BILL ANALYSIS
AB 880
Page 1
Date of Hearing: April 23, 2001
ASSEMBLY COMMITTEE ON TRANSPORTATION
John Dutra, Chair
AB 880 (Florez) - As Amended: May 1, 2001
SUBJECT : Drivers: commercial vehicles
SUMMARY : Modifies current law by making technical changes in the
law requiring prospective employers of motor carrier drivers to
obtain a Department of Motor Vehicles (DMV) report showing the
driver's current public record, and conforms controlled
substance and alcohol testing requirements to federal law.
Specifically, this bill :
1)Revises the provisions of current law requiring motor carriers
to make specified records available to the California Highway
Patrol (CHP), by authorizing both DMV and CHP to adopt
regulations implementing these provisions.
2)Requires every driver, subject to the above provisions, to
report to a collection center at the direction of their
employer or consortium for controlled substance or alcohol
testing.
3)Requires that every driver who tests positive be advised by
their employer, or by the drug testing consortium, of the
resources available to the driver for evaluating and resolving
problems associated with the misuse of alcohol and the use of
controlled substances.
4)Requires DMV to provide a noncompliance form, as described, to
a third party administrator who is under an exclusive contract
with the DMV for reporting a driver who has received a
verified positive finding for controlled substance and alcohol
use.
5)Requires the third party administrator to establish and
maintain a separate data base file for all drivers who are
currently deemed medically unqualified, and limits access to
those records to employers and potential employers of those
drivers.
6)Allows access by DMV and CHP to those files, but only for
statistical and oversight purposes.
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7)Requires DMV to charge a fee to employers who participate in
the program for each access request made.
8)Declares that it does not affect or abrogate any collective
bargaining agreement providing for controlled substance and
alcohol use testing, choice of Medical review Officer (MRO),
or choice of Substance Abuse Professional (SAP).
9)Declares that no employer shall be held civilly liable for
good faith compliance with these provisions.
10)Clarifies through specific section definition that
owner/operators are to be treated like any other employee and
that the appropriate remedy is to revoke their motor carrier
permit.
11)Declares that the MRO and SAP shall have the final say on the
status of the driver, pursuant to current law.
FISCAL EFFECT : Unknown
COMMENTS : After the incident involving a big rig crashing into
the Capitol's south side, this bill brings to the forefront the
need for increased safety screening mechanisms for motor carrier
drivers. This bill sets up a data base for keeping track of drug
and alcohol testing results for commercial drivers. The data
base would be run by a third-party administrator under contract
with DMV. Employers would be able to access the information for
current and prospective employees. DMV and CHP would have
access to information for statistical and contractual oversight
purposes only. Fees to cover the cost of the data bank would be
paid by the employers that access it. Those fees are to be set
by DMV.
This bill makes it easier for employers to locate this
information on prospective employees.
The California Teamsters Public Affairs Council believes that
the bill goes too far and oppose this legislation. It states
that there is already a comprehensive uniform national drug and
alcohol testing program in place, and argues that if California
was to adopt a special state program, federal law would preempt
it. However, this is generally true only in areas where state
law conflicts with federal law, unless the federal government
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intended to preempt state law to create national uniformity.
The relevant questions are whether or not the federal government
intended to eliminate all state regulation in the same field,
and whether or not national uniformity is necessary to
effectiveness.
Additionally, opponents argue that the current program is
successful since positive test results in random drug testing is
only approximately 1.3% and that intoxication of commercial
drivers is a factor in less than 1% of fatal collisions. For
purposes of comparison, intoxication is a factor in 17% of
automobile accidents. They also raise concerns about placing
information about drivers on an internet-accessible state data
base and assert that this is a violation of federal privacy
provisions. Furthermore, they argue that the numerous legal
immunities created by this bill will have the effect of
weakening the current drug and alcohol testing program by
immunizing employers and medical review officers from civil
liability when they fail to test, report inaccurate test
results, make false accusations, and engage in other acts of
negligence. They assert that the fear of civil liability is one
of the prime motivating factors for employers to participate in
the program. Moreover, a bureaucratic third party administrator
system is counter-productive to responsible business practices.
