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RoadPro Kicks Off the Ultimate Nashville Getaway Giveaway

Palmyra, PA (July 2019) – RoadPro Family of Brands is pleased to announce
The Ultimate Nashville Getaway Giveaway specific to the professional truck driver.

Drivers can enter to win an all-expenses paid trip for two to Nashville including:
round trip airfare, a 2- night, 3 day stay at the Opryland Resort, tickets to the Grand Ole Opry for a Saturday night show and $250 to spend at the Opryland Hotel Restaurants.

The winner will also be treated to a backstage tour of the Opry hosted by Marcia Campbell, host of WSM’s All-Nighter, where they will have the opportunity to take photos and meet the stars of the show.

Entries will be accepted at NashGiveaway.com now until August 21st.
RoadPro will announce the winner at the Great American Trucking Show in Dallas on August 23rd.

GATS will be held Aug 22-24 at the Kay Bailey Hutchison Convention Center in downtown Dallas. Those interested in attending GATS can register for free online here.

Road Pro has supported numerous charities including St. Christopher Fund, American Cancer Society. Special Olympics, and the Make a Wish, where they are the presenting sponsor.
RoadPro has also been a strong supporter of Women Truckers and has been the “Queen of the Road” Sponsor for the last 2 years for the organization Real Women in Trucking’s annual event.

© 2019, Allen Smith. All rights reserved.

Technorati Tags: GATS, Nashville Getaway, RoadPro, Ultimate Nashville Getaway Giveaway

The post Truckers can enter to win All Expense Paid trip to Nashville from RoadPro appeared first on Ask The Trucker.

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Driver who refused to drive in hazardous weather wins OSHA STAA case

For many years now attorney Paul Taylor of Truckers Justice Center has been standing up for truckers and their rights.   Recently Mr.Paul Taylor won his most recent case for his client Clint Collins. Mr. Collins refused to drive in hazardous weather and got fired for it.  OSHA found the firing violated the STAA and ordered Freight Rite to offer Collins reinstatement without retaliation and awarded the following:

  1. Back pay:  $32,660.40 with interest;
  2. Emotional pain and suffering: $50,000;
  3. Punitive Damages:  $100,000;
  4. Attorney Fees:  $5,871.85

Paul Taylor at Ask-A-Lawyer event at GATS

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has ordered Freight Rite Inc. – based in Florence, Kentucky – to reinstate a truck driver terminated after he refused to operate a commercial motor vehicle in hazardous road conditions caused by inclement winter weather.

U.S. Department of Labor Orders Kentucky Trucking Company To Reinstate Driver Who Refused To Operate Vehicle During Inclement Weather

“Forcing drivers to operate a commercial motor vehicle during inclement weather places their lives and the lives of others at risk,” said OSHA Regional Administrator Kurt Petermeyer, in Atlanta, Georgia. “This order underscores the agency’s commitment to protect workers who exercise their right to ensure the safety of themselves and the general public.”

OSHA enforces the whistleblower provisions of STAA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Programs webpage.

Under the Occupational Safety and Health Act, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.

Mr Taylor has one many cases for truckers and has been a speaker at many events, including ( but not limited to)

1st and 2nd annual Truck Driver Social Media Convention,
The 2017 “AskALawyer” event at GATS hosted by Real Women in Trucking (RWIT)
the “Hot Legal Topics for Truck Drivers” at GATS, also hosted by RWIT.
Videos for both events on TruckingSocialMedia

What every truck driver should know Part 1- First introduced at the 2011 Trucking Social Media Convention. This video appeared to kick off his own series of videos to help drivers understand the laws which protect them.

His active YourTube Channel offers drivers advice on many topics by creating short vidoes, answering some of truckers most common ( and not so common) questions.

Paul has been a guest on our internet radio show, AskTheTrucker “Live’, a few times, offering legal advice to professional drivers,

Truckers Justice Center is also active on FaceBook and Twitter

Paul O. Taylor- Truckers Justice Center
Attorney
Direct Dial (651) 454-5800

Taylor & Associates, Ltd. – Truckers Justice Center
5100 Edina Industrial Boulevard, Suite 230
Edina,MN 55439

© 2019, Allen Smith. All rights reserved.

Technorati Tags: osha, Paul Taylor, staa, truckers justice center, Trucking, U. S. Department of Labor, Whistleblower Protection Program

The post Driver who refused to drive in hazardous weather wins OSHA STAA case appeared first on Ask The Trucker.

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Perhaps you currently drive a big rig for a company and want total freedom to transport loads when and where you want. Or, you recently received your Class A CDL license and are anxious to make your first run. Regardless of which applies, a lot of careful planning and thought goes into the decision to either remain as a company driver or start your own business in long haul trucking.

Lease/Buy

If you are considering being an owner operator, the first thing to consider is whether you want to have your own authority or lease on to a carrier. Will you be buying your truck outright or leasing it? Since big rigs can cost upwards of $100,000 or more depending on the age, make and model, if you have limited funds, leasing may end up as the better option. However, if you planned ahead and have a nest egg secure for this venture, then owning your rig outright may prove to give you more flexibility and work in your favor, including additional tax deductions.  Set up an LLC for your company, an S-Corp is a beneficial way to set yourself up as. It will also help to have a professional help you with your bookkeeping.
One thing to make sure, do not get into a Lease Purchase agreement with a carrier. Many drivers have lose everything to many of these carrier lease agreements. The only company we have recommended for 10 years is Lone Mountain Truck Leasing. There are no hidden fees, tricks, or surprises. When you make the last payment, you own the truck. You can also purchase outright from them.
If you’re getting your own loads, we recommend either the Xypper App or MyRiteLoad as an addition to loadboards.

Marketing

The trucking business is no different than any other business. In order to be successful and enjoy living a comfortable lifestyle, you need to make money. As a sole proprietor, the burden of marketing yousrelf and your business lies squarely on your shoulders. The good news is that there are several ways to gain name recognition and acquire contracts for jobs. 
The first thing that will help is a website or blog that gives potential customers background information about you, your personal history, your goals, and the types of services you offer. After that, the best way to increase your business is a clean driving record ( which includes CSA scores) and your customer service.

It’s also important to set up a booth or a tent such as those provided by Ins’TenT Industries to attract people and promote your business. Many people promote their business at trade shows, such as GATS, which is right around the corner this August.
You should also have a presence on social media sites such as LinkedIn,Twitter, and Facebook, to get your name out there to a large audience.  Have business cards made with your website, name, and contact info,

Lifestyle

For many getting into their semi-truck and driving halfway across the states is a thrill. It gives them an opportunity to see the country and visit many different places they would otherwise not see. However, driving a big rig across the states consumes a lot of time and puts you behind the wheel long hours, and sometimes in extreme weather conditions in order to meet deadlines and make money to live well. Remember, most company drivers are paid by the mile and are exempt from the FLSA overtime. As a result, you might be away from home for weeks at a time if you choose an over-the-road career. If you have a family, this may not be something appealing to you. Another thing to consider is your health. Since time is money, many drivers of big rigs eat, shower and fuel up at designated truck stops. Unfortunately, the food provided is not always the healthiest. Thankfully, there are ways to promote a healthy diet by stopping at a local grocery store and stocking up on fresh fruits, vegetables and lean meats. Big rigs have cabins that contain a fridge and ample storage space to hold your supplies, even a portable grill.

