Are Maine drivers for interstate trucking companies entitled to overtime under state law even when federal rules exempt them?

Plain-English summary

Attorney Donald Fontaine wrote to the Attorney General disputing the reasoning of a 1966 internal memorandum that had been kept in the AG's opinion files. The 1966 memorandum, signed by Assistant Attorney General Phillip M. Kilmister, projected that Maine's overtime wage law (then 26 M.R.S.A. § 664) would not apply to interstate motor carrier employees whose maximum hours of service were subject to ICC regulation. The reasoning was that since Congress had taken those drivers out of the federal Fair Labor Standards Act's overtime requirements (29 U.S.C. § 213(b)(1)), state overtime laws should not fill the gap either.

By 2001, that reasoning was outdated. Chief Deputy Attorney General Linda M. Pistner reviewed the case law Fontaine had supplied and concluded that the 1966 memorandum had been overtaken by subsequent developments. In particular, FLSA § 218(a) (29 U.S.C. § 218(a)) explicitly permits states to set more stringent overtime requirements than federal law. The Second Circuit's decision in Pettis Moving Co. v. Lillian Roberts, 784 F.2d 439 (2d Cir. 1986), confirmed the FLSA does not preempt state overtime laws covering ICC-regulated drivers.

Two procedural notes from the letter are worth flagging. First, the 1966 memorandum was an internal staff memo by an Assistant Attorney General, not a formal opinion issued by the Attorney General under 5 M.R.S.A. § 195. It was nevertheless kept in the formal-opinion notebooks, which is why it had ongoing visibility. Second, rather than reissue or supersede the memorandum, the Chief Deputy AG attached a copy of her March 8, 2001 letter to the original 1966 memo, so that anyone consulting the notebook would see immediately that the office no longer agreed with the 1966 analysis.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What was the 1966 memo's bottom line?

That the federal FLSA's exemption for ICC-regulated motor carrier employees (drivers, drivers' helpers, loaders, mechanics whose work affects safety) carried over to Maine, so that Maine's state overtime statute did not apply either. The Assistant AG framed this as a prediction of how a court would rule rather than a formal opinion of the office.

Why did the 2001 letter conclude the 1966 memo was wrong?

Subsequent case law (and a clearer reading of 29 U.S.C. § 218(a)) made clear that the FLSA sets a federal floor for overtime protection. States are free to require more, including extending overtime protection to workers who are exempt under federal law. Pettis Moving Co. v. Lillian Roberts was the most directly on-point illustration of that principle for ICC-regulated drivers.

Did this letter say Maine overtime law DOES apply to interstate drivers?

It did not formally so hold. It withdrew the 1966 memorandum's conclusion that state law did not apply. The actual scope of Maine's overtime statute on interstate drivers in 2001 was a question for a separate, full opinion or for the courts. The letter was about clearing the misleading 1966 memo off the books.

What is 29 U.S.C. § 218(a)?

The FLSA savings clause. It says, in essence, that the federal statute does not excuse noncompliance with any state law setting a higher minimum wage or a lower maximum workweek. It is the legal hook that lets states like California, New York, and Maine impose tougher wage-hour rules than federal law requires.

Why was a 1966 staff memo treated as authoritative for 35 years?

The opinion explains the office's practice of keeping informal staff memoranda in the formal opinion notebooks. That gave them more visibility than they probably deserved. The 2001 letter is an explicit course correction; the office now signals that an Assistant AG memorandum is not a formal AG opinion under § 195.

Background and statutory framework

Maine's general overtime requirement is at 26 M.R.S.A. § 664, requiring time-and-a-half for hours worked over 40 per week (the 1966 memo references a 48-hour threshold under the then-current version of the statute; the threshold has since been changed). The federal FLSA at 29 U.S.C. § 207 imposes the parallel federal requirement, and 29 U.S.C. § 213(b)(1) carves out drivers and others subject to ICC (now FMCSA) hours-of-service regulation. § 218(a) preserves state law that is more protective than the federal floor.

