May-June 2012 MMTA Magazine

May/June 2012 Maine Motor Transport 1

May/June 2012

Inside This Edition

Inside This Edition

An Introduction to MMTA’s New Chairman

Christopher Huff

PLUSPLUS

125th Maine Legislature (second regular session)

Legislative UpdatePage 20

6

2 Maine Motor Transport May/June 20122

May/June 2012 Maine Motor Transport �

Maine Motor TransportAssociation Inc.

Brian Parke, Editor

MMTA Officers 2012-2014 Chairman: ChrisHuff,HannafordTrucking,S.Portland ViceChairman: EvanKeefer,Kris-WayTruckLeasing,Inc.,S.Portland Secretary: ShawnMoore,R.C.Moore,Inc.,Scarborough Treasurer: DuaneGraves,Pottle’sTransportation,LLC,Bangor ExecutiveCommittee: JimMcCurdy,MaineCommercialTire,Bangor StateVicePresident,ATA: ChrisHuff,HannafordTrucking,S.Portland AlternateStateV.P.,ATA: DaleHanington,HarttTransportationSystems,Bangor BudgetCommittee: DuaneGraves,Pottle’sTransportation,LLC,Bangor GovernmentalAffairsCommittee: BarryPottle,Pottle’sTransportationLLC,Bangor MembershipCommittee: BrianBouchard,H.O.Bouchard,Inc.,Hampden SpecialEventsCommittee: NateLewis,WalMartTransportation NominatingCommittee: JimMcCurdy,MaineCommercialTire,Bangor

Directors

MMTA Past Chairmenand Lifetime Directors

* OlenE.Butler 1946-47* PaulE.Merrill 1947-48* GeraldA.Cole 1948-49* StewartM.Taylor 1949-50* GuyF.Dunton 1950-51* MarkW.Ginn 1951-52* HarryL.Milliken 1952-53* PhilipC.Gox 1953-54 F.GilbertCongdon 1954-55* H.MerrillLuthe 1955-56 GalenL.Cole 1956-57 HenryW.Saunders 1957-58 RichardS.Clement 1958-59 DwinA.Gordon 1959-60* H.BlaineSanborn 1960-61 WilliamG.Hepburn 1961-62* C.L.Fox,Sr. 1962-63 GeorgeW.McNear 1963-64* H.BlaineSanborn 1964-65 DavidW.Harmon 1965-66* GeraldA.Cole 1966-67 HerbertE.Ginn 1967-68 JosephH.O’Donnell 1968-69* HarryL.Milliken 1969-70* F.EmmettO’Connor 1970-71 DavidW.Fox 1971-72 RobertE.Ginn 1972-73 RichardJ.Haley 1973-75 GeorgeM.Hutchins 1975-77 H.WalkerNoyes 1977-79 ChesterSherrard 1979-81 ArthurW.Hicks 1981-83 VirgilE.Beane 1983-85 GeorgeL.Parke 1985-87* DavidL.Cole 1987-88 WilliamDuddy 1988-90* CliftonE.Halacy 1990-92 MarkA.Hutchins 1992-94 DonaldB.Wiswell 1994-96 PietervanVoorst 1996-98 MertBrown 1998-00 TomKeefer 2000-02 BarryPottle 2002-04*JohnAustin 2004-06BrianBouchard 2006-08JohnLightbody 2008-10JimMcCurdy 2010-12*JohnThut-HonoraryChairman

*DeceasedSubscription Rate

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� Maine Motor Transport May/June 2012

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What’s Inside2012AnnualSponsors......................................................4MMTAMemberNews.................................................8,10NationalNews...........................................................12-14TruckPACContributors.................................................15MMTAChairmanSelf-Introduction..........................16-19LegislativeUpdate.....................................................20-21SMCNews&Notes.......................................................22MMTADriversoftheMonth.........................................30

CalendarMay 10 Air Foundation Seminat 9:00am MMTA Office - Augusta

May 11 Supervisor Substance Abuse Training8:30am MMTA Office - Augusta

May 17 MMTA Safety Mgmt Council Meeting 8:00am MMTA Office - Augusta

May 19 2012 TDC/PTSC Dysarts/EMCC - Bangor

June 1 DOT Collector Training 8:00am MMTA Office - Augusta

June 7 ABS Systems Seminar 9:00am MMTA Office - Augusta

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2011 MMTA ANNUAL

BANQUET SPONSOR OMISSION

We regretfully omitted recognizing

WalMartTransportation

in the previous edition of this magazine on

the list of PLATINUM sponsors at the 2011

MMTA Annual Banquet.

We sincerely apologize for this oversight and would like to thank WalMart for their

generosity to make the event a tremendous

success!

CORRECTION


MMTA MEMBER NEWS MMTA MEMBER NEWS

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POTTLE’S RECOGNIZES EMPLOYEE OF THE YEAR

We at Pottle’s Transportation would like to recognize our Employee of the Year for 2011. Malcolm “Mac” Eleiott has been a company driver at Pottle’s since June 30, 1998. Mac has shown sincerity to other drivers, employees, and customers since the day he was hired.

