Broker transparency – why does it matter to truckers?

Mark Schremmer

For the past five years, broker transparency has been a hot topic in the trucking industry. There have been protests, petitions and a proposed rule from the Federal Motor Carrier Safety Administration.

But some may still be wondering why truckers have been so focused on the issue. In two recent email dispatches, the OOIDA Foundation breaks down why broker transparency matters and how the lack of it can negatively affect owner-operators and small-business trucking companies.

What is broker transparency?

Regulation 371.3 requires brokers to keep records of each transaction. Even more, each party to an individual transaction has the right to review the record.

However, many brokers get around the regulation by requiring carriers to waive that right. The Transportation Intermediaries Association called FMCSA’s proposal to strengthen existing broker transparency regulations “un-American.”

Why is it important?

According to analysis from the OOIDA Foundation, broker transparency is about much more than just seeing the quoted rate on a load.

“It’s about hidden charges, fines and claims brokers impose without proper documentation,” the OOIDA Foundation wrote. “Small carriers rarely take the time – or have the luxury – to scrutinize every clause of dense broker-carrier agreements.”

The lack of transparency becomes apparent when brokers submit claims for freight loss without evidence.

“Small carriers frequently enter contracts under economic pressure, unaware of provisions stacked against them,” the Foundation wrote. “By the time they realize the imbalance, it’s often too late to avoid serious financial harm.”

According to the OOIDA Foundation, truckers should:

• Read broker-carrier agreements thoroughly and refuse clauses that eliminate broker transparency.
• Support advocacy efforts pushing for stronger enforcement of existing transparency regulations.
• Demand clear documentation before accepting deductions or responsibility for “Over, Short and Damaged” claims.

These steps are important because there are often “hidden risks” contained in broker contracts, the Foundation said. For instance, some broker contracts may require carriers to waive rights granted under the Carmack Amendment – a federal law providing standard protections for cargo loss and damage.

“Cargo insurance policies may not cover liability that goes beyond federal standards, leaving carriers exposed to unexpected financial risks,” the Foundation wrote.

Another real-world scenario highlighted by the Foundation is when a carrier has a breakdown from an unexpected equipment issue. A broker could declare breach of contract, repower the load and bill the original carrier for costs. A lopsided contract could mean that the carrier goes unpaid for the miles driven, while also being placed on the hook for additional expenses.

What’s being done about it?

In response to a petition from the Owner-Operator Independent Drivers Association, FMCSA issued a notice of proposed rulemaking in November 2024. The proposal generated 6,900 comments from the public, including thousands from truck drivers.

“Ignoring 371.3 regulations has directly led to an asymmetry of information between carriers, shippers and brokers,” OOIDA wrote in its comments. “An asymmetry of information not only creates an inequitable playing field between carriers and brokers but jeopardizes carriers’ ability to know if they are hauling fair-value loads.”

OOIDA Executive Vice President Lewie Pugh relayed the problem to a Senate committee in July.

“Unfortunately, brokers have a long history of deliberately and blatantly circumventing transparency requirements,” Pugh wrote in his submitted testimony. “In order to protect against fraud and scams, we tell our members that they should closely examine documentation and verify that all information is legitimate. If brokers are allowed to continue evading federal transparency regulations, it makes it difficult for carriers to determine who is adhering to the rules or who may be trying to scam them. In short, practices that undermine trust and transparency will make it harder to determine who is a bad actor.”

In late June, the U.S. Department of Transportation announced that it would “address unlawful brokering” as part of its Pro-Trucker initiative. It is unclear whether that effort will include moving forward with FMCSA’s broker transparency proposal. We should have a better idea when the DOT’s next regulatory agenda is released.

Andrew King, director of the OOIDA Foundation, said that fair broker practices are crucial to the wellness of the nation’s supply chain.

