Saturday, July 13, 2024

Federal law designed to make trucking safer may have aggravated worst issues

This is the first story in a FreightWaves series on the electronic logging device mandate. Federal regulators began enforcing the mandate on April 1, 2018. Check back at this week for more.

On a Tuesday evening in March, Lisa and Lee Schmitt left their home to move a 42,000-pound load of pre-cracked, pre-whipped eggs.

As truck drivers, every minute of their move was accounted for. They ate dinner at their home in Wisconsin and left around 8:30 p.m. At 11 p.m., the Schmitts arrived in the tiny town of Gaylord, Minnesota. Their customer, a multimillion dollar supplier of “value-added eggs,” allows truck drivers to park overnight — a rare treat. Because of federal regulations that date back to the 1930s, the Schmitts weren’t able to start their day until 9 a.m. the next day. 

They hit a snag. At the value-added egg behemoth, the warehouse managers found a mechanical issue in their trailer and had to get it fixed next door. 

It took hours for the mechanics to fix the issue — and even more hours to get loaded. The Schmitts started driving at 2 p.m. on Wednesday, even though they came on duty five hours earlier. 

The Schmitts were watching the clock. They had to stop driving by 11 p.m. or else face a hefty fine and a black mark on their safety rating. But they couldn’t park their truck too far from Cedar Rapids, Iowa, where a restaurant supply giant was awaiting the pre-cracked eggs. The drive should only take six hours, they said, but a nasty traffic jam or equipment issue could delay them. 

Their Cedar Rapids appointment was at 9 a.m. Thursday. If they missed it, they might have to wait hours to get unloaded. It could skewer their jobs later that week. The customer might even refuse to work with them again.

They made it to Cedar Rapids at 8:30 p.m. on Wednesday. Their customer didn’t offer parking for truckers, so they grabbed one of the few parking spots available at a nearby truck stop. 

By 9 a.m. Thursday, they were rolling up to the restaurant supplier to offload the pre-whipped eggs. Then the mad dash started again.

Lee Schmitt, left, has been a truck driver for three decades. Lisa Schmitt, right, joined him in the truck eight years ago. (Photo: Courtesy of Lisa Schmitt)

Like nearly every other one of America’s 2 million truck drivers, the Schmitts are only paid for the miles that they drive. Their egg load was an unusually well-paid $5 per mile. (The current per-mile average pay right now is $2.34, according to the FreightWaves National Truckload Index.) 

The pay-per-mile structure incentivizes truck drivers to drive as much as they can. As a common trucker refrain goes, “If the wheels aren’t turnin’, you’re not earnin’.” 

That’s why truck drivers like the Schmitts have abhorred a federal law that came into effect around five years ago: the electronic logging device mandate. 

Starting Dec. 18, 2017, federal law required truck drivers to digitally log their working hours in their cabs. Truckers can drive no more than 11 hours a day within a 14-hour window, according to a law that dates back to 1938. A federal study estimated that the ELD rule would prevent 1,844 crashes and 26 deaths annually. 

Five years later, it doesn’t appear that truck drivers’ most-hated law has ushered in that reign of safety.

Fatal crashes involving a large truck, per 100 million miles traveled by truck, increased by 5.4% from 2016 to 2020, according to the most recent federal data. One 2019 study found that unsafe driving activities increased as a result of ELD enforcement.

Formal enforcement around digital logbooks began April 1, 2018. Truck drivers could use either an ELD or an older piece of technology no longer permissible today

The Federal Motor Carrier Safety Administration, which oversees the enforcement of the ELD mandate, declined to comment on record about the impact of the rule. The percentage of drivers with speeding violations slightly increased from 4.45% in 2018 to 5.07% through 2023, according to FMCSA data. 

The mandate was not entirely FMCSA’s doing, though. A 2012 congressional mandate required FMCSA to enforce ELD adoption, said Duane DeBruyne, who served as the FMCSA’s spokesperson from 2005 to 2021. 

First, FMCSA had to pursue a cost-benefit analysis on the law. In addition to considering and sponsoring scientific research, federal agencies pursue comments from the public in these cost-benefit analysis. DeBruyne said this public comment is the most crucial part of this process.

“Thousands of comments concerning detention time, scarcity of parking, the uniqueness of many types of trucking operations and commodity loads were thoroughly reviewed and considered — as were comments from state and local commercial motor vehicle law enforcement entities and from safety advocacy organizations as well as private citizens,” DeBruyne wrote in an email to FreightWaves.

It’s obvious that folks behind the wheel of an 80,000-pound vehicle should be well rested. Still, the issues that make a truck driver’s livelihood so challenging aren’t fixed by the ELD mandate — and some believe the controversial law has exacerbated them. 

A decades-old law that was often ignored

Since practically the beginning of trucking last century, the federal government has tried to curb the issue of overworked, exhausted drivers. 

