Archive for category: Governmental Affairs and Communications

Caltrans Determines On-Hauling Materials Not Covered Work

/in ,

A determination made by Caltrans on July 8, 2024 and not yet publicly available, reversed a determination as to whether work on a specific project involving the on-haul of materials used for paving, grading, and fill at a public works site was covered work.

Materials were not integrated into the flow process of construction and the hauler had been hired by Granite Construction. Caltrans District Labor Compliance reviewed guidance and determined as the hauler was not hired by the material supplier, work for the on-haul of materials was covered, regardless of whether they were integrated into the flow process of construction.

The determination was disputed because materials were not integrated into the flow process. Caltrans original position was that because the trucking company was not hired by the material supplier, the material supplier exemption did not apply.

After an extensive review of existing law, regulations and DIR enforcement decisions, Caltrans stated the following criteria is to be used in determining whether work is covered:

  • A contract/project advertised on or after January 1, 2023
  • The materials are coming from a bona fide material supplier
  • The materials are being used for paving, grading or fill
  • The individual drivers work integrated into the flow process of construction

There is no substantiation under existing law, decisions and case law that supports the application of determining coverage based on the entity hiring the hauler, hence the work is not covered – Caltrans.

2023 LEGISLATIVE WRAP-UP: Bills either signed or vetoed by Governor Newsom

/in ,
  • VETOED: AB 376 (Villapudua), the WSTA-supported bill that would make state financial aid available to truck driving school students, was unfortunately vetoed, with the following veto message:

To the Members of the California State Assembly: I am returning Assembly Bill 376 without my signature. This bill would establish a pilot program available until January 1, 2028, for the purpose of expanding Cal Grant C eligibility to students participating in entry level truck driving programs that meet specific requirements. This bill also requires the California Student Aid Commission, in consultation with the Bureau for Private Postsecondary Education, to submit a report to the Legislature, by April l, 2027, about the pilot program. I thank the author for his commitment to address the driver shortage in the trucking industry. However, this bill results in significant General Fund cost pressures and staff workload that are not currently part of the state’s fiscal plan and are more appropriately addressed in the annual budget process. In partnership with the Legislature, we enacte1d a budget that closed a shortfall of more than $30 billion through balanced solutions that avoided deep program cuts and protected education, health care, climate, public safety, and social service programs that are relied on by millions of Californians. This year, however, the Legislature sent me bills outside of this budget process that, if all enacted, would add nearly $19 billion of unaccounted costs in the budget, of which $11 billion would be ongoing. With our state facing continuing economic risk and revenue uncertainty, it is important to remain disciplined when considering bills with significant fiscal implications, such as this measure. For this reason, I cannot sign this bill. Sincerely, Gavin Newsom

  • SIGNED: SB 253 (Wiener), the WSTA-opposed bill that will enact onerous emissions tracking requirements on businesses. Although, he also included the following signature message, which indicates that a clean-up bill will be necessary next year:

To the Members of the California State Senate: I am signing Senate Bill 253 which would require, among other things, the California Air resources Board (CARB), by January 1, 2025, to develop and adopt regulations requiring businesses with total annual revenues over $1 billion and operating in California to disclose their greenhouse gas emissions to an emissions reporting organization. This important policy, once again, demonstrates California’s continued leadership with bold responses to the climate crisis, turning information transparency into climate action. However, the implementation deadlines in this bill are likely infeasible, and the reporting protocol specified could result in inconsistent reporting across businesses subject to the measure. I am directing my Administration to work with the bill’s author and the Legislature next year to address these issues. Additionally, I am concerned about the overall financial impact of this bill on businesses, so I am instructing CARB to closely monitor the cost impact as it implements this new bill and to make recommendations to streamline the program. I look forward to working with the Legislature on these modifications to achieve this bill’s goals of “full transparency and consistency”

