The Outcome of the Current System As Implemented
DOES NOT PROMOTE SAFETY!
The FMSCR’s and Wage & Hours Regulations work fairly well together BUT Carries and the Employee OTR Drivers are misled as they don’t understand the scope and intent of these two separate sets of regulations.
Statements made in these regs are specific to the context in which they are to be used.
Terms and phrases in the Safety Regs may be the same as used in Wage & Hour Regs but the meaning is completely different as both sets of regs have different outcomes in mind.
The resulting Overlap of these two sets of regs are difficult to separate.
The end result is carriers unknowingly find themselves in a court of law as Drivers seek legal restitution from being illegally paid.
Most commonly, these law suits are settled out of court and Nobody learns the proper payment requirements for Employee OTR Drivers!
The cycle continues!
Monkey See Monkey Do occurs on both sides!
Piecemeal wages are intended to incentivize the employee to produce as Much as possible as Fast as possible.
- Employee OTR Drivers operating within this type of system are always assessing how to produce More in Less time.
- They are constantly evaluating what Risk they may take to do so.
- This system Incentivizes going as Far as possible as Fast as possible!
As it stands, the ELD is a WHIP that has Drivers Chasing the proverbial Carrot!
Until this changes, achieving safe and responsible behavior on behalf of All Interstate Drivers is nothing more than a “Shot In The Dark”.
- The ELD offers no incentive to operate Safely.
- ELD’s get in the way of Legally Earning Money!
- The ELD regulates Time without consideration or attachment to the value of time regulated!
- The ELD is only part of the solution if Safety on the roadways is the goal to be achieved!
Can SAFTY Be Had Under These Conditions???
Conditions To Be Examined;
If a Driver can not Afford to operate in compliance there are two options available to the Driver.
- To break the law cheating the ELD.
- To operate unsafely, possibly breaking the law in doing so.
Drivers Must Always set themselves up in hopes of achieving a positive outcome, the ability to Produce More to Earn More!
Ownership of Drivers Time;
Title 49 § 392.1 Scope of the rules in this part.
Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.
Title 49 § 392.2 Applicable operating rules.
Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated.
However, if a regulation of the Federal Highway Administration imposes a higher standard of care than that law, ordinance or regulation, the Federal Highway Administration regulation must be complied with.
FOH 31c08 (a)
29 CFR 785.15 -.17 are applicable to layover or on-call time of truck drivers and helpers.
It makes no difference whether such employees are at home or at some other location.
- Employee OTR Drivers are engaged in performance of the job duties as prescribed in the FMCSR’s as well as the requirements of the load, Per the Direction of the Carrier.
- Employee OTR Drivers are “Controlled or Required” by the employer the entire time they are on a tour of duty per their contract of employment.
Deadlines are established per conditions of the load transported.
Regular, daily or weekly, schedules are non-existent for most Employee OTR Drivers.
These Drivers can not plan ahead as there is not a schedule in place to plan off of.
- The estimated load and offload times determine time frames to operate within.
- It is common for the Employee OTR Driver to be dispatched for early arrival of load / offload appointments.
- It is common for the Employee OTR Driver to arrive in advance so as to fulfill the required 10hr non working period before loading or offloading appointments. This tactic is also used to establish a position in line for “first come, first served” facilities.
- Most of these Drivers Don’t Know Exactly when loading will commence or offloading will cease!
- Loading / offloading appointments are commonly not honored or adhered to.
- It is possible to fulfill the requirements of the 10hr non-working period and or the required 30 min non-working period while Waiting within the assigned loading / offloading time frame.
“The revised guidance also emphasizes that periods of time during which the driver is free to stop working, and engage in activities of his/her choosing, may be recorded as off-duty time, irrespective of whether the driver has the means or opportunity to leave a particular facility or location.
When applicable, the Driver is “Engaged to Wait” as Waiting is a job duty that must be preformed. Wait Time is compensable time that can not be offset by a non-compensable activity.
Title 49 §395.2 Definitions.
(4) All time in or on a commercial motor vehicle, other than:
(i) Time spent resting in or on a parked vehicle,
a Driver may legally log “Off Duty” while Waiting to load / offload.
- Drivers operate within parameters per the conditions of the load!
They log “Off Duty” as permitted to conserve Production Log Book Hours in order to produce pieces which is clearly a benefit to the employer.
- The Employee OTR Drivers, averaged, hourly rate declines as opportunity to produce pieces diminishes, per regulated HOS, as these Drivers are required, by the employer, to abide by.