In 1938, the federal government began requiring truck drivers to abide by hours-of-service rules. This law currently forbids truck drivers from driving more than 11 hours in a 14-hour window. They are then required to log 10 hours off duty. 

It’s a smart idea. But for as long as the HOS rules have existed, truck drivers have tried to skirt around them. Paper logbooks helped make that happen.

A truck driver records his work on a paper logbook – back in the day. (Jim Allen/FreightWaves)

“We drove what we had to do to get it there,” said Lee Schmitt, who became a truck driver three decades ago. 

Karen Levy, a Cornell University assistant professor, made the case for this in her new book, “Data Driven,” which reveals how digital surveillance has shaped trucking. Levy argues society is practically built on skirting some rules. 

Most would likely be shocked if they were fined, say, for driving 66 miles per hour in a 65 mph zone or jaywalking when there are no cars around. Few expect any consequence for those technically illegal choices. Nor would anyone expect to be fired for, say, pretending to have a dentist appointment when they were sneaking off to a hairdresser or spending an hour a day on Facebook. Of course, people should generally drive at a safe speed and get off Facebook — but it’s hard to picture being a member of society without, well, some slight rule breaking. 

For a truck driver, rule bending made the job doable. The ELD mandate, and the HOS rules it enforces, took away a truck driver’s ability to “fudge around the gray areas,” said Alex Scott, an assistant professor at the University of Tennessee.

“I don’t think anybody would think it’s a good idea for a driver to drive 20 hours a day,” Scott said. “But a driver should be able to extend their driving time by 15 or 20 or 30 minutes to get to a safer place to stop or because traffic was bad that day or to stop and eat lunch.”

That three-hour window in the 14-hour work window should theoretically provide that flexibility, but some argue it’s not enough. During the Schmitts’ recent egg haul, for example, the couple could have run into traffic heading to Cedar Rapids or had delays in getting loaded. Or they could have arrived on time but been unable to find parking in Cedar Rapids — and forced to spend hours looking for parking. 

For any number of reasons, the Schmitts could have ended up 30 minutes away from their destination by 11 p.m. that Wednesday, when they were mandated to stop. HOS regulations require them to shut down for 10 hours. That would mean they would be 30 minutes late to their 9 a.m. appointment on Thursday — potentially jeopardizing the entire job, future jobs planned for that day or their relationship with that customer. (Customers, after all, aren’t likely to let truck drivers use their bathrooms, let alone be warm and fuzzy for a late driver.)

Prior to 2018, the Schmitts may have simply faked the numbers in their logbooks if they faced a hurdle. They’re no longer able to do that. 

“Was it illegal? Did we go over?” Lee said. “Yes, but 99% of the people would go to bed when they were tired.”

Other issues afoot 

Even with the best of intentions, exhausted truck drivers do kill dozens each year. One federal study cited in the 2015 ELD rulemaking indicated that truck driver fatigue was a factor in large truck accidents that killed on average 85 people per year between 2005 and 2009.

The sleep schedule of a truck driver is challenging to predict, in part thanks to all of the disruptions they experience on the road. Annette Sandberg was the FMCSA administrator from 2002 to 2006, during which she oversaw major revisions to HOS rules. She found that regulators had to rely heavily on sleep studies on factory workers. There weren’t many studies that concerned how truck drivers sleep.

But Sandberg, who continues to work in motor carrier safety, said the job of trucking isn’t comparable to a factory worker. Truck drivers don’t work in a relatively controlled environment, like a factory. They work on the highways, where traffic can hamper their job, and with customers who might take hours to unload them. Factory workers clock out and go home. Truck drivers live, sleep and eat in their workplace — the truck. One’s shift is arguably never-ending. 

“Truck drivers have always been kind of a different challenge to regulators in particular because the work that they do is very different,” Sandberg told FreightWaves. 

What’s most unusual about truckers is that they do not receive overtime pay. The Fair Labor Standards Act of 1938 guaranteed workers minimum wage pay and time-and-a-half pay if they worked more than 40 hours in one week. Several types of workers were exempted from this policy, including truck drivers. (You can read more about why that is here.)

That makes their time practically a free commodity. When truck drivers are waiting at warehouses to be loaded or unloaded, their employers don’t have to pay up. Truck drivers are expected to wait up to two hours unpaid each time they visit a warehouse. Many wait much longer. 

Another key example of that is parking. Truck drivers spend on average nearly an hour each day looking for parking, according to an American Trucking Associations study

It translates to lost cash. A 2018 FMCSA study found that detention is associated with an annual reduction of $1.1 billion to 1.3 billion in for-hire truckload truck driver wages. And time spent looking for truck parking translates into a 12% annual pay cut

Detention time hurts safety. That same 2018 study found that an increase of just 15 minutes in time spent waiting increased the expected crash rate by 6.2%. 

