Driverless Truck Actually Driving in Nevada

Self driving trucks.
Self driving trucks.

 

We have written about this before.  But back then it was just a concept, not actually operating on US roads.  Well Nevada just green lighted the first driverless truck.

The world’s first autonomous 18-wheeler is getting down to business. At a ceremony at the Las Vegas Motor Speedway on Tuesday, Gov. Brian Sandoval handed over an official Nevada license plate for use by a new Freightliner Inspiration Truck on public roads.

Though a human “driver” will need to sit behind the wheel in case of an emergency, the new system is intended to usher in an era that could very well lead to fleets of trucks that have no humans on board at all, said Wolfgang Bernhard, the board member overseeing truck operations at Freightliner’s parent, Daimler AG.

Even in its current, more limited form, the technology offers a number of advantages, Bernhard said, noting that 90 percent of truck crashes involve human error, according to government data, much of that due to fatigue.

http://www.nbcnews.com/business/autos/worlds-first-autonomous-truck-goes-operation-n354511

 It doesn’t look like robot competition will over take human drivers just yet, the truck needs a driver still, and can’t go where there aren’t white lines…. but we expect this technology to move very quickly.

HOS Provision Suspension; Obama Signs into Law – Effective Now

Good News for Drivers?

The Collins Amendment language suspends the restriction on the use of the so-called 34-hour restart that requires drivers to take two consecutive periods of 1 a.m. to 5 a.m. off during the restart, thus lifting the restriction on using the restart more than once every 168 hours, or one week.

 

The bill language says that within 90 days of the enactment of the act, “the Secretary (of transportation) shall initiate a naturalistic study of the operational, safety, health and fatigue impacts of the restart provisions.” It would suspend the current restart provisions through Sept. 30, 2015, “and the restart rule (previously) in effect on June 30, 2013, shall immediately be in effect.”

– http://www.ttnews.com/articles/basetemplate.aspx?storyid=36835&t=Senate-Approves-%241-Trillion-Spending-Bill-and-HOS-Provision-Suspension-Obama-Signs-into-Law

Keep in mind – The 2015 appropriations bill suspended two provisions of the 2013 HOS rule: (1) The requirement that drivers’ 34-hour restarts include two 1 a.m. to 5 a.m. periods and (2) the provision that limits the use of the restart to once per 168 hours (a week). BUT Not the 30 minute break requirement…

Legal Trends in Staffing and Leased Labor – ACA, Unemployment, WC and More.

There is a growing trend amongst regulators and taxing authorities at the federal and state levels to attempt to recapture what they believe is lost revenue from the manipulation of leased labor scenarios.  Regulators are increasingly trying to look past contracts and business structures, looking to foil employer dodges that minimize exposure to employment liabilities including Unemployment Compensation, Workers Compensation and Healthcare Benefits.

In this short article we will give you a few examples of where things seem to be headed.  Keep in mind every jurisdiction (you’re always in at least two) is different, and that you must use a layered analysis to determine what the best course of action is. (see our previous article on overtime and truck driver pay for an example of the Federal – State interplay)  The layers here just become multidimensional with all the separate payroll taxes and employer liabilities.
truck3333

Your company should have in place and regularly update strong contract language to decisively handle and parse the issues.  Strong contracts require the input of legal, financial, and human resource specialists, and should be re-evaluated from the ground up at each renewal.  Further your staffing firm should be knowledgeable and agile as well, bringing their knowledge of best practices and battle tested language to the table.  Neither party wants to discover their contracted agreement isn’t enforceable and that they inadvertently accepted a cost or liability.

Unfortunately the playing field is forever changing, both through court decisions and legislation.  So contracts might not be honored on a given point.  One example of such legislation comes from California, where a bill passed in September puts employers directly on the hook for employee wages and workers compensation premiums unpaid by the staffing firm who provided the labor.

Assembly Bill No. 1897
…..(b) A client employer shall share with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for both of the following:
(1) The payment of wages.
(2) Failure to secure valid workers’ compensation coverage as required by Section 3700.
(c) A client employer shall not shift to the labor contractor any legal duties or liabilities under the provisions of Division 5 (commencing with Section 6300) with respect to workers supplied by the labor contractor….

Or, as the California Legislative Counsel Digest summarizes;

painknee“This bill would require a client employer to share with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage. The bill would prohibit a client employer from shifting to the labor contractor legal duties or liabilities under workplace safety provisions with respect to workers provided by the labor contractor.”

One might argue that this type of “interference with contract” may ultimately run afoul of the Constitutional Right of Contract, but given the freedom states have to regulate these matters, we shouldn’t hold our collective breaths.  Indeed, there is plenty of precedent for this type of statutory co-employment scenarios.

