BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 621| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 621 Author: Roger Hernández (D) Amended: 8/31/15 in Senate Vote: 21 SENATE LABOR & IND. REL. COMMITTEE: 4-1, 6/24/15 AYES: Mendoza, Jackson, Leno, Mitchell NOES: Stone SENATE JUDICIARY COMMITTEE: 6-0, 7/7/15 AYES: Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski NO VOTE RECORDED: Anderson SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15 AYES: Lara, Beall, Hill, Leyva, Mendoza NOES: Bates, Nielsen ASSEMBLY FLOOR: 47-29, 6/3/15 - See last page for vote SUBJECT: Drayage truck operators SOURCE: California Teamsters Public Affairs Council DIGEST: This bill creates the Motor Carrier Employer Amnesty program for port drayage companies that voluntarily execute a settlement agreement with the Labor Commissioner related to misclassification of employees. ANALYSIS: Existing law: AB 621 Page 2 1)Provides numerous comprehensive requirements, rights, and remedies relating to the employer-employee relationship, including, but not limited to, wages and other compensation, hours, workers' compensation, labor code violation actions, employment contracts, and standards for working conditions. Under existing law, the Employment Development Department (EDD) has the powers and duties necessary to administer the reporting, collection, refunding to the employer, and enforcement of taxes required to be withheld by employers. 2)Requires, under the California common law theory of joint employment, a determination as to whether the entity in question has the right to direct and control the manner and means by which the work is performed, known as the "right of control" test. (S. G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341. and Martinez v. Combs (2010) 49 Cal.4th 35) 3)Establishes the following definitions: a) "Employee" means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, as specified. (Labor Code §3351) But excludes specified individuals such as someone who is employed by his or her parent, spouse or child. (Labor Code §3352) b) "Independent contractor" means any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished. (Labor code §3353) c) The contract of employment is a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or a third person. (Labor Code §2750) This bill: 1)Establishes the Motor Carrier Employer Amnesty program (program), to be administered by the Labor Commissioner and EDD, a limited amnesty program with respect to the AB 621 Page 3 misclassification of port drivers. 2)Provides that the Labor Commissioner and EDD shall administer the program to an eligible motor carrier performing drayage services at any port. The eligible motor carrier shall be relieved of liability for statutory or civil penalties associated with misclassification of commercial drivers as independent contractors if the eligible motor carrier executes a settlement agreement with the Labor Commissioner whereby the motor carrier agrees to properly classify all of its commercial drivers to employees. 3)Adds various definitions including an eligible motor carrier to mean a motor carrier that shall not have any of the following on the date it applies to participate in the program: a) A civil lawsuit that was filed on or before January 1, 2015, pending against it in a state of federal court that alleges a misclassification of a commercial driver. b) A specified penalty assessed by EDD that is final disposition of that penalty. 4)Provides that a motor carrier shall only apply to participate in the program by doing all of the following: a) Submitting an application to the Labor Commissioner, which at a minimum requires the motor carrier to establish that it qualifies. b) Reporting on the results of a self-audit in accordance with guidelines provided by the Labor Commissioner. 5)Provides that a settlement agreement executed by the Labor Commissioner and an eligible motor carrier shall require the eligible motor carrier to: a) Pay all wages, benefits, and taxes owed, if any, to or in relation to all of its converted commercial drivers covering the period of time from the first date of misclassification to the date the consent decree is entered into, but not exceeding the applicable statute of limitations. AB 621 Page 4 b) Maintain any converted commercial driver positions as employee positions. c) Consent that any future commercial drivers hired to perform the same or similar duties shall be presumed to have employee status and that the motor carrier shall have the burden to prove by clear and convincing evidence that they are not employees in any administrative or judicial proceeding in which their employment status is an issue. d) Perform any requirements or provisions the Labor Commissioner deems necessary to carry out the intent of this section or to enforce the provisions of the consent decree. 6)Provides that, before January 1, 2017, the Labor Commissioner may negotiate and execute a settlement agreement with an eligible motor carrier but may not on or after January 1, 2017. 