Ask The Law – April 2016

Questions About Filing Complaints, Axle Weight Limits & More Answered by Law Enforcement Officials (as of April 2016)

Warning: Laws are subject to change without notice.
These interpretations were made on March 14, 2016.

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FILING A HARASSMENT CLAIM

Q: As a driver, can I file a complaint for harassment against my motor carrier? If so, what is the procedure? Thank you – Paul in Minnesota

A: Provided by Senior Trooper Monty Dial (Ret.), Texas Highway Patrol, Commercial Vehicle Enforcement Division, Garland, TX: How to file a harassment complaint per 386.12(b): A complaint must be filed in writing to FMCSA stating the violation no later than 90 days after the event. It must be filed with the National Consumer Complaint Database (http://nccdb.fmcsa.dot.gov) or with any FMCSA Division Administrator. Information on how to file a written complaint may also be obtained by calling 1-800-DOT-SAFT (1-800-368-7238). Each complaint must be signed by the driver and must contain: 1) driver’s name, address, and telephone number; 2) name and address of the motor carrier allegedly harassing the driver; 3) a concise but complete statement of the facts relied upon to substantiate each allegation of harassment including (a) how the ELD or other technology used in combination with and not separable from ELD was used to contribute to harassment; (b) the date of the alleged action; and (c) how the motor carrier’s actions violated either 392.3 or Part 395. Complainants name will remain confidential and complainant will be notified of the findings if the complaint was investigated. A Division Administrator will determine if complaint meets requirements of 386.12(b)(1). If complaint is deemed non-frivolous, the complaint will be investigated. If the complaint is deemed frivolous, the driver submitting the complaint will be notified that the complaint was dismissed and the reason for dismissal. Because prosecution of harassment in violation of Part 390.36(b)(1) of this subchapter will require disclosure of the driver’s identity, FMCSA will take every practical means to ensure that the driver is not subject to coercion, intimidation, disciplinary action, discrimination or financial loss as a result of the disclosure.

AXLE WEIGHT LIMITS ON A CMV

Q: I am confused about axle weights on a Class-8 truck and tanker. When I earned my CDL many years ago, I was told for an 80K weight, my steer axle should be no more than 12K pounds, my drive axles no more than 34K pounds, and my trailer tandems no more than 34K pounds when I went over a scale. My current truck is rated at 12.5K on the steer, 40K on the drive axles, and 34K on the trailer tandems. Can I load up to my max ratings on the steer and drive axles, while staying under 80K pound gross, and still be legal? Thanks – Colin in Colorado

A: Provided by Sgt. Pete Camm (Ret.), California Highway Patrol, Sacramento, CA: Per your scenario, there are several elements going on. The gross weight you or your company registered the combination of vehicles to operate which cannot exceed (80,000 lbs.), the gross vehicle weight rating (GVWR) and single axle weight rating (12,500 lbs.) and dual axle weight ratings (40,000 lbs.) assigned by the vehicle manufacturer, and additionally, bridge weights. Bridge weights are generally established in law by individual states and regulation by the Federal Highway Administration (FHWA) and apply to the distance between axles and/or groupings of axles. For example, for a combination of vehicles to legally weigh 80,000 lbs. gross, there has to be a certain distance from the center of a steering axle to the center of the last tandem axle on the trailer and requires a minimum number of axles (tires) to be in contact with the roadway. Operating your combination of vehicles at scale weights of 12,500 lbs. on the steering axle, 40,000 lbs. on the drivers (I’m presuming dual axles) and 27,500 lbs. for the trailer tandems would not violate registration laws in individual states, but those numbers will probably violate bridge laws of any state you are operating in. For instance, Colorado allows a tandem axle weight of 40,000 lbs. if operation is on non-interstate roads. However, Colorado only allows a tandem axle weight of 36,000 lbs. on the interstates (like I-70 and I-25). Colorado weight laws can be found at www.colorado.gov/pacific/csp/size-and-weight-information.

REFUSING TO VIOLATE HOS RULES

Q: During 2014 and 2015 my company dispatchers often pushed me to keep working, whether I was out of hours or not. Then, in November of 2015, they punished me for HOS violations by imposing a 7-day stop with no pay. What are my rights under the labor laws? Thank you – Victor in Nebraska

A: Provided by Jim Brokaw, formerly a Staff Sergeant, Nebraska State Patrol, Carrier Enforcement Division, Lincoln, NE: It is within your rights to refuse to violate any of the safety regulations. 49 CFR 390.13 prohibits aiding or abetting violations by stating, “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.” If you are being compelled to violate the safety rules by your employer, you may file a complaint with the Federal Motor Carrier Safety Administration. You will need actual evidence to support your case. FMCSA will not investigate frivolous complaints against motor carriers. There must be a factual basis to any complaint. Part 390, Guidance Question 17, includes information about your protection for refusing to violate the FMCSRs: “Question 17: What protection is afforded a driver for refusing to violate the FMCSRs? Guidance: Section 405 of the STAA (49 U.S.C. 31105) states, in part, that no person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee’s compensation, terms, conditions, or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any federal rule, regulation, standard, or order applicable to CMV safety. In such a case, a driver may submit a signed complaint to the Occupational Safety and Health Administration.” An OSHA Fact Sheet containing additional information on Whistle-Blower Protection for Commercial Motor Carrier Workers may be found on their website at www.osha.gov.

~ The Ask The Law™ programs are an ongoing educational effort between Ol’ Blue, USA™ and commercial law enforcement agencies. Ol’ Blue, USA is a non-profit organization dedicated to highway safety education and to improving relations between the motoring public, law enforcement and commercial drivers. “Ask The Law” is a registered trademark of Ol’ Blue, USA. This column is copyrighted© by Ol’ Blue, USA. Warning: Laws are subject to change without notice. These interpretations were made on March 14, 2016.

About Ol' Blue, USA TM

Ol’ Blue, USATM is a non-profit organization dedicated to highway safety education and to improving relations between the motoring public, law enforcement and commercial drivers. The Ask The LawTM programs are an ongoing educational effort between Ol’ Blue, USA and commercial law enforcement agencies. “Ask The Law” is a registered trademark of Ol’ Blue, USA. This column is copyrighted by Ol’ Blue, USA.