Drivers Must Carry Hazardous Materials Every Day To Qualify As An Exempt Employee Under California Law
Recently, a court of appeal held that in order to not pay overtime as required under California law, an employer must show that its drivers who carry hazardous materials deliver the hazardous material each and every day. Defendant Lincare, Inc., provides respiratory services and medical equipment setup to patients in their homes. Plaintiffs worked as service representatives and their job duties included driving vans containing liquid oxygen and compressed oxygen, which are defined by the federal government as hazardous materials. In addition to their regular, eight hour work days, plaintiffs regularly worked on call in the evenings and on weekends.
Plaintiffs sought compensation for the on call time spent resolving customer questions by phone, and for all the time they were on call, even when not responding to customer calls. Plaintiffs also claimed they were entitled to a premium rate of compensation, rather than their regular rate of compensation, for all hours worked in excess of eight hours per day or 40 hours per week.
Background Facts
Plaintiffs worked eight hour shifts Monday through Friday. When plaintiffs worked more than eight hours in one day as part of their regular hours, they were paid overtime rates.
Plaintiffs were also required to carry a pager or cell phone after their regular work hours and respond to patient phone calls at night or on the weekend. Lincare’s on call policy required plaintiffs to respond telephonically to pages within 30 minutes, and to be available to respond to patient calls, in person, within two hours. Plaintiffs were prohibited from consuming alcohol while on call, but were otherwise free to engage in any activities desired.
When plaintiffs made service visits after hours, they were compensated by Lincare at the regular rate of pay. If plaintiffs were able to resolve the customer’s problem by telephone without making a service visit, they were instructed not to record that time, and they were not compensated for it.
Drivers' Overtime Claim
Lincare argued that because plaintiffs transported hazardous materials as part of their jobs, they were exempt from California’s statutory overtime rules.
As set out by the court, California Code of Regulations, title 8, section 11020, subdivision 3(J)(2) exempts from the rules regarding overtime compensation those employees whose hours of service are regulated by California Code of Regulations, title 13. Title 13, section 1212.5, subdivision (b) limits the driving time of employees who transport hazardous materials, such as liquid oxygen.
Lincare argued that because plaintiffs transport hazardous materials, they were exempt from overtime pay requirements of Labor Code section 510. The appellate court, in overruling the trial court, disagreed with Lincare’s argument. The appellate court held that in order to succeed, Lincare would have to establish that the drivers drove a vehicle containing hazardous materials for some period of time each and every workday:
As relevant to this appeal, the 2002 Update of the DLSE (Division of Labor Standards Enforcement) Enforcement Policies and Interpretations Manual (Revised) (Enforcement Manual) provides: “The IWC exemption only applies to employees whose regular duty is that of a driver, not any other category of worker. The policy would cover employees regularly employed as relief drivers or as assistant drivers. However, any driver who does not drive or operate a truck for any period of time during an entire workday is entitled to overtime premium compensation for all overtime hours worked performing duties other than driving during that day. [Citation.]” (Id., § 50.9.2.1, p. 50 11, italics added, <http://www.dir.ca.gov/dlse/DLSEManual/dlse_enfcmanual.pdf> [as of April 3, 2009].)
The court held that Lincare did not meet this burden, as there was evidence that the drivers often times did not drive a truck for the entire day.
The opinion, Gomez v. Lincare, Inc., also provided good analysis of other wage and hour issues, such as when on-call time needs to be compensated. The opinion is definite worth the read for wage and hour litigators.
