Two West Virginia Drivers Sue Trucking Companies
Two drivers filed suit in the State of West Virginia this week over alleged improper firings which took place in January, 2009. The drivers allege that they were identifying defects on their post trip inspection reports, and the two motor carriers, Mate Creek Trucking, and Titan Transport, did not fix the defects. They also allege that the motor carriers fired the drivers, because of their complaints regarding the condition of the trucks.
The DOT regulations require drivers to complete a written post-trip inspection report at the conclusion of each day’s work. The motor carrier must make repairs on items which affect the safety of the truck. Many drivers either 1) don’t fill out the report, or 2) do fill it out, but list no violations, regardless of the condition of the truck. If you are in management, you must be reviewing these reports, to make sure there are not any defects identified on the report. If there are, you must address them, either by fixing the truck, or determining the defect doesn’t exist, or will not affect the safe operation of the vehicle.
Can any doctor do a DOT physical?
I had a good question from a customer today. Can any doctor do a DOT physical, or can only specially “DOT-certified” doctors do the examination? Presently, any doctor can do the DOT physical. However, the doctor needs to be familiar with the guidelines of the examination. For example, a driver must have 20/40 vision in each eye to pass. He must have 140/90 blood pressure or better. Some doctors do the exam, but are unaware of this, and qualify drivers with blood pressure over 140/90. The instructions are on the examination form, but a few doctors do not read the instructions.
You should ask whether your doctor is familiar with the DOT physical procedures before you make the appointment. DOT has been making noise about setting up yet another regulatory-bureaucracy which will qualify doctors to conduct the exams. For now, though, any doctor can do the exam, provided they follow the guidelines found on the examination form.
True Story, $30,000 FMCSA penalty
This is a true story, involving a client I represented, only the names have been changed. ABC Construction, a small construction company, with around 10 trucks and drivers, entered into business in 2006. It underwent a DOT New Entrant audit in December, 2007. ABC was missing numerous documents, but had enough paperwork to pass the New Entrant audit. In July, 2007, they were audited again by DOT, largely because one of their trucks had been involved in a serious accident. The accident was not their fault.
During that audit, DOT found a number of problems. One, the accident driver was tested for drugs after the accident, and he failed the test. Some months later, ABC started using that driver again, which is a big violation. Many of their drivers did not have pre-employment drug tests. ABC did not immediately implement a random drug and alcohol testing program for its drivers. ABC had a driver driving a CDL vehicle, without a CDL. And they were missing driver files on two drivers. All of this, for a new company, added up to a $30,000 fine. The good news for them was, DOT did overreach on the penalty, as they do occasionally, and they had my expert assistance, so they paid much less than the original $30,000. However, without my assistance, they would have coughed up the whole $30,000.
The lesson here is two-fold. 1) Pay attention when you are sitting with the DOT official during your New Entrant audit. The information they are giving you is important. If they come back to see you, they expect you have what the regulations require: no excuses. If you blow off the paperwork, you’re asking for trouble. 2) If you do run afoul of DOT, and have a giant penalty, pick up the phone and call me. It’ll be worth your time.
Triple-fatality in Wisconsin, caused by Illegal Alien
This really has little to do with commercial motor vehicle safety, except it involves careless driving. This happened on Sunday March 29, 2009, in Wisconsin. A landscaping truck, driven by an illegal alien, was going too fast for conditions on snowy road. He lost control, crossed the centerline, and hit an SUV with 7 people inside. 3 died.
I guess I’m just super-sensitive to these type of stories. It sure seems to me there is a high frequency of these type of crashes. Again, maybe I just notice them more than crashes involving home-grown Americans. But, I swear, if you’re going to be here illegally, is it too much to ask that you learn how to drive??? I guess they don’t have snow in Mexico. Well, that can’t be the issue, this guy has been here since 1996, according to the article.
Harry Kalas (1936 – 2009)
Harry Kalas, legendary broadcaster of our Philadelphia Phillies passed away yesterday afternoon, as he prepared for the Phillies-Nationals game in Washington DC. Harry has been a part of our sports lives in Philadelphia for 38 years. No summer in my lifetime has ever gone on without Harry’s smooth baritone describing to me the latest Phillies failure. Or more recently, triumph. For us sports fans in Philadelphia, this like Dale Earnhart dying for the NASCAR fan, or Princess Diana dying for women. Harry Kalas, gone at age 73, and we are the poorer for it.
FMCSA expands its “Maximum Fine” policy
Effective, today, April 1, 2009, FMCSA has expanded the instances in which it will assess the statutory maximum penalties for violations it discovers. Presently, the policy is, if they fine you for the same violation 3 times in a 6 year period, the 3rd penalty will be for the maximum. Just to give you an idea of what we’re dealing with here, the statutory maximum for not doing a drug test or violating the 14 hour rule is, I believe, $11,000 per violation. So, you can see, we can quickly get up into fines of $300,000 – 600,000.
Now, FMCSA is saying they will apply these outrageous penalties in even more situations. If you get six or more critical violations in an audit, they’re throwing the book at you with maximum penalties. Without making this post 5 pages long, let’s break this down. One, they have to have had a previous contact with you. That means it could have been a New Entrant audit. That’s the thing you have to go through when you first get your DOT number. After that, they audit you. Let’s say, you’re missing medicals (one critical). And you haven’t done any MVR checks (two criticals). You haven’t done any pre-employment drug tests (three criticals). You’re missing random drug tests (four criticals). You have false logs (five criticals). And you’re missing logs, too (six criticals). Then they would assess the maximum penalty, which would probably be over $200,000.
After I think about it, the chances of this new expanded policy being used are very slim. You would really, really have to be doing absolutely nothing to get this type of fine levied against you. Usually, a motor carrier is doing SOMETHING, although not necessarily everything. You would have to be making absolutely no effort at all to comply with the rules. Oh well, forewarned is forearmed. You can read the official Federal Register policy here.
Hiring Opportunities
Even in these difficult economic times, there is opportunity. I believe, and there are many business experts who will back me up, good employees are vital to a successful business. Right now, you can improve your business is by upgrading the quality of your employees. There are a lot of good, quality people out there right now, looking for work. When times are flush, the only people out there, are ones no one else wants. Weak companies are folding, and good labor is hitting the streets.
This is a good opportunity to weed out your bad employees and snatch up some of the good ones off the open market. Snatch them up cheap, too. Truck drivers are a prime example. Generally speaking, 20% of your drivers cause you 80% of your problems, but you never do anything about it, because you can’t find good drivers. That’s no longer the case, so get active, get recruiting, and give those problem-children their walking papers. Your company will be better off for it.
