What's Wrong With Trucking

This article was written by Pat Michael and describes the truckers' plight better than any other article I have come across.

If you are a new driver and are confused about why drivers complain so much, yet continue to drive, maybe this article will help you understand a bit better.  Most drivers love the act of actually driving the truck; it is the other "stuff," like what is discussed in this article, that has many drivers angry.

The Original Recipe For Fall Asleep At The Wheel Pie
Written by Pat Michael

As in many culinary masterpieces, the genius of Fall Asleep At The Wheel pie lies less in its individual ingredients than the way they combine and compliment one another. They are folded into each other in just the right way, their qualities overlapping and blending, their essences intermingling until the whole becomes greater than the sum of its parts. Like a basic meal of meat and potatoes, it sustains, without fanfare, the energy and vitality of the truckload motor carrier industry that consumes it. For motor carriers who live on the edge of economic failure, the Fall Asleep At The Wheel Pie, rich in free labor, is all that keeps them alive and kicking.

The Fall Asleep At The Wheel Pie isn't a physical entity in the sense of Mom's apple pie. It exists in the way that poorly thought-out laws and twisted interpretations of legislation sometimes coalesce to create a fat, juicy, economic feast for a special interest group. As in all such feasts, it benefits those for whom it was not intended, while the intended must make do with less. In this case, the motor carrier industry benefits from the free labor of its drivers, and the motoring public pays for it with diminished highway safety.

The FLSA limitation on driver hours is the foundation of the Fall Asleep At The Wheel Pie and the primary ingredient to which all others are added. On the surface the limitation seemed, at the time it was created, a gem of legislative compromise. But, as with all complex plans, the devil is in the details. It limits driver hours to 10 after which they must take 8 continuous hours off duty. At that rate drivers can conceivably drive a maximum of 15 hours in one 24-hour period to a maximum of 18 hours in a 28-hour period (allowing a couple of hours for breaks and lunch). The framers of the act, however, believed that by limiting the hours to 70 hours of combined work in 8 days, drivers would work about 10 hours per day, driving and non-driving combined, thereby stretching their hours out over 7 days, more or less, leaving one day to rest before starting another 8-day cycle. Thus it would supposedly meet the requirement of flexibility demanded by the motor carrier industry, and at the same time meet the demands of the industry's safety critics who wanted drivers to work no more than 10 hours per day. In practice, however, "flexibility" only led to the practice by drivers of working 15 hours per day but only recording 10 in their logbooks.

Since drivers are only required to be paid for their driving work, and can only work 10 hours per day, on average, they are loath to record any more than 10 hours per day. Loading, unloading and waiting, comprising the second largest portion of the driver's workday after their driving hours, are routinely recorded as 30 minutes: 15 for loading and 15 for unloading (the waiting time is logged as off duty time). They understate their driving hours as well, but not by much. It takes a certain amount of time to drive 500 miles or so in 10 hours Ü it can only be understated by so much without raising a red flag with the D.O.T.

Free from the requirement to pay drivers an hourly rate for their loading, unloading, and waiting time, motor carriers make full use of the free labor they have at their disposal. Driver's labor is given freely to shippers who find no reason to hurry when loading/unloading trailers and think nothing of keeping drivers waiting for many hours before loading even begins.. This benefit is only provided by non-union motor carriers. Unionized carriers pay their drivers by the hour for all of their non-driving work so do not put up with such nonsense. And union drivers record all of their non-driving work in their logbooks so it is counted against their 70-hour weekly limit, giving unionized motor carriers an added incentive to minimize their driver's non-driving work. Non-union drivers, on the other hand, usually receive some amount of compensation for loading and unloading, but at a flat rate, not an hourly rate. They may receive $10 for flatbeds to $40 or more for vans, and often more. However, drivers paid at a flat rate (regardless of how much) still record only 15 minutes in their logbooks for loading and unloading. It's no get-rich-quick scheme Ü they still don't earn enough to compensate them for the many hours they spend waiting for which they are paid nothing at all.