In 1969 Mac started his trucking career as an Owner Operator hauling potatoes from Northern Maine to the Mid-West. He worked as a team with a friend of his and after two years they made enough money to buy a brand new Freightliner together. After 23 years of hauling refrigerated trailers with potatoes and French fries, Mac decided he wanted to mix things up a little. He did just that when he came to Pottle’s in 1992 as an Owner Operator with us. He bought himself a brand new International truck in 1996. He drove that for two years, and turned it over to Pottle’s so he could become a company driver in 1998.

He does his job and he does his job well. If he has a question, he’ll ask it and get back to work without hesitation or attitude. He’s always loved being behind the wheel and has a “Wall of Fame” started at home with all the various awards he’s received, along with pictures, of his trucking journey over the years. Mac has a way with putting a smile on your face when he walks through the door just by being the caring, heartfelt, and loyal person he is. We are proud to call Mac one of our drivers and we hope to for many years to come. Congratulations Mac!

Pottle’s Transportation President Barry Pottle (left) presents Malcolm “Mac” Eleiott with the 2011 Employee of the Year plaque.


MMTA MEMBER NEWS MMTA MEMBER NEWS

www.pntc.net

CLIFFORd W. PERHAM HONORS SAFETY

On Sunday April 15, 2012, Clifford W. Perham Inc (a subsidiary of Shaw’s Supermarkets, Inc., a Supervalu company) held their annual Safety Banquet. For the first time in Perham’s 63 year history they had a driver achieve 3 million accident free miles. This award was given to Keith Weeman.

Keith started driving for Perham in 1978 and has not had a preventable accident in 34 years with the company. Keith is regarded as the ultimate professional; he was named the Maine Motor Transport Association Driver of the Month for February 2009. Keith has only taken 3 sick days in the last 12 years. Keith and his wife Marilyn reside in Limington, ME.

Many other drivers received safety achievement awards, including David Gagne, David Edwards and Philip Patry who received 2 million mile awards. Gerald O’Dell, Mark Taillon, Robert Ross, Raymond Earl and Jon Rousseau were honored with 1 million mile awards.

In addition to these drivers, the company also honored many of their mechanics for years for their safety efforts. Most notably Michael Duricko, Charles Swett and Larry Macomber were honored for their 26 years of safe working.

Pictured Above:Ed Rodricks (General Manager Supply Chain), Keith Weeman, Mike Stigers (President Shaw’s Supermarkets, Inc.), Steve Kumka (Director Wells Distribution Center)


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FMCSA PUBLISHES MEdICAL EXAMINER

REGISTRY RULE

On April 20, 2012, the Federal Motor Carrier Safety Administration published a final rule establishing its National Registry of Certified Medical Examiners (NRCME). According to an implementation schedule published on FMCSA’s official NRCME website, on May 21, 2012 the agency will begin the process to allow accredited private companies to test and certify medical examiners for inclusion on the NRCME. Beginning May 21, 2014, all medical certificates must be issued by a certified medical examiner and contain his/her Medical Examiner Registration Number. Medical certificates issued before May 21, 2014 will still be valid until their expiration, even if that date is after May 21, 2014. On that date, motor carriers will also be required to verify that a medical certificate is valid by checking a driver’s medical certificate against the examiner’s registration number in the NRCME. Even after being examined by an examiner registered in FMCSA’s database, a driver will still need to transmit a copy of the medical certificate to his or her state licensing agency. ATA has long advocated that, both to reduce fraud and possible processing errors, medical examiners should transmit this data directly to the licensing agencies for inclusion in the Commercial Driver’s License

NATIONAL NEWS NATIONAL NEWS NATIONAL NEWS NATIONAL NEWS

NLRB’S NOTICE-POSTING RULE STAYEd

PENdING APPEAL IN d.C. CIRCUIT

The United States District Court for the District of South Carolina has struck down a rule promulgated by the National Labor Relations Board requiring employers to post notice of employee rights under the National Labor Relations Act. The court held that the imposition of the requirement was beyond the authority granted by Congress to the NLRB by statute. The decision differs somewhat from a decision earlier in March by the United States District Court for the District of Columbia, which upheld the posting requirement but struck down the penalties proposed as part of the rule. That decision is being appealed by employer groups, including a coalition of which ATA is a member. On April 17th, the United

TRASK-dECROW AddS STAFF

TDM (Trask-Decrow Machinery) is thrilled to announce a recent addition to their staff. Dayna Merrow has been hired as Administrative Assistant to the President, Chuck Decrow. She will assist with trade show, sales support, marketing and web development, and many other administrative duties. Dayna has spent her career working in the Customer Service and Office Management fields. Her most recent work as Office Manager for the Town of Ossipee, NH enabled her to build upon her organizational and communication skills in a very busy municipal office. Dayna regularly took advantage of educational opportunities available to her, and enjoyed working in a challenging environment. Her prior experience reflects a wide variety of strengths, which fit well with the needs of the team at TDM.

