The DOT plans to propose over 25 commercial vehicle safety rule changes for the public to weigh in on in 2024. Speed limiters, higher fines, and changes to driver training rules are all on the agenda, while at least one controversial rule has been pushed to the backburner. The following are some of the new rule changes with key actions to look out for this year.
ELDs. The FMCSA will be “streamlining and improving the clarity” of its electronic logging device (ELD) rules. This update was expected in 2023 but has been delayed to October 2024.
SPEED LIMITERS. The FMCSA intends to require the use of speed limiters on interstate CDL-class vehicles. The proposal should be out soon.
DRIVER TRAINING. The FMCSA is looking to update its entry-level driver training rules to add training on sexual harassment and pedestrian/cyclist safety.
CDL TESTING. The FMCSA may make it easier for drivers to obtain a commercial driver’s license (CDL), in part by allowing any state to perform a driver’s skills test.
DRUG & ALCOHOL CLEARINGHOUSE. The FMCSA intends to revise its Clearinghouse rules to improve error-correction procedures, queries, and consent requirements.
HAIR TESTING. The Department of Health plans to propose hair testing for federal employees, which will eventually make it an option for CDL drivers’ drug tests.
TEST REFUSALS. The DOT plans to establish an appeals process for drivers accused of refusing a drug or alcohol test.
EMERGENCY BRAKES. The DOT plans to require and/or establish performance standards for automatic emergency braking systems on heavy trucks.
BROKERAGE. This action would amend broker rules to add transparency to transactions and contracts.
Equally important to these upcoming rule changes is what’s NOT on the agenda. The FMCSA has notably moved the proposal to require electronic IDs on commercial motor vehicles to its “long-term actions” list, meaning the proposal is not expecting any action in 2024. This rule proposal was opposed by the Owner Operator Independent Drivers Association (OOIDA) and others, who claim the rule is a major privacy intrusion for drivers. Other long-term actions with uncertain futures include a rule to remove the need for a driver’s employment application, a rule clarifying the need for a tank endorsement, and a rule that allows buses and hazmat carriers to obey traffic control devices at railroad crossings instead of stopping at each one.
Moving on to the next topic of discussion, the DOT has increased its maximum fines by 3.2 percent for the new year. The increase affects all fines (known as civil penalties) levied by agencies within the DOT, including the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA). The annual increase is required by law and is pegged to inflation, which has eased in the past year. By comparison, last year’s increase was nearly 8 percent, while the increase for 2022 was just over 6 percent. Prior to that, increases in the amount of fines had generally been around 1 percent each year. All federal penalties levied on motor carriers, drivers, and others for violations of DOT regulations went up effective December 28, 2023.
On to my final topic here, employers nationwide need to evaluate whether they must now comply with the written notice deadline created by California’s new non-compete laws. These new non-compete laws, as of February 14, 2024, introduce enhanced remedies that mean employers nationwide need to carefully evaluate when, and with whom, to seek a non-compete agreement.
California has historically prohibited non-compete agreements (including both traditional non-competes as well as non-solicitation covenants) in the employment context. On September 1, 2023, California Governor Gavin Newsom signed Senate Bill (SB) 699 into law effective January 1, 2024. SB 699 makes two meaningful additions to California’s existing ban on non-competes by (1) extending the reach of California’s restrictions to contracts signed out of state, and (2) creating a private right of action for employees whose agreements include restrictive covenants.
On October 13, 2023, Governor Newsom signed into law additional legislation, Assembly Bill (AB) 1076, which expands and strengthens California’s ban on non-compete agreements. Among other things, AB 1076 makes it an act of unfair competition, punishable by civil penalty, to include a non-compete in an employment agreement or require an employee to enter into a non-compete. In addition, the law creates an affirmative obligation for employers to provide notice to current and former California employees who were employed after January 1, 2022, and were subject to a non-compliant non-compete agreement, that their non-compete agreement is void. AB 1076 further claims it codifies existing case law requiring a broad reading of the California ban on non-competes.
Notably, however, California’s non-compete ban does have three exceptions where non-compete agreements are enforceable: in the sale of a business, in the dissolution of a partnership, or upon the dissolution or termination of interests in a limited liability company. AB 1076 does not narrow or alter those exceptions. California’s new laws not only impact employers based in California but also purport to apply to out-of-state employers that have remote workers in California or former employees who move to California while subject to the out-of-state employer’s non-compete – even where the non-compete was entered into outside of California.
While the reach of California’s new non-compete laws is likely to be challenged, employers should review their current employment contracts with California employees to ensure they do not contain a non-compete that may run afoul of these new laws. Furthermore, employers who have employees relocate to California during their employment, should be sure to advise such employees, in writing, that they will not attempt to enforce any agreement or provision of any agreement to the extent contrary to California law. Finally, employers should not attempt to enforce a non-compete against a former employee who subsequently moves to California.
Employers who have entered into a non-compliant non-compete with current or former California employees after January 1, 2022, were required to provide notice to such individuals by February 14, 2024, stating that the non-compete is now void. These notices must be a written, individualized communication to the employee or former employee delivered to the last known address and email address of the employee or former employee. Failure to provide such notice can result in injunctive relief, restitution, civil penalties of up to $2,500 per violation, and recovery of attorneys’ fees and costs.
