A look back at some of the top labor issues in the freight-hauling industry since deregulation in the 1980s—and even before—as well as the notable impacts of ongoing worker and driver challenges.
Although the federal government doesn’t regulate labor in trucking per se, the impact regulations have on commercial drivers can’t be ignored.
The Labor Day weekend gives us here at FleetOwner an opportunity to look back at some of the top labor issues in the industry since deregulation in the 1980s and the effects of some notable and ongoing worker and driver challenges.
Deregulation was all about lowering economic barriers—such as higher insurance rates and higher registration costs—for motor carriers entering the industry. In turn, the government started raising safety barriers.
“All of these laws started getting passed to raise the safety bar,” Dave Osiecki, an industry veteran since the mid-1980s and a senior consultant at Scopelitis Transportation Consulting (STC), told FleetOwner. “Safety-based rules are directed at labor and the drivers largely. When you think about safety, it’s operational safety, vehicle, and truck safety, but if you really want to improve safety in trucking, it’s really about the person–the human–because that’s who makes the mistakes, unfortunately. That’s why a lot of the safety regulations are really aimed at labor, if you will.”
More than 40 years ago, that shift in deregulation ended up leading to an increased number of new companies coming into the business, Steve Keppler, who is co-director at STC, pointed out. “It depressed rates, but it also created efficiencies and opened up competition in the capital market,” he explained.
Keppler started his 29-year transportation career with the Federal Motor Carrier Safety Administration (FMCSA), where he served in various regulatory, research, and policy development positions. He also spent 15 years with the Commercial Vehicle Safety Alliance, the last six of which he served as the group’s executive director.
“At the end of the day, the ultimate goal in transportation is to be safe,” Keppler said. “The response to deregulation in many respects was a slew of laws and regulations to try to get to that point. Since we’re not regulating you economically anymore, we have a responsibility to ensure safety on the highways. We are going to shift our focus to safety, so things like the electronic logging device mandate, hours-of-service changes, medical changes, drug testing, and the creation of the CDL under the Commercial Motor Vehicle Act of 1986—that was a big deal.”
In April 1992, the CDL went into effect. According to trucking radio icon Dave Nemo, who has been an in-cab companion for over-the-road truckers for the last 50 years or so, when the CDL law took effect, motor carriers and drivers expressed the same fear and trepidation that permeated the industry leading up to ELD mandate compliance in 2017.
“People didn’t know what it was all about,” Nemo said. “The hope among the drivers was: ‘Finally, we are like airplane pilots. We can drive across country with one license, and it’s a federal license.’ But we found out it was the same thing, only different, but now the federal government has a hand in the states that they didn’t have before. So, the FMCSA is born and then all of the subsequent things that FMCSA has brought about.”
At the end of the day, carriers will remain concerned with anything that disrupts daily business, particularly for companies with smaller operating margins, Keppler pointed out. And even though many of the safety rules that have been implemented since deregulation created a higher standard for those entering the business, drivers are often dealt a bad hand.
This gallery illustrates that labor issues in transportation are more important than ever—especially with the ongoing truck driver shortfall and technician shortages predicted to become worse over the next decade.
“It’s always a balancing act,” Keppler said. “You need to evaluate things on their totality. Yes, safety is important and critical, but we also want to make sure that we have a healthy, productive, and committed driver workforce. If you look at it from a safety and risk perspective, for drivers that have medical issues and who are not happy, there is research to show that those drivers are riskier.”
“It’s incumbent upon the government and carriers to make it as best of an environment as they can for those drivers because of that,” he added. “We see a lot of carriers creating new benefits programs, raising driver pay, and doing a lot of things to help retain drivers by making them as safe, healthy, and productive as possible.”
Motor Carrier Safety Act of 1984
The Motor Carrier Safety Assistance program was authorized in 1982 shortly after deregulation. What that did was establish a program for the federal government to get states involved in oversight, explained Steve Keppler, co-director at Scopelitis Transportation Consulting. It set up a grant program and gave states money to help oversee drivers and motor carriers. Related to that, in 1984, the Motor Carrier Safety Act was established. It basically required the federal government to make sure states had compatible and consistent regulations to not impede interstate commerce, Keppler added. The Motor Carrier Safety Act of 1984 established rules, regulations, standards, and orders to assure that commercial motor vehicles are safely maintained, equipped, loaded, and operated; the responsibilities imposed upon commercial drivers do not impair drivers’ ability to operate safely; the physical condition of drivers is adequate to enable them to drive safely; and the operation of commercial motor vehicles does not create deleterious effects on the physical condition of drivers.
Commercial Motor Vehicle Act of 1986: Creation of the CDL
To improve safety, in 1986, Congress enacted the Commercial Motor Vehicle Safety Act (CMVSA), which standardized the minimum requirements for obtaining and retaining a commercial driver’s license (CDL) and prohibited drivers from holding more than one CDL. The law was intended to improve highway safety by removing unsafe commercial vehicles and unqualified and unsafe drivers from the roads. The CDL took effect in April 1992 and has been a gateway for many of the regulations the industry sees today.
