Tough questions about more than just room and board on the road
By Timothy Brady

The scenario: Your company driver is a good two days’ driving time away from home in another state delivering a load. The truck blows a head gasket and it’s going to take two days to get it replaced at a truck repair shop far from your base of operation. This means one of two things; you are either going to rent a tractor so your driver can complete the load or the driver is going to cool his heels sitting in a hotel waiting for the repair to be completed. For this article, we’ll assume the “cool his heels in a hotel” is the best course of action. The questions which come to mind are: What’s your legal obligation to the employee driver under the Fair Labor Standards Act (FLSA)? What’s in the best interest of the driver? What’s in the best interest of your company? 

Let’s look at the FLSA rules covering this situation: In the simplest terms, under the Fair Labor Standards Act, when an employee is engaged in interstate commerce and is under the jurisdiction and control of The Secretary of Department Transportation, he is exempt from many FLSA rules. 29 CFR Ch. V (7–1–02 Edition). Here’s a link to the entire exemption: (http://www.osha.gov/pls/epub/wageindex.download?p_file=F29932/wh1044.pdf).

The Statute states: The exemption will apply to those employees called upon in the ordinary course of work to perform, either regularly or from time to time, safety-affecting activities. The employee comes within the exemption in all workweeks when he\she is employed in such work. This general rule assumes that the activities involved in the continuing duties of the job in all workweeks will include activities that affect safety of operation of motor vehicles. Where this is the case, the exemption will be applicable regardless of the proportion of "safety affecting activities" performed in a particular workweek.

 In other words, the FLSA law states carriers are not required to pay a driver for his time under these circumstances. But the law doesn’t prohibit a carrier from compensating an interstate company driver, meaning the decision is left up to each individual carrier.

So what’s in the best interest of the employee driver?  This question begs for answers to other questions.

• Where will the driver stay when the truck is being repaired? In the repair facility’s drivers’ lounge or a hotel? 
• Will you require the driver to stay at the repair shop during the repair? What if there’s a load on the trailer? Will the driver need to keep an eye on the disconnected trailer?
• What about being able to get something to eat? Is the employee going to eat out of the vending machines at the garage? How far would the driver have to walk to find a restaurant or hotel?
• What kind of area is the repair facility in? Will he be safe walking to get food or lodging?
• Of his personal belongings, what would he need to remove from the truck? (Most repair shops won’t accept any responsibility for personal items left in a vehicle in their care, custody and control.)

A company driver is responsible for the carrier’s truck, trailer and customer’s load. This task becomes even larger when the truck breaks down and has to be in a repair shop for an extended period. The trucker has not only lost the means of producing his income, he will temporarily lose his on-the-road home and the place he stores his travel belongings. The truck garage may be located in an area which is unsafe for him to walk from to get something to eat. Or he could be several miles from the nearest restaurant or lodging facility, especially problematic if he has to carry the majority of his personal belongings. Then there is the concern of the carrier’s trailer and load. Many repair shops do not have the space to store a loaded trailer in a secure yard; in most cases it is parked out on the street. Many insurance companies won’t cover stolen trailers and the contents if a driver was not present when the trailer or its cargo disappeared or if it wasn’t in an approved secure location. An on-the-road breakdown creates many challenges for the employee trucker and dilemmas for his carrier employer.

It would be very easy to get into a discussion about ethics and what is right and the best way to treat another human being, and while important and worthy of debate, in the context of this discussion I would like to focus on the business aspect of compensating the employee trucker under these circumstances.

The final answers to the question of whether to follow the minimum FLSA regulation and not compensate the employee driver or to compensate him and to what level boils down to first answering the questions posed above along with one other very important development, CSA 2010. If you are not willing to compensate your drivers for breakdowns and subsequent repairs, will they be willing to keep that close watch on the condition of your equipment, or will they push it until it breaks or until a DOT inspector shuts them down on the side of the road? These results can be more expensive than a proactive approach. Every negative inspection results in a higher BASIC rating within CSA 2010; the higher the rating score the more scrutiny you’ll receive by the DOT. Then there’s the waiting-until-it-breaks maintenance program. It’s more costly both in repair invoices and down time of the truck to wait to do most repairs. Late loads can lose customers. Trucks sitting in repair shops can’t produce revenue. So it’s in the best interest of any carrier to minimize the likelihood of negative DOT inspections and longer than necessary down time of equipment and drivers. The best approach is to have your employee drivers looking out for your best interest by compensating them when the truck is down on the road and rewarding them when they receive a no-violation or no-warning inspection. It makes good business sense, and anybody makes a better employee when he or she feels fairly compensated for the time on the job. Provide your drivers with respect for their time through compensation and a reward system, and it will help improve your bottom line.

Good loads and good roads, everyone.
© 2010 Timothy Brady
www.timothybrady.com 
731.749.8567