Staying in Motion

The life of an long-haul truck driver is mostly sedentary, and this in itself can cause major health problems. A good solution is to work in exercise regularly to keep your heart healthy, your muscles lean and your weight under control. Use the storage space not only to meet your food needs but also for exercise equipment. Folding bikes and weight take up just a small amount of space, and can prove instrumental in your overall health and well being.

Quality Over-the-road truck drivers are in demand. The money can be good if you work for a “good” company or have a good business sense, however, you will drive long hours and spend a fair amount of time away from home. Deciding whether to become an owner/operator of a big-rig has both pros and cons. Weigh each of them carefully and then discuss it with your family, before making your final decision.

© 2019, Allen Smith. All rights reserved.

Technorati Tags: insTent, long haul trucking, Trucking

The post Decisions for Long Haul Truckers appeared first on Ask The Trucker.

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Cut Through Fog With Good LED Marker Lights

Marker lights on your truck keep you and others on the road safe. Semi-trucks are some of the largest occupants of the road and because of this, drivers need to be able to easily see where the edges of their vehicle are. Similarly, other motorists need to be able to see them.
LED marker lights are the superior choice for semi-truck illumination, especially in heavy weather such as fog.

The Challenge of Fog

In many cases, your truck’s powerful headlights are enough to help you see where your vehicle is and to maneuver accordingly. The difficulty fog poses is that it reflects the light back at you. This can make seeing anything challenging. Fortunately, the right LED marker lights can help solve this.

LED: The Trucker’s Answer to Fog

Good quality LED marker lights do an excellent job of cutting through the fog. You can easily see the light illuminate above you to check clearance and along the side, so you can always keep an eye on your truck’s position. Furthermore, they are easily seen by others on the road. That way you can be confident you aren’t going to surprise any other motorists in the fog.

These are some top choices for marker lights:

  • Millennium 1 Marker Lights: These high-quality LED lights are sealed and watertight. They look great and are easy-to-install.
  • Magnum 1 Marker Light With Double Bullet Plug: Give your truck a sleek look. These powerfully styled lights feature a double bullet plug.
  • Peterbilt Style LED Clearance Marker Light: These clearance lights offer a familiar style. They will cut through the fog and help you see what’s above you.

Illuminate Your Truck

The right marker lights for your truck make driving safer for you and others on the road. Fitting yourself out with Iowa 80 semi truck accessories including lights and other items will help you have a safe, comfortable and efficient trucking experience.

FMCSA Part 393 Section § 393.24: Requirements for head lamps, auxiliary driving lamps and front fog lamps. https://www.fmcsa.dot.gov/regulations/title49/section/393.24

Here’s the law, according to Federal Motor Carrier Safety Regulations (49 CFR Section 392.14):

There’s a duty of “extreme caution” on truck drivers of commercial motor vehicles whenever any conditions negatively affect visibility or traction.  This includes rain, snow, fog, ice, smoke and other conditions.



© 2019, Allen Smith. All rights reserved.

Technorati Tags: Fog light, iowa80, LED marker lights, truck safety

The post Cut Through Fog With Good LED Marker Lights appeared first on Ask The Trucker.

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Making Health a Priority as an Over the Road Trucker

Making Health a Priority as an Over the Road Trucker

The lifestyle of a long-haul truck driver isn’t the healthiest by a long shot.
Being responsible for hauling loads hundreds of miles away, truck drivers spend a great deal of time on the road. Sitting for hours at a time, eating from the closest rest stops, and sleeping most often in their trucks for weeks at a time comes with the territory and becomes part of the lifestyle. It doesn’t take long for habits like these to start wearing on their physical and mental well-being.

Admittingly so, it is challenging prioritize your health when you spend so much time alone, in a truck, away from any resources. To maintain a healthy lifestyle as an over-the-road trucker, you’ll need to come up with strategies such as those listed below:

Avoid Rest Stop Food

Rest stops are convenient destinations for truck drivers and other commuters to stop and take a break. Generally, you’ll find things like a gas station, restrooms, and restaurants. The only problem is, most of the food served at these stops is fast food. Consuming too much of unhealthy junk can lead to obesity, diabetes, high blood pressure, and other health issues.

Instead of hitting a rest stop to grab some food, look for a nearby grocery store. There you can stop in and get fresh fruits, vegetables, salads, sandwiches, and other healthy food options to consume. If you purchase a mini fridge and a crockpot you can make and store your own healthy meals.

Try Not to Smoke

Many truckers pick up smoking as a habit. Smoking may start off as something to relieve the stress of being on the road or to socialize with other truckers at stops, but it’s harmful to your health. Not to mention, smoking in your truck leaves a ton of residue around for you to breathe in.

If you can’t kick the habit for good, perhaps start out using a vape pen. Vape systems don’t contain any tobacco which makes it a bit better for you. It’s also odorless and a bit more socially friendly. They have tons of vape juice flavors on Zamplebox.com you can choose from for a more enjoyable experience.

Get in Some Exercise

Sitting for too many hours a day can have an enormous impact on your health. You could end up suffering from diabetes, obesity, heart disease, deep vein thrombosis, and increase your chances of developing dementia. Sitting all day also shortens your lifespan.

Though your job as an over-the-road trucker requires you to drive several miles without stopping, you should make use of the time you have free. You can throw on some running shoes and go for a jog, get out of the truck and do a few squats, jump rope, and other little exercises to get the blood flowing.

Stay Mentally Stimulated

The mind is a terrible thing to waste. Being on the road for hours by yourself is a surefire way to turn your brain to mush. Lack of socialization and being disconnected from your family and friends can result in mental health problems including chronic stress and depression.

It is important to stay mentally stimulated. Reach out to your family via phone or video chat just to check in. When you do have some downtime, read a book, watch something informational on television, keep up with trucking issues, play a game, do a puzzle, or read a blog. This keeps your mind sharp and your mood intact.

Truckers Prioritizing Health Goals

Long haul or over-the-road truckers have a very difficult job, however, transporting loads cross-country is the easy part. Being away from all you know and are familiar with, sitting for days, and not having access to healthy food is the real challenge. To avoid living a lifestyle that will result in a multitude of health problems and a shortened life span, start prioritizing your health by using the solutions described above.

© 2019, Allen Smith. All rights reserved.

Technorati Tags: exercise, over the road trucker, truck drivers, Trucker Health, Trucking, vaping

The post Making Health a Priority as an Over the Road Trucker appeared first on Ask The Trucker.

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Written 50 Years ago in Federal Register Vol 34 No 53- pp 23 & 24 “It is anticipated that the proposed Standard will be amended after technical studies have been completed, to extend the requirement for underride protection to the sides of large vehicles.”

The General Accounting Office (GAO) confirmed in their most recent report, claims what MANY have been saying for 50 years regarding truck underride fatalities.
“There are many and they are under reported.”

The March 26 Crash test Event in D.C. demonstrated how the fatalities can be prevented.

