Port truck drivers and warehouse workers make progress in their fight for justice

After hearing testimony from port truck drivers and warehouse workers, the Los Angeles City Council Trade, Travel and Tourism Committee unanimously voted to recommend passage of a city ordinance aimed at ending labor abuses of port truck drivers and warehouse workers at the ports of Los Angeles and Long Beach.

Port truck drivers, who ferry goods between the ports and nearby warehouses, and warehouse workers are important links in the global supply chain that delivers $450 billion worth of consumer goods from the ports of Los Angeles and Long Beach to retail stores, but they work under appalling conditions.

Council member Mike Bonin, a committee member who listened workers’ testimonies before the vote, described their working conditions as “modern day sharecropping.”

Duane Wilson, a warehouse worker who testified before the committee, said that racial discrimination, low wages, and his status as a temporary worker, who never knows from one day to the next whether he will work, make it impossible for him to earn a living wage.

With the help of the Teamsters union, drivers and warehouse workers are building a political campaign at the local, state, and federal level to end labor abuses at the ports.

Their political campaign complements their actions on the job that include strikes and an ongoing organizing campaign to make their jobs good-paying union jobs.

The campaign won a victory when the Trade, Travel, and Tourism Committee voted to recommend that the city council consider denying companies that violate city, state, or federal labor laws access to city property.

Currently, port trucking companies and warehouse owners operate on city-owned land at or near the ports.

At the federal level, Rep. Grace Napolitano has filed the Port Drivers Bill of Rights bill in the US House of Representatives.

On November 30, Sen. Bernie Sanders met with port truck drivers. After the meeting, Sanders said that he would support the Port Drivers Bill of Rights because “the federal government should not be rewarding trucking companies that exploit and abuse their workers.”

One way that these trucking companies exploit and abuse their workers is by misclassifying them as independent contractors instead of employees.

In doing so, companies don’t pay for social security, unemployment, or workers compensation benefits. They also don’t pay overtime when drivers work more than 40 hours a week, which they frequently do.

Also by misclassifying their drivers as independent contractors, trucking companies can find more ways to exploit drivers such as leasing trucks to drivers.

The lease agreement that workers are forced to sign in order to work requires them to pay as much as $60 a day to rent a truck and requires them to pay for insurance, fuel, and some maintenance costs.

These expenses can leave drivers in debt to trucking companies.

Judy Gearhart and Sarah Newell of the International Labor Rights Forum write that these “unethical leasing agreements” amount to “debt bondage” that result in some drivers being paid as little as $3 an hour, well below the federal minimum wage.

When drivers speak up about their working conditions, they often face reprisals.

Rene Flores, a port truck driver, told committee members at the hearing that he was fired for talking to a reporter about conditions on the job.

Despite the risks, port truck drivers and warehouse workers have been fighting back.

Since 2014 when the workers first began organizing, there have been 15 strikes by port truck drivers. They also have filed more than 1000 legal actions charging their bosses with wage theft and misclassifying them as independent contractors.

According to USA Today, which published an extensive expose about working conditions at the ports, judges have ruled in favor of the workers in 97 percent of these cases.

Most recently, an administrative law judge with the National Labor Relations Board ruled in favor of workers when he agreed that International Bridge Transport, which ships goods to warehouses owned by Amazon, Target, and others, had misclassified its truck drivers.

The judge ordered the company to stop misclassifying its drivers and stop intimidating and harassing drivers trying to form a union.

“Intermodal Bridge Transport has made it increasingly difficult for me to make a living by illegally and immorally classifying me as an independent contractor instead of an employee,” said Daniel Aneseko Uaina, an International Bridge Transport driver after learning about the judge’s ruling. “With this ruling, justice has been served and the company can no longer deny me my employee rights.”


Teamsters confront XPO CEO for ignoring workers

As Bradley Jacobs CEO of XPO Logistics delivered his keynote speech to a conference on global logistics being held in Long Beach, California, he could faintly hear his name being called.

The faint voice grew louder, and as it turns out, it wasn’t a single voice; instead, it was the united voice of 100 Teamsters and their supporters, who had marched into the hotel lobby where the conference was being held chanting, “Bradley Jacobs you can’t hide, we can see your greedy side.”