Under the current system, the employer makes the decision of
when to place a driver back in service. Under this system,
opponents argue, the employer can make unsound business
decisions based on whether or not a driver's name appears on a
data base.
The author has amended this bill to address some of these
concerns. The amendments establish that DMV, not a third party,
shall administer the data base, that owner operators shall be
treated the same as any other employer, and that immunity under
this bill shall only be for the employer. Other parties are
protected under federal law. They also clarify that the
protection granted unions is one of recognizing their grievance
process and their choice of MROs and SAPs. Further, to counter
the concern that of an individual driver's records becoming lost
or mishandled in DMV bureaucracy, the amendments clarify that
the MRO and SAP have the final say on the status of a driver,
pursuant to current law.
The author and proponents argue that the bill closes several
loopholes uncovered by the California Drug-Free Commercial Truck
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and Bus Driver Task Force set up by AB 2597 (Murray), Chapter
772, Statutes of 1998. One loophole involves job-hopping by
substance abusing drivers. The current shortage of truck
drivers (estimated to be about 80,000 jobs nationwide) makes
finding another truck driving job fairly easy. Today,
positive-testing drivers can quit their truck driving job and
get hired tomorrow at a different trucking company without
mentioning the previous employment. Other loopholes in the
state's drug testing laws allow a self-employed owner/operator
to continue driving after a failed drug test, because they are
self-monitoring. This bill would allow companies who hire or
lease these owner/operators to quickly check their eligibility
to drive. Other drivers avoid tests entirely by simply leaving
their jobs when a random drug test is called.
One important loophole that the bill addresses is the definition
of health care professional. Under existing law, a health care
professional includes doctors, physician's assistants, advanced
nurse practitioners and doctors of chiropractic. This bill
declares that only a licensed physician may evaluate a person's
mental competency.
Proponents argue that a central repository of information, where
trucking companies can determine which job applicants are
currently unqualified to drive due to a failed drug or alcohol
test, would go a long way toward solving the problem.
Related Legislation: AB 1262 (Migden) seeks to solve this same
issue through stricter CHP inspections of commercial motor
carriers for safety and controlled substance testing compliance,
whenever more than half of a company's drivers are replaced
within a 30-day period. This billed is strongly supported by
several labor organizations.
SB 871 (Burton) increases civil liability for victims of
accidents involving commercial motor carrier drivers. Treble
damages are recoverable when injury is proximately caused by a
driver of a commercial motor vehicle, if the driver was under
the influence of alcohol or a controlled substance at the time
of injury and the employer failed to comply with specified
requirements. This bill is also strongly backed by labor.
SB 1171 (Scott), currently in the Senate Rules Committee, will
create new safety standards for start-up trucking companies.
This bill is sponsored by the California Trucking Association
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REGISTERED SUPPORT / OPPOSITION :
Support
California Trucking Association (sponsor)
California Overnight
Eel River Fuels, Inc.
Glendale Builders Supplies
Hart Truck Rental & Leasing
JDL Corporation
Joe L. Coelho, Inc.
Kamps Propane
MacMillan Trucking, Inc.
R. J. Miles Company
Reliable Trucking, Inc.
Robert V. Jensen, Inc.
Roy E. Lay Trucking
Royal Trucking
Tom-Son Tank Lines, Inc.
Trans Valley Transport
Truckmen Great West
Van-G Trucking
Westen Freight Systems, Inc.
Opposition
California Labor Federation
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
United Transportation Union
California School Employees Association
California Professional Firefighters
California Labor Federation, AFL-CIO
Jennifer Pena, registered nurse and nurse practitioner student
Analysis Prepared by : Joseph Furtado / TRANS. / (916)
319-2093