The FMCSA has released violation data for fiscal year 2021 and the numbers indicate some alarming data – for every 100 carriers who get audited by the DOT, less than six pass without a violation. And the remaining 94.5 percent? By the time their audit is complete, they have an average of six violations. Depending on the violations found, that can add up to a big fine for your business. The key to being in that 5.5% is to always be audit ready, which is something that can be easier said than done, given all of the regulatory requirements you must comply with.
As you evaluate your company’s audit preparedness, it might be helpful to understand what compliance areas resulted in the most violations for other carriers. Although this list is far from being comprehensive, it’s a good place to start when determining how prepared you’ll be when an auditor calls or comes knocking. NorthAmerican Transportation Association’s Service Providers, in conjunction with NTA’s Members ONLY Portal, contains all the information you need to be in compliance. Following is a list of the top four violations of 2021.
Top Violation #1: Allowing a Driver to Operate with a Suspended/Revoked CDL. This is the top violation for the fifth year in a row, accounting for 30.63 percent of total acute violations. For those who were fined for allowing a driver to operate with a suspended/revoked CDL, the average fine amount was $8,991. All carriers know that they shouldn’t let a driver with a suspended or revoked CDL behind the wheel, but unless they’re monitoring their drivers’ records on an ongoing basis, they may not know that a suspension or revocation has occurred until it’s too late.
Carriers are only required to run an MVR on each driver annually. But if a driver’s license gets revoked right after that report is run, it could be almost a year before the carrier finds out (if they aren’t pulled over and caught first). The best way to prevent this violation is to implement an MVR monitoring program that constantly monitors your drivers’ motor vehicle records and lets you know instantly when new information is detected.
Top Violations #2 & #3: Failing to Implement an Alcohol and/or Drug Testing Program (or Random Testing Program). The second and third most common violations both have to do with having a DOT compliant drug and alcohol testing program – which includes a pre-employment drug test, a random testing program, post-accident testing, reasonable suspicion tests, along with any follow-up tests, as needed. These violations accounted for 35.67 percent of all violations in fiscal year 2021, with an average fine amount of $8,361.
As expected, some of these fines were steep, with multiple carriers settling for $20,000-$42,000 for non-compliant testing programs. The best way to avoid these fines is to have a compliant DOT drug and alcohol testing program in place. Working with a third-party vendor who will manage a compliant program on your behalf will ensure that all of your drivers’ testing requirements are being met throughout their employment with your company. If you are paying more than $26.00 for a drug test, you’re paying too much. You can upgrade to an EASY DOT Drug Testing Program by contacting NTA today at (800) 805-0040.
Top Violation #4: Allowing a Driver with More Than One CDL to Drive a CMV. The fourth most common violation in 2021 is for allowing a driver with more than one CDL to drive a commercial motor vehicle. Although states are supposed to check to ensure that a driver doesn’t have another valid CDL prior to issuing a new license, this process doesn’t always happen, or doesn’t reveal the needed information. That leaves it up to the carrier to verify that their drivers have just a single CDL.
Although it’s not a required part of the pre-employment process, working with a DOT background check provider that can run the required check will give you the peace of mind that you’re operating compliantly and protect you from a hefty fine. For carriers who were fined for this violation last year, the average fine amount was $8,378. Other common areas of noncompliance involved using an unqualified driver, employing a driver who was disqualified from holding a CDL, and not keeping inquiries into the driver’s employment record in the Driver Qualification file.
If you’d like to review your audit preparedness to ensure there are no gaps in your regulatory compliance, give NTA a call at (800) 805-0040. We’ll review the programs you have in place and make suggestions to help make the process of managing your drivers as simple as possible.
Moving on to another topic, the Labor Board is once again reconsidered the ongoing issue regarding independent contractor status. Many companies use independent contractors to supplement
various parts of their workforce. Such workers are exempt from coverage of most relevant federal employment laws, including the National Labor Relations Act (NLRA). That means, for example, an independent contractor generally does not have the right to form or join a union in the private sector. However, employers should be aware that the National Labor Relations Board (NLRB) recently announced it will be revisiting the legal test it utilizes to evaluate who qualifies as an independent contractor.
According to a NLRB press release, the agency is inviting briefs regarding whether it should adhere to a standard issued in 2019 under the prior administration that arguably makes it easier for employers to classify workers as independent contractors under the NLRA. The current standard takes various factors into account when evaluating whether a worker is properly classified as an independent contractor, such as the amount of control a company exercises over a worker, level of skill needed for the job, and manner of payment.
It is likely the new Biden Board will modify the current framework and adopt a test that further restricts when a company can properly classify someone as an independent contractor. This could have significant consequences for companies like Uber and others in the gig economy who heavily rely on this model. Another related issue the Biden Board could take up is whether the mere act of misclassifying someone as an independent contractor violates the NLRA. Under current NLRB precedent, that is not the case. The new Board, however, may have a different view.
Determining whether workers are employees or independent contractors under the NLRA or other employment laws can be a very tricky and nuanced exercise. With that in mind, employers who have independent contractors should take notice that this may get even more difficult in the near future. As always, until next month, “Drive Safe – Drive Smart!”