Adam Peck

The Link Between Tracy Morgan’s Tragic Accident And Trucker Pay

One of the first major safety innovations in trucking was born out of a collision between tragedy and celebrity.

The steel bars that hang horizontally below the tail end of tractor-trailers aren’t just stepladders for shipping employees. They’re meant to keep your head attached to your neck in the event that you rear-end an 18-wheeler. Called Mansfield Bars, they’re named after postwar pin-up model and movie star Jayne Mansfield, who died gruesomely after her car rear-ended a tractor-trailer in 1967. Her young children in the backseat were low enough down to clear the back end of the truck and survive, but Mansfield and the other adults in the car whose heads were at about the same height as the truck were killed instantly.

mansfield_bar-11-11

CREDIT: Adam Peck

Mansfield’s celebrity made the crash national news, and by and by the scrutiny produced regulation. The National Highway Traffic Safety Administration (NHTSA) began requiring a simple technical improvement to freight trucks in the form of the Mansfield Bar. But then, over the next three decades, that rule got chipped away to the point where “they exempted most trucks on the highway … and raised the guard height so high that most small cars will go under it,” Joan Claybrook of Advocates for Highway and Auto Safety testified before Congress in 1997.

Now, almost 50 years after Mansfield’s death, a similar recipe is brewing.

On June 7 of this year, at 1:00 in the morning, a Walmart truck driven by a man named Kevin Roper failed to brake and slammed into a vehicle on the New Jersey Turnpike. In that vehicle was actor and comedian Tracy Morgan. Morgan and other passengers in his car were severely injured, and a friend of his killed.

Comedian and actor Tracy Morgan

Comedian and actor Tracy Morgan

CREDIT: AP

Roper’s truck was going 20 miles over the speed limit when it killed the friend, James McNair, according to the National Transportation Safety Board’s preliminary investigation. Roper had allegedly been awake for 24 hours when he failed to respond to speed limit signs and traffic in front of him. He had 28 minutes left to get to his destination in nearby Perth Amboy or he would hit his daily cutoff time of 14 hours on duty and have to stop. And according to a negligence lawsuit Tracy Morgan has since filed against Walmart, Roper’s truck’s automatic collision detection technology had failed to brake his vehicle.

Once again, the combination of a household name and a preventable highway death is calling attention to the often obscure and always persnickety process by which federal regulations get ginned up, drafted, re-written, lobbied against, and ultimately put into practice. All sides of the debate over trucking regulations want the industry to be safe, but Morgan’s friend’s death put a spotlight on stark differences of opinion about how to make trucking safer. Amid heightened scrutiny on the question of how to combine technology and driver behavior rules to make the roads safer, the more basic problem of how driver pay policies interfere with highway safety threatens to go under-explored.

Dispute Over Fatigue, Fatalities, And How To Curb Both

Beyond the celebrities, almost 4,000 people die in every year in crashes with the 80,000-pound behemoths that professional truck drivers manage. 100,000 more people are injured by them. Driving while fatigued is dangerous in any vehicle, but drowsy driving at the wheel of a 40-ton load is especially deadly. Estimates of the role of fatigue in truck crashes vary, but the official consensus from the largest study to date is that at least 13 percent are caused by fatigued truckers. “We think that’s the low end and it’s somewhere north of that,” said Henry Jasny, who has worked on road safety issues for 30 years, the past 25 of them for Advocates for Highway and Auto Safety, explaining that the study relies in large part on the testimony of drivers who have incentive to misrepresent their tiredness when asked by investigators. “We’re concerned that it’s a lot more, and one of the things that we can easily change is how much time drivers have to drive versus how much time they have off-duty to rest,” Jasny said.

The government — specifically an agency called the Federal Motor Carrier Safety Administration (FMCSA) — currently sets rules for how long truckers can drive in a given day. Before starting a shift, drivers have to take 10 consecutive hours off duty. Once they get behind the wheel, they can drive for no more than eight straight hours before stopping for at least 30 minutes. All told, within a 14-hour shift only 11 hours can be spent behind the wheel. Any time spent performing work tasks that aren’t driving — filling the tank, adjusting the mirrors, loading or unloading cargo — still counts as on-duty time.

