Rigged!

Rigged!

non sequitur (nŏn sĕk′wĭ-tər, -too͝r″) noun: An inference or conclusion that does not follow from the premise or evidence.

rig: 1. To manipulate or control, usually by deceptive or dishonest means; 2. A tractor-trailer combination.


On January 6, 2020, US Department of Transportation’s (USDOT’s) Federal Motor Carrier Safety Administration (FMCSA) rolled out its Drug and Alcohol Clearinghouse, and consequently, on that day, handed unscrupulous trucking companies the power to not only fire a truck driver without cause, but by flagging him in this federal clearinghouse, the power, also, to blacklist the driver and ruin his career, again, without cause.

In other words, in a noble yet myopic attempt at protecting America’s traveling public from being killed or maimed on its roadways by truckers under the influence of “substances” FMCSA established that in instances in which, for whatever reason, a truck driver has failed to remain at a drug testing facility, it is the employer’s responsibility to decide whether that driver has “refused” a drug test. “This is a non-delegable duty of the actual employer” according to DOT Rule 49 CFR Part 40 §40.355(i), but according to FMCSA, 49 CFR 382.217(c), “A driver's refusal to submit to a drug or alcohol test is ‘generally’ [emphasis added] equivalent to testing positive to a drug or alcohol test;” and because the system is rigged to insulate trucking companies and “service agents”—drug testing facilities—from responsibility for the trucker’s “failure” in this instance, FMCSA instead hangs truck drivers out to dry who’ve been flagged by their former employers, and there are, as the reader will deduce, situations in which an unscrupulous trucking company might abuse this regulation to retaliate against a truck driver over some trivial matter completely unrelated to “substance use,” especially since the consequences for the driver are unequivocal, and in most cases, insurmountable: the immediate removal of that driver from all “safety-sensitive functions,” ending, effectively, the driver’s trucking career, whether that driver was on drugs or alcohol or not. The only way, really, for a trucker—whether on drugs or alcohol or not—to ever hope to get a trucking job again after being flagged in the Clearinghouse by their employer is to enroll in FMCSA’s “Return-to-Duty (RTD)” program. The problem is that RTD is very time-consuming, expensive, and in the end, for obvious reasons—risk, reputational damage, and the hassle involved in dealing with the program—most trucking companies will not hire a “Substance Abuse ‘Program’” [sic] “SAP” driver.

Now, there are a couple of ways for a trucker to “appeal” a Drug and Alcohol Clearinghouse flag. First, anyone who has ever visited FMCSA’s Drug and Alcohol Clearinghouse website may have run across a link to “file a petition to initiate a data review.” Well, unless you only wish to correct a misspelling of your name or some other clerical error in your Clearinghouse profile, you will accomplish nothing by following this link. The only real avenue that exists for an appeal of a flag in the Clearinghouse is to file what is called a “Part 10 Privacy Act Review.” (It took me several days of digging through FMCSA’s Code of Federal Regulations (CFRs) to uncover this erstwhile administrative remedy.) But the fact is that the turn-around on appeals to FMCSA takes a long, long time. That is because FMCSA is a huge government bureaucracy run by idiots. If you do decide to appeal a flag, after many months you will probably receive an email from someone with a name, who will basically regurgitate to you words similar to these:

“Mr. Avo Cado filed a petition for removal of the refusal to test violation under the Privacy Act, which FMCSA denied on March 28, 2023, because his argument that he was unaware that he was required to remain at the testing site is not an excuse or defense for violating the regulation.”

Indeed, and in support of this author’s contention that FMCSA intentionally insulates all other parties—especially the testing facility and trucking company—from liability in the event that a driver ‘fails’ to remain at a testing facility, DOT Rule 49 CFR Part 40 § 40.193 Q&A states that:

There is no requirement for a collector to inform an employee that the failure to remain at the collection site is a refusal. Therefore, if the collector does not inform an employee that failure to remain at the collection site is a refusal, it does not mean that the collector has given the employee permission to leave the collection site. If an employee leaves prior to the completion of the testing process, the employer must decide whether the employee’s actions constitute a refusal.