Trask-Decrow Machinery is Maine & northern NH’s exclusive distributor of Ingersoll-Rand Air Compressors, commercial and industrial pumps, portable utility and snowmaking equipment. The company also offer rentals – short and long term - as well as financing and lease options.

Information System (CDLIS). ATA has urged FMCSA to issue a proposed rule that would require medical examiners to send such information and States to be able to directly add it to a CDLIS record. Based upon the Department of Transportation’s regulatory agenda, FMCSA is scheduled to publish a notice proposing such a rule change in August 2012.

For more information and a list of frequently asked questions, go to www.mmta.com/MedExaminersFAQ.

States Court of Appeals for the D.C. Circuit granted an injunction against enforcement of the rule pending the appeal. The effective date for the rule had been set for April 30 but is now effectively stayed pending resolution of the cases

May/June 2012 Maine Motor Transport 1�

NATIONAL NEWS NATIONAL NEWS NATIONAL NEWS NATIONAL NEWSFMCSA REVERSES COURSE ANd WITHdRAWS CSA CRASH ACCOUNTABILITY

PROCESS UNTIL FURTHER NOTICE

At an industry stakeholder meeting in Washington on March 8th initiated by FMCSA Administrator Ferro, ATA learned troubling news that the agency is “pulling back” on its plans to implement a CSA crash accountability process “until further notice.” As recently as just 4 weeks ago (February 9, 2012) FMCSA confirmed to ATA and other stakeholders its previously announced plans to allow carriers to challenge the use of crashes for which carriers are not accountable in assigning carriers’ CSA Crash Indicator scores.

Subsequent to February 9, the agency and the Secretary of Transportation received feedback from a few public interest groups raising questions about the “reliability of police accident reports” that FMCSA was planning to use as part of the crash accountability determination process. As a result, FMCSA now says it needs to address a “series of questions” about the police accident reports, and how they might be used in their intended process. ATA and other industry stakeholders were highly disappointed by this announcement and expressed it during the meeting. ATA will be redoubling its efforts to get the agency to quickly address the “questions” raised so that it can move forward in implementing a reasonable process.

FMCSA has released the following one-page statement clarifying the “crash accountability” program status. You can also find a link to the document by going to our website at www.mmta.com/crashaccountability.

Recently, stakeholders (enforcement, safety, industry) have inquired into the status of a “crash accountability” program that FMCSA was considering as part of the overall implementation of Compliance, Safety and Accountability (CSA). The premise of the program was to identify crashes for which a carrier had greater responsibility, and consider weighting them differently than other crashes in the Safety Management System. Below, please find an explanation of the status of the program, as well as a statement from FMCSA.

Crash Weighting in the Safety Management System

FMCSA has been looking at various options within CSA and its Safety Management System (SMS) to identify carriers that have the greatest risk of future crashes. As part of this effort, FMCSA has been pursuing a program called “crash accountability.”

The premise of the program was to identify crashes for which a carrier had greater responsibility, and consider weighting them differently than other crashes in the SMS. The purpose of the effort is to identify those carriers that are causing crashes, and prioritize them for intervention.

continued on page 14....


1� Maine Motor Transport May/June 2012


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In reviewing this issue, FMCSA has identified several areas that require further study before making a decision on how to best approach this issue. These areas include the uniformity and consistency of police accident reports; the process of making “final” crash determinations; the process for accepting public input into the process; and the actual effect on SMS and whether it better identifies carriers that have a high risk of crashes.

As a result, the Agency is undertaking an effort during the coming months to conduct additional research and analysis into these and other topics to determine the feasibility of a program that looks at the cause of crashes and the weighting of those crashes in the SMS.

Statement of FMCSA:“FMCSA is committed to a robust, data-driven Compliance, Safety, Accountability (CSA) program that effectively identifies commercial truck and bus companies that pose a greater risk for crashes on our roadways. As part of the CSA program, FMCSA considered developing a crash accountability initiative that would examine the responsibility associated with crashes involving commercial motor vehicles. In reviewing this issue, FMCSA identified several critical areas that require further study. They include establishing a uniform process for making crash determinations, reviewing police accident reports and ensuring public input in the development process. As a result, FMCSA will continue to thoroughly examine these issues as it sharpens CSA as a safety enforcement tool.”

...continued from page 13

SENd ATA EXAMPLES OF YOUR CLEAR CUT NON-

ACCOUNTABLE CRASHES

ATA is gathering examples of crashes that FMCSA clearly should not use in assessing carriers’ CSA Crash Indicator scores or for prioritizing carriers for intervention. To that end, ATA is asking its motor carrier members to review their crash records and forward police accident reports reflecting the details of such crashes. For instance, carriers willing to assist ATA in its efforts should send police accident reports on these incidences – such as when trucks were struck while legally parked, rear ended while legally stopped (e.g., at a red light), struck by a motorist traveling the wrong way on a divided highway, or clear cut suicides. If it is absurd that FMCSA uses one of your crashes to assign your crash indicator score, they want to know about the crash! Members can email their crash reports to [email protected].

