The American Trucking Associations ("ATA") continues to press the Federal Motor Carrier Safety Administration ("FMCSA") on CSA crash accountability. In our previous post dated June 24, 2010, we noted that one of the concerns voiced by the ATA about the current CSA system was that accidents enter the system without the recognition of fault. Dave Osiecki, senior vice president of policy and regulatory affairs at ATA, sent a letter to the FMCSA this week requesting the agency remove the following types of crashes from the safety measurement system: crashes involving a vehicle traveling in the wrong direction; crashes involving a vehicle rear-ending a truck while legally stopped at a traffic light; crashes involving a vehicle striking a truck while legally parked off the road; and documented suicides. According to Osiecki, these types of crashes should be removed as a matter of agency policy because it is reasonable to presume that the commercial driver and carrier in these types of crashes have no accountability for the crash.
First Capitol Hill Hearing on CSA 2010
Thursday, June 24, 2010 by
Transportation Lawyer
A hearing was held yesterday on the Federal Motor Carrier Safety Administration's ("FMCSA") new enforcement program, CSA 2010. While there is general support for the program, some of the concerns deal with timing, data quality and funding. For example, one concern voiced by Keith Klein, executive vice president and chief operating officer of Transport Corporation of America, who spoke on behalf of the American Trucking Associations, was that under the FMCSA's current CSA 2010 system, accidents enter the system without the recognition of fault. In other words, there is no way to recognize the difference between preventable and non-preventable accidents. In response, Ann Ferro, the agency's chief, emphasized that crash data are a legitimate indicator of a motor carrier's safety performance regardless of fault. She went on to say, however, that the agency recognizes the problem of crash accountability and will analyze the data if the carrier's safety fitness rating comes into question.
LLCs and Diversity Jurisdiction
Friday, January 22, 2010 by
Transportation Lawyer
When litigation arises, motor carriers, brokers, freight forwarders, and other transportation companies are often faced with the issue of whether to remove a state court case to federal court. Removal is permitted if the amount in controversy exceeds $75,000 and "complete diversity" among all parties exists, i.e. no party to the litigation has the same citizenship as any party on the other side. What affect does a motor carrier's status as an LLC have on diversity of citizenship? Quite a bit. While the citizenship of a corporation is determined by the place of incorporation, the citizenship of LLCs is that of their members. Consequently, an Ohio logistics company formed as a limited liability company whose members are citizens of three different states takes on the citizenship of all three states, regardless of whether work is done in those other states. Taking it one step further, if the Ohio LLC's members are LLCs too, citizenship is traced through multiple levels, meaning each LLCs' members must be accounted for in determining diversity, which ultimately could immunize an LLC from being hauled into federal court. Whether you are the suing party or the one being sued, understanding the nuisances of federal procedure will reduce costs associated with either filing the Complaint or seeking removal.
IC status under siege by Senate
Thursday, December 31, 2009 by
Transportation Lawyer
Sen. John Kerry, D-Mass., has introduced legislation aimed at preventing employers in industries, including trucking, from misclassifying workers as "independent contractors" in order to avoid paying taxes or benefits.
The Taxpayer Responsibility, Accountability and Consistency Act of 2009 would amend the Internal Revenue Code to address Section 530 "safe harbor" provisions. Part of the Revenue Act of 1978, these provisions allow workers to be classified as "independent contractors" rather than "employees" in industries where such designations are part of long-standing, recognized practice.
RI text messaging ban
Wednesday, November 11, 2009 by
Transportation Lawyer
Rhode Island has passed a law that prohibits texting on cell phones while driving, making Rhode Island the 19th state to enact such a law. Drivers caught in the act of texting face a $85 fine for the first offense, followed by a $100 fine for the second. For the third account, offenders will have to shell out $125.
GAO Issues Employee Misclassification Report
Tuesday, September 29, 2009 by
Transportation Lawyer
The US Government Accountability Office recently issued a report outlining perceived issues relating to employee misclassification. The report focused on misclassification within the federal Department of Labor and Internal Revenue Service and included six recommendations for executive action by the DOL and IRS.
The GAO’s recommendations for executive action included:
Additional legislation relating to this report may yet be introduced in the 111th Congress.
The GAO’s recommendations for executive action included:
- increase DOL’s focus on misclassification of employees during targeted investigations
- encourage sharing of information regarding misclassification between the DOL’s wage and hour division and OSHA (also within the DOL), and that cases outside of DOL’s jurisdiction should be referred to the relevant agency
- establish a joint interagency effort between the DOL, IRS, and other federal and state agencies to address the misclassification of employees as independent contractors
- conduct worker outreach efforts, including the development of a standardized document on worker classification
- create an IRS forum to regularly collaborate with states to identify and address data sharing efforts relating to the QETP initiative
- extend the IRS Classification Settlement Program to include employers that volunteer to prospectively reclassify employees. Additionally, the report included discussion of limiting the “industry practice” prong of the reasonable basis test to establish Section 530 safe harbor.
Additional legislation relating to this report may yet be introduced in the 111th Congress.
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