Do you worry about compliance with FMCSA regulations? We worry all the time about safety. Do you worry about the EEOC? Discrimination has been in the back of most peoples’ minds. We all believe in fairness. It shouldn’t be that big of an issue, right? After all, we treat people equally regardless of race, religion, national origin, gender and sexual preference. We don’t discriminate against people over 40 or the disabled. Most don’t purchase employer liability insurance.
If you are in business, you have EEOC exposure you never dreamed of. Trucking has been targeted and this exposure is rapidly becoming one of the foremost issues in our industry. Why? Do you remember when ADA was amended to significantly broaden the definition of “disability” a few years back at the tail end of the Bush presidency? Do you remember the reaction of the President when the Republicans reclaimed the House of Representatives after Barak Obama and the Democrats had a virtual lock on the reins of government for two years? He boldly proclaimed that he would govern without Congress. How can he do that, you ask? This is done by the regulatory agencies he controls through his appointees. Did you know the President and many of his followers and supporters do not agree with the “employment at will” doctrine?
Regulatory agencies have a much greater impact on business than Congress. The voluminous statutes passed by Congress pale in comparison to the number of regulations on the books. Federal agencies propose about 25,000 new regulations a year. The cumulative effect of this activity, inevitably leads to a world where regulations come into conflict with each other. When this happens a business leader faces a Hobson’s choice. He incurs liability regardless of what he decides. We have reached that point.
In our highly regulated industry much of our business methods and procedures, particularly, those involving qualification and management of drivers, are driven by the FMCSA regulations. Our high qualification standards are also driven by insurance companies and the fear of the ever increasing exposure that can result from a catastrophic accident involving one of our trucks. As a result, carriers have made dramatic shifts towards tightening up hiring and retention standards since the Great Recession. This was easy to do when freight fell 25% and there was a surplus of drivers. The industry saw a significant decreases in truck related highway accidents.
Since the recession, we have experienced a return of the driver shortage. The shortage is not a problem of quantity…it is one of quality. During the recession, carriers added more complexity to their qualification standards. Criminal background checks became the norm. Under federal law, drivers must pass criminal background checks to get a hazmat endorsement or a TSA card. The FMCSA, under CSA, has provided an incentive to do additional pre-screening for a driver’s CSA score. As cargo theft increased during the recession, carriers weeded out those who are thieves. In fear of liability from road rage, carriers weeded out those who have demonstrated a history of violence or threats when confronted with one of life’s many problems. Shippers often added these standards to their contract with carriers. Carriers hold their existing drivers to the same safety standards as applicants. After all, who wants to be asked on a deposition, “Why would you retain a driver you wouldn’t hire?”
In line with the FMCSA’s objectives, and in fear of being sued for “negligent hiring” of drivers, the industry has adopted a “zero tolerance” policy towards drugs and alcohol. This has saved many lives. Ten years ago, carriers checked MVR reports, as required by FMCSA regulations and updated these checks annually as required by the regulations. As plaintiffs’ attorneys developed more sophisticated theories of “negligent hiring” in order to make claims for punitive damages and divert a jury’s attention from the facts of an accident, the industry became aware that past records of its drivers are used to inflame juries and drive up the value of an truck accident. The industry has pushed for a national drug and alcohol databank, now mandated by a recent statute. Sleep apnea testing is being pushed to address problems of fatigued driving by the industry, the regulators and the plaintiffs’ lawyers. The bar is being raised ever higher.
Safety has made great strides. But there is a troll under the bridge. The EEOC is pushing in a different direction. They want to require you to adopt cumbersome and expensive procedures and hire most everyone. They have “prosecutorial discretion” and all the resources of the federal government behind them. They want you to continuously “accommodate” those who are or become disqualified. They intend to use the full weight and power of the federal government to address “fairness.” I recently heard that where in the past, most of their activity centered on handling individual complaints, the push now is on filing class actions, and seeking multi-million dollars penalties to meet pre-determined monetary collection goals.
