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DOL opinion letter: Time in sleeper berth does not count as compensable time

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The Department of Labor says the time a truck driver spends in the sleeper berth is not compensable time. Pictured in the Peterbilt 579 UltraLoft sleeper berth. (Courtesy: PETERBILT MOTORS)

WASHINGTON — The U.S. Department of Labor said Monday it had determined that time spent in the sleeper berth by professional truck drivers while otherwise relieved from duty does not count as compensable time.

The DOL issued the determination in a written opinion letter by the department’s Wage and Hour Division (WHD) on how a particular law applies in specific circumstances presented by the individual person or entity that requested the letter.

The American Trucking Associations lauded the opinion.

“ATA welcomes Monday’s opinion letter from DOL Wage and Hour Division Administrator Cheryl Stanton that concluded time spent by a commercial driver in the sleeper berth does not count as compensable hours under the federal Fair Labor Standards Act, unless the driver is actually performing work or on call,” said ATA President and CEO Chris Spear. “This opinion, which is consistent with decades-old DOL regulations, the weight of judicial authority, and the long understanding of the trucking industry, clears up confusion created by two recent court decisions that called the compensability of sleeper berth time into question.

Significantly, this opinion letter provides new guidance, the DOL said.

Under prior guidance, the DOL said WHD interpreted the relevant regulations to mean that while sleeping time may be excluded from hours worked where “adequate facilities” were furnished, only up to eight hours of sleeping time may be excluded in a trip 24 hours or longer, and no sleeping time may be excluded for trips under 24 hours.

“WHD has now concluded that this interpretation is unnecessarily burdensome for employers and instead adopts a straightforward reading of the plain language of the applicable regulation, under which the time drivers are relieved of all duties and permitted to sleep in a sleeper berth is presumptively non-working time that is not compensable,” the opinion letter said. “There may be circumstances, however, where a driver who retires to a sleeping berth is unable to use the time effectively for his or her own purposes. For example, a driver who is required to remain on call or do paperwork in the sleeping berth may be unable to effectively sleep or engage in personal activities; in such cases, the time is compensable hours worked.”

The ATA commended Acting Secretary Patrick Pizzella and Stanton for adopting a straightforward, plain-language reading of the law, rather than the burdensome alternative interpretation embraced by those outlier decisions.

“ATA also commends the department for making guidance like this available through opinion letters, which provide an opportunity for stakeholders to better understand their compliance obligations prospectively, rather than settling such matters only after the fact, through costly and wasteful litigation,” Spear said.

 

 

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The Nation

SBTC’s anti-ELD petition stalls, Lamb uses ‘phone call’ to put blame on OOIDA

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Small Business in Transportation Coalition President James Lamb tells viewers his investigators have uncovered evidence that the Owner-Operator Independent Drivers Association is sabotaging his organization’s efforts to get 100,000 signatures on a petition to ask the White House to immediately suspend the ELD mandate. (Courtesy: SMALL BUSINESS IN TRANSPORTATION COALITION)

In an online editorial we posted August 22, we described the Small Business in Transportation Coalition (SBTC) as positioning itself to be a one-organization wrecking crew targeting the Federal Motor Carrier Safety Administration and the electronic logging device mandate.

In particular, SBTC and its president, James Lamb, have been on a tear against electronic logging devices.

(This is the same James Lamb who in early 2018 agreed to settle a probe into his business dealings brought by the U.S. Federal Trade Commission, which accused Lamb and several of his businesses of cheating owner-operators out of millions of dollars over the course of several years. Lamb denied the charges, but the FTC is in the process of paying out $900,000 to truckers who the FTC says were scammed.) 

After the FMCSA denied its application asking that carriers with under 50 employees be exempted from the ELD mandate, SBTC asked FMCSA to reconsider the denial. 

With no apparent hope that FMCSA would reverse its decision (remember ELDs were ordered by Congress), Lamb and SBTC have moved up the ladder to Congress and now to the White House.

AN EDITORIAL

Currently, SBTC is asking drivers to sign a petition asking Transportation Secretary Elaine Chao and President Donald Trump to immediately suspend the ELD rule.

SBTC says it needs to have 100,000 signatures (it’s not likely to happen) before the White House will respond to the request to suspend the rule (that’s not going to happen).

On October 31, Lamb published an e-mail asking the Owner-Operator Independent Drivers Association to join SBTC in support of the petition.

Lamb apparently never heard from OOIDA, and with his petition drive stalled at around 30,000, Lamb decided to blame OOIDA for the slowdown and appears to have set out to make his point with an elaborate scheme that he is reporting through his e-mail blasts to the media and others, claiming that OOIDA is sabotaging his petition effort.

In a video released at 5:20 p.m. Central time November 11, Lamb said he had some “disturbing” information regarding the ELD suspension petition.

“We have through our private investigators uncovered that OOIDA has been sabotaging our petition. We hired a private investigator to follow up on leads that we have received regarding possible interferences with our petition and boy, did we find out what’s going on here.

“I’m going to play you the tape the investigators sent me (actually the tape of the phone call made only hours or maybe even minutes before) so you can listen to it yourself and boy is it bad news for Todd Spencer (OOIDA president and CEO) and this woman … at OOIDA.”

That “call” was obviously definitely recorded November 11 because the caller mentioned having to work on the holiday, which was Veterans Day. The man said his name was Mike (he also used the name Michael).

It was easy to tell the call was a set up because the man who identified himself as Mike was obviously and purposely speaking into a recording device and recording the other end of the call from a speaker phone.

(An average observer would likely have thought the call was legitimate and that Lamb’s investigators had worked hard to uncover it, but we rather suspect it was a set up and the tape was handed to him shortly after it was made. Or he might even have been in the room when the “call” was made.

