Ask The Trucker

Raising the Standards of the Trucking Industry


Making Health a Priority as an Over the Road Trucker

Apr
25,
2019
1

Making Health a Priority as an Over the Road Trucker

Over the Road Trucker Health

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

Rigs without cigs

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

trucker 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.

Trucker Prioritizing their health goals

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.

 

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Recent crash test demo and GAO study strengthens Underride debate

Apr
24,
2019
0
1969 Federal Register- Underrides

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.

Underride crash test event

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

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.

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.

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

 NO side underride protection: 

All 3 crashes simultaneously

On Saturday April 27th at 6PM et 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 347-826-9170

  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
  9. Are underrides a one size fits all?
  10. What are the conclusions of the NHTSA regarding underrides?
  11. Better training for CDL drivers and 4 wheelers

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

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FMCSA controversy and the flip flop dilemma

Apr
4,
2019
0

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. 

 

 

 

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Safety Tips for Driving Alongside Tractor-Trailers

Mar
30,
2019
0

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.

 

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

Feb
12,
2019
1

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.

meal and Rest Break

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
Only 2 Days Left to Comment on ATA Petition against truckers

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.

California-Sues-FMCSA

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
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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?

 

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Court decisions are turning the tide in favor of Truckers Wages

Jan
31,
2019
0

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:

Listen to the AskTheTrucker Live Radio show replay to better understand the difference between the FMCSA 14 hour rule and the DOL 16 hour Wage Law

 

 

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U.S. Supreme Court Decides Transportation Independent Contractors Exempt from forced arbitration under Federal Arbitration Act

Jan
18,
2019
0

A huge win in the US Supreme Court for Professional truckers, specifically Independent Contractors, who will no longer be forced into arbitration under the Federal Arbitration Act.  Independent Contractors exempt from Federal Arbitration Act
The case is New Prime Inc. v. Dominic Oliveira, case number 17-340, in the U.S. Supreme Court

NEW PRIME INC. v. OLIVEIRA United States Supreme Court decides ALL transportation workers are exempt from forced arbitration in Federal Arbitration Act ( FAA)

It has been accepted among the trucking industry that independent contractors should be forced into arbitration rather than proceed through the courts when discrepancies occur between parties. Carriers have based this on the 1925 Federal Arbitration Act ( FAA).

The  trucking industry has exerted that an independent contractor is NOT an employee and thus should not be exempt from FAA and should be forced into arbitration.

The U.S. Supreme Court ruled January 15th that trucking company New Prime Inc. cannot compel arbitration in a class action which alleged it failed to pay independent contractor truck-driver apprentices the proper minimum wage. This recent decision of FAA exemptions by SCOTUS has now set precedent for Independent Contractors and they too will be included in FAA arbitration exemption.

The US Supreme Court said Congress meant to exempt ALL transportation workers from the Federal Arbitration Act.  In other words, the exemption does not mean just employees, and includes independent contractors. Thus independent contractors now have the right to go though the courts and not forced into arbitration, no matter how they are classified or what the arbitration wording is in their contracts.

The Federal Arbitration Act exemption when read, appears to be clear as day and says the FAA  excludes transportation workers from being forced into arbitration.
So how then have so many leased on trucking Independent Contractors been forced into arbitration?
Simply put, there has been a discrepancy in the interpretation of what the FAA actually infers.

Here is what the exemption says
Section 1 of the FAA states that the Act does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 

Looks pretty clear to me, and it did to U.S. Supreme Court Justice Neil Gorsuch also.

How it all started: DOMINIC OLIVEIRA v. NEW PRIME INC

In March 2015, Dominic filed a lawsuit against Prime on behalf of himself and thousands of current and former Prime drivers who have been misclassified as independent contractors, therefore were not offered the protections of the Fair Labor Standards Act (FLSA) 29 U.S.C. §§ 201-219, as well as the Missouri minimum-wage statute, by failing to pay its truck drivers minimum wage..

Oliveira v. New Prime, Inc.
United States Court of Appeals, First Circuit.
DOMINIC OLIVEIRA, on his behalf and on behalf of all others similarly situated, Plaintiff, Appellee, v. NEW PRIME, INC., Defendant, Appellant.
No. 15-2364    Decided: May 12, 2017

Oliveira and his legal team, argued he was misclassified as an independent contractor.
US Department of Labor- Employee Misclassified as Independent

New Prime then filed a motion to compel arbitration under Section 4 of the Federal Arbitration Act (“FAA”). In response, Oliveira argued that New Prime cannot compel arbitration because Section 1 of the FAA excludes “contracts of employment of . . . seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” commonly known as the transportation workers exclusion.

