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Legal News

15 Mar

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FMCSA Threatens Deactivation of USDOT Numbers of Motor Carriers Who Fail to File Biennial Report

March 15, 2014 | By |

Be Aware!  If this is your year to file your biennial report with the Federal Motor Carrier Safety Administration (FMCSA), do not be late or your USDOT number may be deactivated.

As a part of the Unified Registration System (URS), the FMCSA requires all motor carriers, even those whose information has not changed, have ceased interstate operations since their last update, or have not notified the USDOT that they are out of business, to update their information on a bi-annual basis.

Back on November 1, 2013, the FMCSA began issuing warning letters to motor carriers 30 days in advance of their biennial update and those letters included a note that motor carriers’ US DOT numbers would be deactivated and warning and noncompliance alerts would be posted in the FMCSA IT system if they failed to comply.  Here is a guideline to help determine the due date of your biennial report:

  • If the SECOND to last number in your USDOT is odd, you are expected to file every odd-numbered calendar year.
  • If the SECOND to last number in your USDOT number is even, you are expected to file every even-number calendar year, including 2014.

Your report will be due by the last day of the month.  To determine the month due, look to the LAST number of your USDOT number and see the listing below:

 USDOT ends in 1 = January

USDOT ends in 2 = February

USDOT ends in 3 = March

USDOT ends in 4 = April

USDOT ends in 5 = May

USDOT ends in 6 = June

USDOT ends in 7 = July

USDOT ends in 8 = August

USDOT ends in 9 = September

USDOT ends in 0 = October

 

To complete your update, visit www.saferfmcsa.dot.gov and click on the FMCSA Registration & Updates link.  You may also login to the FMCSA portal at http://portal.fmcsa.dot.gov/login.  There is no charge for the update, but a credit card and your USDOT PIN will be required.  If you have forgotten your PIN, a new one maybe requested online, using your credit card (again, at no charge.)  The new PIN will be mailed to you.  PIN requests can take the FMCSA 4-7 business days to process, plus transit time – so please plan accordingly.

Do you have any questions regarding your biennial report?  Call our offices at (800) 596-TRUCK (8782) today.  At the Navigator Truck Insurance Agency we work hard to be accessible, helpful and result oriented.

 

18 Oct

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Hours of Service Q & A:

October 18, 2013 | By |

Acuity Insurance Company recently published an article answer common questions regarding the new Hours of Service rules that took effect July 1, 2013.  With their permission, we are reprinting the article here for your reference:

 

The first phase of Hours of Service (HOS) changes mandated by the Federal Motor Carrier Safety Administration (FMCSA) took affect February 27, 2012, adding new criteria for on-duty time and penalties for exceeding allowable time.  The second phase took effect July 1, 2013, and included more restrictive rules in two areas: mandating rest breaks and limiting “restarts.”

 

Here are the answers to some common questions about the new regulations:

 

30-Minute Rest Breaks Rule Summary:  If more than eight consecutive hours on duty have passed since the last off-duty period of at least half an hour, a driver must take an off-duty or sleeper-berth break of at least 30 minutes before driving.

 

Q: Why are these required?

A: The FMCSA found that breaks reduce risks, including accidents and safety lapses, cause by long driving shifts.

 

Q: Do I have to spend the break resting?

A: No, but you must be off duty.  For instance, a lunch break could count as your 30 minutes.

 

Q: Can the break be spent loading or unloading, as long as I’m out of the cab?

A: No.  Time spent loading or unloading is considered on duty in most cases.

 

Q: Do I have to break right at the eight-hour mark if my shift is longer than eight hours?

A: No.  You can break earlier, but you must not drive more than eight consecutive hours.  For instance, a 10-hour drive can be broken into two 5-hour shifts separated by a break.

 

Q: Is break time included in the 14-hour duty limit?

A: Yes.  The 30-minute break cannot extend the work day.

 

34-Hour Restart Rule Summary: Drivers can only use the 34-hour restart once every seven calendar days (168 hours) to restart the 60- or 70- hour clock.  In addition, the restart must include two nighttime periods of 1 a.m. to 5 a.m., using the driver’s home terminal time zone.

 

Q: Why was this change made?

A: The purpose of the rule change is to limit work to no more than 70 hours a week, which is aimed at reducing fatigue, crashes, and driver health problems.

 

Q: Who will be affected by the two0night provision?

A: Only drivers who drive nights and work more than 60 or 70 hours in a week will be impacted.

 

Q: What is the minimum length of time a driver has to be off duty to get credit for the two nighttime periods?

