Question: My husband is wondering if you know if there is a general rule or law about drivers being able to use electric jacks to unload. He said he runs into this often where he is totally capable of unloading his own load, but instead, he is forced to hire a lumper to do it because drivers aren’t allowed to use the jacks. Is it up to the individual companies to decide whether or not a driver can use an electric jack? We would appreciate any help you can offer, and thank you in advance.
Answer: On Dec. 1, 1998, the Occupational Safety and Health Administration (OSHA) made a final ruling regarding powered industrial truck operator training.
The rule requires operators to be trained at a specific site and on specific equipment, according to the employer’s policies.
What this boils down to is every shipper or receiver is responsible for ensuring that anyone who operates power pallet jacks, forklifts, or loaders, at its worksite is qualified to do so through training at its site on the specific equipment the operator will be using. So, even if your husband is trained to use an electric pallet jack and has done so for years, the OSHA ruling prohibits the shipper or receiver from allowing him to do so without undergoing its own site-specific and equipment-specific training course.
In addition, it’s up to shippers and receivers to keep records of each person’s initial training as well as continuing training that is required every three years, or after an accident. The regulations require that this training include both classroom and hands-on instruction.
But, the story doesn’t end here… While OSHA’s ruling was intended to prevent accidents on the dock and to protect workers from injuries as the result of the use of powered equipment in the workplace, it really opened up a can of worms for truckers.
As well intentioned as the ruling may be, it isn’t compatible with the current lumper laws as written in 49 U.S.C. § 11109 and 11902a. In fact, some might say the OSHA ruling virtually nullifies the effectiveness of the lumper laws. Here’s why:
The lumper laws basically prohibit shippers and receivers from forcing anyone who owns or operates a commercial vehicle to hire a lumper or to require them to pay a lumper for uninvited assistance with loading or unloading.
The law also prohibits a shipper or receiver from forcing a motor carrier to load or unload, or to hire a lumper to do so.
Now, along comes OSHA with its well-intentioned ruling that, in essence, opens up the door for unscrupulous shippers and receivers to sidestep the lumper laws using the safety regulation as an excuse.
Although you didn’t indicate it, let’s assume that your husband is operating as an independent, and we’ll use his situation as an example. (If your husband is a leased owner-operator or a company driver, the lease agreement or company policy should specify the loading and unloading responsibilities, including compensation, if any.) While he contends he is perfectly capable of unloading his own load if given the proper equipment, he is forbidden to do so. Why? Because OSHA regulations require operators of powered equipment to be trained in the employer’s policies at a specific site, and on the specific equipment that the individual will be using. Since this is not an option for your husband, the use of power equipment to unload his own load is prohibited.
So what are his remaining options? He can hire a lumper. Remember, if he chooses this option, he’ll have to hire a lumper who has been trained on this specific site, and on this specific equipment per OSHA regulations. He’s back to square one.
Now he’s forced to consider paying the receiver’s lumpers to unload his truck. But why should he have to pay the receiver for doing something that he thinks they should be doing anyway? And … what about the lumper laws that say he can’t be forced to pay for a lumper he didn’t want to hire in the first place?
When your husband confronts the receiver with these questions, they simply reply that they aren’t forcing him to hire a lumper for assistance. There is another option — he can use a manual pallet jack and do the work himself. Now, your husband is forced to consider what this will cost him in terms of the extra time it will take, not to mention his own physical well-being. Besides, there’s only one manual pallet jack on the dock, and it’s currently in use with a waiting line to boot.
This is clearly a “Catch-22” situation for many professional truckers who are simply trying to make a living. They end up being coerced to do things they legally shouldn’t have to do by powerful companies that take advantage of regulations initially designed to protect them, yet contradict existing laws that are also supposed to protect them.
OOIDA is intent upon focusing the attention of lawmakers on the many problems related to loading and unloading. Some members and readers will probably recall the lawsuits we initiated against Michigan Repacking & Produce Co. Inc., and Powerhouse Produce LLC, in which we were successful in setting an example for the industry as to the type of unloading practices that responsible receivers should be adopting. We don’t intend for these efforts to be easily forgotten.
While enforcement efforts at this time are non-existent, there are strict civil penalties for dock owners who knowingly violate lumper laws. All professional truckers can help to ensure the Federal Motor Carrier Safety Administration (FMCSA) is aware of the problems they experience by reporting incidents of illegal loading and unloading practices by shippers and receivers. OOIDA would also like to know about these cases of abuse, so be sure to copy your complaint to us as well.
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