- Time spent Waiting to load or offload is clearly time that the Driver is “Engaged To Wait”.
Title 29 § 785.16 Off duty.
(b) Truck drivers; specific examples.
A truck driver who has to wait at or near the job site for goods to be loaded is working during the loading period.
If the driver reaches his destination and while awaiting the return trip is required to take care of his employer’s property, he is also working while waiting.
In both cases the employee is engaged to wait.
Waiting is an integral part of the job.
- Time spent Waiting for dispatch between loads is clearly time that the Driver is “Engaged To Wait”, compensable time.
Title 29 § 785.15 On duty.
A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity.
The conditions of Employee OTR Drivers compensation is unknown except by a few.
- Overlap of regulations creates many, misunderstood, loopholes.
- Carriers and Drivers do not know that Employee OTR Drivers are to paid the equivalent of or in excess of the applicable minimum wage for All Compensable Hours.
- State minimum wage standards are not considered as Drivers are covered by Federal Safety Regulations???
Confusion over the Applicable Wage Regulations to be applied is due to the argument of “What Wage Regulations Apply to Interstate Drivers”.
- Location of the home office of the carrier.
- Domiciled residence of the Employee OTR Driver.
- State Law over Federal Law.
- Federal Law over State Law.
- The FMCSR’s as the guideline.
- Wage & Hour as the guideline.
- Overlap of both the FMCSR’s and Wage & Hour???
Title 29 § 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.”
“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.”
The workweek ordinarily includes “all the time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place”.
In a poll I once took, Drivers thought that $150 to $200 per day was a fair wage for entry level Drivers. They also thought that $20 an hour was a decent and fair wage to be paid Entry Level Drivers.
None of them knew that they, themselves, had agreed to work for a minimum of $7.25hr at $116 per day, when their wages are averaged, with the possibility that they may earn more than $7.25hr.
Today, due to the Overtime (OT) exemption, FLSA 213 (b) (1), the Employee OTR Driver has, unknowingly, agreed to work for no less than the applicable minimum wage with the possibility that he will earn above the applicable minimum wage without OT pay Per Their Piece Rate.
The Employee OTR Driver does not know that their piecemeal must be equal to or greater than the agreed upon hourly rate for all Compensable Hours.
Compensable Hours and the Hourly Rate are never discussed at the time of employment so by default the Employee OTR Driver has agreed to the applicable minimum hourly rate per the piece rate.
When Drivers seek to have Detention Pay or OT Pay it is based on their presumption that they are currently ONLY working a 70hr week.
They believe that they are earning $15 to $30 an hour “Driving” only.
.30cpm X 50mph = $15hr.
.60cpm X 50mph = $30hr.
They believe that they are “Working for Free” while being detained.
They are expecting to gain $675 to $1,350 a week in OT that They Will NEVER SEE!!!
Wage & Hour Regs came after the FLSA and many, if not most, of these regs are based on Case Law.
§ 785.22 in combination with § 785.41 effectively exempts Drivers from up to 8hrs pay per 24hr Duty Cycle if bona fide regularly scheduled sleeping periods are made available.
There are stipulations that if met, require entire 8hr period to be compensable.
We should have had the OT exemption removed at the time these regulations, possibly, eliminated 8 compensable hours pay!
FOH 31b12 (c) Duty of 24 hours or more.
If an employee is required to be on duty 24 hours or more, the employer may exclude a Bona Fide, Regularly Scheduled Sleeping Period of 8 hours or less from hours worked if certain requirements are met.
These three requirements are that the employee be provided adequate sleeping facilities, the employee can usually enjoy an uninterrupted night’s sleep, and the employer and employee have an expressed or implied agreement to exclude the sleep time.
The Number of Legal, Production, Log Book Hours in 7 Days;
The absolute maximum amount of Production Log Book Hours, lines 3 and 4 combined, that may be logged in 7 day payroll period comes out at 78.75 hours due to the 34hr reset.
Minimum Value of the Production Log Book Hour Using the Maximum Available Production Log Book Hours.
$812 / 78.75hrs = $10.31hr.
$1,073 / 78.75hrs = $13.63hr.
Paid for All Time at the FMW;
$1,218 / 78.75hrs = $15.47hr.
1. The applicable minimum wage is $15.00 an hour in NY and soon to be in Ca.
2. Eliminating the Required 30min non-working period from the HOS increases the maximum amount of compensable Log Book Hours to 82.25hrs in a 7 day payroll period.
Properties of the Problem;
- An Employee OTR Driver is generally told that for every Week Worked one day off will be earned. This is very deceiving!!!