On top of all those regulations, after 60 hours driving in a seven-day window or 70 hours driving in an eight-day window, drivers must “restart” their week by taking almost a day-and-a-half of consecutive downtime — a “restart period.”

While many drivers work regional and local routes that afford them relatively regular hours, stable office-style schedules from week to week are unusual. Letting drivers go 14 hours on and 10 off every day indefinitely would be a recipe for disaster. But with millions of businesses depending upon Monday morning deliveries and consumers demanding the cheapest possible price tags, FMCSA can’t simply order all drivers off the road on the weekend. To compensate, the “restart period” is supposed to simulate the weekend, but be taken at various times.

In 2003, the first version of those rules gained approval from even pro-industry people who are skeptical of more rest regulations, like David Osiecki of the American Trucking Association (ATA). He agrees that the restart period makes sense as a concept. “These were the first substantive changes to these rules in 60 years,” Osiecki said in an interview. “And there was all kinds of fatigue-related research and data analysis that went into those changes, and while the industry didn’t like some of those changes, it knew that they were appropriate and they were based on good science.”

But now those rules have been changed in ways that leave Osiecki and the companies he represents frustrated.

After an Obama administration revamp of the Hours of Service rules for trucking, drivers who hit their weekly limit must sleep for two “nighttime periods” from 1:00 to 5:00 a.m. before they can begin a new week of driving. Previous restart rules featured just one nighttime period. The revisions came in response to years of pressure from groups like Jasny’s who argued that the more loosely-defined restart period from 2003 was ineffective and out of step with what sleep researchers have to say about the sources of fatigue.

“The 34-hour restart itself is what, 12 hours short of a regular weekend?” Jasny said. “That’d be like you and I coming back to work on a Sunday afternoon instead of waiting for a Monday morning.”

Osiecki questions the science FMCSA uses to justify the change and calls it “a solution in search of a problem.” According to the ATA, the feds are making rules based on a small minority of drivers and companies that violated the old rules, and imposing an unfair and unnecessary burden on the rest of the industry as result. The FMCSA disputes that allegation, noting in an email that only a tiny fraction of drivers are affected by the new restart rules since the vast majority don’t drive enough hours in a week to trigger the restart requirement in the first place.

“That’s like police stopping car drivers at 2 am on Saturday morning, and determining that a whole bunch of them are drunk and operating under the influence and applying that to every other driver they stop throughout the day. I mean, it’s a biased sample,” Osiecki said. “You can’t take a biased sample and apply it to a broad industry.”

But to Jasny’s mind, safety rules have to be calibrated to combat the worst actors on the road, even if that’s unfair to compliant drivers. “There are drivers out there who don’t get pushed to the limit, but that’s why the limit is so important,” Jasny said. “In any industry there are good employers and bad employers, and there are some out there that will push their drivers to the absolute limit.”

Driver Pay, Highway Safety At Odds

That pushing takes the form of paychecks. The consensus has it that truckers face financial incentives to push themselves further than federal rules and common sense say they should, like Kevin Roper allegedly did by starting a duty shift after being awake for 10 hours before he even got into the truck that would later kill Tracy Morgan’s friend.

“There’s pay incentive for them to get back on the road,” Jasny said, and for hundreds of thousands of drivers who are paid per mile rather than per hour, “they’re not making money while they’re at rest.”

Osiecki disputes that narrative about financial incentives to flout the rules and push the limits of fatigue. “That’s a common misperception. There are a whole host of drivers that get paid by the hour [or] by revenue on the load so miles don’t matter. There are also drivers that get paid by the mile when they’re moving and by the hour when they’re stopped,” the ATA lobbying chief said.

