Mass. common carrier exemption applies to school bus drivers

School bus drivers had their hopes of compensation for unpaid overtime dashed on appeal when the state’s highest court ruled that their employer was exempt under the state’s common carrier overtime exemption. The plain and unambiguous language of the statute exempted employees whose “employer is licensed and regulated pursuant to the common carrier statute,” placing the focus of the exemption on the employer’s status alone. Construing the statute as written, the Massachusetts Supreme Judicial Court held that the drivers were not entitled to overtime pay and the denial of the employer’s motion for summary judgment was reversed.

School bus drivers not paid overtime.

In 1998, the defendant, a bus company in Massachusetts, was granted a charter service license under Section 11A of the state’s common carrier statute. Although the company does provide some charter services, it has also contracted with several municipalities and school authorities to transport students to and from schools, as well as some extra-curricular activities. Drivers filed a putative class action suit in state superior court, claiming they were owed unpaid overtime pay for hours worked over 40 per week. In addition to denying the employer’s motion for judgment on the pleadings, concluding that the overtime exemption did not apply, the court granted the drivers’ motion for class certification. After discovery, the parties filed cross motions for summary judgment. A new judge granted the drivers’ motion, also determining that the overtime exemption did not apply. The parties appealed, and the state supreme court transferred the case from the appeals court on their own motion.

License and regulation is continuous.

Reviewing the question de novo, the court found that the bus company was “licensed and regulated” as required to fall within the common carrier overtime exemption, G. L. c. 151, Sec. 1A(11), under which the overtime statute “shall not be applicable to any employee who is employed… by an employer licensed and regulated pursuant to” the common carrier statute. Although the bus drivers argued that the company was only “licensed and regulated” under that statute during those hours that it provided charter services, the employer argued that it was continuously licensed and regulated and the court agreed. Under Section 11A of the common carrier statute, the court explained, the license obtained by charter services providers “shall remain in force” unless and until revoked. Thus, providers are continuously “licensed” regardless of when they are providing those services. The regulations, which place certain requirements upon the providers, are also in effect all the time.
While it was true that the definition of charter service under the statute excluded “the transportation of school children to and from school” pursuant to contracts with school authorities, that language, the court explained, “simply provides” that furnishing such services does not require a charter service license. It does not mean that a company that provides such services is no longer licensed and regulated under the statute.

Focused on employer.

As to the exemption itself, the court explained that the plain language of the overtime statute made clear that the focus of the exemption found in G.L. c. 151, Sec. 1A(11) was on the employer, not the employee. Under the overtime statute, employers are required to pay overtime to covered employees for hours they worked over 40 in a week. The exemption states this requirement shall not be applicable to an employee employed by an employer who is licensed and regulated under the common carrier statute. The phrase “licensed and regulated” modified the term “an employer,” the court explained, and under the plain meaning of that language, the employees were not entitled to overtime pay.
Wary of considering that language in a vacuum, the court also provided examples from the state statute where exemptions were based on employee-specific factors, noting that the state legislature “plainly knew how to draft an overtime exemption that would apply narrowly to specific employees depending on their occupation, or even their compensation.” The legislature could have done that in this case, but it did not. When read as a whole, the court concluded, the overtime statute indicated the legislature’s intent to exempt any employee of an employer that was licensed or regulated under the common carrier statute.

Federal law guidance.

Noting that not all state law exemptions have a federal analogue, the court was also unpersuaded by the drivers’ argument that the common carrier overtime exemption had been modeled on the air and rail overtime exemptions found in federal law. The FLSA contains no exemption for common carrier bus companies and the federal exemptions identified by the bus drivers did not apply to the same people. Nor were the federal exemptions “nearly identical” linguistically to the common carrier exemptions. The court found “little reason to conclude” that the state legislature had modeled the exemption on the federal air and rail overtime exemptions or intended them to be administered in the same way.
Finally, the court explained that this exemption would not lead to an “absurd result” even if its sweep were to include employees such as janitors and clerical workers. That might be a “harsh outcome,” but “it is not thereby rendered absurd.” That decision is a “policy determination,” the court explained, that is “within the province of the Legislature.” (Casseus v. Eastern Bus Company, Inc., Case No. SJC-12315.February 8, 2018, Lenk, B.).

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