Ask The Trucker

Raising the Standards of the Trucking Industry


ATA’s Myths and Facts about Denham Amendment Busted

Apr
26,
2018
5

There is a PDF from the ATA going around the internet and being mailed/emailed out to those within the trucking industry.

The PDF and emails sent, are what the ATA considers “Myths and Facts” regarding the Denham Amendment in H.R.4 the FAA Re-authorization bill being voted on  4-26-18 in the House.

 

 

 

 

 

The ATA GOAL is to discredit their opposition such as AskTheTruckerOOIDA, and the many other truck driver advocates who are strongly urging Law Makers to Vote NO on the Denham Amendment. Learn more
Federal Preemption update against Trucker Wages -The fight to be paid for all time

 

Say NO to Denham Amendment in HR 4 – Faa Re-authorization bill
Call 202-224-3121

Upon reading the ATA’s Facts and Myths, we reached out to experts in the field of Employment Law, specifically in the area of the effects of how the Denham Amendment would affect trucker wages.  They advised us of the real facts as a rebuttal in response to the ATA’s Myths and Facts which you will see below.

Below is the ATA  claims of Myth vs. Fact.  Under each “Myth- Fact” is the  rebuttal in RED Print

Myth: The Denham/Cuellar/Costa Amendment would overturn the ability of states to govern the working conditions of their truck drivers.

ATA Fact: Nothing in the amendment impedes a states’ ability to govern the working conditions of truck drivers engaged solely in intrastate commerce. The amendment specifically ties preemption of state break requirements to USDOT’s jurisdiction under 49 U.S.C. 31502, which applies when the driver works in interstate commerce—regulation of which the Constitution assigns to Congress. For example, a driver who does not cross state lines would be covered under this provision if USDOT has jurisdiction over his/her hours of service because he/she transports goods in interstate commerce – even if he/she works within a single state. In other words, the amendment ensures that all drivers’ hours of service are subject either to USDOT’s jurisdiction or to the state’s break rules—but not both at the same time.

Rebuttal  Response: This is a red herring. Nowadays there are very few drives who drive routes that are totally local and who drive only intrastate, ie., within one state.

Most line haul drivers, over the road drivers, and regional drivers, have some routes that are interstate. If you drive one route across state lines every four months, even though the majority of your routes are in one state, then you are considered interstate, and the Denham Amendment would preclude you from any protection of a state law that paid separately and hourly for detention time, inspection time, fueling, cleaning, paperwork, layover time, and rest break time. Allowing Denham to pass could also allow the industry to send their local drivers out of state for 1 route every four months and then they, too, would be considered interstate. Anecdotally, the vast majority of truckers would be covered by the Denham Amendment. This attempt to say that the new law only applies to those driving across the country isn’t true and it’s deceptive and misleading.

Myth: California’s state meal and rest break laws were specifically designed to reduce worker fatigue and to protect workers and the public from workplace crashes, injuries, and deaths.

ATA Fact: The federal rules governing driver hours and breaks were developed by USDOT specifically with commercial drivers in mind, based on a review of truck-specific highway safety evidence and fatigue science. The state break rules at issue here, by contrast, are general employment laws, not developed in the context of truck safety concerns, and not rooted in evidence about how best to ensure commercial drivers don’t drive while fatigued. On the contrary, applying state break rules for all employees on top of the federal rules developed for commercial drivers interferes with the nationwide uniformity of the latter, to the potential detriment of highway safety. Moreover, in places like California, employees who work under a collective bargaining agreement are exempt from state break rules. And the rules only apply to employees, not independent contractors—who in trucking make up a significant portion of the driver population. If states had indeed enacted these break rules to prevent crashes and deaths, they would hardly have exempted unionized and independent drivers.

 Rebuttal Response: No one is arguing against the Denham Amendment on the primary basis that state meal and rest break laws were designed to reduce worker fatigue. In California, Labor Code section 226.2 requires pay for all non-productive time for piece-rate workers, and to pay separately and hourly for rest breaks. The Denham Amendment would end that and nullify that. It is true that the right to take two 30 minute duty free meal breaks on a 10 hour shift in California is greater than the one 30 minute meal period before the 8th hour, but that just gives workers more rights not less. If the laws at issue are “general employment laws”, then why is the Denham Amendment trying to argue that they are laws targeting the motor carrier industry that should be preempted? It makes no sense.

The rest breaks allowed by California law of 10 minutes every 4 hours are paid breaks, and Washington has a similar law. Under federal DOT law, the breaks are not paid. So Denham hurts drivers by eliminating pay for rest periods. In California unionized drivers are exempt under Labor Code 512(e) from the meal period requirements of California law, but that’s not true for rest periods, so the statement is inaccurate in that sense. There is no doubt that the right to more rest and meal period than those afforded by federal law would likely result in less fatigue, but that is not the reason these laws were enacted.

The Courts and State Legislatures believe drivers and other piece-rate workers should be paid for all hours worked and that was the primary reason for enactment of Labor Code 226.2 and the rest period laws. In California, drivers can get one hour of pay for each day that a meal or rest period is not provided. This premium pay is ignored by the industry in its analysis.

 Myth: The Denham/Cuellar/Costa Amendment would deny truck drivers from taking the lunch and/or rest break they are granted under state law.

ATA Fact: By its express terms, the amendment would not preempt state break requirements for drivers who are not subject to USDOT’s hours-of-service jurisdiction because they do not work in interstate commerce. And USDOT’s safety-focused regulations already give drivers the right to take a break whenever they feel they need one—with whistleblower protections for drivers who are coerced to keep driving by carriers or customers.

 Rebuttal Response: as noted above, most drivers are interstate if they drive even 1 route out of state every 4 months. Allowing Denham to pass would also allow a company with local drivers to send the drivers out of state once and then they’d be excluded from protection by state law. The DOT rules also allow states to pass additional laws that provide greater rights to drivers with respect to meal and rest breaks, and courts have held that the DOT rules are not in conflict with the more protective rules of California and Washington and other states.

 Myth: The 1994 Federal Aviation Administration Authorization Act preemption provision that the Denham/Cuellar/Costa Amendment clarifies was limited to direct economic regulation of the trucking industry.

ATA Fact: The U.S. Supreme Court has repeatedly held that the F4A’s preemption provision (and the identical provision governing airline deregulation in the Airline Deregulation Act of 1980) expressed a broad preemptive intent, that it extends to indirect as well as direct regulation, and that it is not targeted at economic regulation alone. The Supreme Court has found a wide range of state laws—from consumer protection requirements to the common-law covenant of good faith and fair dealing—preempted under these statutes. And until the Ninth Circuit’s erroneous 2014 decision, the vast majority of lower courts held that existing law preempts state meal and rest break laws—hence the need for clarification offered by the Amendment.

 Rebuttal Response: The Supreme Court refused to overturn the rulings of the Ninth Circuit Court of Appeals, The California Supreme Court and the California Court of Appeals in three different cases, all of which decided that the FAAAA does not preempt or nullify state meal and rest break laws. Prior to the Dilts v. Penske decision rejecting preemption, the lower courts were very split on this issue. However, the Ninth Circuit Court of Appeals said it was an easy case to reject preemption since the meal and rest break laws were general employment laws that did not target the trucking industry, as the ATA acknowledges above. This “Fact” obscures the truth that the US Supreme Court has already agreed with the Ninth Circuit Court of Appeals that the FAAAA does not preempt state meal and rest and non-productive time statutes insofar as the High Court repeatedly refused to over-turn these appellate court rulings.

Myth: This issue has not had a public hearing or any meaningful discussion or analysis.

ATA Fact: F4A has been the subject of ample Congressional discussion and consideration. Over the last 3 years, the issues surrounding federal preemption of state meal and rest breaks have been discussed, debated and voted on in Congress no less five different times. To suggest this matter has not received adequate Congressional scrutiny is simply imaginary and untrue.

 Rebuttal Response: In each of the five prior occasions, Congress decided not to over-turn the court decisions and decided not to retroactively change the meaning of the F4A to protect the industry at the expense of truck drivers’ rights. No one is saying this issue hasn’t been fully voiced before; however, throwing this in as an amendment to an aviation funding bill smacks of back room deals that favor the industry, let them escape from court judgments against them, and insulate them from having to pay for all time worked through an amendment process that is including a topic not germane to the traffic controllers funding bill into that bill. Why not have the issue voted on as a stand alone provision and let it be fully debated on the floor of the Senate and the House ??? Some of the sponsors of the amendment, like the Democratic Congressperson from Fresno, probably did not even understand the implications of this amendment in terms of limiting drivers’ pay for all time worked. It was a secretive “amendment” process that looks like the “swamp” and doesn’t seem to be fully transparent, similar to these “FACTS” being put out now by the ATA.

