Gregory J. Reigel
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May 17, 2019

Avoiding Drug And Alcohol Testing “Gotchas.”

The drug and alcohol testing requirements of 14 C.F.R. Part 120 and 49 C.F.R. Part 40 continue to cause issues for aviation employers. An initial decision in a recent civil penalty action, In the Matter of Regency Air, LLC, highlights two areas of potential confusion and risk faced by an aviation employer.

In Regency the FAA assessed a civil penalty of $17,400 against the employer for alleged violations of drug and alcohol testing regulations in connection with its hiring and use of mechanics. As you may know, aircraft maintenance is a “safety-sensitive function” that may only be performed by an employee who is included in the employer’s drug and alcohol testing program. Regency appealed the FAA’s order and a hearing was held before a Department of Transportation Administrative Law Judge (“ALJ”) which highlighted several drug and alcohol testing “gotchas.”

In one instance, Regency argued that the mechanic performed his work as a favor to Regency and since Regency did not compensate the mechanic for the work, the mechanic was thus not an employee subject to drug and alcohol testing. However, the ALJ rejected that defense stating that an "employee is an individual who is hired, either directly or by contract, to perform a safety-sensitive function for an employer”, and an individual is “hired” for a safety-sensitive function when he or she is retained “as a paid employee, as a volunteer, or through barter or other form of compensation.” Thus, even though the mechanic was a volunteer working without compensation, he was still considered an employee when he was performing safety-sensitive functions on behalf of Regency.

Another issue in the case arose from a mechanic’s employment by two separate employers. Although the mechanic was included in the first employer’s drug and alcohol testing program, Regency had not added the mechanic to its program. In analyzing the issue, the ALJ initially observed that “an employer may use a contract employee without including the contract employee in its own drug and alcohol testing program if: (1) the contract employee is subject to testing under the contractor’s drug and alcohol testing program, and (2) the work is performed on behalf of that contractor. The ALJ then determined that the mechanic performed the work in question it was performed on behalf of the first employer as a contractor for Regency, and as a result, the mechanic did not need to be included in Regency’s drug and alcohol testing program.

Drug and alcohol testing regulations can be tricky and complicated. However, misunderstandings and/or non-compliance with the regulations are serious and potentially very expensive. If you have questions about the regulations or whether you are complying with the regulations please contact me and I will be happy to help.

Posted by Greg

May 03, 2019

Use Of A Registered Agent's Address On An Application For Aircraft Registration Is Not Acceptable

Many companies organized as corporations or limited liability companies routinely use a registered agent in states where the company does business. This is especially true when a company is set up under the laws of other states, such as Delaware. And a company's use of a registered agent and the agent's address is certainly acceptable in many business contexts. However, the FAA recently issued a Legal Interpretation rejecting this practice when an applicant submits an FAA Form 8050-1 Application for Aircaft Registration.

The FAA gave two reasons why this practice is unacceptable: (1) the registered agent’s address is not the mailing of the applicant; and (2) the registered agent’s address is not the physical address of the applicant. The FAA stated "if the applicant’s physical address is not listed on the Form 8050-1, it is our opinion that the Application for Registration is not completed in accordance with 14 C.F.R. §47.31(b)(1)." Additionally, §47.45 requires that an applicant/aircraft owner provide a physical address/location if different from a new mailing address.

Although a registered agent is permitted to sign an application for aircraft registration on behalf of the applicant/aircraft owner, the applicant must comply with §47.13 (the agent must sign as agent/attorney-in-fact and include a power of attorney signed by the applicant/aircraft owner). And even then the aircraft owner's address must be used on the application (because the application asks for the owner's address, not the address of the owner's agent).

If the FAA determines that a registered agent's address has been used, the FAA will reject the application. This will result in delays in getting the aircraft's registration transferred to the applicant/aircraft owner and in obtaining the hard-card registration certificate.

Posted by Greg

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