Many states are adopting Unemployment Compensation rating structures that use the higher experience modification of either the staffing firm or the employer.  Thus an employer cannot escape a high unemployment tax rate by out sourcing the payroll, and conversely an employer’s bad ratings can eat into the staffing agencies margin on markup.  For instance North Dakota says;

Long-term staffing services are required to report workers (on their quarterly
unemployment insurance tax reports) assigned to a client company using the client company’s unemployment insurance tax account number and, with certain exceptions, will pay taxes using the client company’s unemployment insurance tax rate. – North Dakota Employer’s Handbook

Then there is the overlay of the Affordable Care Act (ACA) and staffing scenarios.  Take this excerpt below (we won’t hate you if you just skim it, we bolded the best part, where they tell you to operate with no guidance for the moment);

Shared Responsibility for Employers Regarding Health Coverage

7. Temporary Staffing Firms

The preamble to the proposed regulations notes that the application of section 4980H may be particularly challenging for temporary staffing firms and requested comments on certain specific areas relevant to temporary staffing firms, including whether new employees of a temporary staffing firm should be deemed or presumed to be variable hour employees for purposes of the look-back measurement method as well as whether special rules should apply to temporary staffing firms for purposes of determining when an employee has separated from service and the application of the rehire rules when an employee returns after a break in service. See section VII.E of the preamble for a discussion of the rehire rules.

Some commenters requested that new employees of a temporary staffing firm be deemed, or alternatively presumed, to be variable hour employees rather than full-time employees for purposes of the look-back measurement method. Other commenters opposed the use of any presumption that employees of temporary staffing firms are variable hour employees, arguing that some of these employees will work predictable schedules averaging at least 30 hours of service per week. Temporary staffing firms vary widely in the types of assignments they fill for their clients and in the anticipated assignments that a new employee will be offered. Accordingly, the final regulations do not adopt a generally applicable presumption…..

…Section II.D.3 of the preamble to the proposed regulations addresses two arrangements under which a client employer may use a temporary staffing firm to attempt to evade application of section 4980H. In one arrangement, the client employer purports to employ an employee for only part of a week, such as 20 hours, and to hire that same individual through a temporary staffing firm for the remaining hours of the week, and then claim that the individual was not a full-time employee of either the client employer or the temporary staffing firm. In the other arrangement, one temporary staffing firm purports to supply a client an individual as a worker for only part of a week, such as 20 hours, while a second temporary staffing firm purports to supply the same client the same individual for the remainder of the week, and then claim that the individual was not a full-time employee of the client or either of the temporary staffing firms. For these reasons and the reasons set forth in section II.D.3 of the preamble to the proposed regulations, the Treasury Department and the IRS continue to be concerned about these arrangements and anticipate that future guidance of general applicability, published in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii)(b)), will address them.

 

Further the IRS has said (this actually sounds like guidance, and spells out a safe harbor);ggg

 “the final rules provide that if an employer pays an additional amount to a staffing agency under its staffing agency contract to ensure that the staffing agency is providing the individual with qualifying health insurance coverage, then this will qualify as the employer’s offer of coverage to meet the ACA’s requirements (e.g., if the individual is the employer’s common law employee under IRS standards)”. , Treas. Reg. § 54.4980H-4(b)(2)

So, now you have to worry about everyone’s healthcare?  Maybe.  We’ll wait and see.

What does this all mean?

So the bottom line is using leased labor to game unemployment rates, and dodge benefits packages is, if it ever was, not really a great reason to structure such an arrangement.  However, there are still several major advantages which can create win-win scenarios for employers and staffing companies.

One is the “Try Before You Buy” factor. Leasing to hire gives the business a chance to try out an employee before making a permanent offer of employment. In some cases, a person may have the experience and education for a job but simply does not mesh well with the work environment. Having the opportunity to have the person work on a temporary basis first gives you a chance to evaluate how the person will fit in with the operation and other employees. It also provides time to identify any weaknesses that would not typically be evident in the interview and hire process.  And in many instances and jurisdictions you can still be protected from unemployment compensation issues and liabilities.

Further we know that many accidents occur in the first 90 days of employment, so (thus far) your staffing company can absorb those workers compensation experience history and resulting modification rates.  With trucking base rates being some of the highest, a small favorable bump downwards has a huge effect on the bottom line.

Leased labor also provides a crucial Recruiting Benefit especially in tight labor markets.  If you had not noticed truck drivers are in short supply.

Truck drivers — the lack of them and the number of hours they can work — remain the top concern of trucking executives, the American Transportation Research Institute says.

Using one or more leased labor providers allows you to magnify your recruiting efforts, and satisfy business needs faster.  Professional staffing agencies can expertly market jobs to passive prospects, who might not otherwise respond to or even look at job advertisements.  Most companies do not have the time or expertise to tap this source of employees.  Generating leads and finding drivers is something most operation managers can’t spend large amounts of time on.guy

So in closing, while using a staffing agency implicates more than a few legal and financial issues, and requires sophisticated planning by both parties, an agency is still a valuable resource for recruiting and hiring drivers.  You just have to make sure that your agency is working with you to create solid contractual understandings and staying abreast of the evolving regulatory landscape.

Medical Self-Certification Deadline Confusion

In the course of helping hundreds of CDL drivers find jobs throughout the United States, we are frequently finding a surprising number of drivers who have failed to self-certify with their state’s DMV.  This means they are not employable until this is fixed.

CONFUSION

This requirement was to be fully in place by January 30, 2014, but was subsequently delayed in part to allow state DMVs to finish implementation.  Many drivers mistakenly believe their duty to self-certify was delayed, it was not.

self certification / med card enforcement
Not being self-certied can make you out of service.

Drivers were not exempted from meeting the deadline, instead the FMCSA simply has allowed carriers to accept a medical card, if the self-certification is not showing due to a state’s failure to implement the system in a timely fashion.  Further, drivers are now also mandated to carry their medical card through January 2015, even if they are self-certified and that shows on their DMV report.

