Transportation 66

The California Supreme Court recently handed down a much anticipated decision in the case of Kirby v. Immoos Fire Prot., Inc., 140 Cal. Rptr. 3d 173 (Cal. 2012), where the court determined the applicability of California Labor Code § 218.5 in an overtime and rest break lawsuit.  The statute has a fee shifting provision that provides for attorney’s fees and costs to plaintiffs or defendants who prevail on claims brought for the nonpayment of wages and benefits.  The lower courts awarded attorney’s fees under the statute to the employer Immoos Fire Protection, Inc. for prevailing on a rest break claim brought under California Labor Code § 226.7. 

The California Supreme Court reversed the lower courts’ award to the employer,  finding that fees could not be awarded under 218.5 for the rest break claim because the meal and rest break statute was not “aimed at protecting” an employee’s wages.  The court deferred on other substantive questions and narrowed its own precedent with respect to what constitutes a “wage.”  Consequently, the implications of the holding are not altogether clear.  Nevertheless, the statute remains a viable avenue for employer’s to pursue attorney’s fees in an otherwise employee friendly labor code which has several fee shifting statutes that only provide fees to prevailing employees.

A joint motion filed on 11/28/2011 in the U.S. Court of Appeals for the District of Columbia stated that a new Hours of Service (“HOS”) rule will likely be issued before the end of the year.  The promulgation of the final rule has been delayed for over two years.  The rule will amend the limits on the amount of time commercial vehicle drivers can spend behind the wheel.  The existing HOS rules issued by the FMSCA were originally adopted in 2005 and have been the subject of multiple lawsuits.  Currently, the rule for property-carrying Commercial Motor Vehicle drivers (under 49 CFR Part 395) places a 11 hour day driving limit and a 60/70 hour driving limit over a period of 7/8 consecutive days.  Drivers may restart the 7/8 day consecutive period after taking 34 or more hours off duty.  The final rule is likely to substantially change these requirements.

The National Transportation Safety Board (“NTSB”) recently recommended that the Federal Motor Carrier Safety Administration (“FMCSA”) prohibit the use of handheld and hands-free cellular telephones by all commercial driver's license holders while driving in commercial operations.  The recommendation, issued in a public board meeting last week, comes in light of the NTSB’s investigation of a multiple-fatality collision between a Commercial Motor Vehicle (“CMV”) and a fifteen-passenger van in Munfordville, Kentucky.  The NTSB concluded that the probable cause of the accident was the CMV driver’s use of a cell phone.

The FMCSA has taken action with respect to the use of cell phones in the past.  It banned the use of texting by CMV drivers in 2010 and proposed rules regarding the use of cell phones on December 21, 2010.  Comments for the proposed rules have been accepted as recently as September 14, 2011, with major stakeholders weighing-in.  Although it is unclear how the NTSB’s recommendation will affect the FMCSA’s adoption of its own proposed rules, a closer look at the rules is warranted given the recommendation itself and the crash in Kentucky.  Notably, the rules as currently written would prohibit the use of hand-held cell phones only.   Hands-free devices would be allowed so long as they do not require the driver to reach for, dial, or hold a phone.  The rules would also require interstate motor carriers to ensure compliance by their drivers and prohibit motor carriers from allowing or requiring their drivers to engage in the use of a hand-held cell phone while operating in interstate commerce.  What penalties, if any, for noncompliance by motor carriers are not described in the proposed rules.  However, drivers face varying degrees of fines and disqualification sanctions for noncompliance.

In addition to the ban on all cell phone use, the NTSB issued 14 other safety recommendations in response to the Kentucky crash.  Recommendations were sent  to the Federal Highway Administration, the FMCSA, the National Highway Traffic Safety Administration, the American Association of State Highway and Transportation Officials, the Governors Highway Safety Association, all fifty states, and the District of Columbia.