Some of the members of the group chanting in the hotel lobby were XPO workers who voted to join the Teamsters in union representation elections. Even though XPO workers voted to unionize in a number of election overseen by the US National Labor Relations Board, Jacobs and XPO’s executive management refuse to meet and bargain with the new Teamster members.

The new union workers at XPO say that they unionized because of low pay and the lack of benefits.

“XPO’s Board of Directors just authorized a $110 million stock bonus plan for Bradley Jacobs. Meanwhile, my coworkers and I package and distribute parts for military helicopters to governments all over the world, yet at $12 an hour we can’t support our families without government assistance,” said Monica Abraham, an XPO warehouse worker in New Haven, Connecticut.

Instead of listening to the workers’ grievances, Jacobs ignored them and tried to block their attempts to unionize.

“When we raised concerns with management we were ignored, so we decided to organize,” said Ryan Janota, a freight driver at XPO in Aurora, Illinois. “Instead of respecting our rights, XPO spent a fortune on high-priced union-busting consultants to try and silence us. It didn’t work and we elected to join the Teamsters so Bradley Jacobs will have to listen!”

New XPO Teamster members were joined in the hotel lobby by shorthaul truck drivers at the ports of Long Beach and Los Angeles. They work for XPO, but, according to the workers, the company misclassifies them as independent contractors.

“Because XPO treats us like employees but pays us as ‘independent contractors’ and deducts their truck expenses from our paychecks, there are many weeks when we don’t even earn the minimum wage,” said Luis Meza, an XPO shorthaul driver. “This is abuse and that’s why my co-workers and I have filed lawsuits against XPO.”

The drivers’ suit alleges that XPO has committed  wage theft by misclassifying them as independent contractors.

XPO workers and other Teamsters were joined in the hotel lobby by members of Clergy & Laity United for Economic Justice, a faith-based social justice organization and the Los Alliance for a New Economy.

William Carr, a Catholic priest from Los Angeles spoke to Jacobs from the hotel lobby over a bullhorn.

“The Church teaches that worker rights are God-given rights,” said Carr. “These workers are here today demanding to speak to you Bradley Jacobs. You have repeatedly refused to meet with them. You must stop interfering with and begin respecting  the XPO workers’ federally protected right to organize a union. This is a God-given right.”

“What you’re doing is immoral,” said another clergy member who didn’t give his name. “Listen to your workers.”

Settlement reached in Uber independent contractor suits

Two potentially ground-breaking class action lawsuits that could have radically altered the relationship between Uber and its drivers ended on April 21 with a soft whimper instead of a loud bang when attorneys for the plaintiffs and Uber announced that they had reached a settlement.

Plaintiffs in the two suits, one in California, the other in Massachusetts,  argued that they are employees entitled to all rights and protections afforded to employees by US labor law ( social security, unemployment insurance, workers compensation, overtime pay, etc.) and not as Uber prefers to call them independent contractors.

The settlement does not definitively resolve the question of whether Uber drivers are employees or contractors.

But the plaintiffs’ attorney Shannon Liss-Riordan said that there will be other opportunities to win labor rights for Uber drivers.

“The case (has been) settled–not decided,” said Liss-Riordan. “No court has decided whether Uber drivers are employees or independent contractors and that debate will not end here.”

One of the two suits would have been heard in San Francisco, Uber’s home base, and Liss-Riordan said that it was too risky to let a jury in San Francisco determine the employment status of the company’s drivers.

As part of the settlement, Uber agreed to pay up to $100 million.. The bulk of that money will go to compensate eligible drivers.

Those eligible include drivers in California and Massachusetts who opted out of the clause in their contract that forbids them from joining class action suits.

Liss-Riordan estimates that about 385,000 drivers will be eligible for compensation but not all will file claims.

The amount of money eligible drivers receive depends on the number of miles that they have driven for Uber and where they work. Those who have driven more than 25,000 miles in California could receive as much as $8000.

That amount is based on an estimate that only 50 percent of those eligible will file claims.

If 100 percent of the eligible drivers in California file claims, the amount that each driver receives would be $1950. In Massachusetts, the average amount received if 100 percent of eligible drivers file claims would be $979.

The average payout for drivers who drove less than 25,000 miles is between $24 and $1137.