Myth: The Denham/Cuellar/Costa Amendment has no place in legislation reauthorizing the FAA.

ATA Fact: The Federal Aviation Administration Authorization Act of 1994 explicitly preempted state laws “related to a price, route, or service of any motor carrier … with respect to the transportation of property.” The Denham/Cuellar/Costa Amendment simply clarifies that this preemption provision has always extended to state break rules, contrary to a 2014 9th Circuit decision. As such, the FAA Reauthorization bill currently pending before Congress is an entirely germane and appropriate vehicle for clarifying the earlier FAA bill’s provision.

 Rebuttal Response: Not really. The courts have held that the F4A clearly does not preempt state laws of general applicability, like laws requiring pay for all hours worked by piece-rate workers. The preemption language is not addressed in this FAA funding bill, except for the sole purpose of retroactively trying to change existing court decisions, where the industry lost this issue in Court

Myth: The Denham/Cuellar/Costa Amendment goes beyond the purpose of preventing a patchwork of State laws by preempting existing meal or rest break laws that have been on the books for decades.

ATA Fact: Motor carriers operating in interstate commerce have, since 1994, been subject only to nationally uniform federal rules governing their working hours. The amendment only applies to motor carriers and their employee drivers and does not affect any other industry or independent contractors. The 9th Circuit ruling has unleashed a torrent of lawsuits against motor carriers engaged in interstate commerce. Regulating interstate commerce is a constitutional responsibility of the federal government.

 Rebuttal Response: The courts have consistently rejected these ATA arguments, including the 9th Circuit and the US Supreme Court by refusing to over-turn or hear the 9th circuit ruling. Courts have held since 2011 that trucking companies must pay separately and hourly for rest breaks and non-productive time in several states. The industry does not like these rulings, as they require pay for all time worked. The national DOT regulations themselves allow states to augment their protections. Since when are states rights to make laws relating to workers nullified by federal regulations? There is nothing in the Constitution reserving to the federal government the exclusive right to regulate trucking companies. The industry enjoys the benefits of making tons of profits in various states, but would like to avoid having to comply with the laws of the states in which they operate. That is fundamentally unfair.

Myth: The Denham/Cuellar/Costa Amendment would undermine every state law relating worker compensation, leave and benefits.

ATA Fact: Assertions that the Denham/Cuellar/Costa Amendment would undercut other state laws relating to compensation and benefits represents a gross misreading – and, intentionally misleading reading – of the amendment’s language. The clear intent of the language is – and always has been – to make clear that federal law preempts state law specifically with respect to meal and rest breaks. Moreover, to allay concerns regarding the amendment’s potential impact on driver compensation, the amendment’s sponsors explicitly excluded the “piece-rate” language that had been included in previous iterations. These dramatic and inaccurate characterizations by the amendment’s opponents are nothing more than a desperate, last-minute attempt to undermine a well-reasoned proposal to eliminate conflicts between federal and state rules governing the working hours of interstate drivers.

 Rebuttal Response: The current amendment still precludes states from imposing any law that would require a trucking company to pay more than they are required to pay under federal law – which is basically federal minimum wage of $7.25 per hour. So, the new law is more sly in its deletion of the phrase piece-rate but accomplishes the same thing.

Also, the fact that the Denham Amendment would be retroactive and thus nullify out large settlement and verdicts obtained for drivers shows that the industry is primarily concerned about one thing: preserving its rights not to pay for non-productive time (detention time, waiting time, rest breaks etc), even when judges and juries have ruled that they owe this money. “Retroactively clarifying” something is another way of saying we are going to change the rules going forward and backward so we don’t have to pay more than we do now.

Enough is enough. Drivers wages haven’t increased on a post-inflation basis in over 20 years, while industry profits have increased. The ATA’s “facts” themselves are incomplete, misleading, and designed to protect their constituency: the trucking companies and their ever increasing profit streams. The industry cannot accept that they have lost this issue in Court, so now they want to change the rules and nullify state laws upheld by the judicial system. That’s not a myth – its a raw fact !

Make the Call. It’s your last day to do the right thing.
Denham Amendment Vote No


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ATA attacks truck drivers advocates for spreading truth about Denham Amendment

Apr
25,
2018
2

 

ATA claims that the Truth About Trucking Network (includes AskTheTrucker) is sharing propaganda about the Denham Amendment and states that it is the ATA who is telling drivers the truth. Do you believe that drivers?

Trucker Advocate Allen Smith= Host of Truth About Trucking Live

We were notified by drivers who have received letters saying that the ATA is sending emails out to their members and  telling them not to believe our “propaganda” about the Denham Amendment. Drivers should believe the ATA instead.

 

 

Well I guess they need to include OOIDA in their letter too because OOIDA just sent out a call to Action to FIGHT the Denham Amendment in H.R.4 (the FAA Reauthorization bill), OOIDA is supporting us and our fight!!

Basically what the ATA letter included

1) Begging for carriers to help to get the drivers to side with the ATA and vote YES for Denham Amendment.

2)ATA claiming that Opponents ( Truth About Trucking, LLC and AskTheTrucker ) are being untruthful to drivers about the Denham Amendment. (ATA is telling the truth, yeah right)

3) Telling Carriers to convince  “The ATA drivers” to vote with ATA  and not with the “opponents” namely truck driver advocates at AskTheTrucker and Truth About Trucking

What they mean to tell their members is don’t listen to the Truck Driver Advocates! Listen to the ATA!
THIS IS WHAT we have to say to the ATA

Don’t believe the lies being spread by the trucking companies about the Denham amendment Here is the real truth
Federal Preemption update against Trucker Wages -The fight to be paid for all time

It should be called the “Steal Drivers Wages Bill.”

 

 

 

Drivers, Why do you think the trucking companies are pushing this so hard?

Committee on House Rules- FAA bill and Denham Amendment

Ask yourself one question  Since when has one of these trucking companies cared about your interests? You think they are going to start caring about you now?
Really? Are you kidding?

Now they want drivers to help them (ATA)  further exploit themselves, telling them to call their reps to vote yes for the Denham amendment. The trucking companies want your help to take money away from YOU!

The bottom line on the Denham bill
The Denham amendment is trying to keep you from getting paid for all the time that you work. This is going to cost you and your family your hard earned wages. Make no mistake about it!!!

The trucking industry is trying to sneak this wage theft bill by truck drivers

After battling in the courts for years and losing these issues, the trucking industry is now trying to sneak in a provision eliminating your rights in the FAA Reauthorization Bill with hopes that the provision will go unnoticed by you. You must take action before April 26, 2018.  and contact your Congressperson and urge them to vote NO ON DENHAM Amendment in H.R.4

ENOUGH IS ENOUGH !! Today or Tomorrow could be our last CHANCE to & STOP one of the most EGREGIOUS bills in Trucking History. Please CALL 202-224-3121 NOW
Say NO to Federal Preemption over State Laws
Say NO to Federal Law over Trucker Wages
Say NO to Denham Amendment in H.R.4 ( FAA Re-Authorization bill)
Say NO to another Federal Regulation against TRUCKERS #DenhamAmendment #FAAbill #H.R.4

 

 

 

 

 

 

 

 

 

 

 

ATA Myth vs. Facts: the Denham/Cuellar/Costa F4A Amendment (#140) to H.R.4, the FAA Reauthorization Act:

Below is the ATA  claims of Myth vs. Fact  Ironically the myth are the truth and facts are the distortions.  Under each “Myth- Fact” is our rebuttal in RED Print

Myth: The Denham/Cuellar/Costa Amendment would overturn the ability of states to govern the working conditions of their truck drivers.

ATA Fact: Nothing in the amendment impedes a states’ ability to govern the working conditions of truck drivers engaged solely in intrastate commerce. The amendment specifically ties preemption of state break requirements to USDOT’s jurisdiction under 49 U.S.C. 31502, which applies when the driver works in interstate commerce—regulation of which the Constitution assigns to Congress. For example, a driver who does not cross state lines would be covered under this provision if USDOT has jurisdiction over his/her hours of service because he/she transports goods in interstate commerce – even if he/she works within a single state. In other words, the amendment ensures that all drivers’ hours of service are subject either to USDOT’s jurisdiction or to the state’s break rules—but not both at the same time.