According to the FMCSA  to self-certify here is what you must do:

What are CDL holders required to do?

You must determine whether you operate in interstate or intrastate commerce, and are excepted or non-excepted from either the Federal or State requirements. You must certify to your SDLA that you fall into one of the four operation categories listed below:

  • Interstate non-excepted: You are an Interstate non-excepted driver and must meet the Federal DOT medical card requirements (e.g. – you are “not excepted”).
  • Interstate excepted: You are an Interstate excepted driver and do not have to meet the Federal DOT medical card requirements.
  • Intrastate non-excepted: You are an Intrastate non-excepted driver and are required to meet the medical requirements for your State.
  • Intrastate excepted: You are an Intrastate excepted driver and do not have to meet the medical requirements for your State.

For the definition of interstate and intrastate please see the FAQ section.

If you are subject to the USDOT medical examiner certification requirement, provide a copy of each new USDOT medical examiner certificate to your SDLA prior to the expiration of your current medical examiner certificate. The medical examiner certificate is often referred to as your “medical card.”

 

The good news is this mistake is easily fixed with a trip to the DMV with your current medical card.  So if you haven’t self-certified already, go do it.  And if you have, spread the word, because the percentage of noncompliant drivers is high. Being removed from service under load, or missing a great job opportunity is bad for drivers and carriers alike.  Certainly the confusing rule changes haven’t helped, but by spreading the word we can help each other out.

DOT Sued to Set Driver Instruction Standards

Congress initially told the agency to finish a rulemaking process on driver training by 1993, but the agency still has not done so, stated a press release from the groups.TheTrucker.com

So – what’s going on? 

Advocates for Highway and Auto Safety, Citizens for Reliable and Safe Highways (CRASH), and the International Brotherhood of Teamsters filed the suit in the U.S. Court of Appeals for the District of Columbia against the DOT and the Federal Motor Carrier Safety Administration (FMCSA)  The suit was filed Sept. 18 in the U.S. Court of Appeals for the D.C. Circuit.  DOT had already announced it was beginning the process.

DOT sued to set Commerical Driver Instruction Standards.
DOT sued to set Commerical Driver Instruction Standards.

 

Plaintiff attorney Adina Rosenbaum explained the rationale for the lawsuit.

“Although the agency has announced that it has begun to look into the negotiated rulemaking process, it certainly hasn’t given any sort of timeframe of when it expects that to be completed and when it expects to have a final rule on the issue,” Rosenbaum told Land Line. – LandLinemag.com

What does this mean? Uniform standards for CDL training and instructor certification.  Something the  OOIDA has been supporting.

A safe, experienced, and professional driver behind the wheel of a tractor trailer forms the foundation of motor carrier safety. However, unlike airline pilots, railroad engineers, and tugboat captains, there has never been a requirement that tractor-trailer drivers complete a basic training regimen that ensures they know how to operate the vehicle safely in real-world conditions. This is the case, despite the fact that the general public is in constant contact with trucks and that approximately 80 percent of all truck-involved accidents are the result of a “human factor.” A good portion of the “truck driver training” programs available are focused on making sure that the individual passes the CDL road test and not on giving the new driver the skills and knowledge to control their 80,000 pound tractor trailer.

Around the country, there are what can only be deemed “CDL mills” offering folks hungry for a job a “guarantee” that they will pass the CDL written and road tests. A quick Internet search shows websites offering CDL training on DVD, test answers with a “guarantee that you will pass,” and schools that are proud to tout their “100% pass rating” – despite the fact that the new drivers may only receive less than a day’s worth of instruction on what they will be tested on, not what they will need to know as a truck driver. One school was even offering a coupon deal.

Not only are there no requirements that these schools actually provide their students any real training beyond how to pass the CDL test, there is not a requirement that instructors meet a basic level of qualification. Although many schools and training programs see that new drivers are taught by safe, experienced current or former truck drivers who have been themselves taught basic instructional techniques, too many programs rely on individuals who themselves are new to the trucking industry. It is hard to learn the safe way to operate a truck when your teacher is still learning the basics. – truckersforsafety.com an OOIDA website.

One has to wonder how it takes over 20 years to get around to making such a rule, when DOT has had plenty of time to create the CSA, the PSP, and BASIC.  Further, there is the projected professional CDL-A driver shortage for the industry to deal with, and making it harder to train drivers might enhance this deficit.

When Will Driverless Trucks Replace CDL Drivers?

Self driving trucks are coming soon. But how soon?
Self driving trucks are coming soon. But how soon?

We saw this in the Wall Street Journal about a month ago.

Daimler Demonstrates Driverless Tractor Trailer

Daimler Expects to Be Able to Mass Produce ‘Future Truck’ by 2025

During a demonstration on a still unopened stretch of the A14 highway near Magdeburg in eastern Germany, Daimler put the driverless “Future Truck” through its paces. A driver, who was only identified as Hans, sat behind the wheel, alternately driving and being chauffeured, as the truck maneuvered through a series of simulations of realistic traffic scenarios. – FULL ARTICLE

It got us thinking. So here is what our “research” shows:

When Will Driverless Trucks Hit the Open Roads

Well before driverless trucks can actually hit the roads, there has to be a legal framework for licensure and use.  There is a movement afoot to do just this, annd is in part driven by the driverless car technology being developed by Google and other more traditional auto companies.

