7th Circuit Case number 15-3756

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OWNER-OPERATOR INDEPENDENT DRIVERS

ASSOCIATION, INC.; et al,
Petitioners
vs.
UNITED STATES DEPARTMENT OF TRANSPORTATION;
et al,
Respondents

On Petition for Review

of the Electronic Logging Device Final Rule

AMICUS CURIAE BRIEF OF JACK JAMES ELIAS

Jack James Elias

2305 Amber Lynn Lane
PO Box 3312
Ramona, CA 92065
(760) 310-1476
(E-li-as: long-e, long-i, accent on middle syllable)

TABLE OF CONTENTS
Page
Table of Contents ..................................................................................

Table of Authorities ..............................................................................

ii

Certificate of Compliance .....................................................................

iv

Overview ...............................................................................................

The Compatibility Issue .......................................................................

The Flexibility Issue ..............................................................................

10

The Antitrust Issue ................................................................................

13

A Way Forward .....................................................................................

21

Conclusion .............................................................................................

23

TABLE OF AUTHORITIES

Cases

Page

Armour v. Wantock
U.S. Supreme Court (1944) .................................................

21

Central Missouri Telephone Company v. Conwell

U.S Court of Appeals, 8th Circuit (1948) .........................................

20

Skidmore v. Swift
U.S. Supreme Court (1944) ..............................................................

21

Tennessee Coal, Iron & Railroad v. Muscoda Local No. 123

U.S. Supreme Court (1944) ..............................................................

22

Congressional Acts
The Commercial Motor Vehicle Safety Enhancement Act
Section 32301(b) ..............................................................................

The Fair Labor Standards Act

29 USC 201 .............................................................................

22

The Sherman Antitrust Act

15 USC 1-7 .............................................................................. 23

Statutes and Regulations

49 CFR 395.2 (definition of on duty time) ... 3, 7, 17, 18, 19, 20, 21, 22, 23
24, 25, 26, 27.
ii

49 CFR 395.3(a)(2)......................................................

3, 7, 11, 12, 14, 22

49 CFR 395.3(a)(3)(i) ...........................................................

3, 11, 12, 13

49 CFR 395.3(a)(3)(ii) .............................................................................

49 CFR 395.3(b)(2) ......................................... 3, 4, 6, 11, 12, 17, 20, 23, 26

49 CFR 395.3(a)(1) .....................................................................

3, 6, 7, 28

49 CFR 395.3(c) ....................................................................................

49 CFR 395.3(d) ....................................................................................

49 USC 31136(a)(4) ..............................................................................

29 CFR 785.20 ........................................................................................

18

29 CFR 785.16(a) ..................................................................................

18

29 CFR 785.16(b) ..................................................................................

18

29 CFR 785.7 ......................................................................................... 21

29 CFR 785.22 .......................................................................................

24

Federal Register Notices

Notice of Proposed Rulemaking on Electronic Onboard Recorders
Vol. 76, Page 5537 FR (Feb 1, 2011) ................................................

Supplemental Notice of Proposed Rulemaking

Vol. 79, Page 17656 FR (Mar 28, 2014) .......................................

The Impact of Driver Compensation on Commercial

Motor Vehicle Safety Vol. 80, Page 6159 FR (Feb 4, 2015) ..........

10

Information Collection Request

Vol. 80, Page 6159 FR (Feb 4, 2015) ......................................... 10, 14
iii

Certificate of Compliance

This brief complies with the word count limitation specified in Rule 29(d)
of the Federal Rules of Appellate Procedure, which limits the length of an
amicus brief to one-half the maximum length authorized by these rules
for a party's principal brief. This brief contains 6,962 words, excluding
the parts exempted by FRAP rule 32(a)(7)(B)(iii).
The typeface is proportionately spaced using 14-point Times New Roman
font for double-spaced text and 12-point for footnotes and quotes.

Jack James Elias

iv

AMICUS CURIAE BRIEF

of Jack James Elias
Filed with consent of the opposing parties

OVERVIEW
Both parties in this case are obfuscating important facts. For its part, the Owner
Operator Independent Driver Association (OOIDA) is obfuscating the fact that
Electronic Logging Devices (ELDs) have a potential to improve motor carrier
safety. For its part, the Federal Motor Carrier Safety Administration (FMCSA) is
obfuscating the fact that electronic monitoring of Hours of Service consumption
has inherent dangers and risks. If that sounds like a paradoxical statement, its
not difficult to understand. Benefits and risks are naturally occurring opposites.
Prescription drugs have benefits and risks. In approving a new drug, federal
regulators must determine whether the benefits outweigh the risks.
It is not the task of the Court of Appeals to decide whether the safety
benefits of ELD use outweigh the safety risks, or vise versa. That is a question
Congress should have addressed in Section 32301(b) of the Commercial Motor
Vehicle Safety Enhancement Act when it mandated that the Department of
Transportation adopt regulations requiring electronic logging devices.
With or without instructions from Congress to evaluate possible safety
hazards resulting from the use of ELDs, FMCSA should have thoroughly studied
the dangers and risks and reported the findings in its Supplemental Notice of
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Proposed Rulemaking (SNPRM, 79 FR 17656, March 28, 2014).

