MOTOR CARRIERS (ENTRY LEVEL DRIVER CDL STANDARDS) / Federal Motor Carrier Safety Administration (FMCSA) had in 2007 issued notice of proposed rulemaking, “that proposed new entry-level driver training standards for individuals applying for a commercial driver’s license (CDL) to operate commercial motor vehicles (CMVs) in interstate commerce”. FMCSA hereby withdraws that proposal because: MAP-21 instructs FMCSA to consider new entry level CDL requirements; so FMCSA thinks it best to start on this issue anew.

“Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators” 

Notice of Withdrawal. September 19, 2013.

Lesson #1: The FMCSA sees this issue as very consequential, not least because Congress recently in MAP-21 saw fit to put it on FMCSA’s agenda anew. 

Lesson #2: Because FMCSA had taken an earlier stab at this question pre-MAP-21, FMCSA responded to MAP-21 by taking a completely fresh effort at the minimum training requirements for entry-level CDL drivers.

MOTOR CARRIER (FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION) / Federal Motor Carrier Safety Administration proposes new template for medical examination report to be used by physicians that are certified by the FMCSA to perform medical examinations of commercial motor carrier drivers.

“Medical Examiner’s Certification Integration.”

May 10, 2013. Notice of Proposed Rulemaking.

See FMCSA announcement here.  

“FMCSA proposes to require certified medical examiners (MEs) performing physical examinations on drivers of commercial motor vehicles (CMV) to use a newly developed Medical Examination Report (MER) Form, MCSA-5875, in place of the current MER Form and to use Form MCSA-5876 for the medical examiner’s certificate (MEC). In addition, MEs would be required to report results of all completed commercial drivers’ physical examinations (including the results of examinations where the driver was found not to be qualified) to FMCSA by close of business on the day of the examination. This would include all CMV drivers who are required to be medically certified to operate in interstate commerce, not only those who hold or apply for commercial learner’s permits (CLP) or commercial driver’s licenses (CDL). Reporting of this information would be accomplished, by completing a CMV Driver Medical Examination Results Form, MCSA-5850, via their individual password-protected National Registry web account. For holders of CDLs and CLPs, FMCSA also proposes to electronically transmit driver identification, examination results, and restriction information from the National Registry system to the State Driver Licensing Agencies (SDLAs). This includes those that have been voided by FMCSA because it finds that an ME has certified a driver who does not meet the physical certification standards. The Agency would also transmit medical variance information (exemptions, skills performance evaluation certificates and grandfathered exemptions) for all CMV drivers electronically to the SDLAs. Transmission of this information would allow authorized State and Federal enforcement officials to be able to view the most current and accurate information regarding the medical status of the CMV driver, all information on the MEC, and the medical variance information (as defined above) to include the issued and expiration dates.”

MOTOR CARRIERS (COMMERCIAL DRIVER LICENSE) / The Federal Motor Carrier Safety Administration issues a final rule that amends its commercial driver’s license (CDL) rules to eliminate the requirement for drivers to notify the State licensing agency that issued their commercial learner’s permit (CLP) or CDL of out-of-State traffic convictions when those convictions occur in States that have a certified CDL program in substantial compliance with FMCSA’s rules.

“Self Reporting of Out-of-State Convictions.”

April 26, 2013. Final Rule.

NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION (TRUCK DRIVERS) / National Highway Traffic Safety Administration issues nonbinding, voluntary Driver Distraction Guidelines (NHTSA Guidelines) to promote safety by discouraging the introduction of excessively distracting devices in vehicles.

“Visual-Manual NHTSA Driver Distraction Guidelines for In-Vehicle Electronic Devices”

April 26, 2013. Notice of Federal Guidelines

“This notice announces the issuance of the final version of the first phase of the NHTSA Guidelines. This first phase applies to original equipment (OE) in-vehicle electronic devices used by the driver to perform secondary tasks (communications, entertainment, information gathering, navigation tasks, etc. are considered secondary tasks) through visual-manual means (i.e., the driver looks at a device, manipulates a device-related control with his or her hand, and/or watches for visual feedback). 