An underride crash occurs when a car slides under a large truck, such as a semi-trailer, during an accident. When these accidents happen, a car’s safety features are rendered useless because most of the car slides under the trailer and the truck crashes straight through the windows and into the passengers. The passengers in the car often suffer severe head and neck injuries, including decapitation. These accidents are often fatal, even at low speeds.

Studies and pilot programs show that a simple barrier attached to the lower area of a truck, called an “underride guard,” would help prevent a car from sliding underneath a truck in an accident. Under current federal law, underride guards are not required to be on the sides or front of trucks. Underride guards are already required for the back of a truck, but the standards are outdated. The bipartisan Stop Underrides Act would require underride guards on the sides and front of a truck and would update the outdated standards for underride guards on the back of trucks.

March 26th 2019 Crash Test Demonstration

The GAO report follows a crash-test demonstration in Washington D.C. 
On March 26, 2019, the crash test was hosted by Marianne and Jerry Karth and Lois Durso to demonstrate the efficacy of side underride guards. The tests used Chevy Malibus as the bullet car, striking the side of a tractor trailer at about 30 mph, with and without side underride guards. Industry representatives, and staff members from the Department of Transportation, the Senate commerce committee, and the House Transportation and Infrastructure committee watched as the side underride guards engaged the Malibu, crushing the front end, but leaving the windshield and roof intact

Side Underride Crash Test Video - YouTube

About the above Video
Side Underride Crash Test. Insurance Institute for Highway Safety (IIHS) ran two 35-mph crash tests impacting a 53 foot dry van trailer at a 90 degree angle: Video on bottom has  an AngelWing side underride protection device from Airflow Deflector Inc. a
Video on top shows crash test with a fiberglass side skirt intended to improve aerodynamics, not to prevent underride.

The GAO released results of a study to support the consideration of the STOP Underrides Act (S. 666 / H.R. 1511), which would, among other things, require the trucking industry increase its installation of these protective guards. The title of the GAO report, Truck Underride Guards- Improved Data Collection, Inspections, and Research Needed, summed up the report’s central conclusions.

The GAO report contains 46 pages of eye opening information, but what I found most stunning was the number of underride fatalities which were under reported at the scene of the accident. ~Allen Smith~

According to the March GAO report:
From 2008 through 2017,  an average of about 219 fatalities from underride crashes involving large trucks were reported annually, representing less than 1 percent of total traffic fatalities over that time frame.  However, these fatalities are likely underreported due to variability in  state and local data collection. For example, police officers responding to a crash do not use a standard definition of an underride crash and states’ crash report forms vary,  with some not including a field for collecting underride data.
Further, police officers receive limited information on how to identify and record underride crashes.  As a result, NHTSA may not have accurate data to support efforts to reduce traffic fatalities.

Comparatively, the FARS (Fatality  Analysis Reporting System) data show an annual average of about 34,700 total traffic fatalities and approximately 4,000 fatalities involving large trucks over the same period. Therefore, “reported” underride crash fatalities on average accounted for less than 1 percent of total traffic fatalities and 5.5 percent of all fatalities related to large truck crashes during this time frame.
If all underrides were counted accurately, these figures would no doubt be significantly higher.

GAO recommends that DOT take steps to provide a standardized definition of underride crashes and data fields, share information with police departments on identifying underride crashes, establish annual inspection requirements for rear guards, and conduct additional research on side underride guards. DOT concurred with GAO’s recommendations.

U.S. Senators Marco Rubio (R-FL) and Kirsten Gillibrand (D-NY) and U.S. Representatives Steve Cohen (D-TN) and Mark DeSaulnier (D-CA) reintroduced on March 5th 2019,bipartisan, bicameral legislation, the Stop Underrides Act, to help prevent deadly truck underride crashes.
Stop Underride Act Senate bill S.665 
Stop Underrides Act House bill H.R. 1511

The bill was first introduced in the Senate in December 2017
S.2219 – Stop Underrides Act of 2017

AsktheTrucker has written about Underrides in the past and will continue to encourage conversation between truckers, the industry, and proponents for Underrides.

Unknown facts about underride crashes and prevention

Underride Guard Mandate: A Counterargument to Industry Opposition

More about the March 26th live crash testing event

The Stop Underrides team of volunteers pulled together to create a memorable live crash testing event a few miles from the nation’s capital.  The multi disciplinary group of safety advocates and engineers illustrated how simple semitrailer guards can truly turn what would have been fatal collisions into minor accidents.

Safety engineers and professionals shared their knowledge and thoughts in a Panel Discussion on the underride issue at the D.C. Underride Crash Test Event on March 26, 2019:

March 26th D.C. Underride Crash Test Event Panel Discussion in D.C.

  • David Friedman, Consumer Reports, VP, Advocacy, formerly the CR Director of Cars and Product Policy and Analysis, former NHTSA Acting Administrator
  • Malcolm Deighton, engineer with Hydro, which supplies aluminum for manufacturing underride protective devices and trailer parts and which produces comprehensive underride protection technology in Europe
  • Glen Berry, Safety Director for Thomas Transport Delivery, AngelWing installed since 2017, truck driver
  • Perry Ponder, inventor of AngelWingengineer with an accident reconstruction engineering company
  • David Dorrity, worked for Stevens Transport for years and testifies all over the country on safe trucking practices.
  • Aaron Kiefer, forensic engineer & crash reconstructionist, inventor of SafetySkirt

Moderated by Andy Young, truck litigation attorney and CDL holder.

MGA Research provided crash test dummies and high speed video footage while Collision Safety Consulting (Aaron Kiefer’s company) conducted the tests themselves via custom vehicle tow systems.  Hydro NA (OEM supplier to trailer manufacturers) donated engineering personnel and expertise while AnnaLeah and Mary for Truck Safety ALMFTS and StopUnderrides.org conceived and anchored the event.  Andy Young MC’d while Glenn Berry donated round trip delivery of a trailer and a power unit for the testing.

The team put together three consecutive side collisions using Chevy Malibu sedans into 53 ft semitrailers.  The vehicles were towed into the “T-bone” collisions at or near 30 mph.  In order,  they crashed a trailer guarded with the Angelwing, a trailer protected by the SafetySkirt, and then an unguarded trailer.

The Angelwing is a steel lattice that fits between the landing gear and dual trailer axles.  It is designed by Perry Ponder, manufactured for Airflow Deflector, and currently available for purchase.   This guard has been tested during 40 mph collisions, and likely will prevent underride at even higher collision speeds.

AngelWing DC Crash Test - YouTube

The Safetyskirt is a laminated panel that combines a traditional trailer skirt with a woven textile backer that anchors at the landing gear and the rear corner of the trailer to prevent an underride.  The system is in development by Aaron Kiefer of TrailerGuards.com.  The system looks and feels like a full length skirt that encloses the rear axles for safety and aerodynamic benefit.  Testing indicates additional drag reduction (fuel savings) of 2-4% above and beyond current trailer skirts and no issue with negotiating across curbs, medians, or into loading docks.  Engineers are working on designing in sufficient access around the axles and wheels for pre trip inspections and tire changes while preserving fuel savings.  An owner operator will be conducting over the road testing this summer of a SafetySkirt equipped dry van trailer.