A few states are already allowing driverless vehicles.  Nevada was first in 2011 and as of the end of 2013, three other U.S. states, (Florida, California, and Michigan), and the District of Columbia, have enacted laws addressing autonomous vehicles.

Laws for computer controlled trucks are already being developed.
Laws for computer controlled trucks are already being developed.

Of course we all know that DOT isn’t going to be left out of the picture, and the NHTSA has also promulgated the necessary regulation to allow for the experimental use of driverless commercial vehicles.

WASHINGTON – The U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) today announced a new policy concerning vehicle automation, including its plans for research on related safety issues and recommendations for states related to the testing, licensing, and regulation of “autonomous” or “self-driving” vehicles. Self-driving vehicles are those in which operation of the vehicle occurs without direct driver input to control the steering, acceleration, and braking and are designed so that the driver is not expected to constantly monitor the roadway while operating in self-driving mode.

“Whether we’re talking about automated features in cars today or fully automated vehicles of the future, our top priority is to ensure these vehicles – and their occupants – are safe,” said Secretary Ray LaHood. “Our research covers all levels of automation, including advances like automatic braking that may save lives in the near term, while the recommendations to states help them better oversee self-driving vehicle development, which holds promising long-term safety benefits.”

NHTSA’s policy addresses:

  • An explanation of the many areas of vehicle innovation and types of automation that offer significant potential for enormous reductions in highway crashes and deaths;
  • A summary of the research NHTSA has planned or has begun to help ensure that all safety issues related to vehicle automation are explored and addressed; and
  • Recommendations to states that have authorized operation of self-driving vehicles, for test purposes, on how best to ensure safe operation as these new concepts are being tested on highways.

Several states, including Nevada, California and Florida have enacted legislation that expressly permits operation of self-driving (sometimes called “autonomous”) vehicles under certain conditions. These experimental vehicles are at the highest end of a wide range of automation that begins with some safety features already in vehicles, such as electronic stability control. Today’s policy will provide states interested in passing similar laws with assistance to ensure that their legislation does not inadvertently impact current vehicle technology and that the testing of self-driving vehicles is conducted safely.

“We’re encouraged by the new automated vehicle technologies being developed and implemented today, but want to ensure that motor vehicle safety is considered in the development of these advances,” said NHTSA Administrator David Strickland. “As additional states consider similar legislation, our recommendations provide lawmakers with the tools they need to encourage the safe development and implementation of automated vehicle technology.”

The policy statement also describes NHTSA’s research efforts related to autonomous vehicles. While the technology remains in early stages, NHTSA is conducting research on self-driving vehicles so that the agency has the tools to establish standards for these vehicles, should the vehicles become commercially available. The first phase of this research is expected to be completed within the next four years.

NHTSA’s many years of research on vehicle automation have already led to regulatory and other policy developments. The agency’s work on electronic stability control (ESC), for example, led to a standard mandating that form of automated technology on all new light vehicles since MY 2011. More recently, NHTSA issued a proposal that would require ESC on new heavy vehicles.

NHTSA defines vehicle automation as having five levels:

No-Automation (Level 0): The driver is in complete and sole control of the primary vehicle controls – brake, steering, throttle, and motive power – at all times.

Function-specific Automation (Level 1): Automation at this level involves one or more specific control functions. Examples include electronic stability control or pre-charged brakes, where the vehicle automatically assists with braking to enable the driver to regain control of the vehicle or stop faster than possible by acting alone.

Combined Function Automation (Level 2): This level involves automation of at least two primary control functions designed to work in unison to relieve the driver of control of those functions. An example of combined functions enabling a Level 2 system is adaptive cruise control in combination with lane centering.

Limited Self-Driving Automation (Level 3): Vehicles at this level of automation enable the driver to cede full control of all safety-critical functions under certain traffic or environmental conditions and in those conditions to rely heavily on the vehicle to monitor for changes in those conditions requiring transition back to driver control. The driver is expected to be available for occasional control, but with sufficiently comfortable transition time. The Google car is an example of limited self-driving automation.

Full Self-Driving Automation (Level 4): The vehicle is designed to perform all safety-critical driving functions and monitor roadway conditions for an entire trip. Such a design anticipates that the driver will provide destination or navigation input, but is not expected to be available for control at any time during the trip. This includes both occupied and unoccupied vehicles.

View NHTSA’s statement of policy on automated vehicles.

When Will CDL Drivers be Replaced by Driverless Trucks?

Well this one seems to be a mixed question of economics and politics.  On a strictly economic analysis, once the cost of automation falls below the cost of a driver, companies will begin making the switch.  This is according to the Register happening in remote mining areas, where labor costs are extremely high and the conditions inhospitable.

Driverless trucks roam Australian mines

210 tonne monsters haul 300 tonnes of dirt with GPS guidance

Mining company Rio Tinto has turned to driverless trucks to operate mines in Western Australia.

The multinational digger has just confirmed it has let the trucks roam free at the Nammuldi iron ore mine, a hole in the ground located in more or less the middle of nowhere, as the nearest town, Tom Price, is 60km away. Nammuldi and Tom Price’s climates are unrelentingly unpleasant. Workers are hard to come by and the cost of living is high. Even those hardy folk that do work on site often do so on a ‘fly-in, fly-out’ basis that sees them spend a fortnight or so on site before retreating to a more pleasant locale…..