And in answer to the question of to what extent the employer is responsible for educating their drivers in the protocols of drug and alcohol testing, literally, 49CFR § 382.601: Employer obligation to promulgate a policy on the misuse of alcohol and use of controlled substances,

49 CFR 382.601(a) requires that “each employer [] provide educational materials that explain the requirements of this part and the employer's policies and procedures with respect to meeting these requirements,”

49 CFR 382.601(a)(1) requires that “the employer [] ensure that a copy of these materials is distributed to each driver prior to the start of alcohol and controlled substances testing under this part and to each driver subsequently hired or transferred into a position requiring driving a commercial motor vehicle,” and

49 CFR 382.601(b)(8) requires “an explanation of what constitutes a refusal to submit to an alcohol or controlled substances test and the attendant consequences.”

DOT Rule 49CFR § 382.601 stipulates several other such requirements in addition to those enumerated here, and I am here to tell you from my own personal experience that Western Express Inc. did none of these things, and I suspect, based on my own experience and research, that this lack of adherence to DOT Rule 49CFR § 382.601 is endemic to the entire trucking industry. Most likely that is because the “educational materials,” if they are provided at all, are provided only as required. Whether the driver reads and understands the Drug and Alcohol regs and the consequences of running afoul of them redounds to the driver entirely, not his employer. It may very well be the case that the “educational materials” DOT requires employers disseminate to prospective employees under 49 CFR 382.601(a) do in fact get disseminated (and) signed as part of the massive trove of forms recruits sign as part of the pre-hiring process, but it has been my personal experience that, inexplicably, there is no formal discussion of those materials, neither in CDL-A School, company orientation, nor in OTR training, and there really had aught to be.

For instance, since the day I began my trucking career, the first time I ever read or heard the words “Return-to-Duty (RTD)” or “Substance Abuse Professional (SAP)” was in the days, weeks, and months after my driver manager (DM) called me on the phone and told me, “Um yeah, well, unfortunately, James, I have to terminate you for ‘failing to remain at that drug testing facility’ last week.”

“What the #### are you talking about, man?” I said. I didn’t fail any drug test. What the #### am I supposed to do now?

“Well,” said the DM, “I dunno. I think there’s ‘some kind of course’ you can take…”

Yeah, the “course,” as I would later discover, on my own, is FMCSA’s Drug and Alcohol Clearinghouse “Return to Duty (RTD)” program.

Now, one other option at one’s disposal who might want to try getting a flag removed in the Clearinghouse, other than hiring a Substance Abuse Professional (SAP), is to hire a lawyer instead, (as one might do who has been flagged in the Clearinghouse, despite the fact that he was NOT on drugs or alcohol). Of course, lawyers are very expensive, most know nothing of federal transportation law, and will not even attempt a case against FMCSA, especially since, as one attorney told me, such a case is “unlikely to result in a ‘money judgement in your favor,’” (or in his, I might add).

And that is when you admit to yourself that, yes, your employer, Fastway Trucking and Logistics Inc. has ruined everything you have worked for over nothing, and the only way you will get your trucking career back is by taking responsibility for the situation, as fundamentally illogical and unfair as it may be, and going and hiring a SAP and going through RTD, which you will undoubtedly discover is an off-ramp to a goat trail to a dead end.

So, in closing, concerning FMCSA’S methodology in its promulgation and enforcement of drug and alcohol compliance policy, is there a need for reform? Absolutely, otherwise, unscrupulous employers like Western Express Inc. will use the Clearinghouse to blacklist naïve, albeit innocent, employees.

Disclaimer: If there is a trucking company somewhere out there with the handle “Fastway,” then please forgive me. The use of your company’s name—which by the way, I think would be way cool—is purely coincidental.

Sincerely,

James Thomas Lukasavage

Trucker Forever

 

I didn't fail. Just because somebody says something about you doesn't make it true.

 

That,s just it. I didn't get a chance to "sign in." Read "Goat Trail." No "authorization" without "undue delay." No "intake." When a DM sends a driver to testing facility for his first "random," that DM has at least a moral obligation to provide that driver continuity of supervision through the testing process, not take a lunch break and leave his driver twistin' in the wind.