CSA Training Could Affect Owner-Operators, Some Industry Officials Worry

This story appears in the June 28 print edition of Transport Topics.

Some trucking executives said they are concerned that providing additional training to their drivers to meet the federal government’s new safety program may put their independent contractor status at risk.

Even though federal regulators told Transport Topics that additional training for the Federal Motor Carrier Safety Administration’s safety monitoring system — CSA 2010 — was unlikely to cause fleets to run afoul of labor laws, industry representatives said they remained concerned.

There is a line when “you’re starting to provide [drivers] a set of core skills that really starts to look like you’re an employer and they are an employee,” and carriers may find themselves crossing that line with CSA 2010, said Greg Feary, managing partner at the law firm of Scopelitis, Garvin, Light, Hanson & Feary.

One of CSA 2010’s seven violation categories is driver fitness, and within that category there are numerous violations that count against the fleet based on a driver’s training, or lack thereof.

“As soon as you start training an independent contractor driver . . . on the system that’s going to be used to measure them, I think you have the potential to cross the line to training them on core skills that as independent professionals they should bring to the job,” Feary said.

Richard Reiser, executive vice president and general counsel of Werner Enterprises Inc., said the tension between safety training and contractor status was “not a new concern.”

“Are they still independent if they are trained too much . . . ? You run the risk that they won’t be,” Reiser said. “We’ve always been responsible for our owner-operators from a safety standpoint, but you’re caught in the middle on that training because of the internal revenue code.”

Reiser said there should be “some kind of safe harbor provision” that allows fleets to provide safety training to their owner-operators without jeopardizing the contractor status of those drivers.

Meanwhile, Kevin Burch, president of Jet Express Inc., said that he’s been dealing with the intricacies of contractor status for nearly 20 years, and the Dayton, Ohio, carrier was setting those concerns aside to educate all of its drivers.

“As soon as we knew this [CSA 2010] was coming down, we notified everyone — company drivers or owner-operators — about the program,” he said.

“Safety is safety,” Burch continued, adding that he “would challenge anyone to say that for me to help assist an owner-operator in understanding what it takes to be safe or to comply under CSA 2010” violates their contractor status.

“This isn’t loads and pay or benefits and health care and all that, I’m way above that. I’m thinking about safety and the change in the process from SafeStat to CSA 2010,” he said.

Burch said Jet is conducting a program that has identified the fleet’s 20 lowest-scoring drivers, regardless of classification, under the CSA monitoring system and company officials are “going to sit down and educate them and we’re going to track them” through the end of the year.

Candice Tolliver, an FMCSA spokeswoman, told TT that all carriers should make sure their drivers — company or contractor — are fully knowledgeable about CSA 2010 and the agency’s other safety rules.

“A carrier’s [safety] training . . . should not affect the carrier’s tax or other financial responsibilities,” Tolliver said.

According to the Department of Labor, regulators look at the entire relationship to determine if a worker is an employee or an independent contractor, and increased safety training would not by itself be enough to change a driver’s status.

Despite the Labor Department’s position, Feary said carriers still should be concerned because “DOL is merely one of many agencies, both at the state and federal level, that all have their own set of policies and legal tests.”

In addition, Feary said the Labor Department “tends to be slightly less Draconian and evangelical on the contractor issue than other agencies.”

“The FMCSA doesn’t concern itself with issues with independent contractor status and while the [Internal Revenue Service] certainly has a concern on that issue, it has no concern . . . with CSA 2010,” Feary said.

The IRS did not respond to requests for comment.

Feary said that fleets can protect themselves in many ways, ranging from providing owner-operators with voluntary CSA 2010 training for a fee, to testing new owner-operators before bringing them aboard. Ideally, he said, carriers would require an owner-operator to provide some certificate of training on CSA 2010.

Fleets might not run into trouble immediately, Feary said, adding that issues may arise a year or two into the program.

“You might get away with training an independent contractor under CSA 2010 as it is rolled out because it is new for everybody and . . . everybody’s getting training to understand it,” he said. “But over time, motor carriers are going to have to start asking themselves the question: ‘Am I in trouble if I provide too much training to an owner-operator who’s holding himself out as an independent truck-driving professional?’ ”