So if the cost of running a driverless truck can be lowered, then the likelihood of adoption increases, and much with more utilization prices will fall further, so we can expect to see inroads made on the highest cost and least desirable jobs first, then followed by other cheaper positions.

That is of course only if it becomes acceptable to the public at large.  The idea of driving on the road with driverless trucks may not be politically palatable to drivers, nor citizens in general.  According to a piece by Neal Peirce of the Washington Post;

A nationwide switchover to full and legal use of driverless vehicles could take many years – and a lot more proof of their safety. “We believe the individual should always have the ability to disengage and take over the system of a vehicle,” James Pisz, Toyota’s North American corporate business strategy manager, told a recent “Meeting of the Minds” policy conference in Toronto…  …Bottom line: Truly independent, self-driving vehicles won’t change our urban and metro form soon. But in 10 to 20 years, they might.  See article

And of course there’s this;

Survey: Most U.S. Adults Fear Riding in Driverless Car

Eight-eight percent of adults would be worried about riding in a driverless car, according to a recent survey commissioned by Seapine Software.

The survey, conducted online by Harris Interactive among more than 2,000 adults ages 18 and older, indicated that 79 percent of U.S. adults have concerns about equipment failures, such as a braking software glitch or a failed warning sensor. – FULL ARTICLE

There is also the possibility of resistance at a political level from truck driver constituencies such as driver’s organizations and unions.  These groups will likely argue safety is only assured by a human being, and that even if the truck is driverless, it should still have an emergency back up, a human driver.  They would also likely argue the risk of hacking such trucks makes act of terror more likely as well.

FBI warns Google’s driverless cars could be used for terrorism

An internal FBI report obtained by The Guardian says that self-driving cars have the potential to be used as “lethal weapons” in the future.

The report, written by the Strategic Issues Group of the FBI’s Directorate of Intelligence, warned that self-driving cars “will have a high impact on

Grab lunch while your truck jockies the yard and picks up a load?
Grab lunch while your truck jockies the yard and picks up a load?

transforming what both law enforcement and its adversaries can operationally do with a car.” In other words: There could soon be self-driving car bombs. – Full Article

So when will driverless commercial vehicles displace hard working drivers?  It’s hard to say, maybe never. What is clear is that the political and social implications, along with the safety and security issues will make the process stretch out for a decade or more.  In fact we’re so confident that quality CDL drivers will be needed for years to come, that we we’ve made of career of it ourselves.

Neck Size, BMI and your CDL. Drivers Beware You Might Be OOS Soon.




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Ready to get your Medical Card updated?  Feeling healthy, and you cruised through your last exam? What’s to worry about?  Plenty.over

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If your neck is bigger than 17 inches, or your BMI is 35 or greater, there might be a medical “out of service” in your future.  So let’s see how this can happen, what you need to worry about, and then in conclusion, what you can do to prevent an out of service.  Remember over 40% of drivers will meet one of these “criteria”.

WHO CARES ABOUT MY NECK SIZE?

The DOT does, and through regulations being promulgated by the FMCSA, DOT is going to have your neck size and body mass measured.  Turns out there is a statistical correlation between your neck size and / or your body mass index, and the likelihood of sleep apnea.

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According to the National Institute of Health;

Sleep apnea (AP-ne-ah) is a common disorder in which you have one or more pauses in breathing or shallow breaths while you sleep.

Breathing pauses can last from a few seconds to minutes. They may occur 30 times or more an hour. Typically, normal breathing then starts again, sometimes with a loud snort or choking sound.

Sleep apnea usually is a chronic (ongoing) condition that disrupts your sleep. When your breathing pauses or becomes shallow, you’ll often move out of deep sleep and into light sleep.

Sleep Apnea is only one problem.
Sleep Apnea is only one problem.

As a result, the quality of your sleep is poor, which makes you tired during the day. Sleep apnea is a leading cause of excessive daytime sleepiness.

Sleep apnea often goes undiagnosed. Doctors usually can’t detect the condition during routine office visits. Also, no blood test can help diagnose the condition.

This last part is most important, to reiterate, “sleep apnea often goes undiagnosed“.  Thus, the DOT is trying to find a way to flag CDL drivers who “might” have sleep apnea for further screening.  This is where neck size and the Body Mass Index (BMI) come into play.

According to WebMd;

More than half of people with obstructive sleep apnea are either overweight or obese, which is defined as a body mass index (BMI) of 25-29.9 or 30.0 or above, respectively. In adults, excess weight is the strongest risk factor associated with obstructive sleep apnea.

Each unit increase in BMI is associated with a 14% increased risk of developing sleep apnea, and a 10% weight gain increases the odds of developing moderate or severe obstructive sleep apnea by six times. Compared to normal-weight adults, those who are obese have a sevenfold increased risk of developing obstructive sleep apnea. But the impact of BMI on obstructive sleep apnea becomes less significant after age 60.

BMI isn’t the sole marker of obesity that’s important. Men with a neck circumference above 17 inches (43 centimeters) and women with a neck circumference above 15 inches (38 centimeters) also have a significantly increased risk of developing obstructive sleep apnea.

