Since the highway bill was under consideration this past year, driver compensation has become a new, and intense, battleground in Congress.
At the core of the issue is the decision on intrastate driver pay in California handed down by the U.S. Court of Appeals for the 9th Circuit that ruled in favor of non-driving time compensation for truck drivers.
California doubled down on its intention that any employee in the state compensated on a piece rate (for truckers, pay by the mile) standard be compensated for all rest breaks and “non-productive” time under the employer’s control. A new law stating such went into effect Jan. 1.
Large motor carriers are lobbying Congress intensely to try to insert legislative language into a bill that would circumvent the 9th Circuit rulings and prohibit states like California from mandating compensation for rest breaks and traditionally “nonproductive” and thereby non-compensated time for intrastate drivers.
Currently, the language attempting to remove states’ ability to mandate has been inserted into aviation bills in both the Senate and the House. The aviation industry, much as trucking has a highway bill, has multiyear funding and a policy-directing aviation bill.
The Senate Commerce, Science, and Transportation Committee marked up and approved their version of the bill via voice vote on Wednesday, March 16. Senate Commerce Chairman John Thune said he hopes to bring the bill up for Senate floor consideration in April.
The Senate bill is S2658, The Federal Aviation Administration Reauthorization Act of 2016.
The House version, HR4441, the Aviation Innovation, Reform and Reauthorization Act of 2016 was introduced in the House Feb. 3, and assigned to the House Transportation and Infrastructure Subcommittee on Aviation. After the Feb. 11 markup, the subcommittee voted 32-26; the bill awaits consideration on the House floor.
Enter Rep. Peter DeFazio, D-Ore. On Monday, March 21, he lashed out at the continuing attempts by large motor carriers to hamper living wages for truck drivers and specifically at Section 611 in the AIRR Act. He presented a statement in opposition to Section 611 to the Congressional Record.
“Congress should be looking at ways to help the men and women in the trucking industry to earn living wages, not passing laws that further put the squeeze on drivers as they fight gridlock to deliver loads,” he wrote.
DeFazio’s statement detailed how the 9th Circuit ruling and the subsequent California law that went into effect Jan. 1 affects intrastate truck driver pay in California.
“The (9th Circuit) case was not a case that affected drivers moving goods from coast to coast. It was a case involving local appliance delivery drivers who never left California,” DeFazio wrote in his statement.
“The trucking companies supporting Section 611 argue that a driver would have to pull off the road at inconvenient times or in potentially unsafe situations to take a break. That is simply not true. In fact, case law has specifically established that employers do not have to require employees to take a break. They simply must permit it by relieving employees of duties or pay employees for the time.”
In a move that could surprise some, the Department of Transportation even got involved in the 9th Circuit case.
According to DeFazio, the DOT filed an amicus brief in this case in support of the drivers, “marking the first time the federal government has taken a position on intrastate pre-emption.” He said the DOT argued that there is a presumption against pre-empting states from exerting control over certain regulatory realms and that “labor laws are a clear area of traditional state control.”
Finally, DeFazio said that the DOT also noted that the federal regulations requiring mandatory 30-minute rest breaks do not extend to intrastate drivers. He explained with that context in mind if Section 611 of the AIRR Act were implemented, intrastate drivers would not receive any rest break protection under federal or state law.
The new California law requires that motor carriers running intrastate drivers must separately track and compensate for the meal and rest breaks and any “nonproductive” time that is under the control of the motor carrier – such as detention time.
“Section 611 has no place in a Federal Aviation Administration reauthorization bill. This is a trucking issue. Last year, the Conference Committee on the FAST Act … rejected this identical language. I strongly opposed this provision in the FAST Act and continue to strongly oppose it in this bill,” DeFazio wrote in his statement.
“If the intent is really to solve an interstate commerce problem, this language completely – and purposefully – misses the mark. It is an expansive hacking away at the ability of a state to promote healthy working conditions for truck drivers.”
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