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  ****