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The Facts of Life

by Jim Park
Knowing all the answers isn't always the answer. It's really much more useful to know where to go to get the answers. And you're here. We've tee'd up another of our popular Question & Answer sessions for you, this time a collection of queries we've received recently via e-mail, telephone conversations, and face-to-face encounters in the truckstops and out at the truck shows this summer. There's no specific theme this time, just answers to a few things you might be worried about, without the pain and embarrassment of asking the wrong person the wrong question.

As always, if there's something that's been puzzling you, please feel free to drop us a line and we'll find the answers. They might not be the answers you're looking for, but we'll go to the best sources in the land for the truth. Our contact numbers are at the front of the book.

Driver's Records
I'm a company driver running in the U.S., and my employer frequently asks me to run overweight on my axles. I've been told that they will pay the tickets, and that it affects only the company's CVOR. My understanding is that even if they pay the ticket, it will show on my own record. Is this true?

Indeed it is. You can't get away with much these days, thanks to electronic record keeping and the interjurisdictional agreements that allow for the transfer of driver record information.

The Commercial Vehicle Operator Record Driver Abstract (CVORDA) is a mechanism currently in use in Ontario (other jurisdictions are looking at it, too, or else they have similar systems) that tracks all violations committed by drivers while operating commercial vehicles. Like the usual drivers' abstract, it's available to anyone with permission to view it, for a small fee. It's a five-year snapshot of an Ontario-issued driver's licence, containing such information as driver's licence number, name, class, conditions, expiry and medical due dates, status, a description of each accident, conviction and roadside inspection, plus microfilm reference numbers.

Sylvie Nickerson, a former Ontario Ministry of Transportation officer who now manages a safety consulting business in Huntsville, Ont., says any offence under the Ontario Highway Traffic Act will appear on the CVORDA, including weight- and dimension-related violations, hours of service, vehicle inspection, brake adjustment, etc. In other words, everything.

"In addition, each time you're inspected at roadside with a CVSA level 1 or level 3 inspection, the event will be recorded on the CVORDA, even if no charges were laid. It's just a record of the inspection. And any accident where the police were involved will appear on the record, too, even if no charges were laid," Nickerson says.

Depending on the agreements in place between your province and the state or province where a particular violation occurred, the record of the offence may or may not appear on the abstract, and it may be different from the actual charge. That's just an interjurisdictional translation issue. But rest assured if you get whacked for being overweight in a state that has driver record reciprocity with your home province, it'll show up on your CVORDA or other such system.

Now, here comes the lecture: the licence you're sitting on is the only one you have. Protect it. Any carrier that's willing to risk its own safety rating by willingly running illegally is one thing, but when the carrier asks you to do the same, your toes are being stepped on in a big way. Your record carries a five-year view. The mistake will be around to haunt you long after that carrier is out of business. And a bad record is not something you can keep hidden from view any more.

On-duty vs. Off-Duty
Here's the situation: I take my eight hours off duty and I'm ready to report for work in the morning. I make a call to dispatch and I'm told to call back in a couple of hours. That time goes by, and I'm told it'll be a few more hours before I have a load. Then, after six or eight hours have elapsed, I'm told to pick up so and so, and deliver 500 miles away the following morning.

Do I log on-duty for the six or eight hours while I'm waiting, and then log the on-duty time for the trip, which is at least 10 hrs driving time? This is a dilemma I face regularly, which means I'm up over 20 hours on a trip that should take 10-12 hours. How do I manage all that waiting time?

Technically speaking, if you're awaiting a dispatch, you're supposed to log that time on-duty. The sin you committed in this case was to call the office. That, technically, started the clock ticking (when the new American rules come into effect in January 2004, this will be the case, and you'll have 14 hours from that point until you must log off duty once again).

Technicalities aside, if you called dispatch at 9:00 a.m., for example, and they told you there would be nothing available until noon, you might be inclined to remain off-duty until then, so grab your clubs and try to squeeze in nine holes. The definition of off-duty revolves around the ability to use that time at your discretion - to do what you want to do. Had dispatch instructed you to stick close to the phone in case something happened, you'd be at their beck and call, and therefore on-duty.

The other issue is the question of the value of that time. Idle time for drivers is often unpaid time. Having the opportunity to play nine holes of golf before heading off to load is fine, being asked to hang around waiting for the phone to ring is another. If you worked at General Motors, for example, and reported to work at 7:00 a.m. to find your assembly line was temporarily shut down for repairs, it's doubtful that GM would ask you not to punch in until the machine was fixed.

Custom and practice in trucking, however, suggests that a driver's idle time is his own time. So, theoretically, having been told there's no load available, you should be free to wander down the street to the art museum or the flea market as you see fit. Or you could log on-duty and burn up all your available working hours sitting around, leaving no time to drive when the call does come in. Not much of a choice, is it?

Single-Source Driver Service
I've been offered a job driving an owner-operator's truck at a small fleet. The broker told me that I should set up my own driver service so that he won't have to worry about paying taxes and setting up a payroll within his company. I understand that if the broker doesn't pay any taxes, I could end up paying 45% of my pay cheque in tax and other deductions. Is this correct, and is there another approach to this matter, like incorporating my driver service?

We'd urge you to be very careful about getting into a situation where the people who employ you don't take any tax deductions at source. As a company driver - that is, someone who does not own a truck - you're considered a company employee. By law, employers are required to make certain deductions from your earnings for income tax, Canada Pension Plan contributions, Employment Insurance premiums, workers compensation premiums, etc. The employer is then required to remit those deductions to the appropriate agencies, along with an additional amount deemed the employer's contribution. The employer's contribution amounts to a certain percentage above what has already been deducted from your pay cheque.

