On Duty Status per DOT

RichM · May 9, 2003

I have oftern wondered that when a driver is in a so called "off duty" status waiting to be dispatched either at home or on the road, that this so called "available" time should be considered "on duty".
I base this on the fact that a driver can be called for a random drug or alcohol test at any time that he or she is "available".
OOIDA is pushing hard for all drivers to run 100% legal in June.Nothing wrong with that.They recently mailed me a flyer outlining the rules of being both in a "driving and being on duty".
The official DOT rule states that "On duty time means all time from the time the driver begins to work, or is in READINESS to work ( Available).
On duty time shall include (1) All time at a plant,termonal,facility or other property of a motor carrier or shipper,or on public property ,waiting to be dispatched.
Wouldn!t this mean that after 15 hours of waiting at a Flying J or Walmart that you could no longer be available until you had 8 hours off. How about at home,while your home is not public property you could be called at home for a random test which means that you are "On Duty".
I recently waited 189 hours in a so called "Available" status. If I interpet the regulations the way I am thinking shouldn!t I have been out of service at the 70 hour limit.
Lawrence or Jeff,you guys have contacts at OOIDA and the various Companies,perhaps you could get a ruling on this.

ATeam · May 9, 2003

I agree with RichM that there is nothing wrong with OOIDA's June Run Compliant initiatiave. I'll go a step further and say there is a lot right about it. If nothing else, this initiatiave is reminding drivers about the Hours of Service rules. The reminder is a good thing. The confusion caused by the rules themselves is not.

Below is the actual text of the Federal Motor Carrier Safety Regulations Part 395.2 Definitions (copied from the FMCSA web site). A careful and thoughtful reading, combined with a "what if" analysis, leaves one with more questions than answers. Our FMCSA friends have provided an interpretations section on their web site, showing the official answers to many "what if" questions. However, that section leaves one even more curious about the intent of the rules and the process by which they were derived.

For example, consider a hypothetical case (not addressed in the interpretations section) of a driver parked at a loading dock at 3:00 AM, sleeping in the sleeper, waiting for the plant to open at 7:00 AM when he'll pick up his scheduled load. Is he on duty because he's parked at a facility waiting for a load, or off duty because he's asleep in the sleeper berth?

Definitions:

http://www.fmcsa.dot.gov/rulesregs/fmcsr/regs/395.2.htm#

Interpretaions:

http://www.fmcsa.dot.gov/rulesregs/fmcsr/regs/interp395.2.htm

------------------------

395.2 Definitions

On duty time means all time from the time a driver begins to work or is required to be in readiness to work until the time the driver is relieved from work and all responsibility for performing work. On duty time shall include:

(1) All time at a plant, terminal, facility, or other property of a motor carrier or shipper, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the motor carrier;

(2) All time inspecting, servicing, or conditioning any commercial motor vehicle at any time;

(3) All driving time as defined in the term driving time;

(4) All time, other than driving time, in or upon any commercial motor vehicle except time spent resting in a sleeper berth;

(5) All time loading or unloading a commercial motor vehicle, supervising, or assisting in the loading or unloading, attending a commercial motor vehicle being loaded or unpublic utility services, including the furnishing of electric, gas, water, sanitary sewer, telephone, and television cable or community antenna service;

(6) All time repairing, obtaining assistance, or remaining in attendance upon a disabled commercial motor vehicle;

(7) All time spent providing a breath sample or urine specimen, including travel time to and from the collection site, in order to comply with the random, reasonable suspicion, post-accident, or follow-up testing required by part 382 of this subchapter when directed by a motor carrier;

(8) Performing any other work in the capacity, employ, or service of a motor carrier; and

(9) Performing any compensated work for a person who is not a motor carrier.

ATeam · May 9, 2003

RichM,

Question 20 of the FMCSA web site Interpretations section addresses the question you raise in your post. The text is below. The link to the full Interpretations page is:

http://www.fmcsa.dot.gov/rulesregs/fmcsr/regs/interp395.2.htm

Question 20: How must a driver record time spent on-call awaiting dispatch?

Guidance: The time that a driver is free from obligations to the employer and is able to use that time to secure appropriate rest may be recorded as off-duty time. The fact that a driver must also be available to receive a call in the event the driver is needed at work, even under the threat of discipline for non-availability, does not by itself impair the ability of the driver to use this time for rest.

If the employer generally requires its drivers to be available for call after a mandatory rest period which complies with the regulatory requirement, the time spent standing by for a work-related call, following the required off-duty period, may be properly recorded as off-duty time.

