A California judiciary committee struck down an "anti-Concepcion" bill, drafted in response to the US Supreme Court's decision in AT&T v. Concepcion, in which the court held that AT&T could requires its employees to arbitrate their issues individually. Specifically, the California senate bill was drafted in February 2012 and, if enacted, would strike language from employee's contracts that waived the right to bring grievances against an employer in a class action suit.
Supporters of the bills argued it would ensure workers the ability to form class actions and, as a result, would deter fraud. Opponents argued that voiding such waiver language would dramatically increase litigation costs by encouraging class actions.
So as to allow small fleet owners to take advantage of the flexibility option, the California Air Resources Board ("CARB") has extended the reporting deadline to September 1, 2012. The extension affects fleet owners of 20 or less 50-foot or longer box-type trailers that 2010 models or older. The small fleet owners may select 1 of 2 options to bring trailers into the compliance. Of the two options, the extension applies to the second. The options are as follows:
1. Owners can ensure the fleet is equipped with United States Environmental Protection Agency ("EPA") SmartWay-verified aerodynamic equipment on trailers, including side skirts and trailer tails, by January 1, 2013, or
2. Owners may report by September 1, 2012, to take advantage of the optional phase-in plan, which allows small fleets up to four years to comply.
Regardless of which method owners choose, owners must also install fuel efficient, low-rolling resistance tires on their trailer fleets by January 1, 2017.
Owners will certain information available when reporting online at Tractor-Trailer GHG Reporting, including the trailer vehicle identification numbers, makes and model years, and license plate numbers. For refrigerated van trailers, the transport refrigeration unit model year and engine model year are both required.
The rule is also expected to help combat climate change by reducing carbon dioxide emissions nationwide by 33 million metric tons by 2020. Fleet owners seeking more information on compliance assistance and funding opportunities can go to http://www.arb.ca.gov/truckstop.
In light of increased oil and gas drilling, the Federal Motor Carrier Safety Administration ("FMCSA") has proposed revisiting hours-of-service guidance for oilfield carriers. The FMCSA has traditionally granted two HOS exceptions to oilfield haulers.
One exception grants oilfield haulers a 24-hour restart after 70 hours of work in eight days. This applies to drivers who exclusively haul oil and gas equipment, such as pipe, as well as drivers who serve field operations. The second exception provides that specially trained drivers of vehicles specific to oil wells do not have to include waiting time in their on-duty time.
The FMCSA intends to clarify these exceptions. Specifically, the 24-hour restart would apply to carriers that provide direct support to oil and gas well sites, including hauling water used in the fracking process, and hauling waste away from the site. The waiting time exception would apply only to drivers of equipment that is specially built for well service, and who have been trained in the operation of that equipment.
Drivers who haul supplies, equipment and materials such as sand and water would not be eligible for the waiting time exception, even if their trucks have been somewhat modified or if they have extra training.
The FMCSA will release the proposed guidance one June 5, 2012 in the Federal Register and comments will be due in August.
A Maryland federal judge recently ruled that the Supreme Court class action ruling in Wal-Mart v. Dukes does not bear on an FLSA overtime pay class action suit. The court conditionally certified the collective action, rejecting the argument that the Dukes ruling applies to all aggregate actions. The court stated that the court's holding in Dukes only bears on Rule 23 class actions and is not applicable to FLSA actions.
In Dukes, the Supreme Court held that classes cannot be certified when each class member would be entitled to different relief against a defendant.
At issue was a collective action suit against Wells Fargo, where in the company's loan officers were classified as exempt and were not paid overtime if and when they worked more than 40 hours a week, up until April 1, 2011, when their status was changed to nonexempt, according to the judge's ruling. Prior to the switch, the officers were paid on a "draw and commission" basis ranging from $1,000 to $5,000 per month depending on their performance. After, they were paid $12 an hour, plus net commissions.
Recently, the Federal Motor Carrier Safety Administration ("FMCSA") released its 2012-2016 strategic plan, which lays out the agency's safety-focused initiatives over the next five years. The strategic plan is built around a three-pronged approach to truck and bus safety: raise the barrier to entry to the industry; enforce high safety standards; and eliminate high-risk carriers and drivers.
Among other things, the agency plans to development a smartphone application called the "SaferBus App" in order to assist consumers in selecting a particular carrier. Additionally, the FMCSA hopes to increase accessibility to its data management system. The FMCSA plans to complete rulemaking revisions to the Safety Fitness Procedures, in accordance with the CSA. Through this rulemaking FMCSA would establish safety fitness determinations based on safety data from crashes, inspections, and violation history rather than the old compliance review. The intention is to permit the FMCSA to assess the safety performance of a greater segment of the motor carrier industry with the hope of reducing large truck and bus crashes, injuries, and fatalities. The FMCSA will also work on rulemaking revisions to the Electronic On-Board Recorders for Hours of Service Drivers to require motor carriers to install and operate Electronic On-Board Recorders (EOBRs).
