>>> In the Federal Register on December 23, 12016, the Federal Motor Carriers Safety Administration (FMCSA) published a Notice of Enforcement Guidance. This guidance is intended to address issues that arise with the use of drivers CDL Holders from staffing companies and compliance with the drug and alcohol test requirements of 49 CFR Part 382. This enforcement guidance is effective immediately.
In summary, a driver staffing agency may qualify as an employer.in accordance with Federal Motor Carrier Safety Regulations (FMCSR). It should be noted that there are in place some qualifiers in place for a driver staffing agency to be considered an employer along with guidance for trucking companies before using drivers supplied by the staffing agencies,
As noted these staffing agencies supply the trucking industry with casual, intermittent or occasional drivers as needs for these drivers arise. These staffing agencies directly employs the driver, and pays the employment wagers and assorted employment taxes. That makes them eligible to be subject to Part 382. It is also makes them required to produce records for inspection by a special agent or authorized representative of FMCSA.
A qualifier is as follows as stared in the regulations. Section 382.103(a) applies to individuals or companies that that operate a Commercial Motor Vehicle (CMV) in compliance with Part 383. Using this as guidance a staffing agency can choose to be responsible for ensuring compliance with Parts 382 and 383. This means that if they choose to, they will comply with all requirements of Parts 382 and 383 along with 49 CFR Part 40. A motor carrier is still responsible for ensuring compliance with Part 382 before allowing the drivers to perform any safety-sensitive functions.
While recognizing that there is a need at times for drivers on a short notice, this guidance provides for the adoption of another Part 382 program for the express purpose of using a “borrowed” or leased driver.
Section 382.301(c)(2), which addresses ‘‘Pre-employment Testing,’’ recognizes the situations where a motor carrier may use, but does not employ, a driver more than once a year to operate a CMV. The motor carrier must verify the driver’s participation in a DOT drug and alcohol testing program every six months and maintain records of such verification in accordance with existing regulations. Existing guidance to section 382.301 does that this provision was intended to apply to drivers who are ‘‘temporarily leased’’ or loaned to a motor carrier ‘‘for one or more trips generally for a time period less than 30 days.
The FMCSA interprets a casual, intermittent, or occasional driver as a driver who works for another employer for any time frame of less than 30 consecutive days. If a motor carrier uses a leased (borrowed) driver for more than 30 days or expects to use that driver for more than 30 days, the motor carrier obligated to place that driver in their random testing pool.
At that point in time if the driver is from a staffing agency, the staffing agency may remove that driver from their random testing pool or allow the driver to remain in its testing pool based on a reasonable expectation that the driver will or will not return to employment by the staffing agency as a temporary or leased driver.
It should be strongly noted that a motor carrier is responsible for ensuring that all leased or borrowed drivers are subject to the random drug and alcohol test program at all times. The motor carrier by contract, agreement or other arrangements to make that program their own program. That means all records being forwarded on 2 days’ notice and being notified of and acting on all positive test results. This includes a program by the staffing agency and includes any non-compliance by the staffing agency.
If a staffing agency has not done any testing the motor carrier must treat the leased driver as a new employee and do all required testing and other program requirements before the driver is placed in a safety sensitive position.
Motor carriers that utilize leased drivers, should ensure that the driver staffing agency has a fully compliant program under DOT regulations and can provide within 48 hours all the driver qualification records.
All employers and that includes driver staffing agencies that violate the requirements of Part 382 or Part 40 may be subject to the civil and/or criminal penalty provisions.
View the FMCSA Notice of Enforcement Guidance
Questions, contact Robert C. Schoening at firstname.lastname@example.org
By Robert Schoening