The Oliveira legal team won their case against New Prime in the U.S. 1st Circuit Court of Appeals, claiming that he  is exempt from his arbitration clause and that his initial misclassification lawsuit should be taken up by the courts. New Prime argued otherwise, saying his contract stipulates that his original lawsuit against the company, is bound to arbitration. Prime then appealed to the U.S. Supreme Court

In October 2018, Public Justice’s Jennifer Bennett argued on Oliveira’s behalf before the U.S. Supreme Court. You can listen to her oral argument and read transcripts here.

Jennifer Bennett

Jennifer Bennett of Public Justice representing Dominic Oliveira case in Supreme Court Hearing

Public Justice Secures Historic Workers’ Rights Victory at Supreme Court

In January 2019, the Supreme Court unanimously ruled for Dominic Oliveira, applying the law as it was written: as exempting all transportation workers. It is a landmark win for workers’ rights and a blow against workplace forced arbitration.

Jennifer Bennett

Public Justice Secures Historic Workers’ Rights Victory at Supreme Court

Jennifer Bennett, said Oliveira’s original lawsuit regarding his classification as a contractor can now proceed in court.

 “Today’s ruling is a huge step forward for truck drivers. This decision will enable so many drivers like Dominic who are not being paid what the law requires to go to court and fight for their rights,” Jennifer Bennett- Public Justice

REVIEW: Prime attempted to force this lawsuit out of court and into arbitration. Like many trucking companies nowadays, the contract Prime requires that many of its drivers sign to work for the company contains an arbitration clause, which states that drivers may not sue the company in court. The company argued that the Federal Arbitration Act requires courts to enforce this arbitration clause and kick Dominic (and the other drivers whose wages he’s fighting for) out of court. But, by its terms, the Federal Arbitration Act does not apply to the “contracts of employment” of transportation workers. And truck drivers, of course, are transportation workers. The company argues that it can get around this exception because it labels its drivers “independent contractors.” But the history of the Act—and the ordinary meaning of its terms at the time it was passed—makes clear that it exempts all transportation workers, regardless of how their company labels them.

In May 2017, the First Circuit Court of Appeals, the first appellate court to consider the issue, agreed. Prime then appealed to the U.S. Supreme Court and lost in the unanimous decision.

Listen to the replay as Dominic  goes through the timeline explaining his experience, from driver trainee, to leased independent contractor, back to company driver, and finally to the court

Employee/Independent Contractor- Misclassification & the Federal Arbitration Act

Dominic Oliveira

In March 2015, Dominic Oliveira filed a lawsuit against Prime on behalf of himself and thousands of current and former Prime drivers who have been misclassified as independent contractors, therefore were not offered the protections of the Fair Labor Standards Act, including minimum wage.

During the show, Trucker Dominic Oliveira explains how he brought a class action against Prime in March of 2015, alleging that it violated the FLSA and the state’s minimum wage statute. New Prime made their case against Dominic stating that he should be forced into arbitration and not with the courts. Although Dominic won his case in May 2017 with the First Circuit Court of Appeals, (the first appellate court to consider the issue),  Prime then appealed to the U.S. Supreme Court. Dominic’s attorney Jennifer Bennett, an Attorney at Public Justice,.  represented Dominic as she made her oral argument to the Supreme Court.   Listen to Dominic and attorney Jennifer Bennett

U.S. Supreme Court makes their Decision

The US Supreme Court justices decision affirmed the First Circuit ruling that has now allowed for truck driver Dominic Oliveira’s Fair Labor Standards Act suit against New Prime to proceed in court rather than forced arbitration, after determining that an exemption in the Federal Arbitration Act for interstate transportation workers applies to all such workers whether they’re classified as employees or independent contractors.

According to Section 1 of the FAA exempts from arbitration “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,


Justice Neil Gorsuch wrote for the court “When Congress enacted the Arbitration Act in 1925, the term ‘contracts of employment’ referred to agreements to perform work,”. “No less than those who came before him, Mr. Oliveira is entitled to the benefit of that same understanding today. Accordingly, his agreement with New Prime falls within [Section] 1’s exception, the court of appeals was correct that it lacked authority under the act to order arbitration, and the judgment is affirmed.”

