Waynes World - September 2009
DIRECT OBSERVATION TESTING IS BACK,
DRIVER APPRECIATION WEEK, AND...
THE OBAMA ADMINISTRATION
AND TRUCKING
by Wayne Schooling
DRUG TESTING UPDATE
On July 30, 2009, the Office of Drug and Alcohol Policy and Compliance (ODAPC) published a Final Rule in the Federal Register which restores mandatory direct observation (DO) collections for all return-to-duty and follow-up testing. This DO drug testing rule is applicable to all return-to-duty, safety-sensitive transportation industry employees who have already failed or refused to take a prior drug test. The start date for mandatory DO testing is August 31, 2009. Employees who go for return-to-duty and follow-up tests on and after the effective date must have their collections observed. This includes employees already in follow-up testing programs who will still be in those programs on and after August 31st. Once this rule goes into effect, all follow-up and return-to-duty testing using DO collections will be a requirement under Federal law.
U.S. DEPT. OF LABOR HIRING MORE ENFORCEMENT OFFICERS
Secretary of Labor Hilda L. Solis outlined the president’s 2010 fiscal year budget for the Dept. of Labor, which is intended to restore various worker protection programs and create employment opportunities for the American workforce. The budget requests $104.5 billion, with the majority of it for unemployment insurance benefits for displaced workers and federal workers’ compensation. The discretionary request of $13.3 billion allocates $1.7 billion for worker protection programs, a 10 percent increase over the prior year’s budget. Under this budget, the Labor Department expects to hire nearly 1,000 new employees, including almost 670 investigators. Specifically, the 2010 budget asks for $564 million for OSHA. With this funding, the Labor Department plans to hire 160 new enforcement staff, many of whom will be bilingual to better communicate with staff in the changing workplace. Also, the department’s Wage and Hour Division will receive $228 million, which includes funding to hire 200 new investigators.
THE OBAMA ADMINISTRATION AND TRUCKING
What the above topic is really saying is that you need to pause and consider today’s trucking business environment, especially if you use Independent Contractors. If you have been reading my articles, you will remember that I wrote, as a senator in 2007, Obama sponsored the Independent Contractor Proper Classification Act of 2007 (S-2044), which would re-empower the IRS to assess taxes, penalties and interest against “employers” with misclassified employees as independent contractors. At the same time, the bill would remove important aspects of a safe harbor for employers.
Similarly, in November of 2007, Obama wrote to the mayors of Los Angeles and Long Beach, CA supporting their ports’ adoption of the San Pedro Bay Ports Clean Air Action Plan and noting, and I quote, “Many of these truckers may be legally misclassified. Worker misclassification is an issue I have worked on at the federal level to remedy because it hurts workers and costs the taxpayers billions in uncollected taxes.” In 2008, Obama co-sponsored a bill called the Employee Misclassification Prevention Act (S-3648), which would place many business owners in peril of substantial taxes and penalties for using independent contractors in circumstances where it is less than crystal clear that these contractors are not actually employees. As the president-elect, Obama co-sponsored the Employee Free Choice Act (S-1041), which would eliminate the “secret ballot elections” on union representation.
Another labor bill – the RESPECT Act (Re-Empowerment of Skilled and Professional Employees and Construction Trade) workers – would amend the National Labor Relations act to redefine and limit who can be considered a “supervisor” which, if passed, (HR-1644, S-969) would essentially make eligible additional employees who could be organized. Also on the horizon are the Lilly Ledbetter Fair Pay Act, the Employment Non-Discrimination Act, and the Civil Rights Act of 2008. These bills share the noble purpose of attacking discriminatory practices by employers – but also broaden the concept of discrimination, creating greater uncertainty for business owners and potentially larger penalties for those same executives.
This article is not intended to be a bleak prediction of a downward spiral for trucking, but rather to get you aware of what you are in store for so you can make better decisions. We have recently seen three small trucking companies and one large company sued in late 2008. Now is your chance to review your operations. And after doing so, if you have any doubt at all regarding your 1099 people, you should contact your trucking association for help. If you do not remedy the problem, you could face fines up into the millions.
Let's face it – it’s all about taxes. This new administration is spending so much money bailing out every Tom, Dick and Harry that it’s only alternative is to manipulate the trucking industry (and others) so that there are more employees and less independent contractors. More employees means that more people will be paying more taxes.
Think about this: truckers in California pay an average of $2,775 in registration fees per truck. This amounts to $1.5 billion from trucks, $276.1 million from trailers and $14.1 million in other fees. Revenue from diesel fuel taxes is $534.5 million and tax from gasoline is $307.1 million. Further, highway user fees amount to $7,280 per truck. Fuel tax money is supposed to go into the Highway Trust Fund, but it’s going broke because Congress always “borrows” money from it and never pays it back. And now you can get $4,500 in taxpayer money to spend on a new car that gets better gas mileage, which means less gas taxes will be coming in. What a vicious circle! Remember – once the horse is gone, it’s too late to close the barn door.
DRIVER APPRECIATION WEEK
The week of November 1-7, 2009 is National Truck Driver Appreciation Week. Be sure to recognize your drivers and do something special for them – they deserve it!
NEW REGULATIONS COMING
New Entrant Audits will start this December, and the new Intermodal Roadability rules start on 12/17/09. In January of 2010, be prepared for the merging of Medical Cards and CDLs. Stay tuned!
~ NTA remains a name you can trust. Our website (www.ntassoc.com) is your official U.S. DOT Internet Training Site and we are administrators of a Nationally Accredited Drug and Alcohol Program. If you have any questions, call me at (562) 279-0557 or send me an e-mail to wayne@ntassoc.com. Until next month, “Drive Safe – Drive Smart!”