Drivers' Rights

[Part Time Dweller]

I see someone finally picked a screen name that describes him to a "T".

[Useless]

I see someone finally picked a screen name that describes him to a "T".

A wee bit new here to be making such assumptions, PTD!!! I didn't get to where I am in life by being a "know-it-all; I did it by listening to people who were smarter than me, and more knowledgeable than I am. Quite to the contrary, I frequently paid then considerable sums of dinero to tell me why I was wrong!!!

The one catch was that they had established track records of knowing what they were talking about!!!

In any event, Welcome To The Board :rock:

As I stated earlier, when it comes to Myth Maker and Dawns ability to serve as "Cut and Paste" Specialist, I will be the first to say that they are amongst the best!!

When it comes to actually knowing what they are talking about, and being able to properly extrapolate and articulate an issue, there have been too many times when each one of them has been proved dead wrong.

We have quite a few real drivers here who have driven more miles in reverse that either one of these people have ever driven foreword. I'd put my money on them.

Once again, Welcome to the board!!!

[Part Time Dweller]

Thanks for the welcome useless. I have lurked here for a while, just decided to join the circus.

Now how did you know I was referring to you? :P

Any ways, I have known Myth Buster on various boards for a long time. He is good at C&P, but what he posts is law, not opinion. whether you want to agree with the law or not, that is your choice. He does agravate some, like you, that would rather hear the truckstop lwyer version than read actual law and make a decision as to how it pertains to them.

[Useless]

Thanks for the welcome useless. I have lurked here for a while, just decided to join the circus.

Now how did you know I was referring to you? :P

Because you are not the first person to suggest that, nor will you be the last!!

Any ways, I have known Myth Buster on various boards for a long time. He is good at C&P, but what he posts is law, not opinion.

The problem is that in all to many cases, Myth Makers interpretation of the law is all wrong. Any poser can cut and paste.

whether you want to agree with the law or not, that is your choice. He does agravate some, like you, that would rather hear the truckstop lwyer version than read actual law and make a decision as to how it pertains to them.

I don't need a truck stop lawyer; I already have two lawyers who I can consult if I need leagal advice. Myth Maker would have us believe that the rules and regs. which are stipulated exist in the form of "Black and White", which is why attorney's love to get ahold of guys like him. They are very easy to discredit!!

[kc0iv]

Not necessarily, if the tests was done outside the parameters of the US DOT requirements then the test cannot be reported as positive.

WRONG Nothing precludes an employer from reporting any additional information to DAC. What they can't do is replace D.O.T. requirements by using some other testing method. EX. In addition to standard D.O.T. drug testing an employer also requires hair testing. The results of BOTH of these test can be reported to DAC. D.O.T. has no control over DAC.

kc0iv

he was not talking about dac,he was talking about reporting the test results to DOT

Sat Jan 13, 2007 5:27 pm Myth_Buster said: "It is imperative for drivers to know their rights and when drug testing is mandated and when carriers have expanded drug and alcohol testing requirements. Test performed outside of the FMCSR cannot be reported as positive to subsequent employers. The same should apply to DAC Services. D & A test results are confidential; any release to an unauthorized party could result in civil action against the offender.

On Sat Jan 13, 2007 6:20 pm Myth_Buster said: "What if the employer fired your sorry azz because you tested positive, then reported to DAC you tested positive?"

Sat Jan 13, 2007 7:15 pm Myth_Buster said:"Not necessarily, if the tests was done outside the parameters of the US DOT requirements then the test cannot be reported as positive."

I know you would like to try to support Myth_Buster but as I have shown you are wrong.

As I said before D.O.T. has NO control over what is reported to DAC.

kc0iv

[Myth_Buster]

Useless:

I still get a laugh when I think about how you listed your so-called "qualificatioons"; ...."been around trucks"........ rode in a logging truck with my uncle when I was 13y/o!!!! DAYUMM!!! That was funny!!!

Well, lets just say that having been involved in trucking since I was 13 has given me a vast understanding of how things work. I consider myself a aware of the issues trucking has problems with. I worked my way up from, helper, to logistics manager, to driver, to computer systems, to enforcement, so I know a thing or three about trucking and it's not limited to what the safety department told me about fudging the regs to get by or what another driver told me. :wink:

I don't need a truck stop lawyer; I already have two lawyers who I can consult if I need leagal advice. Myth Maker would have us believe that the rules and regs. which are stipulated exist in the form of "Black and White", which is why attorney's love to get ahold of guys like him. They are very easy to discredit!!

