As of January 2021, Colorado’s law regarding truck driver overtime was largely brought in line with federal law – the Motor Carrier Act (MCA) – meaning drivers who do not cross state lines may become exempt from receiving overtime pay if they are moving goods that are traveling in interstate commerce or even if they could reasonably be called upon to make an interstate trip.
However, it is important to note that 1.) this change is not retroactive and does not do away with overtime entitlement from March – December 2020 and 2.) Colorado state law does require that truck drivers and drivers’ helpers be paid at least 50 hours at the Colorado minimum wage, including overtime at time and a half minimum wage, to be exempt. Therefore, as of 2022, a truck driver or helper must earn at least $690.80 per week ($12.56 x 40 hours + $12.56 x 1.5 x 10 hours) to be exempt from overtime under Colorado state law.
Crossing State Lines is Key to Overtime Rule
Under the new Colorado Overtime and Minimum Pay Standards Order (COMPS) that became effective March 16, 2020, it is made clear that truck drivers, driver’s helpers, loaders, and mechanics of motor carriers are exempt only if the employee actually crosses state lines in the course of their work. In other words, unless an employee actually leaves the state of Colorado during a particular workweek, they are entitled to receive overtime pay for all hours over 40 per week, 12 per day, or 12 consecutive – just like all other non-exempt workers in Colorado.
Colorado Law Trumps Federal by Giving Greater Overtime Rights
It is important to note that this is very different than federal law and requires many intrastate trucking jobs in Colorado to pay overtime under Colorado state labor law, even though the job may remain exempt under federal law and the Motor Carrier Act exemption. Another difference is that exemption under Colorado law is looked at on a workweek to workweek basis – meaning that drivers, and others, may be exempt in some weeks in which they do cross state lines, but are non-exempt (entitled to overtime pay) in other weeks in which they do not cross state lines.
The rule in cases where state law gives greater rights or protections to workers than does federal law is that the more favorable state law applies. So, in this case, Colorado’s more favorable state labor law on overtime pay for truck drivers, driver’s helpers, loaders, and mechanics trumps the federal law that denies them compensation for their overtime hours.
The actual text of the new law defines the types of transportation workers who are exempt and places a critical limiting qualification on the exemption – that the employee actually leave the state during the course of a workweek, not merely handle or transport goods that are moving in interstate commerce…even though all work is performed inside the state of Colorado.
The COMPS Order states, in 2.2.6 titled Interstate transportation workers and taxi cab drivers:
This exemption covers: (A) an employee who is a driver, a driver’s helper, or a loader or mechanic of a motor carrier, if the employee crosses state lines in the course of his or her work; and (B) taxi cab drivers employed by a taxi service provider licensed by a state or local government.
The Overtime Law Applies to “Employees”. Owner Operators may be Misclassified.
Just because you signed an agreement and are labeled an owner operator or independent contractor, does not make it legally so. If you are correctly considered an “employee” under Colorado labor law, and do not leave the state during a workweek, you are likely entitled to overtime pay, no matter what your written agreement says.
There has been an increasing number of cases brought against major trucking companies for the way that they classify or misclassify drivers as owner operators (independent contractors) instead of employees. When owner operators are misclassified as independent contractors they are denied many benefits, including proper compensation for overtime hours.
Whether a driver is an employee or an independent contractor depends on the specific law that applies as state laws vary from federal, and from state to state. Colorado labor law defines an “Employee” as:
[A]ny person… performing labor or services for the benefit of an employer. For the purpose of the COMPS Order, relevant factors in determining whether a person is an employee include the degree of control the employer may or does exercise over the person and the degree to which the person performs work that is the primary work of the employer; except that an individual primarily free from control and direction in the performance of the service, both under his or her contract for the performance of service and in fact, and who is customarily engaged in an independent trade, occupation, profession, or business related to the service performed is not an “employee”
What this means is that Colorado labor law focuses on how much control the company has over those who perform work for it and whether they are performing the primary type of work that the company engages in. For trucking jobs in Colorado, this is the analysis required to determine if you are legally considered an employee or independent owner operator.
For many so-called owner operators, the degree of control exercised by the trucking company for which they work is tremendous. Despite what may be stated in the agreement between them, the reality is that many trucking companies treat drivers as employees in that:
a. The company retains exclusive control and use of the truck and prohibits drivers from operating the truck for any other company unless the company provides prior written consent in its sole discretion;
b. The company retains the right to terminate drivers at will;
c. The company retains exclusive control over the essential functions necessary for operation of the drivers including, locating customers, employing a sales force, employing brokers, purchasing and developing advertising, determining the freight that will be carried by drivers, the terms and conditions under which that freight will be picked up and delivered, the rates that customers will be charged for the deliveries, employing dispatchers, assigning loads to drivers, performing billing and payroll, performing repair and maintenance services, and performing the loading and offloading of freight;
d. The company exercises unilateral control over the mileage compensation paid to drivers, which may not reflect actual miles required to be driven by drivers;
e. The company controls drivers’ opportunity for profit or loss through its setting of the compensation rates;
f. The company provides the trailers used by drivers to perform their work;
g. The company controls and provides other equipment necessary for drivers to perform their work, including computer, communication, and GPS systems;
h. The company controls the manner in which drivers perform their work;
i. The company monitors and controls the time of drivers arrival;
j. The company requires drivers to have mobile communication systems the company uses to communicate with drivers;
k. The company gives job instructions which drivers are required to follow;
l. The company monitors compliance with instructions, including delivery times, by use of on-board communications and GPS systems, as well as by telephone;
m. The company controls the payments received by Drivers for the work they perform;
n. The company imposes other restrictions that make it impossible as a practical matter for drivers to exercise the right to drive for other trucking companies.
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