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Arnold & Itkin LLP Truck Accident Blog2018FebruaryThe Problem Trucking Companies Are Paying Millions to Leave Unsolved

The Problem Trucking Companies Are Paying Millions to Leave Unsolved

A driver lost his future, imprisoned for a decision he was forced to make by his boss.

The family of a maintenance worker lost their husband and father—a man who was only 39 years old.

An Illinois State Trooper spent over a month in a medically-induced coma, enduring over 10 surgeries to repair the severe burns covering 30% of his body. He will never be the same again.

Dozens of people—sons, daughters, spouses, parents, friends, and neighbors—experienced searing loss on January 27, 2014 because an overworked truck driver fell asleep at the wheel.

However, the story is more significant than that: the truth is, this happens on a regular basis because the trucking industry has a problem. The problem harms thousands of people every year, including dozens (if not hundreds) of truckers. It drives up the price of insurance premiums, and it hurts the trucking industry and the public.

Moreover, trucking companies are paying millions to make sure the problem remains unsolved.

Killed in Our Sleep

In 2015 (the latest year for which we have crash data), there were 3,598 fatal crashes involving large trucks, which includes any truck weighing 10,000 pounds or more. These crashes killed 4,067 people—and at least 700 of them were likely the truck drivers themselves. In fact, the occupational fatality rate for truck drivers is nearly 7 times higher than the U.S. average: 21 deaths a year per 100,000 drivers.

Experts say fatigue directly causes 468 of these crashes a year and causes at least 13% of truck accidents. 

(The actual number of crashes affected by fatigue may be far higher, as the figures only show crashes directly caused by falling asleep at the wheel. If, for instance, fatigue made a driver slightly slower to react or unable to focus on the road, it would not be recorded.) Experts compare moderate tiredness to being as harmful as being intoxicated. Drivers with sleep apnea—which makes them frequently groggy during the day—are five times more likely to crash.

Hundreds of times a year, the similar tragedy to the one that left a state trooper with life-changing injuries and robbed another man of his life is repeated over and over and over. At least once today, someone will die or suffer unspeakable loss because shipping companies make more money the way things are. The 2014 commercial trucking accident that left comedian Tracy Morgan in critical condition and another man dead involved a driver who fell asleep at the wheel. The National Transportation Safety Board investigation into the crash revealed that not only did the driver fail to slow down immediately before the crash, but he had also not had any sleep in 28 hours prior to the crash.

Falling asleep at the wheel is killing us.

Dreaming of a Solution that We Already Have

“What can be done about it?” Unfortunately, something has already been done about it: the Interstate Commerce Commission was first concerned with the dangers of driver fatigue in 1937, which is what led to the creation of the first Hours of Service rules. However, the first objections were formally made in 1939, and it wouldn’t be until 2003 that the Federal Motor Carrier Safety Administration issued a “final rule.”

Today, the Hours of Service dictate how long drivers are allowed to operate their vehicle in a 24-hour period. Companies and drivers alike resent "The 14-Hour Rule"—a federal regulation that gives drivers a driving window of 14-hours. Within that 14 hours, they may drive for up to 11 hours, but they have to follow it with a 10-hour break.

In addition, drivers are limited to 60 hours of driving in a 7-day period, after which they must have a 34-hour “restart” before driving again. In general, truckers hate these rules. Because drivers earn a living from the miles they drive (not the hours), the 14-hour rule creates a situation where truckers can’t predict how much they make in a given day. It all depends on the traffic, road conditions, how long the deliveries take to load/unload, and more.

How Does the Government Know How Long Drivers Are Driving?

Until recently, they simply didn’t. Drivers were required to log their hours in a logbook, but most of those logbooks were paper-and-pencil—meaning you could essentially say whatever you wanted. Shipping companies are supposed to check these logbooks to remain in compliance, but neither drivers nor shipping companies are inclined to be vigilant.

Highway patrol officers also check the logbooks, but there’s no way to “prove” that a driver has falsified their logbook. Not every driver falsifies their logs, but enough do that it has become a national problem. It is hard to blame drivers for it, either—it is a dangerous and challenging way to make a living.

That is why the Obama administration made the electronic logbook mandatory. An electronic logging device (ELD) connects directly to the truck’s engine, creating an automatic log that can’t be altered by the driver. Trucking companies had until December 2017 to install ELDs on their trucks—and companies who already had ELDs have until 2019 to comply with federal logging requirements. Trucking lobbyists had something to say about that.

The 2009 Trucking Crisis

To understand this problem, you have to understand what happened to the industry in 2009.

The housing crash in 2008 had far-reaching consequences for all industries—and truckers are the backbone for most of them. Trucking companies watched their profit margins shrink dramatically and realized that they needed to change.

So they invested in better lobbyists.

From 2012 to 2015, the Coalition for Efficient and Responsible Trucking—a group that includes FedEx and UPS—alone spent $81 million on lobbyists and $13 million on campaigns to limit trucking safety regulations. The Owner-Operator Independent Driver Association (OOIDA) spent $3.5 million on lobbyists and donated $790,000 to campaigns. The ATA (a leading trucking lobbyist) spent $8 million on lobbying and $2.4 million on campaign contributions.*

And it is working.

*Data taken from the Senate Office of Public Records and reported by the Center for Responsive Politics.