:wink:

I'd put my cases settled record up against any attorney who have challenged the cases prepared. The cases prepared contain the physical evidence, and applicable cites in the regulations to prove the case.

Docket 22203

The regs have what is referred to as case law. Case law allows the FMCSA's interpretation of the regulation to stand up in court when challenged by attorneys. As an example Roe -vs- Wade is the case law cited by attorneys for women's right to abortion. Please, please don't start a rant on abortion, I'm using the example as I know it is a very familiar case that people will recognize for the discussion offered.

The point is drivers may read the regulations and not be aware of policies and procedures based on case law and the fact the regulation had already been challenged and the court decided the FMCSA's interpretation was factual to the law.

I've said it once and I'll say it again. The information offered is factual, the circumstances are real. People can make a decision on whether or not to use the information to their benefit. The net sayers who bash those knowledgeable in the regulations is irrelevant and the ney sayers are not as well informed as they would like to think.

The point is readers have to make the decision on what to accept. The bickering is moot.

PTD, welcome aboard.

Be safe.

[Useless]

Sat Jan 13, 2007 5:27 pm Myth_Buster said: "It is imperative for drivers to know their rights and when drug testing is mandated and when carriers have expanded drug and alcohol testing requirements. Test performed outside of the FMCSR cannot be reported as positive to subsequent employers. The same should apply to DAC Services. D & A test results are confidential; any release to an unauthorized party could result in civil action against the offender.

On Sat Jan 13, 2007 6:20 pm Myth_Buster said: "What if the employer fired your sorry azz because you tested positive, then reported to DAC you tested positive?"

Sat Jan 13, 2007 7:15 pm Myth_Buster said:"Not necessarily, if the tests was done outside the parameters of the US DOT requirements then the test cannot be reported as positive."

I know you would like to try to support Myth_Buster but as I have shown you are wrong.

As I said before D.O.T. has NO control over what is reported to DAC.

kc0iv[/quote]

Does appear to be slightly contradictory, does it not??

[kc0iv]

KC0iv

WRONG Nothing precludes an employer from reporting any additional information to DAC. What they can't do is replace D.O.T. requirements by using some other testing method. EX. In addition to standard D.O.T. drug testing an employer also requires hair testing. The results of BOTH of these test can be reported to DAC. D.O.T. has no control over DAC.

KC, there would have to be a signed release from the driver for the carrier to release the information to DAC.

§ 40.321 What is the general confidentiality rule for drug and alcohol test information?

Except as otherwise provided in this subpart, as a service agent or employer participating in the DOT drug or alcohol testing process, you are prohibited from releasing individual test results or medical information about an employee to third parties without the employee's specific written consent.

(a) A “third party” is any person or organization to whom other subparts of this regulation do not explicitly authorize or require the transmission of information in the course of the drug or alcohol testing process.

(b) “Specific written consent” means a statement signed by the employee that he or she agrees to the release of a particular piece of information to a particular, explicitly identified, person or organization at a particular time. “Blanket releases,” in which an employee agrees to a release of a category of information (e.g., all test results) or to release information to a category of parties (e.g., other employers who are members of a C/TPA, companies to which the employee may apply for employment), are prohibited under this part.

I haven't seen an employer release statement for DAC; however, if the form did not include a specfic section for releasing information on non-DOT tests then an employee would have a civil case under the Fair Credit Reporting Act.

An employer could not release drug test information to DAC services without the employee's written consent. The DOT controls the employer's obligation to safe guard the tests results and not release the data without the written consent of the employee.

Useless, I deal with know it all drivers on a frequent basis. The first words out of their mouth are usally; "Well I didn't know that." "When did the rule change?" or "I've been doing it this way for 20 years and no one has ever said anything before.".

I picture you being one such driver. :twisted:

Despite you and a few others I'll keep pinging away as I know there are some who appreciate the info. :wink:

Be safe.