Advocates Rebuttal  Response: This is a red herring. Nowadays there are very few drives who drive routes that are totally local and who drive only intrastate, ie., within one state.

Most line haul drivers, over the road drivers, and regional drivers, have some routes that are interstate. If you drive one route across state lines every four months, even though the majority of your routes are in one state, then you are considered interstate, and the Denham Amendment would preclude you from any protection of a state law that paid separately and hourly for detention time, inspection time, fueling, cleaning, paperwork, layover time, and rest break time. Allowing Denham to pass could also allow the industry to send their local drivers out of state for 1 route every four months and then they, too, would be considered interstate. Anecdotally, the vast majority of truckers would be covered by the Denham Amendment. This attempt to say that the new law only applies to those driving across the country isn’t true and it’s deceptive and misleading.

Myth: California’s state meal and rest break laws were specifically designed to reduce worker fatigue and to protect workers and the public from workplace crashes, injuries, and deaths.

ATA Fact: The federal rules governing driver hours and breaks were developed by USDOT specifically with commercial drivers in mind, based on a review of truck-specific highway safety evidence and fatigue science. The state break rules at issue here, by contrast, are general employment laws, not developed in the context of truck safety concerns, and not rooted in evidence about how best to ensure commercial drivers don’t drive while fatigued. On the contrary, applying state break rules for all employees on top of the federal rules developed for commercial drivers interferes with the nationwide uniformity of the latter, to the potential detriment of highway safety. Moreover, in places like California, employees who work under a collective bargaining agreement are exempt from state break rules. And the rules only apply to employees, not independent contractors—who in trucking make up a significant portion of the driver population. If states had indeed enacted these break rules to prevent crashes and deaths, they would hardly have exempted unionized and independent drivers.

Advocates Rebuttal Response: No one is arguing against the Denham Amendment on the primary basis that state meal and rest break laws were designed to reduce worker fatigue. In California, Labor Code section 226.2 requires pay for all non-productive time for piece-rate workers, and to pay separately and hourly for rest breaks. The Denham Amendment would end that and nullify that. It is true that the right to take two 30 minute duty free meal breaks on a 10 hour shift in California is greater than the one 30 minute meal period before the 8th hour, but that just gives workers more rights not less. If the laws at issue are “general employment laws”, then why is the Denham Amendment trying to argue that they are laws targeting the motor carrier industry that should be preempted? It makes no sense.

The rest breaks allowed by California law of 10 minutes every 4 hours are paid breaks, and Washington has a similar law. Under federal DOT law, the breaks are not paid. So Denham hurts drivers by eliminating pay for rest periods. In California unionized drivers are exempt under Labor Code 512(e) from the meal period requirements of California law, but that’s not true for rest periods, so the statement is inaccurate in that sense. There is no doubt that the right to more rest and meal period than those afforded by federal law would likely result in less fatigue, but that is not the reason these laws were enacted.

The Courts and State Legislatures believe drivers and other piece-rate workers should be paid for all hours worked and that was the primary reason for enactment of Labor Code 226.2 and the rest period laws. In California, drivers can get one hour of pay for each day that a meal or rest period is not provided. This premium pay is ignored by the industry in its analysis.

 Myth: The Denham/Cuellar/Costa Amendment would deny truck drivers from taking the lunch and/or rest break they are granted under state law.

ATA Fact: By its express terms, the amendment would not preempt state break requirements for drivers who are not subject to USDOT’s hours-of-service jurisdiction because they do not work in interstate commerce. And USDOT’s safety-focused regulations already give drivers the right to take a break whenever they feel they need one—with whistleblower protections for drivers who are coerced to keep driving by carriers or customers.

Advocates Rebuttal Response: as noted above, most drivers are interstate if they drive even 1 route out of state every 4 months. Allowing Denham to pass would also allow a company with local drivers to send the drivers out of state once and then they’d be excluded from protection by state law. The DOT rules also allow states to pass additional laws that provide greater rights to drivers with respect to meal and rest breaks, and courts have held that the DOT rules are not in conflict with the more protective rules of California and Washington and other states.

 Myth: The 1994 Federal Aviation Administration Authorization Act preemption provision that the Denham/Cuellar/Costa Amendment clarifies was limited to direct economic regulation of the trucking industry.

ATA Fact: The U.S. Supreme Court has repeatedly held that the F4A’s preemption provision (and the identical provision governing airline deregulation in the Airline Deregulation Act of 1980) expressed a broad preemptive intent, that it extends to indirect as well as direct regulation, and that it is not targeted at economic regulation alone. The Supreme Court has found a wide range of state laws—from consumer protection requirements to the common-law covenant of good faith and fair dealing—preempted under these statutes. And until the Ninth Circuit’s erroneous 2014 decision, the vast majority of lower courts held that existing law preempts state meal and rest break laws—hence the need for clarification offered by the Amendment.

Advocates Rebuttal Response: The Supreme Court refused to overturn the rulings of the Ninth Circuit Court of Appeals, The California Supreme Court and the California Court of Appeals in three different cases, all of which decided that the FAAAA does not preempt or nullify state meal and rest break laws. Prior to the Dilts v. Penske decision rejecting preemption, the lower courts were very split on this issue. However, the Ninth Circuit Court of Appeals said it was an easy case to reject preemption since the meal and rest break laws were general employment laws that did not target the trucking industry, as the ATA acknowledges above. This “Fact” obscures the truth that the US Supreme Court has already agreed with the Ninth Circuit Court of Appeals that the FAAAA does not preempt state meal and rest and non-productive time statutes insofar as the High Court repeatedly refused to over-turn these appellate court rulings.

Myth: This issue has not had a public hearing or any meaningful discussion or analysis.

ATA Fact: F4A has been the subject of ample Congressional discussion and consideration. Over the last 3 years, the issues surrounding federal preemption of state meal and rest breaks have been discussed, debated and voted on in Congress no less five different times. To suggest this matter has not received adequate Congressional scrutiny is simply imaginary and untrue.

Advocates Rebuttal Response: In each of the five prior occasions, Congress decided not to over-turn the court decisions and decided not to retroactively change the meaning of the F4A to protect the industry at the expense of truck drivers’ rights. No one is saying this issue hasn’t been fully voiced before; however, throwing this in as an amendment to an aviation funding bill smacks of back room deals that favor the industry, let them escape from court judgments against them, and insulate them from having to pay for all time worked through an amendment process that is including a topic not germane to the traffic controllers funding bill into that bill. Why not have the issue voted on as a stand alone provision and let it be fully debated on the floor of the Senate and the House ??? Some of the sponsors of the amendment, like the Democratic Congressperson from Fresno, probably did not even understand the implications of this amendment in terms of limiting drivers’ pay for all time worked. It was a secretive “amendment” process that looks like the “swamp” and doesn’t seem to be fully transparent, similar to these “FACTS” being put out now by the ATA.

Myth: The Denham/Cuellar/Costa Amendment has no place in legislation reauthorizing the FAA.

ATA Fact: The Federal Aviation Administration Authorization Act of 1994 explicitly preempted state laws “related to a price, route, or service of any motor carrier … with respect to the transportation of property.” The Denham/Cuellar/Costa Amendment simply clarifies that this preemption provision has always extended to state break rules, contrary to a 2014 9th Circuit decision. As such, the FAA Reauthorization bill currently pending before Congress is an entirely germane and appropriate vehicle for clarifying the earlier FAA bill’s provision.

Advocates Rebuttal Response: Not really. The courts have held that the F4A clearly does not preempt state laws of general applicability, like laws requiring pay for all hours worked by piece-rate workers. The preemption language is not addressed in this FAA funding bill, except for the sole purpose of retroactively trying to change existing court decisions, where the industry lost this issue in Court

Myth: The Denham/Cuellar/Costa Amendment goes beyond the purpose of preventing a patchwork of State laws by preempting existing meal or rest break laws that have been on the books for decades.

ATA Fact: Motor carriers operating in interstate commerce have, since 1994, been subject only to nationally uniform federal rules governing their working hours. The amendment only applies to motor carriers and their employee drivers and does not affect any other industry or independent contractors. The 9th Circuit ruling has unleashed a torrent of lawsuits against motor carriers engaged in interstate commerce. Regulating interstate commerce is a constitutional responsibility of the federal government.

