Part A of the Denham Method is still being pursued by the ATA thereby establishing a Federal Labor Law specific to Drivers operating under part 395.
Ca. Labor Law requires Rest and Meal Breaks for Drivers no different than most all other employees are granted.
What is not spoken of by the ATA is the fact that Ca. Labor Law requires Detention Time Be Paid to Employee Drivers.
F4A Preemption will establish Piece Work wages as the standard and will eliminate the requirement that Detention Time be compensated.
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, 7 Code of Federal Regulations.
Section 31502 deals specifically with interstate Drivers.
“imposing any additional obligations on motor carriers” would cover any pay beyond piece work pay such as Detention Time Pay.
“including any related activities regulated under part 395 of title 49, 7 Code of Federal Regulations” would cover duties preformed and logged as “On Duty Not Driving”.
Concerning Detention Time.
To fully understand the implications of Federal Labor Law and how it is NOT being applied to Employee OTR Drivers I would suggest that you read § 785.7 through § 785.41.
It is obvious to me that the ATA is using the Federal Motor Carriers Safety Regulations as guidelines to determine when and for what the Employee OTR Driver is paid.
The piece work method used establishes the minimum baseline milage rate at .145cpm. At $7.25 an hour divided by 50mph = .145cpm.
§ 785.7 Judicial construction.
The United States Supreme Court originally stated that employees subject to the act must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.”
Subsequently, the Court ruled that there need be no exertion at all and that all hours are hours worked which the employee is required to give his employer, that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.
Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity.
Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer.”
The workweek ordinarily includes “all the time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place”.
The Portal-to-Portal Act did not change the rule except to provide an exception for preliminary and postliminary activities. See §785.34.
Read § 785.14 General and consider how Line 1 “Off Duty” actually contradicts itself. “Engaged to Wait” and “Waiting to Be Engaged” are both covered under this heading.
The courts seem to only see “Off Duty” and take that as meaning “Waiting to Be Engaged” when in fact the Employee is actually “Engaged to Wait” as they are waiting to load or offload, job duties that must be preformed before the next job duty may be undertaken as they are ” controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business”.
Ca. Labor Code 226.2. (Partial)
This section shall apply for employees who are compensated on a piece-rate basis for any work performed during a pay period.
This section shall not be construed to limit or alter minimum wage or overtime compensation requirements, or the obligation to compensate employees for all hours worked under any other statute or local ordinance.
For the purposes of this section, “applicable minimum wage” means the highest of the federal, state, or local minimum wage that is applicable to the employment, and “other nonproductive time” means time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.
(a) For employees compensated on a piece-rate basis during a pay period, the following shall apply for that pay period:
(1) Employees shall be compensated for rest and recovery periods and other nonproductive time separate from any piece-rate compensation.
(2) The itemized statement required by subdivision (a) of Section 226 shall, in addition to the other items specified in that subdivision, separately state the following, to which the provisions of Section 226 shall also be applicable:
(A) The total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period.
Frequently Asked Questions
Piece-Rate Compensation – Labor Code §226.2 (AB 1513)
Q. What is “other nonproductive time”?
A. Labor Code section 226.2 defines “other nonproductive time” as “time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.”
What constitutes “other nonproductive time” under this definition will obviously vary depending upon the nature of the work and the “activity being compensated on a piece-rate basis.”
Q. What are the compensation requirements for other nonproductive time?
A. Labor Code section 226.2, subdivision (a)(1) and (a)(4) provide that:
• Employees must be compensated for other nonproductive time separate from any piece-rate compensation, and
• Employees must be compensated for other nonproductive time “at an hourly rate that is no less than the applicable minimum wage.
This means that piece-rate employees must be paid compensation for “other nonproductive time” that is separate from their piece-rate compensation. An employer may not treat the piece-rate compensation as including compensation for other nonproductive time, no matter how the piece-rate was determined.
Concerning Ca. Meal and Rest Breaks.
The ATA and others have spun Ca. Rest Break rules as meaning the Employee Driver will be required to take the rest breaks thereby losing production time as it could take 15min to find and park the truck in order to take the 10min break and another 15min lost production time to get back on the road.
Piece workers are being paid whenever they are producing pieces.
The hourly employee is paid for not working during a 10min break.
For this reason, the piece worker is required to be paid hourly and separately for their earned 10 min breaks. In other words, they are to be paid 10min in addition to their piece work wage in order to have the same benefit as the hourly worker for being paid 10min for not working.
If asked, the employee may voluntarily work through the break but must be compensated for doing so.
A piece worker is being paid if they work through their break.
The law states that the rest breaks must be “made available” to the employee. It does not say the employee has to take the break.
Law suits in Ca. stem around carriers denying Employee Drivers their breaks. Ca. Labor Code requires that an employee who is denied their break be paid 1 hour “Premium Time”. This applies to denied meal breaks as well.
There is a limit of two “Premium Time” payments per working shift.
What has actually happened is, interstate carriers have told their employees to keep working, they denied the employees their meal and rest breaks. The carriers then failed to pay the Employee Drivers the required 1 hour “Premium Time” for the denied breaks.
The carriers assumed that they were exempt from the states laws because they were involved in interstate commerce.
We must remember that it is the States Rights to impose stricter regulations than the Federal regulations as is common when it comes to haz-mat handling and routing or establishing minimum wage requirements.
In Dilts vs Penske as heard in the 9th District Court, Penske’s attorneys argued that the 1994 FAAAA Bill took away the States Rights to Regulate trucking and that Ca’s. Labor Laws affected Rates, Routes and Services.
The Ninth Circuit held that “generally applicable background regulations that are several steps removed from prices, routes, or services, such as prevailing wage laws, are not preempted, even if employers must factor those provisions into their decisions about the prices that they set, the routes that they use, or the services that they provide.”.
The ATA had tried to alter Ca. Labor law on 4 separate occasions since 2000 using the FAAAA argument without success.
Q. What are “rest and recovery periods”, as referred to in the statute?
A. Labor Code section 226.2 does not change the definition for rest and recovery periods. Those terms have the same meaning as they do under existing law.
“Rest” periods are defined and required under a number of existing wage orders. For example, existing Wage Order 1 (Manufacturing Industry) contains the following provision regarding rest periods:
12. Rest Periods
A. Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours. Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.
B. If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each work day that the rest period is not provided.
Q. Does Labor Code section 226.2 mean that employers will need to track the number of minutes that employees actually take for their rest and recovery periods?
A. No. Section 226.2, subdivision (a)(2) requires that an employee’s itemized wage statement state “[t]he total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period.” (Emphasis added.)
If an employer has authorized and permitted two 10-minute rest periods during an employee’s work shift, the “compensable” rest and recovery periods are those that have been authorized and permitted according to existing law.
That is the amount of time for which an employee must be compensated (i.e., the “compensable” period), and which must be itemized on the wage statement, regardless of whether the employee actually took only 8 minutes on one rest period (less than the amount of time that was “compensable”), or took 13 minutes on another rest period (more than the amount of time that was “compensable”).
The ATA wants Drivers to believe that F4A Preemption will prevent lost production time, lost income.
This is untrue!
Ca. Labor Law is good for Drivers and it should be used as model for other states to follow.
Pat Hockaday (JoJo)