I’m not a member but if I were, I would be MAD as Heck about the direction that WSTA’s spokesman is taking the membership concerning Ca. Labor Code 226.2.

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Section 226.2 Requires Employee Drivers be PAID DETENTION TIME!!!
We contractors have difficulty billing for Detention Time because most carriers do not pay their Drivers for doing their JOB!

226.2
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.

(3) (A)  Employees shall be compensated for rest and recovery periods at a regular hourly rate that is no less than the higher of:
(i) An average hourly rate determined by dividing the total compensation for the workweek, exclusive of compensation for rest and recovery periods and any premium compensation for overtime, by the total hours worked during the workweek, exclusive of rest and recovery periods.
(ii) The applicable minimum wage.

(4) Employees shall be compensated for other nonproductive time at an hourly rate that is no less than the applicable minimum wage.

(5) The amount of other nonproductive time may be determined either through actual records or the employer’s reasonable estimates, whether for a group of employees or for a particular employee, of other nonproductive time worked during the pay period.

The burden for employers to police piece workers has been removed as 226.2 requires separate and hourly payment for rest breaks despite the piece worker actually taking the break.
California’s INDUSTRIAL WELFARE COMMISSION ORDER NO. 9-2001 REGULATING WAGES, HOURS AND WORKING CONDITIONS IN THE 
TRANSPORTATION INDUSTRY specifies that meal and rest breaks are to be provided to the employee by the employer.
It does not place any burden on the employee piece worker to take the break!

The Fair Labor Standards Act exempts Interstate Drivers from overtime pay. To my knowledge, it does not exempt Employee Drivers from Federal or State Labor Laws.

 

§ 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.”

 

WSTA has Independents, OO’s and CARRIER Members. As an Owner Operator I fully realize that I have to compete against the lowest labor rate established by the carriers.
Hmm, WSTA is in a difficult position!
The carriers want to pay less and the other members need Employee Drivers to be paid a fair wage so that they may charge a fair rate.
WSTA’s membership is divided as the membership opposes one another.
My hat is off to WSTA’s paid leadership for skillfully bringing opposing teams under one roof to push the carriers agenda forward with agreement from those who have so much to lose.

This has been done by intermixing two separate sets of regulations to make it appear that it is to the Drivers advantage to disallow State Labor Codes because Federal Safety Regulations, designed to protect the Public At Large, are in place.
I believe that it is the Carriers intent to have the Federal Motor Carrier SAFETY Regulations replace Federal, U.S. Department of Labor Wage and Hour Division Regulations, as the minimum standards that decide how and for what Employee Drivers are to be paid.

The carriers contend that the FAAAA Reauthorization Act of 1994, that effectively Deregulated the States power to establish Rates, Routes and Services, has also preempted the States Right to protect employees working within the state.

The checks and balances within Our Constitution place the Duty of deciding the Constitutionality of laws passed through Congress, that the Executive Office is to enforce, squarely on the shoulders of the Courts.
As members of a Republic, the States have inalienable rights to protect those within their borders.
It is up to the Courts to decide the balance of power between the States and the Feds when it comes to the interaction of State and Federal Law.

In Dilts vs Penske, a case heard in the Ninth District Court, the plaintiffs claimed Penske failed to ensure Drivers could take their breaks and created an “environment that discourages employees from taking their meal and rest breaks,” according to court documents.
The Ninth Circuit held that “generally applicable background regulations that are several steps removed from rates, 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 Court thus held that California meal and rest break laws are not preempted because they are “not the sorts of laws ‘related to’ rates, routes, or services that Congress intended to preempt.”.
Instead, they are “normal background rules for almost all employers doing business in the state of California.”.
The Supreme Court declined to address this case indicating that there was no need to review the lower courts decision.

The States have the Right to reasonably create standards that exceed the Federal Minimums and local communities may then reasonably establish standards that exceed that of the State.
Isn’t this what we citizens want?
Don’t we need to be able to have a say in how our communities operate?

Federal Labor Codes establish a minimum level of Pay protection to the employee.
Labor Laws place directives on employers to follow in conducting their business.

§ 785.11 General.
Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.

§ 785.12 Work performed away from the premises or job site.
The rule is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.

§ 785.13 Duty of management.
In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.

It is to my advantage as well as to the advantage of Employee Drivers, Lease Drivers, Independents and other OO’s for labor laws to be in place to prevent employers from taking unfair advantages of their employees.
WSTA along with the ATA and other carrier associations intend to create a Federal Labor Law based on the HOS, that would exempt them from common and generally accepted industry standards that are adhered to by most all corporations operating Nationwide, even though most all States accept the Federal Minimum Standards, as the baseline standard to be met.

Wal-Mart, based in Arkansa, must contend with 50 states labor laws as well as those of other countries. Instead of asking for special treatment from Congress, Wal-Mart has established policy that meets or exceeds that of the states for the benefit and welfare of their employees.
WSTA and the carrier associations have decided that it is in the carriers best interest to Supersede States Rights and Federal Labor Regulations.
After all, they have ignored and gotten by with criminal behavior for so long they believe that they can make Breaking The Law LEGAL!!!

§ 785.18 Rest.
Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.

§ 785.19 Meal.
(a) Bona fide meal periods. Bona fide meal periods are not work time. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.
(b) Where no permission to leave premises. It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.

Law suits filed in California by Drivers who have been CHEATED out of wages and benefits, by Criminal Carriers, have successfully and repeatedly won in both State and Federal Court.
These Con Men Carriers now seek OUR help so that they may legally Deny US benefit and wage protections afforded all other employees.

I have presented you Drivers with facts and written law so that you may understand that WSTA, other carrier associations and many carriers have purposely and intentionally misled We Drivers and the public at large so that they may establish Regulations that suit their, For Profit, needs by eliminating the States Rights to Govern Within Their Borders!!!!

Pat Hockaday (JoJo)

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