BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1422


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          Date of Hearing:  April 20, 2015


                    ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE


                                Anthony Rendon, Chair


          AB 1422  
          (Cooper) - As Amended March 26, 2015


          SUBJECT:  Transportation network companies


          SUMMARY:  This bill authorizes transportation network companies  
          (TNC) to participate in the Department of Motor Vehicles (DMV)  
          Employer Pull Notice System (EPN).  Specifically, this bill:


          a)Authorizes a TNC to participate in the DMV EPN to regularly  
            check the driving records of a participating driver regardless  
            of whether the participating driver is an employee or an  
            independent contractor of the TNC.
          EXISTING LAW:


          1)Establishes the "Passenger Charter-Party Carriers Act" (CPC),  
            which directs the California Public Utilities Commission  
            (CPUC) to issue permits or certificates to charter party  
            carriers (CPC), investigate complaints against carriers, and  
            cancel, revoke, or suspend permits and certificates for  
            specific violations.  (Public Utilities Code §5387)

          2)Defines "charter-party carrier of passengers" as every person  
            engaged in the transportation of persons by motor vehicle for  
            compensation, whether in common or contract carriage, over any  
            public highway in the state.  (Public Utilities Code §5360)








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          3)Defines a "transportation network company" to mean an  
            organization, including, but not limited to, a corporation,  
            limited liability company, partnership, sole proprietor, or  
            any entity operating in California that provides prearranged  
            transportation services for compensation using an  
            online-enabled application or platform to connect passengers  
            with drivers using a personal vehicle.  (Public Utilities Code  
            §5431)
          4)Establishes the EPN administered by the DMV that provides the  
            employer of a driver who drives a specified type of vehicle  
            with a report showing the driver's current public record and  
            any subsequent convictions, driver's license revocations,  
            failures to appear, accidents, driver's license suspensions,  
            driver's license revocations, or any other actions taken  
            against the driving privilege.  (Vehicle Code §1808.1)

          5)Requires employers of drivers of specified vehicles, such as  
            commercial truck drivers, school buses, farm labor vehicles,  
            tow trucks, youth buses, paratransit vehicles, ambulances,  
            vehicles that transport hazardous materials, to show EPN  
            reports during regular business hours upon the request of the  
            California Highway Patrol.  (Vehicle Code §1808.1)

          6)Requires employers of drivers of specified vehicles as  
            described above to obtain EPN reports from DMV at least every  
            12 months that are to be signed, dated, and maintained by the  
            employer.  (Vehicle Code §1808.1)

          7)Defines an employee as anyone that renders a service for  
            another, other than as an independent contractor.  (Labor Code  
            §3357)
          FISCAL EFFECT:  Unknown.


          COMMENTS:


           1)Author's Statement:    "AB 1422 promotes driver and public  








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            safety by authorizing TNCs to participate in the DMV pull  
            notice program and helps improve the safety of passengers  
            utilizing these transportation services."
           2)Background:    California law regulates different modes of  
            passenger transportation for compensation including taxi  
            services, which are regulated by cities and/or counties; and  
            passenger stage companies (PSC) and CPCs, which are regulated  
            by the CPUC.  Beginning as early as 2009, a new model of  
            transportation service began springing up in cities across the  
            United States.  Known as transportation network companies,  
            these companies allow patrons to prearrange transportation  
            services through an online application on their smartphone or  
            computer.  Patrons would request a ride to a predetermined  
            location and the application would connect them with a TNC  
            driver.  Payment is processed through the application so that  
            no physical financial transaction occurs during the trip  
            itself between the patron and the driver.  The TNC takes a  
            commission on each trip.  The development of TNCs has made the  
            ability for passengers seeking transportation for compensation  
            more readily available to the general public.


           3)What are Passenger Carriers?   The CPUC is in charge of  
            regulating passenger carriers. Passenger carriers include  
            services such as PSCs and CPCs.  PSCs are services that  
            provide transportation to the general public on an individual  
            fare basis, such as scheduled bus operators, which are buses  
            that operate on a fixed route and scheduled services, or  
            airport shuttles, which operate on an on-call door-to-door  
            share the ride service.


            CPCs are services that charter a vehicle, on a prearranged  
            basis, for the exclusive use of an individual or group.   
            Charges are based on the mileage or time of use, or a  
            combination of both.  The CPUC does not regulate the level of  
            charges for CPCs.  Types of CPCs include limos, tour buses,  
            sightseeing services, and charter and party buses.









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            The CPUC requires CPCs to meet a number of requirements until  
            an operating permit or certificate is issued.  These  
            requirements include providing sufficient proof of financial  
            responsibility, maintain a preventative maintenance program  
            for all vehicles, possessing a safety education and training  
            program, and regularly checking the driving records of all  
            persons operating vehicles used in transportation for  
            compensation.


