, motor vehicle, or water, or the freight forwarder transportation or service, to which such services are incidental."

Motor Carrier Act sec. 203(b), 49 U.S.C. 303(b):

"Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and national monuments; or (4a) motor vehicles controlled and operated by any farmer when used in the transportation of his agricultural (including horticultural) commodities and products thereof, or in the transportation of supplies to his farm; or (5) motor vehicles controlled and operated by a cooperative association as defined in sections 1141-1141j of Title 12, as amended, or by a federation of such cooperative associations, if such federation possesses no greater powers or purposes than cooperative associations so defined ; or (6) motor vehicles used in carrying property consisting of ordinary livestock, fish (including shellfish), or agricultural (including horticultural) commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation : Provided, That the words 'property consisting of ordinary livestock, fish (including shellfish), or agricultural (including horticultural) commodities (not including manufactured products thereof)' as used herein shall include property shown as 'Exempt' in the Commodity List' incorporated in ruling numbered 107, March 19, 1958, Bureau of Motor Carriers, Interstate Commerce Commission, but shall not include property shown therein as 'Not exempt': Provided further, howerer, That not. withstanding the preceding proviso the words 'property consisting of ordinary livestock, fish (including shellfish), or agricultural (including horticultural) commodities (not including manufactured products thereof)' shall not be deemed to include frozen fruits. frozen berries, frozen vegetables, cocoa beans,

coffee beans, tea, bananas, or hemp, and wool imported from any foreign country, wool tops and noils, or wool waste (carded, spun, woven, or knitted), and shall be deemed to include cooked or uncooked (including breaded) fish or shellfish when frozen or fresh (but not including fish and shellfish which have been treated for preserving, such as canned, smoked, pickled, spiced, corned or kippered products) ; (7) motor vehicles used exclusively in the distribution of newspapers ; or (7a) the transportation of persons or property by motor vehicle when incidental to transportation by aircraft, nor, unless and to the extent that the Commission shall from time to time find that such applica. tion is necessary to carry out the national transportation policy declared in the Interstate Commerce Act, shall the provisions of this part, except the provisions of section 204 of this part relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment apply to; (8) the transportation of passengers or property in interstate or foreign commerce wholly within a municipality or between contiguous municipalities or within a zone adjacent to and commercially a part of any such municipality or municipalities, except when such transportation is under a common control, management, or arrangement for a continuous carriage or shipment to or from a point without such municipality, municipal. ities, or zone, and provided that the motor carrier engaged in such transportation of passengers over regular or irregular route or routes in interstate commerce is also lawfully engaged in the intrastate transportation of passengers over the entire length of such interstate route or routes in accordance with the laws of each State having jurisdiction ; or (9) the casual, occasional, or reciprocal transportation of passengers or property by motor vehicle in interstate or foreign commerce for compensa. tion by any person not engaged in transportation by motor vehicle as a regular occupation or business, unless, in the case of transportation of passengers, such transportation is sold or offered for sale, or provided or procured or furnished or arranged for, by a broker, or by any other persons who sells or offers for sale transportation furnished by a person lawfully engaged in the transportation of passengers by motor vehicle under a certificate or permit issued under this part or under a pending application for such a certificate or permit; or (10) the emergency transportation of any accidentally wrecked or disabled motor vehicle in interstate or foreign commerce by towing."

13 Boutell v. Walling, 327 U.S. 463 ; Walling v. Casale, 51 F. Supp. 520. And see Ex parte Nos. MC-2 and MC-3, In the Matter of Maximum Hours of Service of Motor Carrier Employees, 28 M.C.C. 125, 132.

The carriers whose transportation activities are subject to the Commission's jurisdiction are specified in the Motor Carrier Act itself. See sec. 782.1. As noted in that section, the Commis. sion's jurisdiction over private carriers is limited by the statute to private carriers of property by motor vehicle, as defined therein, while its jurisdiction extends to common and contract carriers of both passengers and property. See also the discus. sion of special classes of carriers in sec. 782.8. And wer para graph (d) of this section.

ing of the Motor Carrier Act.14 The Commission (2) As a general rule, if the bona fide duties of has determined, and the United States Supreme the job performed by the employee are in fact such Court has accepted its determination, that activi

that he is (or, in the case of a member of a group ties of this character are included in the kinds of

of drivers, drivers' helpers, loaders or mechanics work which the Commission has defined as the work of drivers, drivers' helpers, loaders, and

employed by a common carrier and engaged in mechanics 15 employed by such carriers, and that

safety-affecting. occupations, that he is likely to no other classes of employees employed by such

be) called upon in the ordinary course of his work carriers perform duties directly affecting such

