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February 13, 2009
Were Shuttle Drivers Exempt from Overtime?
A Florida van driver who had been paid only commissions and tips by his employer quit and sued for violation of the Fair Labor Standards Act (FLSA). His employer billed its service as an airport shuttle van but took advantage of FLSA’s exemption from overtime for taxicab operators. The driver sued on behalf of all present and former drivers.

What happened. “Adams” worked from December 2005 to June 2007 for Southern Shuttle Services, which operates 10-passenger vans to and from three international airports—Miami, Palm Beach, and Fort Lauderdale-Hollywood. Adams acknowledged that when his commissions and tips totaled less than minimum wage, his employer had made up the difference. But he contended that the airport shuttles were not, in fact, taxicabs.

He sued the same month he quit, seeking unpaid overtime for himself and all other drivers that he believed had been misclassified. A federal district court judge ruled for Southern Shuttle Service, and Adams appealed to the 11th Circuit, which covers Alabama, Florida, and Georgia.

What the court said.Appellate judges first reviewed Southern Shuttle’s operations and advertising. Its website advises that “shared ride” service, in which passengers are picked up or dropped off at a variety of locations, is less expensive than taxis or limousines. And, vans don’t have meters: Passengers are charged a flat rate based on their zip code and which airport they’re using. Some van drivers have state-issued licenses to drive a cab, but it’s not a job requirement and many don’t. Finally, Southern Shuttle advertises in phone books under “airport transportation” but not under “taxicabs.”

Judges turned next to the Department of Labor’s field operations handbook for the discussion of taxicabs. They found cabs described as “small motor vehicles” operating without fixed routes and generally carrying only one passenger or family with attending luggage. Following the lead of judges for the 4th (Maryland, North Carolina, South Carolina, Virginia, and West Virginia) and 6th (Kentucky, Ohio, Michigan, and Tennessee), the panel concluded that airport shuttle drivers are not cab drivers and are not exempt from overtime pay. Abel v. Southern Shuttle, U.S. Court of Appeals for the 11th Circuit, No. 08-13412, unpublished (2008).

Point to remember: This ruling will be very expensive for the employer: First, there may be scores if not hundreds of current or former drivers involved. Second, the firm probably did not keep time records for drivers, so the court will rely on drivers’ own records of hours worked. No doubt cab drivers are tipped more, and more often, than van drivers—thus, the exemption.

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