If it can be established that FMCSA did not consider the safety risks associated
with the deployment of Electronic Logging Devices, and ignored public comments
citing safety risks, then the court must decide what to do about that.
Reading FMCSAs Notice of Proposed Rulemaking on Electronic Onboard
Recorders (February 1, 2011), FMCSAs Supplemental Notice of Proposed
Rulemaking on Electronic logging Devices (March 28, 2014), and FMCSAs
regulatory impact statement on ELDs (Draft Environmental Assessment,
February 2014), I am unable to find any discussion of the potential safety risks
of ELD use. These documents only talk about the benefits of ELD use.
FMCSAs argument in support of its proposal to implement electronic logging
devices is predicated on a logical fallacy, as evidenced by the following statement:
Because the proposal would increase compliance with the HOS regulations, it would
have a positive effect on the physical condition of drivers and help to ensure that
CMVs are operated safely.
(SNPRM, Federal Register, Volume 79, March 28, 2014, Page 17661)

The statement assumes, as a foregone conclusion, that compliance with the

regulations only produces positive results. This is a classic non sequitur, an
unjustified leap of logic, with no value beyond propaganda.
If not intelligently crafted, fatigue management regulations can have an
adverse effect on driving behavior and can result in the unintended consequence
of forcing truckers into inverted (upside down) sleep/work cycles. If regulators
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are going to compel truckers to comply with a set of rules by means of electronic
monitoring then they had better make sure that the rules make sense.
The Hours of Service regulations for truckers who operate 7 days a week
consist of five primary rules the 11-hour driving limit rule, the 10-hour break
rule, the 14-hour workday window rule, the 70-hour, 8-day driving limit rule,
and the 30-minute break rule. There are secondary rules governing split sleeper
berth operations, rules related to the reporting of non-driving duty time, and the
34-hour restart rule.
FMCSA should have examined each of the Hours of Service rules individually
in order to determine if electronic enforcement would result in a safety hazard.
In addition, FMCSA should have studied the matter of truck driver compensation
(piece-rate pay versus hourly pay) from a psychological perspective to determine
if electronic timing of hours of service consumption would have a detrimental
effect on driving behavior. 1 The results of these studies should have been reported
in the Federal Register prior to issuing a final rule.
If there is any question whether FMCSA was obliged to evaluate the Hours
of Service rules for potential health and safety hazards prior to proposing an
Electronic Logging Device mandate, I refer the Court to 49 USC 31136,

Employee truckers who drive over-the-road are paid by the mile. Owner-operator truckers
who drive over-the-road are paid by the mile or paid a percentage of freight revenue.

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subsection (a), which sets Minimum Safety Standards for the regulation of
interstate trucking. The statute states that At a minimum, the regulations shall
ensure that (4) the operation of commercial motor vehicles does not have a
deleterious effect on the physical condition of the operators.
Regulations intended to manage fatigue can have a deleterious effect on
the physical condition of truckers for a variety of reasons. If one or more of the
regulations are having a deleterious effect on truckers and FMCSA refuses to
acknowledge that fact, then FMCSA is not fulfilling its Congressional mandate.
Even now as you are reading this, truckers traveling the nations highway are
suffering from sleep deprivation and are falling asleep at the wheel because of an
ill-conceived Hours of Service rule. I am referring to the 70-hour, 8-day driving
limit. The trouble with the 70-hour limit is that it interferes with circadian rhythms
and forces truckers into inverted sleep cycles. If truckers had the same number of
log hours to use every day there would be no problem. But truckers are limited
each day to the number of hours that are remaining within the 70-hour limit. I
may have 11 log hours available today, or I may only have 3 hours available. It
depends on the sum total of hours that I logged in the previous 7 days. If I logged
66 hours in the previous 7 days, then today I will only have 3 hours available.
I may be short on log hours today but my load delivers tomorrow morning at
6:00 AM and I have 500 miles to go. Even though I slept well last night and feel
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great, I will have to try to sleep during the day and be ready to drive at midnight
when I regain log hours. Truckers dont just get out of bed and drive. It takes time
to get ready and have something to eat. I will set my alarm for 11:00 PM tonight.
I will try to sleep during the day but mostly toss and turn. When 11:00 PM
arrives I will be exhausted and finally ready to sleep. After an hour or two of
driving I will begin to experience microsleeps. 2 The microsleeps will get
progressively worse and more difficult to control as the hours pass. By 3 or 4 AM
I will be fighting to stay alive. 3 It may be 50 miles to the next truck stop and at
that time of night there probably wont be any parking spaces. It is illegal to park
on the shoulder of the highway without setting out emergency triangles, and
dangerous in any case. Another sleep-deprived truck driver, forced by an electronic
logging device into an inverted sleep cycle, may drift onto the shoulder of the
highway and crash into my truck killing both of us.
Truckers are compelled to keep driving when fighting deadly fatigue largely
because of the propaganda statement from FMCSA that I quoted earlier claiming
that electronic enforcement of the HOS regulations would have a positive effect
on the physical condition of drivers. According to FMCSAs reasoning, if a truck