           4)What are Transportation Network Companies?  In September 2013,  
            a CPUC decision put TNCs under the purview of the CPUC,  
            allowing it to exercise and enforce regulatory and safety  
            requirements against TNCs.  The CPUC defined TNCs as an  
            "organization, including, but not limited to, a corporation,  
            limited liability company, partnership, sole proprietor, or  
            any entity, operating in California that provides prearranged  
            transportation services for compensation using an  
            online-enabled application or platform to connect passengers  
            with drivers using a personal vehicle."  The CPUC decision  
            requires TNCs to obtain a permit from the CPUC, conduct  
            criminal background checks of drivers, establish a driver  
            training program, implement a zero-tolerance policy on drugs  
            and alcohol, conduct vehicle inspections, and obtain  
            authorization from airports before conducting any operations  
            on or into airport property.
            Subsequently, the legislature passed AB 2293 (Bonilla) Chapter  
            389, Statutes of 2014, which codified the CPUC's definition of  
            TNCs and imposed certain liability and other insurance  
            coverage for TNCs and their participating drivers.  The bill  
            defines when personal and commercial auto insurance come into  
            effect, and at what levels, when the driver logs onto the  
            application until the driver accepts a ride request, and for  
            when a ride request is accepted until the passenger exits the  
            vehicle.  The bill sought to make a clear distinction between  
            when a vehicle is being used for TNC business activities and  
            must require commercial insurance, and when a vehicle is not  
            being used for TNC business activities at which time the  








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            driver's personal auto insurance is in effect.


           5)DMV EPN:   The DMV EPN was created as a means for employers and  
            regulatory agencies to ensure driver safety through the  
            ongoing review of driver records.  The system is designed to  
            generate a report of a driver's record and electronically send  
            the report to the employer under specific circumstances such  
            as upon enrollment of a driver, annually from the date of  
            employment, or whenever a driver commits certain moving  
            violations.  Most commercial drivers, including drivers  
            transporting property, passengers, and household goods are  
            required to participate in the EPN.
            Specific types of CPC drivers are required to be enrolled in  
            the EPN so that employers may receive automatic notice of an  
            adverse entry or action on a driver's driving record.   
            However, current law limits enrollment in the EPN to  
            employees.  Although TNCs are required to check each driver's  
            driving record prior to allowing a driver on the TNC platform,  
            and quarterly thereafter, the DMV does not permit TNCs with  
            nonemployees from enrolling in EPN.


             The author may wish to consider an amendment to explicitly  
            require TNCs to participate in the DMV EPN, instead of simply  
            authorizing them to participate. 


           6)Employees or Independent Contractors?   Under current law, the  
            DMV EPN is limited to employees.  Under California law, an  
            employee is anyone who renders a service for another, other  
            than as an independent contractor.  There is no set definition  
            of the term "independent contractor."   In general, an  
            employee is anyone who performs a service for another if they  
            can control what will be done and how it will be done.  This  
            is so even when the employee is given freedom of action.  What  
            is most important is that the other person has the right to  
            control the details of how the service is performed.   
            Furthermore, in general, an independent contractor is  








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            self-employed.  The general rule is that the payer has the  
            right to control or direct only the result of the work but not  
            what will be done and how it will be done.  There has been a  
            growing debate over whether or not TNC drivers are considered  
            employees or independent contractors of the TNC.  This issue  
            is currently pending litigation in United States District  
            Court.  This bill, however, would authorize a TNC to  
            participate in the DMV EPN regardless if a participating  
            driver is an employee or an independent contractor.  



          7)Suggested Amendments:

             5444.  A transportation network company  may   shall  participate  
            in the pull-notice system established pursuant to Section  
            1808.1 of the Vehicle Code to regularly check the driving  
            records of a participating driver regardless of whether the  
            participating driver is an employee or an independent  
            contractor of the transportation network company.
             


            8)Arguments in Support:   According to the Sacramento County  
            Deputy Sheriffs' Association, the Los Angeles County  
            Professional Peace Officers Association, and the Long Beach  
            Police Officers Association, "AB 1422 will improve public  
            safety by providing TNCs with timely information, thereby  
            allowing the TNCs to remove dangerous drivers from their  
            driver pool."



           9)Related Legislation:  
            AB 24 (Nazarian) 2015:  This bill would require charter party  
            carriers and transportation network companies to participate  
            in the Department of Motor Vehicles Employer Pull Notice  
            System, and submit all drivers to a Department of Justice  
            criminal background check.








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            AB 828 (Low) 2015:  This bill would exclude from the  
            definition of "commercial vehicle," for purposes of the  
            Vehicle Code, any motor vehicle operated in connection with a  
            transportation network company.


            AB 1360 (Ting) 2015:  This bill would exempt a rideshare  
            program operated by a transportation network company that  
            arranges a ride among multiple passengers who share the ride,  
            in whole or in part, from computing transportation charges  
            based on a vehicle mileage or time of use, provided that the  
            fare for each passenger is less than the fare that would be  
            charged to a single passenger traveling alone.


           10)Prior Legislation:
             AB 612 (Nazarian) 2014:  Requires charter-party carriers to  
            participate in the Department of Motor Vehicles Employer Pull  
            Notice system, and submit all drivers to a Department of  
            Justice criminal background check.  Held in the Assembly  
            Committee on Transportation.


            AB 2293 (Bonilla) 2014:  Establishes guidelines for insurance  
            coverage for Transportation Network Companies to ensure  
            personal and financial safety of consumers.  Chaptered by the  
            Secretary of State - Chapter 389, Statutes of 2014.


           11)Double Referred:   This bill is double referred to the  
            Assembly Committee on Transportation.
          REGISTERED SUPPORT / OPPOSITION:




          Support








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          Sacramento County Deputy Sheriffs' Association


          Long Beach Police Officers Association


          Los Angeles County Professional Peace Officers Association


          Uber Technologies, Inc.




          Opposition


          Greater California Livery Association




          Analysis Prepared by:Edmond Cheung / U. & C. / (916) 319-2083