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Friday, May 10, 2019

When NJ Truck Drivers Complain about Long Hours

When NJ truck drivers, office workers, medical staff and others are forced by the employer to work long hours as a condition of their job, the employee may wonder if this is legal. Driver fatigue and public safety are an issue for all. State and Federal Codes and Regulations regarding driving were written not just for the safety of the driver, but for others on the road and the public in general. If you are a NJ truck driver and your employer forced you to drive without first taking 10 consecutive hours off duty*; or your employer does not schedule your work so that a driver may drive only during a period of 14 consecutive hours after coming on duty following 10 consecutive hours off duty*; or your employer forces you to drive more than  a total of 11 hours during the 14-hour period specified above;* and you complained and you employer retaliated against you, you may have a valid whistleblower claim. [ *Note: quoted from statute in effect on May 8, 2019, and may be subject to change at any time. CFR §395.3 (a)(1)(2)(3) ]

If truck drivers or others complain or refuse to work overtime hours in an amount that they believe violates federal and/or state regulations, and the employer later retaliates by demoting or firing the complaining employee, that employee may have a valid whistleblower claim. This law firm has successfully represented drivers, both private and public employees, in whistleblower lawsuits and has a successful track record of recovering money for these complaining employees. Some of the things complained about were being forced to drive excessive hours without sufficient sleep and break time and being told to not keep an accurate “log book” of their driving activities.

Mandatory overtime is probably the most misunderstood issue for employees. Most assume that their employer cannot require overtime, even regular consistent month-after-month overtime, as a condition of their employment. This assumption is incorrect because in NJ, with few exceptions, such as for certain healthcare professionals stipulated by statute, most employers can require their employees to work mandatory overtime hours, even very long hours.  

The Fair Labor Standards Act and the New Jersey Department of Labor does not establish the maximum hours threshold which an employer can force you to work above a 40 hour week. The employer, however, must pay you at the overtime rate (time and a half) for the hours worked in excess of 40 per week.

Employers for Truck Drivers and Some Other Occupations Such as Certain Defined Healthcare Workers, Must Be in Compliance with Other State and Federal Regulations Which May Limit the Amount of Overtime to Not Be Excessive.

Most employers can fire an employee if he or she refuses to work mandatory overtime because mandatory overtime is legal in New Jersey with some exceptions. One exception is the statute that protects NJ health care workers from being forced to work a certain amount of overtime, called “The New Jersey Mandatory Overtime Restrictions for Health Care Facilities”. This law stipulates the conditions under which defined health care facilities may require certain defined employees to work overtime. This shall be the subject of a future article.

The Federal Motor Carrier Safety Regulations (FMCSRs) has minimum standards for those involved with the operation of commercial motor vehicles in interstate commerce, in order to cover all people and entities involved in interstate operation of these trucks. Regulations issued by FMCSA are published in the Federal Register and compiled in the U.S. Code of Federal Regulations. State and federal Departments of Transportation have adopted these regulations and at times have added their own regulations.

Employers for truck drivers and both public and private employers of those whose employment requires driving with a Commercial Drivers License (CDL), must comply with all State and Federal Department of Transportation (DOT) Regulations.

Note: These rules may be subject to change, but on the date of May 8, 2019, the Federal Code of Regulations mandated in part that for Maximum driving time for property-carrying vehicles as follows:

§395.3   Maximum driving time for property-carrying vehicles.

(a) Except as otherwise provided in §395.1, no motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver's services, unless the driver complies with the following requirements:

(1) Start of work shift. A driver may not drive without first taking 10 consecutive hours off duty;

(2) 14-hour period. A driver may drive only during a period of 14 consecutive hours after coming on duty following 10 consecutive hours off duty. The driver may not drive after the end of the 14-consecutive-hour period without first taking 10 consecutive hours off duty.

(3) Driving time and rest breaks. (i) Driving time. A driver may drive a total of 11 hours during the 14-hour period specified in paragraph (a)(2) of this section.

(ii) Rest breaks. Except for drivers who qualify for either of the short-haul exceptions in §395.1(e)(1) or (2), driving is not permitted if more than 8 hours have passed since the end of the driver's last off-duty or sleeper-berth period of at least 30 minutes.

(b) No motor carrier shall permit or require a driver of a property-carrying commercial motor vehicle to drive, nor shall any driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver's services, for any period after—

(1) Having been on duty 60 hours in any period of 7 consecutive days if the employing motor carrier does not operate commercial motor vehicles every day of the week; or

(2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week.

(c)(1) Any period of 7 consecutive days may end with the beginning of an off-duty period of 34 or more consecutive hours that includes two periods from 1:00 a.m. to 5:00 a.m.

(2) Any period of 8 consecutive days may end with the beginning of an off-duty period of 34 or more consecutive hours that includes two periods from 1:00 a.m. to 5:00 a.m.

(d) A driver may not take an off-duty period allowed by paragraph (c) of this section to restart the calculation of 60 hours in 7 consecutive days or 70 hours in 8 consecutive days until 168 or more consecutive hours have passed since the beginning of the last such off-duty period. When a driver takes more than one off-duty period of 34 or more consecutive hours within a period of 168 consecutive hours, he or she must indicate in the Remarks section of the record of duty status which such off-duty period is being used to restart the calculation of 60 hours in 7 consecutive days or 70 hours in 8 consecutive days.

Note: These rules may be subject to change, but on the date of May 8, 2019, the Federal Code of Regulations mandated in part that for Maximum driving time for passenger-carrying vehicles as follows:

§395.5   Maximum driving time for passenger-carrying vehicles.

Subject to the exceptions and exemptions in §395.1:

(a) No motor carrier shall permit or require any driver used by it to drive a passenger-carrying commercial motor vehicle, nor shall any such driver drive a passenger-carrying commercial motor vehicle:

(1) More than 10 hours following 8 consecutive hours off duty; or

(2) For any period after having been on duty 15 hours following 8 consecutive hours off duty.

(b) No motor carrier shall permit or require a driver of a passenger-carrying commercial motor vehicle to drive, nor shall any driver drive a passenger-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver's services, for any period after—

(1) Having been on duty 60 hours in any 7 consecutive days if the employing motor carrier does not operate commercial motor vehicles every day of the week; or

(2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week.

Note: The above only lists part of the statute and not exceptions in effect on May 8, 2019, and which statute could be subject to change at any time and/or was different prior to that date. It does not constitute legal advice and should not be relied upon as such. The above quoted sections of the code could be altered at any time, might have been different in past time, or changed by case law interpretation.

DO NOT SIT ON YOUR RIGHTS!

Do not sit on your rights, or you may lose the right to file your claim.

If you think you have been retaliated against, it is essential for you to contact an experienced, competent and successful employment whistleblower attorney who will be aggressive about enforcing your rights as soon as possible.

If you have been demoted, had your hours cut, terminated, harassed or been subjected to retaliation for complaining about, objecting to, refusing to participate in, or reporting what you believe is your employer’s illegal or improper conduct, you should contact this law firm as soon as possible. I am an experienced, competent and compassionate employment attorney who will be aggressive about enforcing your rights.  I am successful in bringing whistleblower lawsuits against governmental entities and private employers and recovering money for whistleblower workers.

If you are being subjected to such unlawful workplace retaliation, contact Hope A. Lang, Attorney at Law today for a free consultation. I accept whistleblower and discrimination cases from all over New Jersey.

New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.

 



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