On Sept. 18, 2019, California Governor Gavin Newsom signed bill AB5 into law that will make it more difficult for companies to classify people who work for them as independent contractors with the new ABC test.
Under the ABC Test, a worker is presumed to be an employee unless the employer can show that all three of the following “prongs” or conditions are satisfied:
- the worker is free from the control and direction of the hiring entity in connection with the performance of the work,
- the worker performs work that is outside the usual course of the hiring entity’s business, and
- the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
Hours before the law was to take effect Jan. 2020, a federal judge issued a temporary restraining order blocking the state from enforcing it upon truck drivers.
Days later, a hearing on the trucking group’s request for a preliminary injunction was set and the plaintiffs can argue that they have carried their burden for purposes of emergency relief to show:
- that they are likely to succeed on the merits,
- likely to suffer irreparable harm in the absence of relief,
- that the balance of equities tips in their favor, and
- that their requested relief is in the public interest.
Fast forward more than a year to May 2021 and a three-judge panel of the Ninth Circuit Court of Appeals has struck down a lower court’s injunction against the application of the California’s AB5 contractor law and its ABC test to trucking.
The California Trucking Association has 14 days to seek rehearing, which should be expected on or before May 12. If this request is denied, or if the rehearing fails to change the view of the court, it will be just seven days before the injunction lifts.
The United States Supreme Court on November 15th invited the Solicitor General to file a brief expressing the federal government’s views on whether the Supreme Court should hear California Trucking Association’s suit claiming federal law preempts California’s AB 5 for the trucking industry.
The injunction should remain in place while SCOTUS awaits the Solicitor General’s brief.
More recently, the Supreme Court of the United States declined to hear the first AB5 case from carrier Cal Cartage on October 4, 2021, leaving in place a split in authority regarding whether states can change the rules regarding how truckers are treated.
The next step will be CTA’s case at the U.S. Supreme Court that relies on slightly different arguments and factual statements than Cal Cartage case.
How AB5 affects the trucking industry in California and nearby states
To describe the situation, let us look at port truckers in California. There are around 13,000 truckers regularly serving the ports of Los Angeles and Long Beach. However, only a few hundred are classified as employees.
The others are owner-operators who traditionally:
- lease their rigs from trucking companies,
- drive under those companies’ permits, and
- rely on them for work assignments.
These owner-operators are paid by the load and get a 1099 independent contractor tax form at the end of the year.
While this is a popular business model, there are some who abuse this relationship. For example, to meet the state’s strict clean-air regulations, trucking companies forced drivers to purchase new trucks beginning in 2008 rather than assume the expense. Many drivers, who also pay for diesel fuel, repairs, and insurance, fell into debt as they worked overtime to pay off huge loans for their trucks. If they missed payments, some companies reclaimed the trucks and fired the drivers, seizing their equity.
The new AB5 law would basically require carriers to hire the independent contractors and pay them health insurance and other employee benefits.
Interested In New Hire Services?
It is not just California carriers that must deal with the law’s ABC test B prong, which requires carriers and contractors to be in essentially separate areas of business. Carriers across the state’s border that deliver inside California will be required to meet this B prong as well.
Today, the carriers that have been taking the “wait and see” approach on the law and the court’s process are now facing a near-term reality that the independent contractor system might not be possible and will have to face an increase in costs to hire the drivers.
Other carriers have been cutting ties with California as the cost of doing business in the state are greater than the reward and pull out of any California operations to shield themselves from the impact of the AB5 law.
CNS can help fleets with our new driver hire program
If AB5 does not include a trucking exemption, then there will be a flood of independent carriers going through a new hire process. There are a lot of rules around the hiring process, not limited to drug testing, CDL Clearinghouse queries, compliant DQ file process, and more.
To get these drivers on the road fast, Compliance Navigation Specialists has developed a new hire program that will streamline your hiring process.
Our New Hire service includes the following:
- Tailor Drive Qualification file (paper) or Online Tailored Driver Qualification File (Paperless)
- Initial Audit
- Previous employer inquires completed on your behalf
- Initial Motor Vehicle Report (MVR)
- Pre-Screening program report (PSP)
- Online Record Retention
- Pre-employment drug screening verification
- Doctor on medical card verification
- FMCSA clearinghouse full query
- Driver Qualification
- New Hire phone support
- and more
Accuracy, organization and diligence are crucial to keeping your files in order and ready for an audit at a moment’s notice. Our DQF Management System is completely customizable to your individual needs. The consultants at CNS stay in communication with you regarding document updating, as well as offering comprehensive reports upon request, and reports of routine audits by our own DQF Auditors.