What an ELD looks like. (Jim Allen/FreightWaves)

It comes back to that core issue: Drivers are only paid for how many miles they drive. And, with ELDs, drivers have to fit as many miles as possible in a federally mandated window — even though there are countless things that could consume that time that are out of their control.

By tracking a driver’s location, ELDs have the potential to significantly cut down on detention time. Trucking companies can now point to data that shows just how long their employees had been waiting at a customer’s warehouse and possibly demand payment. 

That hasn’t happened yet. One core reason: If retailers and manufacturers started paying trucking companies for the amount of time drivers really worked, we’d see the price of everything go up. 

Racing against the clock

Under current HOS laws, truck drivers are capped to working 70 hours in an eight-day period. Even in this remarkably long workweek, many truck drivers find that they have to push themselves to make ends meet. And Sandberg said many of her clients — executives of trucking companies of all sizes — still bemoan the 14-hour workday limit.

“Anytime I have any carrier — large, small, medium — and they start whining about 14 hours not being enough, I look at them and I say, ‘How many hours a day do you work?’” Sandberg said. 

Scott of the University of Tennessee was the lead author in the 2019 study that found the ELD mandate increased unsafe driving activities among drivers who work for small fleets or are owner-operators. The study also found that the mandate did not decrease and may have even increased the accident rate for that type of driver. (By the late 2010s, most large fleets had already installed ELDs in their trucks. The mandate thus had the most marked effects for small fleets.) 

That lack of improvement in the accident rate may be because Scott and his co-authors found that truck drivers were also more likely to drive more aggressively, change lanes more frequently or speed.

“The thing about a driver’s day, though, is that it’s constantly filled with interruptions,” Scott said. “You hit traffic you weren’t expecting. You get delayed loading or unloading. Inherently, a driver’s schedule needs some flexibility in it.”

That flexibility is now gone, which can result in unsafe driving. 

“When you take away that flexibility, that can cause those behaviors,” Scott said. “In fact, some of the drivers said, ‘Hey, that’s what we’re gonna do. [We’re] gonna be racing against the clock.’”

It’s possible that the ELD drove out experienced truck drivers, worsening the driver turnover

The ELD’s biggest impact on trucking isn’t one that is more challenging to capture with studies. Paul Marhoefer, a truck driver and musician, said it eroded something deeper that attracted him — and countless others — to the industry: the independence. That’s not just the independence of working without a boss looking over your shoulder, but the independence of doing a good job. 

“There always was a sense of wanting to be a good hand,” Marhoefer said. “I know how antiquated and almost corny that sounds.” 

Indiana native Marhoefer became a truck driver in the 1980s. He said, for longtime truck drivers like himself, there’s a desire to take ownership and do what had to be done. It’s a job that’s essential to today’s society, after all; if all U.S. truck drivers stopped working today, Americans would see food and medical supply shortages in a matter of days.

Taking on an extra gig and getting the job done isn’t as easy as it once was, with an e-log riding shotgun in nearly every big rig today. Marhoefer said that’s eroded some of his pleasure from the job. Being tracked by an electronic device isn’t exactly rewarding, either.

Paul Marhoefer, left, and his wife, Denise Marhoefer, right, are pictured on a recent hike in New York state. Paul Marhoefer has been a truck driver since the 1980s and has a complex relationship with his ELD. (Photo: Courtesy of James Year)

Another thing has added back that joy: cold, hard cash. Since the ELD passed, Marhoefer said he’s gotten seven raises from his current employer. Some of his coworkers are pulling six-figure salaries running “dead legal,” he said. The median salary for a truck driver sits around $48,000.

“I’ve gotten so many raises since e-logs have come into effect,” Marhoefer said. “They just keep throwing more and more money at us because of all the attrition.”

There are no studies that prove that scores of talented truck drivers fled the industry as a result of the ELD mandate. A so-called worker shortage has also afflicted most industries since the coronavirus pandemic. But plenty of drivers threatened before the rule passed to quit the job if a device was tracking them. Many claimed to make good on those claims, even spurring one U.S. congressman to introduce a bill to address ELD-sparked quitting. 

Turnover is perhaps one of the biggest issues that the trucking industry faces. Turnover rates at large truck fleets exceed an absurd 90%, a rate that’s similar to Panera Bread. But unlike Panera, it takes weeks to train truck drivers after they receive their CDLs. It also is potentially dangerous. A 2017 study found that high turnover rates at trucking fleets negatively affects that company’s safety scores.

Marhoefer is not going to join other truck drivers who are campaigning hard against the device. “The 35-year-old Paul might have taken that stance,” he said. 

Now, he’s frankly tired. 

What do you think are the biggest issues facing truck drivers today? Email with your thoughts. Subscribe to MODES for your weekly dose of transportation news. 

The post Federal law designed to make trucking safer may have aggravated worst issues appeared first on FreightWaves.

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