“The parties’ private agreement may be crystal clear and require arbitration of every question under the sun, but that does not necessarily mean the act authorizes a court to stay litigation and send the parties to an arbitral forum,” Gorsuch wrote in his 20-page opinion.

The Supreme Court opinion was unanimous, except for Justice Brett Kavanaugh, who was recused from the case as he had not yet been confirmed during the hearing. Justice Ruth Bader Ginsburg filed a separate concurring opinion.

The ruling, according to Gorsuch, means courts will be able to determine whether the “contracts of employment” exclusion applies before arbitration begins.

Prior to the commencement of the Oliveira lawsuit, many courts had interpreted Section 1’s exemption to apply only to employees, not to independent contractors (whose arbitration agreements were enforced).  This has now changed.

 Trucking Industry Background on forced arbitration through FAA

It has been acceptable knowledge that carriers have been taking advantage of professional drivers by convincing them to be independent contractors, a term intertwined with owner operator.  Note, a true sense of the meaning of Independent usually refers to one who has his/her own authority.
A common practice is for the driver, many times a new inexperienced driver, is to become a leased on owner operator to the carrier. They run under the carrier authority.
These drivers end up signing a contract with the carrier which includes an arbitration clause, which basically states that under the 1925 Federal Arbitration Act, these drivers are bound to arbitration rather than pursuing the court system during disputes of unfair carrier wrongful behavior and discrepancies.

The hook to convince drivers into working as an “independent” is that they will earn more money, have more freedom, own their own truck, and be their own boss.  What they don’t emphasize is that they will be pay for all expenses for the truck, their truck payment, lose all employee rights and benefits, including protections under the Fair Labor Standards Act (FLSA), and yet these “independents” still remain under the control of the carrier.  They are commonly considered glorified employees without rights or benefits.

A most detrimental aspect has been the misclassification of these drivers as “independent contractors”.  By labeling drivers “independents”, carriers have secured the drivers inability to go through the courts when disputes arise, and drivers have been in the past forced to go through 3rd party arbitration to resolve their differences.  Many times  arbitration has gone in favor of the carrier.

Federal Arbitration Act  Title 9, US Code, Section 1 14, was first enacted February 12, 1925
FAA Summary

Arbitration is a method of legal dispute resolution in which a neutral, private third party, rather than a judge or jury, renders a decision on a particular matter.

Under a growing number of consumer and employment agreements, companies have come to require arbitration to resolve disputes.

While arbitration is often viewed as  an expeditious and economical alternative to  litigation, consumer advocates and others contend that mandatory arbitration agreements create one-sided arrangements that deny consumers and employees advantages afforded by a judicial proceeding.

The Federal Arbitration Act (FAA) was enacted in 1925 to ensure the validity and enforcement of arbitration agreements in any “maritime transaction or… contract evidencing a transaction involving commerce[.]”

The U.S. Supreme Court (Court) has recognized the FAA as evidencing “a national policy favoring arbitration.”

The application of the FAA, however, particularly in light of various state law requirements and the use of different types of arbitration agreements, has raised numerous legal questions and been the subject of several cases before the Court.

Trucker Dominic Oliveira and attorney Jennifer Bennett will be back on AskTheTrucker Live on Thursday 1-24-19 at 6PM to review the case and discuss next steps now that the Supreme court has declared ALL transportation workers are exempt from the Federal Arbitration Act.

Join us on AskTheTrucker ‘Live’ 1-24-19 6PM for Part 2
Big Supreme Court win for Independent Truckers-Ends Carrier forced Arbitration

A special message from Allen Smith- Carrier Truck Leasing-   Ive written many articles, created truck lease surveys, and had radio show discussing the dangers of taking on a carrier lease purchase agreement.  These agreements are designed to fail and to make the trucking company profit, plain and simple. For over 10 years we have recommended only one Company to purchase or Lease a Truck from, Lone Mountain Truck.  They are honest. professional, and reliable, period.  As a truck driver advocate fighting for truckers, I would not say it if it wasn’t true.

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Lone Mountain Truck

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On and off the Road Again

Dec
14,
2018
0

A popular phrase of the 1970s was “Keep on Trucking.” Like many catchphrases, this one did not account for all the exceptions to the rule.