Our driver management and new hire management services will exceed your expectations. You focus on trucking, and let us focus on your driver file management. If you have a fleet of drivers, we assure you that you can’t do this cheaper in-house.
We will ensure that your information is collected, current, and complete. In addition, we will continue to update your files as required, and let you know when an updated piece of information is needed.
Driver File Management
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The total number of DOT audits and off-site audits are expected to increase 50% in 2021, compared to last year.
The Federal Motor Carrier Safety Administration and its’ state partners have struggled to physically audit a significant number of motor carriers each year. This led them to develop the Compliance, Safety, Accountability program and Safety Management System that evaluates the safety of the estimated 500,000 active motor carriers it regulates.
As this program continues to evolve, with the delayed Item Response Theory (IRT) approach to identifying at-risk carriers for intervention, the FMCSA has been experimenting with off-site audits for eligible new entrant motor carriers.
While the first operational test of these off-site audits began nearly a decade ago, there has finally been more off-site audits than on-site audits in 2020. While off-site audits were ramped up during the COVID pandemic, the last few years has seen significant trends and they will only continue to increase moving forward.
Off-Site audits rise as FMCSA expands off-site comprehensive reviews
Last year the FMCSA performed nearly 11,500 audits with 5,750 of them being performed off-site. As of the end of May 2021, they have already conducted close to 3,500 off-site reviews and approximately 4,000 on-site reviews over that same period. At this pace, the agency’s investigators are on track to perform nearly 8,500 off-site audits by the end of the year, and around 18,000 audits overall.
While off-site audits were reserved for less intensive circumstances, such as new entrant safety audits and focused reviews which involved a lower volume of paperwork, the off-site review process has become more streamlined and reliable.
This has led to the FMCSA to publish a final rule last month that includes a path to rely more heavily on comprehensive off-site audits.
The amendments, by removing the word ‘on-site’ from the definitions of Compliance review and Roadability review in § 385.3, allows FMCSA and State personnel to conduct off-site compliance reviews of motor carriers following the same safety fitness determination criteria used in on-site compliance reviews.
How do you prepare for digital off-site reviews?
While one of the biggest benefits of off-site audits to both the FMCSA and carriers is the paperwork reduction, you need to be prepared to upload compliance documentation to the agency on short notice.
This includes your:
- driver qualification,
- drug and alcohol testing,
- vehicle maintenance files,
- proof of insurance,
- accident register, and
- other compliance documents.
In off-site audits, the FMCSA requires carriers to upload records through their Safety Measurement System account. This means that if you maintain hard copies of the requested records, you will first have to digitize them to transfer them to the investigator.
Large carriers and owner-operators alike should store these files electronically, instead of the traditional filing cabinet or paper binder, and keep them up to date and compliant.
As the FMCSA continues to rely more heavily on off-site audits, carriers need to adapt. This may mean having an outside representative perform a mock audit to reveal any DOT compliance gaps you may have.
The best tip we can provide carriers is to exceed, and not “just meet”, the DOT regulations.
Need Audit Help Now Or Want To Go Digital With DOT Compliance?
At CNS, our DOT Compliance Programs focus on Proactive Safety Management (PSM), a mindset that will ensure your fleet’s safety and compliance is always in order and ahead of the FMCSA.
We offer several different program levels depending on the size of your organization, however our PSM Motor Carrier Program is the more common when considering affordability and the comprehensiveness of DOT compliance assistance.
Our PSM Motor Carrier Program includes:
- DOT audit support
- ELD management
- Driver Qualification File Management
- New driver on-boarding
- Driver safety meetings
- CSA score management
- Policies and handbooks
- Vehicle maintenance
- and more
How to set up a Driver Qualification File?
In industries like trucking, construction and distribution, hiring a commercial motor vehicle driver requires companies to follow strict Federal Motor Carrier Safety Administration (FMCSA) guidelines. The regulations under 49 CFR Part 391 lists requirements for Driver Qualification File (DQF) Management.
What is a Driver Qualification File or DQ File?
Driver Qualification Files are simply the driver’s personnel file that includes information of past employment, drug testing history, motor vehicle records, credit history, and more.
Failure to maintain these driver qualification file basics can lead to CSA violations, fines, an Unsatisfactory Safety Rating, and Out-of-Service Orders. In 2019, there were over 3,500 enforcement cases alone that averaged over $6,600 in fines per company, with the average cost of a Driver Qualification File violation fine over $600 per fine.
It is important to understand what the common DQ file violations are and how to prevent them from happening in your company’s driver qualification file management process.