“The NHTSA Guidelines list certain secondary tasks believed by the agency to interfere inherently with a driver’s ability to safely control the vehicle. The NHTSA Guidelines recommend that in-vehicle devices be designed so that they cannot be used by the driver to perform these inherently distracting secondary tasks while driving. For all other visual-manual secondary tasks, the NHTSA Guidelines specify a test method for measuring eye glance behavior during those tasks. Eye glance metrics are compared to acceptance criteria to evaluate whether a task interferes too much with driver attention, rendering it unsuitable for a driver to perform while driving. If a task does not meet the acceptance criteria, the NHTSA Guidelines recommend that the task be made inaccessible for performance by the driver while driving. In addition, the NHTSA Guidelines contain several recommendations to limit and reduce the potential for distraction associated with the use of OE in-vehicle electronic devices.” 

Case Study: The Ongoing Battle Over “Employee Misclassification” versus the Right to Act as Independent Contractor. There is a lot to keep track of and a lot to understand – but unless your have no other choice or FedEx type resources try to stay away from such situations altogether if possible. COMMENT: This seems to be a lot more about labor union politics at the federal and state administrative level than about regulation according to developed principles of independent contractor versus employee. And unless you have a deep pocket like FedEx (and corresponding economic commitment to the independent contractor business model like FedEx Ground) – this battle is something to avoid at (almost) all costs.

Last week the Wall Street Journal published a news feature on what some in the U.S. Department of Labor and similar officials in state labor agencies refer to as “employee misclassification”. (Wall Street Journal Monday March 4, 2013 story available here [partial access free; full access requires subscription]).

The news feature cites a federal decision upholding the right of Gate Guard Services, L.P. to hire contractors to serve as gate attendants at energy extraction and construction sites. Gate Guard Services L.P. v. Solis, Slip copy, 2013 WL 593418 (U.S. District Court for the Northern District of Texas, February 13, 2013). Free copy available here.

Overturning a U.S. Department of Labor assessment of $6 million for what that Department had characterized as employee “misclassification” – because the court ruled that the workers in question were in fact independent contractors under applicable legal standards.

On the other hand, last week saw a victory in this area for State of California Labor Commissioner Julie A. Su in which a California Superior Court held that Port of Long Beach truck drivers working for Seacon Logix were “misclassified” employees as the department contended – not independent contractor as Seacon Logix argued. This court case was an appeal from a ruling of the California Department of Industrial Relations’ Division of Labor Standards Enforcement (Labor Commissioner’s Office). (I cannot find a copy of any order or opinion on WestLaw or elsewhere on the web – but attached please find a copy of the Labor Commissioner’s press release).

Legal Take-away:

The employee “misclassification” battle continues.

My own rule of thumb is that if you find yourself dealing with either the U.S. Department of Labor or authorities in a state like California, Minnesota, New York or Massachusetts – adherence to traditional independent contractor principles in the last few decades’ case law will not suffice. In such settings it is most prudent to assume that the new organized labor orthodoxy on this has supplanted what is in the case law.

To the extent you have the resources to get to court then such case law might well work – as in Gate Guard Services L.P. v. Solis. Also, FedEx Ground has had some success in this field – again in the courts.

But if you can avoid becoming a U.S. Department of Labor target and place your business operations in a so-called “Red” or Right-to-Work state then the more traditional application of “independent contractor” may prevail. Perhaps.

But for the long haul in transportation the real action here is independent contractor versus employee in multi-district litigation consolidated in the U.S. District Court for the Northern District of Indiana before Judge Robert L. Miller, Jr., its Chief Judge. E.g., In re FedEx Ground Package System, Inc., Employment Practices Litigation, 283 F.R.D. 427 (U.S. District Court for the Northern District of Indiana, April 24, 2012).

Practical Take-away:

If you are FedEx it may well be worth it to fight these battles in court and in the labor departments of the states.

But otherwise I would try to avoid getting into this area in the first place if at all feasible. Unless you have a soft spot in your heart and budget for lawyers.

MOTOR CARRIER (FEDERAL PREEMPTION & “EMPLOYER” DEFINITION) / The Federal Motor Carrier Safety Act – including its definition of “employer” – did not preempt state workers compensation law because “the purposes of the two statutes are clearly distinct”.

Truck driver injured on the job when consignee’s employee drove a forklift over driver’s foot while driver stood on loading dock. First, brought successful claim under Kentucky workers compensation law against his motor carrier-employer, then brought the subject tort suit against consignee and consignee’s parent (diversity jurisdiction). In holding Kentucky workers compensation law provided exclusive relief that precluded the subject tort suit the court ruled: Congress had not, “intended] the [Federal Motor Carrier Safety Act] to define ‘employer’ for the purposes of workers’ compensation laws” – therefore it did not preempt Kentucky workers compensation law.

