MCAA welcomes new Director of Government Affairs Shawn Swearingen. Shawn J. Swearingen has joined the Messenger Courier Association of America (MCAA) as Director of Government Affairs. He brings extensive experience in government relations to the position at the country’s largest trade association in the same-day, last mile delivery industry.
Previously, Swearingen was State Policy Manager for the Ambulatory Surgery Center Association (ASCA). Prior to ASCA he was a Legislative Associate for a leading issues management firm in Arlington, Virginia.
Fed. Bans Mobile Phones for Commercial Motor Vehicle Drivers
The Federal Motor Carrier Safety Administration (FMCSA) released a final rule that went into effect on January 3, 2012 that restricts the use of hand-held mobile phones by drivers of commercial motor vehicles (CMVs). This restriction includes mobile devices with the push-to-talk (PTT) function as well. The use of CB or two-way radio was not included in this rule.
MCAA submitted a letter on behalf of its members to the Department of Transportation during the open comment period in February of 2011 for the FMCSA proposed rule, asking for the use of PTT to be permitted. The MCAA requested changes were not included in the final rule.
Commercial motor vehicle drivers can use a mobile phone as long as it is within the rules of the regulation defined by: used by the touch of a single button, device must be within reach, and cannot be held in the hand. Since the device cannot be held in the driver’s hand it may be mounted on the control panel of the vehicle, using a speaker phone function or Bluetooth device. The PTT function was specifically pointed out to be restricted as the driver must hold it in hand as well as push a button multiple times.
Drivers who violate the restriction will face federal civil penalties up to $2,750 for each offense as well as disqualification from operating a commercial motor vehicle for multiple offenses. States can suspend a driver's commercial driver's license (CDL) after two or more serious traffic violations. Commercial truck companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000.
The FMSCA rule can be viewed here along with answers to frequently-asked questions.
MCAA Signs Independent Contractor Letter to Capitol Hill
MCAA signed on to a letter to the Joint Select Committee on Deficit Reduction to preserve the status of independent contractors. To view the letter click here. Twenty-one other national associations and companies signed the letter to Congress.
MCAA Opposes California Legislation
MCAA has drafted written comments in opposition to California Senate Bill 459, which seeks to hold employers responsible for "willful misclassification" of an employee as an independent contractor. The legislation does nothing to clarify or outline a clear and objective test that employers may utilize to determine if an individual is an employee or independent contractor. MCAA’s California lobbyist continues to work with other coalition partners to amend the legislation.
On Friday, September 9th, the California legislature passed SB 459 which would penalize and impose severe financial penalties (up to $25,00 per violation) against any company that “willfully misclassifies” any individual as an independent contractor. Furthermore SB 459 requires an employer who has been found to have willfully misclassified an individual to: post a notice on the company website stating that the employer has committed a serious violation of the law. The bill does nothing to clarify the definition of who qualifies for independent contractor status.
MCAA’s California lobbyist Chris Micheli worked with a coalition of business interests to get several key modifications made to the bill before passage but given the political makeup of the state Assembly this is still a very bad bill. At the encouragement of MCAA, over 60 members submitted a letter urging Governor Brown to veto SB 459 – members with operations in and outside of California. Mr. Micheli then hand delivered MCAA's member letters to the Governor’s office.
MDA Legal Case
MCAA continues to support the Massachusetts Delivery Association’s lawsuit against the Massachusetts Attorney General. The lawsuit was filed because the state is violating federal law by barring delivery companies from utilizing independent contractors. Earlier this year, the federal district court in Massachusetts dismissed the lawsuit but the ruling is currently under appeal.
In August 2011, MCAA and AEMCA submitted a joint amicus brief in support of the Massachusetts Delivery Association’s legal appeal. The Massachusetts Attorney General’s office must submit their brief by September 14 and then the Massachusetts Delivery Association has until September 28 to submit their reply brief.
MCAA Bill
MCAA has drafted federal legislation aimed to clarify the independent contractor test and better codify the Section 530 safe harbor provision in the tax code. We have been meeting with several friendly members of the House Ways and Means Committee about sponsoring our legislation. More information will be available soon.
Noble Logistics Request for Publication
MCAA has submitted a request for publication in the California Court of Appeal’s decision in the Stull v. Noble Logistics legal case. This case involved the determination of independent contractor status. It received a favorable decision from a trial judge and has recently received a favorable ruling at the California Court of Appeal level as well. The MCAA letter cited the legal significance of the decision and its potential usefulness in future cases.
Nevada Legislation Vetoed
Nevada Governor Sandoval vetoed Senate bill 207 & 208. Both of these bills were very harmful to courier companies operating in the state. Rick Chase, MCAA Board member, testified before the Nevada Senate Labor Committee about the negative aspects of the two pieces of legislation earlier this year. MCAA also followed up with a veto request letter to the Governor immediately after the two bills were sent to his desk.
Follow Twitter
MCAA Government Affairs has created a Twitter page to keep our members in the loop about our many government affairs activities on the state and federal level. We will provide quick updates pertaining to our lobbying efforts and other interesting political news coming out of Capitol Hill. Click @MCAAGovtAffairs and sign up to follow MCAA Government Affairs on Twitter!
DOT Proposal to Ban Driver Cell Phones
MCAA submitted comments on the United States Department of Transportation proposed rule to restrict the use of hand-held cell phones by drivers of commercial motor vehicles while operating in interstate commerce. In MCAA’s comments, we advocated for the use of push-to-talk technology devices and stressed the need for drivers to be able to communicate regularly with the dispatcher.
NCOIL Finalizes Model Act
The National Conference of Insurance Legislators (NCOIL) finalized their Trucking and Messenger Courier Industries Workers’ Compensation Model Act. The final model legislation provides six criteria for determining independent contractor status as well as outlines penalties and enforcement. MCAA has been engaged with NCOIL for several years to ensure their various model bills are favorable to the courier industry.
Senator Brown Bill
United States Senator Sherrod Brown (D-OH) has introduced legislation aimed at preventing worker “misclassification.” Senate Bill 770 was introduced with two cosponsors, Senator Tom Harkin (D-IA) and Senator Richard Blumenthal (D-CT), and has been referred to the Senate Committee on Health, Education, Labor, and Pensions. Similar legislation was introduced in the 111th Congress and a congressional hearing was held in June 2010. The previous legislation did not make it out of the committee.
If you notice any one piece of legislation in your area that needs special attention or if you are aware of any local action being taken on specific legislation or regulations, please click here to submit your information. This way we can ensure a well coordinated effort on behalf of the courier industry.