WEBSITE MISTAKES COULD COST YOU
With all of the serious talk about driver misclassification these days, it is important that you use the correct language and terminology when describing the functions of the owner operators you use – especially on your website. Most companies think of their website as a valuable marketing tool – a way to connect with customers, clients and prospective business. Even if they use independent contractors, these companies usually do not picture an IRS agent, an investigator from the Department of Labor, an auditor from their State Department of Employment Security, an official from EEOC or a judge scrutinizing their site to see how they portray their relationship with their independent contractors. This is a big lapse in judgment!
Here are some mistakes I have discovered over the years while evaluating clients’ websites (the clients who are trying to use legitimate independent contractors – and who need to be ready to prove this valid relationship to the world). Mistake #1: The website talks about guaranteeing the work of the independent contractor. Mistake #2: The website proudly proclaims that the company trains its owner operators. Mistake #3: The website refers to their independent contractors as “our staff” or something similar. Mistake #4: The owner operators are listed by personal name, job title, etc. Mistake #5: The website says that their independent contractors are carefully supervised to ensure the work is done well and up to the company’s standards.
If your company uses any independent contractors, I urge you to review your company website and look for these mistakes – and then fix them! Look over your website with new eyes. See if you have unwittingly described them as under your “direction and control” or something similar. Please keep this in mind: auditors and investigators in today’s world often go straight to a company’s website to learn whatever they can about a company – and they do this BEFORE they initially contact the company to announce they are auditing or investigating them on the independent contractor issue.
Your website represents “admissions” by you. Don’t just think of your company website as a pure marketing tool – it also represents public admissions by you and the company regarding your working relationship with your independent contractors. Therefore, I urge you to seek experienced assistance to review your entire website to see what it reveals about your independent contractor relationships. Ideally, your website should confirm that your owner operators are NOT your employees! If you need assistance with websites, audits, hearings and independent contractor agreements (or for consultations on limiting your liability in the use of independent contractors), you can contact me at NTA by calling (562) 279-0557.
A COMMON MYTH CORRECTED
The required use of Medical Examiners (MEs) appearing on the National Registry of Certified Medical Examiners (NRCME) for all interstate driver physical exams performed as of May 21, 2014, has resulted in a common myth (or misconception) circulating around the transportation industry. Many drivers and motor carriers have incorrectly come to believe the MEs will submit proof of medical certification to State Driver Licensing Agencies (SDLAs) on behalf of Commercial Driver’s License (CDL) holders. This is untrue. MEs have not been assigned this task. CDL holders that mistakenly believe this is taking place may find their CDLs downgraded (i.e. inactive for use in interstate commerce) if they fail to personally submit the medical examiner’s certificate themselves.
Where is this misconception originating from? Well, it may have its roots in one of two sources. MEs are required to submit – to the Federal Motor Carrier Safety Administration (FMCSA) – a monthly report of the exams they have performed during the previous month. This information is submitted on the federal level and is not shared with individual state licensing offices. The other possible source for the incorrect understanding of the NRCME rule is a proposed rule from May 2013. In this proposed rule, the FMCSA would now require Medical Examiners to submit, on a daily basis, driver physical examination results to the FMCSA. The proposal calls for the electronic transmission of driver identification, examination results, and restriction information from the National Registry system to the SDLAs. But, it is important to note that this rule is still just a proposed rule – at this point, the agency has not gone forward with its concept.
NEW GUIDANCE FOR DRUG TESTING
The U.S. Department of Transportation (DOT) has issued new guidance explaining when DOT–regulated employees can leave a urine collection site without violating the testing rules. The new question-and-answer guidance clarifies: when a collector may give an employee permission to leave a collection site, and what happens if an employee leaves a collection site before testing is complete. According to the DOT, the new guidance “constitutes official and authoritative guidance and interpretation” concerning its drug and alcohol testing rules in 49 CFR Part 40. The guidance was issued on July 3, 2014, by the DOT’s Office of Drug and Alcohol Policy Compliance.
According to the new guidance, the testing process is complete when the chain of custody form (CCF) has been filled out and the urine specimens have been sealed in plastic bags, as specified in Sec. 40.73(a)(1)-(6). If the driver leaves the collection facility before the process is complete, the collector must inform the employer who then must decide whether the employee’s actions constitute a refusal to test. “To make this determination,” the guidance states, “the employer should consider the information documented on the CCF and the advice and information received from the collector and service agents, as well as any supporting information provided by the driver (i.e. in the event of an emergency, copies of hospital admission records/EMS records/police records, etc.). “The employer must document its decision, and the reasoning for the decision, in all collection site refusal determinations. Copies of these decisions, and the information relied on in making those decisions, must be maintained in accordance with Sec. 40.333 and the applicable record-keeping requirements.” The guidance goes on to state that if a DOT auditor finds that the employer has not properly documented their “refusal” determinations, they must be subject to penalties.
