Regulatory and Legislative Update - September 2022

Contents

FMCSA has extended its emergency declaration regarding COVID-19 through October 15, 2022. For the latest version and other guidance related to COVID-19 is available at www.fmcsa.dot.gov/COVID-19. Note that use of the declaration now requires monthly reporting by carriers.

Regulation and Enforcement

• NLRB proposes joint-employer rule to undo Trump-era rule
• Trucking Alliance seeks exemption for including hair testing results in clearinghouse
• FMCSA seeks comments on use and benefits of COVID enforcement relief
• ELDorado ELD removed from list of registered ELDs
• FMCSA names members of Women in Trucking Advisory Board
• Community colleges receive funds to train veterans as truck drivers
• Small carrier seeks HOS exemption to deliver dry and bulk food grade products
• FMCSA reaffirms denial of driver training exemption for UPS
• ELD exemption renewed for short-term truck rentals

Courts

• Court formally dissolves AB 5 injunction; case to proceed on other grounds

Advocacy and Comment

Regulation and Enforcement

NLRB proposes joint-employer rule to undo Trump-era rule

The National Labor Relations Board has issued a notice of proposed rulemaking that would make it easier for workers to claim joint employment, reversing a February 2020 rule that made it more difficult for workers to make such a claim. The current rule states that employees could only claim to be employed by companies holding “substantial, direct and immediate control” over their employment. The proposal would loosen that standard to include employers that exercised such control over essential terms and conditions “directly or indirectly.”

Under the proposed rule, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment, and work rules. The NLRB proposal, therefore, would make it easier for employees of contractors or staffing firms. In announcing the proposal, NLRB said the proposal would ground the joint-employer standard in established common-law agency principles consistent with board precedent and guidance from the U.S. Court of Appeals for the District of Columbia Circuit. The proposal was advanced by a 3-2 vote of the board.

Comments on the NLRB proposal are due November 7. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-19181. Comments replying to comments submitted during the initial comment period must be received by the Board on or before November 21.

Trucking Alliance seeks exemption for including hair testing results in clearinghouse

FMCSA is requesting comments by September 23 on an application from The Trucking Alliance – a group representing 11 mostly large trucking companies – for an exemption to amend the definition of actual knowledge of drug us to include the employer’s knowledge of a driver’s positive hair test. Because the Department of Health and Human Services has yet to clear hair testing as an alternative to urine testing, hair test results cannot be reported to the drug and alcohol clearinghouse. In the Federal Register notice, FMCSA declared that it lacks statutory authority to grant the Trucking Alliance’s requested exemption until HHS amends its mandatory guidelines, but the agency said it is requesting public comment on the application as required by statute. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-18257.

FMCSA seeks comments on use and benefits of COVID enforcement relief

FMCSA is seeking comments by September 21 on the extent to which motor carriers currently rely on the COVID-19 emergency declaration and whether there has been any impact on safety. The agency has extended the emergency declaration through October 15, but it has signaled that it is at least questioning whether the declaration is still necessary.

Last September, FMCSA has asked carriers to report on the number of trips conducted under the declaration and the commodities transported. Based on a review of the carriers’ self-reported information, the primary categories transported are (1) food, paper, and other groceries for emergency restocking of distribution centers or stores; and (2) livestock and livestock feed. Meanwhile, two categories that have seen usage drop by almost 50% between October 2021 and July 2022 were (1) medical supplies and equipment related to the testing, diagnosis, and treatment of COVID-19; and (2) supplies and equipment necessary for community safety, sanitation, and prevention of community transmission of COVID-19. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-19304.

ELDorado ELD removed from list of registered ELDs

FMCSA has removed ELDorado ELD from the list of registered electronic logging devices (ELD) and placed it on the revoked devices list do to the company’s failure to meet the minimum requirements. The revocation is effective September 7. Carriers most immediately discontinue using the ElDorado ELD and revert to paper logs or logging software to record hours of service and must replace the device with a compliant ELD by November 7. The list of registered devices is available at https://eld.fmcsa.dot.gov/List.

FMCSA names members of Women of Trucking Advisory Board

FMCSA in late August announced the appointment of members to the Women of Trucking Advisory Board (WOTAB), which was established by last year's infrastructure package to encourage the recruitment, retention, support, and safety of female commercial motor vehicle (CMV) drivers. The WOTAB will provide recommendations to FMCSA. For the list of WOTAB members, visit https://www.fmcsa.dot.gov/advisory-committees/wotab/wotab-members.

