About the Author: Heather Bailey is a partner in SmithAmundsen’s Chicago office and a member of the firm’s Labor & Employment Practice Group.
“Life moves pretty fast. If you don't stop and look around once in a while, you could miss it.” That’s a quote from Ferris Bueller in 1986. And it’s as true for fun-loving teenagers as it is for hard working entrepreneurs looking at the laws governing business practices. The year 2013 has proven to be busy for both state and federal legislatures on employment-related laws. As business operators, you are charged with the duty of being in compliance with fast changing federal, state and even local employment laws. Unfortunately, ignorance of the law is no excuse. Continue reading to become better equipped to combat these new laws.
Federal Law Issues
We begin with one main federal law update for operators with route drivers, the U.S. Department of Transportation’s “Hours of Service (HOS) of Drivers Final Rule.” This rule has good news and bad news for operators with drivers who operate commercial motor carrier vehicles (for vending operator purposes, it’s those trucks with a gross vehicle weight rating of 10,001+ pounds). The final date for all applicable operators to start having their drivers abide by the two main new mandates was July 1, 2013. The mandates are:
1.) the 34-hour restart restraint for the mandatory time limits on how long and when a driver may drive his truck (the 14-hour driving window limit, the 11-hour driving limit and the 60 hour/7 day and 70 hour/8 day limits); and
2.) a required 30 minute rest break after 8 hours of driving.
The good news first: On August 2, 2013, the U.S. Court of Appeals for the District of Columbia held that No. 2 above for the required 30-minute rest breaks only applies to “long haul drivers.” The various transportation agencies will not be enforcing this segment of the new rule against “short haul drivers.” Short haul drivers (which encompass the majority of route drivers) are generally those who operate trucks within 100 air-miles (e.g., 115.08 “roadmap” miles) of their normal work reporting location. If a driver starts his/her day as a short haul driver, but ends up exceeding these miles on the route, the rest period now becomes a requirement at the soonest possible moment the driver learns he/she has surpassed the short haul limits. Please keep in mind, however, that depending on which state your drivers operate in, you may be required under state law to be giving your drivers state-mandated rest and/or meal breaks regardless (no matter how large of a truck they drive or how long away from home base they drive).
The bad news is No. 1 above still applies. This means your route drivers cannot drive more than 11 hours within a 14 hour period following 10 consecutive off-duty hours. Moreover, drivers cannot drive more than 60 hours in a rolling 7-day consecutive period, or 70 hours in an 8 consecutive day period (if your operations are 7-days a week). These hours include not only driving time, but the time for loading and unloading vending goods, as well as, stocking and cleaning machines and any paper work or warehousing – virtually any work the driver performs (even work performed for another employer who may or may not even be a vending operator).
You may restart your route drivers’ 60 or 70 hour clock with the 34-hour restart provision. However, the new HOS regulations overly restrict how you may do so. This restart may only occur once every 168 hours, or once a week and the off duty time must include two off duty night shifts that occur between 1 a.m. and 5 a.m. (which is considered the most hazardous time for drivers to nod off and cause accidents). For those route drivers putting in these longer hours Monday to Friday, operators need to keep in mind that working Saturday may now not be an option those weeks. Again, if the driver’s state law mandates stricter driving time and restart limits, the stricter time limits must be followed. Keeping track of your route drivers’ hours has become even more important now in order to rid yourself of empty penalties and headaches from the DOT agencies. Stay up-to-date at the Federal Motor Carrier Safety Administration’s Website.
Federal laws are not your only worry – depending on which state you operate – there are some new laws you should keep an eye out for in your city and state.
· In the essence of Ferris Bueller’s quote above – employment laws are changing faster than ever before. It’s time to stop and look at your employment practices, policies and procedures to confirm your company is adhering to the newest laws in town. Employee-side attorneys are going after employers in search of class actions. Beat them to the punch as an employer’s best offense is a great defense!
· It’s best to meet with your employment counsel to confirm your policies and practices are up-to-date and consistent with these new laws. Performing an HR audit of your pay practices is a safe and recommended step since wage and hour class actions are the most commonly filed lawsuits by employees.
· Document, document, document your decisions and practices. This way you have evidence of your consistent application of your employment practices and policies.
· Generally, if federal law conflicts with your state or local law, you follow the law that gives the employee more benefits.