to perform, either regularly or from time to time, "safety of operation.” 16

sa fety-affecting activities of the character de(6) (1) The exemption is applicable, under de scribed in subparagraph (1) of this paragraph, cisions of the United States Supreme Court, to he comes within the exemption in all workweeks those employees and those only whose work in when he is employed at such job. This general volves engagement in activities consisting wholly rule assumes that the activities involved in the or in part of a class of work which is defined by continuing duties of the job in all such workweeks the Interstate Commerce Commission (1) as that will include activities which the Commission has of a driver, driver's helper, loader, or mechanic, determined directly affect the safety of operation and (2) as directly affecting the safety of opera of motor vehicles on the public highways in transtion of motor vehicles on the public highways in portation in interstate commerce. Where this is transportation in interstate or foreign commerce the case, the rule applies regardless of the proporwithin the meaning of the Motor Carrier Act.17 tion of the employee's times or of his activities In determining whether an employee falls within which is actually devoted to such safety-affecting such an exempt category, neither the name given work in the particular workweek, and the exempto his position nor that given to the work that he tion will be applicable even in a workweek when does is controlling;18 what is controlling is the the employee happens to perform no work directly character of the activities involved in the per affecting “safety of operation.” On the other formance of his job.

hand, where the continuing duties of the employ

ee's job have no substantial direct effect on such 14 United States v. American Trucking Assns., 310 U.S. 534 ; Levinson v. Spector Motor Service, 330 U.S. 649; Pyramid safety of operation or where such safety-affecting Motor Freight Corp. y. Ispass, 330.U.S. 695 ; Ex parte No. MC-28, 13 M.C.C. 481 ; Ex parte Nos. MC-2 and MC-3, 28 activities are so trivial, casual, and insignificant M.C.C. 125 ; Walling v. Comet Carriers, 151 F.(20) 107 (C.A. 2); Gordon's Transports v. Walling, 162 F.(20) 203 (C.A. 6), cer as to be de minimis, the exemption will not apply tiorari denied 332 U.S. 774 ; rebearing denied 332 U.S. 820.

The activities described in the text are frequently referred to him in any workweek so long as there is no to herein, for purposes of brevity, as activities directly affecting

What "safety of operation," or as safety-affecting activities.

change in his duties.19 If in particular worksuch activities are is explained in paragraph (d) of this section and in the following sections. As to the meaning of transpor weeks other duties are assigned to him which tation in interstate and foreign commerce" under the Motor Carrier Act, see the statutory definitions in sec. 782.1, and see result, in those workweeks, in his performance of sec. 782.7.

activities directly affecting the safety of operation 15 See secs. 782.3 to 782.6. 16 Ex parte No. MC-2, 11 M.C.C. 203 ; Ex parte No. MC-28,

of motor vehicles in interstate commerce on the 13 M.C.C. 481 ; Ex parte No. MC-3, 23 M.C.C. 1; Ex parte Nos. MC-2 and MC-3, 28 M.C.C. 125; Levinson v. Spector Motor Service, 330 U.S. 649; Pyramid Motor Freight Corp. v. Ispass, public highways, the exemption will be applicable 330 U.S. 695 ; Southland Gasoline Co. v. Bayley, 319 U.S. 44.

to him in those workweeks, but not in the workSee also paragraph (d) of this section and secs. 782.3-782.8. 17 Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ;

weeks when he continues to perform the duties of Levinson v. Spector Motor Service, 330 U.S. 649; Morris v. McComb, 332 U.S. 422 ; Overnight Motor Transp. Corp. v. Missel,

the non-safety-affecting job. 316 U.S. 572 ; Southland Gasoline Co. v. Bayley, 319 U.S. 44 ; Gordon's Transports v. Walling; 162 F.(20) 203 (C.A. 6), certiorari denied, 332 U.S. 774, rehearing denied, 332 U.S. 820.

(3) Where the same employee of a carrier is Although the Supreme Court has recognized that the special knowledge and experience required to determine what classifica

shifted from one job to another periodically or on tions of work affects safety of operation of interstate motor carriers have been applied by the Commission, it has made it occasion, the application of the exemption to him clear that the determination whether or not an individual employee is within any such classification is to be determined by

in a particular workweek is tested by application judicial process. Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ; Cf. Missel v. Overnight Motor Transp., 40 F. Supp. 174

of the above principles to the job or jobs in which (D. Md.), reversed on other grounds 126 F.(20) 98 (C.A. 4), affirmed 316 U.S. 572; West v. Smoky Mountains Stages, 40

he is employed in that workweek. Similarly, in F. Supp. 296 (N.D. Ga.); Magann v. Long's Baggage Transfer Co., 39 F. Supp. 742 (W.D. Va.); Walling v. Burlington Transp.

the case of an employee of a private carrier whose Co. (D. Nebr.), 5 W.H, Cases 172, 9 Labor Cases par. 62,576; Hager v. Brinks, Inc., 6 W.H. Cases 262 (N.D. 111.).

