By Ricardo Lopez, July 4, 2014
Port truck drivers have filed lawsuits and have flooded the state with
hundreds of claims alleging that port trucking firms improperly
classified them as independent contractors rather than employees. Above,
trucks wait in line to take cargo to a pier in the Port of Long Beach
Truck drivers with Teamsters Local 848 and 166 protest with others at
the Port of Long Beach in April over alleged workplace violations.
After years of complaining about working conditions, truck drivers who
move goods at Southern California's sprawling ports appear to be making
Drivers have filed lawsuits and have flooded the state
with hundreds of claims alleging that they were improperly classified as
independent contractors rather than employees by trucking companies. As
contractors, the drivers don't get the kind of overtime, workers'
compensation coverage and other guarantees that employees receive.
state labor commissioner's office is examining more than 300 claims for
wage theft related to misclassification, a dramatic rise from 2011 when
drivers filed only two such complaints. In all, more than 500
complaints were filed in 2012 and 2013.
In cases involving 17 trucking companies, the state Department of
Industrial Relations has ruled in recent months that nearly 40 drivers
were improperly designated as contractors, which denied them significant
workplace protections. So far, $4.3 million in back pay and penalties
has been awarded to drivers.
"The port drivers are racking up a
number of victories" with the labor commissioner's office, said Michael
Waterstone, an employment law professor at Loyola Law School. "They're
going to keep trying to go there."
The companies involved say the complaints have been trumped up as part of an effort to unionize drivers.
one of those cases, state labor officials ruled in March that seven
drivers were employees of Pacer Cartage Inc., which had classified them
as independent contractors, and therefore were owed a total of more than
$2 million in unpaid wages, expenses and attorney's fees. The company
has appealed and a civil trial is scheduled for this fall.
Industry experts estimate that only 10% of the region's roughly
12,000 short-haul truckers are directly employed by companies. The
remainder are owner-operators and are responsible for maintenance of the
trucks they use to move goods in the massive logistics industry.
a conventional contracting model, drivers are free to work for multiple
companies, set their work schedule and hire other drivers. But drivers
such as Javier Perez, one of the plaintiffs in the case against Pacer
Cartage, said the reality is that employers exert tremendous control
over drivers, particularly after implementation of a clean-truck program
designed to reduce air pollution at the ports of Los Angeles and Long
Starting in 2010, trucks older than the 1993 model year
weren't allowed to conduct business at the ports, and Pacer offered to
lease new trucks to drivers that would fulfill the environmental
requirement of the program, according to the Department of Industrial
"After the new trucks, the degree of control over us was more clear,"
Perez said in Spanish. "The truck would need to stay at Pacer's yard
and we couldn't have repairs done by other mechanics."
has worked as a port truck driver for 14 years, said that after the
lease arrangements, Pacer illegally deducted from his paycheck costs for
repairs to the truck.
That brought his pay to around $500 a week from between $1,000 and $1,500, making it a struggle to make ends meet, he said.
"I'm only looking to be paid what's fair," Perez said. "We're not asking for more."
The labor law skirmishes have also played out in court.
June, a three-judge panel from the U.S. 9th Circuit Court of Appeals
reversed a lower court's ruling and found that drivers delivering Sears
goods were misclassified as contractors by Affinity Logistics, a
subsidiary of XPO Logistics Inc. Affinity is now known as 3PD Inc. and
is based in Georgia.
Cartage also is a subsidiary of XPO Logistics, based in Greenwich,
Conn. The decision against Pacer has been appealed to San Diego County
Superior Court and a trial is scheduled for October.
If the Pacer
drivers' ruling by the labor commissioner's office is upheld, "I think
it's going to change the way [trucking firms] do business," Waterstone
said. "Employers are going to pay attention when you have a lot of
people that can make these claims."
A spokesman for XPO Logistics
said the company denies that Affinity or Pacer drivers were
misclassified. It plans to appeal the Affinity ruling, petitioning for a
hearing with the entire 9th Circuit Court.
"We believe the cases
are without merit and continue to litigate them vigorously," Troy
Cooper, XPO's chief operating officer, said in statement.
outcomes of these cases will be closely watched by trucking firms,
drivers and the Teamsters Local 848, which has mounted an aggressive
campaign against Southern California's leading short-haul trucking
companies. Drivers and the union allege that misclassification of
drivers is rampant among companies that serve the ports of L.A. and Long
Beach and are a key link in the movement of products from cargo ships
to retailers' shelves.
According to one estimate by the National
Employment Law Project, nearly two-thirds of the nation's roughly 75,000
port truck drivers are misclassified as contractors.
a spokesman for the Harbor Trucking Assn., said union activists are
wrongly accusing the entire industry of misclassification as part of an
attempt to unionize drivers.
"We try to promote best practices
within the industry," Cherin said. "If there are companies that are
willfully misclassifying drivers, we want them out of business just like
Cherin and port officials estimate there are
1,100 trucking companies that serve the ports. Most companies do
business legally, he said, and the association provides general
guidelines on legal issues.
Still, tension between truck drivers
and companies over wage-theft complaints have escalated in recent years.
Drivers have picketed at least four trucking firms and have accused one
company of union-busting tactics.
Federal labor officials have also entered the fray.
mid-June, the National Labor Relations Board ac
cused Green Fleet
Systems, a Rancho Dominguez firm, of more than 50 labor law violations,
including firing drivers for union activity, retaliating against
pro-labor employees and planting an anti-union operative amid its
Green Fleet has denied all the charges and a NLRB hearing is scheduled for this summer.
Arambula, an attorney representing the drivers in the upcoming trial
against Pacer, said he believes thousands of drivers who serve the ports
Arambula said his firm is responsible for
filing about 200 claims with the Department of Industrial Relations.
Those cases are slowly winding their way through the hearing process,
though he plans a more aggressive approach and said he will move many of
those complaints to civil court.
power in the group and the numbers," he said. The drivers want to "use
that to work out something that's fair for everyone."