As many of you know, the American Trucking Associations (ATA) filed comments with FMCSA regarding its new interpretation of the oilfield exceptions to the hours of service rules. These exceptions allow drivers exclusively servicing oilfields to use a 24-hour restart to their weekly clock and allow drivers hauling specialized equipment to count their waiting time at a well site as being off-duty.
In June, FMCSA published a new interpretation that explicitly prohibited sand and water trucks from using the waiting time exception. FMCSA published the change as guidance, which is not subject to the same public review requirements as a formal regulation. ATA protested this questionable procedural approach and urged the Agency to immediately rescind the new guidance and engage in the rulemaking process to consider such substantive changes.
Louisiana has significant shale operations that could be impacted by this rule change. Ironically, while the underlying premise of the proposed guidance is safety, the net effect of it will be to generate a need for more drivers and equipment which will increase overall accident exposure on highways that were not designed for these types of vehicles nor the increased volume of traffic. Rather than enhancing safety, the proposed guidance could actually adversely affect it.
I have personally been involved in wage/hour disputes of oil field workers who claim they are entitled to overtime; however, because they ALSO had commercial driver’s licenses and POSSIBLY could drive big-rigs, they were exempt from being overtime. So what happened?
They often worked twelve to eighteen hours per day, six or seven days per week. Then when they had to drive a unit back from the site, they potentially could be fined for driving beyond the hours of service. So we have situation where the FLSA gives an exception to overtime, and FMCSR also gives an exception to oilfield workers from complying with hours of service.
This is not acceptable.
Historically, employees of public or private motor carriers who are drivers, drivers’ helpers, loaders, or mechanics, whose work could arguably affect the safety of operation of motor vehicles in interstate commerce, are not entitled to overtime due to something called the 13(b)(1) or Motor Carrier exemption.
In 2008, Congress changed the law and severely limited the application of that exemption. Now, it appears that what is critical is to determine whether those employees are or are not entitled to overtime is the type of vehicle they are either driving, loading, or working on. Before this Act, an employer could argue that as long as the employer was a motor carrier, it did not matter whether these types of employees performed work on “motor vehicles” or “commercial motor vehicles.” Now, according to this new law, the type of vehicle those particular employees work on is critical and will determine whether or not they will be subject to overtime.
It is clear to me that this change in the law regarding the specific industry of oil & gas will not adequately protect safety when an oil field worker has to work ridiculously long hours without being paid over time AND the company employer (or driver) are protected from citations of exceeding hours of service. Once again, a special interest group has caused the Congress not to view the totality of the laws and they are making a bad law.