While large semis traveling down America’s highways are a vivid symbol of robust commerce and free markets, those freight-bearing eighteen-wheelers are also found stranded at shipping/receiving docks, on roadsides or at truck stops. Through no fault of the drivers, they are delayed by industrial misjudgments, poor vehicular maintenance, and inclement weather. Given all the factors that can slow shipments down, the fact that so many arrive at their destinations on time and intact is nearly miraculous.

When the Truck Arrives, But the Order Is Not Ready
The financial website Investopedia defines a bottleneck as follows: “A bottleneck is a point of congestion in a production system (such as an assembly line or a computer network) that occurs when workloads arrive too quickly for the production process to handle.”

When manufacturers or distributors suffer factory bottlenecks in their operating systems, order fulfillment is postponed until the glitch is identified and remedied. Unless they decide to invest in state-of-the-art CMMS like Leading2Lean , such hold ups are likely to occur again and again, causing chronic delays. The minutes and hours tick by as the truck drivers await their loads. In an era where more truckers are in demand, those on the road can ill afford to be detained by production malfunctions, especially if these delays are common.

When the Trailer Is Full But the Tractor is Failing

Unless the driver is an owner-operator, others must be trusted to maintain the conveyance in good working order. Fleet managers expend millions of dollars annually to repair hobbled vehicles. The many afflictions suffered by highway freighters include:

  • Dead batteries
  • Under-inflated tires
  • Worn-out breaks
  • Electrical malfunctions

As is evident, these disabling occurrences are preventable. The Federal Motor Carrier Safety Administration of the U.S. Department of Transportation requires annual passage on each maintenance component of the commercial vehicle.  Inspection, Repair, and Maintenance for Motor Carriers of Passengers – Part 396

Drivers are also advised to keep a copy of this Safety Audit Resource Guide checklist

When Everything Is Working But Nature Intervenes

Trucking delays, unfortunately, are not always avoided even in the best of circumstances. Weather does not consult shipping schedules or manifests. In fact, bad weather  will interrupt shipments with dangerous winds, power failures, poor visibility, and icy or unpassable roads. Depending on the swiftness of public safety responses, freight can remain at a distance from its intended destination for days. For instance, in the wake of the 2017 hurricanes Irma and Harvey, truck routes were re-routed while fuel prices rose. Flooding was one major cause for the revisions.

In addition, shipments have been halted because of downed power lines, mudslides and black ice. Safety should always take priority over timeliness. Reliable weather forecasting and good judgment by traffic managers should minimize truck drivers’ exposure to crippling weather patterns.

Other indeterminate causes can slow down a delivery independent of the driver’s skill and integrity. Miscommunication between shipper and receiver; serious traffic accidents; and unexpected roadblocks can each postpone arrival times for truck deliveries.

Drivers do well to master the variables they can control. However, at the end of the day, other determinants out of their sphere of influence always threaten to interfere with the route. Always be prepared.

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Must-Have Smartphone Apps for Truckers

Dec
14,
2018
2

Whether we like it or not, smartphones and even tablet computers have become essential parts of the road life for truckers. These mobile devices are a great way to keep up with friends and family, stay abreast of regulation laws, monitor inclement weather, and be alerted to traffic jams up ahead. With this in mind, it might be worth it to look at iPhone cases by BodyGuardz before heading back out on the road. That way you’re less likely to find yourself missing out on the benefits of mobile tech in the middle of your over-the-road route.

Here are some of the best smartphone apps for truckers that will improve their quality
of life on the road by providing them with access to information:

NOAA Radar

NOAA Radar is the ultimate weather app for truckers. This is better than
your smartphone’s built-in weather app as it tracks weather and provides
real-time radar and future weather patterns. The weather data is pulled
from the U.S. government’s weather monitoring systems.

It’s one of the most accurate and up-to-date weather apps you’ll ever use. It also includes features such as geographic maps, seven-day forecasts, and information on snow depth. Truckers can get push notifications to alert them of inclement weather.

GasBuddy

Always need fuel? Then keep GasBuddy on your smartphone. When you’re
burning through thousands of gallons of diesel in a given week, the smallest amount of fuel can add up. GasBuddy can help you save money on fuel. It provides you with up-to-date prices for thousands of station across the U.S. and Canada. GasBuddy will become your accountant’s favorite since you’ll always have access to cheap fuel. With this app, truckers can get access to the cheapest gas at nearby gas stations. It allows you to sort by local stations, fuel prices, view gas stations, and see gas stations features.