The first HOS rules were established in 1937 by the Interstate Commerce Commission (ICC). They allowed 10 hours of driving time and eight hours of off-duty time within a 24-hour day as well as 60- to 70-hour limits for seven- and eight-day time frames, and time in the sleeper berth needed to total eight hours over two undefined periods. These regulations changed little until the Federal Motor Carrier Safety Administration’s 2003 final rule (effective in 2004). The ICC had been abolished in 1995, leaving rulemaking to the FMCSA. Under the 2003 final rule, drivers had 11 hours of driving time and 10 hours of off-duty time, and sleeper berth time totaled 10 or more hours over two periods, each with a minimum of two hours. The 2005 final rule changed the sleeper berth provisions to provide one of the sleeper berth periods to be at least eight consecutive hours, in addition to another two-hour period in the sleeper or off-duty, totaling 10 hours off-duty. Some critics said requiring eight-hour chunks of time in a sleeper berth was overly restrictive to drivers who wanted to utilize naps or team drivers who want to switch between each other with more flexible shifts. Critics also said that the mandatory two-hour break shouldn’t cut into drivers’ 14-hour shift, impeding their ability to work and discouraging them from taking the break. In 2017, a 34-hour restart rule was enacted that allowed drivers to reset their workweek (60/70 hours in 7/8 days) after 34 hours of consecutive rest. FMCSA studies found 34 hours is the optimal amount of time to reduce fatigue-related incidents. The 2020 changes also included the option of a 7/3 sleep/break split for increased flexibility and a 30-minute break requirement after eight cumulative hours of driving. HOS regulations continue to be a contentious topic to this day in the industry.
Electronic Logging Device (ELD) mandate
The Federal Motor Carrier Safety Administration (FMCSA) enacted the electronic logging device (ELD) mandate in February 2016, and carriers had to comply by the end of 2017. The mandate required drivers to use ELDs to track their schedules to ensure hours-of-service (HOS) compliance. It also established standardized technical specifications for ELDs. Drivers previously logged their hours on paper, which critics said allowed carriers to abuse their drivers by encouraging them to fudge numbers, pushing them past their HOS limits. ELD rule exceptions exist for drivers of vehicles manufactured before model year 2000, driveaway-towaway drivers where the vehicle being driven is the commodity being delivered, and drivers who use paper logs no more than eight days during any 30-day period. The FMCSA estimates that ELDs reduce crashes and save lives.
Medical certification requirements
Medical certification requirements have quite a long history of evolution in the trucking industry—and they have not been developed without controversy. But if you don’t have a valid certification or don’t keep it current, you don’t have a job driving a truck. There are stiff penalties if a driver falsifies a certification. Myriad medical certification rules took effect in 2014. By law, every CDL/CLP holder must have a U.S. Department of Transportation-mandated physical exam annually (or every other year if you’re younger and healthy) and have a medical certificate on file with their state’s department of motor vehicles. The certificate confirms the driver is healthy enough to safely perform the demanding job of driving a commercial vehicle. The exam must be performed by a medical examiner who is listed in the Federal Motor Carrier Safety Administration (FMCSA) National Registry. Regulations allow states to revoke the CDL privileges of drivers who don’t have valid medical examiner certificates (MEC). With this all comes advice from FMCSA on related issues such as proper use of prescription medications, fitness, nutrition, and control of health issues common among truckers such as obesity, diabetes, and high blood pressure. Obtaining and keeping a medical certification takes more effort than simply showing up for a physical exam. Diet and exercise are important, but passing the DOT physical (and keeping your driving privileges intact) begins with the right attitude about your health. Medical issues such as hearing and vision impairments and diabetes have FMCSA restrictions attached to the medical certificate process. After seven years, FMCSA also recently released a draft of its Medical Examiners Handbook that offers revised guidance to help examiners ensure that drivers are healthy and is seeking comment right now on the handbook.
Driver drug testing and the Drug & Alcohol Clearinghouse
It’s taken some time for the dust to settle on truck driver drug-and-alcohol testing and the reporting of those results to the more than 2-year-old federal Drug & Alcohol Clearinghouse, which is a secure online database that employers, state licensing agencies, and law enforcement can use to retrieve information about a CDL/CLP holder’s status. The clearinghouse has had a profound impact on safety but also on the trucking industry workforce and, indirectly, job satisfaction. Every CDL/CLP holder by law must be registered with the clearinghouse. For testing positive at least once, more than 135,000 drivers have been sidelined and placed into “return-to-duty” status for counseling and mandatory testing since the start of 2020. The safety benefits of the clearinghouse—and its role in helping to keep drivers impaired by substances off the road—is nearly universally acknowledged by the industry. Statistically, however, testing and the clearinghouse system have kept tens of thousands of truckers from driving. More than 100,000 of the 135,000 since 2020 are in prohibited status with the clearinghouse, meaning they can’t get back behind the wheel and make a living in the industry, at least not as drivers. The industry is short around 80,000 drivers and might be down about 160,000 by decade’s end, according to an American Trucking Associations estimate. Squabbles since before 2020 have erupted over the testing methods sanctioned by the Federal Motor Carrier Safety Administration and the clearinghouse. The only testing method currently approved is urinalysis, which most often flags marijuana-using truckers (81,492 since 2020). But some stakeholders who use it during pre-screening of applicants are still pushing for hair-follicle testing because of its ability to detect use of harder drugs farther back in time—and the U.S. Department of Transportation has approved the addition of oral fluid testing to the clearinghouse-sanctioned testing methods, though this is still under review.
