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ATA seeks FMCSA approval to Preempt state laws which protect trucker wages

Oct
11,
2018
0

With the help of thousands of truckers and supporters calling their lawmakers, determined members of Congress standing up and fighting for drivers, once again  the Denham Amendment has been defeated and failed to make it in the Final FAA bill H.R. 302.
FAA Reauthorization & Disaster Program Reforms Signed into Law

BUT IT’S NOT OVER
Denham Amendment defeated in FAA bill BUT it’s not over- ATA sends petition to FMCSA

After 3 years of numerous failed ATA attempts to override and preempt states labor laws which protect employees from wage abuse, the ATA has taken one more desperate attempt to Petition the FMCSA based on 49 U.S.C. § 31141 -stating  that the State of California’s Meal and Rest Break rules are preempted by Federal law ( According to ATA Petition)
ATA seeks FMCSA approval to Preempt state laws which presently protect trucker wages.

ATA believes that offering meal and rest breaks to drivers is an issue that impacts PUBLIC SAFETY.

California’s Meal and Rest Break Rules; Petition for Determination of Preemption
Docket ID: FMCSA-2018-0304

This next attempt by ATA, this time to FMCSA, is a petition to preempt state labor laws using “meal and rest break” as a back door to ultimately accomplish the “Denham language goals” against trucker wages.
In a nutshell: ATA wants Federal Law to ensure drivers only have to be paid for miles driven. Whether it be through Denham Amendment or FMCSA Petition.

The thread that joins Denham Amendment and ATA’s FMCSA Petition

ATA goal of “anti-trucker” Denham Amendment
1)  Regulate driver wages based on changing the meaning and intention of 1994 FAAA
2) Preempt State Rights-and not have to pay drivers for all time ( including detention time) but rather only miles driven.
3) Preempt state labor laws which require carriers to offer optional 10 minute rest breaks and 30 minute meal breaks.

To understand more about the Denham Amendment

1This year at GATS, RWIT hosted “Hot Legal Topics” Here is a Video with experts Craig Ackermann and Aashish Desai explaining the negative effects that Denham purpose can have on Truckers. VIDEO Truck Driver Wages (Denham Amendment)

2STOP New Legislation-Truck Driver Wages at Risk

ATA goes Full Circle once again- Back to FMCSA

Listen to the Replay explaining the ATA Petition to FMCSA- Includes Timeline on how we got here!!!

This is not the first time the ATA has petitioned the FMCSA for this purpose. They tried in 2008, however the petition was rejected.  Read more:

Petition for Preemption of California Regulations on Meal Breaks and Rest Breaks for Commercial Motor Vehicle Drivers; Rejection for Failure To Meet Threshold Requirement

Since 2008 rejection, it’s has gone full circle.  After the failed petition attempt they then took their case of “preempting state rights” to court and lost all the way up to the state Supreme Court. When the U.S. Supreme court refused to hear their case, they then took the next step… LOBBY LAWMAKERS to change law. That’s when the Denham Amendment, introduced by (R-Ca) Jeff Denham, was first introduced in 2015. “How to Ensure Fair Trucker Wages in the 2015 Transportation Bill”

It’s now back to the FMCSA for another petition. So what has changed since 2008?

 ATA Letter to Administrator Ray Martinez- Requesting Exemption/Rulemaking

truckerwages

The ATA Lost in Court. Lost in Congress 5 times to pass Denham Amendment. Now they are petitioning FMCSA to preempt states who protect- #truckerwages

 

AskTheTrucker Comment on the FMCSA website:

Truth About Trucking, LLC aka “AskTheTrucker” ( Allen Smith) requests that the FMCSA deny the ATA Petition– California’s Meal and Rest Break Rules; Petition for Determination of Preemption based upon 49 U.S.C. 31141.

The Meal and Rest Break Preemption is another attempt to override states who protect workers from being exploited. The courts have agreed ( all the way to the Supreme Court) and Congress also agrees, as they have refused to add the Meal & Rest Break provision (known as the Denham Amendment) in multiple final bills, the latest being the recent FAA reauthorization bill H.R. 302  signed into law Oct 5th 2018.

