If at first you don’t succeed, try try again. That seems to be the motto of the ATA and others in the trucking industry when it comes to Federal Preemption of States Rights in order for them to be able to regulate trucker wages.
Last month truckers breathed one more sigh of relief as the most recent attempt to preempt states rights, allowing drivers to be paid for all time, once again failed, this time in the March Omnibus Spending bill. Read more: ATA lobbies for anti-trucker wage provisions in Omnibus Spending bill
This was the fifth non successful attempt made by the trucking industry, (which includes the ATA, the 50 ATA-affiliated state trucking associations, the Truckload Carriers Association and others), to include anti-trucker preemption language in a major bill.
ATA has now lost this five times: the 2015 Highway bill, 2016 FAA funding reauthorization bill, the 2017 omnibus funding bill, the Thud and DOT 2018 appropriation bills (when they were going piece meal) and now the 2018 omnibus funding bill
Make No Mistake, they will be trying again to have preemption language included in another bill coming up for vote, most likely the infrastructure or omnibus in October.
What is this preemption language that the ATA is so desperate to have included in these bills? First, the language has been known as the Denham Amendment, Denham language, F4A preemption, FAAAA preemption, Meal and Rest Break Preemption.
Denham language would exclude truckers from State labor laws which protect driver wages and safety and ensure employees are not exploited.
These states include in their state labor laws, that employers must pay drivers for all time, including detention time, in addition to their miles driven. In essence, this is what drivers have been fighting for.
In addition, these states also require employers to offer meal breaks and paid rest breaks. These breaks can be waived by the employee, however, truckers would still be paid for the rest breaks.
The Truth about Meal and Rest Breaks for Intrastate drivers
Provisions to overturn state laws, designed to protect truckers, began to first appear in the 2015 Highway bill- FAST ACT– The provision, slipped in at the 11th hour, was called the Denahm Amendment. Because of an all out call to action, including a multitude of drivers who called in, it failed to be passed into law.
If preemption language is to be included in one of the many final bills that the ATA and others have been lobbying so hard for, it would affect how drivers are paid permanently.
For all those who are in favor of ELD’s because all their time waiting at docks would finally be recorded and offer stamped proof for detention pay, the inclusion of Preemption of States Rights in a bill, would legally relieve Carriers from having to pay drivers for time waiting, or any time other than their piece work wages ( CPM)
Just as the Fair Labor Standards Act (FLSA) has put a damper on drivers’ ability to earn a “fair wage”, so would Federal Preemption of States Rights.
The Fair Labor Standards Act ( FLSA) which has exempted truckers for decades has prevented drivers from having to be paid overtime.
Preemption would then limit drivers to being paid piece work wages only.
The FLSA provides an overtime exemption for employees who are within the authority of the Secretary of Transportation to establish qualifications and maximum hours of service according to Section 204 of the Motor Carrier Act of 1935.
The ATA and other in the trucking industry believe that states labor laws are interfering with motor carriers ability to move freight. They rely on their interpretation of wording in the 1994 Federal Aviation Authorization Administration Act (F4A)
From the 1994 FAAAA Bill;
(b) Freight Forwarders and Brokers.—
Subject to paragraph (2) of this subsection, no State or political subdivision thereof and no intrastate agency or other political agency of 2 or more States shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to intrastate rates, intrastate routes, or intrastate services of any freight forwarder or broker.
This is a distortion of what they say “Congress intended” to mean in the H.R.2739 Federal Aviation Administration Authorization Act of 1994 49 -USC 40101 P. 37 of 39 — Title VI Intrastate Transportation of property
Sec 601 Preemption of Intrastate Transportation of property.
Basically what the ATA believes, is that States have NO RIGHT to tell motor carriers that their drivers must be paid for all time, including waiting, detention, paperwork and all non driving tasks.
The 1994 Federal Aviation Authorization Administration Act (F4A) was designed to deregulate a states ability to regulate freight. Should it also be used to over ride or preempt their Labor Laws? The trucking industry fought in courts and said “YES”
The courts, including state supreme courts said NO. States have their rights to protect employees with their own labor laws and the F4A language had nothing to do with States Labor laws.
When the carriers went to court with this argument, the Federal Courts sided with the drivers on numerous occasions.
The ATA then decided to go to Congress, (just as they did to get the ELD mandate approved), so they could have the Denham- Preemption language included in numerous bills.
Drivers do not want “government to interfere”- We’re asking Congress and the government to stay out of states affairs.
There are states who have laws and believe that truckers should be paid for all their work, in addition to their miles driven. We’re telling government not to allow the perversion of laws which were meant to deregulate freight ( 1994 FAAA ACT).
These laws were not meant to preempt states labor laws so that drivers wages could be regulated.
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© 2018, Allen Smith. All rights reserved.