5 M.R.S.A. § 195 governs the issuance of formal Attorney General opinions. Only opinions formally issued under that section carry the office's institutional weight. The 1966 memorandum, drafted by an Assistant AG, did not have that status, although it had been treated as authoritative in practice for decades.

Citations

• 26 M.R.S.A. § 664 (Maine overtime wage law)
• 5 M.R.S.A. § 195 (Attorney General opinion authority)
• 29 U.S.C. § 207 (FLSA overtime requirement)
• 29 U.S.C. § 213(b)(1) (FLSA exemption for ICC-regulated motor carrier employees)
• 29 U.S.C. § 218(a) (FLSA savings clause for stricter state law)
• Pettis Moving Co. v. Lillian Roberts, 784 F.2d 439, 441 (2d Cir. 1986)
• AG memorandum of April 22, 1966 (withdrawn)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2001/ag_20010308.pdf

Original opinion text

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
6 State House Station
Augusta, Maine 04333-0006

G. Steven Rowe
Attorney General

March 8, 2001

Donald F. Fontaine, Esq.
Fontaine & Beal, P.A.
482 Congress Street
P.O. Box 7590
Portland, Maine 04112

Dear Mr. Fontaine:

This letter is in response to your letter dated January 4, 2001, in which you provide legal research and argument disputing the conclusions reached in a memorandum by an Assistant Attorney General dated April 22, 1966. Upon review of the case law that you sent and the memorandum, I agree that the memorandum appears to be outdated in light of the case law that has developed since it was written in 1966. Moreover, the Fair Labor Standards Act ("FLSA") permits states to set more stringent standards regarding overtime wage provisions than the FLSA. See 29 U.S.C. § 218(a) and Pettis Moving Co. v. Lillian Roberts, 784 F.2d 439, 441 (2nd Cir. 1986).

A memorandum authored and signed by an Assistant Attorney General is not an opinion formally issued by the Attorney General under 5 M.R.S.A. § 195. However, this memo (and others like it on a variety of topics) is kept in the notebooks which contain the formal opinions. Accordingly, I will append a copy of this letter to the memorandum issued on April 22, 1966 to notify the public that it is no longer the view of this office.

Sincerely,

LINDA M. PISTNER
Chief Deputy Attorney General

The withdrawn April 22, 1966 memorandum, appended to the 2001 letter in the official document, follows. (OCR-cleaned transcription; the linked PDF is authoritative.)

April 22, 1966

To: Madge E. Ames, Labor and Industry
From: Phillip M. Kilmister, Assistant Attorney General

Re: The overtime payment provision of the state minimum wage law and certain employees of interstate motor carriers.

FACTS:

Confusion has arisen over the applicability of the overtime payment provision of the minimum wage law of the State of Maine, 26 M.R.S.A. § 664, to those employees of interstate motor carriers whose maximum hours of employment and qualifications pertaining thereto are subject to determination by the Interstate Commerce Commission.

The following opinion represents the final opinion of this office on this subject and in effect represents nothing more than a projected calculation of how a court would rule on the applicability of this state overtime payment provision to the employees under discussion.

Does the overtime payment provision of the state minimum wage law (26 M.R.S.A. § 664) apply to those employees of interstate motor carriers whose qualifications and maximum hours of service are subject to regulation by the I.C.C.?

No.

OPINION:

Briefly stated, the overtime payment provision of the state minimum wage law, 26 M.R.S.A. § 664 provides that an employer must pay his employees 1½ times their regular rate of pay for all work done in excess of 48 hours in any one week. Certain employees are exempt from coverage under this overtime payment provision such as employees who work in sardine plants and certain agricultural workers, to name but a few. There is no express provision exempting an employee of an interstate carrier such as a truck driver or a helper, with respect to whom the I.C.C. has the exclusive power to establish qualifications and maximum hours of service however.

When analyzing a state's overtime payment statutes, it is also necessary to look at the comparable provisions of the federal law.

29 U.S.C.A. § 207(a)(1) (Fair Labor Standards Act) provides in part:

"Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."

