By Dennis McGee; Dennis McGee and Associates Consulting
- Because every motor carrier is not inspected, data is not available for every carrier.
- SMS compares all rated motor carriers against all other rated carriers, rather than comparing small carriers with small carriers and large carriers with large carriers. For accuracy, both large and small carriers should be compared with similarly sized carriers.
- All crashes are weighted equally to determine an SMS score. CSA looks at crash involvement as the measurement, not fault. Is it true that a driver is less safe because of involvement in crashes, even when the accident is not their fault?
- This is extremely challenging. An example of this is, if a truck was stopped waiting for a traffic signal to change from red, or a school bus driver was in the same situation and is struck from behind by another vehicle, why should the truck company or school bus company be penalized for the “accident” with no background that neither the truck or school bus driver were not at fault. With no perspective to these accidents, the readers would believe that the information is reflective of the truck driver transporting freight or the school bus driver transporting their child.
- Crash scenarios that could be classified as non-preventable and currently charged to a motor carrier’s CSA score are if a CMV vehicle was struck by another who was: driving under the influence, driving the wrong direction, striking the rear of a CMV; and/or striking the CMV while it was legally stopped.
- There is a lack of sufficient data to reliably assess the performance of carriers. According to the CSA’s findings, they only had enough data to assign scores to three percent of active carriers in all seven of the BASICS.
- States also have differences in their enforcement of certain laws and regulations. A driver is much more likely to get a moving violation in Indiana (29%) than Mississippi (1.4%). Vigillo Inc. (8) found that about half of all speeding tickets were written in ten states. A driver operating in one of these states may have higher scores due to stricter enforcement.
The GAO report concluded among other things:
- “For SMS to be effective in identifying carriers more likely to crash, the violations that FMCSA uses to calculate SMS scores should have a strong predictive relationship with crashes. However, based on GAO’s analysis of available information, most regulations used to calculate SMS scores are not violated often enough to strongly associate them with crash risk for individual carriers.”
- “SMS is intended to provide a safety measure for individual carriers, and FMCSA has not demonstrated relationships between groups of violations and the risk that an individual motor carrier will crash.”
- “To improve the CSA program, the Secretary of Transportation should direct the FMCSA Administrator to take the following two actions: Revise the SMS methodology to better account for limitations in drawing comparisons of safety performance information across carriers; in doing so, conduct a formal analysis that specifically identifies:
- Limitations in the data used to calculate SMS scores including variability in the carrier population and the quality and quantity of data available for carrier safety performance assessments, and
- Limitations in the resulting SMS scores including their precision, confidence, and reliability for the purposes for which they are used.”
- “Data used to determine a carrier’s score is inconsistent due to differences in inspection and enforcement policies among the states.”
- “Scores for small carriers may be inflated and fluctuate greatly because there is less data available.”
- “Some of the data is self-reported, such as data used to calculate scores in the Unsafe Driving BASIC the Crash Indicator BASIC. This leads to inaccurate, missing or misleading reports from carriers.”
- “Most regulations factoring into the calculations aren’t violated enough to be tied to crash risk. When the GAO studied the violations, 593 of the 750 violations studied were only violated by less than 1% of carriers.”
- “A majority of carriers that are determined to be “high risk” by CSA have not crashed at all, showing a weak relationship between BASICs scores and crash occurrence.”(5)
- The GAO report also noted that “most carriers lack sufficient safety performance data to ensure that FMCSA can reliably compare them with other carriers.” Further, in recent testimony before the Senate Commerce, Science and Transportation Committee, U.S. GAO Comptroller General Gene Dodaro noted that SMS scores are so flawed that they should be removed from public view.
Congress commissioned the GAO Report due to concern over the effectiveness of the SMS scoring model. The Report suggests that only motor carriers who have sufficient data should be scored. Fewer carriers would be scored, but scores would be more accurate.
The key changes that FMCSA made to the SMS public website by March 25, 2011, were:
- Replace ALERT symbol currently displayed in orange on the SMS website with the symbol of an exclamation mark inside a yellow triangle.
- Place the following guidance and disclaimer language on the SMS website to read:
- The data in the Safety Measurement System (SMS) is performance data used by the Agency and Enforcement Community. A
symbol, based on that data, indicates that FMCSA may prioritize a motor carrier for further monitoring.
- The
symbol is not intended to imply any federal safety rating of the carrier pursuant to 49 USC 3114. Readers should not draw conclusions about a carrier’s overall safety condition simply based on the data displayed in this system. Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been order to discontinue operations by the FMCSA, it is authorized to operate on the nation’s roadways.”
“As of Dec. 4, 2015, pursuant to the FAST Act of 2015, much of the information previously available on the Federal Motor Carrier Safety Administration’s (FMCSA) website related to property carrier’s compliance and safety performance will no longer be displayed publicly.
“The data in the Safety Measurement System (SMS) is performance data used by the Agency and Enforcement Community. A symbol, based on that data, indicates that FMCSA may prioritize a motor carrier for further monitoring.