Advocates Rebuttal Response: The courts have consistently rejected these ATA arguments, including the 9th Circuit and the US Supreme Court by refusing to over-turn or hear the 9th circuit ruling. Courts have held since 2011 that trucking companies must pay separately and hourly for rest breaks and non-productive time in several states. The industry does not like these rulings, as they require pay for all time worked. The national DOT regulations themselves allow states to augment their protections. Since when are states rights to make laws relating to workers nullified by federal regulations? There is nothing in the Constitution reserving to the federal government the exclusive right to regulate trucking companies. The industry enjoys the benefits of making tons of profits in various states, but would like to avoid having to comply with the laws of the states in which they operate. That is fundamentally unfair.

Myth: The Denham/Cuellar/Costa Amendment would undermine every state law relating worker compensation, leave and benefits.

ATA Fact: Assertions that the Denham/Cuellar/Costa Amendment would undercut other state laws relating to compensation and benefits represents a gross misreading – and, intentionally misleading reading – of the amendment’s language. The clear intent of the language is – and always has been – to make clear that federal law preempts state law specifically with respect to meal and rest breaks. Moreover, to allay concerns regarding the amendment’s potential impact on driver compensation, the amendment’s sponsors explicitly excluded the “piece-rate” language that had been included in previous iterations. These dramatic and inaccurate characterizations by the amendment’s opponents are nothing more than a desperate, last-minute attempt to undermine a well-reasoned proposal to eliminate conflicts between federal and state rules governing the working hours of interstate drivers.

Advocates Rebuttal Response: The current amendment still precludes states from imposing any law that would require a trucking company to pay more than they are required to pay under federal law – which is basically federal minimum wage of $7.25 per hour. So, the new law is more sly in its deletion of the phrase piece-rate but accomplishes the same thing.

Also, the fact that the Denham Amendment would be retroactive and thus nullify out large settlement and verdicts obtained for drivers shows that the industry is primarily concerned about one thing: preserving its rights not to pay for non-productive time (detention time, waiting time, rest breaks etc), even when judges and juries have ruled that they owe this money. “Retroactively clarifying” something is another way of saying we are going to change the rules going forward and backward so we don’t have to pay more than we do now.

Enough is enough. Drivers wages haven’t increased on a post-inflation basis in over 20 years, while industry profits have increased. The ATA’s “facts” themselves are incomplete, misleading, and designed to protect their constituency: the trucking companies and their ever increasing profit streams. The industry cannot accept that they have lost this issue in Court, so now they want to change the rules and nullify state laws upheld by the judicial system. That’s not a myth – its a raw fact !

**************************************

Why you need to act now!

You need to contact your Congressperson right now and urge them to Vote NO on the Denham Amendment.
202-224-3131 Washington Switchboard. Give them your zip and they’ll connect you.

What can I do to stop this attack on my wages?

Here is what you need to do to stop this. You need to call or send an an email to your Congressperson.

Here are links to both the House and Senate

House https://www.house.gov/representatives

Senate  https://www.senate.gov/general/contact_information/senators_cfm.cfm 

Why you need to include your address in your email if you email your Congressperson
The way this works is when you send an email directly to the office of the Congressman in your district, they will know that their constituents are concerned over an issue. This is why you need to include your address in your email so the Congressman will know that you live in their district.
If you don’t tell the Congressman that you live in their district, they will think your email is spam and they will ignore it. Therefore it is very important that you include your name and address in your email to the Congressman. Your email and its content will only go to the Congressman.

Your email will help convince them that they should stop this attack on your rights and your paycheck. You need to let them know that you won’t stand for the trucking industry trying to take money away from you and your family.

Your chance to make a difference

Believe it or not, this is your chance to make a difference. This is your chance to stand up and be heard and not take it anymore.

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April 23, 2018 is D-Day for Truckers

Apr
22,
2018
34

Say “NO” to Denham Amendment in FAA Re-authorization bill. Don’t allow Congress to limit Trucker Wages to CPM 202-224-3121

 

 

 

 

 

 

 

 

“Truckers Lose Rights to Additional Wages”

This could soon be the headline read by millions of truck drivers across the country as the Denham Amendment moves to the floor next week, as early as Tuesday, April 24 for vote. Voting could extend to the end of week however, Friday 4-27-18.

This amendment, slipped in to H.R. 4, the FAA Re-authorization Bill, will overturn State Laws that require workers to be paid for all hours worked. Instead, motor carriers would only have to pay drivers for the time they spend driving; no additional pay would be required for any additional work such as post or pre-trip inspections or detention time.

Pushed hard by the American Trucking Association (ATA), this is now the sixth time the Denham Amendment will be up for passing, having already failed the previous five times in other bills.

The ATA believes this time will be different and the Denham amendment will pass due to the following reasons:

  1. The information will not get out in time to reach drivers, preventing them from contacting their representatives to tell them to vote ‘NO’ on the amendment.
  2. They believe that drivers are too consumed with the ELD mandate and enforcement, that this amendment will ultimately be overlooked, making the 6th attempt passable.
  3. By distorting the true facts behind the Denham Amendment by telling drivers that it is primarily a “meal and rest break” preemption, they believe this time around the deception will be successful.

The amendment will also apply retroactively, meaning that any lawsuits, settlements or judgements won by drivers for employer violations dating back to 1994 will be wiped out.

Truck drivers will lose any and all rights to additional pay and could only be paid their CPM wages, nothing more. They already work 30-40 hrs/wk WITHOUT pay.

On Saturday, April 21 we had an “Open Forum” on the AskTheTrucker “LIVE” broadcast where the Denham Amendment held the conversation for the full 2 hours. Here is the opening of the program:

 

To listen to the full broadcast visit Open Forum Trucker Wages.

Monday, April 23rd is the last day for drivers to call in and reinforce their objection to the Denham Amendment before it most likely will go to the floor on Tuesday for vote. The war against truckers wages continues via the ATA and their lobbying with Congressman Jeff Denham (R) of California.

The ATA is banking on this sixth time around to pass due to sneaking it into the hundreds of pages of the FAA bill and its many amendments at the last moment. The attempt has failed five times before due to so many drivers making the call. It can fail again if they do the same.

House of Representatives Rules Committee – H.R. 4 – FAA Reauthorization Act of 2018 with Amendment #140 The Denham Amendment.

Make the call on Monday, April 23 and tell your representatives once again, truckers say “NO” to the Denham Amendment and are expecting them to do the same.

202-224-3121

Last chance drivers to protect your future wages.

Here is a link to every U.S. senator email and phone

Here is a link to every U.S.Representative

 

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Denham Amendment against truckers slipped in the 2018 FAA Reauthorization bill at 11th hour

Apr
19,
2018
10

Drivers, we have 5 days to defeat the latest and 6th attempt by the ATA, who are determined to change Federal existing law (Federal Aviation Administration Authorization Act of 1994), by way of the Denham Amendment, into new law, negatively affecting how drivers are paid.

Tuesday April 24th is the deadline to make sure that the Denham Amendment is NOT added to H.R.4, the FAA Reauthorization bill.

UPDATE:  Here is how the HOUSE voted on April 26th 2018 which passed.  Most Republicans voted with the ATA.  Here is how your Reps voted.

Changing the Law to Preempt States Rights

There are states who have laws and believe that truckers should be paid for all their work, in addition to their miles driven.  We’re telling government not to allow amendments  to laws which were originally meant to deregulate freight ( 1994 FAAA ACT) p.37 TITLE VI—INTRASTATE TRANSPORTATION OF PROPERTY Sec 601

.  The FAAA was not intended to regulate state labor laws, which is what the ATA is contesting.

Denham Amendment Vote No

Say NO to Denham Amendment in 2018 FAA Re-Authorization bill

The ( 1994 FAAA ACT)  was not meant to preempt states labor laws so that drivers wages could be regulated.

After failing to have the poison Denahm/ Preemption language added to the recent Omnibus bill last month, the ATA and their powerful lobby have manged to get the Denham Amendment once again in the 2018 FAA Reauthorization bill.

What is the Denham amendment?

It is an amendment which would preempt states rights, states who protect employees, including truckers, ensuring they are paid for all time.

 

Some of these states allow for paid rest breaks.  They also allow for short meal breaks ( not paid).
Drivers can waive these breaks however, they are not forced to take them, something which the ATA fails to tell drivers.

The Truth about Meal and Rest Breaks for Intrastate drivers

The  Denham Amendment has once again been included in the 2018 FAA Reauthorization bill, where companies would be legally permitted to only pay drivers for the time they spend driving, despite the fact that drivers are required to spend a great deal of time performing non-driving duties in the fulfillment of their employment such as pre and post trip inspections, maintenance and loading and unloading ( Detention Time). This would put an end for any possibility of being paid for  all time recorded  as “on duty not driving”

The Denham amendment would preempt state regulations, state laws, and state court decisions, many of which have been on the books for decades, that protect workers, including commercial truck drivers from being exploited.

