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Lane Departures: Why would California lawmakers saddle trucking with the ABC test?

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Well, he said he’d do it.

If you look elsewhere on this website, you’ll see a story I did about a week ago about AB5, a bill passed by the California Senate on September 10 into the waiting arms of Gov. Gavin Newsom, who had long telegraphed he was looking forward to signing it.

Yesterday, he did it. And come the new year, trucking is going to have to live with it.

AB5 — the full name is the “Employees and Independent Contractors” bill — is ostensibly intended to prevent employers from exploiting workers and skirting expenses by relying on “independent contractors” to make their businesses run instead of hiring full-fledged employees, who come with all kinds of nasty baggage like guaranteed minimum wages, overtime and payroll taxes, mandatory breaks, insurance and other horrific profit reducers.

The bill got off the ground in the wake of a court case last year in which a delivery company called Dynamex was determined to have improperly reclassified its workers as independent contractors in order to save money.  In making the decision, the court applied what is known as the ABC test, which presumes all workers should be classified as employees unless they meet three criteria.

Like the court case, the bill, which will codify the ABC test across the state, seems to have been at least in spirit aimed at companies like Dynamex that are part of that there so-called “gig economy” all the young folks are so hopped up about. Ride-sharing companies Uber and Lyft are almost always mentioned as Public Enemies 1A and 1B of supposed independent contractor charlatans.

The problem with AB5, its critics say, is it proposes to perform an appendectomy with a chainsaw, ripping into industries that have long-established business models that extensively use independent contractors to the satisfaction of all involved.

A great big example would be trucking, because it appears the ABC test would prevent carriers from contracting with owner-operators or smaller fleets in California. I’ll let you imagine the consequences if that’s true.

If you’ve read the article, or your planning to read the article, I’d like to apologize in advance because as I’ve been learning about this AB5 business, I have some lingering questions that I could not answer. I have calls out to a couple of experts on the legal and logistical nuances. Unfortunately, experts don’t observe journalistic deadlines.

But then, I figured, this story is going to be around a while, so we can keep building on what we know. I may have answers to some of these questions by the time you read this. Or maybe you will be able to provide some of the answers. I mean, you don’t need to have a title or a degree or be part of a think tank to know a thing or two.

My first question is this: They didn’t pull this ABC test out of thin air. A majority of states already use the test in some manner on matters of job status. California’s application of ABC is based on Massachusetts’ broad, strict use of the test. So, hasn’t trucking had to contend with this standard there and in in other states already? I haven’t heard reports of empty store shelves in Massachusetts. Is there some simple workaround already in existence just waiting for cooler heads to prevail?

Second, from what I gather, ABC has had its critics for as long as it’s existed. Is it just the sheer size of California’s economy that makes this case so important or somehow different?

I’m going to go way out on a limb and say “probably.” Last year, California’s economy outgrew that of Great Britain. If it were an independent country, California would have the fifth-largest economy in the world. And what happens in California rarely stays in California. The state has a major influence on the rest of the nation.

California’s economy is closing in on $3 trillion a year. Real estate, finance, the entertainment industry and that nest of tech behemoths in Silicon Valley are responsible for big chunks of that.

And let’s not forget agriculture. California ranches and farms reaped $50 billion in receipts in 2017. That’s a lot of food, a lot of truckloads.

California also has some of the nation’s largest seaports. The Port of Long Beach alone sees about $200 billion in cargo a year, with 11,000 truckloads leaving the port each day. And most of what doesn’t go by truck from there eventually winds up on a truck somewhere inland.

Add it all up, and trucking is a huge player in the California economic machine. Why would lawmakers want to strip its gears with this law? Some lawmakers are even on record saying they are worried about what this could do to the industry. Then why are they doing it?

The bill’s sponsor, Democrat Lorena Gonzalez of San Diego, is not some gung-ho rookie lawmaker. She’s in her third term, and she already has made a national name for herself as a champion of the working class with several pieces of legislation she has supported.

AB5 could fit into that collection quite nicely. But it isn’t a trophy she needs in a hurry. She won her last two reelection campaigns by about a 3-1 margin.

And she’s also been around enough that she surely understands that despite its best intentions, the broad-stroke, one-size-fits-all approach AB5 takes will do more harm than good to many industries, including trucking.

In fact, she’s as much as said so. Gonzalez has already indicated that once the bill becomes law, she’d be open to making amendments and granting exemptions.

So why wait? The bill already grants exemptions to real estate, to doctors and dentists. Even newspaper delivery people got a last-minute, one-year exemption.

The California Trucking Association and the Western States Trucking Association pushed for an exemption. Dozens of truck drivers testified in Sacramento. And you have to think state legislators are at least vaguely aware of what goes on in their own districts.