You have now moved outside the realm of what D.O.T. has to say and into the realm of civil law. Dealing with the Fair Credit Reporting Act is best left to lawyers. Of which I'm sure you are not one.

In addition I would first find out just what employees have sign and not signed before you make these types of blanket statements.

I'd suggest you stick with what you know and leave other matters to those that do know.

kc0iv

[Myth_Buster]

Does appear to be slightly contradictory, does it not??

Not when taken in text, the point was drivers have to know when the employer can or cannot release the information. The original post offered the applicable regulation and cites of the regulations that applied.

The post offered scenarios of when a driver's rights may have been violated.

The post is correct, the side discussions are relevant to the questions asked after the post were made.

Sheesh, get a grip Useless you cannot take the answer to one question and apply it to the topic as a whole.

Just another attempt to distract from the original post and poke holes based on incomplete data.

Be safe.

[Useless]

Does appear to be slightly contradictory, does it not??

Not when taken in text, the point was drivers have to know when the employer can or cannot release the information. The original post offered the applicable regulation and cites of the regulations that applied.

The post offered scenarios of when a driver's rights may have been violated.

The post is correct, the side discussions are relevant to the questions asked after the post were made.

Sheesh, get a grip Useless you cannot take the answer to one question and apply it to the topic as a whole.

Just another attempt to distract from the original post and poke holes based on incomplete data.

Be safe.

Now, you are talking in circles, Myth Maker!!

One moment, you want to paint your cut and paste quotations as being "Black and White"; the next thing you know, when someone calls a Bull &h*t Alert on you with your own previous contradictory postings, you try to argue that the situation is not always so black and white!!

[Part Time Dweller]

Echo Echo Beep.

[Useless]

Echo Echo Beep.

Quite an attitude for an 11 Post Wonder. Anything of substance you'd care to add!!

[kc0iv]

I'd put my cases settled record up against any attorney who have challenged the cases prepared. The cases prepared contain the physical evidence, and applicable cites in the regulations to prove the case.

Docket 22203

Myth_Buster The case you refer to was not case law. It was a ruling BEFORE THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION with a reference to another ruling by them IL-2004-02 16-USO769. This is not case law like your example of Roe v Wade.

Since this ruling was only signed on Jan 3, 2007 and WEST AGRO, INC. has 20 days to petition for reconsideration the final outcome is yet to be determined. In addition WEST AGRO could go to court and challenge this ruling. I doubt this would happen being the amount is only $6,500. Not a large amount seeing the size of WEST AGRO, INC. Who I use to work for their parent company DeLavel a division of Alfa Laval a multi-billion dollar company.

So Myth_Buster if you are going to cite case law then quote case law not some ruling by FMCSA. Or maybe you don't know the difference. In that case I suggest you talk to one of the many lawyers at FMCSA and have them explain the difference.

kc0iv

[glasman2]

glasman2:

Simple response to this is....Don't do drugs

What if your employer asked to take a drug test because you slipped and hurt your leg? The carrier wants to know if drugs contributed to the accident?

Is slipping and hurting your leg justification for doing a D & A test?

What if the test came back positive for morphine because you went to the emergency room immeadiately after the fall and received medication that contained trace elements of morphine?

What if the employer fired your sorry azz because you tested positive, then reported to DAC you tested positive?

PFM, offer some friendly advice and azzhats here want to moan and groan.

Don't read the post folks, move on.

Be safe.

First off, I don't care if they test me. It's the company dime and I would get paid an hour to do nothing but pee, 2 hours if I couldn't pee at the time.

He wouldn't fire my sorry azz because "I DON'T DO DRUGS"!!
Also in the line of work I did, I hope they catch people doing drugs because I DON'T WANT TO WORK WITH THEM.

If you look at my name it sums up what I did for a living. I was a glazier ( glassman) I don't want to be on the other end of a big sheet of glass with someone stoned out of his gourd. In fact ... one time I was driving down the road with a fairly new employee and he pulled out a pipe and started smoking some pot. I pulled off the freeway, opened his door and told him to get the F out of my truck.

I have NEVER worked for a company that tested you because you slipped and fell, not saying it couldn't happen, but hasn't. Also If I fell and went to emergency and got "doped up" I would not return to work, that's called using your head and not getting hurt or hurting others.