Watch the original video of Denham Amendment when it was first introduced Nov 2015

The Truth About Trucking Network says NO to the Denham Amendment

ATA has tried 5 times to slip this language in, to ensure that carriers will not be legally obligated to pay drivers for all time.: the 2015 Highway bill, 2016 FAA funding reauthorization bill, the 2017 omnibus funding bill, the Thud and DOT 2018 appropriation bills (when they were going piece meal) and the most recent 2018 omnibus funding bill.

Here is two of many radio shows we did concerning Denham language and the FAA

Trucker Wages: The Devastating affects if Congress amends F4A

Open Forum- Vote NO! FAA anti-trucker bill and ELDs

Carriers have lost many court cases, including state Supreme courts.  The only way they beleive they can defeat this poison language is through Congress, just like they did with the ELD mandate!

Here is what OOIDA said about Preemption/Denham amendment language.
It would “unravel mandated fair-pay for drivers and would empower large carriers to further reduce driver wages.”

Drivers, don’t let them do this to you again!  We must call our reps and tell them :
Do not allow the Denham Amendment in the 2018 FAA Reauthorization bill.

Federal Preemption update against Trucker Wages -The fight to be paid for all time

The ATA tells Congress that they are the voice of trucking!  We do not agree. We hope you will call Congress and tell them that the ATA does not speak for professional drivers. Say no to the Denham Amendment.

Call 202-224-3121
Or
Here is a link to every U.S. senator email and phone

Here is a link to every U.S.Representative

 

To learn more about the ATA’s relentless attempts to include anti trucker wage amendments in bills go to the info graphic and then scroll all the way down to the RELATED Links.

InfoGraphic-STOP New Legislation-Truck Driver Wages at Risk.

 

 

 

 

*****************************************************************************
Discussions regarding Denham Amendment are included on the April 21st  Open Forum Trucking Discussion show on AskTheTrucker ‘Live”

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James Lamb settled with FTC and Pays nothing except his own legal fees

Apr
17,
2018
0

James Lamb settled with FTC and Pays nothing except his own legal fees

It all started in October of 2016  when the United States Federal Trade Commission (“FTC”) convinced a Federal Judge into believing that a 15 year old small business truck permit company Dotauthority.com and its sister company Dotfilings.com, were allegedly engaged in deceptive business practices.  They were accused of  impersonating government transportation agencies, such as the U.S. Department of Transportation (USDOT).
Read more FTC building The overreach of Regulatory Power- How far can it go?

Shortly after, James Lamb of DOTAuthority.com filed a counterclaim against the FTC.
Read more DOTAuthority.com files Counterclaim against FTC

James Lamb has always maintained his innocence against the FTC charges, but felt that settlement was preferable to years of additional costly litigation. Mr. Lamb stated.

Many months later, DOTAuthority has settled with the FTC, and although Mr Lamb has spent much in legals fees, has not paid anything out of pocket for alleged impersonating of DOT.

“As one of Excelsior’s attorneys, Len Gordon, a former FTC attorney, pointed out to the FTC, James was running a legitimate business, and can now continue to do so.”

PRESS RELEASE  FOR IMMEDIATE RELEASE: James Lamb Settles Lawsuit with the Federal Trade Commission

The Bopp Law Firm, PC

National Building

1 South 6th Street

Terre Haute, IN 47807-3510

April 16, 2018

Contact: James Bopp, Jr.

Cell Phone 812/243-0825; Phone 812/232-2434; Fax 812/235-3685; jboppjr@aol.com

James Lamb Settles Lawsuit with the Federal Trade Commission

James Lamb- Chairman of Small Business in Transportation Coalition (SBTC)

In early September, 2016, the FTC filed a civil complaint at the request of the Federal Motor Carrier Safety Administration (FMCSA) against Mr. Lamb, who operates a regulatory compliance service through his motor carrier registration and permitting website called “DOTAuthority.com,” and a business partner, Uliana Bogash, alleging that they misled their customers to believe that they were affiliated with the federal government when soliciting their business; specifically, because their disclaimers, including Lamb’s homepage disclaimer, which read “DOTAuthority.com is a Consulting Firm. It is not the Department of Transportation,” were inadequate. The FTC rushed into court ex-parte, feigning an emergency existed, asking the court to freeze Mr. Lamb and Ms. Bogash’s personal and business bank accounts and take control of their businesses through a receiver without a hearing, which the court did.

At a hearing 10 days later, and after hearing the facts from Mr. Lamb, the presiding judge unfroze all of Mr. Lamb and Ms. Bogash’s bank accounts and returned control of the businesses to them. Almost a year and a half later, the FTC finally agreed to settle the case for a fraction of the sum the agency alleged in damages. On April 13, 2018, Senior Judge William Zloch signed off on a settlement agreement among James Lamb, and other parties, and the Federal Trade Commission, finally putting an end to a protracted legal battle.

Mr. Lamb, a trucking industry and regulatory compliance expert, owns and operates several businesses that aid truckers in complying with the immense body of regulations that must be followed in order to be properly licensed and have “operating authority” to operate. Ms. Bogash owns Excelsior Enterprises International, which is partnered with Lamb’s business DOTAuthority.com, a catchy brand which the Federal Government’s Patent and Trademark Office has given Lamb rights to use under a service mark registration.

The settlement is quite a coup for Mr. Lamb and his attorneys at The Bopp Law Firm, as the FTC agreed to a settlement of much less than the eight-figure amount they had asserted was “taken in” by Lamb and Bogash. In the end, the parties agreed Excelsior would solely pay a six-figure amount to end the case and that Lamb and his companies would pay nothing but their own legal expenses.

Mr. Lamb’s attorney, James Bopp, Jr., asserted,

“As one of Excelsior’s attorneys, Len Gordon, a former FTC attorney, pointed out to the FTC, James was running a legitimate business, and can now continue to do so.”

The terms of the settlement, of course, require that Mr. Lamb and his associates refrain from misrepresenting themselves as being affiliated with the government, a charge that they have consistently denied.

James Lamb has always maintained his innocence against the FTC charges, but felt that settlement was preferable to years of additional costly litigation. Mr. Lamb stated,

“The FTC was making it almost impossible for me to run my business, which doesn’t just hurt me, it hurts the carriers and truckers we serve and help keep in compliance. While I continue to maintain the FTC had no lawful jurisdiction over us under the “common carrier exemption” to the FTC Act, the parties cannot stipulate there is jurisdiction, and continue to believe the FMCSA asked FTC to fabricate a case against me in retaliation for my trade group’s lawsuits against them and my political activities, a settlement in which my companies paid nothing in civil penalties, restitution or disgorgement, was the best solution to put an end to this ridiculous nuisance lawsuit and get back to business as usual.”

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Federal Preemption update against Trucker Wages -The fight to be paid for all time

Apr
10,
2018
4

If at first you don’t succeed, try try again. That seems to be the motto of the ATA and others in the trucking industry when it comes to Federal Preemption of States Rights in order for them to be able to regulate trucker wages.

Last month truckers breathed one more sigh of relief as the most recent attempt to preempt states rights, allowing drivers to be paid for all time, once again failed, this time in the March Omnibus Spending bill.  Read more: ATA lobbies for anti-trucker wage provisions in Omnibus Spending bill

 This was the fifth non successful attempt made by the trucking industry, (which includes the ATA,  the 50 ATA-affiliated state trucking associations, the Truckload Carriers Association and others), to include anti-trucker preemption language in a major bill.
ATA has now lost this five times: the 2015 Highway bill, 2016 FAA funding reauthorization bill, the 2017 omnibus funding bill, the Thud and DOT 2018 appropriation bills (when they were going piece meal) and now the 2018 omnibus funding bill

Make No Mistake, they will be trying again to have preemption language included in another bill coming up for vote, most likely the infrastructure or omnibus in October.

What is this preemption language that the ATA is so desperate to have included in these bills?  First, the language has been known as the Denham Amendment, Denham language, F4A preemption, FAAAA preemption, Meal and Rest Break Preemption.

Denham language would exclude truckers from State labor laws which protect driver wages and safety and ensure employees are not exploited.

