New York increases penalties for violating storm-related truck bans

On January 30, in the midst of a truck travel ban on the NY Thruway due to a snow storm, an out-of-state based tractor trailer allegedly jack-knifed before striking a NY State Police Trooper parked on the side of the road. The accident triggered a 21-vehicle pile-up which included four tractor-trailers.

The state trooper suffered a “serious but non-life threatening” injury. In response to the tractor-trailers violating the travel ban, NY Governor Cuomo (D) declared in a press conference: the “pileup was caused by a tractor-trailer that violated the trailer ban and jackknifed and then caused a 20 car pileup… But first I want to emphasize, that the tractor-trailer ban is serious. We’re not asking tractor-trailers and buses to stay off the road. That is a legal ban. And the accidents in Rochester happened because a tractor-trailer violated the ban.

So in situations like this, following the law is not just being a good citizen. If you violate the law in this situation, you can be endangering human lives. On the tractor-trailer ban, the State Police are going to make enforcement a priority. Second of all, the State Police are going to be increasing the penalties for violating the tractor-trailer ban and the bus ban. It won’t just be a traffic citation. Under Vehicle Traffic Law § 1212, it could be a crime. Under the Penal Law, there can be a crime under section 120 for reckless endangerment and assault.”

Drivers charged under these statutes face major blemishes on their CDL records! Please be sure to share this information with your members to ensure they are mindful of such weather related travel bans and the serious risks associated with non-compliance.

For more information, please contact the Trucking Association of New York.

New ELD frequently asked questions

From FMCSA.

The ELD Frequently Asked Questions have been updated with the following two additions to the Editing and Annotations category.

Can a driver be assigned driver records recorded under the Unidentified Driver profile and indicate a special driving category at the time the driver is assigned the driver records?

Yes, a driver can be assigned unidentified driver records recorded under the Unidentified Driver profile and indicate a special driving category. However, an ELD must not allow automatically recorded driving time for a driver to be shortened or altered in any way.

Can a driver edit their records after erroneously accepting a driving event that was originally recorded under the Unidentified Driver profile?

Yes, a driver can edit their record after erroneously accepting a driving event that was originally recorded under the Unidentified Driver profile. The ELD must prompt the driver to annotate edits. In addition, the carrier can suggest the edit which can be routed to the driver for confirmation.

To read more frequently asked questions related to ELDs, visit the FMCSA website.

Professor and transportation finance expert: Tolls “inefficient, regressive tax”

From Yankee Institute.

Professor of Finance for the College of Staten Island and Research Fellow at The University Transportation Research Center Johnathan Peters says if Connecticut lawmakers are looking to raise revenue for transportation, they might be better off looking somewhere else besides highway tolls.

“Tolls, generally, are expensive to collect,” Peters said in an interview. “It’s not free. There’s a lot of technology and a lot of equipment, and that equipment will have to be maintained and replaced over time.”

Peters — whose area of expertise and study involves regional planning and road and mass transit financing — says tolls are more expensive to collect than the gasoline tax and is a regressive form of taxation that affects lower income individuals.

“This is a regressive form of taxation. This can be very, very painful for a low-income household,” Peters said. “It could be the straw that breaks the camel’s back for the working poor.”

Although 2019’s tolls debate has just begun, it started out with a bang as the newly-elected Democratic senator from Greenwich, Alexandra Bergstein, filed the first bill authorizing the Connecticut Department of Transportation to install tolls on Connecticut’s highways. Bergstein is also chairwoman of Connecticut’s Transportation Committee.

The latest study from the CT DOT posited 82 tolls on nearly every Connecticut highway, combined with a pricing system offering discounts for in-state commuters.

Read the full post online at the Yankee Institute website.

FMCSA emergency declaration for transportation of fuel

An Emergency Declaration exists for the immediate transportation of heating fuels, including propane, natural gas, and heating oil, and other fuel products, including gasoline, into Connecticut, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Mississippi, Nebraska, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Tennessee, Vermont and Wisconsin, due to severe winter weather.

Motor carriers and drivers providing direct assistance supporting emergency relief efforts are granted emergency relief from Parts 390 – 399 of Title 49 CFR. They do not exempt drivers/carriers from the requirements relating to CDL, drug/alcohol, hazardous materials, size & weight, or State/Federal registration and tax requirements.

Direct assistance terminates when a driver or commercial motor vehicle is used in interstate commerce to transport cargo or provide services not directly supporting the emergency relief effort or when the motor carrier dispatches a driver or commercial motor vehicle to another location to begin operations in commerce. Upon termination of direct assistance to the emergency relief effort, the motor carrier and driver are subject to the requirements of 49 CFR Parts 390 through 399, except that a driver may return empty to the motor carrier’s terminal or the driver’s normal work reporting location without complying with Parts 390 through 399.

Click here to see a copy of the emergency declaration from FMCSA.

