BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS
                              Senator Ben Hueso, Chair
                                2015 - 2016  Regular 

          Bill No:          AB 1422           Hearing Date:    6/30/2015
           ----------------------------------------------------------------- 
          |Author:    |Cooper                                               |
          |-----------+-----------------------------------------------------|
          |Version:   |4/22/2015    As Amended                              |
           ----------------------------------------------------------------- 
           ------------------------------------------------------------------ 
          |Urgency:   |No                     |Fiscal:      |Yes             |
           ------------------------------------------------------------------ 
           ----------------------------------------------------------------- 
          |Consultant:|Nidia Bautista                                       |
          |           |                                                     |
           ----------------------------------------------------------------- 
          
          SUBJECT: Transportation network companies

            DIGEST:    This bill would require transportation network  
          companies to participate in the Department of Motor Vehicles'  
          (DMV) employer pull-notice (EPN) system to regularly check the  
          driving records of a participating driver.

          ANALYSIS:
          
          Existing law:
          
            1)  Establishes the California Public Utilities Commission  
              (CPUC) to regulate privately owned public utilities and  
              common carriers in California.  Specifies that the  
              Legislature may prescribe that additional classes of private  
              corporations or other persons are public utilities.   
              (Article XII of the California Constitution; Public  
              Utilities Code §301 et seq.)

            2)  Establishes the "Passenger Charter-Party Carriers Act",  
              which directs the CPUC to regulate, require license or  
              permit to operate, require insurance and workers  
              compensation, takes appropriate enforcement action and other  
              provisions related to transportation charter-party carriers  
              (CPCs).  (Public Utilities Code §5351 et seq.)

            3)  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 (Cooper)                                   Page 2 of ?
          
          

            4)  Defines transportation network company (TNC) as an  
              organization, including, but not limited to, a corporation,  
              limited liability company, partnership, sole proprietor, or  
              any other 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)
          5)Requires TNCs to participate in the DMV EPN system 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.

          6)Establishes the EPN system at 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 license revocations,  
            failures to appear, accidents, driver license suspensions, or  
            any other actions taken against the driving privilege.   
            (Vehicle Code §1808.1)

          7)Requires employers of drivers of specified vehicles such as  
            commercial truck drivers, school buses, farm labor vehicles,  
            tow trucks, youth buses, paratransit vehicles, ambulances, and  
            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)

          8)Requires employers of drivers of certain vehicles as described  
            above to obtain EPN reports from DMV at least every 12 months,  
            as specified.  (Vehicle Code §1808.1)

          9)Defines an employee as anyone that renders a service for  
            another, other than as an independent contractor or expressly  
            exempted.  (Labor Code §3357)

          10)Defines an independent contractor as 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) 

          This bill requires TNCs to participate in the DMV EPN system to  
          regularly check the driving records of a participating driver  








          AB 1422 (Cooper)                                   Page 3 of ?
          
          
          regardless of whether the participating driver is an employee or  
          an independent contractor of the TNC.

          Background

          In recent years, the advent of new mobile technology has spurred  
          development of new software applications (apps) that are  
          dramatically altering the transportation industry.  The new  
          model of transportation services allows customers to prearrange  
          transportation services through an online application on their  
          smartphone or computer.  Known as TNCs, these companies, such as  
          Uber and Lyft, allow customers to request a ride to a  
          predetermined location and the application connects them with a  
          TNC driver.  Payment is processed through the application so  
          that no physical financial transaction occurs during the trip  
          itself.  Under this model, drivers are considered independent  
          contractors by the TNCs and the TNCs take a commission on each  
          trip.  While these services have grown in popularity in the last  
          few years, this new service has not fit neatly into the existing  
          laws and regulations governing transportation services. 

          CPUC regulation of TNCs.  In September 2013, the CPUC adopted  
          the first phase of a two-phase decision related to TNCs.  In the  
          decision, the CPUC defined TNCs as a new category of CPCs  
          subject to the CPUC oversight and regulations.  The CPUC adopted  
          rules to require TNCs to obtain a permit to operate from the  
          CPUC, require TNCs to conduct background check on drivers, check  
          driver records prior to driving and quarterly, thereafter,  
          establish a driver training program, implement a zero-tolerance  
          policy on drugs and alcohol, conduct vehicle inspections, and  
          obtain authorization from airports before conducting operations  
          on or into airports property.  The DMV check criteria is  
          required to provide that a driver have no more than three points  
          within the preceding three years, no "major violations"  
          (reckless driving, hit and run, or driving with a suspended  
          license conviction) within the preceding three years, and no  
          driving under the influence conviction within the past seven  
          years).  Subsequently, the Legislature passed AB 2293 (Bonilla,  
          Chapter 389, Statutes of 2014), which codified the CPUC's  
          definition of TNCs and established liability and insurance  
          requirements for TNCs and their participating drivers. 

