With current efforts to unionize port drayage drivers either stalled in court or facing little movement in Congress, union supporters are now putting pressure on the legal definition of port truck drivers' employment status.
Trucking deregulation in the early 1980s opened the door for the proliferation of independent owner-operators, which now account for more than 80 percent of typical port drayage drivers. Owner-operators act as freelance drivers, working on a per-load basis, as opposed to employees who work on a per-hour basis.
Under current laws, only employee drivers can be unionized, not owner-operators. And yet, the nation's 110,000 port drivers offer an opportunity for unions like the International Brotherhood of Teamsters to dramatically bolster their ranks and recapture some of the national strength the union once held.
A move by the Port of Los Angeles that began in 2007 to bar owner-operators from servicing the port, instigated at the request of the Teamsters, remains tied up in a verdict-for/appeal-against tug-of-war litigation with the trucking industry and is expected to eventually find resolution only at the US Supreme Court.
An outgrowth of the Los Angeles litigation was a side effort by union supporters to change federal interstate commerce laws such that ports could legally enact measures requiring employee drivers. While gaining some initial traction at the local, state and federal level, the effort has since stalled in the ongoing Congressional gridlock.
Union supporters are now seeking to have the federal government render the whole argument moot by classifying most port drayage drivers as employees instead of owner-operators.
To support their position, union supporters on Wednesday issued a self-generated report that claims that most port drayage drivers are misclassified as owner-operators and are, in reality, working as employees of trucking firms.
"We plan to use this report as further proof to take to the administration to say 'we know you want to help, you need to do it more quickly,'" Fred Potter, director of the Teamsters port division and a vice president for the union told the Wall Street Journal.
President Barack Obama has listed the problem of businesses misclassifying employees as contractors as one of the priorities of his administration's Middle Class Task Force and provided funds for the Department of Labor and the Internal Revenue Service to work together to deal with the issue. While the Government Accounting Office admits that the extent of misclassification is unknown, it is estimated that it may apply to somewhere between 10 percent and 30 percent of US businesses.
The new report, titled “The Big Rig: Poverty, Pollution and Misclassification of Truck Drivers at America’s Ports,” was authored by members of Change to Win, a union umbrella group spearheaded by the Teamsters, the National Employment Law Project and Rutgers University.
The report, through a survey of nearly 2,200 drivers nationwide, claims that trucking firms are actually using the drayage drivers as employees because the firms determine how, when, where, and in what sequence drivers work. The report also claims that drivers are financially dependent on trucking companies that unilaterally control the rates that drivers are paid and that drivers are financially linked long-term to trucking firms.
In conclusion, the report calls for port authorities to adopt employee-only rules like those now under litigation in Los Angeles and for Congress to pass legislation allowing local port authorities to determine the classification of their port-servicing drivers.
The trucking industry has argued that independent owner-operators, in the majority of cases, choose this status as opposed to working as per-hour employees.
While the American Trucking Associations, an industry trade group representing more than 37,000 trucking firms nationwide, does not argue that in some cases the owner-operator model has led to state-to-state inconsistencies in classification, ATA officials told the US Department of Labor last year that, “The owner-operator business model is deeply ingrained in the trucking industry, with benefits to both the owner-operators and the motor carriers with which they contract. The interstate nature of the trucking industry makes it vulnerable to inconsistent state regulation in terms of worker classification and the uniformity needed by the industry can only be achieved through consistent application of a consistent legal standard.”
While union supporters continue to claim that their efforts are directed at improving the condition of the drivers, it is clear that some in the current administration understand the underlying issue.
Deputy Secretary of Labor Seth Harris told Congress earlier this year that while the agency is looking toward actions that would place a tighter reign on employee classification of drivers, "All of this is just to simply turn these people into employees one way or another so that unions can make the effort to organize them."
Friday, December 10, 2010