Mistake #1: Not having a Driver Qualification File when required
When is a driver qualification file required?
A driver qualification file, according to 49 CFR 390.5, is required for anyone who operates a Commercial Motor Vehicle (CMV). This includes vehicles that weigh over 10,000 pounds, are placarded for hazardous materials or are designed or used to transport multiple passengers (at least 9 or more).
DQ files are needed even if the driver is salaried, a mechanic, the owner of the company, a part-time temp driver, is only driving one time, works for a private company, etc. There are some exceptions found in sections 390.3, 391.2, and 391.61-391.69.
For intrastate commerce where the driver stays within a single state, some state requirements may vary.
Mistake #2: Not obtaining a driver Motor Vehicle Record
What is a Motor Vehicle Record (MVR)?
An MVR is a report of driving history from the Department of Motor Vehicles (DMV).
The MVR contains important information from a driver’s license including, endorsement level for any kind of vehicle, accident reports, DUI convictions, vehicle crimes, traffic violations, license suspensions and more.
According to the FMCSA, a copy of the MVR(s) obtained in response to the inquiry must be placed in the driver qualification file within 30 days of the date the driver’s employment begins and be retained in compliance with 49 CFR 391.51.
If no MVR is received from the State required to submit this response, the motor carrier must document a good faith effort to obtain such information and certify that no record exists for that driver.
An MVR must be pulled from every state where the driver has held a license or permit in the past three years. If any red flags appear, a potential employer could use it to influence their hiring decision. This is why it is important for drivers to be aware of what is on their MVR and should request one every year. If any information is inaccurate, the driver could request to fix the mistake.
The carrier must then obtain an updated MVR annually, and review it to determine whether minimum safe driving requirements have been met, and confirm that there are no disqualifying offenses.
Mistake #3: Not keeping a driver qualification file long enough
How long to keep driver qualification files?
Another common mistake is how long you need to keep driver qualification files.
Some companies dump records after three years of employment, and do not keep these initial safety records on file for three years after driver is no longer employed at the company.
It is important to note that, separately, any safety history information gathered from previous employers must be retained for as long as the driver is employed by that motor carrier and for three years thereafter.
Mistake #4: Not having important drug test history and medical card on file
For drivers who hold a commercial driver’s license, the motor carrier must obtain a new motor vehicle record (MVR) within 15 days after each new DOT medical exam and place that in the driver qualification file as proof of medical certification. Each new medical exam certificate must be placed into the DQ file and kept there for at least three years, to show that the driver was medically qualified to drive at all times.
Often times these medical cards are out-of-date or the DQ files never replaced the old medical card on file. During a DOT audit, this is a simple mistake that can be caught and fines for each violation in your fleet can add up quickly.
Similarly, important drug testing history and alcohol test results must be saved in the DQ File for at least one year. These test results includes: previous employer test results; copy of alcohol test form, with results and drug test chain of custody form; documents sent to the employer by the MRO; documentation of any refusal to submit; and documents provided by a driver to dispute results.
How to prevent Driver Qualification File Management mistakes with CNS
After a driver is hired, managing driver files becomes an ongoing burden as employers are required to keep files current for drug tests, physical exams, safety records, annual MVRs, commercial driver’s licenses, endorsements and even conducting annual driver reviews (a burdensome process).
With high driver turnover in trucking, construction and distribution fleets, this problem becomes amplified.
CNS goes beyond just helping you manage your driver qualification files. Our Proactive Safety Management program helps to manage your entire plan for safety, compliance and record keeping, from drug consortium management to vehicle and equipment maintenance.
Trucking and the Coronavirus
With the world focused on the fear of illness and global spread of this year’s coronavirus (COVID-19), trucking companies brace for a secondary threat as well, as the freight market slows.
Prior factors affect the trucking industry
Businesses had already stuffed their warehouses with imported goods at the end of 2019, trying to get ahead of the tariffs placed against China. Then, as concerns over the virus itself grew, this slowed import shipping. Trucking companies with work in and around ports have felt the impact already.
Current factors add burden
Currently, several factors are impacting the trucking industry and putting the brakes on freight. First, the national shift for many businesses to encourage their employees to work from home. Secondly, consumers have drastically reduced their daily activities, without choice in most states.
Each state has implemented some sort of guideline to follow, each on a different level, but with the same end goal, to create social distancing. Most states are closing schools, preventing operation of non-essential businesses and even preventing gatherings of 50, 25 and even 10 people.
With a number of major events being cancelled, such as the Mid-America Trucking Show and sporting events (eg. NCAA tournament), the trucking industry has taken a big hit as well, since the need for truckers to carry the necessary supplies to these events has vanished.