Microsleep is a term used by sleep researchers to identify a temporary episode of sleep

which may last for a fraction of a second or up to 30 seconds where an individual fails to
respond to some arbitrary sensory input and becomes unconscious (Wikipedia).
I am writing in the first person but describing a hypothetical situation.

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driver is experiencing dangerous levels of fatigue and falling asleep at the wheel
its his fault that hes fatigued, not the fault of the regulations.
In past decades, truckers skirted the regulations to avoid sleep cycle disruptions
caused by the 70-hour limit. With electronic monitoring there is no way to mitigate
an inverted sleep cycle. Without changes to the regulations, electronic enforcement
of the 70-hour, 8-day driving limit will likely result in a sharp increase in the use of
sleeping pills by long haul truckers.
In its Supplemental Notice of Proposed Rulemaking, FMCSA states:
The HOS regulations are designed to ensure that driving timeone of the principal
responsibilities imposed on the operators of commercial motor vehiclesdoes
not impair their ability to operate the vehicles safely (49 U.S.C. 31136(a)(2)).
(SNPRM, Federal Register, Volume 79, March 28, 2014, Page 17661)

In a statement that purports to show that regulations limiting driving time

fulfill the Minimum Safety Standards mandate, the words designed to ensure
fail to convince. The relevant question is not the intent of the regulations, but
whether the regulations do what they are supposed to do without producing
harmful effects on driver health and safety, and the safety of the motoring public.
In its proposals, FMCSA avoided that question altogether.
The problem with ELDs is not the device itself but the underlying regulations.
If the device was only used to enforce the 10-hour break rule, what reasonable
person would argue with that? The quantity and quality of sleep, more than any
other fatigue countermeasure, determines wakefulness, alertness and level of
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energy throughout the day.

The duration of the waking cycle, and the number of driving hours logged
during the waking cycle, are reasonable predictors of fatigue. Under current
regulations, the waking cycle is limited by the 14-consecutive-hour workday
window rule, a recent development in motor carrier regulatory history. The
14-consecutive-hour workday window rule replaced the 15-hour on duty rule.
Under the old rule, the 15-hour workday limit was calculated by adding up
driving time (logbook Line 3) and on duty, not driving time (logbook Line 4).
Since truckers are inclined to underreport or omit from their logs unpaid duty
hours, the 15-hour limit was seldom, if ever, reached. A truck driver could stay
awake 24 hours without an 8-hour sleep break and continue to drive under the
15-hour on duty rule and his log would appear be in compliance as far as the
arithmetic was concerned.
The beauty of FMCSAs 14-consecutive-hour workday window rule is that
it doesnt depend on the reporting of on duty, not driving time. Some truckers
say that they hate the 14-hour workday window rule but I fully support it. You
shouldnt have to work yourself to death to make a living.
Ending the dependent relationship between on duty, not driving time and
the rule limiting the duration of the waking cycle opened up new and exciting
possibilities as far as driver pay is concerned.
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THE COMPATIBILITY ISSUE

FMCSA has not addressed vital concerns regarding the compatibility of electronic
Hours of Service monitoring and pay-by-the-mile truck driver compensation, which
is the standard pay scheme used by interstate truckload carriers to pay employee
drivers and some owner operators.
If you limit the number of hours truckers who are paid by the mile can drive
in an 8-day period, and measure hours consumption with a stopwatch, you create
an incentive for truckers to drive faster and more aggressively. It is a simple
matter of arithmetic: drive slower, burn up hours; driver faster, conserve hours.
If truckers were paid by the hour for driving duties, electronic timing wouldnt
matter. A trucker would make the same amount of money in one hour regardless of
the rate of speed, and would be under a lot less pressure.

