Fifth Circuit Reverses the Burden of Proof for Motor Carrier Act

On May 16, 2018, the Fifth Circuit Court of Appeals published an opinion that reverses a jury verdict for the plaintiff.  Two cementer sued Crest Pumping for failing to pay them overtime.  In reversing the jury verdict, the court changed the the burden of proof for overtime cases involving the Motor Carriers Act.  The Fifth Circuit shifted the burden of proof from the employer and placed it on the employee.  Many employers who are sued for overtime, have retroactively classifying their workers as interstate truck drivers under the MCA.

Background on MCA

The Motor Carrier Act provides an overtime pay exemption for drivers, driver’s helpers, loaders or mechanics whose duties affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce and who work for motor carriers or motor private carriers. Section 13(b)(1); DOL FactSheet #19, available here.  The Motor Carrier Act applies “in all workweeks when [an employee] is employed . . . regardless of the proportion of the employee’s time or of his [safety-affecting] activities [and] even in a workweek when the employee happens to perform no work directly affecting ‘safety of operation.’” 29 CFR § 782.2(b)(3).

TCA to the Rescue

Congress tried to fix this by introducing the Technical Corrections Act (TCA) that permits employees who drive a mix-fleet of heavy and light vehicles, the employee could still get overtime. If an employee drives, works on, or drives a vehicle weighing more than 10,000 pounds and occasionally on a vehicle less than 10,000 pounds (a “small vehicle”), then the driver may be entitled to overtime during the particular weeks in which the driver loaded, works on or drives a small vehicle that is 10,000 or less.  Federal District courts have held that it was the employer’s burden of proof to establish that the employee drove a heavy vehicle and not a light vehicle each week.

New Burden of Proof

Previously, the party that had the burden of proof regarding the application of the MCA and TCA was on placed on the employer.  The employer had the to prove that the employee did not perform any safety-affecting activities (loading, servicing, or driving) small vehicle for each workweek the employee was due overtime.  The Fifth Circuit turned this burden 180 degrees for interstate drivers of motor carriers seeking overtime under the small vehicle exception to the Motor Carrier Act.  Scot Carley et al. v. Crest Pumping Technologies, LLC, No. 17-50226 (5th Cir. May 16, 2018).   The Fifth Circuit then retroactively applied the new burden of proof on the two Plaintiffs and held that they failed to prove the weight of the vehicles they operated each week.  The Fifth Circuit vacated the judgement.


This is a trend by conservative judges to narrow the scope of the Fair Labor Standards Act and eroding the wide protection that Congress intended for workers. It is only through lawsuits and challenges to these narrowing view of protections to workers that the FLSA can be preserved.