Waze

Waze is better than Apple or Google’s standard maps applications. This app
has real-time updates on traffic conditions, inclement weather, road
repairs, and car accidents. It also provides you with alternate routes when
the original route has been impacted.

Waze is operated by drivers around the world who help other drivers find
the best routes and improve their driving experience. This community-based
navigation app has become a social interaction tool for drivers of all
kinds. The Waze app is available for Android, iOS, and Windows mobile phones.

Skype

Skype allows you to stay in touch with family and loved ones. With Skype, you can connect to any user around the world. It makes it easier for you to stay connected while you’re on the road. You can even video conference fellow drivers, dispatchers, and family members.

Skype allows you to call landlines and cell phones at low rates. With this app, truckers can get an online number so they make calls on the go. It works like a phone in which you can leave messages, receive and send voicemail messages, and send files and text messages. It’s the ultimate communication application for your work and family life.

Trucker Tools

This app is free for truckers on iOS or Android phones. This app is similar to Groupon, in which drivers can find coupons from over 5,0000 truck stops across the U.S. They’ll find the cheapest fuel prices in local areas. This app also helps you find trucker stops and find turn-by-turn directions to each of the stops.

KeepTruckin

This mobile application is ideal for all truckers. It allows you to stay on top of the government regulations for driving times and scheduling work. KeepTruckin is approved by the Department of Transportation. It allows you to track your miles every time you’re driving.

You can log your mileage safely and accurately each time. This app lets you know when it’s time for a lunch break or a rest stop. While KeepTruckin is free, you should take advantage of the monthly subscription for your electronic logging device. For an additional $20 per month, you can receive hardware support for your device.

Numerous smartphone apps can handle all of your trucking needs. This list only represents some of the dozens of apps for truckers  available for download. With a few of these apps, your life will be easier.

Just remember one thing: never use the phone while driving! Practice safety whenever you’re on the road.





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Truckers Christmas Group reaches out to families going through difficult times

Dec
10,
2018
0

TRUCKERS HELPING TRUCKING FAMILIES IN NEED AT CHRISTMAS. TCG is a 501(c)(3) registered charity

The Truckers Christmas Group (TCGO) began in 2008 by Truckers who wanted to help Truckers and their families that have fallen on bad times, have a better Christmas.  Christmas Group has raised $82,000  and helped 138 trucking families in need  over the last 10 years.  This year their goal is $20,000 and so far as of December 10th 2018 they hve raised 4,237.00.   You can donate to this worthy cause at the TCGO Donation Page.

There are many ways to be a part of Helping Families via TCG

1 Nominate a Family in Need by December 16th !! 
Do you know a trucking family in need?  Nominate them today, time is running out. NOMINATIONS FOR THE 2018 SEASON ARE NOW OPEN AND WILL CLOSE AT 23:59 ON DECEMBER 16TH 2017
SUCCESSFUL NOMINATION WILL BE NOTIFIED ON OR ABOUT DECEMBER 21ST 2018.

Nominations must be submitted using this TCGO FORM only!

Qualifying Nominations include the following.
1) They must have been employed as a trucker within the last calendar year and have the intention of getting back into the trucking industry.
2) If off due to a disqualifying medical disability but have driven in the previous three years
3) If deceased must have been driving and passed away after Christmas of the previous year.

A complete list of Nomination Qualifications can be found here

JOIN US FRIDAY DECEMBER 14th at 6PM eastern as we will discuss some of the details during the show on AskTheTrucker Live
Our guest will be Idella Hansen, Mark Abraham, and possibly Greg Manchester ( Santa Clause)

2- Donate to the Truckers Christmas Group with a small donation. Think of it as just one more  Christmas Gift  on your list and give and receive a blessing.!

3- Purchase gifts from the TCG Store

4- Sponsor a Family

5Join the Truckers Christmas Group on Facebook and Share the notifications
Truckers Christmas Group Fan Page ( Like it!)

Truckers Christmas Group Members Page  

Truckers Christmas Group (TCGO) helps Truckers and their families that have fallen on bad times and they need our help.Please be a part of this charity drive

 

 

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