Black v. Dixie Consumer Products, LLC, Slip copy, 2013 WL 645954 (U.S. Court of Appeals for the 6th Circuit, February 22, 2013). Free copy available here.

“B. Preemption by the Motor Carrier Safety Act

“Black also asserts that the provisions defining “employer” within the Federal Motor Carrier Safety Act (FMCSA) preempt the classification of Georgia-Pacific and Dixie as statutory employers under the KWCA.

“The FMCSA states that the primary purpose of the legislation is:

(1) to promote the safe operation of commercial motor vehicles; (2) to minimize dangers to the health of operators of commercial motor vehicles and other employees whose employment directly affects motor carrier safety; and (3) to ensure increased compliance with traffic laws and with the commercial motor vehicle safety and health regulations and standards prescribed and orders issued under this chapter. 49 U.S.C. § 31131(a). The statute provides, inter alia, that an “employer” is “a person engaged in a business affecting interstate commerce that owns or leases a commercial motor vehicle in connection with that business, or assigns an employee to operate it,” 49 U.S.C. § 31132(3)(A), and continues to enumerate various duties of employers with respect to the safety of motor vehicles and their operators.

“When considering federal preemption of state law, this court must begin “with the traditional presumption . . . that Congress did not intend to displace state law . . . unless that was the clear and manifest purpose of Congress.” Interstate Towing Ass’n, Inc. v. City of Cincinnati, 6 F.3d 1154, 1161 (6th Cir. 1993) (citations and internal quotations omitted). “In no field has [this] deference to state regulation been greater than that of highway safety regulation.” Id. at 1162. Further, preemption of state authority occurs only in limited cases: (1) where Congress preempts state law in express terms; (2) when Congress creates a regulatory scheme “so pervasive as to make reasonable the inference that Congress left no room to supplement it”; or (3) where “state law is preempted to the extent that it actually conflicts with federal law.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 203-04 (1983).

“Here, the FMCSA did not expressly preempt the Kentucky workers’ compensation statute, and Black [Plaintiff] does not allege any actual conflict between the federal and state laws. Rather, Black claims that the FMCSA is a “comprehensive scheme for the regulation of commercial motor vehicle safety,” which was intended to “fully occupy the parameters of motor carrier employment.”

“However, Black’s argument is without merit. First, there is no indication that Congress intended the FMCSA to preempt state workers’ compensation statutes where the purposes of the two statutes are clearly distinct. The primary purpose of the KWCA is to ensure that workers’ compensation benefits are available to injured employees and thus requires contractors to assume responsibility for the provision of workers’ compensation benefits where the subcontractor has otherwise failed to do so. In contrast, the FMCSA was enacted specifically to promote the safety of commercial motor vehicles and their operators and accordingly sets forth detailed safety and health standards for those operators. There is simply no indication that the FMCSA, a statute intended to promote commercial motor vehicle safety, should preempt state legislation regarding the provision of workers’ compensation benefits.

“Black further argues that Georgia-Pacific and Dixie should be required to comply with the FMCSA before they may be considered “employers” under the KWCA. However, there is no indication that a classification of Georgia-Pacific or Dixie as an “employer” under the FMCSA should have any bearing on its classification, if any, under the KWCA, or that Congress intended the FMCSA to define “employer” for the purposes of workers’ compensation laws. The fact that Dixie and Georgia-Pacific can be classified as employers for the purpose of one statute, but not the other, is of no consequence.”

UPCOMING: MOTOR CARRIER & FMCSA / Do Mexico-domiciled motor carriers under the 1991 NAFTA U.S.-Mexico memorandum of understanding have to comply with 2005 Safety-LU federal statute by having their truck drivers medically certified in accordance with that 2005 statute’s upgraded standards?

Before the U.S. Court of Appeals, District of Columbia Circuit

OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION, INC., Petitioner, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Federal Motor Carrier Safety Administration, et al.

12-1264

Pending Appeal:

Petition for Review of an Order of the Federal Motor Carrier Safety Administration

Petitioner’s Reply Brief at 2012 WL 6018779 (December 3, 2012).

How Appellant-U.S. Competitor Describes the Case: Continue reading