by G. Spencer Mynko, Esq.
This is a two subject article. First of all, I want to write about ELD exemptions. As anyone reading this article should know, the deadline for implementing ELD technology is practically three weeks away. For trucking companies or Independent Contractors/Owner-Operators who are still considering claiming an exemption to ELD requirements, it is worth it to review this topic one more time. Anyone claiming to make an exemption needs to be absolutely clear on the rules, because the consequences for improperly claiming an exemption are disastrous.
Secondly, there have been some new rumblings on the misclassification/Independent Contractor front. This specifically relates to misclassification of port, harbor drayage, and intermodal drivers and proposed federal legislation which would give the Federal Government new powers of prosecuting trucking companies who misclassify employee drivers as independent contractors. While it is unlikely there will be any immediate changes in terms of Federal Government jurisdiction over the situation in the ports or with intermodal shipping, trucking companies need to know that there is a movement in Congress to aggressively target trucking companies (and anyone esle) who misclassifies harbor drayage, port, and intermodal drivers as independent contractors.
Remember, if you claim an exemption, your drivers must be prepared and able to explain it to the officer during a roadside inspection. If your drivers can’t explain the exemption, they’ll receive a violation. Drivers who use the timecard exception are not required to keep records of duty status (RODS) or use ELDs. Additionally, the following drivers are not required to use ELDs; however, they are still bound by the RODS requirements in 49 CFR 395 and must prepare logs on paper, using an Automatic On-Board Recording Device (AOBRD), or with a logging software program when required. Here’s what the FMCSA says:
Drivers who use paper RODS for not more than 8 days out of every 30-day period.
Drivers of vehicles manufactured before 2000.
Drivers who are required to keep RODS not more than 8 days within any 30-day period.
Drivers who conduct drive-away-tow-away operations, where the vehicle being driven is the commodity being delivered, or the vehicle being transported is a motor home or a recreation vehicle trailer with one or more sets of wheels on the surface of the roadway.
Drivers of vehicles manufactured before the model year 2000. (As reflected on the vehicle registration)
Here are some more considerations that may help you determine exemption status:
Some drivers are required to use a paper log today: likely not exempt.
All vehicles are between 10,001 and 26,001 pounds: if interstate, not exempt. If over 26,000 pounds, not exempt even if intrastate.
Haul placardable amounts of hazmat: not exempt
Intrastate operations: state laws will determine (but state law, not federal law, must control and federal preemption must not exist)
Haul recreational vehicles: exempt while making delivery only
Drivers required to complete paper logs more than eight of any 30 day period: not exempt.
Drivers operate a power unit that is part of a driveaway/tow-away shipment: exempt while operating delivered vehicle.
All vehicles older than model year 2000: exempt
Vehicles model year 2000 or greater but no ECM: not exempt
Rental unit: not exempt
All drivers qualify for agriculture exemption all days: exempt
All vehicles operated are for utility service: exempt
All vehicles operated are for pipeline welding: possibly exempt
Oil or gas operation: not exempt
Construction operation: not exempt
Hyrail operation: not exempt
School bus operation: exempt
For hire passenger operation: not exempt
Government contracted: not exempt
Any companies with any further questions should consult with a knowledgeable expert now.
Certain Members of Congress are taking aim at trucking companies who misclassify Port/ Drayage/ Intermodal drivers. Port Drivers IC Misclassification Bill Introduced In Congress.
Not satisfied to leave targeting of trucking companies who misclassify drivers primarily the duty of California officials, forces in the Federal government are looking to expand their powers or prosecution against illegally operating trucking companies. U.S. Representative Grace Napolitano (D-Cal.) introduced the Port Drivers’ Bill of Rights Act of 2017 (H.R. 4144) in the House of Representatives on October 26, 2017. This bill focuses on a particular industry where IC misclassification is perceived by some legislators to be prevalent. The bill states that it is the sense of Congress that truck drivers, including drayage drivers, have the right not be misclassified as independent contractors and “denied” legal protections, benefits and pay; to enjoy a basic standard of living; to be covered by federal, state and local labor and employment laws; to be included in workplace safety and health laws; to be free from “exploitative” truck lease or rental arrangements; and to bargain collectively for better wages and working conditions. Obviously, the Teamsters will be a driving force in facilitating the enactment of new Federal laws designed to protect common-law employee drivers and allow them to organize.
The bill seeks to have the Secretary of Transportation, in consultation with the Secretary of Labor, establish a Truck Leasing Task Force to examine truck leasing agreements entered into by drayage drivers and create a report regarding the impact of those agreements on take-home pay of truckers and whether changes in regulations may be warranted to protect the ability of drivers to earn a living wage. Rep. Napolitano and her co-sponsors claim there is a need for this bill due to independent studies that have repeatedly documented the low pay and “rampant worker misclassification in the port drayage and intermodal industries,” the many decisions issued by the California Labor Commissioner awarding over 400 port drivers in excess of $40 million in back pay due to wage and hour violations, and the 15 unfair labor practice strikes that have occurred over the past three years to protest misclassification, involving picketing that delayed cargo delivery and created congestion at the ports.
In view of the Republican majority in both houses of Congress and a Republican administration, this bill is unlikely to gain traction. However, eventually, there will be a Democratically controlled Congress with a Democratic administration who will be very sympathetic to this bill and the perceived plight of victimized truck drivers. If the Federal Government has expanded police power over misclassification issues, I think we can expect a severe uptick in enforcement actions against trucking companies who misclassify drivers. Obviously, the misclassification violations in the ports are on the radar of politicians in Washington DC. If the state of California and their enforcement activities are not enough to persuade companies who misclassify drivers to change course, and properly classify drivers as employees, heavy-handed federal regulation may put the practice of misclassifying port/drayage drivers to an end for good.