We believe the meal and rest break requirements of California law should not be preempted, as applied to commercial motor vehicle drivers, as preemption of states right do not meet criteria as defined by 49 U.S.C. 31141

This is the second time the ATA has applied for such an exemption from the FMCSA. Nothing has changed since their 2008 petition. Why another attempt at this petition?

The California Meal & Rest Break does not cause unreasonable burden on interstate commerce. The courts have clearly ruled this based on Congress intended meaning of the 1994 Federal Aviation Administration Authorization Act (FAAAA) The only burden it places is on the carrier who can no longer have “free work” in states that require employees to be paid for optional breaks and for all their non-driving tasks such as detention time.  Read rest of the comment here.
http://askthetrucker.com/denham/FMCSA_Meal_And_Rest_Break_Petition_2018.pdf

AskTheTrucker comment posted on FMCSA website

California’s Meal and Rest Break Rules; Petition for Determination of Preemption
Docket ID: FMCSA-2018-0304

ATA Meal Rest Break Petition

If Preemption of states labor laws are accomplished through this FMCSA petition by ATA, it would most likely preempt all state labor laws which protect truckers from being exploited.

MAKE YOUR COMMENT NOW Due Oct 29th

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§31141. Review and preemption of State laws and regulations

Section 31141 of title 49, United States Code, prohibits States from enforcing a law or regulation on commercial motor vehicle safety that the Secretary of Transportation (Secretary) has determined to be preempted. To determine whether a State law or regulation is preempted, the Secretary must decide whether a State law or regulation:

 Review and Decisions by Secretary.

(1) Review.—The Secretary shall review State laws and regulations on commercial motor vehicle safety. The Secretary shall decide whether the State law or regulation—

(A) has the same effect as a regulation prescribed by the Secretary under section 31136;
(2) Regulations with same effect.—If the Secretary decides a State law or regulation has the same effect as a regulation prescribed by the Secretary under section 31136 of this title, the State law or regulation may be enforced.

(B) State law or regulation is less stringent than such regulation;
(3) Less stringent regulations.—If the Secretary decides a State law or regulation is less stringent than a regulation prescribed by the Secretary under section 31136 of this title, the State law or regulation may not be enforced

(C) is additional to or more stringent than such regulation.
(4) Additional or more stringent regulations.—If the Secretary decides a State law or regulation is additional to or more stringent than a regulation prescribed by the Secretary under section 31136 of this title,
the State law or regulation may be enforced unless the Secretary also decides that

(A) the State law or regulation has no safety benefit;
(B) the State law or regulation is incompatible with the regulation prescribed by the Secretary; or
(C) enforcement of the State law or regulation would cause an unreasonable burden on interstate commerce

Request for Comments due October 29th

 

 

 

© 2018, Allen Smith. All rights reserved.

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By: Allen Smith

Allen Smith is a 37 year veteran who started at an early age in a household goods family moving business. He began driving straight trucks in 1977 and moved to the big rigs in 1982. His experience within the industry includes; owner operator, company driver, operations manager, and owner of a long distance HHG moving business, taking many of the long haul moves himself when needed. Allen Smith, a truck driver advocate who is driven by the desire to help others succeed within an industry where injustice, unrewarded sacrifice, and lack of respect and recognition exists. Allen and his wife Donna are hosts of Truth About Trucking ”Live” on Blog Talk Radio. Other websites include AskTheTrucker, TruckingSocialMedia, NorthAmericanTruckingALerts, TruthAboutTrucking, and many Social Media websites. In 2011 Allen and Donna hosted the first Truck Driver Social Media Convention, designed to create unity and solutions for the trucking industry. This is now being extended through the North American Trucking Alerts network as those within the industry join forces for the betterment of the industry. Allen strongly supports other industry advocates who are also stepping up to the plate to help those who share honesty, guidance and direction. He believes that all those involved in trucking need to be accountable for their part within the industry, including drivers, carriers, brokers, shippers, receivers, etc… The list of supporters and likeminded people grow daily, networking together and sharing thoughts and ideas for the betterment of trucking. He has coined the popular phrase "Raising the standards of the trucking industry"

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