Further, the FMCSA will create a single comprehensive safety ranking system that covers all regulated carriers (ie, passenger, HAZMAT property, and HHG carriers, as well as shippers, including intermodal freight, brokers, drivers, and cargo tank manufacturers or repair facilities.) The Agency hopes to expand CSA and the number of carriers with SMS BASIC scores.
The FMCSA's strategic plan is available at http://www.fmcsa.dot.gov/about/what-we-do/Strategic-Plan/Strategic-Plan.aspx.
The National Highway Traffic Safety Administration ("NHTSA") proposed a federal motor vehicle safety standard to require electronic stability control ("ESC") systems on large commercial trucks and buses. The rule would affect vehicles with a gross vehicle weight rating of more than 26,000 pounds. The proposed rule would take effect between two and four years after the standard is finalized, depending on the type of vehicle. The proposal also includes standards for performance testing of the technology.
Based on NHTSA research, the technology could prevent up to 56% of rollover crashes each year and another 14% of loss-of-control crashes.
A Notice of Proposed Rulemaking has been published in the Federal Register and members of the public will have the opportunity to comment on the proposal for 90 days. NHTSA will also hold a public hearing on the proposed safety standard to solicit further public comment.
Based on analysis provided to congressional leaders, the Government Accountability Office ("GAO") found that while Federal Motor Carrier Safety Administration’s ("FMCSA") resources are limited, it could take steps to identify more "chameleon" carriers that attempt restart business after sanctions for safety violations.
Currently, the process is lengthy and involves screening applicant data against poorly performing carriers dating back to 2003, and reviewing each application. The process can take from a couple of weeks to a couple of months. However, the increased enforcement only affects buses and movers, a mere 2% of the approximately 66,000 carriers that apply for certificates every year.
While GAO acknowledged the FMCSA does not have the staff to conduct investigations on applicants, it does believes the FMCSA could use its current data screening methods more effectively. GAO derived and tested a method that can identify applicants that have chameleon attributes. It wrote an algorithm that searched the data for matching registration information, and for previously registered carriers that had a motive to evade detection, such as a history of safety violations. GAO said it identified 1,136 new applicant carriers in 2010, an increase from 759 in 2005. These carriers were three times more likely than other new carriers to be involved in a severe crash, GAO found.
GAO recommended the FMCSA develop a system to screen applicant data against carriers that have chameleon attributes, and apply it to all applicants. It also recommended that the agency strengthen its new entrant safety assurance program by training auditors to identify chameleon carriers.
FMCSA said it will implement the recommendations, although it is not clear when.
The Federal Motor Carrier Safety Administration ("FMCSA") announced planned improvements to the implemented in December 2010 as part of the agency’s Compliance, Safety, Accountability initiative. A preview is currently available to motor carriers and law enforcement. During this data preview period, FMCSA requests comments on the possible impact of the changes. To comment, go to www.regulations.gov; the docket number is FMCSA 2012-0074. The changes will be available to the public in July 2012.
FMCSA says the SMS improvements are based on ongoing analysis and feedback from enforcement personnel, the motor carrier industry and other stakeholders, and are designed to more effectively identify and prioritize high-risk and other unsafe motor carriers for enforcement interventions designed to reduce commercial motor vehicle crashes and hazardous materials incidents.
FMCSA will provide motor carriers with the ability to preview how the improvements impact their individual safety data in SMS. These improvements include:
• Changes to the SMS methodology that identify higher-risk carriers while addressing industry biases;
• Better applications of SMS results for agency interventions by more accurately identifying safety-sensitive carriers – such as carriers transporting people and carriers hauling hazardous materials – so that such firms can be selected for CSA interventions at more stringent levels; and
• More specific fact-based displays of SMS results on the SMS Website.
On March 29th, a federal court in the S.D. Indiana issued an opinion denying class and conditional certification of plaintiffs’ claims in the Scott v. NOW Courier case. Plaintiffs are five former couriers who brought the action at issue in June of 2010, alleging they were misclassified as independent contractors, along with violations of the Fair Labor Standards Act ("FLSA") and Indiana employment law protections. Plaintiffs sought recovery of minimum wage and overtime under the FLSA and various benefits under Indiana law.
In its analysis, the court stated it found "disingenuous" plainitffs' assertions that NOW controlled the maner and means of deliveries by its drivers. Furthermore, the evidence revealed that the indvidual drivers had considerable autonomy and independence in choosing the kinds of routes they wish to be assigned and schedules they wanted to work. As to the state claims, the court stated it was not persuaded that certification was appropriate or necessary based on the same problems addressed in its FLSA analysis. While the court did provide sub-groups of drivers may be appropriate, it stated no sub-groups were suggested nor were independent facts available upon which the court might determine such subsets exist.