“The trucking industry relies heavily on small carriers and owner-operators,” King said. “Ending exploitative broker practices is not just fair – it’s essential for the health and sustainability of the entire supply chain. To do so, we first need to raise awareness of these unfair practices, while simultaneously warning carriers to read the fine print before signing any contract.”

(49CFR part 383.133 (c) (3)Skills tests:

(1) A State must develop, administer and score the skills tests based solely on the information and standards contained in the driver and examiner manuals referred to in § 383.131(a) and (b).

(2) A State must use the standardized scores and instructions for administering the tests contained in the examiner manual referred to in § 383.131(b).

(3) An applicant must complete the skills tests in a representative vehicle to ensure that the applicant possess the skills required under § 383.113. In determining whether the vehicle is a representative vehicle for the skills test and the group of CDL for which the applicant is applying, the vehicle’s gross vehicle weight rating or gross combination weight rating must be used, not the vehicle’s actual gross vehicle weight or gross combination weight.

(4) Skills tests must be conducted in on-street conditions or under a combination of on-street and off-street conditions.

(5) Interpreters are prohibited during the administration of skills tests. Applicants must be able to understand and respond to verbal commands and instructions in English by a skills test examiner. Neither the applicant nor the examiner may communicate in a language other than English during the skills test.

FYI – During my mock audits I find motor carriers accepting a driver’s CDL in lieu of a road test – BUT the driver was NOT road tested (By the State issuing the CDL or previous motor carrier.) in the CMV and associated equipment the motor carrier intends to assign the driver as required by 49CFR part 391.31 and 391.33. )

Enforcement of English proficiency

• Starting June 25, 2025, the FMCSA has begun enforcing new guidance regarding the English Language Proficiency (ELP) rule.
• Roadside inspections will include a two-step ELP assessment:
  • Step 1: A conversational interview in English where the driver must respond to official inquiries without the use of interpreters or translation tools.
  • Step 2: If the driver passes the interview, they will be assessed on their understanding of highway traffic signs.
• Failure to pass either step can result in a citation and immediate out-of-service status for the driver.

In summary, while the possibility of taking the written portion of a CDL exam in a language other than English may exist in some states, the federal regulations emphasize the importance of English proficiency for commercial drivers, particularly during roadside inspections and for understanding traffic signs and signals.

Based on FMCSA regulations, specifically

49 CFR § 391.11(b)(2), all Commercial Driver’s License (CDL) drivers operating in interstate commerce must be able to “read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records.”

While the knowledge test portion of the CDL exam might be offered in languages other than English in some states (like Spanish in Texas), the driving skills test itself requires the applicant to be able to understand and respond to instructions in English from the examiner. In the case of hearing-impaired individuals who are granted an FMCSA exemption from the hearing standard, they must still demonstrate proficiency in reading and writing English to meet the requirements for obtaining a CDL

‘Thermonuclear’ Verdicts on the Rise, Report Finds

Trucking, Automotive Industries Saw $1.4 Billion in Jury Awards Last Year

Noel Fletcher

The trucking industry remained a top legal target last year as multimillion-dollar verdicts against U.S. companies expanded into “thermonuclear” territory of at least $100 million, a new report said.

The “Corporate Verdicts Go Thermonuclear” study from Marathon Strategies found that the trucking and automotive industries faced a combined 15 multimillion-dollar verdicts last year totaling jury awards of more than $1.4 billion.

“In 2024, 135 lawsuits against a corporate defendant resulted in a nuclear verdict — those that surpass $10 million — the largest number of such cases Marathon has identified in a single year since 2009, and a 52% increase over 2023,” said the company, a New York City-based public relations firm whose specialties include crisis and issues management. “The total sum of these verdicts reached an eye-popping $31.3 billion, a 116% increase over 2023.”

Also skyrocketing were so-called thermonuclear verdicts that last year jumped 81% to a new high of 49 compared with 27 in 2023. Two of them came from the trucking sector.