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So as you will see, DOT is trying to screen CDL drivers by requiring doctors doing medical certifications to flag anyone with a large neck or high BMI for further testing of sleep apnea.

According to The Medical Examiner’s Handbook produced by the FMCSA:




Treatments for OSA [obstructive sleep apnea] include surgery and continuous positive airway pressure (CPAP). The successfully treated driver may be considered for certification following the recommended waiting period. You should not certify the driver with suspected or untreated sleep apnea until etiology is confirmed and treatment has been shown to be stable, safe, and adequate/effective.

and

Waiting period

Minimum — 1 month after starting CPAP

Minimum — 3 months symptom free after surgical treatment

NOTE: If more than one waiting period applies (because of multiple conditions or other comorbid diseases), examine the driver for certification after the completion of the longest waiting period.

Decision

Maximum certification — 1 year

Recommend to certify if:

The driver has:

  • Successful nonsurgical therapy with:
    • Multiple sleep latency testing values within the normal range.
    • Resolution of apneas confirmed by repeated sleep study during treatment.
  • Continuous successful nonsurgical therapy for 1 month.
  • Compliance with continuing nonsurgical therapy.
  • Resolution of symptoms following completion of post-surgical waiting period.

Recommend not to certify if:

The driver has:

  • Hypoxemia at rest.
  • Diagnosis of:
    • Untreated symptomatic OSA.
    • Narcolepsy.
    • Primary (idiopathic) alveolar hypoventilation syndrome.
    • Idiopathic central nervous system hypersomnolence.
    • Restless leg syndrome associated with EDS.

Monitoring/Testing

The driver who is being treated for sleep apnea should remain symptom free and agree to:

  • Continue uninterrupted therapy.

  • Undergo yearly objective testing (e.g., multiple sleep latency test or maintenance of wakefulness test). See Sleep Disorder Tests.

According to Sleephealthier.com;

The current DOT regulations include BMI and neck size as key indicators for sleep apnea that medical examiners will be looking for during recertification physical exams. The DOT currently wants anyone with a BMI of 35 or greater to have a sleep study performed as well as anyone with a neck size of 17 inches or greater (for males) and 16 inches or greater (for females) to have a sleep study done. Drivers whose sleep study results are positive for sleep apnea and who have been set up on CPAP treatment, will have to meet certain compliance requirements when using their CPAP machines. To meet current DOT regulations, CDL holders must use their machines for 70% of the week which roughly equates to 4 hours a night for 5 nights a week.

The Federal Motor Carrier Safety Administration’s (FMCSA) goal is to reduce commercial vehicle related fatalities and injuries. A FMCSA study found is that an estimated 28% of Commercial driver’s license (CDL) holders suffered from some form of sleep apnea ranging from mild (17.6%), to moderate (5.8%) to severe (4.7%). 

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WHAT DOES THIS ALL MEAN?

Looks comfortable doesn't it.
Looks comfortable doesn’t it.

Well summarizing, if you have a BMI above 35 or a neck above 17 inches for a male, or 16 inches for a female, the DOT registered Medical Examiner “has” to test you for Sleep Apnea.  The definitive test is a sleep study, which is essentially an overnight visit, that can’ be done on the spur of the moment, and if you are unlucky enough to “fail” only a month of successful treatment (best case scenario) will ensure your Medical Card is issued.

Even worse, Overdrive Magazine has reported that:

Drivers who walk in to a medical examiners office with any of the above will be told they need to be tested for sleep apnea, McDermand said, and he’s hearing frequently from drivers who say the examiners aren’t renewing med cards if they haven’t been tested.

So drivers need to be proactive.  If your BMI is above 35 (Calculate your BMI here) or your neck is over 17 inches (16 for woman), you should get a sleep study at least three months before your Medical re-certification is required.  Because if you test positive for sleep apnea you will have time to get treatment and prove the treatment was effective at the time of re-certification.

Unfortunately this is the new reality of regulation in truck driving.  CDL drivers need to be vigilant, both when they drive and when they negotiate the maze of regulations inherent to the industry.   Make sure you pass this information along to fellow drivers,  as a medical out of service can break most peoples finances.  They’ll be sure to thank you.




BUT DIDN’T CONGRESS PASS A LAW ON SLEEP APNEA?

Yes they did, forbidding any new guidance on sleep disorders, and requiring FMCSA to use the rule making process only.  But the net effect is not to stop this issue of BMI and neck size from interfering with your medical certification.

 “Rulemaking will take at least two and possibly four years on a contentious topic like sleep apnea. In the meantime the “no rule – rule” of informal guidance to medical examiners will be in place. This informal guidance is that all drivers with a Body Mass Index (BMI) over 35 be required to get tested for sleep apnea. If positive for OSA, treatment with a Continuous Positive Airway Pressure (CPAP) machine would be required for DOT medical certification.” – http://aaacompliance.com/sleep-apnea-knowing-can-cost-cdl/

and

Since there is no FMCSA regulation regarding sleep apnea evaluation and the basic parameters are subject to interpretation, then be aware of the Medical Examiner’s position.

  • The medical examiner’s job is not to diagnose. It is to assess the driver’s medical fitness to determine if any safety risk issues exist.
  • If there is a reasonable chance of risk then the examiner will request that a specialist in that field provide a proper diagnosis and treatment if necessary.
  • If you’ve been diagnosed with sleep apnea, then another set of regulations apply.