A putative class action brought by former drivers against Performance Food Group, Inc. ("PFG") was dismissed with prejudice by a California federal judge. The court held that the meal and rest break claims were preempted by the Federal Aviation Administration Authorization Act ("FAAA"), enacted in 1994 to preempt state trucking regulation and bars state laws related to the prices, routes or services of federally regulated motor carriers. The dismissed class action is the second in several months, after a California federal court granted Penske Logistics LLC's motion for partial summary judgment, holding that the FAAAA trumped meal and rest break claims from a class of appliance delivery drivers and installers. In the PFG order, the court stated that the reasoning in Dilts v. Penske was persuasive.
A federal bill intended to increase the federal truck and weight size limits did not pass the House's Transportation and Infrastructure Committee. The Committee voted 33 to 22 to study the increased limit, rather than actually increasing it.
As issue was a vote was for an amendment to change a provision in the House highway bill that would have let states raise the limit on Interstate highways from 80,000 pounds to 97,000 pounds on six-axle vehicles.
The amendment struck the language approving the increase and would have the Transportation Department do a three-year study of such a change. The study must cover safety, pavement and bridge costs, and diversion of freight from the railroads and other modes.
The House introduced the highway bill, which may force the Federal Motor Carrier Safety Administration ("FMCSA") to rewrite the 34-hour restart provision of the rule, which limits the restart to once a week with two sleep periods from 1 a.m. to 5 a.m.
The House bill would require the FMCSA to conduct a field study of the provision. The study would have to be completed by March 31, 2013, three months before the rule is scheduled to go into effect. If the study supports the rule, then the provision would go into effect on schedule.
The bill also includes language that would allow states to increase the truck weight limit on Interstate highways from 80,000 pounds to 97,000 pounds, provided the truck has a sixth axle.
The Department of Transportation ("DOT") would be able to establish fees for these trucks, based on the increased cost of wear and tear on the road. The fees would go into the Highway Trust Fund.
Another provision would permit states already allowing longer combination vehicles to add more routes for trucks in this category..
A third provision would allow states to issue special permits for gross vehicle weight up to 126,000 pounds on Interstate segments of 25 miles or less.
California has recently entered a Memorandum of Understanding ("MOU") with the Department of Labor ("DOL"). California now joins the ranks of eleven other states taking part in this initiative. The eleven states are Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah, and Washington. The purpose of the California-DOL MOU is to target worker misclassification and permit information sharing between the state and federal agencies at issue with regard to this issue. California's cooperation with the DOL comes on the heels of SB 459, the recent California misclassification bill that went into effect January 1. Under the amended California Labor Code, businesses now be assessed civil penalties when found in violation for having misclassified workers.
The Federal Motor Carrier Safety Administration ("FMCSA") released a Supplemental Notice of Proposed Rulemaking in order to address concerns regarding its electronic onboard recorder ("EOBR") rule. By way of background, the initial Notice of Proposed Rulemaking ("NPRM") required frequent hours of service violators to use EOBRs starting July 2012. After making changes to the proposal in light of industry suggestions, the second proposal which proposes to expand the initial NPRM to include practically all carriers, and is intended to address concerns about the technical standards in the NPRM. However, during the revisions set forth by the FMCSA, the 7th Circuit threw out the EOBR rule, as it did not address the issue of preventing harassment through the use of EOBRs as the FMCSA was statutorily requried to do. As a result, the FMCSA went back to the drawing board and now has decided to hold public listening sessions on the harassment issue and on the technical questions before proposing a revised rule. The FMCSA will release a schedule for the listening sessions in the near future.
The Department of Labor ("DOL") released it 2012 budget, setting forth a $12 billion discretionary budget authority and aims increase enforcement of the Fair Labor Standards Act ("FLSA") and Family and Medical Leave Act ("FMLA").
The DOL's Wage and Hour Division ("WHD') is seeking $237.7 million and 1,839 full-time equivalent employees. The DOL said it wants an increase of $6.4 million and 57 full-time equivalent employees to support greater enforcement of the FLSA's overtime provisions and the FMLA.
Additionally, the WHD seeks $3.8 million and 35 full-time workers for increased enforcement on the worker misclassification front. Overall, the 2013 budget proposal calls for some $14 million to fight misclassification, including $10 million for grants for states, according to the DOL.
The Occupation Safety and Health Administration's ("OSHA") proposed 2013 budget requests $565.5 million and 2,308 workers, representing a small increase — $680,470 and three employees — from the budget enacted in fiscal year 2012.
The Equal Employment Opportunity Commission ("EEOC") is seeking a $373.7 million budget for the 2013 fiscal year, up from $360 million in 2012.