The limitation of work hours to 70 in 8 days, therefore, has done no more than create the illusion before the general public that drivers are working only 70 hours per week. It has distorted empirical research on truck driver fatigue, confused the issue in the minds of the public, and held industry critics at bay for over a half-century.

The exemption of the motor carrier industry from the overtime requirements of the FLSA is an ingredient that acts as a facilitator, enabling the other ingredients of the pie to blend together into a nearly seamless whole. The exemption allows motor carriers to pay their drivers at a straight-time rate for all of their working hours. This FLSA requirement was implemented at the time of the FLSA's creation, at the motor carrier industry's urging, in order to (ostensibly) reduce driver fatigue. Never mind that the reason that overtime pay was created for industry in the first place was to discourage employers from requiring their employees to work excessive hours. For the motor carrier industry, however, the opposite reasoning was applied. As the reasoning goes, if drivers are paid for their work hours over 8 per day (since then changed to 40 per week) at 1 times their regular hourly rate of pay, they will work excessive hours in order to earn the big bucks. In a lobbying coup the motor carrier industry convinced Congress that, unlike other industries, it was powerless to control the working hours of its employees without the power to deny them overtime pay. Motor carriers ever since have required their drivers to work every hour they are legally permitted to do so without having to pay them one penny at the overtime rate (a benefit enjoyed by no other industry in the United States) - all in the name of reducing driver fatigue.

The Klinghoffer Rule (U.S. v. Klinghoffer Realty Corp., 1961) allows the motor carrier industry to pay their drivers nothing for their non-driving work, in contradiction to a cornerstone requirement of the FLSA that hourly employees must be paid for all time worked. According to the rule, if an employee's straight time earnings average more than the minimum wage, his employer need not pay him anything at all. For example, if an employee's regular rate of pay is $10 per hour and he works 40 hours, he should be paid $400. According to the Klinghoffer Rule, however, assuming a minimum wage rate of $5 per hour, the employee need only be paid $200. Moreover, since long-haul drivers are exempt from overtime pay, their work is always compensated at the straight-time rate, and their average pay always exceeds the minimum wage, which means that their employers can legally pay them nothing at all for any and all of their non-driving work. The result is predictable: using the 35 to 43 hours of non-driving work that drivers perform each week as a reference point (according to two recent studies issued by the Truckload Carriers Association) to be an average, drivers will understate their non-driving hours in their logbooks by about that many hours each week. Thus, if drivers want to be paid for the legal maximum 70 hours of work they are legally allowed to perform each week, they must work over 100 hours!

Being rational human beings, drivers do not record the hours for which they are not paid, so that they can drive more hours for which they are paid. Motor carrier management, knowing that drivers do not record their non-driving hours, heap as many such hours on their drivers as they possibly can. To please shippers, motor carrier management routinely requires its drivers to wait, unload, and load at the shipper's warehouses at no cost to the shipper. After a day of such work they are expected to drive for 10 hours or until they can't stay awake any longer. Thus, in addition to not paying them overtime, and requiring them to work the maximum hours they are legally able, motor carriers routinely require them to work the maximum number of hours they are physically able, and if a tight delivery schedule requires it--more. And there is not a thing drivers can do about it - unless they want to cut their own paychecks by a third by recording their non-driving work.

It' s not just the number of hours that drivers work that causes them to fall asleep at the wheel, but the time of day that they drive. It's the nature of truck driving that the bulk of driver's non-driving work (waiting, unloading, and reloading) takes place at the beginning of their shift - when they are most rested and alert. The 10 hours of driving they do, on the other hand, starts after nearly a full day of physical labor interspersed with periods of waiting. How can they not be excessively fatigued as they near the end of such a workday?