So, they could grasp the importance of the guy who throws a newspaper in their driveway from a passing car at 4 a.m., but not of the people who deliver, like, everything everywhere all the time?

We all know how long fixing bad legislation can take. Even if they put it on the “fast track,” how much damage will occur before trucking can get an exemption?

I did hear back from one legal expert on the matter. Greg Feary, president and managing partner at Scopelitus, Garvin, Light, Hansen and Feary LLC, said there are a couple of cases in Ninth Circuit Court that could spell relief for the trucking industry. Even so, the legal system can move almost as slowly as the legislative system. He estimates California truckers are going to have to live with AB5 for at least a year.

Questions abound. I’m not looking forward to some of the answers.

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1 Comment

  1. Mark Richardson

    September 24, 2019 at 2:33 pm

    A great big example would be trucking, because it appears the ABC test would prevent carriers from contracting with owner-operators or smaller fleets in California. I’ll let you imagine the consequences if that’s true.

    I doubt that is true. However, there has been lots of abuse of truckers through the independent contractor scam for quite a few years now too. \

    I feel that one big difference between owner-operators and the kind of independent contractors that the trucking industry has abused for many years is whether the contractor is stuck with forced dispatch. Most owner-operators aren’t.

    Let’s look back 40 years. Remember Midwestern Distribution in Fort Scott, KS? You could work there as a 2nd-seat company driver but the minute that you signed-up to be the proud owner of your very own Dollar-down Freightliner Cabover you were basically an independent contractor bound by not only forced dispatch and their $20 maintenance and toll-responsibility policy but also stuck with Midwestern’s higher than self-service cost fuel network plus stuck with their Fort Scott garage, where they were training diesel mechanics from Fort Scott Community College.

    Basically the place was a rip-off as only 1% of Dollar-down owners ever paid a truck off, and by then it needed a major overhaul. It was common there to start dropping revenue paid to the alleged truck owner until you were lucky to earn 75 cents per-mile. Lots of loads only paid 50 cents or less per-mile. Once their forced dispatch caused you to start losing money they fired you and hired another sucker that didn’t know any better.

    Do note that I had my very own Dollar-down Freightliner Cabover from September, 1979 to April, 1980 when I got run off and they sold/leased my truck to someone else. I didn’t find-out until the day I got fired that everyone wearing a green shirt in the Fort Scott company garage was a student at Fort Scott Community College who had been promised a $5000 set of Snap-On tools if they just completed the training program. Of course almost nobody ever completed the program. Basically they work almost for free just to get run off just the drivers got run-off.

    Then there was a company in Cleveland I drove for in 1987 that hauled overseas containers locally for Triton. It was called S & S Trasport. The guy had a fleet of well-used old Heinan’s grocery warehouse cab-forward Whites. Basically you were an employee except that the only way that the owner would hire you was as an independent contractor driving otherwise company trucks. He only paid $7.00/hour in 1987 with no benefits, no overtime even though 60 hours per-week was average, and he didn’t even pay your FICA taxes, you had to pay double. Triton dispatch was forced. What a lousy deal that was.

    Remember back around 1990 when the customers of hundreds of bankrupt LTL crossdock union freight lines had to pay full freight rates as the many bankrupt companies, some of them 60 years old by then, had been illegally discounting their rates below their published tariffs? Why do you think that so many old union freightlines went bankrupt? It was partially because of deregulation and partly because of all the non-union scam trucklines treating employees as independent contractors that undercut them.

    Speaking of the LA ocean ports, there have been several recent articles the covered the same scam independent contractor otherwise employee deal operating out of those ports. Imagine working 90 or 100 hours per-week and not even making minimum wage to drive an 18-wheel truck in LA traffic? It is a gross safety violation and yet up until this new California bill to outlaw treating otherwise employees as semi-independent contractors there has been almost no labor protection from companies that are willing to cut more corners than anyone else just to cut their operating costs to the bone, well below that of the average truckline.

    I remember earning as much as $3.50/mile gross in 1981 before deregulation mucked that up but good. I can see owner-operators remaining legal but not independent contractors that are bound by forced dispatch and bound be the owners wishes.

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39 people found dead in truck container in southeast England

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Police officers attend the scene after a truck, in rear, was found to contain a large number of dead bodies, in Thurrock, South England, early Wednesday October 23, 2019. Police in southeastern England said that 39 people were found dead Wednesday inside a truck container believed to have come from Bulgaria. (Associated Press: ALASTAIR GRANT)

LONDON — Investigators were trying to piece together the movements of a large cargo truck found Wednesday containing the bodies of 39 people in one of Britain’s worst people smuggling tragedies.

Details about the victims, including where they were from, were scarce. Police in southeast England said they have not been identified — a process they warned would be slow.

The truck’s driver — a 25-year-old man from Northern Ireland — was arrested on suspicion of murder. He has not been charged and his name has not been released.