Community colleges receive funds to train veterans as truck drivers

FMCSA has awarded $3.1 million to community colleges and training institutes through the Commercial Motor Vehicle Operator Safety Training (CMVOST) grant program. Grants will assist current and former members of the Armed Forces who want to pursue careers in trucking to get commercial driver’s licenses (CDLs) and the training they need to enter the profession. Changes to the program in fiscal 2022 allowed educational institutions to apply for funds without providing a local match. For a list of colleges receiving grants, visit https://www.fmcsa.dot.gov/mission/grants/cmvost-grant-recommendation-summaries.

Small carrier seeks HOS exemption to deliver dry and bulk food grade products

FMCSA is requesting comments by October 3 on an application from Flat Top Transport LLC, a nine-truck carrier based in Holland, Michigan, for a four-month exemption from the hours-of-service regulations for “immediate and emergency delivery of dry and bulk food grade products to locations that supply stores and distribution centers nationally.” The carrier said that its main focus would be food-grade flour, corn meal, and salts used for the production of cereals, baked goods, canned goods, and meat processing. It said tight availability of those products is threatening food chain supply and producing shutdowns. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-18935.

FMCSA reaffirms denial of driver training exemption for UPS

FMCSA on reconsideration has again denied an application by United Parcel Service for an exemption from a provision in the entry-level driver training rule that requires two years of experience for training instructors. UPS argued that its process of preparing driver trainers exceeds any skill set gained merely by operating a tractor-trailer for two years. FMCSA said it has determined that the application lacked evidence that UPS’ alternative would ensure that an equivalent level of safety or greater would be achieved. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-19133.

ELD exemption renewed for short-term truck rentals

FMCSA has renewed, subject to conditions, the Truck Renting and Leasing Association’s exemption from the ELD installation and use requirements in situations where driver of property-carrying CMVs are rented for 8 days or less, regardless of reason. Drivers remain subject to the standard hours-of-service limits and must maintain a paper record of duty status (RODS) if required. For the Federal Register notice, visit https://www.federalregister.gov/d/2022-19556.

Courts

Court formally dissolves AB 5 injunction; case to proceed on other grounds

U.S. District Judge Roger Benitez on August 29 officially implemented the U.S. Court of Appeals for the Ninth Circuit’s mandate overturning his preliminary injunction against enforcement of AB 5 against motor carriers. The order was a formality after the U.S. Supreme Court declined to review the appeals court’s decision.

Although the California Trucking Association and other plaintiffs in the case no longer can argue that the Federal Aviation Administration Authorization Act (FAAAA) preempts AB 5, they originally had argued other grounds for the law’s application to trucking. Because the judge had granted the preliminary injunction on FAAAA grounds, he did not consider the plaintiffs’ argument that California was barred from enforcing AB 5 due to their dormant Commerce Clause claim. The court now will consider that claim, giving plaintiffs until October 11 to file a renewed motion for a preliminary injunction. However, nothing prevents California from enforcing AB 5 on trucking in the interim.

Advocacy and Comment

NLRB’s proposed new rule could increase liability for carriers using fleet owners

Under the new proposed National Labor Relations Board rule, companies across industries could be held responsible for their contractor’s violation of labor laws. The proposed rule could have a far-reaching effect on franchisees, agents of all types and in particular fleets and owner operators which employ their own drivers and in turn lease their equipment with drivers to licensed carriers under the truth in leasing regulations.

The proposed “Co-Employer” rule could be used to facilitate collective bargaining and eliminate any barrier to tagging mega carriers with employee taxes and benefits in the event their independent contractors fail to comply or otherwise default.

Unfortunately, this new proposed rule tracks other pending administrative actions before the Department of Labor which evidence a partisan agenda that affects the opportunities currently available to small businessmen, and in our industry, owner operators in particular. ATRI’s recent studies show an overwhelming preference of independent contractors for the freedom of dispatch and entrepreneurial opportunities the independent contractor model provides.

As noted before, trucking is a unique industry which has traditionally enjoyed a carve-out for independent contractors under federal regulation. Changes in labor laws could de-incentivize entrepreneurial opportunities and result in less, not more, trucks and drivers, as the ATRI study suggests. Under the administrative process, small businesses have the opportunity to be heard and must be considered in promulgating any new rule. Now, before the mid-term elections, is the time for the industry to make clear to regulators that eliminating the independent contractor model and facilitating collective bargaining is against public policy and will exacerbate, not facilitate, the recruitment of more drivers.