Weave · May 10, 2003

Absolute perfect legal interpretation from someone who has never been through a DOT inspection before, and has not delivered a load from a truck yet as far as anyone on EO knows. Hmmm, makes me wonder??
-Weave-

Fr8 Shaker · May 10, 2003

All I can say is that if anybody is logging (on-duty not driving) because their sitting on public property ie. truck stop (waiting for dispatch) or private property ie. shipper/consignee (waiting for them to open) you'll be out of hours before you even get started.

(9) Performing any compensated work for a person who is not a motor carrier.

sunday 5/11 on duty 9am.-10am. mowing neighbors lawn.
compensation: 2 beers and a dozen cookies !!!

RichM · May 11, 2003

The DOT Rulebook section 382.305 states that random alcohol
testing can only be performed when a driver is in a safety sensitive time frame.The rule states that a driver may be required to submit to this test when "He or She is performing a safety sensitive function(driving),just before you perform a safety senstive function,just after you perform a safety sensitive function.
To me this clearly indicates that a driver must be in an "On duty status" to be called for a random test.Being available in a Off duty status and not being under forced dispatch operations,random testing should not be required. When a driver accepts a trip then then all rules pertaining to DOT should apply. The company I lease to along with most of the others require a driver to "go out of service" if they wish to drink a beer or two. So doesn!t that indicate when I am in a Available mode to be dispatched,this time should count as "on duty time".
I am no fan of the organziation CRASH headed by a wild woman MS Joan Claybrook but they have said that if a Driver when he is resting or off duty can be called to perform a DOT function, that driver is in a "on duty status" during the time he is waiting to be dispatched.
this could have lots of ramifications for Expediting or other companies that have irregular operations.

Fr8 Shaker · May 11, 2003

Rich, I don't know if this will help, or if I really understand what your trying to say. But if the company your leased on with pulls your name for a random drug test, You usually do that at your convenience, but the thing is you won't be dispatched till that is done. You don't have to take your truck for that, you can use your personal vehicle to go get that done on your time, so why would you log it. as far as DOT giving you a random one, it would only be after an accident or for some reason they thought you were wasted while you were driving. and i've never heard of a driver saying DOT made them take a random drug test. As far as being available, I'm always available unless I called dispatch and told them I was out of service for whatever period of time. but whether i'm sitting at home or in a truck not working I'm off duty till they call and say they have a run for me.
If I'm performing maint. on the truck or washing it or whatever I log that off duty. nobody but myself knows what I'm doing so why would you log that as on duty and waste your hours. As long as you log 8 hours or more off duty after putting in your 10 hours driving thats all they care about. they don't know if you stayed in your sleeper, home or a motel. If I was making a delivery and arrived at lets say 1300 and didn't get unloaded and my paperwork signed till 1430 I'll log off duty from 1300 to 1415 and on duty not driving from 1415 to 1430.
why waste an hour and 15 min. while I'm just waiting and resting anyway. as far as anyone is concerned I was at lunch. If you try and follow every rule DOT has to the letter, you'll go broke.

RichM · May 11, 2003

I guess what I am trying to say is that if a company can dicate to you what you do in your off duty time then that off duty time is really on duty time. If I am off duty and I want to drink 2 beers thats my decision,the company has no right to say "you can!t drink beer", while you are off duty. When I am called for and accept a dispatch Offer then I am on duty and I must live and abide by the DOT rules or the Companies rules. But as a so called (lol) independent contractor I can refuse that dispatch offer without penalty. it!s the independent status that gets into the gray area here.Are we truly independent? I don!t think so,since right now at 1915 sitting in my home I can be called upon for a drug/alcohol audit, even though I am OFF DUTY but available. I have argued this point with the Safety Director of the company I am leased to and got nowhere.I think the IRS may look upon this situation as you are not an independent contractor but a employee.

Fr8 Shaker · May 11, 2003

Hey Rich, I read The DOT Rulebook section 382.305 and I understand what your talking about now about drug testing.( Now the way I read it) this would only pertain to EMPLOYEES of said company ie; company drivers who would show up to work then be told to go get tested. who would not only show being on duty while going to get tested, but also being (PAID) for their time while going to testing, being tested and returning to work. It does not say in there how this would pertain to independant contractors who are self employed. I'm sure were not exempt from this by any means but this is a problem when trying to interpret these rules when they're not covering all the other factors involved. this is usually a result from people who never actually do the job but want to tell you how it should be done.

I had been picked at random before for another company i had worked for. They paid for the test but I wasn't compensated for my time.

Now I guess the only way to get the answer to this question would be to get in touch with DOT, FHWA, or the ICC and ask them not only to explain it but to show you where it's at.

