In Early November, The House passed their 325 billion dollar long term Transportation Bill. Within the bill were items of concern for drivers, including the Denham Amendment, which would prove, if passed, to negatively affect driver wages. The amendment was slipped into the House Bill at the 11th hour, suggesting that its true agenda for being there would hopefully go unnoticed.
The Denham amendment was not included in the Senate version of their highway bill. In order for an amendment to become law, it must first be a part of the final Transportation Bill, and before the Transportation bill can be final, both the House and the Senate must agree, including all of the provisions.
In order to get to this final version of the highway bill, a conference committee made up of the representatives (conferees) – from both the House and Senate are meeting this week to negotiate their differences in the 2 bills.
The decision as to whether or not to include the provision eliminating your rights (Denham Amendment) was scheduled for November 20, 2015, when funding would run out. However, the U.S. House passed by a voice vote late Monday a short-term highway funding bill that extends federal highway funding to Dec. 4.
How concerned should drivers be and why?
If the Denham amendment is added to the final Transportation Bill, it would be devastating to wages for professional drivers. In a nutshell, trucking companies would legally only have to pay drivers for the miles they drive, not any other work they do.
Last week we began an all out awareness and action campaign, requesting that professional drivers call their representatives to put an end to the Denham Amendment and unfair wages. THIS CALL STILL STANDS 202-224-3121
Truckers make their pleas to fellow drivers:
Ernesto Guierrez video “Say “NO” to Denham Amendment and Trucker Wage Theft”
Allen Smith Video The Truth About Trucking Network says NO to the Denham Amendment
On Saturday November 14th we aired a radio show on AskTheTrucker “live’ where our guest Aashish Desai, attorney advocate, explained exactly what the amendment is and how it would affect trucker wages. You can listen to the specific segment of the 2 part show here,
During the show, Jerry Fritz, a 50 year veteran of the trucking industry called in and had this to say,
“This is the most egregious and dangerous act that is about to confront and affect truck drivers and their families in the 50 or more years I know.” Jerry Fritz
How concerned should drivers be about the Denham Amendment?
Another comment made by veteran Andrew Richard Eatough driver posted in “Driver voices raised against highway bill amendment to resolve state/federal legal conflicts“
“This is the most frightening piece of trucking legislation I have read. It literally pays the driver for time on duty driving only. Nothing else. It could literally do away with the On Duty Not Driving line or any compensation for any work done when not driving, hold and detention, loading and unloading, fuel bonuses, safety bonuses, just sitting in the first seat and driving down the road on duty driving. You will literally become steering wheel holders at the stroke of a pen, because that is all you will be paid for. I will say this one more time, drivers. You do not need a union to do collective bargaining.” Andrew Richard Eatough
When you want a law passed, just include the word SAFE
As drivers know, whenever they see a new proposed rule or law which claims to be in the name of “safety” ,drivers know they must stop and look carefully, as this will usually mean another detrimental outcome is in store for them. The Denham Amendment is no exception.
This is true from the article from California Trucking Association
“Representatives Jeff Denham (R-CA) and his allies offered this amendment to H.R. 3763 (highway reauthorization bill) to clarify that state break requirements and state laws restricting productivity based pay are pre-empted under federal law.
They continue to say, “The amendment will help preserve the ability of trucking companies to continue to provide safe, productive, and efficient services.”
Read that carefully again, the words “productivity based pay”… in other words… “ only paid for miles driven” Now read this once more also, “The amendment will help preserve the ability of trucking companies to continue to provide safe, productive, and efficient services.” Here is that word “safe”, and notice it’s associated with the words “productive” and ”efficient.”
I ask you this, how is it possible for a driver to be safe, knowing they will only be paid for their miles driven, and all while racing an obstacle and challenge ridden 14 hour clock?
How is it safe to be held up at a dock, not being compensated for the time you are detained, and yet you then have to “race” to make your next appointment, as you fight to legally get enough miles for a decent paycheck? Not only that, but encouraged by your employer to “strategically log”, so you can maximize your hours. In doing so, this assures your company gets their “product moved efficiently” while not having to pay you for any of your waiting time. Safe? I think not.
I ask you drivers, why are we consistently asking for more miles to earn more money? Why aren’t we asking to be paid for ALL TIME? Which reminds me,
Here is part of the Denham Amendment that is most concerning to OTR Truckers, or at least it should be
‘‘(B) A State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law that requires a motor carrier that compensates employees on a piece-rate basis to pay those employees separate or additional compensation, provided that the motor carrier pays the employee a total sum that when divided by the total number of hours worked during the corresponding work period is equal to or greater than the applicable hourly minimum wage of the State, political subdivision of the State, or political authority of 2 or more States.
On Monday, November 16th, OOIDA put out a Call to Action to their members to oppose the Denham Amendment.