  • SIGNED: AB 251 (Ward), which will require the California Transportation Commission (CTC) to convene a task force to study the relationship between vehicle weight and injuries to vulnerable road users, such as pedestrians and cyclists, and degradation to roads, and to study the costs and benefits of imposing a passenger vehicle weight fee to include consideration of vehicle weight. The bill would require the CTC, by no later than January 1, 2026, to prepare and submit a report to the Legislature.
  • SIGNED: AB 314 (Patterson), which extends and expands modifications made to the sales and use tax exemption for trailers and semitrailers used in interstate commerce. Specifically, the bill extends the sunset date on AB 321’s (from 2019) expansion to the specific exemption for vehicles used in interstate commerce from January 1, 2024, to January 1, 2029 and adds used trailers or semitrailers into the exemption.
  • SIGNED: AB 844 (Gipson), which requires the Department of Insurance to collect specified data on the availability and affordability of insurance for heavy-duty trucks and truck fleets that utilize advanced fuels.
  • VETOED: AB 1614 (Gabriel), which would have required the Energy Resources Conservation and Development Commission (CEC), in coordination with CARB and the Governor’s Office of Business and Economic Development (GO-Biz), and in consultation with local air districts and local governments to conduct a study on the transitioning of retail gasoline fueling stations from providing gasoline to providing alternative fuels by January 1, 2027, was vetoed with the following veto message:

To the Members of the California State Assembly: I am returning Assembly Bill 1614 without my signature. This bill would require the California Energy Commission (CEC), in consultation with the Governor’s Office of Business and Economic Development, to conduct a study on the statewide transition of fuel stations from gasoline to alternative fuels. This bill will result in additional costs to the General Fund and the CEC’s primary operating fund, which is currently facing an ongoing structural deficit. This bill exacerbates the CEC’s operating funds structural imbalance. Additionally, many provisions of this bill are duplicative of existing law, which requires the CEC, in consultation with various state entities, to prepare a transportation fuels transition plan by December 31, 2024. In partnership with the Legislature, we enacted a budget that closed a shortfall of more than $30 billion through balanced solutions that avoided deep program cuts and protected education, health care, climate, public safety, and social service programs that are relied on by millions of Californians. This year, however, the Legislature sent me bills outside of this budget process that, if all enacted, would add nearly $19 billion of unaccounted costs in the budget, of which $11 billion would be ongoing. With our state facing continuing economic risk and revenue uncertainty, it is important to remain disciplined when considering bills with significant fiscal implications, such as this measure. With our state facing continuing economic risk and revenue uncertainty, it is important to remain disciplined when considering bills with significant fiscal implications, such as this measure. With our state facing continuing economic risk and revenue uncertainty, it is important to remain disciplined when considering bills with significant fiscal implications, such as this measure. For these reasons, I cannot sign this bill. Sincerely, Gavin Newsom

  • SIGNED: AB 1594 (Garcia), which requires any state regulation that seeks to require, or otherwise compel, the procurement of medium- and heavy-duty zero-emission vehicles to allow public agency utilities to purchase end of life replacements, without regard to the model year of the vehicle being replaced.

Governor Newsom also took recent action on the following CalChamber “Job Killer” bills:

  • VETOED: AB 524 (Wicks), which would have expanded the protected characteristics under the Fair Employment and Housing Act’s anti-discrimination provisions in employment to include family caregiver status, was vetoed with the following veto message:

To the Members of the California State Assembly: I am returning Assembly Bill 524 without my signature. This bill would add “family caregiver status” as a characteristic protected under the Fair Employment and Housing Act ‘s employment provisions. During my tenure as Governor I have consistently advanced policies to help parents and families, including expanding paid family leave and increasing the state’s investment in childcare. While I appreciate the intent of this bill, I am concerned about the large burden it will place on employers, particularly small businesses, especially given the ambiguous nature of the language. Although the bill does not require employers to provide “special accommodations” based on “family caregiver status,” it is not clear what types of acts would constitute unlawful discrimination and what types of acts would be lawful denials of “special accommodations.” Given this ambiguity, this bill would be difficult to implement and lead to costly litigation for employers in California. For these reasons, I cannot sign this bill. Sincerely, Gavin Newsom