He and other drivers who may have been at the wheel before him would have taken advantage of the European Union’s generally open borders to travel in several countries without border checks. Britain remains an attractive destination for immigrants, even as the U.K. is negotiating its divorce from the EU.

In Parliament, Prime Minister Boris Johnson put aside the Brexit crisis, at least for a few minutes, and vowed that the people traffickers would be found and prosecuted to the full extent of the law.

“All such traders in human beings should be hunted down and brought to justice,” he said.

Ambulance workers discovered the bodies after being called at 1:40 a.m. to a truck on the grounds of the Waterglade Industrial Park in Grays, 25 miles (40 kilometers) east of London on the River Thames. It was unclear who called the ambulance service.

No cause of death has been made public. Police said one victim appeared to be a teenager but gave no further details.

Police initially said the cargo truck had traveled through Ireland and then to Wales via ferry. But Essex police later said they believe the container with the people inside went from the port of Zeebrugge in Belgium to Purfleet, England, where it arrived early Wednesday. Police said they believe the tractor unit traveled from Northern Ireland and picked up the container unit.

“This is a tragic incident where a large number of people have lost their lives. Our inquiries are ongoing to establish what has happened,” Essex Police Chief Superintendent Andrew Mariner told reporters.

The cargo truck had a Bulgaria registration, Bulgaria’s Foreign Ministry said in a news release. But Bulgarian authorities said they could not yet confirm that the truck had started its journey there. The Foreign Ministry said the Swedish-made “Scania” truck was registered in the Bulgarian Black Sea port city of Varna to a company owned by a woman from Ireland.

“We are in contact with our embassy in London and with British authorities,” Foreign Ministry spokeswoman Tsvetana Krasteva said.

The number of victims was shocking, although it has become sadly common in recent years for small numbers of migrants to occasionally be found dead in sealed vehicles after having been abandoned by traffickers.

The tragedy recalls the death of 58 migrants in 2000 in a truck in Dover, England, and the deaths in 2015 of 71 migrants from Syria, Iraq and Afghanistan who were found suffocated in the back of a refrigerated truck that was abandoned on an Austrian highway close to the Hungarian border.

It seems likely the traffickers shunned the most popular English Channel route from Calais, France, to Dover, England because of increased surveillance at those ports and instead chose a more circuitous route.

Dover and Calais, which have been under pressure from human traffickers for years, have sniffer dogs, monitors and more advanced technological surveillance due to the fact that they are the endpoints for the Channel Tunnel between France and Britain.

Groups of migrants have repeatedly landed on English shores using small boats for the risky Channel crossing, and migrants are sometimes found in the trunks of cars that disembark from the massive ferries that link France and England, but Wednesday’s macabre find in an industrial park was a reminder that trafficking gangs are still profiting from the human trade.

“To put 39 people into a locked metal container shows a contempt for human life that is evil,” lawmaker Jackie Doyle-Price, who represents the region in parliament, told Parliament.

The National Crime Agency said its specialists were working to “urgently identify and take action against any organized crime groups who have played a role in causing these deaths.”

It said in May that the number of people being smuggled into Britain via cargo trucks was on the rise.

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CDL Meals forms partnership with American Association of Owner-Operators

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CDL Meals offers a variety of organic chef-prepared meals that help drivers make healthy eating choices while on the road. (Courtesy: CDL MEALS)

ANAHEIM, Calif. — CDL Meals, the division of Fresh n’ Lean focusing on healthful meal options for professional truck and bus drivers, has formed a partnership with the American Association of Owner Operators (AAOO).

CDL Meals offers a variety of organic chef-prepared meals that help drivers make healthy eating choices while on the road.

“We could not be more excited to launch our first healthy-eating alliance with AAOO,” said Bob Perry, director of CDL Meals. “We believe that people working in all industries deserve to live a healthy lifestyle and have access to the tools they need to ensure overall wellbeing, despite industry standards and limitations. CDL Meals has already made a positive impact on drivers and through this partnership, more operators can benefit from the quality meal plans.”

The American Association of Owner Operators is a nationwide organization dedicated to providing professional truckers and small fleet owners with the latest technology, benefits and assistance to advance in today’s trucking industry.

Perry said through the partnership, members of the AAOO will have access to CDL’s seasonal menus, free nationwide delivery and the promise of fresh, affordable meals on the road.

“We are so thankful the team at Fresh n’ Lean saw an opening to help improve the wellbeing of those in the trucking industry,” said David Huff, CEO of AAOO. “We are committed to helping drivers stay safe while out on the road so they can get back home to their family and friends. “Good nutrition is the most important part of staying healthy and staying healthy is a huge factor in staying safe. That’s why we are so excited to partner with CDL Meals and provide great tasting meals at an affordable price to our members.”

