PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 14-1010

_______________

ASHLEY MCMASTER,

Appellee

v.

EASTERN ARMORED SERVICES, INC.,

Appellant

_______________

On Appeal from the United States District Court

for the District of New Jersey

(Civ. No. 11-5100)

District Judge: Honorable Michael A. Shipp

_______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

October 23, 2014

Before: FUENTES, GREENBERG, and COWEN, Circuit 

Judges

(Opinion Filed: March 11, 2015)

Mark Justin Gottesfeld
2

R. Andrew Santillo

Peter D. Winebrake

Winebrake & Santillo, LLC

715 Twining Road, Suite 211

Dresher, PA 19025

Attorneys for Appellee

Christina Vassilou Harvey

Lomurro, Davison, Eastman & Munoz

100 Willow Brook Road

Building 1, Monmouth Executive Center

Suite 100

Freehold, NJ 07728

Attorney for Appellant

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OPINION OF THE COURT

_______________

FUENTES, Circuit Judge:

The Fair Labor Standards Act requires most employers 

to pay overtime wages to hourly employees. While 

professional motor carriers are generally exempt from this 

requirement, a recent Act of Congress waives the exemption 

for motor carrier employees who, in whole or in part, drive 

vehicles weighing less than 10,000 pounds. Because the 

plaintiff, Ashley McMaster, falls within this carveout, we will 

affirm the District Court’s determination that she was entitled 

to overtime.

I.
3

Ashley McMaster worked for Eastern Armored 

Services, Inc. (“Eastern”) from approximately March 2010 

until June 2011. As its name suggests, Eastern is an armored 

courier company, and its fleet of armored vehicles operates

across several states in the mid-Atlantic region. McMaster

was a driver and/or guard for Eastern, which meant that some 

days she was assigned to drive an armored vehicle, while 

other days she rode as a passenger to ensure safety and 

security. McMaster was not assigned to one specific vehicle. 

Rather, her vehicle assignment changed according to the 

particular needs of a given day’s transport. As it happened, 

McMaster spent 51% of her total days working on vehicles 

rated heavier than 10,000 pounds, and 49% of her total days 

working on vehicles rated lighter than 10,000 pounds. She 

was paid by the hour, and she frequently worked more than 

40 hours in a given week. For all hours worked, she was paid 

at her regular rate. In other words, she was not paid overtime. 

After McMaster left Eastern, she filed the instant 

federal action claiming that the Fair Labor Standards Act

required Eastern to pay her overtime wages when she worked 

more than 40 hours in a week. The parties certified a 

conditional class of similarly situated employees, see 29

U.S.C. § 216(b), and proceeded to limited discovery on 

McMaster’s claim only. The parties then cross-moved for 

summary judgment. Their dispute centered on whether 

Eastern was exempt from paying overtime to McMaster under 

a provision of the Fair Labor Standards Act known as the 

Motor Carrier Act Exemption. According to Eastern, 

McMaster fell within the exemption and was thus not entitled 

to overtime. According to McMaster, she fell within an 

exception to the exemption enacted by Congress prior to her 

employment. 
4

The District Court granted McMaster’s motion, denied 

Eastern’s motion, and entered an order that McMaster was 

eligible to be paid overtime wages for all hours she worked 

over 40 in a given workweek. This interlocutory appeal 

followed on certification of the District Court, see 28 U.S.C. 

§ 1292(b), which recognized that other district courts have 

embraced Eastern’s arguments. In the briefs before us, 

Eastern renews its contention that McMaster is ineligible for 

overtime because of the Motor Carrier Act Exemption.1

II.

Section 7 of the Fair Labor Standards Act provides 

that employers must pay hourly employees 150% their typical

wages on hours they work in a week over 40.

2 See 29 U.S.C. 

 

1 Eastern’s alternative argument—that McMaster was entitled

to overtime only for those workweeks in which she actually 

performed work on vehicles lighter than 10,000 pounds—was 

not presented to the District Court and is therefore deemed 

waived. See Tri–M Grp., LLC v. Sharp, 638 F.3d 406, 416 

(3d Cir. 2011). 

2 We have jurisdiction to review the District Court’s order 

pursuant to 28 U.S.C. § 1292(b). The District Court had 

subject-matter jurisdiction under 28 U.S.C. § 1331.

We review a district court's grant of summary judgment de 

novo. Doe v. Indian River Sch. Dist., 653 F.3d 256, 275 n.7 

(3d Cir. 2011). In doing so, we apply the same standard as the 

district court. Id. That is, summary judgment should be 

granted “if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). In deciding whether 

summary judgment is warranted, we “must view the facts in 
5

§ 207; Packard v. Pittsburgh Transp. Co., 418 F.3d 246, 250 

(3d Cir. 2005). One exemption to this general rule is Section 

13(b)(1) of the Act. Known as the Motor Carrier Act 

Exemption, the provision provides that overtime pay is not 

required for “any employee with respect to whom the 

Secretary of Transportation has power to establish 

qualifications and maximum hours of service.” See 29 U.S.C. 

