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My Fellow Drivers,

There are Drivers who think the Denham Amendment has been passed into law.
No, the Denham Language is part of the House of Representatives version of the current FAA Bill, HR 4.

The Senate will have their version of the FAA Bill and it is All Important to Let Your Senators Know How You feel, NOW!
There has recently been discussion on the Senate floor about this matter.

When both Houses have their versions of the FAA Bill it will then go into reconciliation where the House and the Senate negotiate what to keep and what to throw out. Once an agreement is reached the Final FAA Bill will be written and sent to the President for his approval.

If we keep the Senate from inserting any form of Denham into their version, the House will have to work extremely hard through the reconciliation process to get the Denham Language into the Final FAA Bill.

The Denham Amendment is NOT a Bi-Partism Amendment!
The Role Call vote clearly indicates otherwise!
See How Your Congressman Voted.
I Won’t Be Voting For This Guy!

 

The Denham Language Is Hard to Understand.
It is broadly written and covers much more than the Meal and Rest issue that the ATA claims goes against the 1994 F4A Bill.

The 1994 F4A bill deregulated the States ability to set the Rates, Routes and Services that Intrastate Loads had to abide by.

The ATA Plays Off the Ignorance of Drivers!
The California Trucking Association, part of the ATA, tried several times and failed to alter Ca. State Labor Code through legislation. The CTA, argued that California’s meal and rest period requirements were preempted by federal law regulating the hours of service of truck drivers.
According to CTA, the Federal Motor Carrier Safety Administration (FMCSA) regulates Drivers’ HOS comprehensively.
After failing 3 times to alter Ca. Labor Code through legislation the CTA then contested the application of Ca. Labor Code in the Ca. Court System all the way up to the Ca. Supreme Court.

The Meal and Rest Break issue was then heard in the Federal Ninth Circuit Court.
This was a precedent setting case known as Dilts vs Penske.

In Dilts v Penske, 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 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 Court thus held that California meal and rest break laws are not preempted because they are “not the sorts of laws ‘related to’ prices, 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 panel found persuasive the brief filed by attorneys from the Department of Transportation, the Federal Motor Carrier Safety Administration, and the Department of Justice, which stated that the FAAAA did not preempt state break requirements because it is “squarely within the states’ traditional power to regulate the employment relationship and to protect worker health and safety.”

The Federal Supreme Court would not hear the case.


The ATA is Using Scare Tactics to get Drivers to vote for Denham.
The ATA is telling Drivers that they will be forced to pull over and stop in All States for Mandatory 10 minute breaks causing Drivers to lose production time, to lose money.
This is an OUTRIGHT LIE !!!

Labor Code governs or regulates the Employer, Not The Employee.
There are no Labor laws telling the Employee To Take A Break!!!
Labor Code tells the Employer what they must do to protect the Employee!
Labor Code Does NOT Tell The Employees what to do or when to do it!!!

Per a few State Labor Codes, a Driver who works through their rest break would have to be paid for doing so OR the carrier may direct the Employee OTR Driver to take the 10 min break Which They Would Still Have to Pay For.
The general rule of thumb is for the Employer to PAY the Employee for working through a break.
The employee would be paid for the 10min work time and paid 10min for not working.

There Are Only 7 States That Require Paid 10 min Breaks.
There are 19 States with Meal Break provisions.
Many of  them work with our Mandatory 30min non working time.

Breaking Down the Denham Amendment

The ATA has Zeroed in on Meal and Rest Breaks to take attention away from other concealed aspects of the Denham Language that create many loop holes within State and Federal Labor Codes as well as the FMCSR’s.

Part (A) of the Denham Amendment as it reads in HR 4 Bill ( FAA bill) ;

‘‘(A) IN GENERAL.—
[1] A State, political sub division 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,

[2] 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, Code of Federal Regulations.