These states include in their state labor laws,  that employers must pay drivers for all time, including detention time, in addition to their miles driven.  In essence, this is what drivers have been fighting for.
In addition, these states also require employers to offer meal breaks and paid rest breaks.  These breaks can be waived by the employee, however, truckers would still be paid for the rest breaks.
The Truth about Meal and Rest Breaks for Intrastate drivers

Provisions to overturn state laws, designed to protect truckers, began to first appear in the 2015 Highway bill- FAST ACT–  The provision, slipped in at the 11th hour, was called the Denahm Amendment.  Because of an all out call to action, including a multitude of drivers who called in, it failed to be passed into law.

If preemption language is to be included in one of the many final bills that the ATA and others have been lobbying so hard for, it would affect how drivers are paid permanently.

For all those who are in favor of ELD’s because all their time waiting at docks would finally be recorded and offer stamped proof for detention pay, the inclusion of Preemption of States Rights in a bill, would legally relieve Carriers from having to pay drivers for time waiting, or any time other than their piece work wages ( CPM)

Just as the Fair Labor Standards Act (FLSA) has put a damper on drivers’ ability to earn a “fair wage”, so would Federal Preemption of States Rights.
The Fair Labor Standards Act ( FLSA) which has exempted truckers for decades has prevented drivers from having to be paid overtime.
Preemption would then limit drivers to being paid piece work wages only.

The FLSA provides an overtime exemption for employees who are within the authority of the Secretary of Transportation to establish qualifications and maximum hours of service according to Section 204 of the Motor Carrier Act of 1935.

The ATA and other in the trucking industry believe that states labor laws are interfering with motor carriers ability to move freight. They rely on their interpretation of  wording in the 1994 Federal Aviation Authorization Administration Act (F4A)

From the 1994 FAAAA Bill;
(b) Freight Forwarders and Brokers.—
(1)General rule.—
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.

This is a distortion of what they say “Congress intended” to mean in the H.R.2739  Federal Aviation Administration Authorization Act of 1994 49 -USC 40101  P. 37 of 39 — Title VI Intrastate Transportation of property
Sec 601 Preemption of Intrastate Transportation of property.

Basically what the ATA believes, is that States have NO RIGHT to tell motor carriers that their drivers must be paid for all time, including waiting, detention, paperwork and all non driving tasks.

Say NO to anti trucker wage preemption provisions
Call 202-224-3121

The 1994 Federal Aviation Authorization Administration Act (F4A) was designed to deregulate a states ability to regulate freight.  Should it also be used to over ride or preempt their Labor Laws?  The trucking industry fought in courts and said “YES”
The courts, including state supreme courts said NO. States have their rights to protect employees with their own labor laws and the F4A language had nothing to do with States Labor laws.

When the carriers went to court with this argument, the Federal Courts sided with the drivers on numerous occasions.

The ATA then decided to go to Congress, (just as they did to get the ELD mandate approved), so they could have the Denham- Preemption language included in numerous bills.

Drivers do not want “government to interfere”- We’re asking Congress and the government to stay out of states affairs.

There are states who have laws and believe that truckers should be paid for all their work, in addition to their miles driven.  We’re telling government not to allow the perversion of laws which were meant to deregulate freight ( 1994 FAAA ACT).

These laws were not meant to preempt states labor laws so that drivers wages could be regulated.

WATCH THE VIDEO-

Update on Federal Preemption against Driver Wages

Here are other videos that truckers have made regarding the Denham/Preemption issue

 

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Does Rest bill modify HOS to relieve drivers or allow them to now work a 17 hour day?

Apr
5,
2018
2

In a recent Press Release_ Babin Introduces Legislation to Improve Hours-of-Service Regulations,  U.S. Rep. Brian Babin (R-TX-36), attempts to relieve truckers from the negative effects of the ELD mandate which went into enforcement mode on April 1st.

U.S. Rep. Brian Babin (R-TX-36

The ELD mandate has strong opposition among many professional drivers, including company drivers and owner operators.

ELD Mandate DOES affect ALL drivers

Included in the many complaints against the ELD mandate is the fact that drivers are paid by the mile and yet governed by the HOS clock.  That clock keeps ticking, no matter what. Delays, bad weather, traffic jams, loading docks, nothing matters.  If the driver isn’t moving, he’s not getting paid.
The ELD enforces the FMCSA HOS (Hours of Service)

 

ELD mandate- Congress MAP 21
According to FMCSA—-
The electronic logging device (ELD) rule – congressionally mandated as a part of MAP-21 – is intended to help create a safer work environment for drivers, and make it easier and faster to accurately track, manage, and share records of duty status (RODS) data. An ELD synchronizes with a vehicle engine to automatically record driving time, for easier, more accurate hours of service (HOS) recording.
In other words, ELD’s will keep drivers compliant and not allow them to drive more hours than allowed.

ELD’s DO NOT prevent truckers from working more than 70 hrs/wk

U.S. Rep. Brian Babin (R-TX-36), a member of the House Transportation and Infrastructure Committee, introduced H.R. 5417 The Responsible and Effective Standards for Truckers (REST) Act, legislation that would modernize hours of service regulations for truck drivers.

The REST Act would allow drivers to take one rest break per shift, for up to three consecutive hours. The single off-duty period would not be counted toward the driver’s 14-hour, on-duty allowance and would not extent the total, allowable drive limits.

“I’m proud to introduce the REST Act today and give America’s truckers the options they need to safely operate under today’s rigid federal regulations,” said Rep. Babin. “This bill is an important step in making the way for improved highway safety.”

The REST Act requires the Department of Transportation to update Hours of Service regulations to allow a rest break once per 14-hour duty period for up to 3 consecutive hours as long as the driver is off-duty, effectively pausing the 14-hour clock.  However, drivers would still need to log ten consecutive hours off duty before the start of their next work shift.  It would also eliminate the existing 30-minute rest break requirement.

Theoretically it all sounds good. But when you evaluate the situation it makes you ask,
” Is this just adding another 3 hours to your day?”  Is the “rest bill” really allowing drivers time to “rest” without taking away from their 14 hour clock, or could they just use it while waiting at the docks?
Is it a way to give drivers more time to drive more hours to make more money?

TRUCKER WAGES  and the 14 hour clock are the PROBLEM 

If you are paid according to how many pieces you can produce while racing a clock that has no mercy on obstacles, it is an unsafe environment. When you add to that, being grossly underpaid (same wages as the 80’s) and not paid for waiting times, you create a desperate situation to drive as many miles as physically possible all while racing that 14 hour clock

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

1 If drivers were paid appropriately for all time and not just piece work wages , they could afford to rest anytime they’re tired. HOS does not prevent you from stopping to rest when you’re tired, the way you are paid and your low wages do.
2 When you are only paid for what you can produce, “wasting time” resting, just doesn’t seem that important.
3 The thought of losing time to “nap” when you’re tired is unheard of. Drivers already lose too many hours waiting at loading docks.

4 The fact that drivers are fighting for more hours to make a decent wage and would want to extend their day another 3 hours doesn’t make sense.
5 Truckers should be fighting for higher wages.
Note: If drivers were paid what they should be, based upon the rate of inflation since the 80’s. they would be making between 80-90cpm.

“More Flexibility or Higher Wages for Truck Drivers?” 

Here is a comment posted on the Rest bill Press Release by owner operator Les Willis:

I supported your efforts to bring about the demise of the ELD and to make it a choice for the American Trucking Professional. But i must break ranks here on this issue, as it effectively extends the duty cycle by 3 hours to a now whopping 17hrs. Totally ineffective and will change nothing.
The status Quo has always been, all inefficiency’s must fall into the drivers lap and all hours need NOT be compensated for services rendered. Mr. Babin, if you truly seek the change the Industry so badly needs, you should focus your efforts towards the F.L.S.A .and the Truck Driver classification as a piece work laborer.
Stop the Wage theft that is running rampant in our Industry. When you fix the non paid hours/ wage theft, everything else takes care of itself. All hours of the Duty Cycle must be compensated/remunerated at a rate comparable to the avg. per mile rate paid at time of dispatch/rate-con.
If paid on an hourly rate all hours over 40 must be paid at 1.5 times the hourly compensatory rate and all hours over 60 must be paid at 2.0 times the hourly compensatory rate. Stop beating around the bush and lets treat the root of the problem. There were many many reasons why the ATA/Carriers had a clear truthful argument against an hourly compensation. Today’s technological advancements negates their once logical arguments of no way to monitor productivity -Les Willis

H.R.5417 – To direct the Secretary of Transportation to issue or revise regulations enhancing flexibility in hours of service requirements for drivers of certain property carrying vehicles, and for other purposes.

