Recently there has been a series of court decisions which have shaken the trucking world and have caused carriers to be accountable for their unethical behavior of trucker wage theft. Court decisions and cases are turning the tide on carriers, telling them a truckers’ time is valuable and compensable.

By applying the Fair Labor Standards Act with the US Department of Labor, Title 29, Part 785 of the Code of Federal Regulations, the courts are ruling in favor of drivers in regards to wages and compensable time.



Governed by the Clock- Paid by the Clock

First we’ll discuss the recent Supreme Court ruling on New Prime Inc vs Dominic Oliveira decided on January 15th 2019. “Supreme Court Decides Transportation Independent Contractors Exempt from forced arbitration” under Federal Arbitration Act

What started out as a misclassification case in a district court by a truck lease Independent Contractor, Dominic Oliveira, ended up in the Supreme Court with a huge win. Wages were at the heart of his original lawsuit as trucker Dominic Oliveira alleged that New Prime Inc. violated the Fair Labor Standards Act (FLSA) and the state’s minimum wage statute. New Prime Inc claimed that since Dominic was an Independent Contractor, therefore he must go to arbitration and not through the courts.

The decision made by SCOTUS was not a direct ruling on his original misclassification, but rather a ruling exempting ALL transportation workers from being forced into arbitration.

Even though Dominic was classified as an Independent Contractor, he many times earned less than minimum wage. However, because he was classified as an Independent Contractor, and had signed an arbitration agreement, New Prime claimed that he couldn’t sue them in court because of the Federal Arbitration Act.

The Supreme Court decision ruled that Dominic and ALL Transportation employees are Exempt from the Federal Arbitration Act and can indeed go through the courts. Because of the SCOTUS decision, Independent Contractors are no longer bound by the “secretive arbitration” which carriers have been getting away with for years. Dominic’s misclassification and wage suit will now be able to go back to court for for a misclassification and wage ruling.

Accepted Behavior and Background

Paid by the mile-Regulated by a clock-Enforced by an ELD

Paid by the mile and regulated by a clock! A most frustrating situation drivers face is the fact that they only paid for the miles they drive ( piece work wages) and yet restricted through Federal Regulations on how many hours they may legally drive and work to earn their wages.

Not only are drivers hours restricted, which by the way wouldn’t be quite so bad if their wages hadn’t been stymied for 30 years, but their ability to earn their pay remains under the control of employers, shippers, receivers, and FMCSA.

For decades now, drivers have been told, and have ACCEPTED, that their time is not valued, only the miles they produce are. This twisted norm has created an industry of abuse and exploiting beyond compare to any other industry.

EMPLOYERS

This accepted practice of payment for “what you produce”, no matter how many hours it takes, has created an atmosphere of subservience, obedience, submissiveness and desperate attempts to get as many hours as they can in order to drive more miles to earn more money. As long as drivers are paid for mileage only, the employer is in control.

The more unpaid hours you work, the less valued you are

No Detention Time– Carriers will allow shippers and receivers to keep drivers waiting at docks for hours on end, eating up their clock, most often without wage compensation. By the way, many time the Shippers & receivers pay the carriers detention time, but the driver does not share in this imbursement

Starved Out– How many drivers have heard of the term “starved out”? This is a practice that keeps a driver waiting for days to receive a load, without being compensated for their time. For those who are not in trucking, this term is designated to those employers who wish to end the employment of a driver, and rather than risk a possible retaliatory lawsuit, the carrier keeps them waiting for days for a load, eventually leading to paychecks of $100 or less. ( No miles produced while waiting=No $$$) After a few weeks of this, and the driver quits. They have been “starved out”

SHIPPERS and RECEIVERS

Another accepted practice within trucking, is waiting to be loaded or unloaded. Hours and hours wasted at the docks without pay, and yes, that Federal 14 hour clock and 60 hour 7 day clock is ticking. And if the driver runs out of hours while there, it’s too bad for many. You can’t take your 10 hour break there, you certainly can’t park. So it’s off trying to find parking while you’re either out of hours or about to be. And the ELD will let you know! No more paper logs to “fix” the Broken System which the trucking industry and the FMCSA has created.

But the GOOD NEWS IS Courts are applying laws



The courts are now realizing that there are LAWS in place to stop the abusive behavior. Court Cases are now ensuring truck drivers are to paid for time spent on the road.

In a Class Action lawsuit in Federal court against PAM Transport, an Arkansas based company, the court ruled against PAM Transport, for alleged violations of the Fair Labor Standards Act, a federal law that requires employers to pay truck drivers at least minimum wage.



District Judge Timothy Brooks reaffirmed that PAM Transport violated federal labor laws when they didn’t pay their truck-driver employees at least minimum wage for every non-sleeping hour spent in their truck.

The district court judge in Arkansas reaffirmed that truck drivers need to be paid for every hour they spend in their trucks while they’re not sleeping

In October 2018, Brooks ruling made a commotion within trucking when he ruled that PAM Transport would have to pay their truckers at least minimum wage for 16 hours each day that they work. There are 3,000 truck drivers in the class-action suit against PAM.

The Court decided that the time a driver spends waiting in his truck in the sleeper birth still constitutes work — even though the driver may log that time as “off-duty.”

