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Understanding Rights in the Trucking Industry

by Dave Ashelman

Before becoming a Human Resource Manager for a transportation company, I drove long haul for many years to help pay for college. Over and over again, I’m taken aback by truckers who don’t know what their rights are when dealing with an employer. When I was faced with trucking firms violating my rights, I stood up to them. In at least one case I was fired for it, and I was able to not only collect unemployment from them, but they paid a fine to the FMCSA. It’s important that drivers understand that they are people who have rights, and that just because they are truck drivers does not mean that they’ve waived all of their rights. Here’s a brief overview of common driver issues with their bosses, and the remedies they can seek.

Unemployment

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I always hear drivers complain that a company denied them unemployment benefits. Companies DO NOT approve or deny unemployment. That decision is solely made by the state in which the trucking company resides. That decision is based on what’s known as “Prima Facia” evidence; meaning that they are just going by what they’ve been told. The trick is to get them to hear your side of the story, and there’s a way to do that. That’s done with a hearing.

First is, if YOUR state of residence is different than that of your company, you have a right to have your unemployment case heard in YOUR state. Your local unemployment office will have you file a form to move your case to your state. THEN ask for a hearing, which must be near your hometown. Most companies are not willing to spend tens-of-thousands of dollars to send an agent or layer to your state to fight an unemployment case. Under those conditions, you’ll win by default. Remember – you only have 10 days to respond to Unemployment appeal questions, but so does the company. Companies with thousands of drivers eight states away simply cannot respond within the 10 days time frame. Most times when fighting Unemployment, it never goes to hearing because of the cost to the company or their failure to respond. If your case does go to hearing, then the judge will use two premises to decide: 1) what would a reasonable person expect and 2) based on a preponderance (majority) of the evidence, within the confines of Labor Law. The above tips have won 99% of Unemployment cases that I’ve fought when representing drivers.

Hometime

What long haul driver (company or O/O) hasn’t had trouble getting home? There’s actually two legal ways to hold the company’s feet to the fire on Hometime: one is through “contract” and the other is through the Equal Rights Opportunity Commission depending on your situation. In both cases, you’re going to have to take pictures of your Qualcomm to show that your dispatcher understood your request for hometime, and that it was approved. If you’re not using a Qualcomm , then I strongly suggest sending a friendly email stating “Just confirming that I’m approved for my hometime…” and then keep the email.

When you’re approved for hometime, the company is making a contract with you for time off, in addition to your employment or lease contract. Also, if it’s in the company handbook that you’ll get hometime every certain number of weeks when requested, that’s an extension of the hometime contract. When they keep you out beyond that agreed time, they are violating that contract. Companies know this. Next, have a labor lawyer’s number in your hometown handy. 99% of the time, if you call that lawyer saying you can’t get home, all he has to do is make a phone call to YOUR DISPATCHER , and the driver will be heading home in a matter of a few hours. Companies know they’re on the line as there have been several federal court cases slapping companies for not getting drivers home.

The other avenue a driver has (especially as driver’s get older) is getting home for a doctor’s appointment. If you’re trying to get home to attend to a doctor’s appointment for you, your spouse, or your children, or because all of the above are sick, and you can show that the company knows about your situation, then the company may be violating the American’s with Disabilities Act, and the Family Medical Leave Act. If you’re sitting in a truck stop 2000 miles from home on the day of your hometime approval with this scenario, then call your dispatcher and ask for Family Medical Leave. If they don’t fax you paperwork or route you home IMMEDIATELY then you can file a complaint with the Equal Employment Opportunities Commission. This Federal Agency has offices in every major city in America, so you can call from any truck stop 1-800-669-4000. Then let your dispatcher know that you’ve filed the EEOC complain (they will give you a complaint number). The EEOC will contact the company usually within 48 business hours to ask “why”.

As a Human Resource Director, the LAST thing I want is the EEOC poking around because that can lead to lawsuits by the Federal Government in the MILLIONS of dollars. All companies know this. As a driver, I’ve used the both tactics, and was routed home within an hour.

Maintenance Of The Truck

If you’re a company driver having problems getting your truck fixed after making complaints, there’s a way around this as opposed to driving an unsafe truck. This is a tactic that I’ve used with at least two companies, and the result was the same both times: the truck was fixed on the spot. Take the truck to the nearest weigh station, park, and ask the DOT for a Level 1 inspection. If you ASK for it, they have to give it to you under “probable cause”. The DOT is not all bad. As long as your end is in good shape, such as driver logs, HOS compliant, permits, etc then you’ll be happy. If you’re truck has an issue that would put it out of service, and you have the DVIRs showing that (and you’ve scanned them to the company), the Level 1 will put the truck out of service, and any tickets will NOT be your responsibility (legally). When a truck is sitting at a weigh station out of service, company’s have to send someone out to fix it. They are not only under a financial crunch to do so, but will get hit with CSA points if they don’t. It’ll cost them $500 just to make the phone call for roadside service, but that’s their problem if you’ve properly reported the truck’s problems in the DVIR.

