Final highway bill could hurt conditional carriers

As House and Senate negotiators meet to hash out their differences in a long-term highway bill one of the major differences between the two versions is an "interim hiring standard" in Section 5224 of the House bill (H.R. 22), which would protect shippers and brokers from negligent carrier selection lawsuits pending reforms in the Federal Motor Carrier Safety Administration's Compliance, Safety, Accountability (CSA) program.

Both versions of the bill call for substantial reforms of CSA and FMCSA's regulatory process. One of the key provisions would shield CSA scores from public view until FMCSA completes an overhaul of Safety Measurement System (SMS) methodology.

The interim hiring standard is another temporary measure until FMCSA reforms CSA. Section 5224 as passed by the House on Nov. 5 would extend protections to shippers and brokers only if they used carriers that hold a satisfactory safety rating. But only about 5% of for-hire carriers have satisfactory ratings; most have no safety rating at all. So a number of transportation-related groups backed a provision that would also protect shippers and brokers when they used unrated carriers. However, conditional for-hire carriers -- more than 11,000, according to FMCSA data -- would have been left unprotected. Shippers and brokers concerned about lawsuits generally would avoid conditional carriers.

Ultimately, the House passed H.R. 22 with the original language in place as Rep. John Duncan (R-Tennessee) withdrew his planned amendment in light of assurances from House transportation leaders that they would support changes in conference. The Senate bill does not include similar language, although a related bill approved by the Senate Commerce Committe

Another controversial measure in H.R. 22 is an amendment adopted by the House that would preempt state regulation of meal and rest breaks as well as compensation for employees paid on a piece-rate (i.e., per-mile) basis. States would be barred from requiring additional pay if the employee's total compensation divided by total hours worked is at least equal to minimum wage.

The amendment, sponsored by Rep. Jeff Denham (R-California) is aimed at a federal court decision concerning actions by California as well as recent legislation that would require employers to pay at least minimum wage for employees' time on-duty when they cannot earn the piece-rate.

The House passed the Denham amendment on basically a party-line vote, but the amendment had been presented as preempting meal and rest regulation by states -- not pay regulation. After the House passage, the Owner-Operator Independent Drivers Association objected to the pay preemption language, arguing that it could prevent states from requiring carriers to pay drivers detention pay when collected.

For a section-by-section comparison of the House and Senate highway bills, go to www.transcomply.com/highwaybill.