But even at an hourly wage, truckers still have incentive to push as hard as possible. That’s especially true for drivers operating without union protection, International Brotherhood of Teamsters Legislative Director Fred McLuckie explained in an interview. “In a lot of cases compensation isn’t that good, it’s fairly low, so they need their hours behind the wheel to make a living,” he said. A recent report in the New York Times backs him up: trucker pay is too low to lure the number of drivers the industry needs. ATA itself projects that there are 30,000 fewer drivers than the industry needs right now, “a number on track to rise to 200,000 over the next decade” in part because inflation-adjusted driver pay has fallen by more than $2,000 per year over the past decade. Teamsters contracts protect unionized drivers from those kinds of schedule and wage pressures, McLuckie said, “but our concern is we’re sharing the road with those guys who are pushed to the limit. It’s a safety question for everybody who’s on the road.”

That is one of FMCSA’s concerns too, and spokeswoman Marissa Padilla said the agency is “studying the impact of driver compensation on safety outcomes right now” in hopes of clarifying how pay and safety may or may not conflict. “We also have a proposal to require bus and truck companies to pay drivers for time they are not compensated for,” Padilla said, referencing a provision in the GROW America Act to require a minimum hourly wage for the time drivers spend waiting to have trucks loaded or unloaded. “That’s one thing that would help,” the Teamsters’ McLuckie said. “The other thing is simply for companies to pay drivers better wages.”

What Does The Data Say?

To prove that McLuckie and Jasny and the government shouldn’t be so worried about bad incentives for truckers, Osiecki sent over charts showing that only half of all regional truckers are paid per mile, and said that while 55 percent of nation-wide or over-the-road truckers who drive longer routes get paid by the mile, those drivers make up a small enough proportion of the industry that most truckers don’t face an incentive to “run miles.”

The charts Osiecki shared come from the ATA’s 2010-11 driver compensation survey. Despite representing “somewhere in the neighborhood of 50,000 to 75,000 drivers,” in ATA research chief Bob Costello’s words, the survey is not a scientific snapshot of the industry. Responses were supplied by volunteers rather than collected through random sampling of drivers and companies, which exposes the results to something researchers call selection bias: people who wanted to take the survey took it, people who didn’t feel compelled on their own didn’t, and as a result the findings could be skewed toward the perspective of the sort of trucking company and driver who feels inclined to take a survey about how and how much they get paid. It is impossible to probe the methodology of the survey further because the ATA contracted the work out, and “that contractor is no longer with us,” Costello explained.

Flaws and all, the ATA numbers are more illuminating than no information. According to the survey, 50 percent of regional drivers are paid by mile and only 30 percent are paid by hour regardless of their progress to their destination. 55 percent of nationwide drivers are paid by mile and 27 percent are paid hourly. Forty-eight percent of independent contractors, who make up a big slice of the industry, are paid by mile.

But even assuming that only those drivers the survey labeled as paid per mile face any tension between their compensation and their safety, and that there are far more regional than national drivers, the slight majority of all truckers are paid per mile according to ATA’s own study. Even if Osiecki is right that regional drivers were overlooked in the government rulemaking process, exactly half of them are paid by the mile. Because the ATA doesn’t have details of how its contractor tallied the 2010-11 compensation study, they couldn’t say how many of each type of driver there are on the roads. But with somewhere between 1.4 million and 1.7 million heavy truck transportation workers nationwide, according to Bureau of Labor Statistics data sources, there are several hundred thousand men and women out there driving big-rigs whose odometers double as paystubs.

And even if drivers with pay incentives to drive while fatigued are the exception to the rule, that’s enough to worry Teamsters lobbyist McLuckie. “There are drivers out there who don’t get pushed to the limit, but that’s why the limit is so important,” he said in an interview. “In any industry, there are good employers and bad employers and there are some employers out there that will push their drivers to the absolute limit, and if they can work them 82 hours a week, some of them obviously will.”

The sleep study that undergirds the newest set of rules about time off for divers relies on far fewer drivers than ATA’s pay survey. But what it lacks in headcount it makes up for in academic rigor. Scientists at the Washington State University (WSU) Sleep and Performance Research Center kitted out 119 drivers and trucks with electronic monitors on both the drivers and the trucks and gave each driver a smartphone app for self-reported sleep logging and for testing alertness using something called the Psychomotor Vigilance Test or PVT. Previous research on how to regulate driver sleep had involved driving simulators rather than actual road testing, and found that drivers who slept at night during their break had far fewer attention lapses on the PVT than those who slept during the day on their “restart” weekend, even though both groups got the same total amount of sleep.

