A particularly persistent Florida shuttle driver has been in and out of court, arguing that he and his fellow drivers should earn more than commissions and tips—they should also get time-and-a-half for all hours over 40 worked in a week. For the second time, the drivers have lost their case.

What happened. “Avery” drove an airport shuttle from December 2005 through June 2007, employed by Southern Shuttle Services. The company operates vans that carry 9 or 10 passengers to, from, and among three airports—in Miami, Palm Beach, and Fort Lauderdale. The trickiest part of court deliberations the second time around was that shuttles operate only within Florida—was that “interstate commerce”?

The first time Avery sued, a federal district judge found that the drivers couldn’t earn overtime because shuttles were covered by the “taxicab exemption” of the Fair Labor Standards Act (FLSA). But the 11th Circuit, to which the drivers appealed, said the vans were too big to qualify as taxicabs and sent the case back to the district court. There, Southern Shuttles argued instead that its operations are regulated by the Secretary of Transportation and are thus exempt under the Motor Carrier Act (MCA). The federal district judge agreed, and drivers again appealed to the 11th Circuit, which covers Alabama, Florida, and Georgia.

What the court said. Before appellate judges, the drivers argued that they are not engaged in interstate commerce and that the Secretary of Transportation has not regulated them. The secretary could establish qualifications and maximum hours of service for drivers, but has not.

Reviewing an earlier, similar case, judges said there are two requirements for MCA coverage: (1) The business must be subject to the secretary’s regulation, and (2) the employer’s business activities must directly affect the safety of operation of motor vehicles in interstate transportation. Judges decided that because shuttle passengers often travel between airports in order to fly to other states and passengers often pay for shuttle fares with vouchers provided by third-party travel companies around the country, Southern Shuttles is part of a “continuous stream of interstate travel.” Further, it doesn’t matter that the secretary has not chosen to regulate them. So the drivers were again found to be exempt from overtime. Abel et al. v. Southern Shuttle Services, U.S. Court of Appeals for the 11th Circuit, No. 10-10659 (2010).

Point to remember: The opinion in the earlier case explained that “there must be a ‘practical continuity of movement’ between the intrastate segment and the overall interstate flow,” as there is in this case.