The Federal Motor Carrier Safety Administration has delayed implementation of the Commercial Driver’s License Drug and Alcohol Clearinghouse by state motor vehicle licensing agencies for an additional three-years.
The clearinghouse requirements go into effect for everyone else on Jan. 6, 2020. For state licensing agencies that deadline is now Jan. 6, 2023. Only then will they be required to file inquiries within advance of granting licenses to interstate truck and bus drivers.
The American Association of Motor Vehicle Administrators, a trade association representing driver licensing authorities from all 50 states and the District of Columbia, informed FMCSA that the rule failed to address a variety of important operational issues.
FMCSA also asserted that the three-year delay will have no impact on highway safety.
According to the agency, the deadline extension allows it the time to complete work on yet another rulemaking to address states’ access and use of driver-specific information from the clearinghouse.
FMCSA also says the postponement will allow additional time for it to develop an IT platform that will allow the state agencies to electronically request and receive clearinghouse information.
The delay for state agencies does not apply to truck and bus driver employers. As of Jan. 6, 2020, CDL holders’ drug and alcohol testing violations must be reported, and fleets must perform queries for prospective and current driver-employees.
Employers must query the clearinghouse once a year for each driver currently employed, and report drivers’ drug and alcohol violations within three business days after the employer learns of them.
<h3>NJ Seeks $650 Mil From Uber</h3>
New Jersey has hit Uber with an assessment for $650 million in back-due unemployment and disability insurance contributions, holding that its drivers are employees, not contractors.
N.J. Labor Commissioner Robert Asaro-Angelo says the state “is cracking down on employee misclassification because it stifles our workforce and inflicts a huge financial toll on our economy.”
The ride share service is expected to fight the assessment in the court system, although at this point its prospects of succeeding don’t look good.
“We are challenging this preliminary but incorrect determination, because drivers are independent contractors in New Jersey and elsewhere,” said Uber spokeswoman Alix Anfang.
But no matter what it does, the company is unlikely to prevail, according to attorney Mark E. Tabakman of the law firm of Fox Rothschild LLP.
Even if the NJDOL agrees to cut the assessments down to nominal, nuisance value amounts, Uber would be compelled to treat all of its New Jersey drivers as statutory employees going forward, something the company will never do voluntarily.
He says a further cruel irony awaits Uber, or any firm pursuing the same course. If it cannot cut an acceptable deal through negotiations, the case will go to trial before an Administrative Law Judge.
“Even if the company completely prevails before the ALJ, the Commissioner of Labor, the head of the agency that the company has just beaten, then has 45 days to sustain, modify or reverse the ALJ decision,” Tabakman points out. “Any bets as to which option the commissioner would choose?”
Uber then could decide to pursue the case through the New Jersey court system. However, those courts greatly defer to positions held by state agencies.
The NJ state legislature is expected to pass a bill this year like California’s law that makes it nearly impossible to classify a workers as a contractor.
<h3>EEOC Must Pay CRST $3.3 Mil</h3>
A federal appeals court ordered the Equal Economic Opportunity Commission to pay CRST Van Expedited $3.3 million in attorneys’ fees for pursuing a legally frivolous claim against the trucking company.
“This case continues to serve as a warning to the EEOC to avoid rushing through its mandatory pre-suit duties in an effort to catch employers off-guard in litigating claims,” say attorneys Andrew Welker and Gerald. Maatman, Jr. of the Seyfarth Shaw law firm. “When the EEOC engages in these tactics, this ruling can be used by employers to hold the agency accountable.”
EEOC had sued CRST on behalf of a group of about 270 female employees, claiming that the company was responsible for severe and pervasive sexual harassment, and that it subjected its female employees to a hostile work environment.
Finding that CRST was the prevailing party and the EEOC had failed to satisfy its pre-suit obligations, a district court entered an attorneys’ fee sanction of nearly $4.7 million against the commission.
On appeal, the Eighth Circuit Court of Appeals affirmed the dismissal of all claims except those pertaining to two women (one later settled and the other was dismissed) and vacated the fee award, holding CRST was no longer the “prevailing party” because the EEOC now had active claims.
The U.S. Supreme Court disagreed and sent the case back to the Eighth Circuit to figure the attorneys’ fees due CRST on an individual cases basis, which ended with EEOC being hit with the $3.3 million.
“Even despite the reduction in the attorneys’ fees award from $4.7 million to $3.3 million, the Eighth Circuit’s ruling is a stunning victory,” the Seyfarth Shaw attorneys conclude.
