On December 21, 2011 the Office of Management & Budget transmitted its approval of the latest rewrite by the Federal Motor Carrier Safety Administration (FMCSA) of its rules governing the number of hours that a driver of a commercial motor vehicle (CMV) may be on duty and operate a CMV.  The industry has until July 1, 2013 to comply with the new hours of service (HOS) rules. Since the new rules are more stringent than the existing ones, carriers and drivers may begin following the new rules any time before the July 1, 2013 date. The following is a summary of the highlights (or low points depending on how you view them) of the new rules:

• Retains the current daily limit of 14 hours on duty and 11 hours of driving time.
   
• Retains current sleeper berth requirements.
   
• Limits a driver’s work week to 70 hours within any seven-day period, thus reducing by 12 hours the maximum number of hours a truck driver can work within a week.
• A CMV driver cannot drive after working eight hours since his/her last break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window, and the break need not be taken in the sleeper berth.  
   
• The 34-hour restart provision has been retained, but with two new restrictions:

1. The restart period must include two periods of rest from 1:00 a.m. to 5:00 a.m.
2. Drivers may use the restart provision only once during a seven-day period.

• Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.
   
• The definition of “on-duty time” has been revised so as not to include (i) any time spent resting in a parked CMV or (ii) up to 2 hours spent by a driver in the passenger seat immediately prior to or following an 8 hour period in a sleeper berth.
   
• The “oilfield exemption” has been clarified to require that “waiting time” be shown in logbooks (or the electronic equivalent) as off duty. Waiting time must be identified by annotations in the “remarks” section or on a separate line added to the “grid”.

Although the new rules do retain the eleventh driving hour which the industry had feared it would lose, FMCSA seems to have granted many other requests of the so-called “safety advocate” groups and labor.  For example, the FMCSA has reduced the weekly maximum hours a CMV driver may work; mandated that drivers take rest periods every eight hours; required that two sleep periods be included in each restart period; and limited the number of restart periods a driver may take within a 7-day period. However, those advocates may still be disappointed that the FMCSA found nothing in the rulemaking record to justify a reduction of the permissible driving time from the current 11 hours to the 10- or 8-hour period they argued the agency should impose on the trucking industry.  

The big question now is whether any group – in or out of the industry – will be upset enough with the new rules to bring yet another court challenge, and if so, whether Congress will finally step in to resolve the matter.

The rule was sent to the Federal Register on December 22 and should be posted in the Federal Register on the 27^th or 28^th.   A copy of the full decision is available on FMCSA's Web site at http://www.fmcsa.dot.gov/HOSFinalRule .

Posted by Kenneth E. Siegel*

“E-Government” is a buzzword of limited applicability in the real world of roadside truck inspections. The Federal Motor Carrier Safety Administration (FMCSA) has published a notice in the Federal Register that extends the requirement for drivers to maintain a paper copy of their medical certificate on their person. The requirement was scheduled to expire on January 30, 2012, but has been extended until January 30, 2014. The January 2012 date was originally chosen because on that date drivers are also required to submit a copy of their medical certificate to their state licensing agency, which was then required to incorporate the driver’s medical information into the Commercial Driver Licensing Information System (CDLIS) database used by federal, state and local licensing and enforcement officials. 

Several state licensing agencies, however, have indicated that they will not be ready to transmit that information to CDLIS by January 2012. As a result, drivers will need three copies of their medical certificates: one to carry on their person, one to provide to their employer motor carrier to be maintained in the employer’s driver qualification file, and one to be deposited at the State licensing agency. The implications of this retrograde paper shuffle are huge for motor carriers trying to avoid “alert” labels under FMCSA’s new Safety Measurement System, where most of the points accumulated under the “Driver Fitness” category result not from actual medical issues, but from a driver’s inability to present a medical card in a roadside inspection.

Federal law does not require intrastate and exempted intracity zone drivers to provide medical certificate information, and so these drivers are exempt from the requirement unless applicable state law requires them to have medical cards. For further information see Medical Certification Requirements as Part of the Commercial Driver's License (CDL); Extension of Certificate Retention Requirements, 76 Federal Register 220 (Tuesday, November 15, 2011) or contact Ken Siegel at (202)742-8602 in Strasburger’s D.C. office.

*Editor’s note: Ken Siegel is of counsel in Strasburger’s Washington, DC office. He can be reached at 202.742.8602 or Kenneth.siegel@strasburger.com . The opinions expressed in this posting do not necessarily reflect the views of Strasburger & Price, LLP or any of its clients.
 

Posted by Kenneth E. Siegel*

Affectionately known as the "The Job Killer Act," California Senate Bill 459 was signed into law by Governor Jerry Brown on October 9, 2011. The new law imposes severe civil penalties on employers who “willfully” – whatever that means -- misclassify individuals (including truck owner-operators) as independent contractors.  The law imposes penalties in an amount between $5,000 and $15,000 per violation, in addition to any other applicable penalties.  If an employer is found to have engaged in a "pattern or practice" of willfully misclassifying its employees, the potential per-violation penalties increase to between $10,000 and $25,000. In comparison, penalties for other California Labor Code violations are typically between $50 and $200 per count, and there are often penalty caps of $1,000 to $4,000. The statute also authorizes similar, but additional, penalties to employers who charge fees or take certain improper paycheck deductions -- such as for equipment rental -- from a willfully misclassified independent contractor.