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Pay-by-the-mile compensation encourages speed on steep downhill grades

where there is a risk of losing brakes, on ice covered road surfaces where there is
a risk of losing traction, in heavy fog where there is risk of crashing into stopped
traffic, in high winds where there is a rollover risk, in construction zones where
there are reduced speed limits, and in business and residential districts and school
zones where pedestrian traffic is at risk of being run over.
Pay-by-the-mile compensation not only encourages speed but it also encourages
truckers to run red lights at intersections and railroad crossings. There is no time
to stop for a red light with an electronic stopwatch counting away your log hours.
With paper logs, truckers use pocket calculators and odometer readings to
estimate reasonable travel times between stopping points and dont always show
time lost in traffic jams and other delays. If snow or dense fog results in a reduced
mile per hour average the lost time wont show on the drivers log. Its no secret
that truckers falsify their paper logs in this manner, and the reason why is obvious.
Its because they are being paid by the mile, and when you are paid by the mile
you need to maximize each log hour by driving as fast as you can.
With paper logs and pay-by-the-mile compensation, you can drive slower and
work on your fuel mileage. With electronic logs and pay-by-the-mile compensation,
there is a green flag and a checkered flag and a dangerous race to beat the clock.
It doesnt take a scientific study to come to the conclusion that pay-by-the-mile
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compensation is incompatible with regulations limiting hours of service. This is

not an opinion or hypothesis, it is a mathematical fact.
In its Notice of Proposed Rulemaking on Electronic Logging Devices,
FMCSA didnt mention one word about the incompatibility of the Hours of
Service regulatory method and pay-by-the-mile driver compensation.
The compatibility issue is a matter of personal integrity and character. Those
who acknowledge the compatibility issue and pledge to do something about it are
on the right side of motor carrier safety. Those who deny the compatibility issue,
stubbornly cling to the status quo and refuse to adapt to changing realities are
on the wrong side of motor carrier safety.
FMCSA has yet to publicly acknowledge the compatibility issue. That is
not to say that FMCSA is unaware of the hazards of pay-by-the-mile driver
compensation. On February 4, 2015, FMCSA published in the Federal Register
an Information Collection Request (ICR) titled The Impact of Driver
Compensation on Commercial Motor Vehicle Safety (Federal Register,
Vol. 80, No. 23, February 4, 2015, page 6159). Former FMCSA administrator
Anne Ferro spearheaded that initiative. 4
4

Administrator Ferro was succeeded by FMCSA Acting Administrator T. F. Scott Darling, III,
who appears to have taken interest in the driver compensation safety impact study. Prior to
his nomination, Mr. Darling held the position of FMCSA General Counsel. Mr. Darlings
qualifications as Administrator have been disputed by critics who say that he is a lawyer
and doesnt understand trucking issues. To my way of thinking, because he is a top-notch
lawyer and understands legal arguments and legal language, Mr. Darling is potentially the
man of the hour and is in the right place at the right time.

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To begin building a statistical database, FMCSA mailed a questionnaire to

trucking companies requesting information about how drivers are paid (Internet
search words: FMCSA Form MCSA-5887).
FMCSA has devoted a page on its Internet website to studying the relationship
between methods of truck driver compensation and driving behavior. The title of
the web page is Impact of Driver Compensation on Commercial Motor Vehicle
Safety.
Regardless of how FMCSA frames it, the driver compensation safety impact
study is an inquiry into the compatibility of electronic logging devices and Hours
of Service rules. When truckers are paid by the mile, each hour of driving is a race
against the clock. FMCSA must realize this otherwise there would be no need for
a driver compensation safety impact study.
THE FLEXIBILITY ISSUE
Truckers who use electronic logs are under tremendous pressure to avoid Hours
of Service violations. A violation of the 11-hour, 14-hour, or 70-hour limit
registered by an Electronic Logging Device today can result in a large fine at
a state operated truck inspection station at any time in the next 7 days. A trucker
can be fined or even jailed as a result of log violations discovered in an FMCSA
log audit. Trucking companies are intolerant of Hours of Service violations and
will terminate the employment of drivers who have violations. These pressures
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have the potential to induce high risk driving behavior. If a trucker operating
electronic logs is approaching the 11-, 14- or 70-hour limit and is about to register
an Hours of Service violation, he might be inclined to speed, run a red light or
weave around the lowered gates of a railroad crossing in order to get to a parking
place quickly.
Enforcement personnel have taken a caviler stance in response to truck driver
complaints about lack of flexibility in the Hours of Service rules. Drivers need
to plan ahead and better manage their time, officials have said. But its not that
simple. No matter how well trips are planned, unexpected events can put a driver
at risk for a violation. There are drivers who dont plan well and get into circumstances that they could have avoided. However, as anyone who manages safety
should know, the primary consideration in establishing safety policy is not who
to blame after a catastrophe has occurred but rather what is likely to happen
given certain conditions, rules, etc.
It is a cavalier attitude indeed that ignores the need for flexibility in winter
weather when the roads are bad. You wouldnt expect the captain of a ship at sea
to drop anchor in the path of an oncoming typhoon because hes out of log hours.
I run the Western states out of Montana. There are dangerous mountain passes
in that region. A winter storm may be approaching and I want to get over Lookout
Pass in Montana, Snoqualmie Pass in Washington state, Vail Pass in Colorado,
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or Donner Pass in California before the storm hits but I dont have enough log
time (I may be only 15 minutes short) to make it to a truck stop or rest area on
the other side of the mountain and have to shut down for the night. 5
I suggest dialing back the 11-hour driving limit to 10 hours of driving with the
possibility of 3 or 4 one-hour overruns in each calendar month to accommodate
parking scarcity issues and other needs. 6
I make that suggestion anticipating that OOIDA might consider such back
and forth changes by FMCSA capricious, as it has done in the past. I dont
agree with OOIDA in that regard. FMCSA needs to be willing to experiment
with changes and should not be discouraged from doing so. Regulations should
be dynamic and subject to change when evidence shows that there is a need for
improvement.
The 14-hour workday window rule should be amended to accommodate
drivers who run out of log hours while loading or unloading at customer facilities.
Drivers complain about this constantly. The customer does not allow parking on
its premises and there is no parking outside the facility on the street. The current

