BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 621


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          Date of Hearing:  April 22, 2015


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                                 Jimmy Gomez, Chair


          AB  
          621 (Roger Hernández) - As Introduced February 24, 2015


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          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  








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          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.








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            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  








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            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  








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            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