ATA will use these crashes in its advocacy efforts to get FMCSA to implement a process for assessing crash accountability and to use only those crashes for which motor carriers could reasonably be held accountable in assessing carriers’ Crash Indicator scores.

[email protected]


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By Chris Huff

With reflection, my passion for truck transportation and connectivity with successful business operations began for me at a very early age. My grandfather, Tolford Durham and his brother John, founded Moosehead Manufacturing Company in Monson, Maine in 1947. Growing up, family always came first; however, business conversation managed to weave into our family’s daily dialogue. My grandfather, uncles, and aunts were always popping in to discuss an opportunity or the newest strategy for the business. I would frequently visit the “plant” (as my grandfather called it) with my father, grandfather or uncles. At the age of thirteen on one of my ride-along visits to the plant, while my father was off checking on something, I managed to go off and explore the shipping area. Having a fleet of tractor-trailers, I discovered the keys in the ignition of one of them. Daringly, I managed to start the engine, figured out how to get it into gear and I was off with the trailer in tow, driving in circles around the yard. As a young boy excited about this new activity, I then became determined to manage this thing of substantial size and noise all by myself and I looked forward to the next weekend to do it all over again. During those formative years, my family continued to involve me in the business. Work at the plant became my primary summer job through high school. My work experiences took me from moving raw materials through the saw mill to loading the finished packaged product onto trailers for delivery throughout the country. I learned and understood what was necessary to manufacture a quality product, yet my interest was with understanding all of the tasks necessary to get product from its origin to the

consumer and how this all happened. I had asked enough questions of my father and the traffic department that when shipping volume spiked, I managed to get pulled off an assembly line and was assigned to assist with invoicing, scheduling and loading trailers. Once of age, I did manage to obtain my class 1 license which meant I could then make deliveries on my own whenever and wherever needed. The furniture was beautiful yet, without recognizing it, I had just ventured into the transportation business. I did not pursue my ongoing education immediately. The Vietnam War was trying to come to an end, my number was drawn and placed on stand-by. I wasn’t sure at the time if my future was at Moosehead MFG. Co. and, if so,

for how long. Yes, education was important to me and my family. My uncle Jim asked me to consider looking at a couple of furniture universities in North Carolina, but I was still trying to figure out who I wanted to be.

As Nixon resigned, I stayed with Moosehead for a couple more years, primarily in the transportation department, just taking in everything I could. I did manage to eventually break away to attend a two year school collecting my degree in Heavy Equipment Technology. I really wanted to understand the engineering aspect of trucks and trailers. Once completed, there remained questions of where I would live and work. I remember going to my grandfather to share my personal confusion

with life’s prospective direction. He told me that there would be no better time than now to go off and explore and that, no matter what I do, ask to be in sales. It was his opinion that sales is where you could get the best working knowledge that you could ever obtain and then

Leading the WayLeading the WayA self-introduction to MMTA’s new Chairman, Chris Huff

Chris HuffDelhaize America

(Hannaford Trucking)MMTA Chairman


you can apply this know-how anywhere. So, I left Maine. I loaded my pick-up truck with my motorcycle, my guitar, my ski equipment, a few dollars and I headed west. After a little bit of being a ski bum, seeing the country and committing to only the occasional low paying part time job, eventfully I ran out of funding and made my way back to Maine. At that point in my life, it was more about location and transportation opportunities and those prospects would not be readily available for me by being located in central Maine. I decided to locate in the vicinity of Bangor, Maine where I did manage to get a position driving for Parkeway Transport. George Parke had established and developed his vision with a fleet of trucks transporting bulk wood chips from local saw mills to paper companies across the state. I was driving, making a living and enjoying every minute of it. In establishing his business, George was the owner, the manager, the fleet manager, the dispatch coordinator, as well as the accounting and human resource departments all by himself. Needless to say, the inside opportunities had not developed just yet at Parkeway. After a year or more and having ants in my pants, I pursued other local transportation organizations such as Coles Express, St. Johnsbury, Sanborn and the like. I remember it was two o’clock in the morning when my phone rang. The voice on the line said “this is Cliff Vining, is this Chris Huff?” I answered in the affirmative. “Do you have a pair of work boots and gloves?” Again, I said yes. “We’ll let’s go, get in here!” After I said “okay” the voice on the other end of the phone hung up.

