We have been promising for a while the association would be taking action related to California enforcing its meal & rest break requirements on employers. During the week of July 9th while I was in Washington D.C. we filed a petition with US DOT asking them to preempt California under federal law from enforcing its law on a unique subset of trucking companies. The petition can be viewed on here.
It almost seems not a week goes by without us hearing about another member being sued for allegedly violating this law. Most cases are quietly settled out-of-court for large sums simply because our predominantly small-business members don’t have the financial resources to mount an effective legal defense. Basically, our members are being legally extorted (in my opinion), often by drivers who have a history of setting up employers for this type of litigation.
In July 2014 the Ninth Circuit Court of Appeals in San Francisco upended the idea that motor carriers were preempted under federal law from complying with California meal and rest break requirements for truck drivers. The case is known as Dilts v. Penske and the USDOT supplied a decisive brief to the court saying they did not view the California law as preempted.
The American Trucking Association has been working diligently in Washington D.C. attempting to get language into a wide assortment of bills that would put an end to this type of litigation (we do support their efforts). There have been numerous attempts over the past couple of years to include what is termed “Denham language” into various federal bills. “Denham” refers to Rep. Jeff Denham (R-CA) who originally authored specific language effectively prohibiting states from undermining the intent of congress in 1994 to deregulate “intrastate” trucking. The bill that deregulated “intrastate” trucking was sponsored by then Rep. James Oberstar (D-MN) and is titled the Federal Aviation Administration Authorization Act of 1994 (H.R. 2739).
Unfortunately, legislative fixes appear to be elusive in a congress that will only pass “clean bills,” which means, even with Republicans running the show, they still need Democrats to support bills in order to get them to the President’s desk for signage and become law. All attempts at including “Denham language” in legislation are termed a “poison pill” by Democrats and have been enough to continually get the language stripped.
Lee and I have discussed multiple strategies to help our members on this issue. One of the major problems in our opinion with effectively moving the ball forward in a positive way has been the “narrative” being used to describe this issue. Every article uses large, even multi-national companies such as Walmart, JB Hunt, and Schneider National who have paid hundreds of millions of dollars for alleged violations after court decisions. Frankly, once it was done to them it paved the way to be done to all others – especially small-businesses. Nobody is hearing that it is now small-businesses bearing the brunt of the legal “shakedown.” Both Lee and I couldn’t get the Wall Street Journal to understand this; we were told their ONLY obligation is to report on publicly traded companies. What a crock.
Legislatively, the “narrative” needs to change. While we don’t think what happened to the biggest of the big is defensible, the political reality is they don’t engender much sympathy from politicians – especially when their company headquarters are not within a representative’s district. Most politics is local.
My trip to D.C. was designed to deliver the small-business narrative on the damaging effect of these types of lawsuits. I also delivered a petition we hope will finally change the primary reason USDOT has staked out its position to not preempt California – namely, safety.
The Missing Safety Argument
There has been a previous attempt to petition USDOT to preempt California. It was rejected by USDOT in December 2008 in the waning days of the Bush Administration. USDOT cited a lack of any safety linkage – the only reason it could preempt. In the Dilts v. Penske brief filed by USDOT that supported the plaintiff Dilts, not the trucking industry, the lack of any negative safety linkage related to complying with meal & rest break requirements was decisive.
In late 2014 the Federal Motor Carrier Safety Administration published a petition from the Specialized Carrier & Rigging Association (SC&RA) where they asked to be exempted from the federal 30-minute rest break requirement. The WSTA filed supportive comments to the SC&RA request and in June 2015 the exemption request was granted. Importantly, in granting the exemption request FMCSA gave the following justification:
“FMCSA has evaluated SC&RA’s application and the public comments and decided to grant the exemption. The arguments against the exemption are not trivial… Nonetheless, finding suitable parking for trucks with OS/OW loads is particularly difficult, as SC&RA pointed out, and the default option is likely to be parking on the shoulder of a highway, with the load sometimes extending into the lanes of traffic. No matter how well marked, trucks parked at roadside, especially at night, are too often mistaken for moving vehicles and struck, frequently with fatal consequences, before an inattentive driver can correct his mistake.” (Emphasis added).
There it is; the safety related rationale for our preemption request – missed by everyone else and not used effectively in any legal case thus far. It is ultimately about where do you park a long combination vehicle to comply with California requirements? We all know the answer, alongside a roadway – the most unsafe place of all. Our petition narrowly focuses on our members who transport permit loads within California. The goal is simple: get the safety rationale accepted by USDOT once and for all and expand it later.
The lack of available, safe truck parking is a national issue, recognized by congress. It’s time USDOT recognized the negative safety ramifications from continuing to allow any state to insert itself into the hours-of-service of drivers. The only winners have been plaintiff’s lawyers.