§ 213(b)(1); see also 49 U.S.C. §§ 31502(b), 13102 (defining 

scope of Secretary of Transportation’s regulatory authority). 

Congress elaborated upon the Motor Carrier Act 

Exemption with the enactment of the Corrections Act of 

2008.

3 Section 306(a) of the Corrections Act provides that

“Section 7 of the Fair Labor Standards Act . . . shall apply to 

a covered employee notwithstanding section 13(b)(1) of that 

Act.” See Corrections Act, § 306(a). Section 306(c) of the 

Corrections Act defines the term “covered employee.” In 

short, a “covered employee” is an employee of a motor carrier 

whose job, “in whole or in part,” affects the safe operation of 

vehicles lighter than 10,000 pounds, except vehicles designed 

to transport hazardous materials or large numbers of 

passengers. Corrections Act § 306(c).

McMaster’s job placed her squarely within the 

Corrections Act’s definition of a “covered employee.” 

McMaster was a driver and guard of commercial armored 

vehicles, and approximately half of her trips were on vehicles 

 

the light most favorable to the nonmoving party and draw all 

inferences in that party's favor.” Doe, 653 F.3d at 275 n.7.

3 SAFETEA–LU Technical Corrections Act of 2008, PL 110-

244, June 6, 2008, 122 Stat. 1572.
6

undisputedly lighter than 10,000 pounds.4 Her daily routes 

included interstate trips on public roadways, and none of the 

vehicles were designed to transport eight or more passengers 

or used to transport hazardous materials. And her employer, 

Eastern, is by its own admission a motor carrier. The critical 

issue, then, is the significance of being a “covered employee” 

when determining a motor carrier employee’s entitlement to 

overtime.

It is well-established that, “[w]here the text of a statute 

is unambiguous, the statute should be enforced as written and 

only the most extraordinary showing of contrary intentions in 

the legislative history will justify a departure from that 

language.” Murphy v. Millennium Radio Grp. LLC, 650 F.3d 

295, 302 (3d Cir. 2011). As stated above, the relevant 

language of the Corrections Act is that, as of June 6, 2008, 

“Section 7 of the Fair Labor Standards Act of 1938 . . . shall 

apply to a covered employee notwithstanding section 13(b)(1) 

of that Act.” Corrections Act § 306(a). This is a plain

statement that a “covered employee” is to receive overtime 

even where section 13(b)(1)—the Motor Carrier Act 

Exemption—would ordinarily create an exemption. We see 

no plausible alternative construction, and neither Eastern nor 

any of the authorities it cites attempt to offer one. Nor does

Eastern point to legislative history probative of a drafting 

error. Cf. Murphy, 650 F.3d at 302. Statutory construction 

points to one conclusion: “covered employees” are entitled to 

 

4 We need not now affix a firm meaning to the term “in part.” 

Whatever “in part” means, it is certainly satisfied by 

McMaster, who spent 49% of her days on vehicles less than 

10,000 pounds.
7

overtime.

District courts considering the plain language of the 

Corrections Act have reached the same conclusion. See, e.g.,

McMaster v. E. Armored Servs., Inc., 2013 WL 1288613, at 

*1 (D.N.J. 2013); Garcia v. W. Waste Servs., Inc., 969 F. 

Supp. 2d 1252, 1260 (D. Idaho 2013); Bedoya v. Aventura 

Limousine & Transp. Serv., Inc., 2012 WL 3962935, at *4 

(S.D. Fla. 2012); Mayan v. Rydbom Exp., Inc., 2009 WL 

3152136, at *9 (E.D. Pa. 2009); Botero v. Commonwealth 

Limousine Serv. Inc., 2013 WL 3929785, at *13 (D. Mass. 

2013); O’Brien v. Lifestyle Transp., Inc., 956 F. Supp. 2d 

300, 307 (D. Mass. 2013). So, too, the Department of Labor,

in a post-Corrections Act Field Bulletin entitled “Change in 

Application of the FLSA § 13(b)(1) ‘Motor Carrier 

Exemption.’” See Department of Labor Field Bulletin, 

available at http://www.dol.gov/whd/fieldbulletins/fab2010_2.htm.

(“Section 306(a) extends FLSA Section 7 overtime 

requirements to employees covered by [Corrections Act] 

Section 306(c), notwithstanding FLSA Section 13(b)(1).”). 

Our sister courts of appeals have yet to weigh in 

squarely on whether a Corrections Act “covered employee” is 

entitled to overtime, but the Fifth and Eighth Circuits have 

noted the plain language of the Corrections Act, too. 

In Allen v. Coil Tubing Servs., L.L.C., the Fifth Circuit 

addressed a motor carrier employee’s argument in an 

interlocutory appeal that her lack of interstate driving placed 

her outside the ambit of the Motor Carrier Act Exemption. 

See 755 F.3d 279 (5th Cir. 2014). The Corrections Act was 

not at issue because the relevant claims arose prior to June 

2008. Id. at 291 n.6. In a footnote, however, the court 
8

commented on the plaintiff’s other claims before the District 

Court, which arose after the enactment of the Corrections Act. 