The symbol is not intended to imply any federal safety rating of the carrier pursuant to 49 USC 3114. Readers should not draw conclusions about a carrier’s overall safety condition simply based on the data displayed in this system. Unless a motor carrier in the SMS has received an UNSATISFACTORY safety rating pursuant to 49 CFR Part 385, or has otherwise been ordered to discontinue operations by the FMCSA, it is authorized to operate on the nation’s roadways.”
The FMCSA website offers the below information to its readers for an “unsatisfactory” rated motor carrier.
“U.S. DOT# XXXXXXX is currently under an Out-of-Service order from FMCSA and shall not operate. Out-of-Service Reason: Unsatisfactory = Unfit.”
Trucking companies that use independent contractors could be breathing a sigh of relief after the Department of Labor Wednesday withdrew an Obama-era guidance that some viewed as an attack on the owner-operator model used in trucking.
Source: DOL Withdraws Controversial Obama-Era Independent Contractor Guidance
The Department announced the withdrawal of its informal guidance (“Administrator’s Interpretations”) on the issues of joint employment and independent contractors in 2015 and 2016 memos authored and issued under the former administration’s Wage and Hour Division Administrator, David Weil.
This withdrawal has no effect on the legal obligations of employers under the Fair Labor Standards Act.
The announcement of this withdrawal signals a return to a less overtly employment-favored standard or test, and suggests the Department’s general direction toward reliance on the rule of law.
This departure from these informal guidance memos also signals less emphasis on the singular issue of exclusivity in the relationship between an independent contractor and transportation company, which appeared to be the cornerstone of these Administrator’s Interpretations. It remains to be seen how many states will follow suit.
The Federal Highway Administration (FHWA) has released new Pilot Car Escort Vehicle training publications, including best practices guidelines, best practices for law enforcement, a study guide, training manual, and PowerPoint slides, all of which may be accessed at https://ops.fhwa.dot.gov/freight/sw/index.htm.
The best practices guidelines document summarizes the material found in the 2016 Pilot/Escort Vehicle Operators (P/EVO’s) Training Manual. The 2016 Pilot/Escort Vehicle Operators Training Manual is the result of extensive research, review, and analysis of existing pilot/escort vehicle operators training materials, laws and rules relevant to P/EVOs, incident reports, case studies, and other information focused on the movement of oversize loads. The Pilot/Escort Vehicle Operators Training Manual, its companion Pilot/Escort Vehicle Operators Study Guide, a P/EVO training presentation, and these Pilot/Escort Vehicle Operators Best Practices Guidelines are available to State agencies, training providers, and others involved in the training and certification of P/EVOs.
Each of these documents can be used individually or in combination, and are available at no charge from FHWA’s website. The format of these materials offers flexibility to meet the needs of the pilot/escort operators, from one- or two-car companies to more complex multi-state operations.
If you have any comments or suggestions on these training materials or seek further assistance, please contact John Berg, john.berg@dot.gov or Crystal Jones,crystal.jones@dot.gov
Jill Dunn May 04, 2017
XPO Logistics is appealing a California’s agency’s award totaling $855,286 to four truckers for wage law violations, including under a 2016 state law mandating compensating “nonproductive time.”
California’s labor commissioner concluded the logistic giant’s subsidiary, XPO Cartage, had misclassified the truckers as independent contractors instead of employees. “Substantial evidence supports the finding that plaintiffs were functioning as employees rather than as true independent contractors,” it stated. On April 14, it ordered XPO to compensate them for meal and rest breaks, liquidated damages and interest.
XPO is appealing that decision to California’s superior court. “We know firsthand that the majority of owner-operators who serve our customers prefer to work as independent contractors, and we will continue to advocate for their right to do so,” it stated.
The carrier’s objection to the hearing, but otherwise did not participate, the agency noted. XPO maintained the state should compel arbitration to settle the issue, as stipulated in the agreements the truckers signed with the company.
The commission awards ranged from $171, 939 to $279,416 to compensate unpaid wages and penalties accumulated over three to four years of rail drayage in Los Angeles county. California require employees take 30-minute meal and 10-minute rest breaks and be off-duty during these periods. However, the drivers testified they remained on duty during breaks because of job pressure and being required to stay with the truck.
The order marked the first time a carrier was ordered to compensate truckers for nonproductive time after AB 1513 became effective on Jan. 1, 2016, said Justice for Port Truckers, a Teamsters union campaign. Most state lawmakers voted for the measure, designed to incorporate recent state appellate court decisions regarding piece-rate compensation. It mandated piece-rate employees receive compensation for nonproductive time described under AB 1513 and not related to federal hours-of-service for truckers.
he law requires piece-rate workers, including truckers paid per mile or delivery, receive no less than the applicable minimum wage for nonproductive time. XPO must compensate the drivers for inspecting trucks, scanning documents and waiting on dispatch. This is because they remained under the XPO’s control during that time, even though not performing tasks directly related to activity being compensated on a piece-rate basis.
The state requires nonproductive time be compensated under the applicable California or municipal minimum wage. Some California city ordinances raised minimum wage higher than what the state requires. Piece-rate employees working in these cities must receive the local hourly wage when it is higher than the state mandates.
In recent years, numerous misclassification claims have been filed against XPO and several and other Southern California drayage companies with the commission, courts and the National Labor Relations Board.