Thank you Congressman Babin.

We want to Thank Congressman Babin for his interest and concerns for the truck driver community, there is not a long list of those who do.

Mr. Babin understood the concerns of drivers regarding the ELD mandate and stood up to the plate to delay the mandate for two years. On July 18th, 2017 he  introduced H.R.3282 – ELD Extension Act of 2017     The bill has not passed although it has 75 co-sponsors.

We have no doubt that Congressman Babin is sincere in his attempts to help drivers with their HOS and ELD concerns.  We believe that the truck driver wage issue must be addressed FIRST. If driver wages are brought up to what they should be, then H.R. 5417 could be feasible as the element of desperation to drive more miles would be eliminated.

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ATA lobbies for anti-trucker wage provisions in Omnibus Spending bill

Mar
21,
2018
4

The 1.3 trillion dollar omnibus spending bill, which  funds the government through the end of fiscal 2018, is scheduled to be voted on Friday March 23rd.

Anticipated to be in this bill is the  ATA lobbied anti-trucker wage provision which is meant to distort the intent of the  1994 federal Aviation Authorization Administration Act, which regulated freight, and instead, has turned the meaning into ” regulating driver wages”

Basically what the ATA is stating in the legislative language they have included in many bills, is that States have NO RIGHT to tell motor carriers that their drivers must be paid for all time, including waiting, detention, paperwork and all non driving tasks.

ATA wants Federal Laws- Truckers Say NO! Give states the power

Omnibus Spending bill - anti trucker provisions

And, since the government has yet to pass appropriation bills for any of the 12 major government agencies ( Such as THUD bill) in both the House and Senate, there is every reason to believe that this Federal Preemption “rip off Trucker wage language” will be included also. It is more than likely that this new plan is one large “omnibus” spending bill (in which certain ATA lobbied politicians), will include in this poison preemption language.

Here is what OOIDA said about the Preemption language,
would “unravel mandated fair-pay for drivers and would empower large carriers to further reduce driver wages.”

You’ve probably heard a lot since 2015 about the Federal Preemption of States Labor Laws and still don’t know what exactly it’s all about. That’s no Coincidence either, that’s exactly the way the ATA wants it! They have done a great job disguising anti-trucker wage language as “Meal and Rest Break” provisions.

Using fear mongering as a tactic to confuse drivers, telling them that there are states which are forcing them to stop every few hours, and that they, the wonderful ATA, is looking out for drivers, because ATA is the voice of the trucking industry.  Yes, there are states which allow for meal and rest breaks.  But here’s what the ATA doesn’t tell you is that you can waive these breaks and keep driving, HOWEVER, your company still have to pay you for them.  In addition, these same states do not tolerate drivers waiting for hours and hours without pay at loading docks.  They enforce their state labor laws which state that employers have to pay these drivers for all their time.

There are 2 Days Left to ACT! The “poison pill” Anti-Trucker Preemption Language for #TruckerWages very well could be included in Omnibus bill being voted on this FRIDAY! The ATA has lobbied for the Anti-Trucker Language for years!! The ATA has spent millions to ensure #TRUCKERS will not legally have to receive detention pay or ANY wages other than Miles Driven.

The language and provisions expected in the Omnibus and included in other bills is hidden behind the Smoke Screen of “Meal and Rest Break” but it’s intention is the Federal Preemption of States Rights who pay drivers for ALL TIME working.

If this Preemption Language is included in Omnibus, all those who were in favor of ELD’s because they felt their hours waiting at docks would now be recorded and that they could be paid for them…. GOES OUT the WINDOW. There is NO TIME left drivers. Voting is March 23rd.

Call your Senators and Congressman and tell them NO to the Federal Authority Preemption Language in the OMNIBUS spending package, which over rides states rights to pay drivers for all time. It’s not about “Meal and Rest Breaks” It’s about your time and wages! 202-224-3121

Here is a link to every U.S. senator email and phone #
https://www.senate.gov/senators/contact/senators_cfm.cfm

Here is a link to every U.S.Representative
https://www.house.gov/representatives/

 

 

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Underride Guard Mandate: A Counterargument to Industry Opposition

Mar
5,
2018
4

By: Allen Smith

The STOP Underrides Act is a proposed bill to: “reduce the number of preventable deaths and injuries caused  by underride crashes, to improve motor carrier and passenger motor vehicle safety, and for other purposes.”

Read more “Unknown facts about underride crashes and prevention” 

The bill was originally drafted by Marianne Karth and Lois Durso who lost their children due to underride crashes. Along the way, many others became involved in the drafting for the bill.

At the first underride round table the industry requested a comprehensive approach to the underride issues front, side and rear. From that request a group of people formed the committee: “Knights of the Underride Roundtable” which met in June of 2016 to work on solutions to the issue.

The committee continued with conference calls and emails to craft a “Comprehensive Underride Protection Consensus Recommendation” to the Department of Transportation (DOT). This would later form the basis of the STOP Underrides Bill.

This group included more than just surviving victims of underride crashes. Others included: Professional Truck Drivers, Attorneys, Engineers from both the ATA and the TTMA, National and International Academia experts, the IIHS, safety advocates and accidental  reconstruction engineers. From those meetings came the information for the legislation.

As in any situation involving safety and the trucking industry, opposition to what may be seen as just another “regulation” hitting drivers and the industry is to be expected.

This post is to take a moment to respond to these opposition points, particularly those presented by OOIDA per their Underride Talking Points which focuses on Safety, Cost and Operational Challenges and which are also the same or similar concerns of others within the industry.

Underride Talking Points

LACK OF SAFETY IMPROVEMENTS

  • The National Highway Traffic Safety Administration (NHTSA) has considered numerous proposed rules involving underrides over the last forty years, but consistently concluded a mandate would be impractical.

Response: This is due to the fact that consideration has been based on lack of  adequate data. It is believed that NHTSA underride crashes represent only 4% of reported crashes. At 4%, this would still result in 180 fatalities per year. However, the DOT has determined that underride crashes are seriously under-counted, with the IIHS reporting the figures to be between 27% – 50%. The fatal crashes involving Marianne Karth and Lois Durso, both were not reported as underride crashes, regardless that in reality, they were. Furthermore, there is evidence that underride events are undercounted by the Fatality Analysis Reporting System (FARS), a census of fatal crashes on public roads in the United States. Without proper and undercounted reporting of underride deaths, it would be impossible to establish cost/benefit. Presently there is a computer/virtual study of the potential for a side guard design to prevent underrides being conducted right now by NHTSA. and we are Results will be made public when concluded.

 

  • Research indicating underride guards would reduce crash severity and fatalities is lacking, and current crash statistics are imprecise due to inadequate reporting.

Response: In 2015, 301 of the 1,542 passenger vehicle occupants killed in two-vehicle crashes with a tractor-trailer died when their vehicles struck the side of a tractor-trailer. This compares with the 292 people who died when their passenger vehicles struck the rear of a tractor-trailer. Because of gaps in federal crash data, IIHS researchers can not determine exactly how many of these crashes involve underride, but they estimate that underride occurs in about half of fatal crashes between large trucks and passenger vehicles. A 2012 IIHS study found that strong side underride guards have the
potential to reduce injury risk in about three-fourths of large truck side crashes producing a fatality or serious injury to a passenger vehicle occupant. This proportion increased to almost 90% when restricted to crashes with semi trailers.

  • While most underride crashes do not involve intrusion of the passenger compartment, sudden impact with a high-strength underride guard could fully crush an automobile, causing severe injuries and/or fatalities.

Response: Since it has already been established by DOT that there is a significant underreporting of underride crashes and fatalities, it stands to reason that the reporting of passenger intrusion is also underreported. The guests on our show had three children killed by underride crashes with passenger compartment intrusion (PCI).
For one of the guests’ child, the FARS report inaccurately reported “No Passenger Compartment Intrusion”. For the other accident where 2 children were killed, it was inaccurately reported as “Compartment Intrusion Unknown”.  Both accidents and all 3 killed were not even reported as an underride crash.

If the underride crash data is not reported accurately, it is impossible to obtain accurate stats for PCI. Here is a table from FARS, which even with under-reporting, shows significant passenger intrusion.

  • Installing heavy guards would displace a trailer’s payload. To compensate for the loss of capacity, more trucks would be needed to move the same amount of freight and pressure to increase minimum weight allowances would intensify. More and/or heavier trucks on the road would undoubtedly decrease highway safety.