49 CFR 395.1(b)(1) permits a driver who encounters adverse driving conditions to drive
an additional 2 hours beyond the limits defined by 395.3(a), which includes the 11-hour and
14-hour limits but not the 70-hour limit. The 70-hour limit falls under 395.3(b). In the case
of adverse weather conditions, the word encounter seems to require direct contact with, and
not merely the prediction of, bad weather.
6

Adding an extra hour, even occasionally, to the current 11-hour driving limit a total of 12
hours of driving might be considered excessive.

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rule does not permit a driver who has exceeded the 14-hour limit to drive from
a customer facility onto a public roadway even if the distance traveled is only
100 feet. If a customer demands that a truck leave its premises after business
has been completed, the driver of the truck is on duty, driving while relocating
the truck. Moving the truck is a necessity, not a choice, and is therefore work as
defined by the regulations. A simple solution to the problem would be to allow
two or three overruns of the 14-hour rule in each calendar month, time enough
to drive to a remote parking place.
THE ANTITRUST ISSUE
In doing research for this brief I found my way to the FMCSA proposed rulemaking
public comment docket titled Impact of Driver Compensation on Commercial
Motor Vehicle Safety. FMCSAs subject of notice was the intent to distribute
among motor carriers an Information Collection Request (ICR) in the form of a
questionnaire to find out what methods carriers are using to compensate their
drivers. Among the public comments on display were those from the Owner
Operator Independent Driver Association (OOIDA) and the American Trucking
Associations (ATA). Judging from its public comment, OOIDA appears to be
receptive to FMCSAs driver compensation safety impact study. ATAs public
comment is staunchly opposed to the initiative.
This is a curious reversal of roles. Whereas ATA has been a proponent of
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ELDs and OOIDA a strident opponent of ELDs, when it comes to inquiring

whether or not pay-by-the-mile driver compensation is compatible with the
Hours of Service regulatory method, OOIDA supports FMCSAs initiative and
ATA strongly opposes it.
In its public comment on the FMCSA driver pay safety impact study, ATAs
Senior Vice President and General Counsel wrote:
ATA opposes the proposed ICR as an inappropriate diversion of resources and funds
from FMCSA's core mission.

That statement may play well to an audience of trucking company executives

but not to an impartial observer. FMCSAs core mission is to ensure that
commercial motor vehicles are operated safely. I can think of no other regulatory
action that would have a more profound effect on the driving behavior of the
American trucker than a shift to hourly pay. Speed would no longer be cool
or necessary to maximize hourly earnings.
In its public comment, ATAs General Council wrote:
While ATA remains ready to explore innovative ways to improve motor carrier safety,
a reversion to the long since rejected era of economic regulation is neither innovative
nor effective.

Characterizing FMCSAs driver compensation safety impact study as an

attempt at economic regulation is a straw man argument that misrepresents
FMCSAs position. Government mandated hourly driving pay would not be
economic regulation in the sense of government telling employers how much
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they should pay their employees, but rather a mechanism that changes the
contingencies of reinforcement (a term used by behavioral scientists) from a
model that incentivizes speeding and aggressive driving to one which pays a
consistent reward for each hour of driving no matter what the mile per hour
average happens to be.
Why are truckload carriers opposed to hourly driver pay? An electronic
logging device measures driving hours with precision accuracy, like punching
a time clock. So why not pay drivers a fixed wage for each hour that they drive?
Truckload carriers balk at hourly driver pay because they assume it would
mean paying drivers not just for driving duties but for non-driving duties as well.
Since freight rates are calculated on the basis of mileage between pick up and
delivery points, irrespective of how carriers compensate their drivers, a shift to
hourly pay would cut deeply into carriers profit margins or erase profits altogether.
Disconnecting driver pay from how we get paid by our customers is a very
frightening thought for this industry, according to ATA board member Steve
Gordon, Chief Operating Officer of Gordon Trucking of Pacific, Washington,
speaking at an ATA management conference. 7 Hourly pay would be financial
suicide, Gordon warned.

Hourly pay for drivers is financial suicide for truckload carriers, exec says, Commercial
Carrier Journal, ccjdigital.com, October 23, 2013.

