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Trucking HOS Safety Regulations confused with Department of Labor Wage and Hour Laws

Nov
19,
2019
0

We’ve all heard the continuous discussions regarding Safety, ELD’s, FMCSA Hours-of-Service, Compensable time, Non-Compensable  time, On Duty, Off-Duty, On Duty not Driving, Sleeper Berth, 14 hour Clock, Split Sleeper, More driver Flexibility, and the controversial issue of detention time pay.

Department of Labor

Department of Labor- U.S. Wage and Hour Division

Question:  When we look at all of the above, what do they all have in common?
Answer:Trucker Wages. How truckers are paid could solve, or at the very least, ease, many of the serious and controversial arguments existing today.

One must note: The FMCSA and Hours of Service are SAFETY Regulations NOT Wage & Hour Regulations.  The Department of Labor determines wages.  It is the ambiguity of how a driver logs his/her time that is causing such an uproar of extensive confusion within the trucking community. And the ATA wants it like that.

While the U.S. DOT dictates drivers’ hours of service and duty periods, the U.S. Department of Labor abides by different definitions of on-duty vs. off-duty time, despite using the same phrasing.

Department of Transportation seal

Department of Transportation seal

In order to understand this confusion, we must make it clear.  The professional driver is regulated by the clock ( FMCSA) but paid by the mile. If a driver is ONLY paid by mileage  (piece work wages), any driving obstructions (Detention time, weather, mechanical failures, paperwork, traffic, and even left waiting for another load.) that interferes with that drivers’ regulated clock, limits how much a driver can potentially earn.

So for example, if a drivers waits 1 week for a load he/she supposedly earns nothing because no miles were driven.
Is that legal?  According to the department of labor, No, it is not.  But for decades carriers have been getting away with not paying drivers for scenarios just like this.

A 2018 court decision changed all that as a Judge in Arkansas ruled correctly as he presided over the Pam Transport case.

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.  It was determined that drivers are to be paid for 24 hours less 8 hours sleeping time.

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. Unofficially this has been dubbed the “16 hour rule”

Timothy Brooks wrote in his Oct. 19 memorandum on the PAM case:
According to Judge Brooks,  “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.”
Please read: “Court decisions are turning the tide in favor of Truckers Wages

GOALS;  ATA’s goal is to get as many hours and miles from drivers at the lowest possible cost to the carrier.
The drivers goal is to make as much money as possible, accumulating as many miles as they can within their limits of the 14 hour clock and the 60/70-Hour Limit (drivers may not drive after 60/70 hours on duty in 7/8 consecutive days. A driver may restart a 7/8 consecutive day period after taking 34 or more consecutive hours off duty.)

When you first look at the goals, they may appear similar. Both drivers and Carriers want drivers to get as many miles as possible.  The difference is, the carriers do not care how many hours a driver must “work” in order to achieve their mileage, and frankly, the drivers have been conditioned to believe their time is not valuable, only the miles they produce.
Work means not only “driving”, but also “on duty not driving” The issue comes up with HOW the driver logs, especially when drivers log “sleeper berth” or “off duty” rather than “on duty not driving” in order to save their 70.

A drivers’ life is spent waiting, not just driving. Therefore, “relieved of all duty” rarely is a part of their job.

On July 22nd 2019 the DOL issued an opinion letter on whether the time spent in a truck’s sleeper berth is compensable hours worked under the Fair Labor Standards Act (FLSA).
A lot of controversy was raised over this letter.  The main issue is how the driver logged his time and the term “relieved of all duty”

U.S. Department of Labor Issues New Wage and Hour Opinion Letter

These letters were most likely triggered because of the PAM case and Judge Brooks ruling in favor of drivers, and the DOL opinion was obviously leaning in favor of the carriers.

No doubt, driver wage court cases will be even more controversial now that there are conflicting DOL statements, specifically  The DOL Wage and Hour law vs. the recent DOL opinion.

Truckers should be compensated for ALL their time less 8 hours sleeping time just as Judge Brooks decided, determined by the Department of Labor and the FLSA.
The opinion by Judge Timothy L. Brooks, of the U.S. District Court in the Western District of Arkansas, says that, under the FSLA, drivers’ total compensation, once divided by the total number of hours worked, should equal at least the federal minimum wage of  $7.25 an hour. This is the MINIMUM, not a standard.

Food for Thought

Questions:  How many hours may a truck driver drive?
Answer:  FMCSA limits the number of hours that can be spent driving, as follows:

  • Drivers of property-carrying commercial motor vehicles (CMVs) are limited to 11 hours of driving after having 10 consecutive hours off duty. However, this is not a “daily” limit. Under this provision, a driver could hypothetically drive for 11 hours, take 10 hours off, and drive for another 3 hours before the end of the 24-hour day.

Question:  How are company drivers paid?
As long as drivers are continued to be paid piece work wages, most often being cents per mile, the hours a drivers is regulated and allowed to drive will affect their ability on how much they may earn. They will always be chasing the carrot.

The  DOT and the DOL need to make clear how a drivers logs according to safety vs.how a driver to determine wage compensation.

Whether you are a company driver or an independent owner operator, the way company drivers are paid affects everyone.  Driver wages affect freight rates and freight rates affect o/o’s profits.
All Truckers are dependent on how many miles he/she can drive legally in order to get from Point A to Point B, unless they are paid for all time.

 

© 2019, Allen Smith. All rights reserved.

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By: Allen Smith

Allen Smith is a 37 year veteran who started at an early age in a household goods family moving business. He began driving straight trucks in 1977 and moved to the big rigs in 1982. His experience within the industry includes; owner operator, company driver, operations manager, and owner of a long distance HHG moving business, taking many of the long haul moves himself when needed. Allen Smith, a truck driver advocate who is driven by the desire to help others succeed within an industry where injustice, unrewarded sacrifice, and lack of respect and recognition exists. Allen and his wife Donna are hosts of Truth About Trucking ”Live” on Blog Talk Radio. Other websites include AskTheTrucker, TruckingSocialMedia, NorthAmericanTruckingALerts, TruthAboutTrucking, and many Social Media websites. In 2011 Allen and Donna hosted the first Truck Driver Social Media Convention, designed to create unity and solutions for the trucking industry. This is now being extended through the North American Trucking Alerts network as those within the industry join forces for the betterment of the industry. Allen strongly supports other industry advocates who are also stepping up to the plate to help those who share honesty, guidance and direction. He believes that all those involved in trucking need to be accountable for their part within the industry, including drivers, carriers, brokers, shippers, receivers, etc… The list of supporters and likeminded people grow daily, networking together and sharing thoughts and ideas for the betterment of trucking. He has coined the popular phrase "Raising the standards of the trucking industry"

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