- The 16hr rule has compensable time per day at 16hrs minus Bona Fide meal breaks.
- The 16hr rule is derived from the combination of both Title 29 Section § 785.22 and § 785.41 that exempts up to 8hrs pay from the 24hr Duty Cycle.
Title 29 § 785.22 Duty of 24 hours or more.
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.
(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.
Title 29 § 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.
- A day is a 24hr period such as 12:00 PM Wednesday through 12:00 PM Thursday.
- A weekly payroll could be from 12:00 PM Wednesday through 12:00 PM the following Wednesday. The payroll period covers a 168 hour period.
- Non-compensable time is when the employee may “use his time effectively for his own purpose”.
- If the employees time is “controlled or required” by the employer it is compensable time.
- The employee “May engage in activities of his own choosing” while being logged “Off Duty” as they are “Engaged to Wait”.
- “Off Duty”, a RODS, can imply that the Driver was either “Waiting to Be Engaged”, non-compensable time, OR the Driver was “Engaged to Wait”, compensable time.
- The log book nor the ELD legally logs Compensable Time per standards set in the FLSA.
- Personal Conveyance (PC) permits the Driver to move a laden CMV per the direction of law enforcement or if the Drivers 14hr clock has expired and they are required to relocate from a shipper / receiver to Safe Parking.
- PC is movement of the CMV while being logged “Off Duty”.
- Time moving the CMV, under circumstances as noted in #11, is Compensable Time.
- There are many other examples of compensable time that is logged “Off Duty”.
- Due to Overlap of Regulation, compensable hours within a 24hr period may exceed the 16hr hour rule and may not be considered for compensation.
- Two hours of the mandated 10hr Non-Working period are paid per the 16hr rule. The remaining 8hrs can not be used by the Driver to Work to Increase their income as the Carrier Requires Them To Not Work!
- Per the Control of the employer, the average employee who is Required to Not Work during compensable periods is compensated for doing as directed.
Employee OTR Drivers are Required “Not To Work” per the carrier for the Benefit of the carrier, the Safety of the public and the Security of those invested in the goods and materials being transported to include consumers, industry, industry employees as well as all sectors of the economy.
- We are a large portion of the Only employees working a 24hr duty cycle that can not use non-compensable time to earn a living!
PAY Issues to be Addressed:
The OT Model;
Implementing OT would make the current hourly value known and understood!
That would be a Huge Benefit as Employee OTR Drivers Maybe Then Could Possibly Be Able To Negotiate a Higher Hourly Rate???
- Paying OT on the FMW does not meet or exceed seven of the States Base Minimum Wage.
- Paying OT does not address the misunderstood and unrecognized Overlap of Safety Regs and Wage & Hour Regs.
- Paying OT per the piece rate is allowable in the FLSA, Section 207, but it would only establish the weekly minimum rate, per Federal, at $1,073 per current conditions.
- The Interstate Carriers still have a HUGE burden to legally pay OT per the individual States applicable minimum wage for compensable time as would be required.
- There will be Drivers who are due wages that are concealed by Overlap of Regulation.
- Drivers will not be paid wages owed out of ignorance and or their inability to seek restitution because of ignorance of the employer.
Drivers pay with OT;
Seven 16hr days = 112 compensable hours.
40hrs flat at $7.25hr = $290.
72hrs OT at $10.875 = $783.
Total per Federal = $1,073.
Depending on States traveled in, the Driver may not have been paid the applicable minimum wage.
Todays weekly minimum per Federal is $812.
Add OT and it becomes $1,073.
This is a gain of $261 a week for Some Drivers.
Per Current Regs Using the FMW It Looks Like This;
- 112 compensable hours X $7.25 = $812 for a 168hr payroll period.
- $812 / milage rate establishes a quota of paid miles that has to be met before the Drivers, unrecognized, hourly rate increases per the milage pay for miles dispatched beyond the quota.
- All detention time may have been paid as well as all other job duties including 2hrs of the Required 10hr non-working period and the Required 30min non-working period.
- All Rest Breaks have been paid for.
50cpm X 2,000 miles = $1,000.
$1,000 / 112 compensable hours = $8.93 an hour.
Depending on the compensable hours spent in each State traveled, the Driver may not have been legally paid the applicable minimum wage.
In 2001 the ATA published a report called “Then and Now” that compared many economical factors of trucking including both LTL and Truckload Drivers wages. It’s interesting to note that in 1980, LTL Drivers earned $2,955 more than Truckload Drivers. In 2000 the difference in annual pay had grown to $31,542.