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I agree with Steve Gordons hourly driver pay impact assessment, but for
different reasons. Paying drivers by the hour for non-driving duties would compel
drivers to record the compensated time on Line 4 of their logbooks instead of
falsely reporting off duty, which is what truckload carrier drivers who are paid
by the mile are doing now in most cases. An increase in Line 4 activity would
result in a corresponding reduction in the number of log hours that would be
available for driving, and that would mean a decrease in equipment utilization
and loss of revenue as well. It would be as if the 70-hour, 8-day limit had been
cut to 50 hours in 8 days, or even less.
Paying drivers by the hour would be financial suicide not because of an
imbalance between labor costs and freight rates, a matter that would resolve
quickly if hourly pay became a reality, but because of antiquated regulations that
charge non-driving duty time to the 70-hour driving limit.
Obviously, if drivers are going to claim an hourly wage for non-driving duties
then they are going to have to report the time on Line 4 of their logbooks. For every
non-driving duty hour logged there would be one less driving hour available within
the 70-hour limit. Does anyone believe truckload carrier executives havent thought
about this?
Truckload carrier executives are unable to openly discuss their real fears about
hourly driver pay without admitting that they are engaged in a conspiracy to violate
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Hours of Service rules.

There are two sets of federal regulations that require motor carriers to keep
records of truck drivers on duty hours: the Department of Transportation Hours
of Service regulations and the Department of Labor Wage and Hour Division
regulations. The failure of motor carriers to keep accurate records of drivers
on duty hours is a violation of both DOT and DOL regulations.
Wage and Hours Division definitions of on duty time are codified at 29 CFR
785 under the title Hours Worked.
Department of Transportation regulations define on duty time as follows:
On duty time means all time from the time a driver begins to work or is required to be
in readiness to work until the time the driver is relieved from work and all responsibility
for performing work.
(49 CFR 395.2)

In most cases, shippers and consignees require drivers to remain on the

premises while trailers are being loaded or unloaded. If a driver is not permitted
to leave a customer facility then the driver is on duty regardless of whether he
spends the time in the customers break room or in the trucks sleeper berth
sleeping.
Wage and Hour Division regulation 29 CFR 785.20 reads, in pertinent part:
Under certain conditions an employee is considered to be working even though some of
his time is spent in sleeping or in certain other activities. ...

Wage and Hour Division regulation 29 CFR 785.16(a) reads:

(a) General. Periods during which an employee is completely relieved from duty and

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which are long enough to enable him to use the time effectively for his own purposes
are not hours worked. He is not completely relieved from duty and cannot use the time
effectively for his own purposes unless he is definitely told in advance that he may leave
the job and that he will not have to commence work until a definitely specified hour has
arrived. Whether the time is long enough to enable him to use the time effectively for
his own purposes depends upon all of the facts and circumstances of the case.

Wage and Hour Division regulation 29 CFR 785.16(b) reads:

Truck drivers; specific examples. A truck driver who has to wait at or near the job site
for goods to be loaded is working during the loading period. If the driver reaches his
destination and while awaiting the return trip is required to take care of his employers
property, he is also working while waiting. In both cases the employee is engaged to wait.
Waiting is an integral part of the job. ...