By being proactive, you get to manage this before it becomes an issue. – http://dotphysicaldoctor.com/dot-physical-and-sleep-apnea-testing-medical-examiners-caught-between-rock-and-hard-place/

 

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When is Overtime Pay Mandatory for CDL-A Drivers?

Overtime is not a given for CDL drivers.  In fact many times there will be no overtime, unless the employer is offering it as part of a job as an incentive to attract better drivers.

It’s not the CDL license itself, nor the requirement that a CDL license is required that exempts the driver from overtime.  Rather it’s provisions in the various state and Federal laws which do it.  Many states exempt commercial drivers from overtime coverage, and some do not.  Typically the state law will read something like this:

Maryland Labor and Employment § 3-415.

      (a)      Except as otherwise provided in this section, each employer shall pay an overtime wage of at least 1.5 times the usual hourly wage, computed in accordance with § 3-420 of this subtitle.
….
(c)      This section does not apply to an employer with respect to:
(1)      an employee for whom the United States Secretary of Transportation may set qualifications and maximum hours of service under 49 U.S.C. § 3102;
…..

Of course some states, such as Washington have no such exemption, and you must be paid overtime if you live in Washington, even if you cross state lines.

Bostain v. Food Exp., Inc., 153 P. 3d 846 – Wash: Supreme Court 2007
The Bostains maintain that Mr. Bostain’s employer, respondent Food Express, Inc., is liable to Mr. Bostain under Washington’s Minimum Wage Act (MWA), chapter 49.46 RCW, for overtime based on all hours worked, whether within Washington State or outside the state. We agree. By definition, an interstate trucker will spend some hours driving outside Washington State. RCW 49.46.130(1) requires overtime compensation for interstate truck drivers. The statute makes no distinction between the hours spent driving in state and those spent driving outside Washington. Accordingly, we reverse the Court of Appeals.

In the Washington case above, the Court overruled years of interpretation by the state regulators in favor of the driver.  Further some states like New Jersey have found that the overtime exemption in their own laws don’t apply to various types of CDL work, even if they would appear to do so at first glance.  So study your state’s laws closely.  Assuming you aren’t protected by state law, you need to then analyze the Federal laws.  In this area Federal law does not preempt state law, and you get the benefit of the more favorable law.

If you are exempt from overtime under the state law (most states, but not all), then we look to see if you are owed overtime under the Federal laws.  The Fair Labor Standards Act (“FLSA”) requires overtime for work over 40 hours, except for exempt employs.  However, Section 13(b)(1) of FLSA (commonly known as the “motor carrier exemption”) exempts drivers from the maximum hour and overtime provisions of the Act. See 29 U.S.C. § 213(b)(1). Specifically, the motor carrier exemption states that FLSA’s hour and overtime provisions are not applicable to “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of Title 49.”  Section 31502 provides the Secretary of Transportation with the power to regulate employees who work for motor carriers and motor private carriers “when needed to promote safety of operation.” 49 U.S.C. § 31502(b)(2).

The Department of Transportation has defined interstate commerce as:

“A motor carrier is engaged in ‘interstate commerce’ when transporting goods either originating in transit from beyond the State or ultimately bound for destination beyond the State, even though the route of a particular carrier is wholly within one State. Merchants Fast Motor Lines, Inc. v. Interstate Commerce Commission, 528 F.2d 1042 (5th Cir. 1976). Traffic need not physically cross state lines to be in interstate commerce if the goods carried are in the course of through transit. ‘Through Transit’ is not to be confused with purely ‘local’ traffic not destined for points outside the state of origin. Id. For example, though the transportation by a carrier may be between points wholly in the same state, if the shipment originated outside of the state and was part of a continuous movement, then the in-state movement would be considered to be in interstate commerce.” Shew v. Southland Corporation (Cabell’s Dairy Division), 370 F.2d 376 (1966). See United States v. Western Pacific Railroad Co., 352 U.S. 59, 77 S.Ct. 161 (1956).

The United States Department of Labor has a fact sheet (written 5 years ago) which reads,

Fact Sheet #19: The Motor Carrier Exemption under the Fair Labor Standards Act (FLSA)

Section 13(b)(1) of the FLSA provides an overtime exemption for employees who are within the authority of the Secretary of Transportation to establish qualifications and maximum hours of service pursuant to Section 204 of the Motor Carrier Act of 1935, except those employees covered by the small vehicle exception described below.

Thus, the 13(b)(1) overtime exemption applies to employees who are:

  1. Employed by a motor carrier or motor private carrier, as defined in 49 U.S.C. Section 13102 (see Employer below);
  2. Drivers, driver’s helpers, loaders, or mechanics whose duties affect the safety of operation of motor vehicles in transportation on public highways in interstate or foreign commerce (see Employee Duties below); and
  3. Not covered by the small vehicle exception (see Small Vehicle Exception below).

1. Employer

  • Motor Carriers are persons providing motor vehicle transportation for compensation;
  • Motor Private Carriers are persons other than motor carriers transporting property by motor vehicle if the person is the owner, lessee, or bailee of the property being transported, and the property is being transported for sale, lease, rent, or bailment, or to further a commercial enterprise.