SafetySkirt DC Crash Test - YouTube

Well engineered guarding solutions are a win-win for drivers and for freight carriers.

 NO side underride protection: 

UNGUARDED Side Underride DC Crash Test - YouTube

All 3 crashes simultaneously

D.C. Underride Crash Test: Left Side Overall Vertical - YouTube

On Saturday April 27th we will be having an interview and open discussion concerning Underrides.  Guests on the show will be:

Jerry Karth and Marianne Karth and Lois Durso are advocates for Underrides and have lost loved ones due to Underride crashes.  Contrary to what many may speculate, these underride deaths were not the fault of either 4 wheeler.  One was an improper truck lane change, and the other was icy roads.  You can read their stories here.
Karth family and Lois Durso

Perry Ponder, inventor of AngelWingengineer with an accident reconstruction engineering company
Aaron Kiefer, forensic engineer & crash reconstructionist, inventor of SafetySkirt
Andy Young, CDL holder and truck litigation attorney

We will address with the panel some of trucking’s major concerns and will be taking calls.

  1.  Cost
  2. weight
  3. maximize cargo space
  4. damage to skirting
  5. energy absorbent materials
  6. Incline grades- Traveling up and then down grades
  7. Ability to access under trailer
  8. maintenance and installation costs

More Info

  1. Media Reports & Video Footage Unveil Highlights of the Successful D.C. Underride Crash Test Event If you were not able to witness the Underride Crash Tests in D.C. in person on March 26, then the next best thing is to see the media coverage of this important event and to view the video footage of all three tests of a car colliding at approximately 30 mph with the side of a tractor-trailer. . .Read more here.
  2. Video of the Underride Panel Discussion at the D.C. Underride Crash Test Event, March 26, 2019 Safety engineers and professionals share their knowledge and thoughts in a Panel Discussion on the underride issue at theC. Underride Crash Test Eventon March 26, 2019. . . Read more here.

Media Coverage of the march 26th D.C. Underride Crash Test Event:

Truck Underride Guards Abbreviations

CVSA Commercial Vehicle Safety Alliance
DOT Department of Transportation
FARS Fatality  Analysis Reporting System
FMCSA Federal Motor Carrier Safety Administration
IIHS Insurance Institute for Highway Safety
MMUCC Model Minimum Uniform Crash Criteria
NHTSA National Highway Traffic Safety Administration
NTSB National Transportation Safety Board
NPRM notice of proposed rulemaking
ANPRM advance notice of proposed rulemaking

© 2019, Allen Smith. All rights reserved.

Technorati Tags: Aaron Kiefer, AngelWing, GAO report, Lois Durso, Marianne Karth, Perry Ponder, SafetySkirt, Stop Underrides Act, StopUnderrides.org, Trailer Guards, truck fatalities, underride crash test event, underride crashes

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The Federal Motor Carrier Safety Administration (FMCSA) is an agency in the United States Department of Transportation that regulates the U.S. trucking industry and is  the lead government agency responsible for regulating and providing safety oversight of commercial motor vehicles (CMVs).

FMCSA’s mission is to reduce crashes, injuries, and fatalities involving large trucks and buses.

United States Department of Transportation

Now I don’t know about you, but I believe we must be able to have confidence in those who are in charge of developing and enforcing laws, especially when it comes to my life and the lives of others who depend on these laws for their safety and livelihood.

I also believe that a government agency should maintain their purpose and integrity at all cost.  Decisions should be based on safety without favor or bias.

Again, FMCSA is to to reduce crashes, injuries, and fatalities involving large trucks and buses.

  • When the DOT was established on October 15, 1966, the ICC’s regulatory authority over truck and bus safety was transferred to DOT, delegated to FHWA and designated the Office of Motor Carrier Safety.
  • In 2000, Congress established FMCSA as a stand-alone DOT agency pursuant to the Motor Carrier Safety Improvement Act of 1999.

 It is imperative that when you are an agency of the Federal Government you should remain consistent and not be biased towards any one group or entity, but rather remain loyal to your purpose of safety.

The FMCSA stakeholders include Federal, State, and local enforcement agencies, the motor carrier industry, safety groups, and organized labor on efforts to reduce bus and truck-related crashes.

The ATA does not represent Professional Truck Drivers

Many truckers believe that there are rules and regulations that have heavily leaned in favor of the appeals of the American Trucking Association (ATA).  One such example is that of the electronic logging device (ELD)   which is a bone of contention for many truckers.
Another example is FMCSA granting exemption request to C.R. England so that a learner’s permit holder who has documentation of passing the CDL skills test does not need to have a CDL driver in the front seat. New Prime and CRST also were granted exemption.

The ATA will give the impression that they represent the entire trucking industry. They do not.  The ATA does not represent the views of most professional truck drivers.

The Big Flip Flop-  ATA Meal and Rest Break Preemption Petition

Recently there has been a huge controversy regarding the ATA Petitions for Determination of Preemption: California Meal and Rest Break Rules. submitted to FMCSA  in October of 2018 and then granted after only 3 months on Dec 21, 2018.

In spite of losing in Courts and Congress FMCSA grants ATA petition

The reason for the  Meal and Rest Break Petition controversy

Since 2015, the American Trucking Associations, and the Western States Trucking Association, along with the 50 ATA-affiliated state trucking associations, the National Private Truck Council, the Truckload Carriers Association and the Truck Renting and Leasing Association , have been lobbying Lawmakers to include the Denham Amendment in major pieces of Legislation in order to Preempt States Right. They failed.

1. The ATA Petition was submitted to the FMCSA after four years of losing in courts and Congress as they tried to Preempt State Labors which allow truckers 30 minute meal breaks and 10 min paid meal breaks. These states also require carriers to pay drivers for all non driving tasks, including detention time.

So, after motor carriers lost in the courts, the battle to preempt state rights went to Congress, as the well known Denham Amendment, designed to deny truckers meal & rest breaks and pay for all working time, was struck down  5 times.
Denham Amendment defeated in FAA bill BUT it’s not over- ATA sends petition to FMCSA

ATA seeks FMCSA approval to Preempt state laws which protect trucker wages

The First Flip Flop
Although the MRB petition was granted, The FMCSA  had denied this same petition 10 years ago, however, a decade later and different appointments within the agency, they had a change of heart” towards the ATA.
Although the petition was granted, there was no mention that drivers pending court cases would be affected by their decision to grant the petition.  Thus the decision was not retroactive.

2008 Rejection of the ATA Petition:
ACTION: Notice of rejection of petition for preemption.

2018 FMCSA Granting of ATA Petition
FMCSA Order; grant of petition for determination of preemption.

3  Then, the FMCSA sent out an array of confusing statements. On Jan 7th 2019 FMCSA confirming that their determination of the Meal and Rest Break Petition does not have retroactive effect on driver pending court cases.
On January 18, 2019, the FMCSA attorney states that FMCSA is giving the retroactivity issue further consideration

But then, on March 22, 2019, FMCSA decides that yes, all pending court decisions would be retroactive, even if those lawsuits by drivers were acted upon prior to the December 21st granting of the ATA petition.
THIS was another flip flop, as initially the FMCSA decision DID NOT include pending court cases by drivers to be affected. So what changed their mind?

