Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Employment Law / Tow Truck Driver Sues for Overtime Pay

Tow Truck Driver Sues for Overtime Pay

A former tow truck driver who alleges he was not paid a minimum wage or overtime pay despite working 12-hour days Monday through Friday as well as 60-hour “on call” weekends, has stated claims under the Fair Labor Standards Act, but the Richmond U.S. District Court defers a decision on defendant towing company’s claim of an exemption from an overtime pay claim under the Motor Carrier Act.

Based on the standard of Portillo v. King of Pita Bakery Inc., No. 1:12cv1103 (E.D. Va. July 9, 2013), plaintiff has sufficiently stated a claim for relief. First, he pled that he was employed by David’s Towing as a tow truck driver from approximately April 2012 to April 2014. He pled that he was assigned to tow vehicles from one location to an end destination, which could include another part of Virginia or an adjoining state. The vehicles he towed sometimes had out-of-state license plates. Plaintiff was engaged in commerce as a tow truck driver. Plaintiff also pled that he was paid less than minimum wage for the hours he worked. Defendants argue that plaintiff failed to allege any estimate or approximation of his allegedly unpaid minimum wages; however, plaintiff alleged he worked 75 hours per work week, and he attached two earnings statements that list his approximate wages. Based on these facts, defendants can frame a meaningful response to plaintiff’s claim of unpaid minimum wages. Plaintiff also pled that he was entitled to receive minimum wage under the FLSA, and none of the exemptions under 29 U.S.C. § 213(a) apply to his minimum wage claim.

Plaintiff also alleges a violation of 29 U.S.C. § 207, which requires employers to pay overtime compensation to an employee who works more than 40 hours per work week. This claim also may go forward. Plaintiff alleges he averaged 75 hours of work per week for the company during his employment, and the complaint details the activities that occupied his alleged overtime hours, including additional towing assignments and “on call” weekend work. Plaintiff also alleges that David’s Towing scheduled him to work Monday through Friday, 7:00 a.m. to 7:00 p.m. In addition to his weekday schedule, David’s Towing scheduled him to work every other weekend as the “on call” tow truck driver, which required plaintiff to respond to tow assignments all weekend for a 60-hour period. A company dispatcher was responsible for assigning plaintiff vehicles to tow. Based on their managerial positions, the towing company president and his wife, the “human resources manager,” knew or should have known about plaintiff’s assigned overtime schedule. Although the company did not maintain records of plaintiff’s total hours, as a corporate employer, it also should have known of plaintiff’s overtime work.

Defendant claims it was exempt from an overtime pay claim under the Motor Carrier Act exemption in 29 U.S.C. § 213(b)(1). However, by not registering as a common carrier in interstate commerce, David’s towing held itself out as not being an interstate motor carrier. For purposes of this motion to dismiss, the court cannot as a matter of law declare whether or not the Motor Carrier Act exemption applies.

The court dismisses plaintiff’s state law claims for quantum meruit and unjust enrichment, as the FLSA directly addresses and provides relief for plaintiff’s allegations that defendant did not pay him reasonable compensation for his towing and other services. The court also dismisses plaintiff’s claim for punitive damages, as he provides no factual basis for his claims.

Seagram v. David’s Towing & Recovery Inc. (Spencer) No. 3:14cv414, Oct. 20, 2014; USDC at Richmond, Va. VLW 014-3-539, 14 pp.


Leave a Reply