I did not moan and groan I gave an honest answer.

And as for calling me a "sorry azz" Look in the mirror dork butt.


Have a good day................

[glasman2]

What if the test came back positive for morphine because you went to the emergency room immeadiately after the fall and received medication that contained trace elements of morphine?

Forgot to answer this...
IT WOULD BE DOCUMENTED THAT A DOCTOR GAVE ME MORPHINE.

That was a really stupid example.

[Part Time Dweller]

Anything of substance you'd care to add!![/color]

You first :shock:

[Myth_Buster]

Kc0iv:

You have now moved outside the realm of what D.O.T. has to say and into the realm of civil law. Dealing with the Fair Credit Reporting Act is best left to lawyers. Of which I'm sure you are not one.

In addition I would first find out just what employees have sign and not signed before you make these types of blanket statements.

I'd suggest you stick with what you know and leave other matters to those that do know.

I would not have mentioned the FCRA if it was not relevant. This topic is on driver’s rights, therefore, the Fair Credit Reporting Act is a relevant issue:

§ 613. Public record information for employment purposes [15 U.S.C. § 1681k]

(a) In general. A consumer reporting agency which furnishes a consumer report for employment purposes and which for that purpose compiles and reports items of information on consumers which are matters of public record and are likely to have an adverse effect upon a consumer's ability to obtain employment shall

(1) at the time such public record information is reported to the user of such consumer report, notify the consumer of the fact that public record information is being reported by the consumer reporting agency, together with the name and address of the person to whom such information is being reported; or

(2) maintain strict procedures designed to insure that whenever public record information which is likely to have an adverse effect on a consumer's ability to obtain employment is reported it is complete and up to date. For purposes of this paragraph, items of public record relating to arrests, indictments, convictions, suits, tax liens, and outstanding judgments shall be considered up to date if the current public record status of the item at the time of the report is reported.

(b) Exemption for national security investigations. Subsection (a) does not apply in the case of an agency or department of the United States Government that seeks to obtain and use a consumer report for employment purposes, if the head of the agency or department
makes a written finding as prescribed under section 604(b)(4)(A).

The scope of my duties have required I expand my knowledge base into OSHA, EPA, INS, and NTC territory. It's difficult to advise people of their options if you don't know the sorce.

Useless:

Now, you are talking in circles, Myth Maker!!

One moment, you want to paint your cut and paste quotations as being "Black and White"; the next thing you know, when someone calls a Bull &h*t Alert on you with your own previous contradictory postings, you try to argue that the situation is not always so black and white!!

The post started with ”What if”, the question was asked to reiterate the importance of drivers to know their rights.

Kc0iv:

Myth_Buster The case you refer to was not case law. It was a ruling BEFORE THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION with a reference to another ruling by them IL-2004-02 16-USO769. This is not case law like your example of Roe v Wade.

Since this ruling was only signed on Jan 3, 2007 and WEST AGRO, INC. has 20 days to petition for reconsideration the final outcome is yet to be determined. In addition WEST AGRO could go to court and challenge this ruling. I doubt this would happen being the amount is only $6,500. Not a large amount seeing the size of WEST AGRO, INC. Who I use to work for their parent company DeLavel a division of Alfa Laval a multi-billion dollar company.

So Myth_Buster if you are going to cite case law then quote case law not some ruling by FMCSA. Or maybe you don't know the difference. In that case I suggest you talk to one of the many lawyers at FMCSA and have them explain the difference.

kc0iv

The decision was made by the Chief Safety Officer after hearing the attorney’s objections to the case. The CSO sets case law for the FMCSA.

Glasman2:

Forgot to answer this...
IT WOULD BE DOCUMENTED THAT A DOCTOR GAVE ME MORPHINE.

That was a really stupid example.

No, the example provided a situation where a driver could tests positive and without the safety net provided by the FMCSR a driver could be terminated for a drug test when the drugs were prescribed.

Folks, I’ll leave you with this. The topic is real, the call was real, the situation is real, I provided a shorter version of the message to simplify the jargon.

For those interested feel free to absorb the material, for the ney sayers, deal with it. You don’t have a clue of what happens in the industry on a daily basis. Drivers frequently complain they received an unjustified negative DAC Services report. This post is one of two post that discuss the legal issues of employer’s releasing information when unauthorized.