The first salvo came a few years ago when the EEOC went after a large carrier for placing male and female drivers together in trainer/trainee teams. The charge was harassment. A couple of large carriers then adopted a “same gender” policy for teams to prevent this. The EEOC then accused these carriers for discriminating against women because there were more male trainers than female. The EEOC challenged a carrier for sleep apnea testing after the carrier had invested over $1 million dollars in trying to make its drivers safer. The claim…discrimination against overweight folks. In other cases they went after carriers for asking health questions during the hiring process. The carrier was trying to insure that those in orientation could pass the DOT medical and agility requirements of the job. In the most egregious example yet, a large LTL carrier had a driver who admitted he was an alcoholic. The carrier pulled the driver off the road and put him in a warehouse job. The definition of “disabled” for purposes of the ADA, includes recovered drug and alcohol dependents. The EEOC pursued expensive litigation against the carrier. The EEOC has made it clear that it does not like criminal background checks unless they can be clearly linked to the job. Why? One out of ten Caucasians have a criminal record, but one in three minorities have one. The logic is that this practice discriminates against minorities. They have similar disdain for credit checks.
49 C.F.R. Section 40.305(b) states:
“As an employer, you must not return an employee to safety sensitive duties until the employee meets …(the prescribed treatment and return to duty alcohol test)…However, you are not required to return an employee to a safety sensitive duties because the employee has met these conditions. That is a personnel decision that you have the discretion to make, subject to collective bargaining agreements and other legal requirements.”
The EEOC’s position is that a driver who wants to go from alcoholic to “recovered alcoholic” is “disabled” under the ADA and employers are subject to large fines and expensive litigation for failure to individual assess the employee and give him a chance to return to driving. The fines and expense can be as large as or larger than the costs of a catastrophic accident involving a truck. The plaintiff’s bar will undoubtedly use evidence of past alcohol violations to inflame juries and inflate verdicts and settlements.
Given the relatively high rate of recidivism, most motor carriers have policies that disqualify drivers with a history of drug or alcohol abuse. The FMCSA regulations require drug and alcohol testing and MVR’s and CSA screening is checked to keep such people out of trucks. Courts routinely allow plaintiff’s lawyers to introduce evidence of DWI’s and drug offenses going back ten years in a negligent hire case. Zero tolerance policies are permitted under FMCSA regulations and the new national drug/alcohol database will give carriers better tools to get drunks and junkies off the road. The EEOC claims that alcoholism is a “disability” under the ADA, and seeks to limit a carrier’s discretion after alcohol problems manifest. They also contend that alcoholism triggers the Family Medical Leave Act obligations.
We find ourselves in a perplexing dilemma where federal regulatory thrusts from two different agencies and the judicial system are in conflict. Politicians are all for safety. After all, what is saving one life worth? Politicians are all for fairness. Juries are inclined to ignore the facts of an accident and search for a reason to compensate a victim for traumatic injuries. As a society, we have forgotten that sometimes bad decisions people make have consequences. We forget that life does protect one from bad choices, does not come with a guarantee of safety, nor is it always fair.
Safety is now at odds with fairness. We are in between a rock and a hard place. If we put the alcoholic driver back on the road, the plaintiffs’ attorneys will crucify us. If we don’t, the EEOC will seek large fines and oversee your business for years.
Doing business in todays’ regulatory environment has become so complex, that a carrier who doesn’t have in house counsel or use outside attorneys on a regular basis is at great risk. It is difficult even for attorney’s to understand the myriad of complex regulations. There are just too many laws, regulations and case law on the books at the federal, state and local levels to know them all. Hence, lawyers have specialties. It is impossible for a carrier to just run trucks and avoid these risks. A carrier who doesn’t purchase sufficient insurance or seek legal help is one complaint or accident removed from bankruptcy. It is sad that many will lose their jobs as a result.