In one, $450 million in punitive damages was levied against trailer manufacturer Wabash in connection with a 2019 fatal accident in which a motor vehicle struck the back of a nearly stopped 2004 Wabash trailer. This year, a St. Louis court lowered the amount to $108 million.

In another case, a $160 million verdict was rendered in 2024 by an Alabama state jury against Daimler Truck North America in a product liability case involving a driver who became quadriplegic after a 2022 rollover accident. In the wake of the verdict, Daimler said, “We stand by the safety of our products and our safety testing (including cab crush) meets and exceeds all industry standards in place in the U.S. and worldwide. We have strong grounds for appeal and intend to pursue this action.”

The study noted that nuclear and thermonuclear verdicts were handed down in 34 states nationwide last year, compared with 27 in 2023. Most of the verdicts were ordered in state courts, with $20 billion in awards across 85 cases. In federal courts, nuclear verdicts worth $11 billion were awarded in 50 cases.

The five states with the highest monetary tallies in 2024 were Nevada ($8.4 billion), California ($6.9 billion), Pennsylvania ($3.4 billion), Texas ($3 billion) and New York ($2.1 billion).

The study from Marathon Strategies found that the trucking and automotive industries faced a combined 15 multimillion-dollar verdicts last year totaling jury awards of more than $1.4 billion. (Marathon Strategies)

Of interest to trucking is the effect comprehensive tort reform legislation that advanced in Florida has had on the legal system there. Spearheaded in 2023 by the Florida Trucking Association and state lawmakers, this legislation has resulted in Florida dropping to No. 10 in the nation for nuclear verdicts. It had been No. 2 from 2009 to 2022.

Anticipating a change, trial attorneys filed 280,122 new civil cases a few days before Gov. Ron DeSantis enacted a law in March 2023. In enacting the legislation, DeSantis and other lawmakers who backed the bill slammed frivolous lawsuits, predatory practices and billboard attorneys.

The report linked visible advertising campaigns from trial attorneys as a contributor to the rise in nuclear verdicts.

“With the growth of attorney advertising — which now eclipses $2.4 billion each year — aggressive parties plaster American televisions with ads that seek plaintiffs for mass tort litigation and amplify denigrating claims,” the report stated.

Marathon cited pharmaceuticals, technology hardware, storage/peripherals, hotels, restaurants/leisure and oil/gas as other sectors that drew lawsuit attention last year. “Overall, 55 industries were the subject of a nuclear verdict in 2024, compared to 48 the year before,” the report said.

“Marathon’s research has found that these sectors are among the top targets of nuclear verdicts, mainly in wrongful death and negligence cases,” the study concluded. “While many factors have influenced this growth, Marathon’s research identified corporate mistrust; social pessimism; erosion of tort reform; and public desensitization to large numbers as among the most important. Surveys of corporate counsels indicate that reaching pretrial settlements has become more difficult due to increasing legal costs, regulatory changes and high settlement demands.”

FMCSA Targets Falsified ELD Records in New Approach

Crash Spurs Investigation of Tactics Designed to Circumvent HOS Rules

Eric Miller

Faced with evolving tactics to bypass hours-of-service rules, the Federal Motor Carrier Safety Administration is taking steps to combat electronic logging device fraud. The agency is launching a multipronged approach to address what it describes as a “moving target.”

In particular, the agency cited National Transportation Safety Board concerns with so-called ghost drivers as well as drivers utilizing multiple ELD accounts, and it is exploring various technological requirements to target those specific issues. It also is monitoring ELD performance data, training enforcement personnel to identify and act against fraud, removing noncompliant ELD providers from the market, and updating its ELD rules.

“FMCSA is committed to staying diligent with its fraud prevention efforts,” an agency spokeswoman said in a statement. “FMCSA continues to explore other methods to decrease ELD fraud in both the short and long term.”