19 Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ; 18 Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ; Porter Morris v. McComb, 332 U.S. 422; Levinson v. Spector Motor v. Poindexter, 158 F.(20) 759" (C.A. 10); Keeling v. Huber & Service, 330 U.S. 649; Rogers Cartage Co. v. Reynolds, 166 F. Huber Motor Express, 57 F. Supp. 617 (W.D. Ky.); Crean r. (20) 317 (C.A. 6); Opelika Bottling Co. v. Goldberg, 299 F.(20) Moran Transp. Lines (W.D, N.Y.), 9 Labor Cases, par. 62,416 37 (C.A, 5); Tobin v. Mason & Dixon Lines, Inc., 102 F. Supp. (see also earlier opinion in 54 F. Supp. 765).

466 (E.D, Tenn.).

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other drivers of the carrier on interstate routes were subject to the jurisdiction of the Interstate Commerce Commission. The court reaffirmed the principle that the exemption depends not only upon the class to which the employer belongs but also the activities of the individual employee 201

(d) The limitations, mentioned in paragraph (a) of this section, on the regulatory power of the Interstate Commerce Commission under section 204 of the Motor Carrier Act are also limitations on the scope of the exemption. Thus, the exemption does not apply to employees of carriers who are not carriers subject to the Commission's jurisdiction, or to employees of noncarriers such as commercial garages, firms engaged in the business of maintaining and repairing motor vehicles owned and operated by carriers, firms engaged in the leasing and renting of motor vehicles to carriers and in keeping such vehicles in condition for service pursuant to the lease or rental agreements.21 Similarly, the exemption does not apply to an employee whose job does not involve engagement in any activities which the Commission has defined as those of drivers, drivers' helpers, loaders, or mechanics, and as directly affecting the “safety of operation” of motor vehicles.22 Except in so far as the Commission has found that the activities of drivers, drivers' helpers, loaders, and mechanics, as defined by it, directly affect such "safety of operation," it has disclaimed its

power to establish qualifications or maximum hours of service under section 204 of the Motor Carrier Act.23 The Commission has defined "safety of operation" as used in that section to mean "the safety of operation of motor vehicles in the transportation of passengers or property in interstate or foreign commerce, and that alone.” 24 Thus, the activities of drivers, drivers' helpers, loaders, or mechanics in connection with transportation which is not in interstate or foreign commerce within the meaning of the Motor Carrier Act

provide no basis for exemption under section

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job does not require him to engage regularly in exempt safety-affecting activities described in subparagraph (1) of this paragraph and whose engagement in such activities occurs sporadically or occasionally as the result of his work assignments at a particular time, the exemption will apply to him only in those workweeks when he engages in such activities. Also, because the jurisdiction of the Interstate Commerce Commission over private carriers is limited to carriers of property,194 a driver, driver's helper, loader, or mechanic employed by a private carrier is not within the exemption in any workweek when his safetyaffecting activities relate only to the transportation of passengers and not to the transportation of property.

(c) The application of these principles may be illustrated as follows:

(1) In a situation considered by the United States Supreme Court, approximately 4 percent of the total trips made by drivers employed by a common carrier by motor vehicle involved the hauling of interstate freight. Since it appeared that the employer, as a common carrier, was obligated to take such business, and that any driver might be called upon at any time to perform such work, which was indiscriminately distributed among the drivers, the Court considered that such trips were a natural, integral and apparently inseparable part of the common carrier service performed by the employer and the driver employees. Under these circumstances, the Court concluded that such work, which directly affected the safety of operation of the vehicles in interstate commerce, brought the entire classification of drivers employed by the carrier under the power of the Interstate Commerce Commission to establish qualifications and maximum hours of service, so that all were exempt even though the interstate driving of particular employees was sporadic and occasional, and in practice some drivers would not be called upon for long periods to perform any such work.20

(2) In another situation, the United States Court of Appeals (Seventh Circuit) recently held that the exemption would not apply to truck drivers employed by a private carrier on intrastate routes who engaged in no sa fety-affecting activities of the character described above even though

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20a Goldberg v. Faber Industries, 291 F.(20) 232.

21 Boutell y. Walling, 327 U.S. 463; Walling v. Casale, 51 F. Supp. 520.

22 Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695 ; Levinson v. Spector Motor Service, 330 U.S. 649; United States v. American Trucking Assn., 310 V.S. 534 ; Gordon's Transports v. Walling, 162 F.(20) 203 (C.A. 6); Porter v. Poindexter, 158 F.(20) 759 (C.A. 10).

23 Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695.

24 Ex parte Nos. MC-2 and MC-3 (Conclusions of Law No. 1), 28 M.C.C. 125, 139.

19a See footnote 13. 20 Morris v. McComb, 332 U.S. 422.

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