BILL ANALYSIS Ó AB 621 Page 1 Date of Hearing: April 22, 2015 ASSEMBLY COMMITTEE ON APPROPRIATIONS Jimmy Gomez, Chair AB 621 (Roger Hernández) - As Introduced February 24, 2015 ----------------------------------------------------------------- |Policy |Labor and Employment |Vote:|5 - 2 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- Urgency: No State Mandated Local Program: NoReimbursable: No SUMMARY: This bill relieves a motor carrier performing drayage services of liability for statutory or civil penalties associated with misclassification of commercial drivers as independent contractors if the motor carrier enters into a consent decree with the Labor Commissioner prior to January 1, 2017, where the motor carrier agrees to convert all of its commercial drivers to employees, and the consent decree contains AB 621 Page 2 prescribed components, including, but not limited to, an agreement by the motor carrier to pay all wages, benefits, and taxes owed, if any. This bill would not apply to a motor carrier that has a pending lawsuit against it if the lawsuit was filed prior to January 1, 2015. FISCAL EFFECT: Initial administrative costs of approximately $900,000 and ongoing costs of approximately $850,000 to the Department of Industrial Relations (DIR) Division of Labor Standards Enforcement (DLSE) to review consent decrees. These costs may be offset to the extent the consent decree process reduces individual wage claim cases. COMMENTS: 1)Purpose. This bill enacts a limited amnesty program with respect to the misclassification of port drivers. According to the author and the California Teamsters Public Affairs Council (sponsor), nearly all of the "owner-operator" truck drivers that haul intermodal freight to and from the ports of California have been misclassified. They point to hundreds of recent cases and class action lawsuits where the drivers have been determined to be employees. A recent court decision in San Diego, for example, awarded seven drivers a judgment of over $2 million against their employer for not properly classifying them as employees. Supporters contend this bill will allow the parties to come together, rectify the situation, and move forward in a productive manner. 2)Background. California is home to some of the largest and most complex port operations in the world. By some estimates, there are approximately 20,000 port drivers in California, including 16,000 at the Ports of Los Angeles and Long Beach, 2,500 at the Port of Oakland, and 1,500 at the smaller Ports of San Diego, San Francisco, and Stockton. AB 621 Page 3 As the trucking industry was deregulated in the 1980s, the industry has relied more on independent contractors or "owner operator" port truck drivers, rather than recognizing drivers as employees. There has been much debate over whether this classification of drivers as independent contractors is lawful. This particular question is not unique to the port drayage context, as concern about misclassification of workers as independent contractors affects many other industries. The determination of whether a worker is an employee or independent contractor is important for a number of reasons, including what rights and remedies the worker is afforded under state and federal law, federal and state tax consequences for the employer, and the level of tax revenues for the state and federal government. In general, independent contractors need not be covered by workers' compensation, do not have employment taxes deducted from their earnings, are not covered by many state and federal anti-discrimination laws, are not included under Cal-OSHA and federal OSHA in an employer's duty to provide a safe and healthy work environment, are not covered by state and federal wage and hour laws, are not entitled to unemployment insurance benefits from an employer's account, and are excluded from coverage under the National Labor Relations Act (NLRA). 3)Berman hearings. According to DIR, over the last three years, the DLSE has held over 500 wage claim hearings (aka Berman AB 621 Page 4 hearings) for this industry and note the hearings have been very fact intensive. Generally, Berman hearings take a half day or one full day to complete. Many of these cases have taken up to a week. Additionally, DLSE attorneys have enforced hearing findings in civil court on appeal. As of January 2015, the Labor Commissioner had issued 113 orders, decisions or awards (ODAs) totaling almost $5 million. Of these, 46 ODAs had been appealed by the employer (representing $3.9 million in awards). 4)Opposition. The California Trucking Association (CTA) opposes this bill as it does not address the key issue leading to drayage motor carriers facing this situation in the first place - misuse of the DLSE's administrative hearing process. CTA states that the administrative (or "Berman hearing") process was designed to provide a speedy, informal and affordable method for employers and employees to resolve simple wage claims. CTA argues that claims of misclassification of commercial drivers as independent contractors are some of the most complex claims being addressed by DLSE, and therefore should not be addressed via this procedure. Additionally, CTA asserts that it has been the longstanding policy of multiple Labor Commissioners, prior to the current administration to defer such complex, high-wage claims to the court system. Therefore, CTA recommends two reforms related to the use of the Berman hearing procedures. First, in order to reduce the subjectivity involved with these reviews, they suggest that existing law should be amended to clearly define that these complex matters are "better addressed and eventually adjudicated in the courts." Second, CTA recommends that the AB 621 Page 5 law should be amended to statutorily memorialize the DLSE's previous policy (which they claim was utilized up until 2008) that the Labor Commissioner decline the use of the Berman hearing procedure for all claims of $30,000 or more where employment status is at issue. They state that average award against motor carriers is $87,000, but some have reached beyond $200,000. CTA concludes that, in "concert with any discussion about partial relief of liability for penalties associated with wage claims where a dispute of employment status exists, we should first examine the mechanism generating this liability." Analysis Prepared by:Misty Feusahrens / APPR. / (916) 319-2081