You can read the comedy of errors yourself here
California Meal & Rest Update: March 2019

Final FMCSA Decision of March 22, 2019
FMCSA Legal Opinion on Applicability of Preemption Determinations to Pending Lawsuits

FMCSA Conclusion

“For all of the reasons discussed herein, FMCSA’s legal opinion is that an FMCSA preemption decision under Section 31141 precludes courts from granting relief pursuant to the preempted State law or regulation at any time following issuance of the decision, regardless of whether the conduct underlying the lawsuit occurred before or after the decision was issued, and regardless of whether the lawsuit was filed before or after the decision was issued.”

March 22, 2019
Charles J. Fromm
Deputy Chief Counsel

1 This opinion is issued by the Deputy Chief Counsel because the Chief Counsel is recused from the particular preemption determination that gave rise to the question addressed herein.

Conflict of Interest

Jim Mullen- Chief Counsel-FMCSA

This conclusion by the FMCSA was supposed to have been determined by the Chief Counsel Jim Mullen, however, he recused himself from the determining opinion.  Could it be because he worked for Werner Enterprise for so many years, or maybe because he helps Motor Carriers in his own business? We don’t know, however, we do know that the opinion was then written by Charles J. Fromm, Deputy Chief Counsel at Federal Motor Carrier Safety Administration.
But who is Charles J Fromm? No work history, images, or profile on FMCSA website.

The biggest controversy of all includes not only flip flop decisions of the ATA Meal and Rest Break Petitions of 2008 and 2018, and then the later  flip flop of deciding if court cases were to be retroactive or not, but a question of Conflict of Interest.

The Chief Counsel of FMCSA, Jim Mullen, an appointed position, held positions at Werner Enterprises at various levels for 10 years; Executive Vice President and General Counsel and Vice President and General Counsel of Litigation.
According to his LinkedIn profile, Mr Mullen also continues to operate his Consulting firm as he remains as Chief Counsel of FMCSA.

His Consulting firm, Jim Mullen Consulting, where he resides as president.
Provide professional services and advice to large motor carriers and transportation trade associations in the areas of federal regulatory and legislative government relations advocacy, legal matters, and risk and claims management. With over a decade of experience as the General Counsel and Executive Vice President of 1 of the nation’s largest motor carriers, Mullen offers a wide range of expertise in transportation related areas of advocacy in Washington DC, legal and compliance matters, and risk and claims management.

The fact that Mr. Mullen recused himself and had Charles J. Fromm sign the Meal and Rest Break Opinion, give little to no satisfaction, since we don’t even know who Mr. Charles J. Fromm is, where he comes from, or who he worked for prior to being Deputy Chief Counsel at FMCSA.

Charles J. Fromm- Deputy Chief Counsel- FMCSA

So the question I’d like to ask is, just how many ATA members or prior MEGA carrier employees work at the FMCSA? What influence do they have on decision making? But the most concerning question of all is, how can an agency representing the entire trucking industry determine rules and regulations affecting drivers, if those making the decisions could be biased toward the motor carriers, the employers of those drivers?

Just note, drivers Meal and Rest Break cases are still being heard in the courts and the courts will decide if the FMCSA opinions hold water or not.
But I’m sure they will take into consideration the following.

First the FMCSA rejects the ATA petition in 2008. Then they grant it 2018. FMCSA lawyer then  writes that the new MRB rules are not retroactive in response to an inquiry. Then they say they are reconsidering if they’ll be retroactive. Then the Chief Counsel recuses himself. Then the Deputy Chief Counsel says it is retroactive.

I don’t think courts should defer to incoherent agency opinions written by interested parties. It’s called separation of powers for a reason. 

© 2019, Allen Smith. All rights reserved.

Technorati Tags: ata, ATA Meal and Rest Break Petition, Denham Amendment, FMCSA, Meal and Rest break, trucker safety, trucking industry

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Safety Tips for Driving Alongside Tractor-Trailers

As a big rig driver, it’s common to get asked to reveal some of the craziest stories of other drivers on the road. Unfortunately, all too often there are many safety concerns when it comes to sharing the road with semi tractor trailer trucks that can make these stories more concerning than entertaining. For this reason, we’re working with everyday drivers to share some great safety tips that can be used when driving alongside bigger vehicles to ensure the safety of both vehicles.

Blind Spots

Dangerous driving around trucks starts with a vehicle being in the trucker’s blind spot. While there are several semi vs. car collision scenarios where a truck accident attorney can place the blame squarely on trucker negligence, many incidents begin with a motorist getting into the trucker’s blind spot. We’re sure you’ve experienced a moment where you thought it was a good idea to change lanes only to hear a horn honking and suddenly realize there’s a car coming up in your blind spot. In a larger vehicle, the blind spot can be even bigger. For this reason, it takes effort on both driver’s parts to ensure the blind spot is avoided. This means car drivers taking the blind spot into consideration and truck drivers taking a few extra moments to double check for cars before switching lanes.

Passing a Big Rig

Passing big rigs may be a necessity from time to time depending on the flow of traffic. To ensure safe travels, it’s a good idea to first signal the turn. Give it a few moments and then start to pass. Be sure to maintain a consistent speed when passing a semi-truck. You never want to linger in the side lane next to the big rig as this is a potential blind spot for the big rig driver. It’s also a good idea to identify if the big rig driver is visible in their side mirror. If you can see them, it’s likely they can look back to see you.

Give Big Trucks Enough Time to Stop

If you’ve ever driven a bigger vehicle, you know that they don’t stop on a dime. In fact, loaded semis take about 20-40 percent longer to stop than the average automobile. This means they’re going to need a bigger cushion of space between the car in front of them than an average driver would need. For this reason, it’s always a good idea to stay a safe distance away from the front of the big rig. This includes when passing the rig, make sure you’re giving it a good bit of cushion. You never want to cut it really close as the big rig may not stop in time if they’re going faster than you anticipated.

Anticipate Wide Turns

It’s no surprise that bigger vehicles make wide turns. Anticipating the amount of space a big rig driver is going to need to turn can help you to position your vehicle at a safe distance. It’s common for truck drivers to utilize both the middle lane and the turning lane when in confined areas. It’s never a good idea to try and sneak into the turning lane as you may be putting yourself in the blind spot for the big rig. Instead, simply let the rig use both the lanes and take the wide turn to ensure the safety of both vehicles on the roadway and the property at the intersection.

Be Educated and Know How to Drive around Big Rigs

Being safe on the roadway starts with understanding more about big rigs and how they operate. Knowing what to expect on the roadway when driving near a big rig can help both drivers to better navigate around one another. Be sure to understand the above safety tips and start implementing them in your daily driving.

© 2019, Allen Smith. All rights reserved.

Technorati Tags: big rigs, driving around big rigs, safety tips, semi trucks, tractor trailer, truck drivers, trucking safety

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After years of losing in courts and losing in Congress, on September 24th, the ATA made a last attempt to petition the FMCSA to preempt the California labor laws applying federal Hours of Service regulations. On December 21st, the FMCSA announced that it was granting the ATA petition overriding the Courts and Congress.