A: The minimum period is 34 hours.  Most drivers driving daytime schedules will be able to obtain the two nights in a 34-hour restart, if needed.  Only drivers who regularly drive overnight and work more than five nights a week will need to take longer to restarts to obtain the two nights off.

 

Q: If a driver works 10 hours a night, six nights a week and takes the seventh night off, does he then have to take an extra night off?

A: No, the driver would be working 60 hours in seven days and would not need a restart to start working again on the eighth day.
Q: Are the two nighttime periods based on the driver’s terminal time or local time, when different?

A: Drivers’ logs are based on the time zone of their home terminal, so the two night periods are set by the time at the home terminal.

 

Note: These illustrations are not legal advice.  If you have a question about a specific scenario or are looking for an official interpretation related to these changes, please contact the Federal Motor Carrier Safety Administration at (609) 275-2604.

06 Jul

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EEOC Issues Guidelines Pertaining to Criminal Checks

July 6, 2013 | By |

Are you one of the many employers (some studies say up to 92%) who use criminal background checks as a part of the hiring process?  If so, you may wish to re-evaluate this process and proceed with great caution.  Many employers rely upon these checks to keep their clients, employees, resources and the general public safe.  However, recently adapted new guidelines, published by the Equal Employment Opportunity Commission (EEOC) in April 2012, make clear that companies should be particularly careful when referencing criminal backgrounds during the hiring process.

While the EEOC does not include ex-offenders as a protected class under Title VII, they do include race and ethnicity.  And there is concern that because segments of these protected classes (specifically black and Hispanic males) have higher incarceration rates, it may follow that these individuals would experience disparate treatment or disparate impact as a result of reliance upon criminal background checks in the hiring process.

The new guidelines, found at www.eeoc.gov/laws/guidance/arrest_conviction.cfm outline those practices which would be deemed “suspicious” under Title VII and the process of investigating claims of discrimination.

Some highlights of the guidelines include:

  • Discouragement of using arrest records to exclude potential candidates, as there is a very big difference between being arrested for a crime and actually being convicted of having committed one.
  • Discouragement of employers from asking about convictions on employment applications and instead, only inquiring into conviction for crimes that might be related to the position they would be hiring for (i.e. felony embezzlement.)
  • Clarification that State laws will not supersede the EEOC’s guidelines and that compliance with State laws is not an acceptable defense to an EEOC charge, unless those State laws comply the EEOC’s guidelines, as well.

Important to note is that, if done with a sound policy that was developed in accordance with the law, conviction information can be referenced during the hiring process.  However, if your company intends to proceed in this manner, we highly encourage you to first develop a company policy after consulting with an attorney who specializes in employment law.  If you would like to be directed to an attorney, please contact our office at (800) 596-TRUCK (8782).  At the Navigator Truck Insurance Agency we work hard to be accessible helpful and result oriented.

06 Jun

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Michigan Now Using 20-Factor Test to Identify Independent Contactors

June 6, 2013 | By |

Motor Carriers, and other companies, operating in Michigan please take note:  Effective January 2013 Michigan’s Workers’ Compensation Agency Department of Licensing and Regulatory Affairs began using the IRS’s “20-Factor Test” to determine if an individual is an independent contactor or an employee of an organization.

Employers must comply with state and federal employment and tax laws, including withholding certain taxes, contributing toward unemployment and providing workers compensation insurance for employees; requirements which would not apply to independent contractor’s whose services are being hired by the motor carrier.

It is vital that organizations who utilize the services of independent contractor’s familiarize themselves with the “20-Factor Test” and review any concerns with their attorney, accountant and insurance agent to ensure compliance.  States are and will continue to ramp up their efforts to identify those companies who are misclassifying workers, as they now have a greater financial incentive to do so.  When 2014 Fiscal Year budget was passed not only did it include continued funding to help states locate misclassified workers, but additional funds were made available to provide “high performance bonuses” for those states most successful at identifying and prosecuting employers who are misclassifying their employees.

A complete list and description of the “20-Factor Test” can be found here.  The 20 topics discussed include:

1.) Instructions

2.) Training

3.) Integration

4.) Services Rendered Personally

5.) Hiring, Supervising and Paying Assistants

6.) Continuing Relationship

7.) Set Hours of Work

8.) Full Time Required

9.) Doing Work on Employer’s Premises

10.) Order or Sequence Set

11.) Oral or Written Reports

12.) Payment by Hour, Week, Month

13.) Payment of Business and/or Traveling Expenses

14.) Furnishing of Tools and Materials

15.) Significant Investment

16.) Realization of Profit or Loss

17.) Working for More Than One Firm at a Time

18.) Making Service Available to General Public

19.) Right to Discharge

20.) Right to Terminate

Do you have questions concerning the classification of your employees or the handling of independent contractors?  Call us today at (800) 596-TRUCK (8782).  At the Navigator Truck Insurance Agency we work hard to be helpful, accessible and result oriented.