Using the 16hr rule, as was in place at the time, for a 301 day work year, 43 weeks, we can calculate an approximate hourly rate for comparison.
1980 Truckload Drivers.
$25,287 / 43weeks / 112compensable hours = $5.25hr @ $2.15 above FMW.
The FMW was $3.10 an hour.
2000 Truckload Drivers.
$41,446 / 43weeks / 112compensable hours = $8.61hr @ $3.46 above FMW.
The FMW was $5.15 an hour.
I will continue by using stats from the BOLS category “Heavy and Tractor Trailer Drivers” Median annual wage earned.
The FMW was $7.25hr for the following years.
$40,400 / 43weeks / 112compensable hours = $8.39hr @ $1.14 above FMW.
$39,520 / 43weeks / 112compensable hours = $8.21hr @ $0.87 above FMW.
$40,260 / 43weeks / 112compensable hours = $8.36hr @ $1.11 above FMW.
$41,340 / 43weeks / 112compensable hours = $8.58hr @ $1.33 above FMW.
$42,480 / 43weeks / 112compensable hours = $8.82hr @ $1.57 above FMW.
$43,680 / 43weeks / 112compensable hours = $9.07hr @ $1.82 above FMW.
1. Bona Fide meal breaks are non-compensable and have been left out of these calculations.
2. As is well known, Drivers are seeking to have the mandatory 30min non-working period removed from the HOS.
Do Drivers actually take 30min Bona Fide meal breaks?
The Rental and Leasing Model;
Now I’m going to compare the current 16hr rule at the FMW of $7.25hr to an established method as used in rental and leasing agreements.
I rent a tractor and have exclusive use for 7 days (168hrs) at a cost of $1,218.
Per the rental agreement, I can only put 112 engine hours on the tractor in 7 days. That averages out to 16hrs a day.
I am paying $1,218 for 168hrs of Exclusive Use of the tractor BUT I have only bought 112 working hours of the tractor.
$1,218 = 168hrs and = 112hrs.
$1,218 / 168hrs = $7.25hr for Exclusive Use of the tractor.
$1,218 / 112 hours = $10.875hr, the value of the working hour of the tractor.
I return the tractor after 7 days of exclusive use with 122 engine hrs on it, 10hrs more than purchased.
I owe an additional $108.75 for the extra 10 engine hours of work the tractor preformed.
$1,218 + 108.75 = $1,326.75.
122 engine hours X $10.875 = $1,326.75.
An Alternative Pay Method;
Let’s say the Drivers sell their time to the carrier for a minimum of $7.25 an hour for 168hrs at a cost of $1,218 per payroll period as the carrier has Exclusive Use of the Employee Drivers Time.
$1,218 / 168hrs = $7.25hr or the value of an hour that the carrier has Exclusive Use of the Employee Drivers Time in a Solid payroll period.
$1,218 / 112 compensable hours = $10.875hr which is below Seven States minimum wage.
If an accepted property taken from the HOS, 60hrs in 7 day rule, is used to create a transitional limit of 60hrs before Premium Pay kicks in, it looks like this.
$1,218 / 168hrs = $7.25hr.
$1,218 / 60hrs = $20.30, the Value of the Production Log Book Hour, lines 3 and 4.
I believe that the Value of the Production Log Book Hour should be used as Premium Pay.
If the Driver completely maximized his Production Log Book Hours at 78.75hrs that would be 18.75 hours of Premium Pay due at $20.30 an hour.
$1,218 = 168hrs of Exclusive Use and = 60 Production Log Book Hours.
The carrier bought 168hrs at $7.25hr and or 60 Production Log Book Hours at $20.30hr, both equaling $1,218.
Additional Production Log Book Hours have not been paid for.
18.75 additional Production Log Book Hours X $20.30hr = $380.625 in Premium Pay.
78.75 Total Production Log Book Hours X $20.30hr = $1,598.62 Total Compensation for the 7 day payroll period.
Paying a minimum, hourly based salary, of the FMW for All Time that the Driver is on a Tour of Duty per the rental / leasing method is transparent.
- The rental / lease model Eliminates Loopholes!
- It increases the baseline minimum from $812 per week to $1,218 per week.
- It establishes the minimum value of the Production Log Book Hour at $20.30hr, a rate in excess of all the States minimum wages.
- It pays for all meal and rest breaks and would allow Employee OTR Drivers to take these breaks unhindered at permissible times and locations.
- It pays for All Time that is Controlled or Required by the carriers.
- It eliminates Wage Averaging as there is an hourly rate attached to each and every hour the carrier “controls or requires”.