A fatal December 2022 crash in Virginia put a spotlight on ELD fraud after a tractor-trailer driver for Illinois-based Triton Logistics was able to — with apparent participation from the carrier — falsify his ELD records to extend his driving time beyond the 11-hour regulatory maximum limit. The truck he was driving during early morning hours along Interstate 64 near Williamsburg, Va., came upon and crashed into a party bus after he failed to take evasive action or brake in time, according to the NTSB investigation. NTSB cited fatigue as a factor in the crash.

“We found that the truck driver’s lack of response to the slow-moving vehicle in his travel lane was due to fatigue from excess driving time and lack of sleep opportunity,” said the NTSB report, recently made public. “The truck’s motor carrier, Triton Logistics, created fictitious driver accounts for some of its vehicles’ electronic logging device systems that enabled drivers to operate beyond federal regulations, creating an opportunity for fatigued driving.”

Three occupants in the party bus died, nine sustained serious injuries, and 11 sustained minor injuries. The truck driver also was seriously injured.

Triton did not return a message left by Transport Topics seeking comment. However, NTSB said the company’s CEO denied knowledge of the fictitious logins and said it conducted internal checks to determine how the incident happened.

The driver detailed the scheme for NTSB investigators. He said whenever he reached his 11-hour limit, he could call the carrier’s HOS department — based in Lithuania — and add the name of a fictitious or former co-driver to the ELD, opening up another 11-hour driving window. If asked by a roadside inspector about the double login, the driver would tell the inspector that he dropped off his co-driver at a truck stop for a family emergency. The driver noted that other drivers used the login scheme to extend time behind the wheel.

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After the 2022 crash, FMCSA conducted an on-site review of Triton and issued violations related to drivers making false reports regarding duty status as well as requiring or permitting drivers to extend driving time beyond 11 hours. After the review, FMCSA assigned Triton a conditional safety rating.

With an eye toward remedial action, NTSB concluded that a data-entry tracking history in ELD software could increase accountability and transparency, and also deter motor carrier personnel from making false entries aimed at circumventing HOS regulations. Investigators recommended that FMCSA revise its requirements to require ELD providers to create an audit log that includes the date, driver login time and identity of who logged them in, driver’s license numbers, the names of anyone who edits a log, and any changes to active driver lists. NTSB also recommended that the Commercial Vehicle Safety Alliance inform its members about the scheme and circumstances surrounding the Williamsburg crash.

Senior NTSB investigator Shawn Currie told Transport Topics if the driver’s name was John, he’d be logged in as Frank and then operate with a new 11-hour HOS time limit. “The hours of service, whether you agree with them or not, are there to prevent drivers from driving in excess of the rules, and to ensure they have the appropriate time off,” Currie said. He noted that the circumstance of the Williamsburg case could result in FMCSA fines and possibly criminal penalties if the state elected to bring charges.

Jeremy Disbrow, a Commercial Vehicle Safety Alliance roadside inspection specialist, said inspectors encounter false ELD log entries “all day, every day. Of course, many of the false entries can’t be proven, or they go unnoticed.”

He said the issue is known to CVSA inspectors. “We just discussed all this in a conference after the NTSB report came out,” Disbrow said. “It was pretty clear from the inspectors around the country that this isn’t an isolated incident by any means. The average inspector is seeing this every shift, at least once or twice. There’s a number of ways that they’re falsifying [logs].”

This can include simply using tools available on some devices, he said.

“Drivers can make edits,” Disbrow noted. “If a driver makes an edit on the device himself, it will show up as an edit, and a suspicious inspector can see that. But if a carrier in their back office makes the edit, there are instances where it’s been done but doesn’t show up as an edit.”

Disbrow noted it’s risky to publicly discuss the varying methods. “It’s hard to talk about it because I don’t want to give people ideas,” he said. “I don’t want the industry to say, ‘Hey we can try that.’ As the years are going by, people are finding new workarounds. It’s a cat and mouse game.”

He added, “The hours-of-service rules are there to protect everybody. Thwarting them and running an extra five, six, seven hours without adequate rest is absolutely a recipe for fatigue.”