Let’s take part “(A) IN GENERAL” of the Denham Amendment and break it down to a basic and simple interpretation.
[1] Translates to; The States can not prohibit Employee Interstate Drivers from working to the full extent of the Hours of Service.
This means that if a States Labor Code requires the carrier to make paid breaks available to the Drivers it will not apply to Employee Interstate Drivers operating in said State.
Rest Breaks would, in effect, prevent these Drivers “from working to the full extent permitted.

Denham makes it appear that Intrastate Drivers will be unaffected, this is not so under particular circumstances.
The nature or type of freight being transported as well as the origin of the freight carries weight in determining wether the Driver hauling the freight is classified as an Intrastate Driver or as a Interstate Driver. Furthermore, a Driver who normally operates Intrastate will be classified as an Interstate Driver if he crosses State lines once in a four month period.
Many Intrastate Drivers will be adversely affected as they will lose Pay Benefits under Denham.
Lowering the standards for any Driver hurts us all.

Only Seven States have Labor Code Requiring Paid, 10 min, Rest Breaks but the majority of employers in other industries nationwide adhere to this practice.

Are We Second Class Citizens in the sense that our employers want Laws On The Books so that they Don’t and Never Will have to provide or pay the customary 10 min breaks that most all other workers are granted???

Ca. Labor Code requires that Employee Interstate Drivers be paid for their earned 10 min rest breaks in addition to, or on top of, their mileage pay.
It is the Drivers choice to take or not to take the break.
Many law suites have stemmed from carriers denying the break and then refusing to pay the one time per working cycle penalty.
Most all of these law suits have been in favor of the Drivers.

[2] Translates to; The States, by law, can not tell the carriers that they must pay Employee Interstate Drivers anything greater than the Federal Minimum Wage for all combined hours logged “On Duty Not Driving” and “Driving” on average.
Furthermore, the carrier need not pay an Employee Driver who was on standby as they were logged “Off Duty” per 395.2 (4) (i).

Per Denham, the carrier will not be obligated to Pay for Any Additional Hours Worked that were logged “On Duty Not Driving”.
The carrier will not be obligated to Pay the Employee Driver Any Detention Time.
It will be left up to the carrier to decide if they want to pay for “On Duty Not Driving” time and or Detention Time.

Ok, an Employee Interstate Driver logs 8hrs “Driving” and is paid $80 for 400 miles driven at .20cpm. The Employee Interstate Driver logs 15 min each for pre-trip, fuel, load and post-trip for a total of 1hr.
That’s 9 log book hrs. This Driver spent 5hrs, legally logged “Off Duty”, waiting to load for a total of 14hrs.
$80 / 9 log book hours = $8.89 an hour.
$80 / 14 hrs total = $5.71 an hour.
$80 / 24hr Duty Cycle = $3.33 an hour.

Denham gives the carrier a legal means to Not Pay the Driver for any “On Duty Not Driving” time!!!
The carriers can get by with this even though it is at the Drivers discretion to log their time as “Off Duty” or “On Duty Not Driving”.
As it stands, the carrier only needs say that the Driver was improperly logging if they log “On Duty Not Driving” UNLESS the Driver has proper documentation that they were indeed “On Duty Not Driving”.

Some would say “So be it, let the market decide”.
Many Drivers say “Aint nuthin I kin do bout it”.
Really, when are we going to stop chasing rabbits so They Can Eat Rabbit Stew?
I say “The market is controlled because Drivers Do Nothing to Balance the Market”.

The Driver says “I make .40cpm so whats the big deal”.
“How much would you be making if there Were Not Drivers out here being paid less than .40cpm???” I ask.

The Fair Labor Standard Acts Section 207 (g), Employment at Piece Rates, sets a legal standard to be used when paying by the piece.
Are these guidelines being followed concerning Employee OTR Drivers???
I don’t believe so.

The Denham Language Establishes and Legalizes a baseline minimum ranging from approximately .145cpm upwards to .2175cpm depending on which method of calculation used.