If driver's earnings are cut by one-third, so are their employer's. Motor carriers will lose around 30% of their revenue, or about $1,500 per week for each driver that actually records the loading, unloading, and waiting work that he performs as part of his job. With so much at stake, claims by motor carriers that they don't know that their drivers routinely lie on their logs is absurd. In the most subtle ways (and sometimes not so subtle), employers require drivers to falsify their logbooks by understating their non-driving work as part of their duties. Usually, that requires little more than letting a novice driver compare his small paycheck to those of seasoned drivers and figure out the reason for the difference - and how to cure it - with their help. When driver loading times suddenly fall from 3-5 hours to 15 minutes, management responds with a wink and a smile.

The contribution of the powerlessness of long-haul truck drivers to the creation of the Fall Asleep At The Wheel Pie lies in their inability to influence regulations and legislation that could put a stop to it. To understand why non-union truckers have so little power, its helpful to first understand why their counterparts, truckers in the less-than-truckload (LTL) sector of the industry, have so much power.

The LTL sector, made up primarily of major trucking companies, invariably have nationwide operations which make them especially attractive targets for organizing efforts. The most notable: Consolidated Freightways, Roadway Express, Yellow Freight Systems, and United Parcel Service, all have permanent terminals located across the country. Each has in the neighborhood of 500-700 terminals, strategically located and specially constructed for LTL operations, so the terminals are expensive to build and the operations are difficult to relocate. At those terminals, union representatives can meet with union members and management almost at will, and union members can contact each other for distribution of information, mutual support, and to organize concerted action. The interdependent nature of the operations almost guarantees that, once a strike occurs, all terminals will shut. Once they're closed, the long-haul drivers that haul loads between terminals stop for the duration of the strike. As an indication of the power that unions wield in the LTL industry, consider that virtually all labor contracts include a guarantee of pay for all time worked with most guaranteeing overtime pay after 8 hours of work per day (as well as after 40 per week), and their pay today is $18-$22 per hour plus another $17 in benefits. Unlike their non-union counterparts, unionized drivers record in their logbooks all of the hours they work, and work only the hours they record. To fail to record them is to risk not being paid for them. And for the long-haul drivers, any non-driving work they perform is paid at an hourly rate that is equivalent to their mileage rate of pay. (Since drivers in the unionized segment of the industry record all of their non-driving work, their accident rate should be substantially lower than for non-union drivers. However, I have not located any data comparing the accident rates for union and non-union long-haul drivers--Author.).

Non-union, truckload drivers enjoy no such strategic advantages and, therefore, no such leverage in the truckload industry. Unlike their unionized counterparts, non-union long-haul motor carriers don't need terminals at all. Often a company consists of no more than its trucks and an office where a dispatcher and a few office workers conduct most of the company's business. It's difficult for union representatives trying to organize a company's drivers to get in touch with them and for drivers to contact each other. Drivers suspected of having pro-union sentiments can be dispatched to the far corners of the country for weeks and months at a time. With no witnesses to support their side of an issue, their employers can single them out and fire them for any number of manufactured reasons, avoiding the charge that they fired them for their union activities.

The absence of an organization to represent them in negotiations with management teams means they also have no one to represent their interests in Congress or any of the regulatory agencies that control their method of compensation, hours-of-service, and working conditions.

Those who think the Teamsters Union will represent the interests of non-union truck drivers are mistaken. For the Teamsters to demand pay for all time worked for non-union drivers would be to give away, without a quid pro quo, one of the the greatest benefits it can offer. It's far better to present itself as the driver's champion by making ridiculous demands that will stand exactly a zero chance of being adopted. After all, as the reasoning goes, if drivers want to be paid for all of their work Ü they should join the union.

The relationship between driver compensation and driver fatigue was clearly demonstrated in the NTSB's 1995 Safety Study, much touted before its release as the last word in all things regarding driver fatigue. A section on driver compensation indicated that drivers paid by the mile have 250% more accidents resulting from fatigue than those who are paid by the hour. Using the data from the study and a little basic math, the study reveals that if an hourly rate of compensation was applied across the board, displacing all other methods of compensation, accidents resulting from fatigue could be reduced by 56%, and accidents overall by 33%. One of the goals of the Motor Safety Improvement Act of 1999 (H.R. 3419) calls for the reduction of motor carrier fatalities by 50% by the year 2008. By requiring that drivers be paid by the hour, according to the NTSB study, two-thirds of that goal could be reached in the time it takes to implement the change.