Response: The same argument used during the ruling process for APU’s. The solution?  APU weight exemption. An exemption for the additional added weight, estimated to be between 500 and 800 pounds, would solve this issue as it did with the APU ( FHWA memo notes: “We determined that (the exemption) does not pre-empt state regulations or compel the states to grant the increased weight tolerance.” ) It would be a logical and simple step allowing for a mandate which we believe is truly focused on safety.

COST IMPLEMENTATION

  • The economic impact of a federal mandate would be massive, especially for small trucking businesses.

Response: The current cost to implement an underride guard mandate is $500 for retrofit ( Stoughton Trailers was able to install one on their new trailers at no added cost or weight penalty to their customers)

Based on a rear retrofit kits for $500 rear and $1560 for sides ( based on OOIDA): roughly a total of $2060 per trailer.
According to the NHTSA, there were 4317 crash fatalities involving large trucks in 2016. The average cost in legal representation for a motor carrier involved in a fatal crash is $3.8 million; in a serious injury crash, the average is $1.2 million. Other cost includes: days out of service, points added, increase of insurance premiums, not to mention driver existing emotional scars. Fatal and non-fatal crashes cost the industry billions of dollars per year in legal fees, where adding underride guards have been proven in studies to reduce both fatalities and serious injuries in such crashes.

  • Side underride guards would add approximately 750 pounds to a vehicle’s overall weight, displacing a significant portion of a trailer’s payload. Losing nearly half a ton of capacity would immediately decrease the earnings of small trucking businesses, who already operate on the slimmest of margins.

Response: Again, weight exemption as was done with the APU legislation as more-so with this as an actual mandate as safety is the legitimate concern.

OPERATIONAL CHALLENGES

  • Little consideration has been given to the impact underride guards would have on the daily operations of truckers. Underride guards create challenges for trucks navigating grade crossings, high curbs, and other road conditions.

Response: Underride guards are placed 16″ above the surface, giving sufficient room for travel conditions, as well as access to inspect the underneath carriage for pre and post trip inspections and/or repairs. In addition, a primary manufacture of guards, Angel Wing, does not cover the rear wheels and other prototypes provide guards equipped with a roll-up device further signifying that engineers have taken all such considerations into account.

  • There is no front underride equipment currently on the market because the concept lacks any practicality. Nobody is certain how this equipment would look, what operational challenges it would present, how it would impact safety and what it would cost.

Response: Front underguards are in fact in use throughout Europe and Australia and have resulted in greatly reduced fatal underride crashes with little financial impact on the industry.  In the Stop Underrides bill, research is to be conducted by NHTSA to determine if a retrofit would even be economically or technically feasible.  According to the bill, Frontguards would the responsibility of the manufacturers of new trucks.

  • Spread axle trailers are commonly used in the trucking industry in order to better distribute weight, providing a safer and legal loading option. Side underride guards could restrict the use of such axle/tandem movements, hindering the operational efficiency and safety of the trailer and the load it’s carrying. Side underrides would also limit a driver’s ability to easily inspect equipment located under the trailer, including critical safety systems.

Response: Guards are designed for each particular trailer with engineers taking into account each individual design. In such trailers, the axle/tandem area would not be covered, allowing the ability for tandem movement and again, with the 16″ height placement, the ability to inspect under the trailer remains accessible.

Marianne and Jerry Karth, along with Lois Durso were our guests on the recent Ask The Trucker “LIVE” program and provided much more details and facts regarding the above concerns.

Listen to the program via: Underride Protection Act of 2017- Truck RearGuards & SideGuards.

For more information on how to become involved in supporting their cause, please visit the Karth’s website at: http://www.annaleahmary.com and the Durso website via: https://stopunderrides.org

Both sites include many photos and videos pertaining to their research focusing on the above opposing talking points as well.

Underride Guards a compilation of helpful resources

Understanding Underride VII: Cost/Benefit Analysis

Understanding Truck Underride

 

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Unknown facts about underride crashes and prevention

Mar
2,
2018
10

In order to address the decades long issue of underride crashes between semi trucks and other motor vehicles, on 12-12-17 U.S. Senators Marco Rubio (R-FL) & Kirsten Gillibrand (D-NY) introduced the Stop Underrides Act, S. 2219 legislation. Shortly after, U.S. Representatives Steve Cohen (D-TN) and Mark DeSaulnier (D-CA) introduced the companion bill in the House, H.R. 4622

With and without underride side guards

An ‘underride crash’ is when a car slides under the body of a large truck, such as a semi-trailer, during an accident, increasing the likelihood of death or serious injury to the passenger vehicle occupants.  When these accidents happen, a car’s safety features are not able to protect passengers because most of the car slides under the trailer, and the truck crashes straight through the windows and into the passengers.   This is referred to as passenger intrusion and most are fatal.

A total of 3,986 people died in large truck crashes in 2016. 17% of these deaths were truck occupants, 66 % were occupants of cars and other passenger vehicles, and 16 % were pedestrians, bicyclists or motorcyclists.
97% of vehicle occupants killed in two-vehicle crashes involving a passenger vehicle and a large truck in 2016 were occupants of the passenger vehicles.

A 1997 Institute study of fatal crashes between large trucks and passenger vehicles estimated that underride occurred in half of these crashes.
Of the underride crashes, 57%  involved the front of the truck, 22% involved the rear and 20% the side.

The Stop Underrides Act bill was originally drafted by, Marianne Karth and Lois Durso. Both Marianne and Lois have lost children due to underride crashes. Marianne & husband Jerry lost their 2 daughters, AnnaLeah and Mary in 2013.  This is their video story.  Lois lost her daughter Roya in 2004. This is Roya’s story. This is her video story.
Neither of these tragic accidents was the fault of the 4-wheeler.

In Memory of Roya 2004 And AnnaLeah & Mary 2013

The bill was originally called the Roya, AnnaLeah and Mary Comprehensive Underride Protection Act of 2017 or the  RAMCUP Act of 2017—now known as STOP Underrides Act.

Few people realize that the 1969 Federal Register recorded that the Department of Transportation intended, after further study, to extend underride protection to the sides of large trucks.

 

Studies for both rear guards and side guards have been evaluated
The protective ability of these devices has already been proven—the Insurance Institute for Highway Safety (IIHS) began evaluating rear underride guards several years ago, and 2017 marked the first year for the independent, nonprofit organization to test side underride guards. Their research has helped to demonstrate how the use of strong underride guards (specifically the AngelWing from Airflow Deflector, Inc.) can prevent a car from going under a truck’s trailer during a side impact while triggering airbag and belt restraint devices to protect vehicle occupants.

IIHS tests show benefits of side underride guards for semitrailers

Truck underride guard evaluations

What kind of burden will underride guard legislation put on the trucking industry? 

On March 3rd at 6PM e.t. we will be having a discussion on AskTheTrucker ‘live” on Blog Talk Radio about underride accidents and how they can be prevented. We’ll also address deep concerns the trucking industry has with this new bill, including the burden and cost.
Underride Protection Act of 2017- Truck RearGuards & SideGuards
Call in number for the show is 347-826-9170

Our guest will be grieving parents turned safety advocates and activists Marianne & Jerry Karth and Lois Durso.

Lois Durso & Marianne Karth

Lois Durso & Marianne Karth

The discussion will include the Stop Underrides Act of 2017 S.2219  and H.R. 4622 and how side and rear underride guards can save hundreds of lives.  Topics will include the cost feasibility, added weight, loading docks, Axle/tandems, distracted drivers and other questions the industry and drivers have.

 

Jerry Karth and Marianne Karth

A main focus will be to discuss solutions which can prevent underride crashes accounting for at least 300+ deaths per year.

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PASSENGER VEHICLE OCCUPANT FATALITIES IN TWO-VEHICLE
CRASHES INVOLVING
PASSENGER VEHICLE AND LARGE TRUCK FATALITY ANALYSIS REPORTING SYSTEM (FARS)

 

IMPORTANT UNDERRIDE LINKS

Underride Guards a compilation of helpful resources

Understanding Underride VII: Cost/Benefit Analysis

Video 1 Benefits of side underride guards for semitrailers

Video 2 Lawmaker first to publicly back truck underride bill written by grieving moms

Video 3 Side Underride Guards save lives-The installation

Video 4- Why don’t tractor trailers have side guards?

*** Understanding Truck Underride

Answers to Frequently Asked Questions about the STOP Underrides Bill

A grieving dad got the attention of the trucking industry & made a difference.

For more info stopunderrides@gmail.com  www.StopUnderRides.org
and AnnaLeah & Mary

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