  • SIGNED: AB 647 (Holden), which significantly expands statute related to successor grocery employers, including disrupting the ability for independent small stores to join together and creating a significant new private right of action.
  • SIGNED: SB 616 (Gonzalez), which imposes new costs and leave requirements on employers of all sizes, by nearly doubling existing sick leave mandate, which is in addition to all other enacted leave mandates that small employers throughout the state are already struggling with to implement and comply.
  • VETOED: SB 627 (Smallwood-Cuevas), which would have imposed an onerous and stringent process to hire employees based on seniority alone for nearly every industry, including hospitals, retail, restaurants and movie theaters, which will delay hiring and eliminates contracts for at-will employment, was vetoed with the following veto message:

To the Members of the California State Senate: I am returning Senate Bill 627 without my signature. This bill would require certain chain employers to provide workers and their exclusive representative, if any, with a displacement notice at least 60 days before an expected date of closure. Additionally, it would require a chain employer to maintain a preferential transfer list of eligible laid-off employees and make job offers based on length of service for one year after the closure date and provide an opportunity to transfer to another chain location within 25 miles, as positions become available. The new notice requirements, transfer rights, processes and criteria, and associated penalties established by this bill would impose significant burdens on employers. The arbitrary 25-mile radius for transfers does not take into account substantial regional differences among commute times. In addition, this bill applies to an overly broad list of establishments and creates vague processes and criteria, which will lead to implementation and enforcement challenges. For these reasons, I cannot sign this bill. Sincerely, Gavin Newsom

  • VETOED: SB 799 (Portantino), which would have allowed striking workers to claim unemployment insurance benefits when they choose to strike, was vetoed with the following veto message:

To the Members of the California State Senate: I am returning Senate Bill 799 without my signature. This bill allows individuals who left work due to a trade dispute to become eligible for Unemployment Insurance (UI) benefits. The bill also codifies case law that employees who left work due to a lockout by their employer, even if it was in anticipation of a trade dispute, are eligible for UI benefits. California employers fund UI benefits through contributions to the state’s UI Trust Fund on behalf of each employee. The UI financing structure has not been updated since 1984, which has made the UI Trust Fund vulnerable to insolvency. Any expansion of eligibility for UI benefits could increase California’s outstanding federal UI debt projected to be nearly $20 billion by the end of the year and could jeopardize California’s Benefit Cost Ratio add-on waiver application, significantly increasing taxes on employers. Furthermore, the state is responsible for the interest payments on the federal UI loan and to date has paid $362.7 million in interest with another $302 million due this month. Now is not the time to increase costs or incur this sizable debt. I have deep appreciation and respect for workers who fight for their rights and come together in collective action. I look forward to building on the progress we have made over the past five years to improve conditions for all workers in California. For these reasons, I cannot sign this bill. Sincerely, Gavin Newsom

  • Signed SB 244 (Eggman) – the Right to Repair Act – which requires manufacturers of an electronic or appliance product with a wholesale price to the retailer of not less than $50 to make available, on fair and reasonable terms, sufficient service documentation and prescribed functional parts and tools to owners of the product, service and repair facilities, and service dealers for specified timeframes. This bill provides that a city, a county, a city and county, or the state may bring an action in superior court to impose civil liability on a person or entity that knowingly, or reasonably should have known that it violated these provisions.
  • VETOED AB 316 (Aguiar-Curry) – Teamsters bill to prohibit autonomous heavy-duty trucks without a human driver, with the following veto message:

I am returning Assembly Bill 316 without my signature.  Among its provisions, this bill would ban driverless testing and operations of heavy-duty autonomous vehicles. Assembly Bill 316 is unnecessary for the regulation and oversight of heavy-duty autonomous vehicle technology in California, as existing law provides sufficient authority to create the appropriate regulatory framework. In 2012, the California Legislature provided the Department of Motor Vehicles (DMV) with the authority to regulate the testing and deployment of autonomous vehicles on public roads in California. As part of its oversight and regulatory responsibilities, DMV consults with the California Highway Patrol, the National Highway Traffic Safety Administration, and others with relevant expertise to determine the regulations necessary for the safe operation of autonomous vehicles on public roads. DMV continuously monitors the testing and operations of autonomous vehicles on California roads and has the authority to suspend or revoke permits as necessary to protect the public’s safety. Autonomous vehicle technology is evolving, and DMV remains committed to keeping our rules up to date to reflect its continued development in California. DMV held public workshops with interested stakeholders earlier this year to inform the development of future rulemakings for both light-duty and heavy-duty autonomous vehicles. This rulemaking will be a transparent, public process where subject matter experts and other stakeholders will have the opportunity to shape the regulations related to the safe operations of autonomous vehicles in California. The draft regulations are expected to be released for public comment in the coming months.

