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My Comment Concerning the ATA’s Petition

My Comment Concerning the ATA’s Petition

BEWARE, this comment is Long, Detailed and Informative at many levels.

Attention: Ray Martinez

Administrator of the FMCSA

In regard to the ATA’s petition to preempt State Labor Laws.

Concern; Actual intent and reasoning behind the petition

Administrator Martinez,

“If the Wheels Aren’t Turning, You Aren’t Earning” is the mantra that the ATA wants to cut into stone. To do so, it is necessary to make every effort to lock piecemeal wages into place.
Modern civilizations humanity as exercised through Labor Laws imposed upon the employer for the protection of the employee Are In The ATA’s Way and must be worked around.

Piecemeal wages encourage Employee OTR Drivers to “Go As Far As Possible As FAST As Possible” which is Clearly Unsafe even though it works to the advantage of the carrier. The problem then arises as to How To Only Pay for Pieces Produced.

The intent of this petition to the Administrator is NOT About SAFETY!!!
If this petition falls in favor of the ATA it will be used as a precedent to further establish piecework wages based on Production utilizing Federal Standards to establish a minimum baseline to be met.

Compensable Time is and has been ignored in favor of the carriers and their customer base who want Cheap Labor for their profit.
Compensable Time encompasses more than the time spent producing pieces as defined in labor code.
This is the issue that the ATA conceals behind ridiculous statements such as;

“b. By arbitrarily forcing trucks off the road more frequently, State rules like California’s also contribute to a critical shortage of truck parking, with serious safety implications. The shortage of available truck parking has been a challenge for the industry for decades, and continues to grow more serious.” 

The time of day in which parking is exasperated is the time of day when most drivers are shutting down for the Required 10hr non-working period.
Obviously, when these units are on the road the parking problem greatly diminishes thereby more readily opening up parking when and hopefully where these Drivers need to stop to take a break.

The American Trucking Research Institute (ATRI), previously the ATA’s research arm, published a study entitled;

Managing Critical Truck Parking Case Study – Real-World Insights from Truck Parking Diaries.

This is an excerpt to illustrate my point:
Time-of-day Impacts. 

The most common parking issue reported was the impact of time-of-day on parking issues – with 61.6 percent of drivers reporting that time-of-day impacts truck parking availability. Some drivers in the sample avoid truck parking challenges by operating at night or beginning their duty cycle in the early morning. Other drivers provided estimates of when finding available parking is most difficult. Most drivers who provided a time-of-day where finding parking becomes uncertain specified a time between 4:00 p.m. and 7:00 p.m.

http://atri-online.org/wp-content/uploads/2016/12/ATRI-Truck-Parking-Case-Study-Insights-12-2016.pdf 

There is no doubt that the parking problem is a safety issue that needs addressing but from the ATA’s position of representing members in a manner that maximizes profit, the parking issue consumes Production Time.
A Driver may need to shut down while having available “Driving” hours to operate due to the unavailability of parking ahead.
Production time is not fully utilized!

The ATA has more than 37,000 members. Per this petition, the ATA represents 1,800 trucking companies and industry suppliers of equipment.

The ATA fails to state that they represent Shippers.

The ATA’s Categories of Membership are;

1. For-Hire Motor Vehicle

2. Allied Companies

3. Private Carriers

4. Shippers

https://www.trucking.org/Get_Involved.aspx 

The ATA acknowledges that 30,000 carriers fall under its umbrella as they are members of individual State Carriers Associations.

These numbers indicate that 5,200 members are Shippers.
As I understand it, the ATA’s memberships dues are based on the members’ gross revenue.
Considering that the carriers profit margins are always reported as being very low could it be that the shippers, who represent 14% of the ATA’s membership, may be the ones who are more heavily invested in the ATA on a one to one basis?

As shippers are generally the ones who pay the cost of shipping, could we reasonably assume that shippers would prefer having Drivers waiting to load/offload for hours on end while Logged “Off Duty” instead of having them stop to stretch their legs or use the facilities in a compensable manner as in utilizing CA’s paid 10min breaks?

“A 1998 study prepared for the Truckload Carriers Association by Martin Labbe Associates concluded from driver surveys that refrigerated drivers on average spend 43 hours a week loading, unloading and waiting at shipper and receiver facilities. A 1999 survey concluded that dry van drivers spend an average of 33.5 hours on these unproductive tasks.”

https://www.ccjdigital.com/waiting-to-go-broke/ 
There have been several follow-up studies confirming these findings.

28hrs a week of dwell time averages out to 4hrs a day per Driver at the hands of 14% of the ATA’s membership indicating that huge amounts of production time are being denied the carrier members at what expense?
What accommodations between the shipper and the carrier have been made so that a lucrative contract between the two may be agreed upon?

