How regulations affect independent contractors, underride guards, and driver onboarding

As with most things involving the government, regulations take time to finalize, opening the door for criticism and comments from those who are or will be affected. There has been negative feedback on recent trucking regulations, suggesting the government is moving too quickly. Yet others in the industry, such as those on a panel at Motive’s inaugural Vision conference, think trucking regulations are moving too slowly.

Representatives from American Trucking Associations and Scopelitis Transportation Consulting chatted with fleet leaders about independent contractor rules, underride guard requirements, and apprenticeship programs and their impact on the trucking industry. The two also discussed whether some of these proposed regulations should be on the docket.

Is FMCSA moving alongside or behind the industry?

While Grove and Garney did not discuss whether FMCSA and the governing bodies moved in tandem with the rapidly evolving trucking industry, they touched on the topic while sharing their insight into upcoming regulations.

As technology has taken hold of almost every aspect of the trucking industry, from route planning to fuel use monitoring to maintenance to driver assistance technologies and the use of artificial intelligence, within a few years, it’s possible these regulations, which some have yet to be finalized, will be outdated.

With underride collision protection, Grove said simply, “Our big point is generally that we can try to prevent the crash from occurring in the first place rather than trying to absorb the energy of a vehicle at highway speeds in order to prevent the underride.”

Garney also mentioned using technology to improve safety multiple times. “I think the bigger commentary here ... is how slowly FMCSA and others seem to be reacting to a technological space that is advancing at lightning speeds,” Garney said.

The buzz of autonomous vehicles picked up in 2015 and 2016, and the industry looked to FMCSA for guidance and leadership to bring about the technology in a cohesive manner, Garney explained.

“It’s now 2024 ... and we’ve got nothing,” Garney said. “The industry has to continue to evolve, and we’re going to do that. We’re going to continue to evolve, we’re going to continue to make great solutions.”

Garney summed up his thoughts on regulations early in the discussion and referred to them as the conversation ended.

“We used to look to the government as our experts in the room, our leaders,” he said. “They helped us do important things like set up CDL programs, make sure drivers were medically qualified. But the expertise now I think lives in this room, lives out in the field. ... I feel strongly that a better option for (FMCSA) is to step away in some ways and let us lead for now.”

Independent contractor rules

The trucking industry relies heavily on contractors and owner-operators. Contractors are “the lifeblood of our industry,” said Sean Garney, co-director of Scopelitis Transportation Consulting. He looks at contractor regulation from two perspectives: the California AB5 rule and the Department of Labor’s contractor rule.

California’s AB5 requires employers to hire contract workers as employees if specific requirements are not met. While the bill is aimed at those who work in the “gig” industry, it also affects independent owner-operators in the trucking industry.

Passed in 2019, AB5 has faced pushback from the trucking industry, most recently in court from the California Trucking Association and the Owner-Operator Independent Drivers Association. The industry will truly see the impact of California’s rule over time, as Garney anticipates it will continue to be tested in the courtroom, he said.

He’s heard some ask why trucking companies don’t just make drivers employees. “The obvious answer is because they don’t want to be,” he said of independent drivers. “And we’ll need to access that capacity if we want to be competitive.”

On a nationwide scale, Garney said the Department of Labor’s independent contractor rule is “good in some ways,” but he believes things will likely change depending on the results of this year’s presidential election.

“If Biden loses the election, Trump’s going to give us a new (rule),” Garney explained to the group. “This is like the newest, biggest political football right now.”

Additionally, members of ATA’s Women in Motion recently traveled to Washington, D.C., to advocate for the overturn of the independent contractor rule to “protect the more than 350,000 truckers—including many women—who choose this employment model because of the economic opportunity it creates and the flexibility it provides,” ATA stated in a release.

Implementing underride guards

Improving safety is the purpose behind many trucking regulations that are on the docket. Underride guards to protect other motorists, cyclists, and pedestrians in the case of a collision is just another regulation in discussion in D.C.

ATA is “deeply involved” in those discussions, according to Kevin Grove, the director of safety and technology policy at ATA. The association is part of a National Highway Traffic Safety Administration panel that explores the options available for underride protection.

ATA participates in discussions about vehicular side collisions and those that are “vulnerable road events,” Grove explained, such as underride events that involve pedestrians, cyclists, or those on scooters. The difference in the two types of events is massive because of their weight difference. This means the solution to protect both motorists and pedestrians is even more complex.

“We work with suppliers trying to help them understand the requirements related to side underride,” Grove said, “whether that is hang-ups on high-grade rail crossings, whether it’s maintenance and cost issues, the integrity of the trailers themselves over the long term ... we work on all these issues.”

By NHTSA’s own analysis, the cost-benefit of requiring underride guards is negative $1 billion annually, Grove explained, yet “the current solutions we have for underride protection are not beneficial. ... That’s why we’re on this committee. That’s why we’re exploring different ways to address this (problem).”

Part of addressing the problem could be boiled down to eliminating the need for underride protection by preventing crashes in the first place.

“That may be a more effective approach in terms of just general safety outcomes ... but also in terms of cost-effectiveness,” Grove said.

Driver onboarding and apprenticeship programs

The final topic the two discussed was onboarding new drivers—a subject that both parties felt was vital to the trucking industry's future.

“There’s been a driver shortage for a long period of time,” Grove said. “We have a generally aging driver population. We do not currently onboard enough drivers to backfill the driver population as they are leaving. We need to get drivers in seats.”

See also: How to retain driver recruits

ATA works with multiple trucking companies and the federal government, using the current driver apprenticeship program to help fill seats for young drivers. However, the program has technology requirements, such as inward-facing cameras, that Garney said could hamper participation with some carriers.

Regardless, it was through the apprenticeship program that Grove learned that every driver has “a story about what they did before they became a driver.” He would like to see young drivers choose trucking as their first career—not something they fall back on.

Even further, while those apprenticeship programs are available and FMCSA data has shown that there are plenty of eligible and willing carriers to participate in the program, there are no willing apprentices, Garney said.

“That’s our fault,” Garney told the group. “We’ve got to figure out how to reach out ... I think that high school kids don’t even recognize trucking and transportation as a way to make money.”