Some of todays Drivers boast that they are earning $24.00 an hour, 40cpm X 60mph.
This is very unrealistic as todays Employee OTR Drivers spend days and weeks manning their work stations while following the direction of the carrier.
They are actually on duty 24hrs a day because the carrier, in the terms of employment, has directed these employees to operate in compliance of the law. The law says that after “Driving” no more than 11hrs, a 10hr period in which the Driver May Not Work must be taken before “Driving” again.
If any other employer were to tell an employee “Not to Work” during the work period the employee would be compensated for preforming the job duty as directed by the employer.
Two things to consider from the Fair Labor Standard Act of 1938.
1. Interstate Drivers are exempt from overtime. Section 213(b)(1)
Note: Interstate Employee Drivers, drivers helpers, mechanics and loaders were exempted from overtime because they would be, in less than 2 days, earning overtime on a trip that took them away from home for 4 days.
Thats 40 regular hours and 56hrs overtime.
2. Piece workers are to be able to earn no less than 1.5 times the prevailing minimum wage per pieces produced. Section 207(g)
Per the FLSA, employers may offer no less than $7.25 an hour without overtime for all on duty time or no less than approximately .21cpm milage rate as payment options to Employee Interstate Drivers.
Do not confuse the Labor Codes duty cycle of 24hrs or more with the HOS duty status of “Off Duty”.
The Interstate Driver is under the carriers control and direction while operating the carriers equipment meaning they are on duty, in readiness to preform work and or working.
Safety Regulations and Labor Code have different directives and meanings.
Now consider that Title 29 Part 785.22 allows for the employer of a worker who is on a 24hr duty cycle or more, to make available 8hrs unpaid in an adequate sleeping facility “and the employee can usually enjoy an uninterrupted night’s sleep.”.
“(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 Divisions 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.”
Prior to 1980 deregulation, the established standard for a sleeping facility were motels which had running water, a bathroom and some type of eating establishment at or nearby.
Is the “Sleeper Berth” an adequate sleeping facility?
Compare 24hrs of being on duty at $7.25 an hour to 500 dispatch miles at .21cpm.
24hrs X 7.25hr = $174.00 a day.
500mi X .21cpm = $105.00 a day.
Working off of these two baseline minimums as permitted by law, there is a $69.00 a day benefit to the carrier who pays a milage rate.
One carrier can’t pay more if the others don’t so milage pay is and has been the chosen pay method offered by carriers .
Now consider that an Employee OTR Driver agreed to be paid piece work wages.
What choice did they have when all other Employee OTR Drivers had already agreed to milage pay.
“Take it or leave it” unless WE CHANGE IT!
The ATA is continually working to change things to the carriers benefit. Currently their #1 priority is to pass legislation that locks in piece work wages as the pay standard for Employee Drivers.
It would be at the carriers pleasure to pay detention just as now.
There is a specific example in Federal Labor Code requiring the payment for time spent being detained.
§ 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.
The ATA’s proposed legislation would also take away the Sates Rights to require payment of detention pay as California Labor Code currently requires.
The ATA receives Drivers support for this effort only because they mislead Drivers into believing that they would have to know all of the states labor laws and would have to take breaks per each states labor laws.
1. Only 8 states require meal and rest breaks.
2. Meal and rest break Labor Laws place requirements on the employer not the employee.
3. Ca. requires the employer of piece workers to pay the employee for their rest breaks on top of their piece work wages. These employees are not required to take the rest breaks but their employers are required to make them available.
Ca. also requires payment for detention time.
Denham, F4A and Meal and Rest Break are identifiers of this legislation which in effect creates a Federal Labor Law specific to Drivers operating under part 395.
I say “If they can work to change laws to their favor, So Can We!”.
The mandated use of ELD’s is a game changer. These devises track and monitor an Employee Interstate Drivers performance making termination of non-preforming drivers simple as the data would easily identify them.
