Posted December 28, 2015 by Erin
Article written by Anna Newell, associate attorney at Roberts Perryman PC. Originally published on the Roberts Perryman Blog, you can visit them here.
Interpreting the Rule
The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) has adopted a new regulation which will prohibit anyone who operates a commercial motor vehicle in interstate commerce from coercing a driver to violate certain commercial regulations. This “Coercion Rule,” which will take effect January 29, 2016, gives the FMCSA authority to take enforcement action not only against motor carriers, but also against shippers, receivers and transportation intermediaries (including their agents or representatives).
So what exactly is coercion? The FMCSA defines “coercion” as when a motor carrier, shipper, receiver or transportation intermediary threatens to withhold work from, take employment action against or punish a driver for refusing to operate in violation of certain provisions of the Federal Motor Carrier Safety Regulations (FMCSRs), Hazardous Materials Regulations (HMRs) and Federal Motor Carrier Commercial Regulations (FMCCRs). An example would be if a motor carrier terminates a driver for refusing to accept a load that would require the driver to violate the hours-of-service requirements.
The rule comes in response to complaints received by the FMCSA from commercial drivers who reported having received pressure to violate certain regulations such as the hours-of-service requirement or transportation of hazardous material, and having received threats including job termination, reduced pay and forfeiture of favorable work hours.
From a legal standpoint, commentators fear this rule may by relied on to argue that shippers, receivers and transportation intermediaries are accountable for the actions of their drivers. Or, the rule may be used as a basis of liability in every broker, shopped and logistics provider case. The new rule clarifies that a motor carrier may found to have violated the driver coercion rule if it hires an independent owner-operator who coerces one of its drivers. However, a broker who hires a motor carrier to perform transportation services will not be liable for coercion based on the actions of the motor carrier, because motor carriers are not the broker’s agents and a broker is not an employee of a motor carrier. An exception may occur if a broker exercises control over the driver and then requires the driver to violate a safety regulation. Hopefully the net outcome of this rule won’t be to create a way for plaintiffs’ attorneys to argue that an intermediary’s conduct contributed to a crash.
When the coercion rule takes effect on January 29, 2016, the FMCSA will then start accepting coercion complaints from drivers. The rule includes procedures drivers are to use in reporting incidents of coercion to the FMCSA. It also establishes rules of practice that the FMCSA will follow in response to reports of coercion, as well as describes penalties that may be imposed if entities are found to have coerced drivers. Violations of this rule may result in penalties of up to $16,000.00.
It is anticipated the FMCSA field offices will be flooded with complaints which will have to be sifted through to determine which are worthy of investigation. The Final Rule can be found HERE.
Anna Newell is an associate attorney at Roberts Perryman. Anna’s practice focuses on transportation, insurance coverage and defense.
Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com
Posted December 28, 2015 by Administrator
The House Agriculture Committee’s General Farm Commodity and Risk Management Sub Committee has been discussing agribusiness’ issues with the cotton industry. Many feel that if something isn’t done soon many farmers will face serious losses.
Cotton growers face many different problems, including:
- Water scarcity
- Increase in international cotton production
- Synthetic fibers competing in same market
- Lower cotton prices
- Drop in cotton exports
These problems force many farmers to have to rely on crop insurance benefits. Some agribusinesses who specialize in cotton may not qualify for financing next year. When so many farms have to produce higher than average yields to cover expenses, the different market, environment and regulatory issues become too much to handle.
Members in the General Farm Commodity and Risk Management Sub Committee feel that a stabilizing policy should be created so that cotton growers would qualify for emergency funding. Otherwise acreage will continue to decrease and cotton production in the US will suffer.
Since there are so many difficulties farmers need to overcome, reversing the problem may take time and several government policies. In the meantime, cotton growers are facing a difficult present and an uncertain future if they want to plant cotton during next year’s growing season. To learn more, contact us.
Posted December 22, 2015 by Erin
Yesterday, the Federal Motor Carriers Safety Administration announced it will lower the 2016 minimum random drug testing rate for commercial driver’s license holders to 25% from 50% annually. This significant announcement is the result, in large part, of ATA’s advocacy efforts. ATA met with FMCSA on this issue early last year, helped gather relevant data, and encouraged FMCSA to take the appropriate step of reducing the testing burden if the industry’s performance continued to meet the agency’s standard. DOT has previously lowered the testing rates for others modes and acknowledged a 25% rate continues to provides strong deterrence from drug use.