Judge rules drivers should be paid for sleeper berth time

Legal Alert from MTAC partner Wilson Elser.

In a recent decision, a federal judge in Arkansas ruled that a legal class of nearly 3,000 truck drivers is entitled to compensation for time spent in the sleeper berth, even though the drivers were signed out as “off-duty.”

Background

The lawsuit alleged that P.A.M. Transport Inc. violated the federal Fair Labor Standards Act (FLSA) and the Arkansas Minimum Wage Law. Drivers alleged that for any given 24-hour shift, Department of Labor regulations prohibit P.A.M. from excluding more than eight hours from compensation for time a driver spends in a truck’s sleeper berth.

In response, P.A.M. moved for a motion to dismiss, claiming that it is legally permissible to exclude all time that a driver spends in a sleeper berth from compensation, regardless of whether the amount exceeds eight hours.

Court Decision

In the ruling dated October 19, 2018, U.S. District Judge Timothy Brooks denied P.A.M.’s motion. The judge stated that while Department of Transportation regulation prohibit commercial truck drivers from being on duty more than 14 hours in any 24-hour period, DOT regulations have little, if any “bearing on the matter at hand.”

The judge explained that “the DOT regulations aim to make our roads safe, while the Department of Labor regulations aim to provide workers adequate compensation.” “The Federal Motor Carrier Safety Administration believes that some motor carriers that have not understood the difference may miscalculate the minimum wage, placing the motor carrier in violation of the Fair Labor Standards Act.”

Further, the judge stated there is no ambiguity on the point that employers must count as hours worked time employees spend riding in a commercial truck while neither sleeping nor eating. The judge reasoned that during this time an employee, “is working, and any work performed while traveling must be counted as hours worked.”

In response to the holding, American Trucking Associations spokesman Sean McNally argued that the judge, “through an idiosyncratic reading of a pair of Department of Labor regulations, arrived at the erroneous conclusion that motor carriers must treat all, but eight hours of time spent in a sleeper berth as time that requires compensation under the federal Fair Labor Standards Act.” McNally continued by suggesting that other courts have correctly recognized that, “under those same regulations, time during which a driver is permitted to rest in the sleeper berth does not count as ‘hours worked’ under the FLSA, [and as such, this decision] stands as an outlier that hopefully will be corrected in due course.”

However, it remains unclear whether P.A.M. will continue to litigate and fight the judge’s ruling by asking the court for reconsideration or by appealing.

Impact

Although the ruling does not institute any new requirements for carriers, it could open the door to lawsuits brought by drivers. It’s seen as one of the first decisions by a federal judge that finds sleeper berth time as compensable hours.

For further information on transportation or employment issues, please contact MTAC partners, Attorney Brian Del Gatto at (203) 388-2400 or Attorney Joseph Baiocco at (203) 388-2403 of Wilson Elser’s Transportation Law practice. Additional information can be found online.

In Effect: FMCSA Regional Emergency Declaration

FMCSA has declared a Regional Emergency Declaration for Connecticut, Illinois, Indiana, Maine, Massachusetts, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, and Vermont.

The declaration is effective immediately and remains in effect for the duration of the emergency or until Feb. 2, 2019 at 2359 hours, whichever is less. Motor carriers must be providing direct assistance to the emergency, which is in response to significant winter storms and anticipated emergency conditions creating a need for immediate transportation of heating fuel, including propane, natural gas, and heating oil, and other fuel products including gasoline, into the Affected States and provides necessary relief.

Click here to see a copy of the emergency declaration.

Wilson Elser Alert: U.S. Supreme Court rules in favor of independent contractors

On Tuesday, the United States Supreme Court issued a blockbuster holding, ruling in favor of independent contractors who work in transportation.

Facts

In New Prime Inc. v. Oliveira, the Court was faced with an issue involving a dispute between the trucking company New Prime Inc., and one of its drivers, Dominic Oliveira. The parties’ contract labeled Oliveira as an independent contractor rather than an employee, and further, it instructed that any dispute arising out of the parties’ relationship should be resolved by an arbitrator—even disputes over the scope of the arbitrator’s authority.

Oliveira filed a class action lawsuit on behalf of himself and thousands of other contractors. He alleged that New Prime misclassified him as a contractor to underpay him in violation of a federal labor law. In response to Oliveira’s complaint, New Prime asserted that, under the Federal Arbitration Act (FAA), the court must compel arbitration according to the terms found in the parties’ agreements. The District Court for the District of Massachusetts and Court Of Appeals for the First Circuit agreed with Mr. Oliveira.

Supreme Court Decision

On appeal, the U.S. Supreme Court examined two issues: (1) whether the application of the exemption in § 1 of the FAA is an issue for courts or an arbitrator to decide, even if parties have agreed that issues of “arbitrability” are to be decided by an arbitrator; and (2) whether the “contracts of employment” language in § 1 of the FAA applies to agreements only involving employees, or whether it extends to transportation workers classified as independent contractors.

