April Grab Bag

With the busy summer driving season ahead of us, it would be helpful to provide updates on some of the most pressing issues of the day. These topics include the continuing battle in Congress threatening to engulf the 34 hour restart rule and gut hours of service rules to what was the law when Franklin Roosevelt resided in the White House, potential weekly hours increases, and constitutional challenges to mandated electronic logs (e-logs).

Restart Language

First, on Thursday the Senate Appropriations Committee advanced a transportation spending bill by a 30-0 vote. Even though the text of this approved bill has not yet been released, industry insiders have reported that the bill includes language to fix the flawed language from last year’s appropriations bill regarding the 34 hour restart. We have been watching the development of this process since they began last year, including the failed attempt to pass a fix under the FAA funding bill.

For review, Congress suspended the enforcement of certain 2013 proposed hours of service rules that required drivers using the 34 hour restart to reset their weekly hours have two periods between 1 a.m. and 5 a.m. in their extended off-duty period and limited the use of these extended rests to once per week. In doing so, Congress mandated that the FMCSA study the issue of whether drivers under such a regime would display “statistically significant” improvements in safety, driver health and longevity, fatigue, and work schedules over those operating under the current rules. The flaw in this language was that it failed to specify which re-start rules would be struck down if the study failed to show these improvements.

Under the approved bill passed Thursday, the current 34 hour restart would remain in place, if the study fails to show significant improvement. The question, though, of whether the early morning rest periods become mandatory remain an open question pending the results of the study.

Weekly Hours Language

In this same bill, the Senate Appropriations Committee approved hours of service language that drivers would cap time a driver could either drive or work at 73 hours per seven calendar days. This language targets the rest rules in a fiscal 2016 funding law, whose interpretation would lead to caps of 60 hours in seven days and 70 hours in eight days. This language is easily the most controversial of what has been included in this fiscal 2017 appropriations bill, as safety groups are already protesting against the measure.  No language was included in either this language or that of the 34 hour restart regarding federal supremacy over state hours and breaks laws.

E-Log Constitutionality

Recently, the Owner-Operator Independent Drivers Association (OOIDA) filed a lawsuit in the Seventh U.S. Circuit Court of Appeals, whose jurisdiction covers the states of Illinois, Indiana, and Wisconsin, challenging the constitutionality of mandatory use of e-logs. OOIDA claims that the FMCSA does not have sufficient data to show e-logs actually result in the decreased occurrence of accidents, and alleges e-log devices violate a driver’s constitutional protections from unreasonable searches and seizures because it constitutes a form of tracking and no warrant is required to view the information contained on an e-log. Indeed, the OOIDA appears to have an arguable case on the issue of whether mandatory e-logging devices constitute an illegal search.

Just last year, the Supreme Court in Grady v. North Carolina unanimously approved of its holding in United States v. Jones, which held that government installation of a GPS device on a target vehicle and using the device to monitor the vehicle’s movements constituted a “search” under the Fourth Amendment. The Grady Court stated that where the government physically occupied private property for the purpose of obtaining information, it was not necessary to inquire as to whether there was a reasonable expectation of privacy in the vehicle’s movements because the government was obtaining information by physically intruding on a constitutionally protected area. These protections, too, aren’t avoidable by the government on an argument that it is not actually invading the privacy of drivers because it only mandates they have such devices to track their own movements. The Supreme Court has on numerous occasions reaffirmed the spirit of its holding in Katz v. United States, stating that the Fourth Amendment extends even to information obtained without any “technical” trespass.

The issues in the present case filed by OOIDA will likely revolve around this issue and others, including whether drivers have any expectation of privacy to information they already keep mandatory paper logs on.

We will continue to keep you informed of the legal developments surround the hours of service language and constitutionality of mandatory e-logging devices. Be sure to keep up with our blog and follow us to stay updated on these issues and many others.

This article was written by Andrew Laquet associate attorney at Roberts Perryman PC. Andrew’s focuses his practice on transportation, insurance defense and complex litigation.

Roberts Perryman has been a leader in transportation defense for over 50 years with offices in St. Louis and Springfield, MO and Belleville, IL. http://www.robertsperryman.com