As lawmakers continue resolving the differences between the House and Senate versions of the Highway Bill this week in Washington, we would like to draw your attention to language that, if included, is certain to impact your bottom line. This language was introduced via amendment, by Congressman Jeff Denham (R-CA/10th), as a result of a 9th circuit court decision to enforce a 100 year old law in California pertaining to meal and rest breaks for employees. However, the language also includes an ambitious overreach that would limit the states’ ability to allow for any other driver compensation except mileage pay. OOIDA stands firmly opposed to this language.
The Denham amendment was passed by the House in early November by a 248-180 vote, but was not included in the Senate’s version of the highway bill. OOIDA needs you to speak out and oppose the Denham amendment because it would unravel mandated fair-pay for drivers and would empower large carriers to further reduce driver wages. It would also gut the ability for states to address critical items like payment for detention time, safety training and medical examinations or other costs associated with licensing procedures.
The teamsters also had this to say;
“But as lawmakers in the House and Senate move to conference to work out differences in their bills before funding runs out on Nov. 20, we must insist that lawmakers not eliminate meal and rest break provisions that allow truckers to receive a much-needed respite while going about the rigors of their jobs. They should also remove language which would directly hinder the ability of drivers who are paid on a piece rate basis to receive the full wages they deserve for a hard day’s work.”
Drivers, make no mistake, The Denham Amendment would ensure that trucking companies would NOT have to ever pay you for ALL your time, but would only have to pay you for what you “produce”, or miles driven.
This bill is designed to meet the self-interest of the trucking companies while undermining fairness for workers, safety for all drivers, and the rights of the states to enact laws designed to protect workers and advance the health and safety of the citizens of the state.
What is the justification to add the Denham Amendment to the Transportation Bill?
The amendment was proposed as a solutions to what many see as state-to-state encroachment (particularly, today, in California) on federal authority over transportation. The Federal Aviation Administration Act’s section on intrastate trucking services effectively de-regulated intrastate transportation in 1994, turning those states that continued to set rates for intrastate carriers, into what the national industry had become by that time, in large part, following interstate deregulation that began with the 1980 Motor Carrier Act.
Because there are those who desired to fit the amendment to suit their agenda, the Denham Amendment appears to be redefining legislation, even suggesting that Congress intended back in 1994 when it passed the FAAAA, to in fact preempt ( prevent) all states’ rights from maintaining or enacting their own wage laws, including minimum wage laws and meal and rest break laws, in relation to truck drivers.
However, there is no such express intent to be found ANYWHERE in the 1994 Act.
Moreover, in the Dilts v. Penske decision, the Ninth Circuit ruled last year that in fact no such preemption based on the FAAAA existed, either express or implied. Thereafter, the United States Supreme Court denied review of the decision, making it the binding law of the Ninth Circuit.
The Denham Bill says that all these state laws are “preempted” by the federal deregulation law. The trucking industry has argued this issue and lost in the federal and state courts. The Supreme Court refused to even hear them. They now seek to run around these court decisions by slipping in this amendment.
To strengthen the argument for states’ laws, there is the default and minimum wage protection law in the country shown in the Fair Labor Standards Act – FLSA, which provides just that – minimum protections. Moreover, the FLSA specifically includes a “savings clause”, which Congress expressly reserved to all the states the right to enact additional wage laws which could offer their workers rights in excess of the minimums provided by the FLSA. They further provided that the states could never offer less than that provided by the FLSA. In other words, the FLSA was established as a minimum for workers pay rights, but certainly not a ceiling.
Consistent with the rights afforded by the FLSA, California and many other states have in fact enacted wage laws and protections which exceed the FLSA’s minimums.
It appears now however, Representative Denham seeks to default back to the minimum protections afforded by the FLSA, by preempting states laws that exceed those allowed at the federal level, as revised by the Motor Carriers Act.
The Denham Amendment would, if included, essentially eradicate any state’s laws, which were created to protect drivers from wage theft. The amendment will allow trucking companies to pay drivers only for the time they spend driving, despite the fact that drivers are required to spend a great deal of time performing non-driving duties in fulfillment of their employment, often well in excess of 20% of their work day.
WHO IS BEHIND THE DENHAM AMENDMENT?
On our AskTheTrucker Live Special Alert broadcast on Tuesday 11/17/15, it was concluded that ATA is behind the Denham Amendment, not the federal government, which so many drivers had believed to be the case.
The (ATA), has attempted to have meal and rest breaks thrown out by the federal courts but have lost.. Again, The Ninth Circuit Court of Appeals has ruled that such breaks are not a violation of U.S. law. Now they are trying a different back door approach, Congress.
This pending amendment intendeds to provide to the industry an altered interpretation of the law ,which the courts, including even the Supreme Court, would not issue.
SO if the courts rule against you…. Go find a Congressman.
So I, along with many others are calling upon truckers and their families to act swiftly, and Call your Rep at the US Capitol Switchboard today before it’s too late at, 202-224-3121
© 2015, Allen Smith. All rights reserved.