Under a long-standing provision in the Federal Motor Carrier Safety Regulations, FMCSA may lower the minimum annual percentage rates for random testing to 25% percent when the industry violation rate (as measured by number of positive tests) for random drug tests is less than 1.0% for two consecutive years. The trucking industry has maintained a sub-1.0% violation rate for three consecutive years. Today’s announcement is an important step that will immediately reduce regulatory and cost burdens for motor carriers. Carriers may, however, continue to test at a rate higher than 25% in 2016 if they so choose.
Article Source: Missouri Trucking Association | visit them at www.motrucking.org
Posted December 21, 2015 by Erin
Article written by Lesley Hall, JD, MBA, associate attorney at Roberts Perryman PC. Originally published on the Roberts Perryman Blog, you can visit them here.
On December 4, 2015, President Obama signed into law the Fixing America’s Surface Transportation Act highway bill (dubbed the “FAST Act 2015”). The five – year, $305 billion dollar highway funding bill includes several important trucking regulatory reforms and also represents the longest termed highway bill in decades. The Act mandates a series of long-term homework projects for the FMCSA with the goal of clearing the smoke and mirrors effect from certain issues such as CSA scores, driver detention issues, and insurance matters. To save you the trouble of perusing the approximately 1,300 pages of Act (unless you’ve been eagerly anticipating the read, then consider this a spoiler alert) we’ve highlighted some important changes that directly impact our industry:
• The infamous CSA scores are no more for the time being. Much of the information contained on the FMCSA website that was previously available and that related to carriers’ performance is no longer on display. Carriers’ percentile rankings and the seven SMS BASICS are among the bulk of the data that has been temporarily removed. The bill requires the FMCSA to perform in-depth studies on issues like carriers’ crash risk and the correlation between CSA scores and the carriers’ likelihood of crashes. This study is due to be produced to Congress within 18 months of the bill becoming law. Congress has required that the FMCSA implement a “corrective action plan” before it can allow public view of the carrier information previously contained on its website.
• The FMCSA must study and provide Congress with a report on how driver detention at shippers and receivers’ facilities impede the efficiency of US freight movement, as well as the impact the detention might have on drivers’ schedules or wages.
• The FMCSA must also provide a report to Congress concerning carrier liability insurance minimums and whether they should be raised from their current values. Liability for general freight carriers is $750,000.00.
• The Act allows carriers to use drivers’ hair as a source of material for drug testing, in lieu of urine tests, but only after the Department of Health and Human Services establishes a clear guideline for hair testing. The DHHS is expected to report to Congress with some guidelines within one year.
• The rulemaking process for the FMCSA has undergone new regulations, and the FMCSA must include a “regulatory impact analysis” for each new rule it institutes, which must show the effect the rule might have on carriers of various sizes. The Act requires the analysis to utilize data that represents the commercial motor carrier industry that would be impacted by the rule.
• The FMCSA must change the rules to allow military veterans with experience driving equipment that is similar to heavy-duty trucks to more easily obtain a CDL and drive a truck as a civilian. Specifically, the FMCSA must allow their military driving experience to count towards driving skills and tests and their medical certifications could be obtained from VA doctors rather than those in the FMCSA’s registry.
For as many things as the bill included, there exists a list of things notably absent from the final, signed draft:
• The final version does not contain a measure to permit 18-21 year old CDL holders to drive interstate. The preliminary House and Senate bills included measures to let states enter into a compact to allow 18-21 years olds to cross state lines. The final version, however, sets up a “controlled study” to be performed by the FMCSA to collect data on under-21 year old drivers who are former military members and study the benefits and safety issues.
• There is no provision allowing for an increase in federal weight limits. Trucking lobbyist groups pushed for an increase from the current 80,000 pounds to 91,000 pounds and increasing the maximum allowed length of tandem trailers to 33 feet from the current 28 feet.
• The Act provides no “hiring standards” provision (thankfully). The original House highway bill had criteria that encouraged shippers and brokers to hire only carriers with “satisfactory” safety ratings. Critics of the House highway bill balked, stating that the provision would wreak havoc on a majority of small trucking companies who are “unrated” by the FMCSA.
• The Denham Amendment, promulgated by Representative Jeff Denham (R-Calif.), sought to clarify a recent court ruling issued by a federal appellate court. The Federal Aviation Administration Authorization Act (FAAA) prohibits states from enacting laws that interfere with motor carrier prices, routes, or service. However, the federal ruling last year held that a California law mandating meal and rest break for workers in the states superseded FAA. The Denham Amendment would have explicitly provided that states cannot regulate truckers who fall under federal Hours of Service regulations.
• The final bill also eliminated the provision in the Senate’s original bill that allowed tolling on existing interstate lanes and the use of toll money for use outside of the US interstate system.