The settlement still allows Uber to set fees and to determine how much of the fare it keeps. Currently, Uber keeps an upfront booking fee and then 20 percent of the remaining fare.

As a result of the settlement, drivers will now be able to post information in their vehicle explaining that tips are not included in the fare and that tips would be appreciated.

The agreement also  makes it somewhat more difficult for Uber to fire (or deactivate as Uber calls it) drivers working in California or Massachusetts.

Uber must now show sufficient cause for firing a driver and provide a warning that gives the driver an opportunity to correct problems identified by the company.

It establishes a panel composed of highly rated drivers who will hear appeals by drivers contesting their firing. Drivers not satisfied with the panel’s decision may appeal to an arbitrator paid by Uber.

Uber will no longer be able to fire drivers for low acceptance rates. In the past, if drivers accepted less than 80 percent of ride requests, they received emails from Uber threatening them with dismissal.

The settlement also requires Uber to meet quarterly with representatives of a drivers association.

The drivers association and Uber will discuss issues of concern among drivers.

The Teamsters in California have already stated that they will try to help Uber drivers form their association.

“After receiving overwhelming outreach from Uber drivers, representatives of Teamsters Joint Council 7 have announced plans to form an association for workers in California’s rideshare industry,” reads a statement issued by the Teamsters after the

“We welcome any Uber drivers seeking to improve their working conditions,” said Rome Aloise, Teamsters International Vice President and President of Teamsters Joint Council 7. “By coming together, the Teamsters will help these drivers have a stronger voice and improve standards for rideshare drivers in California.”

The Teamsters have already helped organize an association of Uber drivers in Seattle.

Despite the concessions that Uber made in the settlement, Uber seems quite happy with the outcome.

In a public statement, Uber said that it “was pleased (with) this settlement” because it leaves intact for now the drivers’ status as independent contractors.

Michael Hiltzik, writing for the Los Angeles Times, observes that Uber has other reasons to be happy.

“Had litigation continued, it might have put the company’s entire business model on trial, exposing the degree to which the economic benefits of the so-called ‘gig economy’ flow heavily, even exclusively toward investors and executives at the expense of those providing the core services.”

Sharing economy workers seek their fair share

As the result of a grassroots campaign by Seattle ride-share  and taxi drivers, the Seattle City Council in December voted 8-0 to allow drivers who work for Uber and Lyft as well as taxi drivers to form unions and bargain collectively.

Ride-share and taxi drivers in Seattle are classified–some would say misclassified–as independent contractors, and as such, they do not have the same protected right to organize and bargain collectively that most workers have.

The Seattle ordinance gives them that protection.

Ride-share drivers aren’t the only unprotected workers. They are joined by a large contingent of workers who work in many fields.

These so-called independent contractors make up the bulk of labor in the new sharing economy, businesses that operate internet platforms that link customers to service providers by apps.

In California, state Representative Lorena Gonzalez has introduced the 1099 Self-Organizing Act, which if enacted would extend organizing and bargaining protections to workers in the sharing economy.

The sharing economy is a growing part of the US economy. About 20 percent of jobs created since the end of the Great Recession are in app-based companies like Uber and Lyft and temporary staffing agencies, both of which rely heavily on a precarious workforce, unprotected workers who work for low pay and receive few if any benefits.

Companies like Uber have been able to stay afloat and attract investors such as Goldman Sachs, which has $1.6 billion invested in Uber, by shifting much of their business costs and risks to their workers.

Uber drivers pay for their vehicles, pay for their insurance, don’t have any safety net benefits such as company-sponsored health care.

If they are hurt on the job, they won’t be able to collect workers compensation because the company doesn’t pay their workers compensation insurance premiums.

If the economy takes a downturn and drivers don’t work because there isn’t enough demand for Uber services, drivers can’t collect unemployment insurance because Uber doesn’t pay for it.

When Uber drivers are too old to work and must retire, they won’t collect Social Security because Uber doesn’t make Social Security contributions for its drivers.

The lack of protections and other reasons led some Uber drivers in Seattle to organize the App-based Drivers Association, which is affiliated with Teamsters Local 117.

“Since I started driving for Uber, Uber has cut our pay without notice, terminated drivers without giving a reason, and blocked our efforts to improve our working conditions. We’re looking for fairness and the ability to earn a living wage,” said Peter Kuel, a member of the App-based Drivers Association after the Seattle City Council passed its worker organizing ordinance.

