By Brian J Riker
Sticking with the “New Year New You” theme, January is a great time to review your motor carrier compliance. But, Brian, I am just a simple light duty towing company, so what does motor carrier compliance even mean? Great question!
Very few towing companies, even those that are light duty only providers, are exempt from regulation by the US Department of Transportation’s Federal Motor Carrier Safety Administration. FMCSA has very broad authority under the definition of interstate commerce. Simply put, it is a myth that your truck must cross state lines to engage in interstate commerce. It is the origin, destination or intent of the shipment, or your part thereof, that determines which set of regulations you are operating under.
Most towers switch between intrastate and interstate commerce multiple times per day without even realizing it. Given, in most states, interstate regulations are either adopted by reference or are more restrictive than state regulations, it makes good sense to always comply to the stricter interstate standards. Rarely will this let you down or result in a fine or penalty for non-compliance. This is not to say that you can ignore your local or state requirements. They are also applicable for the intrastate and true emergency towing operations you perform; however Federal qualifications generally are tougher.
Yes, I understand that there is an exception from FMCSA regulations for transportation of wrecked or disabled vehicles, however that is only applicable at the first point of disablement. If you pick it up off the roadway, golden, if it is a secondary tow - even from your own storage lot or garage - then it is regulated transportation. Now, the only question becomes is it intra or interstate commerce.
Interstate commerce involves anything that comes from or is destined for a location out of state or country. This means tourists passing through, most rental cars and virtually all commercial vehicles can be classified as interstate in nature even if you never leave your home town. What this means for you is your company needs to meet the qualifications set forth in the Federal Motor Carrier Safety Regulations, including but not limited to 49 CFR Parts 300-399. These regulations can be found at www.fmcsa/dot.gov and control everything from minimum qualifications for your drivers, the hours they may work and must rest, inspection and repair of your vehicles to the paperwork you must collect and retain.
Here are a few highlights that apply to anyone operating any vehicle with a Gross Vehicle Weight Rating greater than 10,000 pounds for business purposes, regardless of payment received.
--US DOT registration number, commonly called a DOT number. This is in addition to any state identification or permit that must be obtained and/or displayed.
--Motor Carrier Authority, MC number, is required for any work that involves transporting property not owned by the motor carrier, such as towing a car or moving a piece of construction equipment.
--Unified Carrier Registration, UCR, is required of anyone that has an active US DOT number, paid annually at www.ucr.gov
--Federal Annual Inspection or equivalent state safety inspection on every vehicle or trailer with a GVWR greater than 10,000 pounds.
--Drug and alcohol testing program that is DOT compliant if any of your drivers use, or are expected to use, a Commercial Drivers License (CDL) as part of their job, including managers or owners that only drive occasionally. This also includes FMCSA Clearinghouse reporting and query requirements for any driver possessing a CDL, even if they are hired in a non-cdl capacity.
--Completed driver qualification file with copies of all required documents, including an employment application (even for solo owner/operators) and background investigations. Highlights include a minimum age of 21, medical certificate from a qualified provider and annual driver license report.
--Vehicle maintenance files, including details of your planned preventative maintenance program, periodic inspections and all repairs. Fun fact, the vehicle maintenance file must indicate the legal owner of the vehicle, tire size, full VIN and registration number among other things.
--Hours of service documents, either true and accurate time card type records, if your drivers qualify for the short haul provisions, or log books for those that do not qualify. Since 2017, most log books have been required to be completed using a compliant electronic logging device (ELD) unless you meet the very narrow exemption requirements.
These are only a few of the requirements for operating a legally compliant interstate motor carrier. If after conducting a self-evaluation you do not believe you are fully compliant, please seek competent consultation. The FMCSA recently announced new, higher fines and penalties for non-compliance ranging from a few hundred dollars upwards of $12,000 per occurrence, often per day. These penalties can put a small company out of business quickly.