Employee Misclassification/Independent Contractor Status | California’s AB5
In 2019, California Assembly Bill 5 (AB5) was passed. It set forth a legal test for independent contractors that, if failed, would require employers to hire these contractors as employees. There are many professions exempted from the law, but truck driving is not among them. The owner-operator model as it has existed for decades does not meet the legal test. Many carriers preemptively hired their contractors as employees. Many owner-operators were left scratching their heads as how to comply with the law. The law offers little to no guidance on how drivers can comply, as it is not specific to trucking. There are also questions regarding interstate commerce, on how the law affects owner-operators from outside the state operating in California. There is also concern that copycat laws will arise in other states, such as Senate Bill 863 in New Jersey. A preliminary injunction was issued by the U.S. Southern District Court of California to allow truck drivers to act as independent contractors during ensuing litigation from the California Trucking Association (CTA). However, with the Supreme Court opting to decline an appeal from the 9th Circuit, the district court had to repeal the injunction, formally lifting it Aug. 29. CTA intends to file a new motion for preliminary injunction via an argument based on the Federal Aviation and Administration Authorization Act of 1994. Briefing on the new motion will take place this fall. Additionally, the court will consider a motion from the Owner-Operator Independent Drivers Association (OOIDA), according to Scopelitis law firm.
Entry-level driver training requirements
The Federal Motor Carrier Safety Administration (FMCSA) on Feb. 7, 2022, enacted a federal standard to obtain a commercial driver’s license. The regulation applies to people obtaining a Class A or Class B CDL for the first time after Feb. 7. It does not apply to any applicant who obtained a new CDL or commercial learner’s permit before Feb. 7, but it does apply to anybody upgrading an existing Class A or B CDL, or getting a hazardous materials (H), passenger (P), or school bus (S) endorsement for the first time. Driving schools are required to register with FMCSA. The entry-level driver training (ELDT) standards do not require a minimum number of hours, but they do require that applicants pass a theory instruction assessment and behind the wheel training. The federal regulations do not supersede state ELDT requirements that exceed the FMCSA’s minimum standards. For example, if a state has minimum hour requirements, drivers in that state must still meet the requirements. At the time of the regulation’s enactment, American Trucking Associations estimated that 85% of entry-level drivers were already trained with curricula that met the ELDT standards. “The entry-level driver training rule is a big deal and has been a long time coming,” STC’s Keppler said. “It was a difficult road. The process took over 20 years to get that done. It’s rules like that and ELDs, and driver medical certification—some view them as a negative, but they are also professionalizing the driver. It’s creating a higher standard for people entering the business.”
Exemption from the Fair Labor Standards Act
The Fair Labor Standards Act of 1938 (FLSA) established overtime pay requirements for U.S. workers. However, these overtime pay regulations do not apply to motor carrier employees. Section 13(b)(1) of the FLSA provides an exemption for employees within the authority of the Secretary of Transportation pursuant to Section 204 of the Motor Carrier Act of 1935. This covers employees of motor carriers or private motor carriers. It also affects drivers, driver’s helpers, loaders, or mechanics whose duties affect the operational safety of vehicles on public highways in interstate or foreign commerce. There is a small vehicle exception, where employees who work with vehicles weighing 10,000 pounds or less are not exempt from overtime pay requirements.
Implementation of the CSA scoring system
From FMCSA: “CSA is the Federal Motor Carrier Safety Administration’s data-driven safety compliance and enforcement program designed to improve safety and prevent commercial motor vehicle crashes, injuries, and fatalities.” It took quite a bit—and quite a lot of debate—to get there starting in 2010. The regulator’s safety scoring system is controversial to say the least—it’s still being challenged and tweaked to this day—and it has broad implications for trucking as a business, insurance, and liability. CSA stands for Compliance, Safety, Accountability and consists of three core components: the Safety Measurement System (SMS), interventions, and a Safety Fitness Determination (SFD) rating system to determine the safety fitness of motor carriers. It’s all about whether a carrier is judged to be safe to operate on the nation’s highways and byways. The SMS uses data from roadside inspections and crash reports from the last two years, and data from investigations to identify carriers with safety performance and compliance problems for interventions. FMCSA investigators are equipped with a variety of interventions to contact and work with motor carriers that have safety performance and compliance problems. The SFD assesses the safety fitness of motor carriers to help FMCSA stand down carriers that are unfit. CSA is among carriers’ biggest concerns, Steve Keppler, co-director at Scopelitis Transportation Consulting, observed. “FMCSA has been silent on that for a while,” Keppler said. “Liability is a big issue right now with a lot of trucking companies and their insurance rates. A carrier concern is not knowing what the outcome of CSA will be and what [FMCSA] will do with that.”