Now mind you, I have no idea who just called me because

I was sound asleep and, in fact, I think I had just gone to bed. It was then that I realized that I had been called to start work, yet I had no idea what company Cliff Vining worked for or where I had to report. I took a gamble as my preference would be to work for Coles Express and I showed up hoping Cliff Vining’s name was associated with the company. The building was buzzing with activity when I walked into the office for the first time. I told someone my name and they responded with “great to meet you.” They handed me a stack of bills of lading (which must have been four inches thick) and pointed me to a trailer in door 15. “Lets’ see what you can do.” That was my introduction to the LTL business. Coles was a great organization. It was innovative, had a rich history and a cast of characters that truly makes them one of the leading pioneers of this transportation business. My years on the freight docks, delivering and picking up freight throughout Maine and New England, was an education. I was always inquisitive, asking about efficiency and measurements and thinking of other ways the company could be more

effective and efficient. I experimented, practiced and shared my results. Cliff and the Cole family accepted my inquiries and, shortly after the longest teamster strike in history, I moved through operations rapidly and into positions of dispatching, supervision, sales, transportation manager and eventually operating the hub break bulk facility in Portland, Maine. I had twelve years of the bright orange color, working with many of the best minds in the business. Then, as often happens, things changed. The company was acquired and the new organization came with a different operational philosophy and cultural leadership style. I made a change as well.

Editor’s note: When we discussed issues we might want focused on for this month’s Maine Motor Transport News feature, we thought it would be a good idea to introduce the newly-elected MMTA Chairman, Chris Huff. We asked Chris to jot down a few notes on his life and experience in the trucking industry so that members can gain perspective on his qualifications to lead our trucking association.

MMTA Magazine Article

September, 1988


I t h o u g h t t o myself, “this is bri l l iant Chris – y o u h a v e a m o r t g a g e , wife and two y o u n g s o n s and now you’re unemployed”. With the many relationships I was fortunate to have over the years, I got many calls from p e o p l e w h o were concerned about what I would do and where I would land. Many suggested I consider transportation consulting since I did always enjoy transportation problem solving. While I hadn’t always been successful in providing exactly what they wanted, I could almost always find them what they needed. So, I moved in the direction of exploring this opportunity a little more.

On one of my early prospecting visits, I knocked on the door of Ed Thayer, Inc. in Oxford and Ed hired me immediately. I was given free rein to dig into and get involved in many aspects of the operation. We built off their existing customer base by adding more customers, enhanced services and positioned the business operations for the future. Then Hannaford Trucking Co. contacted me. I had reached out to Cliff Vining to say hello. I asked about Virgil Beane and others we had known together over the years. Shortly after that check-in, I received a call from Hannaford. In my travels, I always had a respect for the Hannaford fleet because they had professional drivers, clean, safe equipment and just a great reputation overall. There were a lot of changes taking place in the industry at the time, with companies such as Coles, Sanborn’s, Holmes and others no longer in operation or struggling to survive. If I was going to be in the transportation business, the supermarket business seemed like a great place to be as after all, people do consume food and Hannaford Bros. Co. had the reputation of providing great food choices and unsurpassed service excellence in the industry. I was given the responsibility to oversee the inbound logistics

p r o g r a m and build on it. This was a time when the concept o f fo r wa rd b u y a n d maintaining m a n y w a r e h o u s e locations were n o l o n g e r cost efficient f o r t h e organization because we were moving to the “just in time” method

of procurement. Rail service by that time was all but nonexistent as that mode of transportation was unable to meet the ongoing demand. An idea developed by VP Virgil Beane earlier was to have a percentage of the Hannaford fleet servicing other Maine and new England customers. This was a great fit at that time, allowing the fleet to deliver product to our retail stores and then, for example, pick up a load of paper products at one of many of the paper mills in Maine destined for a point in eastern Pennsylvania. The truck would then schedule a pick-up with a Hannaford vendor coming back to a Hannaford distribution center. That was late 1994 or early 1995. Today, my responsibility is that of Director of Transportation and Logistics Operations for Delhaize America. Six supermarket banners make up Delhaize America including Hannaford, Food Lion, Sweetbay, Harveys, Reid’s and Bottom Dollar Foods which all have a combined population


of approximately 1,600 stores spanning the entire east coast from Maine to Florida and west to Ohio and Kentucky. The Delhaize America fleet consists of 800 tractors with over 1,000

drivers t r a v e l i n g 7 4 , 0 0 0 , 0 0 0 m i l e s a n n u a l l y s e r v i c i n g o u r s t o r e s d a i l y. My connection with the Maine Motor Transportation Association has been many years now as a member, committee member and on the executive committee. Recently, I was approached with and accepted the role of Chairperson. I’m honored that the committee members, my peers in the industry, have asked me to do so. Many before me, including George Parke, Galen Cole, Virgil Beane, Mark Hutchins, Brian Bouchard, Barry Pottle, John Austin, Jim McCurdy and countless others have been there to help lead the association in the interest of truck transportation through the many challenging times on state and federal levels. So much work goes on behind the scenes that often goes unnoticed. Recently, the United States Congress changed the rules allowing heavier vehicles to travel the entire interstate system in Maine for the next 20 years. This significantly reduces the amount of vehicles traveling on our secondary roads and allows trucks to travel in an environment that’s safer and designed for heavier applications. These discussions and debates started almost 30 years ago. Those before me had the foresight, belief and courage to pursue issues such as this that are important to our industry and their leadership has been well documented throughout the MMTA’s history. This will always be part of their legacy. When one considers the trucking industry moves 87% of all commodities in the U.S, trucks are the key link

throughout the entire supply chain. Our compliance with rules and regulations has always been incredibly

important to those in the industry. The association provides

a strong voice for the industry

w i t h

i d e a s and providing

factual data to educate the decis ion

makers when it comes to current and proposed rules for the industry. This truly is an investment for all involved.