In spite of the demonstrated relationship between compensation and fatigue, and the statement by researchers that more research on compensation was called for, no such follow- up research has been conducted. Furthermore, according to David Longo, spokesperson for the newly created National Motor Carrier Safety Administration, a division of the Department of Transportation, while the FMCSA does consider driver compensation to be a factor in fatigue, it does not consider it an issue that falls under the responsibility of the FMCSA. According to Longo, the FMCSA has no intention of proposing legislation or regulations regarding driver compensation. ( The FMCSA was created by Congress in 1999 to replace the Office of Motor Carrier Safety, which was found to be unduly influenced by the motor carrier industry and no longer effective in securing safety on the nation's highways. It is administered by the same people as the OMCS).

According to Daphne Izer, founder of Parents Against Tired Truckers (PATT), various officials in the DOT and the FMCSA have stated that driver compensation is the Department of Labor's problem. For their part, the DOL claims that it's not their job to create regulations for the motor carrier industry. According to Daniel F. Sweeney, Office of Enforcement Policy, Fair Labor Standards Act, current regulatory authority of truck drivers resides with the DOT, and only the DOT or a Congressional amendment to the FLSA can change the laws and regulations regarding driver compensation.

According to Longo, of all the "partners" of the FMCSA that contributed to the hours of service regulations now being considered by Congress, none represented non-union truck drivers. Thus, of the partners now working with the FMCSA to address highway safety and hours-of-service, the motor carrier owners are the most influential, while non-union truck drivers, who make up the most significant and relevant factor in driver fatigue, are not represented at all. The unwillingness of the FMCSA to act on evidence that driver compensation is a major factor in fatigue, and its exclusion of long-haul truck drivers from its group of "partners" is compelling evidence that it is dancing to the motor carrier industry's tune, just like its predecessor.

The Fall Asleep At The Wheel Pie provides sustenance only to motor carriers and shippers in the form of the driver's free labor. The cost to the driver is fatigue, stress, and burnout. The public's cost can be measured in diminished highway safety when drivers fall asleep at the wheel. Ultimately, drivers working without pay guarantees that they will continue suffering from excessive fatigue, and continue creating murderous conditions on the nation's highways.

The changes required to make our highways safe should not be left to the tender mercies of the motor carrier industry or the Federal Motor Carrier Safety Administration. The motor carrier industry has demonstrated for over half a century that it can require drivers to work without pay, and lie in their logbooks to understate their non-driving work, and drive fatigued. In its advisory capacity to the FMCSA it will continue to argue for "flexibility," another word for the wiggle room it needs to get around the very regulations that it is helping to create.

It's time for Congress to shoulder its responsibility for the safety of the nation's highways and stop passing their responsibility off to regulatory agencies that have neither the will nor the power to overcome the lobbying efforts of the motor carrier and shipping industries. As a matter of public policy in promotion of public health and highway safety, Congress needs to amend the FLSA to guarantee long-haul truck drivers the right to be paid for all of their work, driving and non-driving alike*. Such legislation will ensure that the person most responsible for highway safety, the driver, is rewarded with a fair wage for voluntarily recording all of his work hours in his logbook and actually working only those hours that he records. Only then can his work hours be brought under control. On then will drivers falling asleep at the wheel become a rarity instead of the cause of 50%-60% of all truck crashes as it is today.


Pat Michael is an ex-truck driver and free lance writer living in Springfield, Oregon. This article is the first in a series he is writing addressing the consequences to the industry of drivers working without pay, including its effect on driver fatigue, turnover, and the operating practices of carriers and shippers. Comments are welcomed.

Patrick Michael retains ownership of this article but gives permission for its reproduction to non-profit agencies and to individuals who are not for-profit publishers or who do not benefit financially from it, as long as Pat Michael is cited as the source.