In spite of ATA losing in Courts and Congress- FMCSA grants ATA petition against truckers being provided Meal and Rest Breaks

Read more:
ATA seeks FMCSA approval to Preempt state laws which protect trucker wages

ATA Petition to FMCSA
Petitions for Determination of Preemption: California Meal and Rest Break Rules

FMCSA requests comments on a petition submitted by the American Trucking Associations, Inc. (ATA) requesting a determination that the State of California’s meal and rest break rules are preempted by Federal law. Among other things, FMCSA requests comments on what effect, if any, California’s meal and rest break requirements may have on interstate commerce.
A Guide Facts to Make Comments to ATA Meal and Rest Break Preemption
Then, less than 3 months later, on December 21st, the FMCSA announced that it was granting the ATA petition. In their ruling, the FMCSA stated that CA MRB Rules “are incompatible with the Federal hours of service regulations” and that they “cause an unreasonable burden on interstate commerce.”

FMCSA asserted that carriers do not have to provide drivers with the meal and rest breaks dictated by California’s labor code. The California laws conflict with federal hours-of-service regulations, the agency says, and therefore are superseded by federal law. The agency said that, despite being more stringent, California’s break laws do not provide greater safety benefits than federal hours regulations.

Lawsuits soon filed by Teamsters and California Attorney General Xavier Becerra and the California Labor Commissioner’s Office

The International Brotherhood of Teamsters has since asked a federal appeals court to reverse a ruling exempting truckers from California’s mandatory meal and rest break rule.

The Teamsters asked the U.S. 9th Circuit Court of Appeals in San Francisco on Dec. 27 to throw out the ruling or provide “relief as the Court deems proper.” The 9th Circuit said in 2014 the California-required break applied to truckers.

“FMCSA’s suggestion that rest break rules negatively impact highway safety is ludicrous,” the Teamsters said in a statement. “FMCSA’s suggestion that California’s meal and rest break rules negatively impact highway safety is ludicrous. The idea that providing a 10-minute rest break after four hours and a 30-minute meal break after five hours somehow makes the roads less safe is beyond comprehension. This is simply a giveaway to the trucking industry at the expense of driver safety.”

DOT Succumbs To Big Business, Grants Petition Undermining Drivers

California Attorney General Xavier Becerra and the California Labor Commissioner’s Office announced  the filing of a petition with the U.S. Court of Appeals for the Ninth Circuit, challenging the Federal Motor Carrier Safety Administration’s (FMCSA) decision to strike down the state’s more strict meal and rest break rules for truck drivers.

“It is well within a state’s rights to establish standards for the welfare of our workers. Truck drivers, like every other person protected under California’s labor laws across hundreds of different industries, deserve adequate meal and rest breaks.” – California Attorney General Xavier Becerra

California, Teamsters Sue FMCSA To Reinstate Meal And Rest Break Rules For Truckers

A.G. Becerra contends the FMCSA does not have the authority to preempt state standards and is limited to review of laws and regulations on commercial motor vehicle safety. Further, Becerra intends to make the case that the provisions targeted by the ATA and the FMCSA are broadly applicable workplace regulations that are not laws and regulations on commercial motor vehicle safety within the meaning of federal law.

So why is the granting of this petition so ludicrous?

For starters, the ATA petitioned the FMCSA 10 years prior to this and it was rejected by the same government agency which decided now to grant it.

2008 Rejection of the ATA Petition:

ACTION: Notice of rejection of petition for preemption.

FMCSA announces the rejection of a petition for preemption of California laws and regulations requiring employers to provide employees with meal and rest breaks. The petition does not satisfy the threshold requirement for preemption under 49 U.S.C. 31141(c) because the provisions at issue are not “laws and regulations on commercial motor vehicle safety,” but rather laws and regulations applied generally to California employers.

2018 FMCSA Granting of ATA Petition

FMCSA Order; grant of petition for determination of preemption.

The FMCSA grants petitions submitted by the American Trucking Associations and the Specialized Carriers and Rigging Association requesting a determination that the State of California’s Meal and Rest Break rules (MRB Rules) are preempted under 49 U.S.C. 31141 as applied to property-carrying commercial motor vehicle (CMV) drivers covered by the FMCSA’s hours of service regulations. Federal law provides for preemption of State laws on CMV safety that are additional to or more stringent than Federal regulations if they have no safety benefit; are incompatible with Federal regulations; or would cause an unreasonable burden on interstate commerce. The FMCSA has determined that the MRB Rules are laws on CMV safety, that they are more stringent than the Agency’s hours of service regulations, that they have no safety benefits that extend beyond those already provided by the Federal Motor Carrier Safety Regulations, that they are incompatible with the Federal hours of service regulations, and that they cause an unreasonable burden on interstate commerce. The California MRB Rules, therefore, are preempted under 49 U.S.C. 31141(c).

The Courts haven’t ruled yet on whether the FMCSA’s letter will have the force of law. Cases have been won claiming a  motion to dismiss where carriers  tried to argue that the case was now moot because of the FMCSA issue. The court disagreed.  

The 9th circuit court of appeals will be deciding whether the FMCSA has the right to issue a contradictory ruling to its 2008 ruling or not at all.  Other courts will address related issues such as whether it is retroactive.

Note that the US Supreme Court has been questioning whether courts should defer to agency opinions: Many judges don’t like the idea of courts deferring to agencies in terms of determining law.

HISTORY OF ATA Fight against Meal and Rest Break (MLB)

The Courts

For over 100 years California has had a law on the books saying workers who work in the state are entitled to 30 minute unpaid meal breaks on or before the 5th and 10th hour of their shifts and 10 minute paid rest breaks for every 4 hours of their shift or major fraction thereof. California also requires employers to pay drivers for all non driving work time, such as detention time.

Motor Carriers had claimed and fought in court that State Labor Laws which protect employees from abuse and being exploited, were not consistent with the 1994 Federal Aviation Administration Authorization Act,   Their argument was that by having to pay drivers for detention time, providing them an optional 30 min meal breaks, and providing them with paid 10 min rest breaks, that these state labor laws violated the 1994 Federal Aviation Administration Authorization Act since the Federal Aviation Administration Authorization Act forbid states from enacting laws that” interfere with prices, routes or service of motor carriers. ”
The ATA claimed that State Labor Laws, which protect ALL workers from wage and safety abuse, have interfered with the movement of the country’s freight, specifically, prices, routes and services.

The trucking industry also argued in the courts that its employees are subject only to federal law, not to local or state laws.  The industry repeatedly lost this argument in courts.

Dilts v Penske and Campbell v Vitran were cases in which the 9th District Court found that;

The Court thus held that California meal and rest break laws are not preempted because they are “NOT the sorts of laws ‘related to’ prices, routes, or services that Congress intended to preempt.”. Instead, they are “normal background rules for almost all employers doing business in the state of California.”. 

The ATA and its members had been struck down in courts when they tried to apply the 1994 F4A as part of their argument.  This included the 9th district court, the CA Supreme Court, and finally the U.S. Supreme Court, who refused to hear the argument.