Timothy Brooks wrote in his Oct. 19 memorandum on the PAM case: There is no ambiguity here, then, as to whether an employer must count as hours worked the time that an employee spends riding in a commercial truck while neither sleeping nor eating: time thus spent “is working” and “any work” performed “while traveling must… be counted as hours worked.”

In December 2018, a group of approximately 10,000 truck drivers referred to Brooks’ ruling as they alleged that their employer, Swift Transport,violated labor laws by not paying them for some training and orientation sessions.

The question is, why was the trucking industry so disillusioned over the PAM ruling?

Because many courts in the past have not applied laws that have been on the books for years. These laws were written to protect drivers from the very abuse and wage theft behavior that has existed. Drivers have been conditioned to accept:

1) You’re only worth what you can produce

2) You’re time is not valuable

3) waiting without pay is part of your job

According to the Laws, the Courts believe drivers time is valuable



According to the US Department of Labor, “Any work which an employee is required to perform while traveling must, of course, be counted as hours worked.” Title 29, Part 785 of the Code of Federal Regulations U.S. Department of Labor- Wage and Hour Division

§ 785.7 Judicial construction.

The United States Supreme Court originally stated that employees subject to the act must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” ( Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944))

Subsequently, the Court ruled that there need be no exertion at all and that all hours are hours worked which the employee is required to give his employer, that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.

Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer.” ( Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944)) The workweek ordinarily includes “all the time during which an employee is necessarily required to be on the employer’s premises, on dutyor at a prescribed work place”. ( Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946))

The Portal-to-Portal Act did not change the rule except to provide an exception for preliminary and postliminary activities. See §785.34.

[26 FR 190, Jan. 11, 1961, as amended at 76 FR 18859, Apr. 5, 2011]

785.41 Work performed while traveling.

Any work which an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.

785.22 Duty of 24 hours or more. ( 16 hours paid)

(a) General. Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep.

If sleeping period is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked.

( Armour v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944); General Electric Co. v. Porter, 208 F. 2d 805 (C.A. 9, 1953), cert. denied, 347 U.S. 951, 975 (1954); Bowers v. Remington Rand, 64 F. Supp. 620 (S.D. Ill, 1946), aff’d 159 F. 2d 114 (C.A. 7, 1946) cert. denied 330 U.S. 843 (1947);

Bell v. Porter, 159 F. 2d 117 (C.A. 7, 1946) cert. denied 330 U.S. 813 (1947);

Bridgeman v. Ford, Bacon & Davis, 161 F. 2d 962 (C.A. 8, 1947); Rokey v. Day & Zimmerman, 157 F. 2d 736 (C.A. 8, 1946); McLaughlin v. Todd & Brown, Inc., 7 W.H.

Cases 1014; 15 Labor Cases para. 64,606 (N.D. Ind. 1948); Campbell v. Jones & Laughlin, 70 F. Supp. 996 (W.D. Pa. 1947).)

(b) Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, the entire period must be counted. For enforcement purposes, the Divisons have adopted the rule that if the employee cannot get at least 5 hours’ sleep during the scheduled period the entire time is working time. (See Eustice v. Federal Cartridge Corp., 66 F. Supp. 55 (D. Minn. 1946).)

Another case was Nashville, Tenn., trucking company Western Express who agreed to pay thousands of drivers a total of nearly $4 million in a settlement for a class action lawsuit. The lawsuit accuses the company of intentionally failing to compensate drivers for hours worked.

On Jan. 13, 2014, drivers for Western Express filed the lawsuit, claiming the company violated the Fair Labor Standards Act. More specifically, the lawsuit claims drivers were not paid the federal minimum wage as a result of Western Express

On Jan. 11, Western Express reached an agreement with the drivers for $3.825 million, five years after the lawsuit was filed.

Once again, The FLSA and Title 29 Section 785 was cited.

According to the lawsuit, the maximum amount of time an employer may dock an employee who is on assignment for more than 24 hours for sleeping and meal periods is eight hours per day. The remaining 16 hours per day is work time and must be paid. Due to various duties that rendered drivers continually on assignment, plaintiffs argued they should have been paid 16 hours a day, or $116 per day at the federal minimum wage.

The bottom line is that some carriers have been getting away with not paying drivers at least minimum wage for their time spent.

If a driver is not earning at least $116 per day then their employer is in violation of the Fair Labor Standards Act. Although most drivers earn more than this, there are many drivers, especially new drivers, who do not. There are drivers paid less than 20cpm, running a full 60 hour work week, not earning minimum wage. Is there wonder why there is over a 100% turnover among new drivers?

Also, there are those who are kept waiting for loads for days. Truckers should be paid for this time. The courts suggest that drivers are entitled to minimum wage for 16 hours per workday — every hour spent in the truck save for eight hours of sleep time.

The Supreme Court has argued that employees should be paid even though they are not actively carrying out a work task. Just as District Court Judge Timothy Brooks wrote in his Oct. 19 memorandum on the PAM case:

Listen to the AskTheTrucker Live Radio show replay to better understand the difference between the FMCSA 14 hour rule and the DOL 16 hour Wage Law

© 2019, Allen Smith. All rights reserved.