A recent lawsuit filed in Palm Beach County, Florida, reminds us that school bus drivers are generally not exempt from federal overtime rules. Despite very clear case law, many school districts and bus companies throughout the country still unknowingly shortchange their drivers.

Since the Great Depression, Congress has made it clear that hourly workers should get paid time and one half for all hours worked in excess of 40 hours during a seven-day period. Over the years, Congress has added several exemptions to the overtime rules, but school bus drivers generally do not fit in any of these exemptions.

So, why are we finding so many bus drivers still not receiving proper pay? The answers may surprise you.

Overtime Rules and the Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) requires that most workers be paid “at a rate not less than one and one-half times the [employee’s] regular rate” of pay for work in excess of 40 hours in any workweek.

Passed by Congress in 1938, the law was born of the Great Depression and remains on the books today. In fact, courts routinely interpret the law most favorably towards workers and against employers.
Over the years, Congress has added some broad exceptions for certain types of salaried workers. Those include professionals, administrative, executive, certain IT workers, and outside sales representatives. None of those exceptions apply to bus drivers.

A few school districts believe that the professional services exemption applies because school bus drivers must have a commercial driver’s license (CDL) to drive a bus.

The confusion exists in school districts because the professional services exemption often applies to teachers. Federal law, however, defines “professional services” as follows:

•    The employee must be compensated on a salary or fee basis (hourly workers are not exempt).
•    The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment.
•    The advanced knowledge must be in a field of science or learning.
•    The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

The U.S. Department of Labor says “work requiring advanced knowledge” means “work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment. Professional work is therefore distinguished from work involving routine mental, manual, mechanical or physical work.”

School bus drivers are certainly expected to be professional, but they are not “professionals” as that term is defined under the FLSA. That means unlike many teachers, school bus drivers are entitled to overtime pay.

Federal Motor Carrier Exemption

One exception to the mandatory overtime rules that may apply is the motor carrier exemption. As stated in the law, the motor carrier exemption provides that the FLSA’s overtime provision “shall not apply ... to any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service. This exemption applies to any employee for whom [U.S. Department of Transportation (DOT)] has authority to regulate qualifications and maximum hours of service, regardless of whether the Secretary has exercised that authority.”

So, does this exemption apply to bus drivers? The answer is “maybe.” If a bus driver routinely crosses state lines, his or her activities may be enough to trigger DOT’s jurisdiction.

It becomes a fact question if a driver routinely crosses state lines. The two scenarios we see involve schools located near state lines.

One common scenario is when the bus yard is located in one state, but the students are located in another. This occurs when the bus yard is located near a state border. It is possible that drivers will have to pick up their buses every day in one state, even though the students are located across the state line.

Another factual question exists if drivers are making frequent school trips or charter runs across state lines.

Either of these situations could trigger the motor carrier exemption and prevent the bus drivers from receiving overtime pay for work in excess of 40 hours per week. Drivers and the bus companies need to consult with their lawyers to determine if overtime must be paid for work in excess of 40 hours per week.

Not every court has ruled on the motor carrier exemption and how it applies to school bus drivers. Among those that have, however, almost all have adopted the same standard: Unless the drivers are routinely crossing state lines, they are not exempt from the FLSA.

This means the vast majority of school bus drivers are entitled to overtime. Yet many school districts and bus companies think bus drivers are exempt. Because the FLSA requires the employer to pay a worker’s legal fees if the worker wins a lawsuit, it becomes even more important for school districts and bus drivers to understand their rights and obligations under the Fair Labor Standards Act. (In California, drivers may have additional rights.)

Daily Bus Inspections

We have seen a few school districts and bus companies not pay drivers for daily inspections and maintenance activities. School bus drivers are entitled to be paid for any hours they actually work. The term “working” is not limited to driving students. It includes time spent sweeping the bus, inspecting lights and emergency equipment, and checking tires. This may not seem like a lot of time, but 20 minutes per day, five days per week, 35 weeks per year, adds up to almost 60 hours per year.

Collective Bargaining Agreements

School bus drivers are often unionized. If so, their work is covered by a collective bargaining agreement. Sometimes those agreements cover how overtime is to be calculated.

Despite the existence of a collective bargaining agreement, the FLSA minimum wage and overtime rules still trump that agreement. Neither drivers, nor unions, nor employers can bargain away these overtime rules.

In May, five Palm Beach County, Florida, school bus drivers filed a collective action suit claiming they were denied seven hours of overtime pay each week. The drivers say that they work 50 hours per week, yet are only paid their regular rate of pay, $14 per hour. The school district claims that pursuant to a collective bargaining contract, the drivers are limited to just three hours of overtime pay.

Overtime pay for these drivers should be $21 per hour (time and one half). Multiply that by 7 hours each week and the drivers are being shorted $49 per week. Even if the drivers only work 35 weeks per year, they are each losing over $1,700 per year.

Fair Labor Standards Act cases are frequently filed as collective cases. In the case of the Palm Beach County school bus drivers, if the court approves the class, all 1,000 drivers will have the opportunity to participate in the action. If the drivers are successful, the Palm Beach County School Board may have to shell out millions of dollars to present and former drivers and pay the legal fees of the drivers’ lawyers.

Despite some deep-seated, preconceived notions about collective bargaining agreements and the federal motor carrier exemption, most school bus drivers are entitled to be paid for every hour worked and are entitled to be paid time and one half pay for all hours in excess of 40 hours per week.

Brian Mahany is an author and trial lawyer. He and his law firm, MahanyLaw, represent workers across the U.S. The opinions here are his alone and should be considered general information and not legal advice.