Title 29, Federal Wage and Hour Regulations

https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=10f50877082f08568d40dbfeaf119853&mc=true&r=PART&n=pt29.3.785

Title 29 § 785.16 (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 a Driver is told to arrive at 8:00 AM and is then told to wait until the product is ready to ship at approximately 8:00 PM the Driver may utilize this compensable time as defined in 41852  Federal Register / Vol. 78, No. 134.

Through the revision of the regulatory guidance, FMCSA makes clear that the motor carrier need not provide formal guidance, either verbal or written, to drivers with regard to the specific times and locations where rest break may be taken. 

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.

A Driver utilizing compensable time while being logged “Off Duty” to satisfy the required 10hr non-working period as they are “resting in or on a parked vehicle” per 395.2 On Duty Time (4) (i) has in fact done so as to make “Driving” hours available to the carrier. 

The compensable waiting time was legally utilized efficiently towards the forward progression of the load.

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 workplace”. 

I have just illustrated a Gray Area due to an overlap of regulations.
It is the intent of the ATA to establish the Record Of Duty Status (RODS) as the Federal Standard that accounts for compensable time by preempting the States Right to establish labor code for the protection of those working within the state’s border.
Need I say that “Off Duty” or “Sleeper Berth” time in the eyes of the ATA is Non-Compensable time as it was Not used to produce pieces.

There are 28 states who in 2018 have a higher prevailing wage than that of Federals $7.25. an hour.

We must remember that the Employee Drivers are only required to be paid the equivalent of or greater than the prevailing wage per their piecemeal rate for all compensable hours.
Employee OTR Drivers have, in essence, agreed to be paid no less than the prevailing wage with the Possibility that they may earn More than the prevailing wage. They have sold their Time with the possibility that pieces produced within that time frame will net them an hourly wage in excess of the prevailing wage.

It is the ATA’s intent to define, per law, that Only Production Time Is Compensable!!!

Please consider that disqualifying States Right to impose requirements upon the employer that the employer Make Available or Provide a window of time in which the employee Driver may relieve themselves or eat a meal May Set A Precedent. 

Any established precedent will then later be used in establishing the Drivers RODS as the legal documentation of compensable hours by which the Federal Minimum Wage will be the prevailing wage which Drivers who are classified as Interstate Drivers will be paid.

An Intrastate Driver may be classified as an Interstate Driver.
An Intrastate Driver who crosses state line one time in 4 months would be classified as an Interstate Driver for the entire 4 month period per the FLSA Section 13(b)(1) paragraph 2. Employee Duties.
As defined, an Intrastate Driver who never crosses state line while running a leg of an interstate load would be classified as an Interstate Driver for a four-month period.
FLSA 13 (b) (1) 

https://www.dol.gov/whd/regs/compliance/whdfs19.pdf 

A Drivers RODS are meant to satisfy Safety Regulations.
Labor Codes are imposed upon the employer for the protection of the Employee.
The employee is not bound to fulfill the requirements of the Labor Code. The employee may choose to or not to take a break that has been Made Available to them. A Driver being paid piecemeal may choose to stop producing pieces, for which they get paid, at times and locations of their choosing without consequence to the carrier Except For Lost Production Time provided that the carrier made the meal and rest breaks available by not denying them.

Title 29 § 785.13 Duty of management.
In all such cases, it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.

The optional, for the Driver, meal and rest breaks are in conflict with the carriers production quota so the claim is made that the minimum 30min meal break and the 10min rest breaks interfere with Interstate commerce.

The ATA bases the primary concern and purpose of their petition on selected clauses of California Labor Code. The ATA neglects to include pertinent clauses that would discredit claims being made concerning flexibility on the carriers part. The ATA chooses to imply that per strict labor regulations the flow of Interstate Commerce is impeded.

The carriers have options available to them thus they have flexibility to act on per Industrial Welfare Commission Order No. 9, Californias Labor Code 226.2 and Federal Wage and Hour Regulations

INDUSTRIAL WELFARE COMMISSION

ORDER NO. 9-2001

https://www.dir.ca.gov/IWC/WageOrders2005/IWCArticle9.html 

11. Meal Periods

(A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee.

(B) An employer may not employ an employee for a work period of more than ten (10) hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

(C) Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time.

(D) If an employer fails to provide an employee a meal period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the meal period is not provided.

12. Rest Periods

(A) Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 ) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.

(B) If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided.

The carrier has the flexibility to deny these breaks. 

Doing so in California only requires the carrier to pay a penalty of 1-hour pay towards the working portion of the Drivers 24hr duty cycle.

Californias Labor Code 226.2 enacted 1/1/16
http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=226.2.&lawCode=LAB 


226.2.  