The ATA Lost in Court. Lost in Congress 5 times to pass Denham Amendment but FMCSA preempts state labor laws granting ATA petition against truckers

Failed in Courts so off to Congress to try to change change law

After multiple failed attempts in the courts, the ATA then lobbied Congress to include a provision into major bills which would override state labor laws. The provision created was the Denham Amendment, introduced by Jeff Denham (R-Ca)

Read more
How to Ensure Fair Trucker Wages in the 2015 Transportation Bill

ATTENTION Truckers: Tell Congress to Remove Section 134 of the House T-HUD Appropriations bill in the final spending package

Anti-Trucker wage language in 2 bills to ensure cheap labor and high profits

ATA’s Myths and Facts about Denham Amendment Busted

The Denham Amendment was introduced in order to preempt state labor laws (based on an alternate interpretation of theF4A) Again, these state labor laws provide ( optional) 30 minute meal breaks and paid 10 minute rest breaks as well as requiring employers to pay employees for all time worked, not just their piece work wages.  For professional drivers this included all non driving tasks such as detention time. In other words, the Denham Amendment, if it had passed, stated that carriers are only obligated to have to pay drivers for their miles driven, nothing more.

So, for the last few years the ATA has been lobbying Congress to include the Denham Amendment, in Transportation bills.  The amendment was first introduced in the 2015 FAST ACT and failed.
ATA continued to reintroduce Denham to 5 other pieces of legislation and failed, including the latest FAA reauthorization bill.

Denham Amendment claims that the true intent of Congress in 1994 FAAAA was  to preempt state laws such as California and other states who have similar labor laws protecting employees.

The Denham Amendment  would have altered the interpretation of the 1994 Federal Aviation Administration Authorization Act,  a federal transportation act governing movement of the country’s freight.

“Subject to paragraph (2) of this subsection, no State or political subdivision thereof and no intrastate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker…”

Denham is written in such a way, that if passed, it would have resulted in revised Federal law which would relieve carriers from the obligation of having to pay drivers for anything other than their piece work wages or the miles they drive.

Congress and Courts did not agree with this, so the next step was to go back  to the FMCSA….AGAIN….10 years later.
Denham Amendment defeated in FAA bill BUT it’s not over- ATA sends petition to FMCSA

This time the ATA won their battle against truckers and wages. And they did it in

the name of…. here it comes… Safety.

FMCSA concludes that: (1) The MRB Rules are State laws or regulations “on commercial motor vehicle safety,” to the extent they apply to drivers of property-carrying CMVs subject to the FMCSA’s HOS rules; (2) the MRB Rules are additional to or more stringent than the FMCSA’s HOS rules; (3) the MRB Rules have no safety benefit; (4) the MRB Rules are incompatible with the FMCSA’s HOS rules; and (5) enforcement of the MRB Rules would cause an unreasonable burden on interstate commerce. Accordingly, the FMCSA grants the petitions for preemption of the ATA and the SCRA, and determines that the MRB Rules are preempted pursuant to 49 U.S.C. 31141. California may no longer enforce the MRB Rules with respect to drivers of property-carrying CMVs subject to FMCSA’s HOS rules.

So what happens to the lawsuits pending in courts from all drivers who have not had a ruling yet?  These are the lawsuits from drivers who have not been paid according to California labor laws for their rest breaks and for non-driving work such as detention time?

The big question is, how can a government agency overrule both the highest courts and Congress on a decision, which even they themselves Rejected 10 years ago?

© 2019, Allen Smith. All rights reserved.

Technorati Tags: ATA Meal and Rest Break Petition, California Labor Commissioner, Denham Amendment, Federal Preemption of States Rights, FMCSA, meal and rest breaks, Petition from American Trucking Associations sent to FMCSA Administrator Ray Martinez, teamsters

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Recently there has been a series of court decisions which have shaken the trucking world and have caused carriers to be accountable for their unethical behavior of trucker wage theft.  Court decisions and cases are turning the tide on carriers, telling them a truckers’ time is valuable and compensable.

Department of Labor- U.S. Wage and Hour Division Regulations Part 785: Title 29, Part 785 of the Code of Federal Regulations

By applying the Fair Labor Standards Act with the US Department of Labor,   Title 29, Part 785 of the Code of Federal Regulations, the courts are ruling in favor of drivers in regards to wages and compensable time.

Governed by the Clock- Paid by the Clock

First we’ll discuss the recent Supreme Court ruling on New Prime Inc vs Dominic Oliveira  decided on January 15th 2019. “Supreme Court Decides Transportation Independent Contractors Exempt from forced arbitration” under Federal Arbitration Act 

Department of Labor- Wage and Hour Division Handy Reference Guide to the Fair Labor Standards Act

What started out as a misclassification case in a district court by a truck lease Independent Contractor, Dominic Oliveira, ended up in the Supreme Court with a huge win.  Wages were at the heart of his original lawsuit as trucker Dominic Oliveira alleged that New Prime Inc. violated the Fair Labor Standards Act (FLSA) and the state’s minimum wage statute. New Prime Inc claimed that since Dominic was an Independent Contractor, therefore he must go to arbitration and not through the courts.

The decision made by SCOTUS was not a direct ruling on his original misclassification, but rather a ruling exempting ALL transportation workers from being forced into arbitration.

Even though Dominic was classified as an Independent Contractor, he many times earned less than minimum wage.  However, because he was classified as an Independent Contractor, and had signed an arbitration agreement, New Prime claimed that he couldn’t sue them in court because of the Federal Arbitration Act.
The Supreme Court decision ruled that Dominic and ALL Transportation employees are Exempt from the Federal Arbitration Act and can indeed go through the courts. Because of the SCOTUS decision, Independent Contractors are no longer bound by the “secretive arbitration” which carriers have been getting away with for years. Dominic’s misclassification and wage suit will now be able to go back to court for for a misclassification and wage ruling.

Accepted Behavior and Background

Paid by the mile-Regulated by a clock-Enforced by an ELD

Paid by the mile and regulated by a clock!  A most frustrating situation drivers face is the fact that they only paid for the miles they drive ( piece work wages) and yet restricted through Federal Regulations on how many hours they may legally drive and work to earn their wages.
Not only are drivers hours restricted, which by the way wouldn’t be quite so bad if their wages hadn’t been stymied for 30 years, but their ability to earn their pay remains under the control of employers, shippers, receivers, and FMCSA.

For decades now, drivers have been told, and have ACCEPTED, that their time is not valued, only the miles they produce are. This twisted norm has created an industry of abuse and exploiting beyond compare to any other industry.

EMPLOYERS
This accepted practice of payment for “what you produce”, no matter how many hours it takes, has created an atmosphere of subservience, obedience, submissiveness and desperate attempts to get as many hours as they can in order to drive more miles to earn more  money.  As long as drivers are paid for mileage only, the employer is in control.