A transcript of the tape shows Mike told the woman at OOIDA he wasn’t a member of OOIDA but had heard about the petition campaign and wanted to know if OOIDA was in support of the petition.

He even claimed he’d never heard of James Lamb.

The woman at OOIDA offered to send Mike information about Lamb.

She asked for his e-mail address and after a long hesitation he gave two: mikeferrili@yahoo.com and mikeferilli@yahoo.com.

E-mails sent to those addresses by The Trucker bounced back as undeliverable. (Surprise, surprise).

Based on the transcript, Mike kept trying to coerce the woman into telling him not to sign the petition (the “call” lasted almost 15 minutes), but not once did she do that, only suggesting that petitions were not effective in getting change in Washington.

Contacting members of Congress is the most effective way, she said, citing an instance when OOIDA and its members contacted a Congressman, contacts that led to him reversing his support of speed limiters.

The woman told Mike that some members of OOIDA had signed the petition.

Mike kept on and on, obviously and in the opinion of this writer hoping the woman would tell him not to sign the petition, but the woman said absolutely nothing to discourage drivers from signing the petition.

At one point, the woman reminded Mike that OOIDA had been fighting against ELDs and their predecessors since 1978.

After the tape of the telephone “call” ended on his video, Lamb reiterated that OOIDA had done everything in its power to keep truckers from signing the petition.

“Mr. Spencer it looks like we have a problem. Our legal team (the same one that handed Lamb the tape of the supposed phone call) is going to be reviewing this and you are going to have some explaining to do to a judge,” he said.

We too, have a problem, and it’s with Mr. Lamb trying to lay the blame for his failure directly on someone else.

We call on Mr. Lamb and his organization to get off his anti-ELD horse.

That horse is in the barn, sir, and it’s not coming out.

If you are as powerful as you say you are, turn that power into doing something about the real issues that plague trucking today, matters such as driver pay, the lack of safe parking and driver detention, just to name a few.

OOIDA and many others in the trucking industry are really concerned about those issues.

So should you be.

 

 

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The Nation

Please grab hold. Please grab hold.

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As things turn colder around America, here is yet another video of a truckers ice encounter.
You know in their mind they were repeating… “please grab hold”!
Location: Somewhere along Lake Shore Drive in Decatur, IL.

Courtesy: WANDTV

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The Nation

86.5% of trucks inspected during CVSA Brake Safety Week had no OOS issues

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During a roadside inspection, if an inspector identifies critical vehicle inspection item violations, he or she will render the vehicle out of service, which means those violations must be corrected before the vehicle may proceed. (The Trucker file photo)

GREENBELT, Md. — The Commercial Vehicle Safety Alliance said Tuesday that inspectors conducted 34,320 commercial motor vehicle inspections during CVSA’s Brake Safety Week and placed 4,626 vehicles — or 13.5% — out of service after critical brake-related conditions were identified during roadside inspections.

CVSA noted that a majority — 86.5% — of vehicles inspected during the September 15-21 time period did not have any critical brake-related inspection item violations.

In 2018, CVSA said out of 35,080 inspections, 4,955 trucks — or 14.1% — were placed out of service.

In 2017, CVSA conducted only a Brake Safety Day, which resulted in 14% of trucks inspected being put out of service.

During a roadside inspection, if an inspector identifies critical vehicle inspection item violations, he or she will render the vehicle out of service, which means those violations must be corrected before the vehicle may proceed.

Sixty jurisdictions in Canada and the U.S. participated in this year’s Brake Safety Week.

In the U.S., 49 jurisdictions conducted 31,864 roadside inspections and placed 4,344 (13.6%) commercial motor vehicles out of service because of brake-related violations. In Canada, 11 jurisdictions conducted 2,456 roadside inspections and 282 (11.5%) commercial motor vehicles were placed out of service for brake-related violations.

As part of this year’s Brake Safety Week, inspectors also collected and reported data on brake hoses/tubing.

  • 2,567 units had chafed rubber hose violations.
  • 1,347 units had chafed thermoplastic hose violations.
  • 2,704 violations of § 393.45 of the Federal Motor Carrier Safety Regulations (FMCSRs) and Canadian equivalent violations included chafed rubber hoses.
  • There were 1,683 violations of § 393.45 of the FMCSRs and Canadian equivalent violations that included kinked thermoplastic hoses.

“Inspectors conduct more than 4 million roadside inspections every year and checking brake components is just one element of the inspection procedure inspectors perform on commercial motor vehicles every day,” said CVSA President Sgt. John Samis with the Delaware State Police. “This inspection and enforcement event reminds drivers and motor carriers of the importance of properly functioning brakes and spotlights the work done by inspectors, motor carriers and drivers every day to keep our roadways safe by ensuring vehicles are in appropriate working condition.”

According to the U.S. Department of Transportation’s National Highway Traffic Safety Administration, highway crash fatality data for 2018, there was a 2.4% decline in overall fatalities, the second consecutive year of reduced crash fatalities. However, conversely, for 2018, large-truck related fatalities increased by 0.9%.

“While we applaud the decrease in the overall number of fatalities on our roadways last year, we’re alarmed by the increase in the number of large-truck-related fatalities,” Samis said. “CVSA conducts high-profile, high-visibility enforcement events, such as Brake Safety Week, to reduce the number of fatalities occurring on our roadways. Roadway safety is our number one priority and we will continue our efforts to improve brake safety throughout North America.”

Brake Safety Week is an inspection, enforcement, education and awareness initiative that is part of the Operation Airbrake Program sponsored by CVSA in partnership with the Federal Motor Carrier Safety Administration and the Canadian Council of Motor Transport Administrators.

 

 

 

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