Random Lengths News: Trio of New Bills Could Fix Badly Broken Port Drayage System

April 29, 2021
By Paul Rosenberg
“Wage theft, unsafe working conditions, no safety net. This is the reality of thousands of port drivers like me,” said Juan Carlos Giraldo at an April 6 press conference. “And it doesn’t just hurt us. It hurts our families and it hurts our communities.”
But that could finally start to change with passage of three bills whose proposal to the California legislature was announced that day in response to the COVID-19 pandemic and the climate crisis on top of the long-standing exploitation of drivers misclassified as independent contractors.
“Today, we’re saying loud and clear again that we’re not [going to] continue to have our port drivers treated unjustly,” said Sen. Lena Gonzalez, a daughter of a port trucker and the author of Senate Bill 338, which would have large retailers liable for trucking company violations, strengthening enforcement and plugging loopholes in SB 1402, passed in 2019.  
“During the COVID-19 pandemic this included a failure to provide PPE at our ports, the largest ports in the nation,” Gonzalez declared. “Sanitizing shared equipment, notifying workers about potential COVID-19 exposures were non-existent. This is not what California stands for. How can we, as the fifth-largest economy, allow these injustices to continue at our port? It’s not fair and we must fight.”

For five years, Giraldo has worked for Container Connection, a subsidiary of Universal Logistics Holdings, the subject of a recent Cal OSHA complaint he helped file on March 15, and the subject of an April 14 strike that was honored by ILWU dockworkers who refused to load Universal Logistics Holdings trucks. 

“Container Connection denies us our basic rights for a minimum wage,” Giraldo stated. “They do that by calling us independent contractors. But we’re independent in name only. We have to follow the company rules. The company can discipline us. We don’t run our businesses. We’re just like any other employee except without the protections.”

Unemployment insurance is one of those protections, the lack of which constituted a pandemic within the pandemic last year. Another bill, Senate Bill 700, introduced by Sen. Maria Elena Durazo, would directly redress that problem, making trucking companies responsible for unemployment insurance.

“My work dropped by 80%, when the pandemic hit,” Giraldo said. 

But he was just one of thousands.

“As the pandemic hit and the amount of cargo in the ports dropped many, many drivers found themselves out of work,” Durazo said at an April 19 hearing on her bill. “When they applied for benefits, many were denied. Even worse, some of those classified drivers were deemed to be employers of other drivers, making them liable for … [unemployment insurance] taxes, instead of the companies profiting from their work.

“[Those] decisions are being overturned on appeal, but workers cannot and should not wait. Their very survival, their ability to keep a roof over their heads and food on the table depends on timely access to benefits when work dries up.

“SB 700 is critical to provide certainty and clarity to the EDD on who the true employer is, so that port trucking companies cannot evade liability under California’s complex UI code.” 

“To be clear, the legal system has weighed in,” said Teamsters Port Division lawyer Julie Gutman Dickenson in that hearing. “In every California state and federal court case, at every agency from the CUIAB [California Unemployment Insurance Appeals Board] to the DLSE [Division of Labor Standards Enforcement], the DOL [US Department of Labor] to the NLRB [National Labor Relations Board] port drivers have been uniformly found to be employees of the trucking companies they work for, not employees of an LLC their employers incentivized them to obtain, and not employers or employees of their coworkers with whom they share a truck.”

In short, SB 700 is simply codifying existing law, as interpreted by those responsible for enforcing it, removing a baseless cloud of confusion. SB 338, in contrast, is addressing shortcomings in a previous bill SB 1402, which have become apparent since it went into law. As Random Lengths News explained in 2019, it made retailers like Walmart and Target jointly liable for port trucker wage theft violations, along with the trucking companies directly responsible.

Violators were placed on a list, so there could be no claims of innocent mistakes. 

“[T]oo many loopholes have left the bill ineffective in achieving system change,” said Shane Gusman, testifying on behalf of the California Teamsters Public Affairs Council on April 21. “We need SB 338 to fill these loopholes and make sure the exploitation ends once and for all.”

Caitlin Vega, representing the Teamsters Port Division, provided specifics.

“SB 338 proses three important changes to make the law more effective in raising labor standards at the port,” Vega said. “It adds health and safety violations, it creates a category for prior offenders who continually misclassify, and it adds an audit requirement to ensure that illegal conduct has stopped before a company is removed from the list.”

The California Trucking Association has opposed the bill, but the teamsters have met with them several times. 

 “And today we are accepting amendments on many of the issues they’ve raised,” Vega said.

Violations would be limited to final determinations, and the definition of prior offenders would be narrowed. Differences remain, but discussions continue.

The third bill — Assembly Bill 798, the Climate Jobs and Equity Act authored by Assemblywoman Wendy Carrillo — represents a major part of California’s climate/jobs agenda. It would ensure that public funding to manufacture and purchase cleaner vehicles — including port trucks — is tied to labor standards, including proper classification.

“AB 794 will get us to zero emission vehicles and secure compliance with labor laws, high-road workplace standards, create jobs for many of those who need them the most, and address climate and equity issues in our local communities,” Carrillo said at an April 21 press conference. “We need long term equitable and sustainable solutions, with economic development strategies to build back better for the COVID-19 pandemic and address systemic racism and economic justice.  AB 794 shows how to do this with two iconic American industries: truck driving and auto manufacturing.

“This is very personal to me. I grew up in a neighborhood with poor air quality. My little sister developed asthma, and we almost lost her.” 

Her current situation is similar. 

“The 51st Assembly District is surrounded by the 5 or 10 the 60 the 710 to the 134 and the 110 freeways,” she stressed. “This is a very real issue in my community.

“California vehicle incentive programs function like a gate: vehicles enter the gate and trucking companies drive them out. AB 794 sets baseline standards for company performance on treatment of workers — domestic manufacturing and hiring disadvantaged workers — for a manufacturer to send a vehicle through the gate, and trucking companies to drive trucks out of the gate.” 

Manufacturing-side requirements include apprenticeship programs, domestic production and competitive pay requirements, hiring of disadvantaged workers and preservation of dispute resolution options. Trucking side requirements include compliance with labor, health and safety laws.

“The bottom line is this: California should not subsidize companies that violate workers rights or shift the cost of going green onto the backs of workers or the state safety net,” Carrillo stated. “Public funding should reward companies that follow the law and respect workers because experience has shown us that these policies and incentive programs to upgrade fleets without labor standards do not work. The misclassification of port drayage truck drivers for instance has been an obstacle to meeting climate change action goals and ensuring California air resources board air quality targets are met, because misclassified drivers have been unlawfully forced to bear all the cost of transitioning to clean trucks.”

“AB 794 is a blueprint not only for California but for the working class throughout the United States,” said Romeo Torres, chairman of the United Auto Workers in the Ontario parts department. “Under the current law manufacturers receive taxpayers dollars for electric vehicles but don’t have to meet any requirements for creating jobs in California. This bill would help support U.S. job creation and support quality jobs so workers can support their family. California is the largest electric vehicle market in the United States. The message that California sends to the auto industry matters.”

Together, this trio of bills may finally put an end to the systemic misclassification of port drivers, and the resulting wage theft and loss of worker protections. It’s telling that this will only happen in conjunction with responding to two other crises — the climate crisis and the COVID pandemic — which have highlighted injustices ignored for so long. After decades of struggle — at times with no allies at all — justice for port drivers is long overdue.

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