We face many challenges in the coming years, including continuous environmental concerns, fuel cost and conservation, safety on our highways, our highway infrastructure, our trucking image, and the extent to which the industry supports our communities every day. Maybe most importantly, I believe we need to continue to focus on investing in the future of our professional drivers and recognize that it is their skill and professionalism that can make all the difference. These are investments worth making. I look forward to my new role and your support with the Maine Motor Transportation Association.


MAINE NEWS MAINE NEWS MAINE NEWS MAINE NEWS MAINE NEWS

Legislative Update(current to 4/20/12)

INdEPENdENT CONTRACTOR OR EMPLOYEE?

It seems like just yesterday when we reported the trucking-specific definition of an independent contractor for workers’ compensation had gone into effect back in 2011. Well, as of the end of 2012, the definition (and the analysis you will need to go through to determine an independent relationship) will change again.

Before getting into the specifics, a little history to clarify how we got here. During the Baldacci administration, and somewhat before that, there was a significant movement to determine which industries were “misclassifying” their workers as independent contractors – the suggestion was that they should be considered employees. The labor community felt there was too much abuse, causing harm to those that would otherwise be protected when it came to insurance, disability and unemployment. The unspoken reality was that widespread independence made it more difficult for the labor unions to organize these trades.

The business community, on the other hand, wanted to establish a clear standard that protects workers who are employees, enables self-employment for workers who want to be legitimate independent contractors, while not interfering with mutually beneficial business practices. This consistent position led to many industries, including the trucking industry, to pursue their own exemption which has led to discrepancies with the way different state agencies treat a situation given the same facts, as well as a lack of predictability within the business community.

A working group was finally established in 2011 with the objective of a unified definition of an independent contractor, which has led us to the most recent and substantial changes. The MMTA participated in this working group for two main reasons; there has been a desire to repeal the current industry-specific exemptions and the fact that our trucking definition for workers’ comp. was set to expire in 2013. We thought it was prudent to contribute to this long-term solution and, if the group was unsuccessful, we would be able to pursue making our definition permanent.

So now we have a new law that is set to go into effect on December 31, 2012 for all industries. The current trucking-specific definition of an independent contractor for workers’ compensation will be repealed on the same date, which also means the trucking-specific Predetermination form (WCB-265) and the Certification Statement will no longer be valid at the end of the year as well. If you choose to use this rebuttable presumption, you will have to go back to the old generic Predetermination form (WCB-261) until a new one is developed.

THE NEW LAWFor both the Maine Workers’ Compensation Board and the Maine Department of Labor, a person who performs services for remuneration is presumed to be an employee unless it can be proven that the person is free from the essential direction and control, both under the person’s contract of service (and in fact) and the person meets specific criteria. The standard, which will be applied uniformly in both the unemployment and workers compensation laws, contains 5 elements that must exist in all situations (the conjunctive part) and 7 elements that may exist but which at least 3 must be present (the disjunctive part).

REQUIRED CRITERIA (all must be met)The person has the essential right to control the means and progress of the work except as to final results;The person is customarily engaged in an independently established trade, occupation, profession or business;The person has the opportunity for profit and loss as a result of the services being performed for the other individual or entity;The person hires and pays the person’s assistants, if any, and, to the extent such assistants are employees, supervises the details of the assistants’ work; andThe person makes the person’s services available to some client or customer community even if the person’s right to do so is voluntarily not exercised or is temporarily restricted.

DISJUNCTIVE CRITERIA (at least 3 of the following 7 criteria must be met)

The person has a substantive investment in the facilities, tools, instruments, materials and knowledge used by the person to complete the work;The person is not required to work exclusively for the other individual or entity;The person is responsible for satisfactory completion of the work and may be held contractually responsible for failure to complete the work;The parties have a contract that defines the relationship and gives contractual rights in the event the contract is terminated by the other individual or entity prior to completion of the work;Payment to the person is based on factors directly related to the work performed and not solely on the amount of time expended by the person;The work is outside the usual course of business for which the service is performed; orThe person has been determined to be an independent contractor by the federal Internal Revenue Service (typically an SS-8 form).

Also included in this new law are clear penalties to deter misclassification. An employer that intentionally or knowingly misclassifies an employee as an independent contractor will be considered to have commits a civil violation for which a fine of not less than $2,000 and not more than $10,000 per violation may be adjudged – in addition to the potential $10,000 fine from the WCB for not having workers’ compensation coverage.

