holding that an employer can prevail on a reasonable accommodation claim by showing there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation
How later courts described this case
- holding that an employer can prevail on a reasonable accommodation claim by showing there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation
- concluding that the plaintiff would “not [be] entitled to overtime pay 7 in California” if he “was engaged in transporting property in interstate commerce”
- holding that the Motor Carrier Exemption did not apply where an employee made intrastate deliveries of goods which were shipped via interstate means to a warehouse where they were stored until customer orders were received
- holding, where 20 employer "places orders with an out-of-state vendor, with delivery to the company's 21 intrastate warehouse for future delivery to customers yet to be identified, the 22 transportation chain culminating in delivery to the customer is considered intrastate in 23 nature"
Written by the judges who cited it.
The opinion
WILLIAM A. FLETCHER, Circuit Judge,
concurring:
I concur fully in the court’s opinion. I write separately to point out that a potentially relevant legal issue was not argued and is not decided in this case.
When the federal Fair Labor Standards Act (“FLSA”) was passed in 1938, it established federal standards for wages and hours. Section 7 of the FLSA limited the number of hours that could be worked in a given week, and provided for wages at one and one-half the regular rate for hours worked in excess of the limit. See 29 U.S.C. § 207 (a). However, Section 13(b)(1) of the FLSA exempted from its overtime requirements employees within the regulatory power of the Interstate Commerce Commission (“ICC”) under the federal Motor Carrier Act. See id. § 213(b)(1); see also Morris v. McComb, 332 U.S. 422, 423-25 , 68 S.Ct. 131 , 92 L.Ed. 44 (1947); Levinson v. Spector Motor Serv., 330 U.S. 649, 660 , 67 S.Ct. 931 , 91 L.Ed. 1158 (1947). After the dissolution of the ICC in 1995, the relevant regulatory authority became the Secretary of Transportation rather than the ICC, but the substance of the exemption from the FLSA remained. See Klitzke v. Steiner Corp., 110 F.3d 1465 , 1468 & n. 2 (9th Cir.1997). Section 13(b)(1) of the FLSA contains the current Motor Carrier Act exemption, which provides:
The provisions of section 207 of this title [regulating overtime] shall not apply with respect to—
(1) any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to *830 the provisions of section 31502 of Title 49[J
29 U.S.C. § 213 (b)(1) (emphasis added).
California law contains a Motor Carrier Act exemption similar, but not identical, to the exemption in Section 13(b)(1) of the FLSA. California law provides that rules and regulations governing overtime pay in California are promulgated by the Industrial Welfare Commission (“IWC”)- Cal. Lab.Code § 1173. Orders adopted by the IWC have the force of law. See id. § 1185. Under IWC Wage Order 9, regulating wages and hours of workers in the transportation industry, employers are required to pay not less than time-and-a-half for overtime work. CaLCode Regs. tit. 8, § 11090(3)(A) (“Wage Order 9”). However, Wage Order 9 contains an exemption for certain transportation workers from the otherwise applicable overtime pay requirements. That Order provides, in relevant part:
The provisions of this section are not applicable to employees whose hours of service are regulated by ... the United States Department of Transportation Code of Federal Regulations, Title 49, Sections 395.1 to 395.13, Hours of Service of Drivers ... regulating hours of drivers.
CaLCode Regs. tit. 8, § 11090(3)(F)(1)(1998) (emphasis added). 1 The issue in this case is the scope of the Motor Carrier Act exemption in Wage Order 9.
Watkins argued his case by analogy to the Motor Carrier Act exemption under the FLSA. That is, Watkins argued that the Secretary of Transportation does not have the “power to establish” regulations concerning his employment. Watkins did not rely on the actual words of Wage Order 9, which provide that drivers whose hours of service “are regulated” by the Secretary of Transportation are not entitled to overtime pay. Read literally, the scope of the exemption under Wage Order 9 appears to extend no farther than the actual regulation of driver hours by the Secretary of Transportation. The scope of the Motor Carrier Act exemption from the FLSA thus may be broader than under Wage Order 9, because the FLSA exemption is determined by the power of the Secretary to regulate, not by the regulations actually adopted.
California has the power to adopt a narrower exemption from its overtime laws than the Motor Carrier Act exemption under the FLSA. Every appellate court to consider the question (including our court) has concluded that state overtime laws are not preempted by the Motor Carrier Act exemption under the FLSA. See Agsalud v. Pony Express Courier Corp. of Am., 833 F.2d 809, 810 (9th Cir.1987); see also Overnite Transp. Co. v. Tianti, 926 F.2d 220, 221-22 (2d Cir.1991); Pettis Moving Co. v. Roberts, 784 F.2d 439, 441 (2d Cir.1986); Williams v. W.M.A. Transit Co., 472 F.2d 1258, 1263 (D.C.Cir.1972); Dep’t of Labor and Indus. of the State of Wash. v. Common Carriers, Inc., 111 Wash.2d 586 , 762 P.2d 348, 349 (1988). Because there is no federal preemption, the words “are regulated” in Wage Order 9 may be read (so far as federal law is concerned) to mean that the Motor Carrier Act exemption applies to California overtime laws only to the extent that the Secretary actually regulates the hours of the drivers in question.
There is some evidence in the record to suggest that Ameripride’s drivers are not actually regulated by the Secretary of *831 Transportation. For example, Watkins states in his affidavit filed in the district court, “In my 8 years of employment as a CSR, I was not required to comply with the Department of Transportation regulations concerning employment physicals, interstate log books, written and practical driving tests, and drug tests as would be required were I an interstate driver.” However, while counsel for Watkins argued in his brief to us that California overtime law is not preempted by the federal Motor Carrier Act exemption of the FLSA, he made no argument, based on the text of Wage Order 9, that the exemption under California law is narrower than under the FLSA. The court’s opinion therefore appropriately does not reach the issue of whether the exemption under Wage Order 9 depends on the existence of actual regulation rather than merely the power to regulate. .
. The Motor Carrier Act exemption is now contained at IWC Wage Order 9-2004(3)(L), CaLCode Regs. tit. 8, § 11090(3)(L)(1)(2004).