          The DMV employee pull-notice.  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  








          AB 1422 (Cooper)                                   Page 4 of ?
          
          
          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 enroll 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 app, and quarterly thereafter, the  
          law prevents the DMV from permitting TNCs with nonemployees from  
          enrolling in EPN.

          Employee or independent contractor?  In adopting the first phase  
          decision regarding TNCs, the CPUC noted that TNCs could not  
          participate in the automatic driver's background check, the EPN,  
          since TNCs were not employees.  The question about whether TNC  
          drivers are employees or independent contractors has become a  
          growing debate in recent years.  Most recently, the California  
          Labor Commission has ruled that a former Uber driver was, in  
          fact, an employee and ordered Uber to pay her over $4,000 for  
          expenses incurred while driving.  As employees, Uber drivers in  
          the state would qualify for minimum wage, overtime, and worker's  
          compensation.  Uber has maintained that its drivers are  
          independent contractors. The ruling became public when Uber  
          filed an appeal in a state court on June 16, 2015.  Uber's  
          appeal is one of several cases currently up for consideration in  
          the courts that could decide whether TNC drivers are employees  
          or independent contractors.  Two other cases - O'Connor, et al.,  
          v. Uber Technologies, Inc. et al. (Case No. C-13-3826 EMC) and  
          Cotter, et al., v. Uber Technologies, Inc. et al. (Case No.  
          13-cv-04065-VC) - are both venued in the U.S. District Court in  
          San Francisco.  Both lawsuits were filed by drivers who claim  
          that, although the TNCs classify them as independent  
          contractors, they are actually employees and are therefore owed  
          certain benefits, reimbursements, and protections.  The drivers  
          are seeking class action status in both cases. 

          The language in this bill would require the TNCs to participate  
          in the EPN program regardless of whether their drivers are  
          considered employees or independent contractors. 








          AB 1422 (Cooper)                                   Page 5 of ?
          
          

          Double Referral.  Should this bill be approved by this  
          committee, it will be re-referred to the Senate Committee on  
          Transportation and Housing for its consideration.

          Prior/Related Legislation
          
          AB 24 (Nazarian, 2015) requires CPC and TNCs to participate in  
          the DMVs EPN System, and submit all drivers to a Department of  
          Justice criminal background check.  This bill was held in  
          Assembly Committee on Appropriations. 

          AB 828 (Low, 2015) excludes from the definition of "commercial  
          vehicle," for purposes of the Vehicle Code, any motor vehicle  
          operated in connection with a TNC.  This bill is scheduled to be  
          heard in the Senate Committee on Transportation and Housing on  
          July 7, 2015.

          AB 1360 (Ting, 2015) exempts a rideshare program operated by a  
          TNC 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.  This bill is  
          scheduled to be heard in this committee on July 7, 2015.

          AB 612 (Nazarian, 2014) requires CPCs to participate in the DMV  
          EPN system, and submit all drivers to a Department of Justice  
          criminal background check.  This bill was held in the Assembly  
          Committee on Transportation.

          AB 2293 (Bonilla, Chapter 389, Statutes of 2014) established  
          guidelines for insurance coverage for TNCs to ensure personal  
          and financial safety of consumers.  

          FISCAL EFFECT:                 Appropriation:  No    Fiscal  
          Com.:             Yes          Local:          Yes


          ASSEMBLY VOTES:
          
          Assembly Floor                          (78-0)
          Assembly Appropriations Committee       (17-0)
          Assembly Transportation Committee       (16-0)
          Assembly Utilities & Commerce Committee        (14-0)








          AB 1422 (Cooper)                                   Page 6 of ?
          
          
            
          SUPPORT:  

          Riverside Sheriffs' Association
          Long Beach Police Officers Association
          Los Angeles County Professional Peace Officers Association
          Sacramento County Deputy Sheriffs' Association
          Uber Technologies, Inc.

          OPPOSITION:

          Greater California Livery Association

          ARGUMENTS IN SUPPORT:    Supporters state that AB 1422 promotes  
          driver and public safety by requiring TNCs to participate in the  
          DMV EPN program and helps improve the safety of passengers  
          utilizing these transportation services.  The author notes that,  
          currently, TNCs must manually pull DMV records on a quarterly  
          basis to review driving records - a process that is both  
          inefficient and slow to catch such things as DUIs, accidents or  
          license suspensions.
          
          ARGUMENTS IN OPPOSITION:    The Greater California Livery  
          Association argues that the "contractual status of the driver of  
          a transportation network vehicle, employee or independent  
          operator, is not and should not, be the subject of the AB 1422."  
          They argue that the bill "should be amended to delete any  
          reference to the classification of the driver's status; absent  
          that amendment, it could be perceived that the legislature is  
          encouraging the "independent contractor" business model to be  
          utilized by CPUC regulated TNCs."
                                      -- END --