Osiecki pointed to the smaller differences researchers found between the two groups of drivers as measured in subjective, self-reported fatigue scales, and said somebody at FMCSA “chose not to put information in the report from the field study that would’ve been very useful.” But whatever weaknesses there are in those other categories of the sleep study’s findings, a sleep scientist from the group that conducted the study insisted that the electronic test is the gold standard.

“The PVT is very unforgiving of lapses in attention,” Dr. Greg Belenky explained. “You’ve got a small screen and a bullseye or some other stimulus appears, and you respond by pushing a button. That’s your latency to respond, and if it exceeds half a second then it’s considered a lapse.” Belenky heads the Washington State University Sleep and Performance Research Center, where his colleague Dr. Hans Van Dongen conducted the sleep research backing up FMCSA’s restart period rules.

But before the restart rules could be revamped to require two nighttime rest periods, researchers needed to test that finding more stringently in actual road conditions. WSU researchers followed each driver for two work weeks, tracking how they used their restart period prior to the first work week in the study, how they used the restart period in the middle of the study period, and how their hours on the road and alertness behind the wheel shifted over the two working weeks. After removing drivers whose data was incomplete or who withdrew for personal reasons, there were 106 complete records to analyze: 44 local-area truckers, 26 regional truckers, and 36 long-haul or over-the-road truckers. The drivers ranged in experience from 1 year to a quarter-century on the job. The drivers averaged 55 hours on duty and 40.5 hours driving per duty cycle – far below the maximum allowed under federal rules.

Drivers took shorter breaks in the second restart period of the study than in the first, and were more likely to take two nights in the first restart break than the second. A bare majority of drivers – 55 – took two nighttime breaks in both restart periods during the study, meaning that roughly half were already behaving in accordance with the HOS rules the researchers were trying to evaluate.

The result? Drivers were somewhat less likely to flunk the smartphone-enabled attention test if they slept the way the feds now require, and “showed greater fatigue, as measured objectively with the PVT, during duty cycles preceded by a restart break with only one nighttime period,” the report says.

Dr. Hans Van Dongen, Belenky’s colleague who ran the trucker study for the government, pointed out even a small difference in measured attention lapses on something like the PVT should be alarming to people who share the roads with these trucks. “Translate this to an 11-hour driving period and it should be evident that an increase of 1 lapse on the 3-minute PVT is indicative of increased risk while driving,” Van Dongen wrote in an email. “The two nights provided [drivers] greater opportunity for recovery from fatigue from the previous duty cycle and this was found to be an effective fatigue mitigation strategy.”

The upshot of all this is that even though the two types of drivers in the test varied by just six total minutes of sleep per night – “less than my snooze button,” Osiecki quipped – getting consistent nighttime rest provided alertness advantages over trying to sleep during the day. The reason for this has to do with circadian rhythms. “It’s easy to stay awake when your body temperature is rising or high,” Belenky said. “It’s hard to stay awake and perform well when your temperature is falling or low.” The body makes those adjustments automatically in relation to its exposure to sunlight, meaning truckers can’t really avoid them.

“If your work-rest cycle is 180 degrees out of phase, then you’re going to see difficulties with staying awake when you’re trying to work and staying asleep when you’re trying to sleep.”

How Scientist-Approved Sleep Rules Were Nearly Nixed

One day in early June, the Senate Appropriations committee met for one of its routine tasks: putting meat on the Department Of Transportation budget’s skeleton. One senior Republican member made a simple if somewhat unusual proposal: suspend the Hours of Service rules FMCSA had put in place for trucker sleep the previous July and instruct the agency to conduct further studies of how the rules would affect highway congestion.