The Federal Motor Carrier Safety Administration Has Its Hands Tied

Before 2013, the FMCSA issued “binding guidance” on various safety issues. When a serious safety issue threatened the public, binding guidance was the quick alternative to issuing a formal rule—a process that takes years and comes with steep costs. The FMCSA set its sights on screening sleep apnea in drivers—a condition that endangers everyone.

The trucking lobby wanted to force the FMCSA to abide by the rulemaking process. They issued a proposal to lawmakers that would force the FMCSA to take a years-long process before making an official recommendation, delaying action on sleep apnea for years. It was brought to the floor in September 2013 when a government shutdown loomed.

With a shutdown at stake, it passed with no opposition—and safety advocates had no time to fight it.

Requiring Overnight Rest Is a “Step Too Far”

In 2014, the FMCSA sought to make overnight rest mandatory for truck drivers. Studies found that sleeping during the night resulted in more alertness and rest than sleeping during the day and driving at night. Trucking lobbyists objected, saying that driving at night was safer because traffic was minimal.

The facts said otherwise: 29 percent of trucking fatalities occur between 9pm and 6am.* Regardless, the trucking lobby helped create a bill barring the FMCSA from enforcing the overnight rest rule until a study could “prove” the benefits of sleeping at night. The study has since been revised to be “longitudinal”—meaning it could take decades to complete.

The bill was attached to a spending bill right before another government shutdown.

*Data taken from the U.S. Department of Transportation and reported by the Insurance Institute for Highway Safety.

What the Trucking Lobby Wants to Change

Not only are the lobbyists using more funding than safety advocates, but they also have better access. Of the 51 lobbyists for FedEx, 37 of them previously worked in government. Safety advocates, as passionate as they are, simply don’t have the connections or resources to level the playing field.

Lobbyists are currently fighting for multiple policy changes, including:

Allowing side-guards to be mandatory would prevent 9 out of 10 undercarriage crashes. That policy alone could save hundreds of lives every year. Trucking companies believe that they are too costly and slow down trucks too much. In Europe, side guards have been mandatory since the 1960s.

“For Every One that Does Well, There’s 30 that [Trucking] Destroys.”

In the 1960s and 1970s, being a truck driver was a key to the middle class. It required no college degree, and many people who could not afford college had a way to own a home and start a family. People with a high school degree or less had a way to support themselves—mostly thanks to unions who negotiated for livable wages with the largest shipping companies in the nation.

However, the 1980s arrived, and the Carter administration believed the economy would benefit if a small number of large shipping companies no longer had a monopoly on the industry. His administration deregulated the trucking industry, allowing small companies to compete with large providers.

The move worked. Hundreds of small companies sprouted, hiring thousands of new drivers. The shipping industry slashed its prices in competition with each other, and these lower shipping prices led to the growth of companies like Zappos and Amazon 15 years later. The need for shipping rose, and more drivers were hired, creating a cycle of “prosperity.” Large providers expanded their profit margins.

The only people who didn’t benefit were the truck drivers.

Here’s what deregulation also did: It destroyed unions—which, regardless of what you think of unions, allowed shipping companies to demand higher productivity for lower pay. As young drivers who did not demand a living wage flooded the industry, trucking stopped being the middle-class steppingstone it once had been.

Adjusted for inflation, wages for truck drivers are now less than they were 45 years ago.

“We’re throwaway people. Nobody cares about us,” said Greg Hastings, a 54-year-old truck driver from Florida, to the New York Times. “Everybody’s perception of a truck driver is we clog up traffic, we get in the way, we pollute the environment. We’re just like cops—everybody needs us, but nobody wants us.”

His sentiment reflects what many truckers believe of themselves now.

When asked why he keeps driving, Mr. Hastings responded, “For older people, you kind of get trapped. For every [trucker] that does well, there’s 30 that it destroys.”

Paid by the Mile, Restrained by the Hour

Companies pay truck drivers by the mile—and even then, only for the miles where they have a loaded trailer. Driving with “flying canaries” (empty-handed) could mean that a driver loses money on a haul. This puts enormous pressure on drivers to develop relationships with dispatchers, who decide which drivers get deliveries and where.

The trucker who killed a maintenance worker and nearly killed the state trooper on January 27 was in the middle of a 37-hour marathon with no rest because he needed to make ends meet. If he had returned home successfully, he would have only made $1,000 on the whole trip. If he had abided by federal regulations on the trip, he would have lost money.

Does that mean federal regulations are the problem? By no means—but it doesn’t keep professional drivers from resenting them. Ultimately, truck drivers are being pressured from both sides: they have to make their miles, and they have to do it within a set time window, or they will not pay the bills.

That means drivers are staring at the clock during every delay, every traffic jam, and every red light. The moments ticking by means less money for them, less money for their families, and smaller odds that the dispatcher will give them jobs. Caught between the law and feeding their families, these men and women put their lives on the line. Every night.

So, What Is the Answer?

For us, the answer is to keep fighting for people after they've been hurt. Our team has fought for commuters, truckers, and pedestrians because car accidents affect everyone, including commercial drivers. When trucking companies don't play by the rules, trial lawyers level the playing field between large businesses and regular drivers.

In the end, we are for truck drivers, but we oppose anything that pressures drivers into breaking the law, falsifying logs, and endangering themselves and others. And as long as these actions continue to injure or kill drivers—professional or not—we will continue to hold the responsible parties accountable for it.

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