This section shall apply for employees who are compensated on a piece-rate basis for any work performed during a pay period. This section shall not be construed to limit or alter minimum wage or overtime compensation requirements, or the obligation to compensate employees for all hours worked under any other statute or local ordinance. For the purposes of this section, “applicable minimum wage” means the highest of the federal, state, or local minimum wage that is applicable to the employment, and “other nonproductive time” means time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.

(a) For employees compensated on a piece-rate basis during a pay period, the following shall apply for that pay period:

(1) Employees shall be compensated for rest and recovery periods and other nonproductive time separate from any piece-rate compensation.

(2) The itemized statement required by subdivision (a) of Section 226 shall, in addition to the other items specified in that subdivision, separately state the following, to which the provisions of Section 226 shall also be applicable:

(A) The total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period.

(B) Except for employers paying compensation for other nonproductive time in accordance with paragraph (7), the total hours of other nonproductive time, as determined under paragraph (5), the rate of compensation, and the gross wages paid for that time during the pay period.

(3) (A)  Employees shall be compensated for rest and recovery periods at a regular hourly rate that is no less than the higher of:

(i) An average hourly rate determined by dividing the total compensation for the workweek, exclusive of compensation for rest and recovery periods and any premium compensation for overtime, by the total hours worked during the workweek, exclusive of rest and recovery periods.

(ii) The applicable minimum wage.

226.2 effectively relieves the employer of piecemeal workers the burden of policing these workers as they are to be paid the 10min compensable rest breaks hourly and separately in addition to the piecemeal wage earned. 

This allows the piecemeal worker to waive the paid 10min break as they will be compensated for the break on top of their piecemeal wages. 

It does not permit the employer to deny the paid 10min break.

226.2 also defines the method to derive an hourly rate based on production per hour to average an hourly rate to be paid for all compensable non-production time and for compensable meal and rest break time.
Recovery Time would not directly apply to Employee OTR Drivers.

226.2 does not allow for Wage Averaging as Federal does.

Is it any wonder Why the ATA has failed to discuss the positive aspects of 226.2 as in permitting Drivers to work through the paid 10min break as they are to be compensated for the break whether it is taken or not?
The price tag on paid breaks and non-production time is the approximate equivalent of how Drivers perceive their hourly rate to be per a Non Wage Averaged method.
50mph X .40cpm = $20.00 an hour.

Concerning Wage Averaging, the key is whether the state views the minimum wage laws as applying “per hour” or “per week”.

Title 29, Federal Wage and Hour Regulations establish the minimum that most states have adopted.

Title 29, Rest and Meal Periods

§ 785.18 Rest.

Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in the industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.

§ 785.19 Meal.

(a) Bona fide meal periods. Bona fide meal periods are not working time. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily, 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating. 

There are only seven states and two US territories that require meal and paid rest breaks.

The ATA claims that the mandated 30min non-working period known as the 30min break is in fact a designated meal break.
If the 30min break is taken while resting in a parked CMV while waiting to load or offload it would not be a Bona Fide meal break as The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.
Dwell Time is compensable time that can not be offset by a non-compensable activity.

Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.
Just as an employer would be required to pay an hourly employee an additional 10min pay at the end of the day for working through a paid rest break the same holds true for a Driver who is paid piecemeal that must be equal to or greater than the hourly prevailing wage.

The Record Of Duty Status “Off Duty” intended to satisfy the FMCSR’s, Safety Regulations, cannot satisfy Wage and Hour Regulations that are in place to protect the employee.

Line 1 “Off Duty” has dual and opposite meaning.
1. “Off Duty” may indicate that the Employee OTR Driver is “Waiting To Be Engaged” as in the Driver has asked for and been granted time off from their 24hr duty cycle while on a tour of duty. If the Driver has returned to the home base for earned time off or if the Driver is permitted to do a 34hr reset at the home base it would be considered that the Driver is “Waiting to Be Engaged” per Wage and Hour Regulations. The home base may be the Drivers home, home town or home terminal depending on circumstances that may exist and may be agreed upon.
2. “Off Duty” may also indicate that the Driver is “Engaged To Wait”. This is compensable time as the Driver is on the job in readiness to perform the job. In essence, Engaged To Wait time encompasses all time in which the employee spends waiting per the direction of the employer as the employees time is “controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business” per
Title 29 § 785.7 Judicial construction.

“Sleeper Berth” is a location where the mandated 10hr non-working period may be spent.
Location of a required activity has no bearing on the compensable nature of the prescribed job duty, per 395.3, that must be performed before the next job duty may be performed.