Detention Pay after the first 2hrs with a 4hr limit is nothing short of Wage Theft!
To permit the carrier to decide when and under what terms to pay detention goes against existing Labor Codes such as Title 29 § 785.16.

The carriers would have Us believe that the FMCSR’s, SAFTEY REGULATIONS, dictate when and for what Employee Drivers are to be paid.
NO, Labor Code defines when You Are Working and When You Are NOT Working!
If Denham is enacted the Safety Regulations just might replace Labor Code!

There is much more to Denham but it is hidden away in language such as;


‘‘(B) STATUTORY CONSTRUCTION.—Nothing in this paragraph shall be construed to limit the provisions of paragraph (1).’’; (4) in paragraph (3) (as redesignated) by striking ‘‘Paragraph (1)—’’ and inserting ‘‘Paragraphs (1) and (2)—’’; and (5) in paragraph (4)(A) (as redesignated) by striking ‘‘Paragraph (1)’’ and inserting ‘’Paragraphs (1) and (2)’’.

Now consider this clause;
(b) EFFECTIVE DATE.—The amendments made by section shall have the force and effect as if enacted on the date of enactment of the Federal Aviation Administration Authorization Act of 1994 (Public Law 103–305).

Denham WILL  Be Retroactive Back to 1994 and Criminals Will Be Exonerated From Crimes Committed Against Drivers!

To gain a better understanding of Denham I would encourage you to go to;
ATA’s Myths and Facts about Denham Amendment Busted
and read the Driver Advocates,
Rebuttal to the ATA’s Myth vs. Facts: the Denham/Cuellar/Costa F4A Amendment (#140) to H.R.4, the FAA Reauthorization Act:

The rebuttal is from a group of independent legal advisors whom are working on behalf of Drivers.
This rebuttal is ammunition for “We the Drivers” to educate ourselves and our Senators with if we are to Beat Denham for the 6th Time.

The Myth vs. Facts is how the ATA is Educating OUR Legislatures.
The ATA is very misleading in this presentation to say the very least. They have avoided any language specific to Having to pay Employee Interstate Drivers Detention Pay as is required per California’s Labor Code 226.2 and Title 29 § 785.16  of Federal Labor Code
The ATA makes no mention of the fact that Denham is Retroactive Back to the 1994 F4A Bill which will prevent any future and dismiss any past lawsuits brought forth by Drivers Who Were Victims of Wage Theft.

I understand Denham to be, in effect, a Federal Labor Code specific to Employee Drivers operating under Part 395 of Title 49. 
If enacted, Denham will lock in the current piece work methods of pay that do not compensate for the time on a load.
Three days on a 900 mile run should pay the Employee Interstate Driver 3 Days Pay.
If Federal legislation is to be passed concerning the Wages Employee Drivers Are to Be Paid, the legislation needs to be Modernized to Benefit Drivers, Not Hold US Back!

I knew back in the early 90’s that ELD’s were coming.
The carriers did not want ELD’s but they also knew ELD’s were inevitably coming.
The carriers, shippers and receivers put Their Association, the ATA, to work back in 2000 influencing F4A preemption Legislation that would make ELD’s Profitable for Them, NOT US.

The Denham Amendment is Just One More Nail to Close OUR Coffin!

 

Denham is a Congressman only because of Campaign Contributions From the Trucking Industry.
The ATA funds, supports and educates Denham, he is the ATA’s Boy!

We need to send Jeff Denham Down the Road!

 

Ted Howze is running against Denham in the upcoming, midterm, elections.
I support Ted Howze for Congress and You Should Too.
If we Help this man take down Denham, we send a message to other Anti Trucker Legislatures.
A small contribution on your part will Send A Huge Message!

https://howzeforcongress.revv.co/ted-howze-for-congress

Let’s get to work My Brothers and Sisters,
Pat Hockaday (JoJo)

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