JOHNSON v. HIX WRECKER SERVICE (July 1, 2011)

Bobby Johnson worked twelve-hour shifts as a tow truck driver for Hix Wrecker Service in 2006. He later sued the company, claiming that he had not been paid for overtime in violation of the Fair Labor Standards Act. Hix Wrecker claimed that Johnson was not subject to the FLSA but, rather, was exempt under its motor carrier exemption. Judge Lawrence (S.D. Ind.) granted summary judgment to Hix. Johnson appeals.

In their opinion, Chief Judge Easterbrook, Circuit Judge Williams, and District Judge Pallmeyer reversed and remanded. The Court recognized that not all employees of a motor carrier are governed by the FLSA. If the employee engages only in intrastate commerce, the FLSA governs. If the employee is wholly engaged in interstate commerce, the employee is exempt from the FLSA and comes under the jurisdiction of the Secretary of Transportation. Many motor carriers and their employees engage in both in intrastate and interstate commerce -- but they cannot be subject to both statutory schemes. Under a Department of Transportation interpretation, an employee is exempt from the FLSA if the employer presents "concrete evidence" that the employee is "engaged in interstate commerce within a reasonable period of time" before the time period in question. A driver who has not engaged in interstate commerce can still be exempt if the carrier has been engaged in interstate commerce and the employee could be expected to engage in the commerce. The interpretation also adopted four months as a "reasonable period of time." In support of its motion for summary judgment, Hix did not assert that Johnson actually engaged in interstate commerce. Instead, it submitted an affidavit that asserted that Hix "routinely" provides interstate services and that Johnson could have been assigned an interstate wrecker run at any time during his employment. The Court concluded that Hicks did not carry its burden of proving the exemption. The affidavit's use of the term "routinely" was too vague to meet the four-months reasonable time threshold. In the Court's view, "routinely" could mean, for example, once every six months or once a year.