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Case Bulletin – Third Circuit Rules that Transportation of Fracking Water Does Not Exempt Employers’ from Paying Overtime Wages

In the case Mazzarella v. Fast Rig, LLC et al., the United States Court of Appeals for the Third Circuit recently affirmed the Middle District of Pennsylvania’s ruling that defendant trucking companies’ failure to pay overtime wages to their drivers constituted as a violation of the Fair Labor Standards Act (“FLSA”) and the Pennsylvania Minimum Wage Act. Judge Patty Shwartz authored the precedential Third Circuit opinion that declined to adopt defendants’ position that the alleged interstate transportation of water from retention ponds for fracking operations qualified them as common carriers engaged in interstate or foreign commerce under the Motor Carrier Act (“MCA”), therefore exempting defendants from paying overtime wages.

 

The MCA provides that certain interstate employment activity that is subject to the jurisdiction of the Department of Transportation (“DOT”) is exempt from certain requirements, such as the FLSA’s overtime provisions. In support of applying the MCA, defendants provided a DOT certificate authorizing them to engage in intestate transportation, an online news article describing that fracking wastewater is trucked out of Pennsylvania to Ohio, and a spreadsheet showing shipments of water tracked and bound for specific interim destinations within Pennsylvania.  Defendants also represented in their briefing that water was sometimes picked up from sites in New York, rather than Pennsylvania, and that Defendants sometimes contracted to haul wastewater to Ohio. Despite these representations, Judge Shwartz stated in her opinion that there was no evidentiary support of record to show that the drivers were engaged in a continuous stream of interstate travel so as to fall under the MCA’s exemption.

 

Defendants have requested reargument of this matter and that request is currently pending before the Third Circuit.