There are many instances in trucking and other industries where someone normally considered an employee can set himself up in a small business as a service provider to the larger company, thereby allowing the larger company (the employer) to seemingly skirt the obligation to deduct and remit taxes, etc., on his behalf. There's a very small number of instances where this type of arrangement works to the benefit of both parties, but they're rare indeed.

More often than not, the employee or sub-contractor (you) is left to remit the deductions on his own, provided he has the discipline to save the money and send it off to the government on time. As you've probably been told, there are ways to minimize the amount of tax you have to pay when you're self-employed, but if Revenue Canada (now known as CCRA, the Canadian Customs and Revenue Agency) were to audit you, you probably wouldn't meet its criteria for being appropriately self-employed. Were that to happen, CCRA could then come after you - and the company - for back taxes owed, plus penalties, and the fines can be substantial.

The so-called single-driver driver service is an all-too-popular alternative to companies hiring their own drivers and paying properly. And it seems that all too many drivers are prepared to place themselves in the dangerous position of being nailed by CCRA for not setting up the business properly.

Incorporating is a partial answer, but CCRA has some pretty precise definitions of what constitutes a properly set-up driver service or consulting business. Chief among them is having more than one client. If you're planning to do work for a single carrier, you'll almost certainly fail that vital part of the CCRA test.

The other concern is your insurance coverage while on the job, especially while you're running in the U.S. Should you be involved in an accident, the arm's-length relationship between you and the carrier may nullify your insurance coverage, leaving you partially liable for damages and open to civil litigation resulting from the accident. And if you choose not to buy additional insurance for yourself, an accident or injury requiring medical attention in the U.S. could result in the cost of the treatment coming out of your own pocket.

When you consider all the costs of setting up a business and insuring yourself properly, you'll see that you're seldom any further ahead going this route, and at substantially more risk than a properly employed company driver, which is what you are at the end of the day.

HighwaySTAR covered this issue a few years back, in an article called "Do It Yourself Disaster" (Careers, July 2001). The link below will take you to the on-line version of the story, or we can mail you a reprint of the article. www.highwaystarmagazine.com/careersfeature.cfm?ID=137

Preventable or Non-preventable?
Can a company fire you for having a preventable accident?

Of course, but it's unlikely they would unless the company believed the driver was too risky to retain. Firing an employee can have consequences, so the carrier needs to be sure the termination has been done properly. The case of the TV-character boss firing the inept employee for losing the big account isn't realistic, because that employee might be able to make a case for unjust dismissal. Labor laws regarding termination can get pretty sticky, so the company will usually err on the side of caution and not fire you, even though they could.

It's different if the company has outlined what it expects of you, and you've signed a policy and procedures manual, which usually describes the penalties for breaking the rules and grounds for termination. If a preventable accident is cause for dismissal, you're out the door with little recourse.

If the company just doesn't like your attitude, the preventable accident may just be another nail in your coffin, providing the grounds to can you.

Frankly though, the company would have to document its reasons for firing you, including previous warnings and past performance records. If you're a difficult driver, then they might have a case. If they just don't like you but your employment record is good, then you may have a case against them for unjust dismissal.

It all depends on the company's policies. It's up to you to find the fault in their firing you and bring it to the attention of a good labor lawyer. But be realistic, if you haven't lived up to expectations don't bother hiring a lawyer. Just get a new job.

And just so it's understood, the above guidelines don't apply to owner-ops or drivers employed by a driver service (if the carrier has said they don't want you back). You're still technically employed by the driver service, though no longer working for that particular carrier. And if you're an owner-op, labor laws don't apply, so you need to turn to the contract to see if a preventable accident is cause for dismissal.

Hours of Service
Does the emergency-conditions exception in the hours-of-service rules apply to a driver who planned on arriving at a specific rest area to max out the driving, only to find the rest area full, forcing him to continue past the 10 hours driving while looking for another safe parking area?

No. The emergency-conditions exception does not apply to the driver. It's common knowledge that rest areas have become increasingly crowded for truck parking, so it's incumbent on a driver to look for a parking spot well before the last few minutes of a driving period. Still, he should provide the reason for exceeding the driving limits in the 'Remarks' section of the logbook, and hope for the best.

A Canadian driver is subjected to a logbook inspection in the U.S. The driver has logged one or more 13-hour driving periods while in Canada during the previous seven days, but has complied with all the U.S. regulations while operating south of the border. Has the driver violated the 10-hour driving requirement in the U.S.?

No. Canadian drivers are required to comply with the U.S. rules only when operating in the U.S. Driving shifts longer than 10 hours aren't considered a violation as long as the shift took place in Canada. As soon as the truck crosses the border, the U.S. rules apply.

Am I required to describe my non-driving activities ("fueling," "pre-trip," "loading," "unloading," etc.) when indicating a duty-status change in the logbook?

No, but many carriers require their drivers to identify work performed during a change of duty status. The rules neither require nor prohibit this practice. The location of the change-of-duty status is all that has to be noted in the remarks section of the logbook.

Rodeo 2004? You Bet!

Rodeo du Camion general manager Gilles Dussault took to the podium during the opening ceremonies to quash rumors that this year's edition of Rodeo was going to be the last.
"We're as strong as ever, and we'll be here next year, for sure" he said. "In fact, we're already making plans for a very special 25th anniversary edition of Rodeo in 2005. Count on it!"


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