In addition to safety, my Administration has long been concerned with the impact of technology on the future of work – so much so that in 2019 we convened, with participation from a variety of organized labor leaders including the Teamsters, UFCW, and SEIU, a robust Future of Work Task Force. That effort led to the publication of a report that guides our work on issues of emerging technology and its impacts on California’s workforce. But our efforts don’t end there. I am committed to incentivizing career pathways and training for the necessary workforce specifically associated with this technology. As such, I am directing the Labor and Workforce Development Agency to lead a stakeholder process next year to review and develop recommendations to mitigate the potential employment impact of testing and deployment of autonomous heavy-duty vehicles. Considering the longstanding commitment of my Administration to addressing the present and future challenges for work and workers in California, and the existing regulatory framework that presently and sufficiently governs this particular technology, this bill is not needed at this time. For these reasons, I cannot sign this bill. My Administration remains open to working with the author, sponsors, and other stakeholders on the right approach to safely test and deploy this evolving technology in California, while also addressing and mitigating any potential impacts to jobs.

OOIDA Requests Preliminary Injunction Against AB5

/in ,

The Owner Operator Independent Drivers Association (OOIDA) Requests Preliminary Injunction Against AB5 Claiming that AB5 (and the Dreaded “ABC” Test) Violates the Commerce Clause of the US Constitution.

By G Spencer Mynko, ESQ

OOIDA has decided to take a shot against AB5 and the ABC test. Hoping to succeed where the California Trucking Association (CTA) failed, OOIDA is attacking AB5 utilizing a different legal theory. The CTA argued that AB5 and the ABC test were preempted by federal law, essentially stating that the State of California was encroaching upon legal territory exclusively occupied and controlled by the Federal Government. Unfortunately, we all know how the Federal Preemption argument ended up, with the Ninth Circuit US Court of Appeals, saying “Nahhh – No it doesn’t”, but only after writing 39 pages of legal bullshit for the benefit of people who didn’t smoke a joint before reading the opinion of the court.

Now, OOIDA is arguing that AB5 violates the Commerce Clause.

What is the Commerce Clause?

The commerce clause is an enumerated power, specifically listed in Article 1, Section 8, clause 3 of the United States Constitution. The clause states that the United States Congress shall have power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”. Pardon me while I geek out on legal mumbo-jumbo, but this is what the US Supreme Court said about the significance of the Commerce Clause in Gonzales v. Raich, 545 U.S. 1 (which incidentally is a case about medical marijuana):

“The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and

an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”

 

OOIDA’s lawyers essentially reiterated this in their motion requesting an injunction:

“The Commerce Clause gives Congress the authority to regulate commerce between the states. U.S. Const. art. I, § 8, cl. 3. This grant of authority implies a restriction on states’ authority to interrupt—by discriminating against or imposing improper burdens on—interstate commerce …. Giving Congress the authority over economic relations between the states “reflects a central concern of the Framers

that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” (See https://ecf.casd.uscourts.gov/doc1/037118727999)

 

Simply put, the commerce clause prevents individual states from enacting and enforcing laws that screw up how business is done when goods move throughout the United States. This is why trucks can travel from state to state and not have to transload at the border of every individual state. And the thrust of the argument here is that AB5 and its “ABC” Test violates the commerce clause. I will again quote from OOIDA’s motion:

“…AB-5 will impact interstate trucking operations nationwide, causing carriers throughout the U.S. to reevaluate their ability to serve the country’s most important shipping market. Thousands of trucking companies will be forced to decide between changing their business model or ceasing work in California altogether. The harm resulting from these decisions will be irreparable for many and will have a negative impact on supply chains. Enjoining enforcement of AB-5 against those truckers lacking a significant connection to California pending final resolution of this case is a crucial step in safeguarding the nation’s supply chain and the livelihoods of thousands of small business truckers.” (Id.)