Overall, the Act shows promise in paving a way for a better future for those of us in the transportation industry. We are all painfully aware of the FMCSA’s need to take the CSA score concept back to the proverbial drawing board. Hopefully the new system will provide a less harsh view of some of the more (relatively speaking) benign issues that blemish some of our reports. Improvements in CSA reporting may also help defend trucking companies sued in litigation, as plaintiffs’ attorneys often exaggerate what would otherwise be seen as relatively minor disclosures. Of course the impact of this Act may hit more forcefully once the FMCSA generates the numerous reports it has been assigned to prepare and provide and that concern very important aspects of the transportation industry. The agency has been given a hefty homework assignment and it remains to be seen whether the curve is in its favor.
This article was written by Lesley Hall, JD, MBA, associate attorney at Roberts Perryman PC. Lesley focuses her practice on Transportation and Logistics as well as Trucking Litigation. Additionally, Lesley is third generation of a trucking family.
Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com
Posted December 21, 2015 by Administrator
With the passage of the Electronic Logging Device (ELD) rule, the Federal Motor Carrier Safety Administration (FMCSA) has some exceptions regarding Hours of Service logging. To learn if you need to comply with the new ELD rule, take a look at some of the exemptions.
Exemptions to the ELD Rule
Not all business will have to invest in electronic logging devices in the next two years. Exempt businesses include:
- Businesses that have routes within a 150-mile radius
- Vehicles in your fleet that were built before 2000
- If you provide tow away or drive away services
- If your drivers log hours of service on paper 8 out of 30 days
For those businesses that aren’t exempt from the ELD rule you have two years to comply. Vendors of electronic devices don’t see a problem manufacturing devices that will fulfill the new requirements. In fact, many of these devices include other features that will help your company increase the efficiency of your fleet.
Maintaining FMCSA compliance improves safety, manages costs and decreases your company’s liability. To learn more about transportation safety, risk reduction and best practices to cut costs in the new year, contact us.
Posted December 14, 2015 by Administrator
Companies and employees understand the benefits of preventive health practices. This is especially true of the trucking industry, where driver turnover due to health industries is high. Some companies are doing more than just paying lip service to employee health initiatives and the result is an increase in driver retention.
Turnover Due to Health Risks
Truck drivers are more likely to be obese, smoke and have an increased percentage of risk factors for hypertension and other chronic diseases. The lifestyle of a long-haul trucker makes them more likely to retire early due to health reasons or die young from diseases related to an unhealthy régime. There is also the risk that a driver will fail their DOT physical and you will have an employee who is unable to recertify.
What Can Companies Do?
What can carriers do to help employees become healthier and live longer? Organizations have put many successful wellness programs into place, including:
- Weight loss programs
- Smoking cessation programs
- Diabetes management programs
- Healthy eating programs
- Fitness programs
- Financial incentives for maintaining a healthy lifestyle
These programs can help reduce health risk factors for your truckers by as much as 40% and increase the number of healthy employees without any risk factors by as much as 17%.
Creating a preventive health program for your company will increase retention and decrease workers compensations costs. Contact us today and our experienced staff can offer guidance on how your company can minimize costs while maximizing your insurance coverage.
Posted December 2, 2015 by Administrator
In a previous post, we discussed the issues transportation companies have when the lines are blurred between owner-operators and employees. We also discussed warning signs that you may be treating your owner operators like employees. In this post, we will help you learn how to educate owner operators so that they are effective contractors for your organization.
Training for Policies and Regulations
Companies can’t require that independent contractors attend training. It is up to the owner-operators to understand federal regulations and maintain the proper licensing. Any company policies contractors need to understand should be outlined in the lease agreement.
Your organization can create remedial training for employees and owner-operators who are found in violation of federal policies. Let the contractors know that they can have the option of attending this remedial training or the company will terminate the relationship with the contractor.
Let owner-operators know about special permits they will need to deliver to your customers, such as cards needed to enter ports or military facilities. However, you can’t force the independent contractor to obtain the card in order to work with your organization. You also can’t pay for the testing or application process unless you deduct it from the contractor’s compensation.
Make sure that independent contractors understand they need to maintain separate insurance policies that will protect them and their cargo. Your company will also need to maintain insurance policies such as Occupational Accident coverage and non-trucking liability coverage.
Explicit Lease Agreements
Create detailed owner-operator lease agreements that explain the independent contractor relationship, company policies and charges. This way the independent contractor will understand company expectations, compensation and deductions.
Owner-operators can be an effective way to manage your business while cutting expenses. If you want to learn more about transportation safety, risk reduction and best practices, contact us.