The Seattle ordinance allows drivers for app-based companies and taxi companies to choose a non-profit organization to represent them.

The ordinance requires the city to share the names and contact information of app-based and taxi drivers registered with the city to any non-profit organization interested in helping the drivers form a union.

When a majority of drivers for a company express an interest in joining the non-profit organization, the company must recognize and bargain with the non-profit organization.

“This (ordinance) means a lot to us drivers,” said Fasil Teka of the App-based Drivers Association. “It can have a positive impact, not just for drivers in Seattle, but for independent contractors across the country.”

The bill introduced in the California General Assembly by Rep. Gonzalez seeks to accomplish the same thing for workers in the sharing economy but in a slightly different way.

The bill would allow independent contractors working for app-based companies to organize themselves and bargain collectively. The bargaining unit wouldn’t have to be affiliated with an established union.

“There are pitfalls and benefits to the (sharing) economy,” said Rep. Gonzalez to the Los Angeles Times, “We need laws that promote it and protect it, but also protect workers and ensure they don’t slip through the cracks.”

Gonzalez’s bill is far from being a sure thing to become law, but it does represent an acknowledgement among some policy makers that rights of independent contractors need to be redefined and expanded.

It’s not likely that companies like Uber will give up their ability to shift their business costs to their workers without a fight.

Uber has already indicated that it will challenge the Seattle ordinance in court.

Nevertheless, passage of the Seattle ordinance and the introduction of the California bill show that the fight to extend basic protections to independent contractors has begun and won’t be going away.

NLRB rules Tucson taxi drivers are employees not independent contractors

A National Labor Relations Board (NLRB) regional director has ruled that Tucson, Arizona Yellow Cab taxi drivers are employees rather than independent contractors and that a union representation election at Yellow Cab can move forward.

NLRB Region 28 Director Cornele Overstreet reversed a decision he made in 2013 in which he ruled that the Tuscon taxi drivers were independent contractors.

Overstreet wrote that he reversed himself after the NLRB reviewed his original decision and remanded the case to him for further review in light of the Board’s 2014 ruling in the FedEx Home Delivery case that “refined (the NLRB’s) approach for assessing independent contractor status.”

I have concluded that the drivers in the petitioned-for unit are statutory employees and are not independent contractors. Accordingly, I shall direct an election in the petitioned-for unit,” writes Overstreet.

Back in 2013, the Tucson Hacks Association (THA) petitioned the NLRB for a union election at Yellow Cab. When Overstreet denied the association’s petition, it requested a review by the NLRB.

When the NLRB agreed to review the original decision, THA turned to the Office and Professional Employees International Union (OPEIU) for assistance.

OPEIU, which represents 4000 taxi drivers in Las Vegas and San Diego, provided attorneys who argued THA’s case before the NLRB.

Mel Schwarzwald, OPEIU’s general counsel said that the new ruling will have a far-reaching impact beyond Tucson.

“We believe that it means a great deal not only to these drivers but to many cab drivers across the country,” said Schwarzwald to Workers Independent News. “What the regional director has done is said that taxicab drivers are really employees, rather than independent contractors.”

Overstreet wrote that the NLRB’s refined test for determining independent contractor status requires that “empirical considerations should predominate over a surface reading of the bare terms of a contractual arrangement.”

The director noted that Tucson Yellow Cab drivers sign a contract in which their status is defined as an independent contractor, but that for a worker to be a truly independent contractor, the worker must have “actual entrepreneurial opportunity for loss or gain.”

When looking at the facts of the case, Overstreet determined that the drivers’ entrepreneurial opportunity was greatly restricted.

For example, Yellow Cab fired one taxi driver who set up his own dispatch system to service his personal clientele of about 100 regular riders even though the company encourages them to build personal clientele.

Overstreet also noted that the drivers have little control over setting rates for the service they provide and the hours that they work.

“Economic realities dictate their schedules,” writes Overstreet. “Drivers must work 60-119 hours a week to cover the cost of (leasing their cab) and expenses.”

Drivers also have little control of the dispatch system. According to Overstreet, the dispatch system is like a game of roulette over which drivers have little control.

“The Employer like the proverbial house, controls and benefits from the game by controlling the parameters.”