RobZip · May 13, 2003

>Absolute perfect legal interpretation from someone who has
>never been through a DOT inspection before, and has not
>delivered a load from a truck yet as far as anyone on EO
>knows. Hmmm, makes me wonder??
>-Weave-

One has to observe that this person has not encountered all the infinite variables possible. Almost a consultant who is defined as someone who knows a hundred ways to make love but doesn't know any women.

lanechange · May 13, 2003

When someone has done a lot of research as ateam has and is willing to share the findings is a valuable asset. How tou use this information is up to you. But to do a good job out there any informastion is a hand up. The best thing about a-team is he is willinmg to ahare this research and it does not cost you any time. In my world time is money. I want to thank a-team for his generosity.

ATeam · May 14, 2003

RichM,

As I said in my earlier post, reading the FMCSR leaves one with more questions than answers. For any of these rules, and the specific circumstance in which the rule has come into question, you could find a competent, trucking-knowledgeable attorney to interpret it one way, and an equally competent and knowledgeable attorney to interpret it another. I thought it might be helpful to post the on duty definition and the question 20 interpretation that spoke to the question you raised. I'm going to gracefully steer clear of offering my personal opinions about what the rules mean or don't mean out in the world. Personal opinions are available in abundance at any truck stop lunch counter.

For an "official" answer to the specific questions you have, you'd have to research case law yourself or pay an attorney or legal service to do so. Even then, you might not find the answer you're looking for because the circumstances of a particular case may not match the hypothetical circumstances you have in mind. As far as getting an interpretation by talking to regulators goes, that's easier said than done. They have to be very careful about what they say and publish. While they may appear to you to be answering your specific question, they have in the back of their mind all other drivers who would also latch onto that answer and try to fit it to their circumstances. Regulators often talk in what seems to be double talk because they don't want to create the impression that official interpretations exist which really don't.

Perhaps the best place to go with your question is your carrier's in-house attorney (if your carrier has one). He or she is unlikely to charge you for the opinion and helping drivers comply with the FMCSR is presumably part of the attorney's job.

I share your concerns about the way these rules reach into our private lives. The one that troubles me most is definition (9) which says you are on duty if you are "Performing any compensated work for a person who is not a motor carrier." Does this mean that if you are home for the weekend and your neighbor pays you $20 for the hour you spent fixing his lawn mower, you must show that hour as on duty not driving in your log book? I believe most regulators and enforcement officials would say it does.

Fr8 Shaker said in this thread that, "nobody but myself knows what I'm doing so why would you log that as on duty and waste your hours. As long as you log 8 hours or more off duty after putting in your 10 hours driving thats all they care about."

While there is some truth to that, it is wise to also consider who "they" may be. Fr8 Shaker's approach is no doubt common among drivers and is unlikely to cause any problems....until there is a problem, like an accident with injuries. At that point the injured party's lawyers will be doing all they can to cash in on your misfortune, including hiring private investigators, using subpoenas, and interviewing witnesses (including your neighbors) to reconstruct your activities for the last week or so. If "they" can show that you are a log-book liar, they've gotten closer to putting you at fault and accessing the big bucks in your insurance company's coffers.

I once sat on a jury in a traffic case that involved big bucks. The trial lasted a full week. It was amazing and frightening to see the lengths the law firms went to make their respective cases.

I'm glad to see OOIDA bringing these issues into the public light in their June run legal initiative. I'm fully supportive of this effort. More info about the OOIDA initiative is on the OOIDA web site: http://www.ooida.com

Weave · May 14, 2003

If you guys aren't using a laptop computer with a log book program such as Bjorklund's DDL, I would suggest you invest in it. It does not make you totally immune to log book violations, but if you are using it correctly, it can eliminate a lot of human error in your logging. You wouldn't need much more than a cheap second hand laptop to use the simple program, and a small printer to print out the logs. I have never been cited for a logbook violation, and have been through many a DOT inspection. The inspectors LOVE these logs, mainly because they are easy to read, and are always accurate as far as the numbers go. The time they will save you as a driver is incredible, and so if you wanted a good suggestion on the time=money equation, there you have it, without 25 paragraphs of mumbo-jumbo BS to try to figure out

Mr. Bjorklund figures it out for you! www.driversdailylog.com The computer generated logs are 100% legal now.
-Weave-

ddivine · May 16, 2003

Amazing maybe i am just abrasive by nature but yrs driving will do i guess, c my topic Precious commodity, two replies say i was complaining, and this is what i was getting to along with some other ideas, but i'll stop now before i'm complaining again. Get out while u can. Good Luck Everyone and Godspeed backhome be safe