Donald's Trump driver and Lady Gaga's personal assistant were both well paid at $75,000 per year, but they both sued for unpaid overtime. Lady Gaga's assistant argued that she worked 24 hours a day, seven days a week without receiving overtime pay. Trump's driver argues that he has 3,300 hours worth of overtime pay that he deserves. Lady Gaga settled out of court with private terms. But, does Trump's driver have a case? It could come down to the weight of the car.

Employment law is weird

Under the Fair Labor Standards Act (FLSA), employees are entitled to overtime pay--time and a half--if they work more than 40 hours in a week unless they meet one of the "exemptions." That's why we talk about exempt and non-exempt employees.

While the qualifications for exemption can be a bit complex, as a general rule you need to manage other people, have decision making and independent working ability, be in outside sales, or be a highly educated professional. It doesn't matter whether the employee consents to working on a salary or not--legally the employer has to pay the overtime.

From that definition, it seems pretty clear that being a driver would qualify as non-exempt, and thus, eligible for overtime pay. But that would make it way too easy.

There's another law, known as the Motor Carrier Act. This act allows drivers to be exempt from overtime if they meet certain criteria, including driving a vehicle that weighs more than 10,000 pounds.

Employment attorney Jon Hyman explained, in a message to me, that "This exemption will certainly come down to the weight of the vehicle, as the rest of the test would seem to be met by anyone who drives for a living."

And if the vehicle was under 10,000 pounds?

If the car that chauffer Noel Cintron, weighed less than that, he'll most likely be eligible for overtime pay. What would that look like?

Well, he's claiming 3,300 hours overtime pay and a salary of $75,000 a year. That breaks down to approximately $36 per hour for the 40 hour work week. Overtime pay would be $54 an hour. At 3,300 hours that $178,200. Not a bad payout.

Now, you might want to make the moral argument that Mr. Cintron knew what his pay was when he took the job, and he agreed to work more than 40 hours a week for that pay, so he shouldn't be eligible for overtime pay. The law simply doesn't allow for that. If you don't meet the qualifications for exemption, you can't waive overtime. Period.

My prediction is that Trump, like Lady Gaga, will settle out of court. It would be unusual if his vehicle weighed more than 10,000 pounds, although (somewhat ironically) President Trump's current vehicle does weigh about 14,000 pounds, due to all the safety features required for a president. If Mr. Cintron drove for him now, he'd certainly be exempt from overtime. 

Lessons for other employers

Mr. Cintron drove for President Trump for 25 years. Obviously, he was okay with the arrangement or he would have quit or sued earlier. He didn't. While the law prohibits him from recovering for the full 25 years worth of overtime pay, it doesn't prohibit him from suing for the past few years. 

You may think that because your employees are currently happy with their situation that you don't need to worry too much about employment law. You're wrong. Your legally non-exempt employees are entitled to overtime pay, no matter what sort of handshake or even contract you have with them, and they can sue at any time. Follow the law to the letter and you won't have these problems. 

Published on: Jul 11, 2018