Channel 19

Todd Dills

More off/on-duty discussion

| August 01, 2013

Night in Nashville, loading dock.There’s still a good deal of debate ongoing about the seeming gray area I wrote about last week in the new hours of service regulations and off-duty guidance, and given the abortive attempts yesterday in the House of Representatives to stop the new hours rules in their tracks, it looks like we’ll be stuck with them for a while. Regular commenter here E.F. McHenry, in a couple separate comments under stories that mention the notion that on-duty not-driving time spent waiting to unload could potentially under certain circumstances be logged off-duty given the change in definition of on-duty time to exclude time spent resting in a parked truck, hoped that being able to do so wholesale was “not where we are going,” he said, given potential for abuse, a refuge for carriers to avoid paying drivers/leased owner-operators for time worked.

“On-duty time has seven definitions” in the federal regs, he noted, “and we can say for sure No. 5,” which concerns time attending the vehicle and/or conducting loading activities and which I referenced in the last post, “has remained the same. The ambiguity for the re-defintion of on-duty not-driving time might concern parts of No. 1, which talk about time at a plant, terminal, facility, or other property of a motor carrier or shipper, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the motor carrier.”

As E.F. reads it, loading situations all told are off-limits for off-duty logged time. And: “It is my considered opinion [waiting-for-dispatch situations are] where some of the biggest abuses of a driver’s time take place.” An example: “A driver finishes his or her day at 10 p.m., goes into the sleeper berth at 11 p.m. and becomes available for dispatch at, let’s say, 10 a.m. But no dispatch is planned or given. The driver is up attending the vehicle. Then at 3 p.m. a dispatch is given to pick up a load at 7:30 p.m. and deliver at 8 a.m. the next morning 500 miles away from the shipper or pickup point. Are we now going to pretend this driver can or should be available to run such a load? I ask again, is this safe when you’ve been up all day? How many drivers have been coerced into this type of circumstance and have complied with these kinds of dispatches? This to me is beyond harrassment! It is nothing but abuse! Are we going to redefine on-duty time to practically punish drivers like this?”

Some law enforcement, as well, appear to be sticking with on-duty not-driving definitions as they traditionally have been viewed when it comes to loading situations.

“FMCSA can issue rules and guidance, but individual states and their DOT inspectors can also interpret that guidance any way that they want,” wrote Delmer Polak of Wisconsin-based Great Lakes Western, offering a recent example:

My driver arrived at a shipper in Idaho. He parked the vehicle, the load was not ready, and they said that he could leave until 3 p.m. He departed on foot and went to a local retail establishment for two hours, returning at the time the shipper had suggested. The next day he was inspected in Montana and received a failed logbook inspection for not recording that entire period as on-duty not-driving. I spoke with the inspector personally, and he had some interesting concepts. So after I presented several scenarios, he offered this: If the driver has a cellphone, and if he would be willing to answer that cellphone if either a dispatcher or shipper called him, then he was by definition on-duty not-driving. Not whether he had answered the phone, but whether he was willing to answer.

Unfortunately, as Polak notes, the carrier and driver’s only recourse in this situation is “a DataQ challenge, which is impossible to win…. We DataQ’d the violation to no avail.”

Seems a liberal interpretation of the new off-duty guidance is unlikely to fly in Montana, as Polak has it, “and very likely other jurisdictions.”

As for McHenry, he sees attempts to thwart real change for the better in leased and company driver treatment in any willingness to see off-duty ambiguity in the regs: “Can anyone actually think or believe a driver at a shipper or receiver can really be off-duty? Come on! What driver out there is really relieved of obligation? What driver at a shipper or receiver can really be able to be relieved and have no obligation so as to be able to go wherever on their own leisure or liberty, or be on leave, or pass, not be obligated in any way, ready to respond at a moment’s notice when loading or unloading is complete? How much more are we going to try to pretend a driver on a dock can actually be off-duty? If any of that is possible, why on earth do large carriers who are member carriers of the American Trucking Associations continue to pay hourly wage to their local truck drivers and consider all their hours as on-duty? …

“I see greed from all sides standing in the way of real change! Economist Peter Schiff once said something like this: One regulation leads to another regulation which leads to more regulations to correct prior ones, ad infinitum…’ … And it will never stop unless we decide today to draw that line in the sand and say enough is enough and stop!”

What do you think?

Perhaps acting like those hourly local drivers would pay dividends, ultimately, as Dave Nichols advised in this round-up of hours views, “Sit back, run easy, stop when it is convenient, not at the last minute, and behave like an hourly union driver would. In a few months, you will see the demand jump for trucks, but there will be none. The barriers to entry these days are just too high, and you will find yourselves in control.”

  • No Reform

    Trucking has become a House Of Horrors…..now JBS Carriers has installed DriveCAM with the camera pointed
    at BOTH the driver and the highway. They can better Observe their Prisoner/Driver???

  • No Reform

    Hourly PAY from the time the driver arrives at the customer..he wont be there long enuff to argue about it.

  • No Reform

    Can you imagine the dispatcher and his pals gathering around to GAWK at you while you are driving? You wouldnt know when they are watching or not…how WEIRD can it get…Prison on Wheels??

  • Joe Ammons
  • EF McHenry

    Thank you Todd, first off for being truly fair and balanced on these most important issues of the day in trucking. Thanks also for bringing scholarship to these most important matters, for there is very little literature available on these most important issues. These battles today will certainly shape the nature of trucking tomorrow and will impact not only our economy but the men and women behind the wheel and their families. Let’s be fair to our drivers, they are capitive employees to their employers. There is practically no other job with this kind of 24hr/day commitment in one way or another where the employee is, for lack of a better word confined to his/her job and away from everything home!
    Thx again Floyd

  • EF McHenry

    I agree with your efforts Joe.

  • Joe Ammons

    This is the one topic every driver & owner/ operator can agree on no matter what you drive, no matter what your trailer is. We all are abused at the load and unload segment at one time or another and on a regular basis.
    It is time to stand up and be counted folks, ignoring the problem isn,t going to make it get better.

  • gary d

    i always logged line 2 when I was waiting at a shipper or receiver . I usually was able to watch a movie in the bunk or take a nap. sometimes I was there long enough to get a full 2 hours in, then take an 8 hour later on and get a split break in. I never had any problems with my logs doing it that way. the only time I logged a 4 is if I actually helped with the unloading or had to count cases.

  • Scott Burress

    This is just another money making scam by the Federal Government. If each state has the right to enforce this regulation anyway they see fit then from the time we turn the key to the time we punch out we are all in violation. As long as your in charge of the truck when you leave your terminal till the time you bring it back your always on duty. Even if your in the bunk sleeping. See how your carrier responds if your hit in a parking spot at a truck stop and you tell them it happened on your time off so you didn’t have to deal with it. That will go over like a fart in church. Last time I checked slavery was over. Maybe us truckers should get Jessie Jackson and Al Sharpen on our side.

  • martymarsh

    That’s right, it would end all of this nonsense.

  • Dave

    I’m not a big fan of drive cam, but it does not work that way at all. You really ought to see how it works and what it really does. It is not a live video feed into the office, nor is your whole day recorded. It is activated by an “event”, caused by a sudden movement of the truck like you jamming on the brakes, because you’re a crappy driver and you don’r know any better etc. And then it is only 12 seconds.

  • No Reform

    Im sure it has an Overide so the idiots in the office can Gawk and Laugh at the driver as they have been doing since time began. It is total Dominance…who are you kidding? Nobody.

  • No Reform

    Hard to “NAP”while they are running a Forklift into your trailer……real quality rest….