Clean Energy Fuel Corp. unveiled the first phase of its natural gas plan with the unveiling of its route plan that includes 150 new liquefying natural gas ("LNG") fueling stations along "America's Natural Gas Highway." Clean Energy Fuel Corp. has previously identified 98 locations and anticipates having 70 stations open by the end of 2012.
Major highway segments planned for early opening include those linking:
* San Diego, Los Angeles, Riverside and Las Vegas;
* the Texas Triangle (Houston, San Antonio, Dallas/Ft. Worth);
* Los Angeles and Dallas;
* Houston and Chicago;
* Chicago and Atlanta;
Additionally, a network of stations along major highways in the Midwest (Illinois, Indiana, Ohio, Missouri, Kentucky, Tennessee, Kansas, Oklahoma and Alabama) will serve the area's heavy trucking traffic.
The 150 stations are scheduled to coincide with the expected arrival of new natural gas truck engines for heavy-duty, over-the-road trucking.
On December 27, 2011, the Federal Motor Carrier Safety Administration published the final rule regarding the revised hours of service ("HOS") regulations. FMCSA's new HOS final rule reduces by 12 hours the maximum number of hours a truck driver can work within a week. Under the old rule, truck drivers could work on average up to 82 hours within a seven-day period. The new HOS final rule limits a driver's work week to 70 hours.
In addition, truck drivers cannot drive after working eight hours without first taking a break of at least 30 minutes. Drivers can take the 30-minute break whenever they need rest during the eight-hour window.
The final rule retains the current 11-hour daily driving limit. FMCSA will continue to conduct data analysis and research to further examine any risks associated with the 11 hours of driving time.
The rule requires truck drivers who maximize their weekly work hours to take at least two nights' rest when their 24-hour body clock demands sleep the most - from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule's "34-hour restart" provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty. The final rule allows drivers to use the restart provision only once during a seven-day period.
Companies and drivers that commit egregious violations of the rule could face the maximum penalties for each offense. Trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense.
The effective date of the final rule is February 27, 2011. Commercial truck drivers and companies must comply with the HOS final rule by July 1, 2013. The rule is available on FMCSA's Web site at http://www.fmcsa.dot.gov/HOSFinalRule.
Southern California transportation officials are planning a truck-only east-west freeway between two major interstates. The freeway, which is part of a 30-year regional transportation plan for the area, is intended to improve the movement of goods. Officials are considering the cargo highway between Interstate 710 in Commerce, Calif., and Interstate 15 in Ontario, Calif, adjacent to Highway 60. There are tentative plans for a four-lane causeway. The freeway is estimated to cost more than $15 billion.
Between 25% and 40% of the trucks would be port-related, nearly 40% would serve local goods movement dependent industries, and the remainder would support domestic trade.
Additionally, there is a heavy emphasis on the environment in tentative plan. Moving forward, the route may be strictly for zero-emission trucks that run on alternative fuels.
Associations in the logistics industry associations in opposing a bill that would close ports to owner-operators. Sens. Charles Schumer (D-NY) and Kristen Gillibrand (D-NY) introduced The Clean Ports Act of 2011 (S. 2011). The bill would reverse a 9th Circuit's decision and grant local governments the ability to regulate interstate and foreign commerce by trucks within the port jurisdiction. The 9th Circuit ruled only the federal government has the power to regulate truck interstate and foreign commerce.
The Clean Ports Act would give ports the authority to regulate truck prices, routes and service in order to improve pollution, congestion and safety.
This is the companion legislation to a measure introduced in the House last February by Rep. Jerrold Nadler, D-N.Y. That bill was referred to the Transportation and Infrastructure Committee, which is not likely to get through the House.
On Friday, January 20, the First Circuit reversed the lower court's denial to hear an employment classification suit. At issue was an action brought against the state by the Massachusetts Delivery Association ("MDA"). The First Circuit ruled that although MDA is currently facing litigation in state court, this fact does not bar MDA from bringing a separate action against the state in federal court.
MDA members are facing lawsuits in state court brought by independent contractors who allege they were misclassified. After MDA filed a separate suit in federal court, the lower court refused to take up the action, stating MDA was an alter ego of the defendants appearing in state court. Therefore, pursuant to the Younger doctrine, MDA was precluded from bringing an action.
In its opinion, the First Circuit's three-judge panel ruled that the lower court misapplied the Younger doctrine. The Younger doctrine bars federal courts from hearing cases brought by parties who are simultaneously facing claims in state court. According to the First Circuit opinion, the Younger doctrine was intended to prevent interference among court proceedings, however, given that the federal suit would not interfere with the state proceeding, the First Circuit provided that the doctrine did not apply. The First Circuit also stated given the uncertainty as to whether MDA is a party to the state proceeding, it would be unfair to preclude a separate federal action.
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