The Truth about Meal and Rest Breaks for Intrastate drivers-
Concerning Meal and Rest Breaks for Intrastate Drivers
Driver Wages continue to be attacked- Provisions to overturn state laws designed to protect truckers began to first appear in the 2015 Highway bill- FAST ACT– The provision was called the Denham Amendment, named after Rep. Jeff Denham (R-CA) Although the amendment passed in the House, it did not make it through the Senate.
It since was attempted to be slipped into another bill in the 11th hour. Thanks to Lawmakers such as Peter Defazio of Oregon, it did not make it.
Related article- How to Ensure Fair Trucker Wages in the 2015 Transportation Bill
Notice who pushed for Denham language: , After the Denham amendment failed in the transportation bill, the American Trucking Associations, the 50 ATA-affiliated state trucking associations, the National Private Truck Council, the Truckload Carriers Association and the Truck Renting and Leasing Association placed pressure on the House Committee on Transportation and Infrastructure to include this wage damaging “Denham Language in the FAA Reauthorization bill, (AIRRACT)
Peter DeFazio Stands up for Truckers
…..The trucking companies supporting Section 611 argue that a driver would have to pull off the road at inconvenient times or in potentially unsafe situations to take a break. That is simply not true. In fact, case law has specifically established that employers do not have to require employees to take a break they simply must permit it by relieving employees of duties or pay employees for the time
Moreover, it is disingenuous for some in the trucking industry to imply that the need for this legislative fix was caused by one “rogue” Ninth Circuit court decision. California changed its meal and rest break law in 2000 –16 years ago–to provide a monetary remedy of an additional hour of pay to an employee if an employer does not allow for a meal or a rest break……
Drivers Beware. Next will be the Transportation, Housing and Urban Development, and Related Agencies (THUD) appropriations bill which will be the target for this dangerous truck driver wage provision.
THUD– On May 17, 2016, the House Appropriations Subcommittee on Transportation, Housing,and Urban Development, and Related Agencies approved the 2017 Transportation,Housing and Urban Development funding bill. -THUD
THUD included an amendment of the FAAAA that would preempt state rest- and meal-break laws, ( as well as pay for all non-driving time: detention,inspections, paperwork, fueling, etc.) retroactive to 1994.
Congress recently combined the above mentioned FAAAA amendment as Section 134 of H.R. 5394, which is an omnibus federal budget bill to fund the federal government through most of 2017.
Congress will vote on H.R. 5394 in January 2017
The Denham Language originally attempted to be included in FAST ACT ( failed), but if enacted in THUD will affect many Drivers adversely in several different ways.
These are LABOR LAWS-
Meal and Rest Breaks for Intrastate Drivers, there are 21 sates that have such provisions in their Individual State Labor Laws.
This is the language NOW in Section 134 of H.R. 5394 ( modified from Denham Language)
” “(A) 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 prohibiting employees whose hours of service are subject to regulation by the Secretary under section 31502 from working to the full extent permitted or at such times as permitted under such section, or imposing any additional obligations on motor carriers if such employees work to the full extent or at such times as permitted under such section, including any related activities regulated under part 395 of title 49, Code of Federal Regulation
Note: Contrary to what drivers are being misleadingly told, a meal and break provision provided by a state, DOES NOT mean you are forced to take the break as the ATA would want you believe. It means however you will be PAID for those hours.
Read what the ATA put out to argue and support including of the FAAAA Preemption. It is to be included in bills to relieve Motor Carriers from paying drivers for all time .
Here it is: FAAAA Preemption: Clarifying the Law to Reestablish Congress’ Original Intent
Federal Regulation ended in 1980 when Deregulation came about.
This did not prevent the States from regulating intrastate rates, intrastate routes, or intrastate services, therefore, to address this, Congress included an express preemption provision in the Federal Aviation Administration Authorization Act of 1994 (FAAAA), prohibiting states from enacting or enforcing policies“related to a price,route, or service of any motor carrier.”
1994 FAAAA Was NOT meant to affect STATE LABOR LAWS
Deregulation of the States ability to regulate Intrastate Commerce was brought about in the 1994 FAAAA Bill. ( There was no mention of meal and rest break)
Prior to the 1994 FAAAA Bill, the States could, through a consensus of all concerned parties, establish what rates would be charged for routes taken and services provided just as the current Deregulated Federal System.
The purpose for a regulated system was to insure that sufficient rates were in place so that carriers operating Intrastate could adequately maintain their fleets, pay their employees an appropriate wage and insure that customers received an appropriate level of service for which they were paying.
The purpose of the regulated system was to prevent many of the downfalls that we face today from ever coming into existence.
