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Hell on Wheels

Are bad trucking laws partially to blame for Tracy Morgan's accident?

Shane Bevel/Bloomberg via Getty Images

Two days before Kevin Roper crashed his Walmart big rig into Tracy Morgan’s limousine, critically injuring the comedian and killing his colleague James McNair, the Senate Appropriations Committee quietly loosened the laws governing truckers’ hours on the road. Senator Susan Collins slipped an amendment into an appropriations bill suspending for one year a rule limiting truckers to 70-hour work weeks, with a mandatory 34-hour “re-start” once they hit that threshold. Under the amendment, the law would revert to an 82-hour workweek. The Truck Safety Coalition denounced the measure: “What is being portrayed as a small change to the rest period actually has a large impact on crash risk and will set back safety for everyone sharing the roads with large 80,000-pound trucks.”

Workplace deaths have been falling for several decades, owing in part to the decline of manufacturing, and the subsequent shifting into less hazardous occupations. But roadway accidents, which accounted for 15 percent of those workplace deaths, have risen recently. In 2012, there were 333,000 large truck crashes, according to the National Transportation Safety Board, leading to nearly 4,000 fatalities and over 104,000 injuries. Three-quarters of the dead were occupants of vehicles other than the large truck, and so were not counted in the Occupational Safety and Health Administration’s official workplace fatality statistics. Overall, large truck accidents have risen steadily since 2009.

This is, in part, because there are simply more trucks on the road. In an age of Amazon and e-commerce, more inventory moves around the country. Total tonnage reached record highs over the past year. Around 70 percent of American goods transport by truck, and the industry collects $650 billion in annual revenue, of 5 percent of GDP.

But the fact is it’s difficult for truck drivers to make a decent living by playing by the rules, and employers, including Walmart, effectively create a hazardous workplace by constraining pay to make cheating attractive, and ordering faster shipments with deadlines that can only be achieved through cutting corners. Roper had been awake for over 24 hours when he crashed his truck, according to the criminal complaint. A January accident in Illinois featured a driver on the job for 36 straight hours.

The average trucker makes around $37,000 a year. While trucker pay varies from one company to the next, in general terms they get paid by the mile, but not for each mile driven. If a driver goes from Seattle to Minneapolis, they get an “as the crow flies” rate, meaning that any detours or miles spent lost on the road are unpaid. Most drivers aren’t covered by Fair Labor Standards Act requirements on overtime pay beyond 40 hours. Truckers are also often not paid when the haul gets loaded or unloaded, so they could spend hours at a facility working without being on the clock, adding to fatigue. Some industries, like oil and gas, have exemptions from hours-of-service rules that make driving even more dangerous.

Drivers also face tight deadlines to deliver loads on time. Employers restrict speed because it impacts fuel costs, so the only way to get goods to their destination faster is through more driving hours.

All of this creates incentives for truckers to bend the rules by driving over long stretches of time. The Department of Transportation mandates that truckers work no more than 14 hours a day, with only eleven hours of driving, before getting a ten-hour break. On long hauls that go through the night, a “slip seat” driver tags along and the two drivers take turns. Workers who are ill or fatigued are supposed to be prohibited from driving as well, and the 70-hour work week rule was passed in 2013 before Congress attempted to lift it this week (the appropriations bill hasn’t gotten final passage in both chambers yet).

Recent incidents show that these regulations are frequently broken. A whistleblower complaint against Oak Harbor Freight Lines in January alleged that the company encouraged truckers to drive while sick or increase their hours beyond the limit. This followed several other revelations of employer pressure and retaliation in recent months. In February, a manager at Connecticut trucking company Wisla Express was convicted and sentenced for falsifying logbooks submitted to government regulators specifying drive times. Walmart claims that their driver operated “within the Federal Hours of Service regulations,” and its driver has pleaded not guilty. But the company has experienced issues with fatigued drivers and fatal crashes before.

One problem with effective oversight concerns the overlapping federal authorities on the trucking industry. OSHA has jurisdiction over interstate trucks only when they sit in the workplace; when they head onto the road, the Department of Transportation takes over, through the Federal Motor Carrier Safety Administration (FMCSA). The National Transportation Safety Board investigates accidents and makes recommendations, but only the FMCSA can make and enforce the rules.

One of the best ways to ensure compliance with regulations would be to mandate electronic logbooks that track time and miles driven, making it harder to falsify records (and reducing paperwork for the industry). The FMCSA proposed mandatory electronic logging devices in March, in a rule that would also increase fines to $11,000 for companies that harass employees into violating hours-of-service rules. The logbooks would reside with the companies and the drivers, and only be submitted to regulators upon request. The rule could be finalized later this year, but companies would have two years to comply. However, industry trade groups have already signaled their opposition to the regulation.

The American Trucking Association, the industry’s key trade organization, spent nearly $2 million in lobbying last year, and contributed over half a million dollars to candidates, to members of both parties. It claims that the 70-hour and re-start rules force truckers onto the roads at peak hours, and says they’re “damaging” and “unjustified.” FMCSA head Anne Ferro disagreed, arguing that they were adopted only after diligent review of medical research on combating fatigue. The industry has basically opposed every safety regulation on work hours over the past several years, prompting a federal appeals court ruling for the FMCSA over the re-start rule to hope that the “permanent warfare” over the regulations would soon end.

Driving big rigs across interstate highways is among America’s most dangerous jobs in good conditions. When drowsy drivers hit the roads, pressured into performing to make ends meet or to hit deadlines, that danger rises exponentially. Higher wages for the key employees of this lucrative business would reduce the leverage trucking companies have to force drivers to break the rules. And more streamlined oversight, with all available tools, can keep a lid on bad behavior. The changing American workplace has not eliminated safety concerns, just shifted them.