Transportation market follows industry market
Garrett Bowers, President of Bowers Trucking in Oklahoma commented to Transport Topics news outlet: “If industry is stifled, transportation will follow.”
Trucking companies can expect to find themselves pinched tightly between all these factors. And, of course, layered on top of these concerns is the well-being of their drivers as they send them out across the nation, where they could be more susceptible to contracting the Coronavirus.
Many companies are now conducting pre-shift screenings and temperature checks to further protect their employees.
Some companies, mostly those immediately affected near the ports, have begun reducing capacity and laying off independent owner-operators in response to the downturn.
But across the country, companies feel the hit of this pandemic. Fleets have been absorbing a cost burden from being unable to return empty containers, as well as administrative costs.
Hoping for a rebound
There is definitely potential for a rebound in the trucking industry once shipping from China and other countries resumes normal pace. However, this potential rebound will have a delay that can impact many companies.
Companies should anticipate and plan not only for reduced rates and capacity, but also for difficulties at the loading docks. If shippers must reduce their own workforce due to coronavirus-related illnesses or quarantines, loads may not be ready when truckers arrive.
Companies should prepare for a double-headed approach to address both the current slow-down and the eventual recovery when shipments begin to surge to make up for delays.
Trucking Startups, Hiring Drivers and CDL Training
No matter what your current situation is in the trucking industry, we have a service that would be valuable to you, like CDL training, starting your own trucking business or hiring new, qualified drivers.
If you have been laid off, this might be a good time to start training to get your CDL. There will be a need for more drivers as businesses and events resume normal operation in the coming months.
If you are already a driver in the trucking industry, this may be the perfect time for you to start your own trucking company. Securing loads will not be an issue once the economy bounces back.
If you are a trucking company, you will most likely need to be hiring qualified drivers in the near future, and you will need to get good, qualified drivers very quickly, as well as manage all of the files for those drivers.
Beginning January 30, 2015, a driver required to have a commercial driver’s license, who has submitted a current medical examiner’s certificate to the State documenting he/she meets the physical qualification requirements, will no longer need to carry the medical examiner’s certificate (or a copy of the certificate) for more than 15 days after the date it was issued as valid proof of medical certification.
Beginning, July 8, 2015, a driver required to have a commercial learner’s permit, who has submitted a current medical examiner’s certificate to the State documenting he/she meets the physical qualification requirements, will no longer need to carry the medical examiner’s certificate (or a copy of the certificate) for more than 15 days after the date it was issued as valid proof of medical certification.
A CDL or CLP holder who obtained a medical variance from FMCSA must continue to have the original or copy of the medical variance documentation in his/her possession at all times when on-duty.
Driver Qualification Files
If the CDL issuing state motor vehicle record contains medical certification status information for the CDL holder, the motor carrier employer must obtain the motor vehicle records from the current licensing State and place it in the driver qualification file. The motor carrier has 15 days to obtain the MVR from the date stamped on the medical examination certificate. The medical examiner’s certificate or a copy must be placed in the DQ file for the 15 day period (or until the CDL issuing state MVR is put there). Without either the MVR or the medical examiner’s certificate (for the 15 day period), the motor carrier may not let the driver operate a CMV.
After January 30, 2015, a non-excepted, interstate CDL or CLP holder who does not have medical certification status information on the CDL issuing state motor vehicle record will be designated “not-certified” to operate a CMV in interstate commerce. A motor carrier may use a copy of the driver’s current medical examiner’s certificate that was submitted to the state for up to 15 days from the date it was issued as proof of medical certification.
Under a proposed rule issued May 10, 2013, the 15 day grace period will eventually be removed. (78 Fed. Reg. 27349.) If the proposed rule is adopted without change, carriers would be required to obtain the CDL issuing state MVR before letting the driver drive, and would not be able to rely on putting the medical examiner’s certificate in the DQ file. The rule would require medical examiners to submit the results of their medical examinations on the same day as the examination, and for states to update their CDL issuing state MVR information within a day. Because there would be no delay in the information being put in the CDL issuing state, here would be no need for a delay in carriers obtaining the information.
If you are under CNS Driver File Management program there is no need to worry! We have got you covered. We will pull your CDL or CLP holders record 15 day after the medical card expires. We will also keep informing you on when the CDL or CLP holder’s medical card expires.
Not enrolled in CNS Driver File Management program yet? Contact us today and learn how easy it is to enroll. Plus, we will get you 100% compliant with your driver files. Call 1-888-260-9448 today.