7)Provides other specifics for the settlement agreement and processes and procedures for the Labor Commissioner to pursue enforcement, including among other provisions: a) Requires the eligible motor carrier, after the execution of the settlement agreement, secure worker's compensation coverage. b) May require an eligible motor carrier to pay the reasonable actual costs to the Labor Commissioner and EDD, as specified. c) Authorizes a settlement agreement to include provisions for installment payments. d) Provides that an eligible motor carrier that executed and performed its obligations pursuant to a settlement agreement shall not be liable for specified penalties, except as provided. Comments In February 2014, the National Employment Law Project and others AB 621 Page 5 issued a report which revisited the issues of port driver working conditions and reported widespread misclassification of drivers. Among other findings, the report estimated that 49,000 of the nation's 75,000 port truck drivers are misclassified as independent contractors. This report placed a particular emphasis on the costs to workers and the state and federal governments as a result of misclassification: 1)The report estimated that port trucking companies in California are annually liable for wage and hour violations of between $787 and $998 million. 2)The report estimated that industry's total federal and state liability for unemployment insurance fund contributions, workers' compensation premiums, and income tax payments at approximately $563 million annually. 3)The report estimated that total quantifiable costs of misclassification nationally (tax losses plus wage and hour violations) are $1.4 billion annually. According to the author, this bill represents an important opportunity to revolutionize and modernize the port drayage industry to the benefit of drivers, drayage companies, the ports, and our local communities. The author contends that this bill represents a common-sense compromise in allowing the parties to come together, rectify the situation, and move forward in a productive manner. Under this bill, port drayage companies will be provided an opportunity to voluntarily come forward to participate in a limited amnesty program by entering into a consent decree with the Labor Commissioner. Under the terms of the consent decree, the motor carrier must agree to pay all wages and benefits owed to previously misclassified independent contractors, and all taxes owed to the state as a result of such misclassification. In addition, the company must agree to classify any present or future commercial drivers as employees. In exchange, a motor carrier that enters into such a consent decree will be relieved of liability for statutory or civil penalties based on previous misclassification of drivers. AB 621 Page 6 According to the author, AB 621 will transform and modernize port drayage operations by providing a limited opportunity for amnesty for motor carriers that come forward and correctly classify their drivers as employees rather than independent contractors. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee, the Department of Industrial Relations and EDD would likely incur annual costs in the hundreds of thousands of dollars to implement the provisions of this bill. To the extent the consent decree process reduces individual wage claim cases, these costs could be somewhat offset. This bill could also result in additional collections to the wage funds (such as disability insurance) administered by EDD, the extent to which is unknown. SUPPORT: (Verified8/28/15) California Teamsters Public Affairs Council (source) California Labor Federation, AFL-CIO Shippers Transport Express Total Transportation Services, Inc. OPPOSITION: (Verified8/28/15) California Business Properties Association California Retailers Association California Trucking Association ARGUMENTS IN SUPPORT: Proponents note that numerous studies, reports, enforcement actions, and court decisions have confirmed that nearly all the so-called "owner-operator" truck drivers that haul intermodal freight to and from the ports of California have been misclassified. Proponents also note that in hundreds of recent cases and class action lawsuits, the drivers have been determined to be employees and when a driver has been misclassified, the employer is liable for back wages, taxes, social security contributions, and potentially massive AB 621 Page 7 penalties. According to proponents, this bill creates a voluntary program (to be administered by the Labor Commissioner) which will allow motor carriers who wish to reclassify their drivers as employees and have the penalties associated with their past unlawful conduct waived. They argue that this bill is a way for port drayage motor carriers to be a part of the cleaning up of this industry and will save them from paying financially crippling penalties. ARGUMENTS IN OPPOSITION:Opponents argue that AB 621 fails to address the greater underlying issues of misclassifying commercial drivers as independent contractors and should seek to find a solution within existing enforcement mechanisms. Opponents assert 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. Opponents recommend two reforms related to the use of the Berman hearing procedures. First, they assert that in order to reduce the subjectivity involved with these reviews, existing law should be amended to clearly define that these complex matters are "better addressed and eventually adjudicated in the courts." Second, opponents recommend that the law should be amended to statutorily memorialize the Division of Labor Standards Enforcement'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. ASSEMBLY FLOOR: 47-29, 6/3/15 AYES: Alejo, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, AB 621 Page 8 O'Donnell, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Ting, Weber, Williams, Wood, Atkins NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Dahle, Beth Gaines, Gallagher, Gatto, Grove, Hadley, Harper, Jones, Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk NO VOTE RECORDED: Bloom, Frazier, Perea, Thurmond Prepared by:Deanna Ping / L. & I.R. / (916) 651-1556 8/30/15 19:42:17 **** END ****