The FMCSA, OSHA, EEOC & You
A leading trucking attorney talks about how the government is ‘passing the buck’ with CSA, and other legal headaches
March 2014, TruckingInfo.com - Feature
The Federal Motor Carrier Safety Administration’s Safety, Compliance and Accountability enforcement program is one of the major legal and regulatory issues facing trucking companies, but it’s not the only one, as a veritable alphabet soup’s worth of agencies target the industry.
Rob Moseley is head of the Transportation Industry group and Smith Moore Leatherwood in Greenville, S.C. We asked him about some of these challenges.
Q: You have been sharply critical of the CSA program, among other things saying the FMCSA has abandoned its duty to regulate safety. Can you explain why you believe that’s so?
A: The fundamental problem is that a company has two different standards right now. They have the one that is mandated by the regulation, which is the satisfactory/unsatisfactory/conditional rating – that’s the one the FMCSA is statutorily obliged to use as a safety rating – and yet we’ve got this other thing out there, CSA, that is really whatever the FMCSA wants it to be today.
Right now we have FMCSA telling shippers and brokers to use CSA as criteria for selecting carriers, and yet they don’t have the regulatory authority to say that.
I think they’re going to propose to to make CSA the safety rating, or at least incorporate it into the safety rating process, but that rule won’t even out until [later this year]. What they’ll come up with will incorporate roadside data from CSA and also the current system for the audits they do when they do a compliance review. That’s the only way you can get a safety rating now is to get a compliance review.
I’m thinking what will come out is three-fourths of the safety rating will be roadside and the rest will be records and compliance review type stuff.
Q: Aren’t they sort of doing that already in using CSA to target those compliance reviews?
A: That was what SAFESTAT was for, a tool to help FMCSA allocate resources toward compliance reviews, and it really helped them to be able to target carriers for that. But when we went to CSA, it no longer was [just a] tool. SAFESTAT was always out there for people to look at, but the government never touted it as ‘Use this in selecting your carriers.’
It is FMCSA’s job to certify carries that are fit to operate on our highways. What they’re doing is saying, ‘We want you to look at this data and YOU decide who’s fit to use.’ That’s not really what this was made for.
They’re really just kind of passing the buck. They’ve been more active in putting carriers out of business, that’s certainly true, but that’s their job. It’s not the job of the shippers and brokers to control the market for their enforcement.
What ought to be happening is these duties ought to be on FMCSA to look at carriers and shut them down. What they’re doing is saying, ‘We don’t have the manpower to do it right…so we’re going to let the plaintiffs’ lawyers of the world and the free market determine what carriers are fit to operate and which aren’t.”
Q: What are some of the specific ways CSA doesn’t work?
A: One of the main problems is it is a relative system. So you measure carriers against each other. You could have zero carrier improvement as an industry and as long as you’re better than average, you’ll do OK in the system. Or we could have everybody make monumental improvement and carriers that just happen to be at the bottom of monumental improvement are going to suffer. We don’t need to compare carriers to each other; we need to have an absolute standard.
Theoretically everybody could get worse and the scores would all look the same. And what you see now is everybody is making remarkable improvements and things are getting better, you’re seeing less and less violations, and the carriers are getting more sophisticated and paying more attention to safety than they ever have before – but we’re putting good carriers in harm’s way
Q: We’re seeing more and more stories involving the Occupational Safety and Health Administration coming down on trucking companies. What can you tell us about this trend?
A: OSHA has gotten very aggressive under the Obama administration as to the whistleblower provisions of the Surface Transportation Assistance Act.
The problem is, the same investigator who handles a whistleblower case in some other industry will handle it in the trucking industry. So you have investigators used to looking at whether there’s a switch plate over that outlet who are trying to make decisions about how drivers behave in a trucking environment.
It’s all about retaliation. In one case, the truck driver was out in California and said, ‘I have run out of my prescription medication and I need to have it refilled.’ It was run-of the-mill blood pressure medication that could be obtained at any Walmart, CVS, Walgreens, thousands of locations where his doctor could have called it in. But his response was, ‘I need to get this from my home pharmacy.’
Anyone in the trucking industry would realize that driver was just saying, ‘I want to go home.’ And everybody appreciates that drivers want to get home but they can’t get home in an empty truck. So the reason that was an issue is that you had an OSHA person who couldn’t immediately see through that the way someone with experience in trucking would have.
I’ve seen a couple of decisions recently that emphasize they are very aggressive and they can award punitive damages. When OSHA calls you, you need to take what they say seriously.
You also should spend some time training dispatchers and people who deal with drivers so they don’t unnecessarily complicate things.
If a driver is a jerk and comes in and mistreats people and uses vulgar language, it’s important that kind of stuff be documented.
Whenever a driver gets fired, it’s going to be, ‘I wanted to be safe.’ There’s not a driver out there who says ‘I’m pretty reckless.’ It’s always, ‘They wanted me to drive too much,’ or, ‘They wanted me to drive in a truck without good brakes.’
Trucking companies need to be very diligent in documenting the reason they terminate people.
Q: Adding to the alphabet soup, there’s the Equal Employment Opportunity Commission. Again, I seem to be seeing more announcements of carriers getting big judgments against them than ever before. What’s going on?
A: Their big thing now is the criminal records check. The question on employment applications that says, ‘Have you ever been convicted of a felony’ – the EEOC has issued a guidance that basically indicts our entire justice system, because it says that’s a discriminatory question because more minorities end up in jail.
What I’ve been advising carriers to do is make sure your question is not that broad, open-ended, ‘Have you ever been convicted of a felony,’ but ask a question that has something to do with the actual job. ‘Have you been convicted of a felony involving drug and alcohol,” for instance.
You’ve got Americans with Disabilities Act issue if you ask, ‘Are you an alcoholic.’ But if you ask, ‘Have you ever been convicted of an alcohol-related traffic violation,’ that’s a fair question.
So if a carrier wants to stay in the good graces of the EEOC, it would ask questions that are job-related.