The primary reason for regulated, I believe, was to prevent the predatory pricing that has led to unsafe equipment, under paid employees (who will then cut corners and operate inappropriately) and poor service to the customer that has evolved into Drivers being Detained at the customer as the customer exceeds the expectations of the rates, routes and Services as described within the States Regulatory Power.
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.
Due to many carriers claims and actions that this wording exempted them from fulfilling their obligations to the Intrastate Employee Drivers under State Labor Laws, Dilts v Penske and Campbell v Vitran were cases in which the 9th District Court found that;
The Court thus held that California meal and rest break laws are not preempted because they are “not the sorts of laws ‘related to’ prices, routes, or services that Congress intended to preempt.”. Instead, they are “normal background rules for almost all employers doing business in the state of California.”.
In other words, a WIN for Truckers.
I have Never worked or managed a job that the employees were not granted a morning and afternoon 10 minute PAID break. If I needed my crew to work through their break, I would give them an extra 10 minutes on their lunch break, I would release them from work 10 minutes early or I would add 10 minutes pay to their workday.
This was on Union Jobs and I never had a grievance placed against me as I Took Care of My Crew.
Denying employees their paid breaks, without any type of restitution, is forcing a cut in pay on them to which Individual State Labor Laws address in different ways.
For example, some states require that a missed lunch break during which the employee worked, the employee must be paid at time and a half for working through their lunch break.
For We OTR Drivers, who primarily operate Interstate and only operate Intrastate occasionally, to allow the ATA to reduce the level of compensation to Drivers who operate Intrastate INSTEAD of increasing our level of compensation to meet the generally acceptable levels of Many Individual States is ASININE!!!?
The Predatory ATA carriers, who insisted on ELD’s, have the technology at their fingertips, ELD’s, to know how to properly pay their Employee Drivers who at any given time may be operating in the Intrastate mode.
Many of these carriers have acted Criminally and they seek relief from future lawsuits as the Denham Method would be retroactive back to 1994.
These Criminal Minded Carriers are also seeking measures that will permit them to continue to Cheat Intrastate and Interstate Employee Drivers operating in an Intrastate capacity.
City Driver paid at $20.00 an hour delivers dropped, loaded trailer, 20miles from terminal. Then drops empty trailer 20 miles out and hooks loaded trailer to return to terminal.
The Driver takes first Paid 10 minute break while being offloaded at 1st stop.
The Driver takes 30 minute lunch break while being offloaded at 1st stop.
The Driver takes second Paid 10 minute break while dropping and hooking at 2nd stop.
The Driver puts in an 8.5 hour day for which he is owed 8 hours pay.
The Driver earned $160.00 for the day.
OTR Driver acting in Intrastate mode is paid at .50cpm delivers dropped, loaded trailer, 20miles from terminal. Then drops empty trailer 20 miles out and hooks loaded trailer to return to terminal.
The Driver does not get Paid 10 minute break while being on the dock offloading at 1st stop.
The Driver is not permitted 30 minute lunch break while being offloaded at 1st stop as he is on the dock.
The Driver does not get second Paid 10 minute break while dropping and hooking at 2nd stop.
The Driver puts in an 8.5 hour day for which he is owed 60 miles at .50 cents per mile.
The Driver earned $30.00 for the day.
Per California labor laws, this OTR Driver acting in the capacity of an Intrastate Driver and using the Federal Minimum Wage of $7.25 an hour as the prevailing wage would be owed an additional;
$28.00 for the 8hr work day
$4.83 for the 2 denied 10min breaks
$10.88 for being denied a lunch break
$43.71 due to the Driver per Ca. State Labor Law.
The OTR Driver should have been paid $73.71 total for this 8.5 hr working day.
Hmm, the carrier would save $86.29 by operating within the law.
That’s not good enough, so the carrier Cheats the Employee OTR Driver out of $43.41 by Flagrantly Ignoring the Law.
NOW these Predators spin their Illegal Activity to the Drivers as being Good for the Drivers so that they may cover up their Criminal Acts and NOT Be Held Accountable in a Court of Law for their Criminal Behavior!!!!!!
They have brought million dollar lawsuits Against THEMSELVES that include back wages, fines and fees by Acting Criminally and WE Are Supposed to help them out by backing this Denham Method as it is GOOD FOR WE DRIVERS??
This is only one example in one area that the Denham Method Addresses that will in fact, Take Money Out of the Pockets of Drivers OVERALL!!!
Additional Related Posts
The Denham Amendment MUST Be Defeated!! by Hal Kiah
© 2016, Pat Hockaday. All rights reserved.