BILL ANALYSIS Ó AB 1422 Page 1 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) AB 1422 Page 2 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 AB 1422 Page 3 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. AB 1422 Page 4 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 AB 1422 Page 5 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 AB 1422 Page 6 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 companymayshall 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. AB 1422 Page 7 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 AB 1422 Page 8 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