Again, this new law will not become effective until December 31, 2012 and, until then, nothing changes. Leading up to the end of the year, however, we will provide training for our members with the chance for you to ask specific questions about your precise circumstances.

In the meantime, please do not hesitate to let us know if you have any questions.

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WORKERS’ COMPENSATION REFORM PASSESAfter 20 years trying to fix a broken section of the Maine Workers’ Compensation Act, change has finally arrived, albeit a watered-down version of what was originally proposed.

Under Maine’s current law, there is a perverse provision that arbitrarily makes 25% of all partial incapacity claims eligible for lifetime benefits while the other 75% of these claims are capped to receive 10 years of benefits. The threshold for establishing whether a claim is eligible for lifetime benefits or the durational cap is determined by a permanent impairment (PI) rating and it is this rating that gets adjusted every year to capture the 25/75 split. This PI number is one of the more controversial aspects of the workers’ comp. system as it is the number that labor attorneys have to shoot for to significantly increase the value of the claim – whether for longevity of payments or for settlement value. Since 2006, however, the PI has not been agreed upon as the statute requires, which has left unnecessary instability in the system for both injured employees and their employers.

Original versions of WC reform completely eliminated PI and set the duration of partial incapacity benefits at 500 weeks because the national average was somewhere around 460 weeks. To be clear, at no time was there any effort to change total incapacity benefits as this section of the Act is reserved for the most seriously injured and there was also never any suggestion to change the requirement to pay the medical cost of claims for the duration of the claim. The original version of the reform bill, however, was the starting point for the discussion of how best to make changes to the system that would not be a windfall to employers/insurers while still protecting injured workers.

The result is an abundance of changes that will take effect on January 1, 2013:

The PI “split” requiring 25% of all partial incapacity claims to be eligible for lifetime benefits has been eliminated and, for claims between 2006 and the end of 2012, the PI threshold has been set at 12% to avoid further litigation of the issue.The durational benefit cap has been permanently set at 10 years. For those more seriously injured but are not permanently disabled, there may be additional benefits past the 10 year cap only if the following criteria are met:

The injured employee is gainfully employed for at least 12 of the previous 24 months before their benefits expire; andTheir PI rating is greater than 18% (currently at 11.8%); andThey receive less than 65% of their pre-injury average weekly wage during this employment.

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The maximum benefit will go from 90% of the state’s average weekly wage to 100% of the state’s average weekly wage. For all practical purposes, this increases the maximum benefit from $634/week to $704/week for the top wage earners in Maine.Indemnity benefits will be calculated as 2/3 of gross income instead of 80% of the after tax average weekly wage.An appellate division will be added within the current infrastructure of the Workers’ Compensation Board. Currently, the only way to appeal a Hearing Officer’s decision (after appealing to the same Hearing Officer and the WC Board) is to take the case to the Maine Supreme Court where only 4% of all cases appealed to the Maine Law Court are accepted.An extreme financial hardship exception to the 520 week limit is also included.The new law restores the requirement that employees provide notice of injury within 30 days, which was in effect through 1992

and is the standard nationally, rather than the current notice period of 90 days.Emp loyers w i l l be ab le to immediately reduce or terminate benefits when they have received a decision after a hearing allowing the reduction or termination, rather than having to wait for the completion of an appeal by the employee to do so.The new law will also clarify that the statute of limitations bars a petition unless filed within 2 years

after the date of injury or the date the employee's employer files a required first report of injury. This provision addresses the issue of medical only first reports not being required to be filed with the WCB, which has extended the statute of limitations on claims unintentionally.

Despite the many positive developments in this reform, we fear the 18% PI will simply serve as a new target for labor attorneys to shoot for and while it may or may not reduce litigation, we will likely see only a marginal reduction in some of the systemic frictional costs.

It was disappointing to see the political process take over at the 11th hour in the Senate, forcing some unnecessary compromises at the end. We want to thank each of our members who took the time and made the effort to contact their elected officials in the waning days of the legislative session – your calls were extremely effective and they made sure these legislators knew how important the reforms are to the business community.

To be clear, these reforms will be effective starting in 2013 and will impact only prospective claims. Only time will tell how it will all influence workers’ comp. costs.

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MAINE NEWS MAINE NEWS MAINE NEWS MAINE NEWS MAINE NEWS

Legislative Update


MMTA Safety Management Council News & Notes

Submitted by Mary Henrique MMTA SMC Secretary

The Safety Management Council met on February 16, 2012 at the MMTA office in Augusta. The meeting was attended by Safety Directors representing 20 member companies as well as MMTA staff.