Per 49 CFR Part 395 Hours of Service for Commercial Motor Vehicle Drivers; Regulatory Guidance Concerning Off-Duty Time the 2013 revision of the definition of “Off Duty” is in direct correlation with

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 rule also applies to employees who work away from the plant. For example, a repairman is working while he waits for his employer’s customer to get the premises in readiness. The time is work time even though the employee is allowed to leave the premises or the job site during such periods of inactivity.
The periods during which these occur are unpredictable. They are usually of short duration. In either event, the employee is unable to use the time effectively for his own purposes. It belongs to and is controlled by the employer.
In all of these cases, waiting is an integral part of the job.
The employee is engaged to wait. 

The ATA’s efforts to limit non-productive activity to locations favorable to the carriers, shippers and receivers in a non-compensable manner dates back to 2002 when the California Trucking Association, an affiliate of the ATA, first attempted to implement legislation in the CA State House to exempt carriers from the Industrial Welfare Commission Order No. 9-2001.
Failing to do so after going to the Ca. Supreme Court, the next opportunity to address meal and rest breaks came about in a lawsuit that was taken to the Ninth District Court.
The case was Dilts v Penske.

In two precedent-setting cases heard before the Ninth District, Campbell v Vitran and Dilts v Penske, the Court’s decision was in favor of the plaintiffs, Intrastate Truck Drivers operating as Interstate Truck Drivers per applicable classification. The premise of these two cases concerned the Drivers ability to take meal and rest breaks.

In 2010’s Campbell v Vitran, two truck drivers brought an action against their employer, Vitran Express, Inc., alleging that Vitran failed to provide its drivers legally-mandated meal and rest breaks.

The drivers pursued class certification on two theories: 

  1. the carrier implemented an unofficial policy of pressuring its drivers to forego their meal and rest breaks, and  
  2. the carrier’s written meal and rest break policies were facially invalid. The court granted the plaintiffs’ motion as to both theories.

First, the Ninth Circuit court found that the drivers could rely on the company’s unofficial policy of pressuring its drivers to forego their breaks, or a “policy-to-violate-the-policy”. 

After reviewing the evidence submitted, the court held that the plaintiff’s declarations, as well as declarations of thirteen fellow drivers and one dispatcher, constituted sufficient evidence that drivers were intimidated and threatened to forego meal and rest breaks for four of the five California locations. 

Furthermore, Vitran Express failed to provide any conflicting testimony that the meal and rest break practices differed among locations or supervisors. 

Thus, all of the evidence in the record supported a finding of a uniform, common policy of denying meal and rest breaks at each of the company’s locations.

http://www.impactlitigation.com/2015/12/18/campbell-v-vitran-class-certified-on-behalf-of-truck-drivers/ 

In 2015’s Dilts v Penske, the plaintiffs claimed Penske failed to ensure drivers could take their breaks and created an “environment that discourages employees from taking their meal and rest breaks,” according to court documents.

The Ninth Circuit held that “generally applicable background regulations that are several steps removed from prices, routes, or services, such as prevailing wage laws, are not preempted, even if employers must factor those provisions into their decisions about the prices that they set, the routes that they use, or the services that they provide.”. 

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 panel found persuasive the brief filed by attorneys from the Department of Transportation, the Federal Motor Carrier Safety Administration, and the Department of Justice, which stated that the FAAAA did not preempt state break requirements because it is “squarely within the states’ traditional power to regulate the employment relationship and to protect worker health and safety.

http://www.impactlitigation.com/2014/07/29/dilts-v-penske-logistics-9th-cir-rules-ca-break-laws-not-preempted-by-faaaa/

The claim that California Labor Code diminishes the carriers flexibility as  “motor carriers are required to make a far greater number of breaks available to a driver than the federal HOS rules require”  is a play on words dependent on ones suggested intent.

The Denham Amendment was first introduced as an amendment to the 2015 FAST Act. The requirements of California’s State Labor Codes are known to employers who Want To Know. 

Yet to this day there are employers who have chosen not to comply with the law. One must presume that they have been and are gambling on the efforts of the ATA, TCA, WSTA, NASTC, and others to preempt States Rights that protect workers within a states borders.

We must remember that the required non-working period of 30 minutes within the first 8 hours was put into Part 395 due to carriers pushing so hard that Employee OTR Drivers felt that they had to drive 11hrs straight.
Many years ago the DOT expected to see a break every 4hrs flagged on our log books to indicate that we had at least stopped to stretch our legs while kicking our tires as the act of doing so had a direct impact on our ability to operate safely.

Has the state of California imposed regulations that are detrimental to Safety or the Flow of Interstate Commerce?

OR

Has the state of California imposed regulations that protect Drivers thereby protecting the public at large form carriers who push to maximize production time at the lowest rate possible to satisfy shippers and their customers, the receivers, those who consume immense quantities of production time At Little to No Cost?

Pat Hockaday (JoJo)
512-423-1320
jojo859585@gmail.com

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