 

Let’s hope OOIDA succeeds where the CTA failed.

Reprinted with permission by the Law Offices of G. Spencer Mynko, ESQ., Transportation Attorneys

HOURS OF SERVICE: Federal Changes to Short Haul Exemption – Not So Fast

/in ,

California “intrastate” operators won’t be able to take advantage of changes

Many in the trucking industry have been anticipating the long-awaited changes in hours-of-service rules to take advantage of flexibility options. However, the wait may take a little longer – it’s now up to the federal courts.

On Sept. 16th the coalition including the International Brotherhood of Teamsters, Parents Against Tired Truckers, Advocates for Highway and Auto Safety, and Citizens for Reliable and Safe Highways filed a last minute petition with the U.S. Court of Appeals for the District of Columbia Circuit to block the scheduled Sept. 29th implementation date.

Basically, the petitioners oppose all aspects of the newly revised HOS rules. Those changes include the following four provisions:

  • Short-haul Exception: Expands the short-haul exception to 150 air-miles and allows a 14-hour work shift to take place as part of the exception.
  • Adverse Driving Conditions Exception: Expands the driving window during adverse driving conditions by up to an additional 2 hours.
  • 30-Minute Break Requirement: Requires a 30-minute break after 8 hours of driving time (instead of on-duty time) and allows an on-duty/not driving period to qualify as the required break. NOTE: The 30-minute break requirement does not apply to those using the short-haul exception.
  • Sleeper Berth Provision: Modifies the sleeper berth exception to allow a driver to meet the 10-hour minimum off-duty requirement by spending at least 7, rather than at least 8 hours of that period in the berth and a minimum off-duty period of at least 2 hours spent inside or outside the berth, provided the two periods total at least 10 hours, and that neither qualify period counts against the 14-hour driving window.

The coalition did file individual comments during the rulemaking process opposing all the proposed changes to federal HOS rules. It is unknown at this time if their 11th hour filing to block the changes will result in an emergency stay.

California “Intrastate” Motor Carriers: Can’t Use New HOS Rules

If you operate only in California, under California’s unique HOS regulations, you will not be able to utilize any of the flexibility options. While California must allow drivers, whose HOS is governed by the federal government – not state, to log their hours according to the federal rules, that isn’t true for purely in-state trucking fleets.

While many states adopt federal rules into state law automatically by “reference,” California is a state that does not. All changes to HOS rules must go through a regulatory process initiated by the California Highway Patrol.

As of this writing, the association has been told by CHP there is no immediate plan to modify California’s short-haul HOS exception to match the federal exception, so California’s allowable short-haul will remain at 100 air miles/12 hours.

The association will continue to work with CHP to encourage a rulemaking that aligns/harmonizes the state’s allowable short-haul exception to match the federal but similar to California still not having an electronic logging device (ELD) mandate, this process is expected to take quite a while.

The bottom line is if your HOS are governed by California regulation, you cannot use any of the announced changes in HOS regulations approved at the federal level. There will be no enforcement leeway by CHP if caught violation. You risk being cited or even potentially placed out-of-service until coming into compliance with California regulation.

Overview of Difference Between Federal and California HOS Rules

FEDERAL HOS BASICS (49 CFR § 395)

 

(1)          11 hours driving

(2)          14 hours total duty window

(3)          10 hours off-duty mandatory

(4)          70-hour maximum workweek (8 days)

(5)          34-hour restart provision – general trucking

(6)          24-hour restart provision – construction trucking

(7)          Short-haul exemption – 150 air miles, 14-hour day (effective 9/28/20)

 

CALIFORNIA HOS BASICS (CCR Title 13, Division 2, Chapter 6.5, Article 3, Section 1212)

 

(1)          12 hours driving

(2)          16 hours total duty window

(3)          10 hours off-duty mandatory

(4)          80-hour maximum workweek (8 days)

(5)          34-hour restart provision – general trucking

(6)          24-hour restart provision – construction trucking

(7)          Short-haul exemption – 100 air miles, 12-hour day

 

Switching Between State and Federal HOS rules

 

When you make an out-of-state trip, or even if you haul a load from any port or rail yard, or a load that originated out-of-state that you will be delivering “last mile,” even where the pick-up and  final destination is solely in California, you must log federal HOS.