Sen. Susan Collins argued that an additional overnight sleep period during a driver’s restart would increase congestion during early-morning commuting hours when crashes are already more likely than they are overnight, citing warnings from a Bush-era FMCSA chief and the head of the Fraternal Order of Police. Collins (R-ME) won broad, bipartisan committee support for that amendment , which was intended to reverse the sleep rules changes and revert to the one-night restart period that the industry prefers and the FMCSA says is dangerous.

But that’s not all it did, according to International Brotherhood of Teamsters Legislative Director Fred McLuckie.

“One of the things that Collins wasn’t saying is that it extended the potential workweek for drivers from 70 hours to up to 82 hours per week,” McLuckie said in an interview. “When you told members and staff that, you got a very surprised look of disbelief.”

“One of the flaws in her amendment is that it requires a study but it removes the chance to study,” McLuckie said. “It suspends the provisions before the study is allowed to occur. There’s no way to study the effect of these suspensions if you go ahead and do it before you study the issue.” A Collins staffer noted in an email that FMCSA’s own statistics show that the hours of 6:00 to 9:00 a.m. are much more dangerous and deadly than night-time hours. But as then-head of the FMCSA Anne Ferro told Bloomberg at the time, nothing about the sleeping hours requirements forces drivers onto the road during the very busiest hours, since drivers can set their own schedules. “Not every truck driver in America starts his vehicle at 5:10 a.m. to go to work,” McLuckie said. “There are all sorts of different runs scheduled in the trucking industry.” Requiring drivers to be asleep when their circadian rhythms want them to be asleep does not mean requiring them to be on the road when congestion is at its worst.

McLuckie’s team had a backup plan to try to strip the Collins amendment when the Transportation bill hit the full Senate floor, but they lost the argument in committee. Collins’ amendment was approved on a 21-9 vote. The restart period rollback made it into the final bill the committee recommended to colleagues. McLuckie said he’s not sure they would have found the votes to reverse Collins’ work if the bill had made it to the floor. But it never did.

Less than three days after the Appropriations Committee vote, Kevin Roper’s truck killed Tracy Morgan’s friend. Suddenly Collins’ last-ditch bid to subvert the regulatory process, sleep scientist consensus, and safety advocate appeals to common sense was newsworthy outside of the narrow world of trade publications.

morgan_accident-12

CREDIT: Adam Peck

Sleep rules for truckers were suddenly a hot media topic. The Teamsters put out a statement several days later blasting efforts to roll back sleep rules given how prominently Roper’s fatigue figured in initial crash investigation reports. “The Tracy Morgan accident certainly shined a light on the broader problem of driver fatigue,” McLuckie said with a sigh, “but there are accidents that happen on a daily or weekly basis that involve drivers exceeding their hours or accidents involving tired and fatigued drivers.”

Amid the scrutiny on the Collins move and the general dysfunction in Congress around spending bills, the Transportation funding measure eventually fell apart, leaving the current restart rules in place.

That provides at least a temporary calm in the running battle between regulators, safety advocates, and shipping companies. Last summer, the regulations withstood lawsuits not only from the ATA but from a pair of safety groups that argued the rules were too lax to protect the public.

To the Teamster lobbyist’s eye, that multi-faceted distaste for the rule is a good sign. “Everybody dislikes portions of it. They say that if nobody likes everything about it, it must be a decent rule,” McLuckie says. “We’re just through one year of it and already people want to change it. Let’s give it some time to see if it works, if it reduces fatigue-related accidents, if it improves safety, before we go tinkering with it.”

While they disagree about whether or not to keep tinkering with the rules around driver behavior and driver pay, all three interviews with safety advocate Jasny and opposing lobbyists McLuckie and Osiecki suggested that the future of highway safety lies in technological innovation. Radar systems that alert drivers to traffic ahead of them or in their blind spots, automated logbooks that would replace pen-and-paper driver timesheets, and enhancements to cruise control, braking systems, and vehicle-to-vehicle passive communication are just a few of the technologies that each man mentioned when asked where the safety fight is headed in the next five years.

The gizmos have gotten more sophisticated since Jayne Mansfield’s day, but the basic dynamic is the same: so long as 80,000-pound machines are going to clog our highways and employ millions of people, the least we can do is outfit them to be a bit less deadly.

« »