On the first issue, the Court affirmed the First Circuit’s ruling. The Court reasoned that, “while a court’s authority under the [FAA] to compel arbitration may be considerable … it is not unconditional.” One condition is established in § 1, which provides that nothing in the FAA shall apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” It held that a court should decide for itself whether § 1’s “contract of employment” exclusion applies before ordering arbitration. The Court reasoned this is the procedure even when parties’ agreement delegates to an arbitrator to decide whether the parties’ dispute is subject to arbitration because a delegation clause is “merely a specialized type of arbitration agreement” and can be enforced “only if the contract in which the clause appears does not trigger § 1’s ‘contract of employment’ exception.”

On the second issue, the Court interpreted the “contracts of employment” to refer broadly to any agreement to perform work and is not limited to employee-employer relationships. The Court relied on the ordinary meaning of “contract of employment” when Congress enacted the FAA in 1925. At the time of enactment of the statute, “employment” was more or less a synonym for “work,” and as a result, “most people then would have understood § 1 to exclude not only agreements between employers and employees, but also agreements that require independent contractors to perform work.” There was no dispute that Oliveira, as an owner-operator for New Prime, qualified as a “worker engaged in … interstate commerce.” Therefore, the Court rejected New Prime’s claim for arbitration, and held that “contracts of employment” covers even independent contractors.

Take Away

The Court’s decision has broad implications for an industry that relies on the independent contractor/owner operator model. While this ruling is limited to § 1 of the FAA, it serves as a reminder that arbitration agreements must be prepared thoroughly and thoughtfully in order to be utilized effectively.

For further information on transportation or employment issues, please contact MTAC partners, Attorney Brian Del Gatto at (203) 388-2400 or Attorney Joseph Baiocco at (203) 388-2403 of Wilson Elser’s Transportation Law practice. Additional information can be found at the Wilson Elser website.

Joe Sculley interview on The Talk of Connecticut

MTAC President Joe Sculley was a guest on the Talk of Connecticut radio show with Brad Davis and Paul Pacelli on Wednesday, Jan. 16. The interview was held to discuss the taxes and fees paid by the trucking industry, as well as trucking’s critical role in the state’s economy, which was briefly outlined in this Yankee Institute article.

An archived version of the interview is available on the Talk of Connecticut website.

 

Connecticut Resources

Major policies opposed by businesses loom in Democrat-controlled legislature

From Hartford Business Journal.

With what’s been deemed a regressive tax system, wide income disparities and an eroding middle class, Connecticut is an increasingly tough place for a common person to build wealth and climb society’s slippery mobility ladder, according to state Rep. Joshua Elliott.

Those challenges, which aren’t unique to Connecticut, are part of what drives the Hamden Democrat, who hopes to chip away at them this legislative session by pushing his party as far to the political left as possible.

“We’ve come into this paradigm where people confuse how the stock market does and how good our GDP is with how well the economy is doing,” Elliott, 34, said in a recent interview at Season & Thyme, a Hamden health and food market he manages. “We hear news about how good things are, but in our pocketbook, we still feel it’s tighter than it’s ever been.”

The law school graduate and co-owner of a second, similar market in Shelton was reelected to a second term in November. He drew his fair share of headlines for a freshman legislator, openly discussing his own after-hours marijuana use, and jousting with business interests, Republicans, and even fellow Democrats he deemed not sufficiently on board with what he views as non-negotiable pieces of the party platform.

That includes support for a $15 minimum wage (or higher, if possible) and creating a paid family medical leave program for private employees, actions that could impact the bottom line of his and other businesses, which is why employer lobbying groups have fought both policies in recent years.

See complete article from Hartford Business Journal online.

Oil gains as US stockpiles seen falling, China plans tax cuts

From Transport Topics.

Oil rose amid estimates of another decline in U.S. crude inventories and signs that China is stepping up efforts to combat an economic slowdown.

Futures in New York climbed as much as 3% after sinking during the past two sessions. American stockpiles probably fell for the sixth time in seven weeks, according to a Bloomberg survey of analysts before government data due Jan. 16. Equities closed higher in Asia after senior Chinese officials promised tax cuts to boost growth. Crude also extended gains as forces allied with Libya’s eastern leader moved to secure oil-producing infrastructure.

“Essentially we have gone from pricing a recession back to a more moderate outlook within the span of just six weeks,” analysts at JBC Energy GmbH in Vienna said.

While oil is resuming an advance that took it into a bull market last week, it’s still more than 30% below October’s four-year high. China’s weakest trade data since 2016 have stoked concerns over the impact of an ongoing trade war with the U.S. But senior policy officials said this week that China will cut taxes “on a larger scale” to help support its slowing economy.

See the complete article from Transport Topics online.