The other topic is here on this forum DAC Services and Part 391.23

Be safe.

[glasman2]

My answer is still "don't do drugs problem solved"
As for getting fired because you went to emergency and got doped up from a DOCTOR, it would never hold up. Sure they could fire me, but I would own 1/2 the company.

Get over it....

You don't know me and I don't appreciate being called a sorry azz.

[kc0iv]

Kc0iv:

You have now moved outside the realm of what D.O.T. has to say and into the realm of civil law. Dealing with the Fair Credit Reporting Act is best left to lawyers. Of which I'm sure you are not one.

In addition I would first find out just what employees have sign and not signed before you make these types of blanket statements.

I'd suggest you stick with what you know and leave other matters to those that do know.

I would not have mentioned the FCRA if it was not relevant. This topic is on driver’s rights, therefore, the Fair Credit Reporting Act is a relevant issue:

The scope of my duties have required I expand my knowledge base into OSHA, EPA, INS, and NTC territory. It's difficult to advise people of their options if you don't know the sorce.


Kc0iv:

Myth_Buster The case you refer to was not case law. It was a ruling BEFORE THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION with a reference to another ruling by them IL-2004-02 16-USO769. This is not case law like your example of Roe v Wade.

Since this ruling was only signed on Jan 3, 2007 and WEST AGRO, INC. has 20 days to petition for reconsideration the final outcome is yet to be determined. In addition WEST AGRO could go to court and challenge this ruling. I doubt this would happen being the amount is only $6,500. Not a large amount seeing the size of WEST AGRO, INC. Who I use to work for their parent company DeLavel a division of Alfa Laval a multi-billion dollar company.

So Myth_Buster if you are going to cite case law then quote case law not some ruling by FMCSA. Or maybe you don't know the difference. In that case I suggest you talk to one of the many lawyers at FMCSA and have them explain the difference.

kc0iv

The decision was made by the Chief Safety Officer after hearing the attorney’s objections to the case. The CSO sets case law for the FMCSA.

Glasman2:

Forgot to answer this...
IT WOULD BE DOCUMENTED THAT A DOCTOR GAVE ME MORPHINE.

That was a really stupid example.

No, the example provided a situation where a driver could tests positive and without the safety net provided by the FMCSR a driver could be terminated for a drug test when the drugs were prescribed.

I would not have mentioned the FCRA if it was not relevant.

Well OOIDA would love to have won their lawsuit against DAC but it didn't happen. Seems the courts don't agree with your interpretation. But I'm sure you are right and the court was wrong.

The decision was made by the Chief Safety Officer after hearing the attorney’s objections to the case. The CSO sets case law for the FMCSA.

I hate to bust your bubble Myth_Buster (really I don't like to) there is no such thing as [u]The CSO sets case law for the FMCSA[\u] setting CASE LAW. Case law is determined in a court of law. Either by civil or crimial law. Now the CSO might rule by previous rulings and some also base these ruling on previous court ruling but it is NOT case law. Go to http://en.wikipedia.org/wiki/Case_law for a clear understanding as to what is case law. Or http://www.answers.com/topic/case-law Or yet another found at http://legal-dictionary.thefreedictionary.com/case+law

case law n. reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents. These interpretations are distinguished from "statutory law" which is the statutes and codes (laws) enacted by legislative bodies, "regulatory law" which is regulations required by agencies based on statutes, and in some states, the Common Law, which is the generally accepted law carried down from England. The rulings in trials and hearings which are not appealed and not reported are not case law and, therefore, not precedent or new interpretations. Law students principally study case law to understand the application of law to facts and learn the courts' subsequent interpretations of statutes.

How many more examples do you need?

In your responce to Glasman2

No, the example provided a situation where a driver could tests positive and without the safety net provided by the FMCSR a driver could be terminated for a drug test when the drugs were prescribed.

There is no law that restricts an employer from reporting a failed drug test by any additional test which the employee failed. The test you refer to is just one point of the rules as set forth by FMCSA.

You really should limit yourself to the portions where you have some knowledge and leave the other areas to others. These truckdriver CB lawyer really make the balance of your post look dumb.

kc0iv