2. Employee Duties

  • The employee’s duties must include the performance, either regularly or from time to time, of safety-affecting activities on a motor vehicle used in transportation on public highways in interstate or foreign commerce.  Employees must perform such duties as a driver, driver’s helper, loader, or mechanic. Employees performing such duties meet the duties requirement of the exemption regardless of the proportion of “safety affecting activities” performed, except where the continuing duties have no substantial direct effect on “safety of operation,” or where such safety affecting activities are so trivial, casual, and insignificant as to be de minimis (so long as there is no change in the duties).
  • Transportation involved in the employee’s duties must be in interstate commerce (across State or international lines) or connect with an intrastate terminal (rail, air, water, or land) to continue an interstate journey of goods that have not come to rest at a final destination.
  • Safety affecting employees who have not made an actual interstate trip may still meet the duties requirement of the exemption if:

a)  The employer is shown to have an involvement in interstate commerce; and

b)  The employee could, in the regular course of employment, reasonably have been expected to make an interstate journey or could have worked on the motor vehicle in such a way as to be safety-affecting.

  • The Secretary of Transportation will assert jurisdiction over employees for a four-month period beginning with the date they could have been called upon to, or actually did, engage in the carrier’s interstate activities.  Thus, such employees would satisfy the duties requirement of the Section 13(b)(1) exemption for the same four-month period, notwithstanding references to the contrary in 29 C.F.R. § 782.2.

3. Small Vehicle Exception

Notwithstanding the Section 13(b)(1) exemption, the overtime provisions of Section 7 of the FLSA shall apply to an employee of a motor carrier or motor private carrier in any work week that:

1.    The employee’s work, in whole or in part, is that of a driver, driver’s helper, loader or mechanic affecting the safety of operation of motor vehicles weighing 10,000 pounds or less in transportation on public highways in interstate or foreign commerce, except vehicles:

(a)  Designed or used to transport more than 8 passengers, including the driver, for compensation; or

(b)     Designed or used to transport more than 15 passengers, including the driver, and not used to transport passengers for compensation; or

(c)  Used in transporting hazardous material, requiring placarding under regulations prescribed by the Secretary of Transportation;

and

2.    The employee performs duties on motor vehicles weighing 10,000 pounds or less.

The Section 13(b)(1) exemption does not apply to an employee in such work weeks even though the employee’s duties may also affect the safety of operation of motor vehicles weighing greater than 10,000 pounds, or other vehicles listed in subsections (a), (b) and (c) above, in the same work week.

Typical Problems

The Section 13(b)(1) overtime exemption does not apply to employees not engaged in “safety affecting activities”, such as dispatchers, office personnel, those who unload vehicles, or those who load but are not responsible for the proper loading of the vehicle. Only drivers, drivers’ helpers, loaders who are responsible for proper loading, and mechanics working directly on motor vehicles that are to be used in transportation of passengers or property in interstate commerce can be exempt from the overtime provisions of the FLSA under Section 13(b)(1).

The Section 13(b)(1) overtime exemption does not apply to employees of non-carriers such as commercial garages, firms engaged in the business of maintaining and repairing motor vehicles owned and operated by carriers, or firms engaged in the leasing and renting of motor vehicles to carriers.

So under the FLSA and related laws, if you haul in interstate commerce and you are subject to the Secretary of Transportation’s hour of service regulations, you don’t qualify for mandatory overtime.  Further, Interstate commerce can include operating a truck intrastate only, if the goods themselves are moving in interstate commerce.

So in summary, if you cross state lines in a CDL-A class vehicle, or you haul intrastate goods which are heading out in interstate commerce, you probably have no overtime protection available under the Federal laws.  But don’t forget to check your state’s law.

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Here are some related links you might want to read:

State Labor Laws Decide Paid Meal Breaks for Truck Drivers

California Overview – This overview is state specific by a California lawyer.

FMCSA to Allow Drivers to Purge Dismissed Charges from PSP and CSA Scores

When it comes to regulation we rarely get to report good news for drivers.  But starting August 23, 2014 you can  have your dismissed and not guilty citations removed from your PSP and CSA record.

WHY IS THIS IMPORTANT?

Winning a ticket in Court is great, especially when you’re innocent, and it protects your DMV records, but it doesn’t matter for your CSA or PSP scores.   Now that the Federal Motor Carrier Safety Administration is changing its inspection data system processes to allow motor carriers and drivers to purge their records of violations dismissed in court or issued a finding of not guilty. The change  begins Aug. 23. FMCSA said when the new policy takes effect, individuals must submit certified documentation of adjudication results through a Request for Data Review in FMCSA’s DataQ’s system to initiate the correction process.  The current Federal Motor Carrier Management  Information System does not permit records to be  corrected once citations or violations are posted.

This driver friendly change was in response to recent court decisions that would have forced FMCSA into litigation in the Federal Courts on a case by case basis.  So you can thank the  Owner-Operator Independent Drivers Association for forwarding and winning some of that litigation.

WHAT DOES THIS MEAN?

Any Driver who has events showing on their PSP or CSA reports that they later won in Court, should gather the certified information of the dismissal or acquittal and be prepared to open a DataQ  account and dispute the matter.  Many Insurance Companies and Carriers look as much or more at PSP and CSA scores as they do DMV records.

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FMCSA WEB LINK TO THE RULE

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