FLSA2004-28NA — Manufactured housing and section 13(b)(1)

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

October 29, 2004 FLSA2004-28NA

Dear
Name*,

This is in response to your request for an opinion concerning the application of the exemption in Section
13 (b)(1) of the Fair Labor Standards Act (FLSA) to certain employees of an employer who is engaged in
the manufacture of houses that are transported on the highways and across state lines. You specifically
reference the loaders and mechanics employed by your client.

You state that during the manufacturing process, employees load various parts and components of the
manufactured house onto a frame. The frame, wheels, and components of the manufactured house are
integrated to ultimately form a trailer, which is then towed to the customer’s site by tractor truck. The
wheels are removed from the frame and the house is secured to a foundation. The frame, wheels, and
house components are assembled as one unit, which is designed to meet all Department of
Transportation regulations so that it may be lawfully towed by tractor truck on the highways. Failure of the
employees to properly load and assemble the parts and components of the house onto the frame could
materially affect the safety of the trailer on the highways.

Section 13(b)(1) of the FLSA provides an overtime pay exemption for any employee with respect to whom
the Secretary of Transportation has power to establish qualifications and maximum hours of service
pursuant to Section 204 of the Motor Carrier Act (MCA). The exemption applies to any driver, driver’s
helper, loader, or mechanic employed by a carrier, and whose duties affect the safety of operation of
motor vehicles on the public highways in interstate or foreign commerce. 29 CFR 782.2(b)(2). The
application of the exemption is discussed in the enclosed Regulations, 29 CFR Part 782.

The regulations state that a loader is defined for MCA jurisdiction purposes as an employee of a carrier
“whose duties include, among other things, the proper loading of his employer’s motor vehicles so that
they may be safely operated on the highways of the country.” A loader is engaging in work “directly
affecting safety of operation so long as he has responsibility when such vehicles are being loaded for
exercising judgment and discretion in planning and building a balanced load or in placing, distributing, or
securing the pieces of freight in such a manner that the safe operation of the vehicles on the highways in
interstate or foreign commerce will not be jeopardized.” See Section 782.5(a). On the other hand, the
regulations state that an employee is not a loader subject to the exemption “merely because he furnishes
physical assistance when necessary in loading heavy pieces of freight, or because he deposits pieces of
freight in the vehicle for someone else to distribute and secure in place, or even because he does the
physical work of arranging pieces of freight in the vehicle where another employee tells him exactly what
to do in each instance and he is given no share in the exercise of discretion as to the manner in which the
loading is done.” See Section 782.5(c); opinion letter of March 5, 2001.

The regulations define a mechanic for MCA jurisdiction purposes as an employee employed by a carrier
“whose duty it is to keep motor vehicles operated in interstate or foreign commerce by his employer in a
good and safe working condition.” See Section 782.6(a). A mechanic is engaging in work affecting “safety
of operation” when he, among other things, keeps lights and brakes in a good and safe working condition;
performs inspection, adjustment, repair, or maintenance work on the motor vehicles themselves (including
trucks, tractors and trailers, and buses); hooks up tractors and trailers, including light and brake
connections, and inspects such hookups. Other activities of the mechanic determined by the courts as
affecting “safety of operation” are described in Section 782.6(a).

Activities which do not directly affect such “safety of operation” include, among other things, “construction
work, manufacture or rebuilding of truck, bus, or trailer bodies, and other duties which are concerned with
the safe carriage of the contents of the vehicle rather than directly with the safety of operation on the
public highways of the motor vehicle itself.” See Section 782.6(c)(1).

Working to Improve the Lives of America's Workers Page 1 of 2

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

Based on the information you provided, we are unable to make a definite determination as to whether
your client’s loaders and mechanics are subject to the overtime exemption in Section 13(b)(1) of the
FLSA. However, we hope that you are able to make a determination in light of the above relevant criteria.

This opinion is based exclusively on the facts and circumstances described in your request and is given
on the basis of your representation, explicit or implied, that you have provided a full and fair description of
all the facts and circumstances which would be pertinent to our consideration of the question presented.
Existence of any other factual or historical background not contained in your request might require a
different conclusion than the one expressed herein. You have represented that this opinion is not sought
by a party pending private litigation concerning the issue addressed herein. You have also represented
that this opinion is not sought in connection with an investigation or litigation between a client or firm and
the Wage and Hour Division or the Department of Labor.

We trust that this information is responsive to your inquiry.

Sincerely,

Barbara R. Relerford
Office of Enforcement Policy
Fair Labor Standards Team

Enclosure

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
Working to Improve the Lives of America's Workers Page 2 of 2