06 May

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Jason’s Law

May 6, 2013 | By |

Jason’s Law

 

Recently out on the road I passed a truck with a sign posted on his truck that read, “I support Jason’s Law.”  Working so close to the trucking industry, I was a little embarrassed that I was not familiar with this law.  A quick Google search informed me that “Jason’s Law” is and initiative to provide increased safety for our hard working truck drivers while out on the road.  The bill was passed by the Senate on March 13, 2012 by a 74 to 22 vote.

For anyone unfamiliar, here is a run down of how the bill got its start and where it hopes to go:

1.)    It was created to honor Jason Riverburg, who was tragically robbed and murdered in March 2009 while staging for a delivery he was running early for.  Corporate policy made it impossible for him to park and wait to unload at the delivering location, so instead he stopped at an abandoned gas station twelve miles away; one he had heard another driver recently use.

2.)    The law aims to provide increased protection and safety for drivers who must stop in order to comply with JIT requirements or hours of service laws by requiring companies to allow drivers to stage inside safe facilities for up to twelve (12) hours before or after pickup/delivery.

3.)    The law proposes to create off highway “bullpens”, granting drivers a safe location to stage in the event a company is unable to comply with the requirement to allow on-sight staging.

4.)    Additionally, the law hopes to increase the availability and security of public rest stops.

5.)    After the law passed in March 2012, the Department of Transportation is now in the process of surveying the currently available parking facilities within each State to see if they are adequate for accommodating driver need.

6.)    This law is supported by the following organizations:

  1. American Trucking Association (ATA)
  2. Owner-Operator Independent Driver Association (OOIDA)
  3. National Association of Truck Stop Operators (NATSO)
  4. American Moving and Storage Association (AMSA)
  5. Commercial Vehicle Safety Alliance (CVSA)

To learn more about Jason’s Law visit their Facebook page at https://www.facebook.com/pages/Jasons-Law-HB-2156-SAFE-PARKING-FOR-TRUCKERS/192353475073, follow them on Twitter at https://twitter.com/JasonsLaw or their website at http://jhlrivenburg.com/cgi/wp/.

15 Mar

By

Anti-Indemnification Laws Help Protect the Trucker

March 15, 2010 | By |

With increasing frequency our clients are asking for certificates of insurance showing the shipper as being “held harmless.”  Our clients know that these requirements unfairly shift the shipper’s legal liability for their acts of negligence to them, but because the shipper has the upper hand in negotiations, our clients feel they have no choice but to sign. 

 

What we want our clients to know is that the tide is beginning to turn and an anti-indemnification movement has begun.  In fact, since 2005 fifteen states have adopted laws making this practice illegal. The majority of these states have adopted language into statute that condemns a shipper’s attempt to indemnify against their own negligence as being, “against public policy” and therefore “void and unenforceable.” Md. Code Ann. § 5-401; N.C. Gen. Stat. § 62-212; and Okla. Stat. § 169.7.  These states agree that indemnification agreements permit shippers to act irresponsibly, thereby compromising public safety, because there is no risk of their being held accountable for their actions. 

 

As of this date Michigan has not yet begun the work to pass anti-indemnification laws to protect the motor carrier.  However, Indiana and Illinois have adopted statutes and Wisconsin and Ohio are considering legislation in 2010.  In addition, the Insurance Task Force of the American Trucking Associations has made it a goal to assist states in adopting anti-indemnification statutes and has even gone so far as to lay out model language for states to consider using.

 

Are you interested in helping the movement along?  If so, I encourage you to contact the American Trucking Association’s Legislative Office at (202) 544-6245 and ask for their help in furthering the anti-indemnification cause in the state of Michigan.  In addition, if you are a resident of the state of Michigan, you can write your state Representative or Senator to communicate the need for this very important legislation.  Click here to find your Representative or here to contact your Senator.

 

Do you have additional suggestions on how we can work together to pass anti-indemnification legislation that will help to protect motor carriers?  Give us a call at (800) 596-TRUCK (8782).  We would love to discuss your ideas with you…. and as always, all of us at the Navigator Truck Insurance Agency plan to work hard at being accessible, helpful and result oriented. 

 

Until next month,

 

Jeffery A. Moss

President