Tuesday, November 27, 2007, 2:13 PM

Supreme Court Denies Cert in Trucker Overtime Pay Case

Posted by Kim Licata
Yesterday, the U.S. Supreme Court declined to review a March 2007 Washington Supreme Court ruling that upheld a trial court's decision that under state law, truck driver Larie Bostain was entitled to overtime pay for all hours he drove, regardless of whether the hours were logged driving in or outside of Washington State. The state opinion in Food Express Inc. v. Bostain, can be read by clicking here. While not based on the FLSA, the case is a good analysis of common overtime laws as applicable to the transportation industry.

Mr. Bostain's case is interesting. Although he worked more than 40 hours a week, he rarely worked more than 40 hours a week within Washington State. The Washington Supreme Court was persuaded to find that state law applied to Bostain because the state law did not distinguish between hours spent driving in the state versus outside the state, and the law clearly required overtime pay for interstate drivers. However, Bostain was told on hire that he would not be receiving overtime pay by Food Express, and true to its word, Food Express never paid overtime to Mr. Bostain. Bostain was employed to work out of the Vancouver, Washington terminal, drove under a Washington driver's license, drove a percentage of his time in Washington, collected paychecks and turned in time cards at the Vancouver terminal. These facts and others were sufficient to trigger the protections of Washington law.

Travel time itself, independent of the trucking or transportation industry, is a potential pitfall for employers. How travel time is categorized determines whether that time is to be considered "work hours" and therefore subject to overtime as appropriate. Generally, travel may be divided in to (A) Commuting between home and work (not ordinarily considered work time, but may be if spent working or other factors exist that render this time as part of the employee's job duties); (B) Travel during a work day (considered work time when spent on job or required to travel for work); and, (C) Travel away from home "after hours" (depends on the circumstances).

Sadly with the denial of cert, we won't hear any new advice from the U.S. Supreme Court on this point just yet.

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