Without deciding the issue, the Allen court observed that,

“although the scope of the [Motor Carrier Act] Exemption to 

the [Fair Labor Standards Act] and the scope of the 

[Department of Transportation]’s regulatory jurisdiction are 

generally one and the same, there may be an exception to that 

rule following passage of the [Corrections Act].” Id.

Continuing, the court explained that the Corrections Act 

“provides generally that, from the date of the act’s enactment, 

June 6, 2008, the [Motor Carrier Act] exemption does not 

apply to employees who would otherwise fall within its ambit 

if the [“covered employee”] requirements are met.” Id. 

(emphasis in the original). In other words, “covered 

employees” are entitled to overtime.

The Eighth Circuit case, McCall v. Disabled American

Veterans, involved a motor carrier employee who, like 

McMaster does here, argued he was eligible for overtime 

because he was a Corrections Act “covered employee.” See 

723 F.3d 962 (8th Cir. 2013). The issue on appeal centered on 

whether the weight of the vehicles the plaintiff drove should, 

for purposes of determining whether he was a “covered 

employee,” be measured according to their actual weight or 

according to their Gross Vehicle Weight Rating. See id. 

Finding the plaintiff was not a “covered employee” because 

he exclusively worked on vehicles with a Gross Vehicle 

Weight Rating over 10,000 pounds, the Eighth Circuit 

explained that “Gross Vehicle Weight Rating establishes an 

objective and predictable standard for determining whether 

the [Motor Carrier Act] Exemption applies.” Id. at 966.

Rather than contest Congress’s express carveout from 
9

the Motor Carrier Act Exemption for “covered employees,”

Eastern relies on a series of district court cases holding that 

the Motor Carrier Act Exemption remains absolute after the 

Corrections Act. See Avery v. Chariots For Hire, 748 F. 

Supp. 2d 492, 500 (D. Md. 2010); Dalton v. Sabo, Inc., 2010 

WL 1325613, at *4 (D. Or. 2010); Jaramillo v. Garda, Inc., 

2012 WL 4955932, at *4 (N.D. Ill. 2012).5 Each of these 

cases relies on a policy statement of the Seventh Circuit in 

2009 that “[d]ividing jurisdiction over the same drivers, with 

the result that their employer would be regulated under the 

Motor Carrier Act when they were driving the big trucks and 

under the Fair Labor Standards Act when they were driving 

trucks that might weigh only a pound less, would require 

burdensome record-keeping, create confusion, and give rise 

to mistakes and disputes.” See Collins v. Heritage Wine 

Cellars, Ltd., 589 F.3d 895, 901 (7th Cir. 2009). Indeed, our 

own jurisprudence has historically seen the Motor Carrier Act 

Exemption as establishing a strict separation between the 

Secretary of Transportation’s jurisdiction and the ambit of the 

Fair Labor Standards Act overtime guarantee. See Packard,

 

5 Eastern also points to Buckner v. United Parcel Services, 

Inc., 2012 WL 1596726 (E.D.N.C. May 7, 2012) aff'd without 

opinion, 489 F. App’x 709 (4th Cir. 2012) cert. denied, 134 

S. Ct. 70 (2013), which found a pro se plaintiff ineligible for 

overtime where his job consisted of driving cargo vans 

heavier and lighter than 10,000 pounds. Although the facts of 

Buckner parallel those of this case, there is no indication that 

the pro se plaintiff presented a Corrections Act argument to 

the District Court or the Fourth Circuit, and those courts’ 

decisions do not show consideration of the Corrections Act 

sua sponte. 
10

418 F.3d at 254 (rejecting argument that Motor Carrier Act 

Exemption applied only to drivers actually regulated by the 

Secretary of Transportation); Friedrich v. U.S. Computer 

Servs., 974 F.2d 409, 412 (3d Cir. 1992). Neither history nor 

policy, however, can overcome an express change to the 

statutory scheme.6

III.

The Corrections Act says it plainly: “Section 7 of the 

Fair Labor Standards Act of 1938 . . . appl[ies] to a covered 

employee notwithstanding section 13(b)(1) of that Act.” 

Corrections Act § 306(a). As McMaster meets the criteria of a 

“covered employee,” she is entitled to overtime. We will 

therefore affirm the order of the District Court and remand for 

assessment of wages owed to McMaster and for additional 

proceedings relating to the other members of the conditional 

class.

 

6

In any event, administrability is not an issue with respect to 

those employees who fall within the Motor Carrier Act 

Exemption but are not actually regulated by the Department 

of Transportation. As our former Chief Judge has noted, 

employees may fall within the Motor Carrier Act Exemption 

even where their work presents no reason for Department of 

Transportation regulation. See Friedrich, 974 F.2d at 421 

(Sloviter, C.J., dissenting) (“[T]he driving done by these 

plaintiffs does not raise safety concerns any different than 

those raised by sales or repair persons who carry no such 

equipment. We are not dealing with truckers or bus operators 

here. The DOT itself recognized this distinction when it 

decided not to regulate lightweight vehicles such as 

automobiles.”).