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09-3023 Johnson v. Hix Wrecker Service, Inc.

By: WISCONSIN LAW JOURNAL STAFF//July 1, 2011//

09-3023 Johnson v. Hix Wrecker Service, Inc.

By: WISCONSIN LAW JOURNAL STAFF//July 1, 2011//

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Employment
FLSA; motor carrier exemption

Conclusory assertions are insufficient to show that a tow truck driver is subject to the motor carrier exemption to the FLSA.

“The point of requiring a motor carrier to show that it regularly engages in interstate commerce is to prevent employers from circumventing the maximum hours provisions of the FLSA by claiming that their employees are used in interstate commerce even though the likelihood of an employee being sent on an interstate run is remote. See 46 Fed. Reg. 37,902; see also Goldberg, 291 F.2d at 235. If the burden of proof on the question of whether he was exempt had been Johnson’s, Ms. Neil’s affidavit, combined with Johnson’s failure to adduce evidence on this issue, may have sufficed for the district court to  conclude that there was no genuine issue of material fact for trial. But Hix Wrecker cannot carry the day on the question of whether Johnson is exempt, a point on which it bears the burden of proof, with only an inconclusive and ambiguous affidavit. To allow it to do so would make it too easy for employers to get around the maximum hours provisions of the FLSA. Because Hix Wrecker did not establish as a matter of law that Johnson was exempt, we reverse the district court’s grant of summary judgment in the defendants’ favor.”

Reversed.

09-3023 Johnson v. Hix Wrecker Service, Inc.

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Williams, J.

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