By Randall C. Resch
GPS and technical savvy dispatch programs are available to today’s tow companies. They’ve become increasingly favorite to tow companies assigning company vehicles to personnel specifically for dispatching calls and tracking fleet movements as they go about daily tasks. Once again this topic’s raised its ugly head!
When tow operators and employees are hired into the company fold, it’s commonplace that a dispatch specific app is added to one’s personal cellphone as part of the hire-on agreement. Part of that process may include the employee signing a statement that they’re aware the app was installed on their phone.
In a Florida prime time news segment, a tow operator allegedly asked for personal time-off claiming his wife was sick, noting he could help his wife’s need and help take care of his kids. The company, in good faith, approved his reasonable request believing his story to be true.
Fast forward later that day. The tower, now off-duty and using his own vehicle and personal cellphone, appeared on the company’s dispatch computer where the program’s GPS found him not at home. It was alleged the tower visited a competitor tow company to fill out an employment application. Ultimately, the tower was dismissed from the company. Although admitting he wasn’t at work, he claimed the company violated his privacy.
Written in a publication narrative of The Florida Law Review, Assistant Professor Marc McAliister wrote the paper “GPS Cell Phone Tracking of Employees," commenting: “Because employees who use such apps typically consent to the monitoring of their phone’s location, this Article concludes that employees tracked in this manner cannot reasonably expect privacy in such monitoring. As a result, this Article predicts that app-based employee tracking will not trigger Fourth Amendment protection, nor will it be sufficient to sustain a privacy-related tort claim, such that employers will typically not face civil liability for tracking employees through smart phone apps.”
A primary purpose of dispatch apps is to know where company tow trucks are. Was this employee caught in "non-official business" after telling the company his need for time-off for family matters? Although he wasn’t using the company tow truck or on-the-clock, his personal cellphone was active which reported his GPS location as he moved about.
OK, Ya’ Got Me
Was the company following his movements solely or did the dispatch app capture all trucks in the field? Both dispatch supervisor and company owner confirmed they weren’t focused on his specific movements, but visually demonstrated that all company vehicles were monitored as part of the dispatch process. Could the argument be: the GPS (in this instance) wasn’t used for timekeeping purposes, but to track one employee’s movements?
So, why is this kind of technology any different than an employee using the company's dispatch, desktop, or laptop computer for shopping or watching porn not associated with company business? Is this a huge invasion of privacy or is it not? Should there be an expectation of privacy?
Why are facility cameras a source of employee angst? “Whatsmatta’ …ya’ don’t trust us?” While trust always is a prime issue, facility protection is a part of facility protection, yet, there are many incidents of employees stealing from stored cars or even a disappearance of tow equipment as a disgruntled employee makes ready to start their own company.
Bye-Bye Trust
I see this being an issue of mis-trust when employees aren’t candid in their claims. Looking for work (elsewhere) should be saved for the employee’s time-off. Remember, he was on approved time-off which likely is considered his time free to do as he pleases. In the case of this firing, an administrative judge may not uphold an employees firing by asking: "Did the employee’s looking for work elsewhere have anything to do with their job performance, or did their subsequent actions violate work regulations?"
When nothing’s mentioned in the company’s PPM to address employee time-off, honesty in the workplace, or other like type topics, good luck justifying the termination. Note: The employee may not have been searching for work elsewhere if he/she wasn't treated well by his company, management or peers.
Owners, to avoid a wrongful termination lawsuit claiming invasion of privacy, be sure you’re aware of your state’s laws on the subject. If you’re not sure, consult your attorney. Administratively, have employees sign all hire-on agreements specific to the GPS (brand) apps and software used to track fleet movements.
Could it be the employee’s firing was an emotional reaction because the company felt lied too? You decide!
Operations Editor Randall C. Resch is a retired California police officer and veteran tow business owner, manager, consultant and trainer. For 51-years, he has been involved in the towing and recovery industry. In 25-years, he has contributed more than 625-articles for American Towman Magazine and TowIndustryWeek.com. He was inducted to the International Towing and Recovery Industry Hall of Fame and was the 3rd recipient of the industry's "Dave Jones Leadership Award." Email Randy at rreschran@gmail.com.
