Shuttle Bus Drivers Not Entitled to Overtime Pay

​Shuttle bus drivers who drove tourists between their hotels and the Miami airport and transported them to other locations within Florida were exempt from the overtime requirements of the Fair Labor Standards Act (FLSA), a federal appeals court ruled. By regularly taking the tourists—newly arrived in Florida from outside the state—to their hotels, the drivers were engaging in interstate commerce and so fell within the motor carrier exemption to the FLSA's overtime requirements, the court said.

AllTour America Transportation operates shuttle services for foreign tourists visiting Florida. AllTour's customers are all international tourists, with approximately 90 percent coming from Brazil.

Three former shuttle drivers filed a lawsuit against their former employer claiming that AllTour had failed to pay overtime as required by the FLSA.

While working for AllTour, the drivers were responsible for picking tourists up from the Miami airport and taking them to their hotels and then picking them up from their hotels to take them back to the airport. While the tourists stayed in Florida, the drivers also would transport them between their hotels and other places in Miami and would drive them on city tours of Miami. The drivers sometimes would take the tourists beyond the Miami area to Fort Pierce, Fla., where they would meet another driver who would take the tourists the rest of the way to theme parks in Orlando.

For their services, AllTour paid each driver a weekly salary of between $500 and $600. A driver's salary did not change based on the number of hours he or she actually worked, and a driver received no overtime pay if he or she worked more than 40 hours in a week. But if a driver worked all seven days in a week, he or she was paid an extra $85 to $100. The drivers received an additional $30 for each trip to Fort Pierce.

AllTour sought to have the lawsuit dismissed before trial, arguing that the drivers were exempt from the FLSA's overtime pay requirement. The trial court agreed and dismissed the action. The drivers appealed.

[SHRM members-only toolkit: Determining Overtime Eligibility in the United States]

Motor Carrier Exemption to FLSA

The FLSA requires employers to compensate covered employees at an overtime rate if they work more than 40 hours in a week, but this requirement does not apply to all employees, the court noted.

One exemption to the overtime pay requirement is the motor carrier exemption, which applies to drivers of motor carriers who transport passengers or property between different states or between the United States and a foreign country.

The court noted that even purely intrastate transportation can constitute interstate or foreign commerce if it is "part of a continuous stream of interstate or foreign travel."

The drivers conceded that they engaged in interstate commerce activities when they picked up tourists, who had just arrived in Florida, at the airport and drove them to their hotels. They asserted, however, that because those trips constituted only a very small, or "de minimis," portion of their jobs, they were not subject to the motor carrier exemption.

The appellate court rejected this claim, finding that the drivers engaged in interstate or foreign commerce activities on more than a de minimis basis. The court acknowledged that the drivers spent a significant amount of time each day driving passengers from their hotels to locations within Florida.

But the evidence also showed that, on most days, the drivers picked up foreign tourists from the Miami airport and drove them to their hotels. One driver said a typical day included taking the tourists to and from the airport, a second identified picking tourists up at the airport as a normal part of his duties, and the third estimated that 20 percent of his time was spent taking tourists from the airport to their hotels.

The appellate court found that the drivers were therefore exempt from the FLSA's overtime requirement under the motor carrier exemption and affirmed the trial court's order dismissing the case.

Fonseca v. AllTour America Transportation Inc., 11th Cir., No. 16-14943 (Sept. 28, 2018).

Professional Pointer: The court did not decide what a "de minimis" amount of foreign or interstate commerce activity would be. Rather, it stated that however that term was defined, the drivers in this case did not meet that threshold.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.