Presentation:

The MMTA Workers Compensation Trust was established in 1991 and currently has 78 members. With over 20 years in the Safety profession, Gary Thebarge, MMTA’s Safety and Loss Prevention Specialist presented a power point on the Benefits of a Modified Duty Program. The purpose of a Modified Duty Program is to get the employee back to work as soon as possible. Some of the benefits the employee will get from a modified duty program include allowing them to remain active and productive for the company. Enhances and improves employer/employee communication. It will avoid isolation from fellow workers and they can re-enter the workplace quicker rather than waiting for a release to full duty. The benefits for the employer will able them to monitor the injured employee’s activities, reduce the cost of the claim and what impact it will have on their premiums. There are two types of claims, medical only and lost time. If WC pays out $1.00 in indemnity wages to the employee it reverts to a lost time claim. An employer needs to sit down with the employee to make sure they understand their restrictions, job duties and pay. Then a written modified duty job offer should be sent certified mail for them to sign. If they refuse to sign the modified duty offer, then you need to communicate this to the claims manager. The presentation given by Gary Thebarge is linked to the SMC site of MMTA’s homepage.

Old Business:

Tim Doyle, Vice President, gave an update on the CDL/Medical Card. Compliance began on January 30, 2012 and all CDL drivers will need to be compliant by January 30, 2014. Drivers should carry their medical card with them for the next 2 years. This not a State regulation but one that the FMCSA has put into effect. The forms for Self Certifying can be found on the State of Maine website. This link is on MMTA’s website as well.

Randy DeVault, Training Coordinator, updated the SMC on the HOS changes coming up. The effective date of the final ruling is February 27, 2012 and the compliance date is July 1, 2013. Changes to the 34-hour restarts are that it must include two periods between 1 a.m. - 5 a.m. and may only be used once per week (every 7 days/168 hrs). The other change is rest breaks. A driver may drive only if 8 hours or less have passed since end of driver’s last off-duty period of at least 30 minutes. (HM mandatory “in attendance” time may be included in break if no other duties performed).

New Business:

Steve Ashcroft , Business Manager spoke on the issue with some companies Operating Authority. In November, FMCSA upgraded the licensing and

registration portion of its website to conform with the elimination of the requirement for motor carriers to file mandatory cargo liability insurance (still required for household goods carriers). That upgrade has resulted in a glitch that FMCSA is diligently working to address. As a result of this glitch, some carriers are getting a Notice of Investigation letter via the mail indicating a potential issue with their authority. Carriers have thirty days to respond or their authority may be revoked. Steve encourages carriers to respond to the letter and check the Licensing and Insurance page to ensure that their authority is active.

Randy announced that the Truck Driving Championship and the Technician Skills Competition will be held on May 19th. The Truck Driving Championship will be held at Dysart’s and the Technician Skills Competition will be held at EMMC. Please register your driver’s early so they can be sure to get the manual to review for the written part of the competition. As in the past, judges and volunteers are needed. If you can help out at either of these events please contact Randy. You can register for these events and get more information on the MMTA website. The banquet will be held the same night as the competitions.

Please submit your nominations for driver of the month through the MMTA website. The process has been simplified. Instead of writing a narrative for the driver you just have to answer 5 questions, provide a current MVR and a jpeg photo. This is a great way to say “Thank You” to your driver.

Randy also updated the members on the FMCSA regulation regarding Tank endorsements. Tanks that are permanently or temporarily attached to a vehicle and have a rated capacity of 1,000 gallons or over will be required to have a tank endorsement in addition to HazMat endorsement. The State of Maine cannot adopt this regulation until 2014.

Elections of Officers for 2012 were held: Tom Theriault, Irving Oil was nominated for ChairmanTom was elected ChairmanDavid Littlefield, Clifford W. Perham/Shaw’s for Vice ChairmanDavid was elected Vice ChairmanMary Henrique, Lynch Logistics, Inc, DBA/Central Maine Transport was nominated for SecretaryMary was elected Secretary

The next meeting will be on Thursday, May 17, 2012 at the office in Augusta.

The meeting adjourned at 9:45 am.

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Driver Name:__________________________________

Driver For:___________________________________

Nominated By:_________________________________

# Years Driving:______________________________

# Years With Company:_________________________

# Accident Free Miles:________________________

Interests, Charitable/CivicContributions:________________________________

APRIL2012

MMTA DRIVER OF THE MONTH

www.mmta.com/DOMHartt Trans.

Systems

Gina Winship

Hartt Transportation Systems, Inc.

Rose Rogers

15

4

415,037

Fishing, gardening, walking with her dog

Driver Name:__________________________________

Driver For:___________________________________

Nominated By:_________________________________

# Years Driving:______________________________




MAY2012


www.mmta.com/DOMPottle’sTrans.

Robert Johnson

Pottle’s Transportation, LLC

Sheldon Cote

10

4.5

750,000

Volunteer EMT & Firefighter, scuba diving, camping, hunting, fishing

Driver Name:__________________________________

Driver For:___________________________________

Nominated By:_________________________________

# Years Driving:______________________________




June2012


www.mmta.com/DOMA.E. Robinson

Oil Co.

Jason Lang

A.E. Robinson Oil Company

Megan Chasse/Jamie Robinson

18

6

360,000

Spending time with kids and family, fising and some hunting.

May-June 2012 MMTA Magazine

Documents

Transcript of May-June 2012 MMTA Magazine