By: Michele Haydel Gehrke, Esq.
Two recent developments for trucking employers could impact their operations and employee relations. The first is a proposed rule by the Department of Transportation’s Federal Motor Carrier Safety Administration issued February 20, 2014 that would create a national clearinghouse of the drug and alcohol testing histories for truckers and bus drivers that prospective employers would be required to check prior to making hiring decisions.
The clearinghouse would serve as a central depository for a driver’s positive drug and alcohol test results, as well as any refusals to test. Beyond the requirement to check the database prior to hiring any new drivers, employers would also be required to check records for current employees every year. Employers also have the duty to report any positive drug or alcohol test results, any adulterated samples or refusals to test, and actual knowledge of any driver citations for driving under the influence.
The goal of the proposed rule is to improve safety by helping employers identify drivers with clean records. The clearinghouse is being established to comply with the Moving Ahead for Progress in the 21st Century Act (H.R. 4348), which was signed into law in July 2012 and requires the Secretary of Transportation to “establish a national clearinghouse for controlled substance and alcohol test results of commercial motor vehicle operators.” The public has until April 21, 2014 to comment on the proposed rule.
The second development to watch for transportation employers is two cases pending before the Ninth Circuit Court of Appeals regarding whether the Federal Aviation Administration Authorization Act (“FAAAA”) preempts California’s meal and rest period requirements for drivers. On February 18, 2014, the United States filed two similar amicus curiae briefs in the pending cases, Dilts v. Penske Logistics, LLC and Campbell v. Vitran Express, Inc., arguing that the FAAAA does not preempt California’s meal and rest break requirements because such laws are “…squarely within the states’ traditional power to regulate the employment relationship and to protect worker health and safety.” The government further argued that these laws are of “longstanding, general applicability” and do “not reflect any state effort to regular motor carriers directly.” The government argued that its view on the lack of a preemptive effect on such laws is entitled to deference.
The FAAAA prohibits states from enacting or enforcing laws related to a price, route, or service of a motor carrier. In trying to defeat claims for meal and rest period violations under California law, trucking employers have argued that the FAAAA preempts state law because the requirements have a direct and/or indirect impact on prices, services, or routes since employers have to schedule employees’ routes to take into account the break requirements.
The cases are set for oral argument before the same Ninth Circuit panel on March 3, 2014.
Both of these legal developments have broad implications for transportation employers, and will be closely watched by the trucking industry. We will continue to monitor and report on these developments as events unfold.