For vending operators with trucks that are 10,000 pounds or less, the driver must be paid overtime if he or she works more than 40 hours a week. Overtime is one and a half times regular pay.
Bailey said the good news is that courts have held that the new definition for “commercial motor vehicle” will not be applied retroactive beyond Aug. 10, 2005. If a driver should sue for overtime wages, an operator will not be held to the new definition prior to Aug. 10, 2005. After that date, any employee driving a truck that weighs 10,000 pounds or less will not be exempt.
Prior to Aug. 10, 2005, vending operators did not have to pay drivers overtime if one of the following were true:
- They carried vending goods across state lines.
- Operators’ routes crossed state lines.
- At least 10 percent of the vending goods came from out of state and did not rest at a warehouse for an extended period.
Now a vending operator must still meet those three requirements and the truck must also meet the new weight requirement.
Bailey said vending operators can wait to see if Congress makes a “technical correction” to the definition. Bailey does not think this is likely since there has already been one correction that didn’t address the definition.
Another option is to make sure trucks meet the minimum load requirement.
Still another option is to change drivers’ compensation from salary to hourly and pay them overtime.
Bailey presented the option of using the “fluctuating work week” method of handling overtime. When an employee’s hours fluctuate from week to week, an employer can compensate the employee on a fixed salary basis with the understanding that this rate is for straight time for all hours worked during the week based on a specific salary.
Under this agreement, the operator will only be required to pay an additional half time for any hours worked in excess of 40.
For example, if a driver makes a fixed salary of $500 per week and works 45 hours one week, divide $500 by 45 hours, which equals $11.11 per hour. The employee’s rate for that week is for straight time. Then divide $11.11 by 2 in order to calculate the half time for the five hours of overtime worked, which equals $5.56. Hence, the employer owes the employee an additional $5.56 per hour for the five hours worked overtime.
Bailey noted that the total hours cannot exceed 50 in a work week.
Bailey said it is important to put the agreement in writing. She said the law requires a clear mutual understanding between the parties. “Having documentation is key,” she said.
If an employee only works 34 hours one week, Bailey said they must still be paid the full fixed salary for that week.
Bailey further stated that operators must make sure that any agreement meets state overtime laws, which can be different from federal laws.
They can also wait to see if the Department of Labor intervenes and issues an opinion.
One operator in the audience asked about employing people on an independent contractor basis. Bailey responded that Federal Express and UPS attempted this and faced numerous lawsuits. “An independent contractor situation is going to be tough for a vending route driver,” she said.
Bailey said the Department of Labor is not actively checking vehicle weights. However, she said, employees are suing employers for overtime pay.
Balanced For Life campaign includes two sets of nutrition standards for vend products
Jackie Clark, NAMA public relations director, discussed the new nutrition programs under the “Balanced for Life” health vending inititiave. The new “Fit Pick Nutrition Basket” choices allow operators to choose between two sets
- 35-10-35: Less than 35 percent calories from fat; less than 10 percent calories from saturated fat; less than 35 percent total weight in sugar.
- The Alliance for a Healthier Generation: the 35-10-35 standards, plus a cap of 230 milligrams of sodium and a calorie cap of 180 or 200, depending on the location.
Clark said NAMA has developed a manual for implementing the wellness programs. There are product stickers for the “Fit Pick” and “Alliance” programs, and coin slot stickers and machine clings for the programs as well. NAMA has lists of products that meet these standards.