Remember, these Drivers are currently exempt from payment for time that the carrier has exclusive use of.
Compare the Outcome;
Exempt from OT;
112 compensable hours.
$7.25hr X 112hrs = $812 a week per the 16hr rule.
Remove the OT Exemption;
112 compensable hours.
40hrs X $7.25 = $290.
72hrs X 10.875 = $783.
Total = $1,073 per week.
168 X $7.25 = $1,218 per week.
Per the Rental / Lease Model;
- The value of the Production Log Book Hour is established per the hourly rate paid for Exclusive Use of time.
- This model creates a ratio of 2.8 Exclusive Use Hours to 1 Production Log Book Hour.
- Hourly Rate X 2.8 = the Value of a Production Log Book Hour.
- $7.25hr X 2.8 = $20.30hr.
- The minimum hourly rate of $7.25hr establishes the minimum value of the Production Log Book Hour at $20.30hr.
- The number of Production Log Book Hours purchased is easily calculated by dividing the total number of Exclusive Use Hours by 2.8.
- 168hrs / 2.8 = 60 Production Log Book Hours.
- Using this ratio to calculate the amount due to the Employee OTR Driver is easy and accurate for partial payroll periods.
- The ELD documents the start and end time of a Tour of Duty.
- The ELD documents the number of Production Log Book Hours within a Tour of Duty.
Benefits of the Rental /Lease Model;
- $1,218 is a gain of $145 per week above being paid OT.
- $1,218 is a gain of $406 per week over todays, rather risky, Federal Minimum of $812.
- The FMW of $7.25 an hour would pay for a full 24hr Duty Cycle equaling $174 per day.
- The Drivers Know how they are being paid and may operate legally.
- The Premium Pay offers incentive while operating in compliance.
- The carrier has a single formula to calculate payroll.
- The ELD monitors and tracks the movements of the Drivers Production.
- Collected ELD data establishes reasonable demands of production quotas.
- Any anomalies to the collected data will stand out for scrutiny!
Recent law suits have established that Many Drivers Are Not Being Paid the FMW per the 16hr rule!
$7.25 an hour seems insulting but many Drivers are Actually, Unknowingly, Only Earning $8 or $9 dollars an hour per todays Federal Wage & Hour Regs.
The FMCSA considers a trip or series of trips to be circular having a start point that must be the end point, as in a Tour of Duty.
This train of thought adheres to basic business practices of many other industries.
Requested Personal Time Off during a Tour of Duty is considered Time that the employee is “Waiting to Be Engaged” and is non-compensable time.
Employee or Contractor?
The Controversy Over the Value Of Our Time.
Because of misclassification issues, those of us who own our equipment and lease on with a carrier may find ourselves working at or below the labor rate established by the Applicable Minimum Wage.
Lease Purchase Drivers need to consider that they must be cheaper to operate than the Employee OTR Drivers or their services would not be needed.
My research concludes, and it is my opinion, that we Are Employees who own or who are in possession of equipment. As such, it is very possible that our earnings are less than Employee OTR Drivers and therefor we could be contributing to and sustaining the low labor rate currently in place.
Let’s go back to the Two Check System!
We would then own or have possession of equipment that is leased to a carrier and as such we, the owners of the equipment, would be hired as Employees to operate the equipment that is leased from us.
We are Employee OTR Drivers who are Employee Owner Operators as once was recognized.
Independents labor rates can not be much higher than the market value of labor.
The minimum baseline pay needs to to be increased to grant All Drivers the security needed to be able to operate in Full Compliance as monitored and enforced by the ELD.
A Federal Solution Needs To Be Had;
I think that we should all agree that a Federal Solution Is Needed!
If the FMW standard does not meet or exceeded ALL States standards at the applicable value, is it possible to legislate a Practical Federal Wage Standard Specific to Employee OTR Drivers who operate in Interstate Commerce?
The ATA has been working to establish precedents to use the Log Book as the legal documentation of compensable hours and to use the FMW as the minimum to pay Drivers.
Denham was a stepping stone towards achieving the ATA’s objective as Ca. Does Not Allow Wage Averaging!
Meal and Rest Breaks was the cover to gain support to shut down California in order to establish a precedent towards creating a Federal Solution.
Is the ATA’s DESIRED Solution, Federal Regulation that would eliminate the 16hr rule in order to Crush The Value of All Drivers Labor?
The Patchwork of States Applicable Minimum Wages Must Be Dealt With!
A Federal Solution Is Needed!
Pat Hockaday (JoJo)