The more unpaid hours you work, the less valued you are

No Detention Time– Carriers will allow shippers and receivers to keep drivers waiting at docks for hours on end, eating up their clock, most often without wage compensation.  By the way, many time the Shippers & receivers pay the carriers detention time, but the driver does not share in this imbursement

Starved Out–  How many drivers have heard of the term “starved out”? This is a practice that keeps a driver waiting for days to receive a load, without being compensated for their time.  For those who are not in trucking, this term is designated to those employers who wish to end the employment of a driver, and rather than risk a possible retaliatory lawsuit, the carrier keeps them waiting for days for a load, eventually leading to paychecks of $100 or less. ( No miles produced while waiting=No $$$) After a few weeks of this, and the driver quits. They have been “starved out”

SHIPPERS and RECEIVERS

Another accepted practice within trucking, is waiting to be loaded or unloaded. Hours and hours wasted at the docks without pay, and yes, that Federal 14 hour clock and 60 hour 7 day clock is ticking. And if the driver runs out of hours while there, it’s too bad for many. You can’t take your 10 hour break there, you certainly can’t park. So it’s off trying to find parking while you’re either out of hours or about to be.  And the ELD will let you know! No more paper logs to “fix” the Broken System which the trucking industry and the FMCSA has created.

But the GOOD NEWS IS Courts are applying laws

The courts are now realizing that there are LAWS in place to stop the abusive behavior. Court Cases are now ensuring truck drivers are to paid for time spent on the road.

US District Court in the Western District of Arkansas

In a Class Action lawsuit in Federal court against PAM Transport, an Arkansas based company, the court ruled against PAM Transport, for alleged violations of the Fair Labor Standards Act, a federal law that requires employers to pay truck drivers at least minimum wage.

District Judge Timothy Brooks reaffirmed that PAM Transport violated federal labor laws when they didn’t pay their truck-driver employees at least minimum wage for every non-sleeping hour spent in their truck.
The district court judge in Arkansas reaffirmed that truck drivers need to be paid for every hour they spend in their trucks while they’re not sleeping

In October 2018, Brooks ruling made a commotion within trucking when he ruled that PAM Transport would have to pay their truckers at least minimum wage for 16 hours each day that they work. There are 3,000 truck drivers in the  class-action suit against PAM.  

The Court decided that the time a driver spends waiting in his truck in the sleeper birth still constitutes work — even though the driver may log that time as “off-duty.”

Timothy Brooks wrote in his Oct. 19 memorandum on the PAM case:

There is no ambiguity here, then, as to whether an employer must count as hours worked the time that an employee spends riding in a commercial truck while neither sleeping nor eating: time thus spent “is working” and “any work” performed “while traveling must… be counted as hours worked.”

In December 2018, a group of approximately 10,000 truck drivers referred to Brooks’ ruling as they alleged that their employer, Swift Transport,violated labor laws by not paying them for some training and orientation sessions.

The question is, why was the trucking industry so disillusioned over the PAM ruling?
Because many courts in the past have not applied laws that have been on the books for years. These laws were written to protect drivers from the very abuse and wage theft behavior that has existed.  Drivers have been conditioned to accept:
1) You’re only worth what you can produce
2) You’re time is not valuable
3) waiting without pay is part of your job

According to the Laws, the Courts believe drivers time is valuable

According to the US Department of Labor, “Any work which an employee is required to perform while traveling must, of course, be counted as hours worked.”   Title 29, Part 785 of the Code of Federal Regulations U.S. Department of Labor- Wage and Hour Division

§ 785.7 Judicial construction.

The United States Supreme Court originally stated that employees subject to the act must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” ( Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944))
Subsequently, the Court ruled that there need be no exertion at all and that all hours are hours worked which the employee is required to give his employer, that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.

Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer.” ( Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944)) The workweek ordinarily includes “all the time during which an employee is necessarily required to be on the employer’s premises, on dutyor at a prescribed work place”. ( Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946))
The Portal-to-Portal Act did not change the rule except to provide an exception for preliminary and postliminary activities. See §785.34.

[26 FR 190, Jan. 11, 1961, as amended at 76 FR 18859, Apr. 5, 2011]

 

  • 785.41 Work performed while traveling.

Any work which an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.

  • 785.22 Duty of 24 hours or more. ( 16 hours paid)

(a) General. Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep.
If sleeping period is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked.

( Armour v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944); General Electric Co. v. Porter, 208 F. 2d 805 (C.A. 9, 1953), cert. denied, 347 U.S. 951, 975 (1954); Bowers v. Remington Rand, 64 F. Supp. 620 (S.D. Ill, 1946), aff’d 159 F. 2d 114 (C.A. 7, 1946) cert. denied 330 U.S. 843 (1947);

Bell v. Porter, 159 F. 2d 117 (C.A. 7, 1946) cert. denied 330 U.S. 813 (1947);
Bridgeman v. Ford, Bacon & Davis, 161 F. 2d 962 (C.A. 8, 1947); Rokey v. Day & Zimmerman, 157 F. 2d 736 (C.A. 8, 1946); McLaughlin v. Todd & Brown, Inc., 7 W.H.

Cases 1014; 15 Labor Cases para. 64,606 (N.D. Ind. 1948); Campbell v. Jones & Laughlin, 70 F. Supp. 996 (W.D. Pa. 1947).)

(b) Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, the entire period must be counted. For enforcement purposes, the Divisons have adopted the rule that if the employee cannot get at least 5 hours’ sleep during the scheduled period the entire time is working time. (See Eustice v. Federal Cartridge Corp., 66 F. Supp. 55 (D. Minn. 1946).)

Another case was Nashville, Tenn., trucking company Western Express who agreed to pay thousands of drivers a total of nearly $4 million in a settlement for a class action lawsuit. The lawsuit accuses the company of intentionally failing to compensate drivers for hours worked.

On Jan. 13, 2014, drivers for Western Express filed the lawsuit, claiming the company violated the Fair Labor Standards Act. More specifically, the lawsuit claims drivers were not paid the federal minimum wage as a result of Western Express

On Jan. 11, Western Express reached an agreement with the drivers for $3.825 million, five years after the lawsuit was filed.

Once again, The FLSA and Title 29 Section 785 was cited.
According to the lawsuit, the maximum amount of time an employer may dock an employee who is on assignment for more than 24 hours for sleeping and meal periods is eight hours per day. The remaining 16 hours per day is work time and must be paid. Due to various duties that rendered drivers continually on assignment, plaintiffs argued they should have been paid 16 hours a day, or $116 per day at the federal minimum wage.

The bottom line is that some carriers have been getting away with not paying drivers at least minimum wage for their time spent.
If a driver is not earning at least $116 per day then their employer is in violation of the Fair Labor Standards Act.  Although most drivers earn more than this, there are many drivers, especially new drivers, who do not. There are drivers paid less than 20cpm, running a full 60 hour work week, not earning minimum wage.  Is there wonder why there is over a 100% turnover among new drivers?
Also, there are those who are kept waiting for loads for days.  Truckers should be paid for this time. The courts suggest that drivers are entitled to minimum wage for 16 hours per workday — every hour spent in the truck save for eight hours of sleep time.

The Supreme Court has argued that employees should be paid even though they are not actively carrying out a work task. Just as  District Court Judge Timothy Brooks wrote in his Oct. 19 memorandum on the PAM case:

© 2019, Allen Smith. All rights reserved.

Technorati Tags: Deprtment of Labor, fair labor standards act, FMCSA, Judge Timothy Brooks, New Prime Inc, Pam Transport, Supreme Court, Title 29 Part 785, trucker wages, Western Express

The post Court decisions are turning the tide in favor of Truckers Wages appeared first on Ask The Trucker.

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