A random sampling of driver logs from any of the major truckload carriers
will show that drivers are logging a minimum amount of on duty, not driving
time generally 5 to 30 minutes upon arrival at shipping and receiving facilities
and are logging off duty while trailers are being loaded or unloaded, in violation
of both DOT and DOL record keeping requirements.
A driver whose logs show 70 hours of on duty time in 8 days is in violation
of the 70-hour limit to the extent that he omitted segments of Line 4 time during
that period.
Truckload carrier executives know full well that the drivers they employ are
falsifying Line 4 time on their daily logs, and are doing so on a massive scale.
The unwillingness of executives to give hourly pay a try, if only on a limited
basis, belies any claim of ignorance.
Truckload carriers are unable to point to an example of hourly pay tested
experimentally on even one driver. Hourly pay has never been tried on even one
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driver because the amount of Line 4 time showing on the logs of the hourly pay
driver would be much greater than the amount of Line 4 time showing on the logs
of other drivers in the same fleet, and that would raise questions in a DOT log
compliance audit.
If truckers were accurately logging their non-driving duty hours according
to the regulations there would be no increase in Line 4 activity if hourly pay
became a reality. Equipment utilization would already have been reduced by
large percentage points, the fallout would already have taken its toll on the U.S.
economy and truckload carriers would be calling for changes in the way the
70-hour, 8-day driving limit is calculated instead of remaining oddly silent on
the subject.
In is odd indeed that the truckload carrier industry, with all its wealth and
legal talent, has never petitioned the DOT to tabulate Line 4 time and the 70-hour
driving limit separately. There is good reason to support such a change.
The Hours of Service limitations, which were promulgated in 1937 by the
now defunct Interstate Commerce Commission (ICC), are predicated on the word
service.
Service is a broad, sweeping generality that has been liberally construed by
the courts to include, in certain circumstances, periods of sleep, as in the case
of Central Missouri Telephone Company v. Conwell (U.S Court of Appeals,
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8th Circuit, 1948), a case cited in Part 785.21 of Wage and Hour Division
regulations.
The ICC-era rule linking service to fatigue predates U.S. Supreme Court
decisions defining the meaning of work by almost a decade (1937 versus 1944
and 1946).
The U.S. Supreme Court ruled that on duty time (work) is not necessarily
related to exertion, either mental or physical, and that an employer, if he chooses,
may hire a man to do nothing, or to do nothing but wait for something to happen
(Armour v. Wantock, U.S. Supreme Court, 1944). The Justices were guided in their
decision by the Fair Labor Standards Act of 1938.
There is an apples-to-oranges incongruity between U.S. Supreme Court
landmark decisions defining the meaning of work, as beautifully expressed in the
Judicial Construction passage of Wage and Hour Division regulations (29 CFR
785.7), and on duty time as expropriated by the Interstate Commerce Commission
as a presumed measure of truck driver fatigue.
The terms on duty and off duty are not scientific terms. They are business
terms based on construction of agreements between particular parties (Skidmore
v Swift, U.S. Supreme Court, 1944).
The only difference between on duty and off duty physical or mental activities
is that in one case I am free, whereas in the other case I am not free. Time passes
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in either case. Non-driving duty activities that involve physical or mental exertion
are no different in terms of generating fatigue than activities that a truck driver is
at liberty to engage in, for his or her own benefit, when off duty.
Truckers should be free to report non-driving duty hours without suffering
aversive consequences. The Fair Labor Standards Act was not intended by
Congress to be taken out of context and used against an employee as an instrument
of oppression. The Fair Labor Standards Act is remedial and humanitarian in
nature and must not be interpreted in a narrow, grudging manner (Tennessee
Coal, Iron & Railroad v. Muscoda Local No. 123, U.S. Supreme Court, 1944).
Line 4 time delineates the boundaries of required rest breaks and is therefore
essential to the integrity of the rules, but as a unit of measure of fatigue Line 4
time is an arbitrary standard.
The U.S. Supreme Court decisions cited in the Judicial Construction passage
of Wage and Hour Division regulations render the term Hours of Service
obsolete. The problem is the word service. Its too broad a term to be used as
a unit of measure of fatigue. The DOT Fatigue Management Rules should be
called something else something that doesnt contain the word service.
As noted earlier, FMCSAs 14-consecutive-hour workday window rule
rendered the Line 4 time calculation superfluous and unnecessary as far as
limiting the duration of the daily waking cycle is concerned.
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Unless there is a change in the way Line 4 time is tabulated truckers are
likely to reject any offer of minimum wage pay for non-driving duties. Why
squander ones 8-day allowance of log hours on minimum wage pay when you
can earn twice as much money driving?
On the other hand, it you pay drivers the same hourly rate for driving and
non-driving duties there would be no incentive to drive. Why drive when you
can earn the same rate of hourly pay just waiting around doing nothing?
To make hourly pay work it would be necessary to uncouple Line 4 time
from the 8-day driving limit.
The truckload carrier industry hasnt petitioned FMCSA to dissociate Line 4
time from the 8-day driving limit because it is profiting from a corrupt system
that prevents truck drivers from claiming the hours that they actually work.
Truckload carrier executives assembling at an ATA management conference
and brooding over whether or not the industry should abandon pay-by-the-mile
compensation and agreeing that it should not be abandoned because it would
reduce corporate profits suggests collusion.
While writing this brief I stumbled upon Internet search results that refer to
wage fixing, a term that I had never heard before. I had only heard of price
fixing. If I understand correctly, wage fixing is forbidden by the Sherman
Antitrust Act. That is the impression Im getting from websites of attorneys who
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specialize in class action lawsuits in antitrust cases. 8

From what Im reading, wage fixing can occur in many ways. But in each
case the intent of the actors is the same and that is to artificially suppress employee
wages. And that is what is happening in the truckload carrier industry, in my
opinion.
For-hire carriers compete for driver recruits with various pay packages, some
carriers offering a few cents per mile more, some offering a few cents per mile
less, but within a range that is set artificially low.
The industry claims that its cents-per-mile pay range is a reflection of the total
hours drivers work. The irony is, no one knows what truck drivers total work
hours add up to because on duty hours are not being accurately reported, a fact
that truckload carrier executives are well aware of. If a clear picture were to
emerge of the actual number of hours truckers give to their employers each day
then the pay range would have reason to move much higher.
A WAY FORWARD
Long haul truckers may be subject to what is termed a duty of 24 hours or more
standard as defined by WHD regulation 29 CFR 785.22. If that standard
applies, it would mean that all of a truckers waking hours are on duty hours
8

On April 15, 2016, President Obama issued an Executive Order that deals, in part, with the
matter of wage fixing. (Internet search words: Executive Order, April 15, 2016).