Employees in the State of Maine who work for interstate motor carriers, if not exempt from the terms of 207(a)(1), would therefore receive overtime pay at one and one-half their regular rate of pay for all hours worked in excess of 40 hours in a week. The Maine law (26 M.R.S.A. § 664) would not apply because it is less favorable to the employee. However if the State of Maine were to revise its present overtime provision to provide for payment of time and one half for all hours worked in excess of 40 hours per week then the Maine law would apply. This is so because where employees are subject to the terms of F.L.S.A. they are also subject to the more favorable terms of similar state legislation should this latter exist.

29 U.S.C.A. § 218 (F.L.S.A.) provides that:

"No provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter or a maximum workweek lower than the maximum workweek established under this chapter; . . ."

However, certain employees of interstate carriers clearly are exempt from coverage under the Fair Labor Standards Act as far as overtime payment is concerned.

"The provisions of section 207 of this title (1½ times regular rate of pay for work in excess of 40 hours per week) shall not apply with respect to . . .

(1) any employee with respect to whom the interstate commerce commission has the power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of title 49 U.S.C.A. . . ."

"The Commission has power to establish maximum hours of service for employees of interstate motor carriers whose activities affect safety of operation, and such employees are exempt from the overtime provisions of the Fair Labor Standards Act (29 U.S.C.A. § 207(a)(1)), but the Commission does not have such power over employees whose activities do not affect safety of operation." Tobin v. Mason & Dixon Lines, 102 F. Supp. 466.

There is no need to cite extensive case law defining the employees covered, i.e., whether the work of certain employees is sufficiently connected with safety of operation or not so as to come within the terms of exemption. It is well established that the categories of employees exempted under 213(b)(1) F.L.S.A. are drivers, drivers helpers, loaders and mechanics.

It does not follow that the above-designated employees, although exempt from the overtime payment provision of the F.L.S.A., automatically fall under the umbrella of state overtime payment provisions however. Indeed an opposite conclusion seems imperative since the determination of the qualifications and maximum hours of work of these employees is specifically placed under the jurisdiction of the Interstate Commerce Commission.

Certainly if the State of Maine were to enact legislation setting maximum hours of service for drivers of motor carriers it would not apply to those drivers who are engaged in interstate commerce. Congress did not intend to have the states share jointly with the I.C.C. the power to regulate interstate commerce or the power to establish qualifications of employment for the above-designated employees engaged therein.

By recognizing that where the responsibility for the regulation of hours of employment of certain employees of interstate motor carriers rests with the I.C.C. that its own overtime payment provision (207(a)(1) F.L.S.A.) should not apply, can it be logically argued that Congress intended that the individual states should be free to enact laws which would govern the overtime pay of these very same employees?

Although it cannot be said that the power to establish maximum hours of service and qualifications pertaining thereto and the power to establish overtime payment provisions are absolutely synonymous, the fact remains that the two are part and parcel of the same package.

We cannot believe that Congress intended to deny each of the 50 states the power to enact laws governing the maximum hours of employment and qualifications pertaining thereto in regard to certain employees, and at the same time allow the individual states to enact overtime payment laws relative to the hours of employment of said employees.

One purpose for the imposition of overtime wages is to discourage employers from demanding excessive hours of work from employees, thereby endangering the health and safety of the latter. Where the health and safety of employees are adequately protected by regulations promulgated by the I.C.C. however, this phase of overtime payment is greatly weakened.

Certainly there are other reasons for the imposition of overtime wage rates, such as the creation of more job opportunities by limiting the number of hours of labor of those workers presently employed. This can easily be accomplished in certain industries. However, the reduction of hours of employment of the above-designated employees would be most difficult for an interstate motor carrier, and in some instances, impossible.

In conclusion, we do not entirely dismiss the possibility of a different interpretation as to the applicability of the terms of 26 M.R.S.A. § 664 to the employees under discussion. In the absence of any case law specifically upholding or rejecting the applicability of a state overtime payment provision to said employees, we can only predict the conclusion which we believe a court would reach in determining the issue presented.

Phillip M. Kilmister
Assistant Attorney General

PMK/ell