Perry said CDL Meals is a service formulated especially for commercially licensed drivers to deliver chef-prepared food items anywhere within the U.S. using organic ingredients to create balanced, wholesome meals. Each menu option consists of a combination of protein, healthy carbohydrates, and vegetables. All meals are delivered fresh and can be refrigerated for up to seven days. The vacuum-sealed trays can be heated quickly and enjoyed at any time.

Along with the meals, each purchase comes with a 14-page driver wellness education booklet that includes dietary tips, an exercise plan, and suggestions to improve overall health through simple lifestyle changes.

For more information on CDL Meals, visit www.cdlmeals.com.

For more information on AAOO, visit https://aaofoo.com

 

 

 

 

 

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NHTSA: Overall traffic fatalities in 2018 decline 2.4%, 2019 drop likely

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NHTSA said the fatality rate per 100 million vehicle miles traveled decreased by 3.4 percent (from 1.17 in 2017 to 1.13 in 2018), the lowest fatality rate since 2014. (Associated Press)

WASHINGTON — The National Highway Traffic Safety Administration Tuesday released highway crash fatality data for 2018, showing a 2.4% decline in overall fatalities, the second consecutive year of reduced crash fatalities.

“This is encouraging news, but still far too many perished or were injured, and nearly all crashes are preventable, so much more work remains to be done to make America’s roads safer for everyone,” said U.S. Transportation Secretary Elaine L. Chao said.

The data, compiled by NHTSA’s Fatality Analysis Reporting System (FARS), shows that highway fatalities decreased in 2018 with 913 fewer fatalities, down to 36,560 people from 37,473 people in 2017. The fatality rate per 100 million vehicle miles traveled also decreased by 3.4 percent (from 1.17 in 2017 to 1.13 in 2018), the lowest fatality rate since 2014.

The 2018 FARS release also clarifies previously released data on large trucks involved in fatal crashes. NHTSA reexamined supporting material and reclassified several light pickup trucks to an appropriate large truck category (10,000 lbs. gross vehicle weight ratings (GVWR). As a result, the 9% increase in large-truck-related fatalities reported for 2017 has been revised to 4.9%. For 2018, large-truck related fatalities increased by 0.9 percent. The details of the scope of the changes are documented in the 2018 fatal motor vehicle crashes overview research note.

No data was available on Class 8 tractor-trailer combinations.

Other findings from the 2018 FARS data include:

  • Fatalities among children (14 and younger) declined 10.3%
  • Alcohol-impaired-driving fatalities declined 3.6%
  • Speeding-related fatalities declined 5.7%
  • Motorcyclist fatalities declined 4.7 percent.

“New vehicles are safer than older ones and when crashes occur, more new vehicles are equipped with advanced technologies that prevent or reduce the severity of crashes,” said NHTSA Acting Administrator James Owens said. “NHTSA has spent recent years partnering with state and local governments and safety advocates to urge the public to never drive impaired or distracted, to avoid excessive speed, and to always buckle up.”

Jonathan Adkins, executive director of the Governor Highway Safety Association (GHSA) said the organization was pleased to see the 2018 decline and the estimated 3.4% dip thus far in 2019.

“A decline in 2019 would mark three straight years of fewer fatalities despite a strong economy, which typically correlates with increased traffic deaths,” he said. “However, the only acceptable level of deaths is zero, and we will not rest until that is achieved.”

Adkins said GHSA was glad to note progress in reducing alcohol-related, speeding-related and motorcyclist fatalities in 2018.

“The tremendous investments made today in highway safety have been beneficial, but clearly not commensurate with the need,” Adkins said. “GHSA is committed to working with our partners in the federal government, advocacy community and at the state and local level to accelerate the momentum toward zero deaths on our nation’s roadways.”

NHTSA said the projected 2019 decline translates to an estimated first-half 2019 fatality rate of 1.06, the lowest first-half level since 2015. The estimates for the second quarter of 2019 represent the seventh-consecutive year-over-year quarterly decline in fatalities, starting in the last quarter of 2017.

NHTSA is identifying opportunities to leverage its resources and collaborate with modal partners within USDOT to reduce fatalities among pedestrians and pedalcyclists (bicyclists and riders of two-wheel, nonmotorized vehicles, tricycles, and unicycles powered solely by pedals), among whom 2018 fatalities unfortunately increased by 3.4% (to 6,283) and 6.3% (to 857), respectively.

With the release of the 2018 and 2019 data, NHTSA also introduced its new Fatality and Injury Reporting System Tool (FIRST), a modernized crash query tool that lets users not only query fatal crash data but also generate estimates of crashes and people injured in crashes. The upgraded functionalities in the new tool include generating multi-year trends, estimates of alcohol involvement, and charting/tabulation/mapping of query results. The tool, along with instructions on its usage, can be accessed here.

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