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with the possible exception of meal and sleep breaks.

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. (29 CFR 785.22)

The duty of 24 hours or more standard applies to firemen, security guards

and certain other types of workers when they are required to remain on their
employers premises or job site and work or be ready to work when they are
not on their sleep breaks. Whether or not 29 CFR 785.22 applies to long haul
truckers is a question that remains to be answered.
I refer to the duty of 24 hours or more statute in order to take the fear of
hourly truck driver pay rationale to its logical conclusion. Paying truckers by
the hour continuously around the clock except for sleep breaks and meal breaks
would be a truckload carriers worse nightmare. But would it be financial
suicide as truckload carriers contend?
Assume for the sake of argument that a trucker is on duty 14 hours a day,
7 days a week. At the federal minimum wage of $7.25 per hour, a 98-hour work
week (14 hours multiplied by 7 days) would amount to $711.
If you pay a driver $15 per hour for driving duties, and $7.25 per hour for
each remaining hour in a 24-hour day, and subtract 10 unpaid hours for sleep
each day, a drivers 7-day earnings would total $1,185 based on an average of
8 driving hours per day. That is near the top end of the current pay range.
Truckload carriers fear of hourly driver pay doesnt add up. The disconnect
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issue disconnecting driver pay from how carriers are paid is a subterfuge
covering deeper fears, namely, the loss of income-producing log hours that would
result from increased reporting of Line-4 time.
But what if Line-4 time didnt count against the 70-hour limit? Would
truckload carriers then be more receptive hourly driver pay? One would expect
that to be the case, at least on a limited basis.
A distinction needs to be made between the general concept of hourly driver
pay, which suggests hourly compensation for both driving and non-driving duties,
and hourly driving pay, which concerns driving time only.
An hourly pay mandate need only concern compensated driving time.
Including non-driving duties in an hourly pay mandate would be more difficult
to defend in the event of a legal challenge.
Truckload carriers insist that driver pay is a private matter between employers
and employees. Uncoupling Line-4 time from the 8-day driving limit would give
truckers the power they need to negotiate higher wages. Truckers are unable to
effectively make their case for higher wages, and carriers are unable to negotiate
higher freight rates, without an accurate record of drivers total working hours
as defined by WHD regulations.
FMCSA should consider mailing an Information Collection Request to
shippers and consignees to determine what each facilitys policies are with regard
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to driver detention. Does the facility require drivers to remain on-site while
trailers are being loaded or unloaded? That information should help carriers
in rate negotiations and would verify a drivers duty status for the purpose
of compensating non-driving duty time.
Even though electronic monitoring of hours of service compliance presents
numerous safety hazards and risks, the devices are already operational on
thousands of interstate trucks. Vacating the ELD rule will not be necessary to
bring about the changes I have outlined. FMCSA is already moving in the direction
of an hourly pay mandate. Issues concerning the flexibility of rules and inverted
sleep cycles can be remedied swiftly if FMCSA is so inclined.
OOIDA is not serving its members well by opposing what may very well
be the greatest benefit to truckers that has happened in decades. Rather than taking
a rigid, uncompromising position against ELDs, OOIDA should use the ELD
debate as a negotiating chip to bring about changes in the regulations and methods
of pay. What helps employee truckers will help owner-operators as well.
OOIDA Executive Vice President Todd Spencer and I have something in
common. We both began driving big rigs in 1974. Back then, a driver could
purchase fuel at any truck stop and ask the cashier to put tomorrows date, or the
day after tomorrows date, on the fuel receipt (fuel receipts and logs must match)
and they would do it every time. Fuel receipts were hand written in pen and ink.
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In the era prior to GPS tracking, a driver could unload in Kansas City and
make a run to Denver and back, and the Denver run and backhaul wouldnt show
on the drivers log. The log would show a layover in Kansas City.
Things havent changed much. Thousands of long haul trucks are operating
today that dont have GPS tracking. Trips are still being left out and periods
of sleep falsely reported. Where a log shows 10-hours off duty, the truck may
only have parked for six hours. Truckers are more likely to get adequate sleep
if truck movements are tracked by satellite and monitored by employers.
There is a conspiracy theory among truckers that the ELD mandate is an
attempt to put independent owner-operators and small fleet operators out of
business. That is a cynical way of looking at it. Electronic logs ensure that an
independent driver or small fleet operator is compliant with the rules. Enforcement
personnel will have more reason to trust you with an electronic logging device
than without.

CONCLUSION
For the foregoing reasons, FMCSAs Electronic Logging Device Final Rule
should be allowed to stand.

Dated: June 15, 2016

Jack James Elias

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