Docking Of Pay

Some companies dock driver pay if they curb a trailer blowing a tire, or for other minor accidents in the course of duty. Cash advances on ComData cards is another big issues. This depends on the STATE that the COMPANY resides in. In New York State for example, deducting driver pay for anything other than taxes or court ordered garnishments is 100% illegal. So cash advances and docking pay cannot be legally done in New York State. However in Indiana, it is legal. Research the state Wage & Hour laws for the company’s home state to find out. There are company’s like Celadon that have a HOME base in Indiana, but a CORPORATE address in Delaware (where docking of pay is illegal). Such companies have to abide by the Wage & Hour laws in the state that they can be sued in, which is usually the CORPORATE address. So extra research will be required.

Dispatcher Harassment

In a lawsuit in OOIDA v. FMCSA the 7th Circuit Court of Appeals (the only court higher is the Supreme Court) ruled that companies cannot be forced to use Electronic logs because there is nothing to protect drivers from harassment from dispatchers. In a follow-up study published in February 2012 the FMSCA shows that dispatcher harassment of drivers is a real problem. Under the 7th Circuit’s ruling, Dispatchers ARE NOT allowed to call, QualComm , or otherwise interrupt you on your 10-hour break. Your 10 hour break begins as soon as you park and go into Line 2 on your log regardless if you’re out of hours, or just too tired. There’s some ambiguity as to what constitutes other forms of harassment, but other workplace legal standards say that if you FEEL harassed then you’re probably being harassed. You can report harassment to the FMCSA , and let your dispatcher know that they’re violating Federal Court rulings. You can also contact a labor lawyer.

Retaliation & Conclusion

With rights comes responsibility. Always take the moral high ground in disputes with your company. Getting into physical battles, abandoning the truck, or otherwise loosing your cool will only hurt you later. Laws protecting drivers are severely lacking in comparison to any other worker, but there are laws there, and are underused. It is up to the driver to do what is right, and legal – no one else. It’s the power of example that speaks louder than words, and it’s up to drivers to be that power of example in letting companies know that they are revenue-generators; not just a truck number.

Electronic Logs:

Electronic Onboard Recorder

Electronic Logbook

A device which records the amount of time a vehicle has been driven. If the vehicle is not being driven, the operator will manually input whether or not he/she is on duty or not.

Qualcomm:

Omnitracs (a.k.a. Qualcomm) is a satellite-based messaging system with built-in GPS capabilities built by Qualcomm. It has a small computer screen and keyboard and is tied into the truck’s computer. It allows trucking companies to track where the driver is at, monitor the truck, and send and receive messages with the driver – similar to email.

CSA:

Compliance, Safety, Accountability (CSA)

The CSA is a Federal Motor Carrier Safety Administration (FMCSA) initiative to improve large truck and bus safety and ultimately reduce crashes, injuries, and fatalities that are related to commercial motor vehicle

FMCSA:

Federal Motor Carrier Safety Administration

The FMCSA was established within the Department of Transportation on January 1, 2000. Their primary mission is to prevent commercial motor vehicle-related fatalities and injuries.

What Does The FMCSA Do?

  • Commercial Drivers' Licenses
  • Data and Analysis
  • Regulatory Compliance and Enforcement
  • Research and Technology
  • Safety Assistance
  • Support and Information Sharing

DOT:

Department Of Transportation

A department of the federal executive branch responsible for the national highways and for railroad and airline safety. It also manages Amtrak, the national railroad system, and the Coast Guard.

State and Federal DOT Officers are responsible for commercial vehicle enforcement. "The truck police" you could call them.

Dispatcher:

Dispatcher, Fleet Manager, Driver Manager

The primary person a driver communicates with at his/her company. A dispatcher can play many roles, depending on the company's structure. Dispatchers may assign freight, file requests for home time, relay messages between the driver and management, inform customer service of any delays, change appointment times, and report information to the load planners.

Fm:

Dispatcher, Fleet Manager, Driver Manager

The primary person a driver communicates with at his/her company. A dispatcher can play many roles, depending on the company's structure. Dispatchers may assign freight, file requests for home time, relay messages between the driver and management, inform customer service of any delays, change appointment times, and report information to the load planners.

OOIDA:

Owner-Operator Independent Drivers Association

Who They Are

OOIDA is an international trade association representing the interests of independent owner-operators and professional drivers on all issues that affect truckers. The over 150,000 members of OOIDA are men and women in all 50 states and Canada who collectively own and/or operate more than 240,000 individual heavy-duty trucks and small truck fleets.

Their Mission

The mission of OOIDA is to serve owner-operators, small fleets and professional truckers; to work for a business climate where truckers are treated equally and fairly; to promote highway safety and responsibility among all highway users; and to promote a better business climate and efficiency for all truck operators.

HOS:

Hours Of Service

HOS refers to the logbook hours of service regulations.

OWI:

Operating While Intoxicated

OOS:

When a violation by either a driver or company is confirmed, an out-of-service order removes either the driver or the vehicle from the roadway until the violation is corrected.

by Brett Aquila

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