These devises make it possible to go back to hourly pay for Employee Interstate Drivers.
Using the 60hrs in 7 day rule at $10.00 an hour flat, no overtime, we can establish $1,680.00 for 168hrs, 7 days, spent in the truck as the Drivers pay for being At Work ready, willing and available to work as directed.
The carrier would be paying for 60 working hours, log book hours, in exchange for paying $1,680.00 to the Driver.
The onus is on the carrier to provide a minimum of 60hrs work.
$1,680.00 divided by 60hrs = $28.00 an hour per working hour, log book hour.
If the Employee Driver exceeds 60 log book hours in 7 days they would be paid $28.00hr for every log book hour in excess of 60hrs.
If the carrier only provided 50hrs of work to the Employee Driver in 7 days the Employee Driver would be paid $1,680.00 at $10.00hr for the 168hrs that they were ready, willing and available to follow the employers directions.
This method easily adapts to the 70hrs in 8 day rule. The employers of these Drivers would have 61.25hrs available to them in 7 days.
70hrs / 8 days = 8.75 hrs per day.
8.75hrs X 7 days = 61.25hrs
61.25hrs X $28.00 per log book hour = $1,715.00
$1,715.00 / 168hrs, 7 days = $10.21 an hour for All Hours.
If the Employee Driver exceeds 61.25 log book hours in 7 days they would be paid $28.00hr for every log book hour in excess of 61.25hrs.
Average Annual Earnings of a Truckload Driver;
1980 @ $25,287 would be $74,687 in 2016
2000 @ $41,446 would be $58,757 in 2016
2016 is at $41,340 which is $106 less than 2000!!!
ELD’s will minimize the Black Market “Available Working Hours” that many have grown accustomed to. They will also require more “Time on the load” being serviced.
The need to earn a Fair and Decent Wage fitting the 24/7 job has necessarily created circumstances in which Drivers operate outside of the law in order to earn a living.
The ELD and HOS, while problematic, are NOT the REAL PROBLEM!
The Real Problem is being able to Afford to operate in Full Compliance of the regulations.
If the Employee Interstate Drivers were paid “For All Time” the rest of us Wouldn’t Have to Compete Against a labor force earning At or Less than the Federal Minimum Wage when All Hours spent At Work / Working are considered.
The Fair Labor Standards Act exemption to overtime for Interstate Employee Drivers preforming “Safety Sensitive” jobs was reasonable considering these Drivers were Paid For All Time.
It is also reasonable for these Drivers to voluntarily forfeit hourly pay of not more than 8hrs in exchange for a motel room at the employers expense per § 785.22.
It is absolutely Dangerous to apply the Fair Labor Standards Act piece work provision, Section 207(g), to Employee OTR Drivers.
Piece work creates incentive and reward to an employee who is Unrestricted in the number of pieces they may produce.
Employee OTR Drivers are restricted in the number of pieces they may produce in many ways.
1. They must go as far as possible as fast as possible in order to set themselves up for the next dispatch. There is no guarantee that work will be available once the trip is completed.
2. Weather and traffic may impede their ability to produce.
3. They are regulated as to how and when they may work per the FMCSR’s.
4. Traffic laws restrict production.
5. The carriers ability to provide work restricts production.
6. Detention time, unpaid time spent waiting per the carriers instruction, restricts production.
7. Inadequate parking restricts these Drivers ability to produce.
8. Pick up and delivery prevents these Drivers from producing.
9. Paperwork, fueling, breakdown and maintenance take time away from producing.
If Safety on the publics roadways, if the proclaimed Drivers shortage is to come to an end and if the regulators, We The People, are to be served in a safe and timely manner, Employee OTR Drivers Wages Must Be Addressed!
Employee OTR Drivers need to be compensated for All Time they are in service to the employer, “pursued necessarily and primarily for the benefit of the employer and his business.”
Pat Hockaday (JoJo)