 

However, when you complete that federally regulated trip it is important to remember, you remain under the authority of US DOT for the remainder of your 60/70-hour period (i.e. 7-8-day schedule).

 

This means if you revert to local operations utilizing the short-haul exception to HOS rules, you are using the federal short-haul exception which does allow the increased flexibility (albeit a shorter workweek, 70 hours max versus 80).

 

We’d caution however that you include an explanation letter in the vehicle being operated because oftentimes a driver will not correctly define which HOS rules they are operating under and if they miscommunicate with roadside law enforcement they will likely be cited.

 

For a complete explanation of switching between state and federal HOS you can either go online to FMCSA, Section § 390.3: General applicability, Interpretations, Question 24. The pertinent information is towards the end of the explanation under the header “National Policy.” https://www.fmcsa.dot.gov/regulations/title49/part/390

 

If you have the management edition of the FMCSR’s (we supply this to all our members), open the book to Part 390 and go to DOT Interpretations for § 390.3, Question 24.

 

We anticipate the lack of conformity between state and federal short-haul exception rules is going to create confusion on everyone’s part. If you have any questions, please contact WSTA’s Director of Governmental Affairs, Joe Rajkovacz at (909) 982-9898.

DOT-FMCSA Preemployment Testing Changed from 30 to 90-days for Drivers Laid-off, Furloughed or Not Working for More than 30-days but Can Prove They Participated in a Drug Testing Program Prior to the Period

/in ,

Effective June 5, 2020, and ends September 30, 2020

On June 5, FMCSA released a “Grant of Waiver”, saying, “As employers begin to recall drivers who were furloughed, laid off, or otherwise not working for the company for more than 30 days, the cost and logistical barriers of testing a large influx of drivers in a short timeframe are significant, at a time when the commercial trucking and motorcoach industry is facing unprecedented economic challenges. This problem is further compounded by the reduced availability of controlled substances testing resources due to continued facility closures or other testing impediments caused by the COVID-19 public health emergency.”

FMCSA also noted that, “This waiver would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire. Allowing employers to forego pre-employment testing for drivers who were in a testing program within the previous 90 days will provide relief from the administrative burdens and costs associated with administering tests and allow them to return drivers to the workforce in a more efficient manner, thus promoting job creation and economic growth.”

The FMCSA’s waiver also clarified that, “It is important to note that this waiver does not alter any of the remaining controlled substances and alcohol use and testing requirements for a driver performing safety-sensitive functions, and that motor carrier employers subject to the waiver have access, in real time, to driver-specific drug and alcohol violation information through the Drug and Alcohol Clearinghouse (Clearinghouse).”

According to WSTA legal counsel, “The waiver appears to apply to both re-hires and new hires, provided they were in a program within the past 90 days.” Also, “The waiver clarifies that it “would extend, from 30 days to 90 days, the period under which drivers would qualify for the pre-employment testing exception under 49 CFR 382.301(b). This relief would allow employers to forego pre-employment testing for drivers who have participated in a controlled substances testing program that meets the requirements of 49 CFR part 382 within the previous 90 days of hire or rehire.” See 49 CFR 382.301(b) and (c).

This is a reasonable regulatory response to the pandemic and the subsequent return to work process the nation and its transportation companies and their employee drivers are presently experiencing. We suggest that for all employee drivers subject to the waiver, that the company add this document with the rehire dates on or after June 5, and insert it into the employee files noting that the preemployment drug test was waived.

For more details, visit the FMCSA web page https://www.fmcsa.dot.gov/emergency/three-month-waiver-response-economic-consequences-covid-19-public-health-emergency

To review the entire waiver click here:
https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-06/Waiver%20-%20Preemployment%20testing%20-%20FINAL%20-%20June%205.pdf