The United States Constitution is only slightly older than the debate over states versus federal rights.
Defining the Issue
Federal trucking laws govern truck and trailer weight, hours of service (HOS) standards, and highway safety guidelines. States may also impose laws addressing the same issues. If truck drivers do not cross state lines, keeping up with both sets of standards is simple. However, when a route takes truck drivers through several states, the resulting mass of rules is nearly impossible to manage.
When state regulations differ significantly from federal requirements, the issue becomes even more complicated. Currently, more than a dozen states have weight and labor rules that break rank with federal standards.
California Trucking Regulations
For example, consider the differences between federal hours-of-service (HOS) standards and California state HOS regulations. Federal HOS rules mandate a 30-minute break after eight hours on duty but do not mandate whether carriers must pay drivers during break or rest times. California HOS guidelines allow a 30-minute meal break after every five hours of driving, and a paid 10-minute rest break every four hours while on duty.
Attempting to follow multiple sets of rules leaves truckers confused at best and paying heavy fines at worst. The penalties hit independent owner-operators the hardest. Although violations cut into any fleet’s profit margins, small fleets and single truck operations cannot absorb additional costs as readily as larger carriers.
The Case for (and Against) Federal Pre-emption
One solution to the issue is federal pre-emption. Simply put, it means that when state and federal guidelines conflict, the federal guidelines overrule state law.
Republican lawmakers are in favor of this approach, although traditionally the party affirms the states’ rights to govern themselves. The GOP asserts that establishing a federal standard would prevent confusion and expensive lawsuits.
The American Trucking Association (ATA) and Western States Trucking Association (WSTA) both agree, as do over 70 carriers that signed an open letter in 2015 supporting federal pre-emption. The letter noted that establishing a federal baseline would effectively deregulate state-level red tape and “promote…market-driven efficiency,” as well as “prevent a 50-state patchwork of rules” that complicate interstate commerce.
The Downside to Establishing Federal Trucking Standards
However, as it is currently written, the amendment the Republicans are promoting would do more than allow federal guidelines to overrule conflicting state rules. It would also prevent states from making or enforcing laws that mandate paid breaks or non-driving time for truckers.
Data from the Owner-Operator Independent Driver Association (OOIDA) shows that this is an ongoing problem. The organization estimates that over 50% of independent drivers spend more than 11 hours per week waiting for loading and unloading. That time does not include other non-driving tasks, such as inspections, paperwork, refuelling, and repairs. OOIDA calls federal attempts at centralizing trucker break time and pay “an ambitious overreach.” The group takes the position that drivers should receive pay for all time spent working. They have also expressed concerns that federal pre-emption rules would prevent fair pay and reduce driver wages.
Third Time’s a Charm or Three Strikes and Out?
Determining whether the legislation will go through is tricky at best. Republicans have made three attempts to establish federal pre-emption guidelines in the past few years.
Representative Jeff Denham (R-CA) initially introduced an amendment to establish federal pre-emption for trucking regulation as part of the FAST Act. President Obama signed the FAST Act into law on December 4, 2015. The law funds and regulates highway maintenance and safety. However, the legislative body dropped the pre-emption amendment before the bill became law.
Another attempt took place the following year, but without any luck. The most recent iteration of the amendment is attached to a Federal Aviation Administration bill recently considered by the House.
Vocal Opposition to the Federal Pre-emption Amendment
Senator Barbara Boxer (D-CA) roundly condemned the amendment’s inclusion in the FAA bill, calling it a “poison pill.” Although attaching unrelated amendments to various legislation can be considered deceptive, it is a standard tactic both parties use to advance their concerns. At a press conference, Senator Boxer compared the amendment to standard labor practices, saying the legislation amounted to docking workers for meals and restroom breaks.
The REAL Women in Trucking group agrees with her. The group released a tweet in February when the measure was still under the House Transportation Committee’s consideration. “What does #Aviation have 2 do with #TruckDrivers Wages? NO! to FAA Re-Auth Section 611 pg 256-258 #GOP #DEMS”.
Too Early to Tell
As for whether the amendment will make it through both houses of Congress intact, it is still too early to tell. Although the legislation would help prevent confusion and expensive lawsuits, the question is whether it would do so at truckers’ expense. It is not currently a standard practice to pay drivers for off-road time. Most drivers receive a per-mile rate, which does not include paid breaks or waiting time.
Many drivers would like to see this change. However, it would take significant labor reform within the trucking industry for drivers to receive compensation for non-driving hours. There are also supply chain considerations – any cost increases for retail outlets are eventually passed on to consumers.
Wherever you fall on the issue, it is clear something needs to change. You can act now by contacting the U.S. Congress members in your state. You can look up your state Senator here or find your state Representative here.