Mandatory use of Electronic Logging Devices (ELD) for logging hours of service for commercial vehicles starts December 18th 2017, and the motion picture/television industry in particular is under scrutiny by law enforcement. How production companies will deal with the new (and old) DOT regulations is yet unclear, but it is likely to affect any company that rents or drives trucks one ton or larger. We have already seen aggressive enforcement by police in California.
Rental companies that have fleets are typically more aware of compliance obligations than the productions they rent to, yet it is the employer—the company that actually pays the driver—that is required to ensure compliance. PERG is working with the AICP and has begun developing guidance documents regarding this issue. The documents are expected to be available in early 2018. In the meantime, some rental houses are in the awkward position of wondering if ignorance of or disregard for regulations, or a simple clerical error in logging hours will come back to bite them in the tail gate. This article gives a brief preview of the challenges facing many rental companies that provide trucks to productions.
For the motion picture/television industry, our issues stem from the question “who is the motor carrier: the rental house, or the production company?” By regulation, this hinges on who employs the driver. The company that employs the driver, pays them, and is responsible for the tasks assigned to the driver, is typically considered to be the motor carrier.
This opens two possible scenarios for maintaining compliance, neither of which is ideal.
In Scenario 1 the rental house provides the driver. The production hires the rental company to send a truck to the set loaded with gear and pays the rental company for the gear and fees for the driver. The rental company is the registered motor carrier and is responsible for selecting drivers, scheduling their hours, supervising their drug testing program (for those driving trucks above 26klb.), displaying a DOT number on the vehicle, record keeping, logging hours of service, and making sure the driver does not exceed the maximums—either for hours on duty, driving hours, or total hours within the past 8 days.
Any rental company that owns trucks already complies with these requirements for their own drivers. However, there are clearly a number of problems with this scenario when the drivers are under the control and direction of the production company. It raises the issue of compensation to the rental company for taking this responsibility and liability off the hands of production. Operation of the truck becomes more of a service than a rental. In addition, the rental company would have to maintain control over the driver’s hours, and be prepared to provide relief-drivers and back-up drivers in case hours would otherwise be infringed or if the driver takes a sick day or has some other contingency. The contract with the production company would have to allow for compensation in these contingencies. All of these drawbacks put the rental company in an unfamiliar relationship with the production company, forcing the rental house to justify these “additional” new costs. Finally, in towns where drivers are Teamsters, these arrangements have to be negotiated.
In addition, Scenario 1 does not solve the whole problem for the production company. Other production trucks and vehicles also fall under commercial requirements including any “5-ton” or “10-ton” box truck, a pick-up or stakebed truck towing a generator or trailer, tractor trailers, honey wagons, people movers, water trucks, busses etc. A motor carrier is any business engaged in interstate operations (crossing state lines) operating a vehicle with a Gross Vehicle Weight Rating (what the truck is RATED to carry) or the Gross Vehicle Weight (what it is actually carrying), or the combined gross weight including items being towed, exceeding 10,000 lb. Even intrastate carriers (that never cross state lines) require a state DOT number in 33 states, including the busiest production states: California, New York, and Georgia.
Scenario 2 is currently the more common practice—the production company employs, supervises, and assumes responsibility for the driver. In this scenario, the production company is the motor carrier and must take on all the compliance requirements including responsibility for drug testing, having their own (temporary) DOT number displayed on rented commercial vehicles, and logging hours of service.
This presents some obvious challenges for many production companies. For commercials, which often prep and shoot within just a few days, the short timeframe creates an impossible timeline for determining driver qualifications and drug testing. Production companies, which are often formed as new corporate entities for each show, would need to get new DOT numbers and set up all new driver paperwork for each show. Backup drivers would need to be in place in case a primary driver becomes ill or quits the job. And, of course, there are expensive administration costs.
No matter which party is the motor carrier, the driver’s hours of service requirements are likely to either create compliance issues or limit what the production can do in a day, especially with distant locations, long shoot days, and/or schedules that call for relocation of the vehicles before and after a given shoot day. Even with the exemption granted for the motion picture industry, by Federal law the driver may not exceed 15 hours on duty, must thereafter have at least 8 hours off-duty, and may not exceed 70 hours in any 8-day period. On-duty hours include inspecting the vehicle, fueling, repairs, loading and unloading, handling paperwork, operating other (non-commercial) vehicles, and so on. So, if a location is just 1 ½ hours from the place of origin, say the rental house, then inspections and paperwork can be expected to take an hour, plus three hours of drive time to and from the location, so the production is already limited to an 11-hour day. Productions, especially ones on a very short schedule, very often exceed 12 hours and can go 14 or 15 hours, so clearly this will present challenges.
The new required use of Electronic Logging Devices (ELDs) is designed to close out the possibility of fudging the logs. Regulations have always included fines if an employer coerces a driver to make false representations on logs, but the use of ELDs, which sense when the vehicle is in motion, make fraud very obvious. The existence of the new regulations, and our industry’s known compliance issues in this area, make it more likely that a company will be found out of compliance.
PERG is working with other industry stakeholders like the AICP and CSATF to stay on top of developments and advise members as they arise. See also Helpful Links for ELD Compliance.