By Randall C. Resch
If you had one gripe about working the tow and recovery industry, what would that be? One small town tow operator said, “My company’s owner is too cheap to put specialty equipment on the trucks!”
Are tow truck owner’s responsible for outfitting trucks beyond basic equipment? While there’s generally no pre-hire demand (or requirement) that tow operators provide their own equipment, it comes down to the pre-hire arrangement between company and employee. Comparably, if a repair shop hires someone as an ASE mechanic, it’s likely the mechanic provides their own tools. Should it be any different?
More than Basics?
At seventeen-years of age, I was destined to be the world’s best tow operator outfitted with the world’s best gear. Because I worked at my parent’s company, my misguided entitlement suggested the company’s owner (dad) was responsible for “Gucci equipment items” I determined important. From that silliness came a huge “No” in which I learned the important life’s lesson of “improvise, adapt and overcome.”
For tow trucks purchased new, tow manufacturers typically supply a minimum equipment package, i.e., winch, cable, snatch-block, a pair of ratchets and straps, J-Hooks, bucket, broom, and fire extinguisher. Any equipment beyond basic comes at the whim (and expense) of the company’s owner to meet niche and customer needs. Police contracts oftentimes require upgraded equipment necessary to rotation services.
When companies serve the high-end transport market, flatbed carriers should be outfitted with a plethora of soft, endless loops, eight-point tie-down straps, padding, ramps, sport’s car straps, dollies and even a motorcycle dolly. But, at who’s cost?
Go Professional
Most towers barely afford “three square meals” let alone buy specialty equipment. But for towers who have saved a bit of “mad money,” the industry is full of (tow) equipment providers catering to the industry’s specialty needs. As in any profession, if you’re that consummate professional, I recommend you purchase specialty equipment (like lock-out tools) of your own.
Although there are some “downsides” to purchasing your own equipment (i.e., everyone will want to borrow your stuff), the “upside” is that you’ll have proper specialty equipment when needed, you won’t need to call the shop to request specialty equipment and it may promote job safety.
Rat in the Woodpile
Tow companies typically supply “only the minimal” for the simple reason that some tow operators are famous for losing equipment or “taking stuff” only to start their own companies. In two-weeks alone, my average sized, eight-truck tow company mysteriously lost a set of extension lights, two recovery chains, a set of keys and a broom. One would think that’s mighty suspicious right?
Losing that much equipment wasn’t just a financial hit, I felt that one driver had sticky fingers. He’d been with the company less than a year and “word on the street” suggested he was buying a second-hand wrecker to set out on his own.
Under watchful eye of a carefully placed stealth camera, the culprit was captured red handed. Forget “tough love;” he was immediately dismissed and all equipment was recovered in-exchange for him not being prosecuted.
I believe it “company courtesy” that tow owners include specialty equipment as a means to meet best practices and total risk management head on. A reasonable arrangement suggests owner provide operators the best equipment possible to instill efficiency, proper equipment for situations, and to enhance on-scene safety.
On the other hand, it’s the employee’s responsibility to maintain and protect against subsequent loss, theft and damage. A tow operator should have no expectation and entitlement that specialty equipment is provided or for the taking. And when it’s time to move on, the employee agrees to return company equipment without delay upon departure.
Operations Editor Randall C. Resch is a retired California police officer and veteran tow business owner, manager, consultant and trainer. For 51-years, he has been involved in the towing and recovery industry. In 25-years, he has contributed more than 625-articles for American Towman Magazine and TowIndustryWeek.com. He was inducted to the International Towing and Recovery Industry Hall of Fame and was the 3rd recipient of the industry's "Dave Jones Leadership Award." Email Randy at rreschran@gmail.com.
By George L. Nitti 