Driver pay, the amount left over after the driver pays to lease the cab and other expenses including fuel, is determined by the company.

Cab leases typically cost between $90 and $105 a day. Weekend lease rates increase to as high as $150 a day. Discounts are available for 12-hour leases and for new drivers.

Overstreet estimates that gross pay not including tips ranges between $12 an hour and $2 to $3 an hour. The estimated hourly wage for most drivers is somewhere in the middle of this wide spectrum.

Drivers pay the full amount of the Social Security tax if they want to be eligible to draw Social Security and the full amount of any health insurance they might purchase.

Both the THA and OPEIU are anticipating that a union election will be held soon, and in an open letter to fellow taxi drivers, Robert Aros, co-chair of THA, explained the benefits of unionizing.

“In 1982, when I started working as a cab driver, we were unionized,” said Aros. “We were paid by commission, worked eight hours a day, and had complete benefits. As independent contractors what have we gained? More importantly, what have we lost?”

He also emphasizes the precarious nature of the drivers’ present status. If they get hurt on the job, there’s no Workers Compensation; there’s no grievance procedure; and there’s no earnings guarantee.

“How many hours do you have to work just to live at subsistence level? Do you even make minimum wage?” he asks his fellow drivers.

The company may ask the NLRB to review Overstreet’s decision, and if it does, the union election could be delayed.

But Schwarzwald told Workers Independent News that he believes “there should be a vote fairly soon.”

NLRB ruling could end independent contractor status for port truck drivers

Truck drivers at the Port of Long Beach, California on March 21 announced a National Labor Relations Board settlement with a trucking firm that could end the practice of misclassifying short-haul truck drivers as independent contractors.

Members of Justice for Port Truck Drivers and Teamster officials at a media conference said that the NLRB Region 21 office had negotiated a settlement between the Teamsters and Pacific 9 Transportation that requires the company to treat its truck drivers as employees.

The California state labor board has also taken action supporting the workers’ claim that they are employees rather than independent contractors.

The NLRB settlement, the result of an unfair labor practices charged filed by Pacific 9 drivers and the Teamsters, requires the company to post notices affirming that the drivers are employees who have the right to organize a union without fear of recriminations from the company.

The company had asserted that the employees were independent contractors, who don’t have the right to form unions.

The NLRB’s ruling could change the employment practices of short-haul trucking companies throughout the US, which since the trucking industry was de-regulated 30 years ago have lowered wages of their drivers by misclassifying them as independent contractors.

“The 30-year debate is over,” said Eric Tate Teamster Local 848 secretary-treasurer at the media conference. “The misclassification lie has been busted. The port drivers are, in fact, employees. The NLRB has said so. . . . Pac 9 has said so. Now every port truck driver who wants to end their sweatshop conditions can bargain collectively to climb the economic ladder into the middle class.”

The unfair labor practices charge that led to the settlement was filed in 2013.

Drivers at Pacific 9 complained that when they began talking about forming a union, management began interrogating them about their union activities and threatened to close down operations if the workers continued to try to organize a union.

The company denied the charge and argued that the drivers were independent contractors who aren’t covered by the National Labor Relations Act.

Low pay and general lack of respect from the company drove workers to consider forming a union.

“I work more than full time for Pac 9, and the company tells me where to go, what to do, and how much I will be paid,” said Amador Rojas, a Pacific 9 driver. “I do the exact same work and in the same way as employee drivers, but I earn a lot less because the company deducts their business expenses from my paycheck.”

Short-haul drivers misclassified as independent contracts pay for truck maintenance, fuel, parking, insurance, and vehicle fees that according to the Los Angeles Times, reduce take home pay to as little as $20,000 a year.

“We are making peanuts over there,” said Daniel Linares, a Pacific 9 driver to the Times at the media conference. “Some people working at McDonald’s, they  make more money than us.” We want a union “so we can get decent pay and benefits, in order to lead a decent life.”

Pacific 9 drivers have also filed 50 wage and hours claims against the company that will soon be heard by the California Division of Labor Standards.

The drivers have charged the company with wage theft and making illegal deductions from their paychecks. The claims are worth $5 million.

Other short-haul drivers in the Los Angeles area have made similar claims against their employers. In total, 400 wage theft claims have been filed against Port of Los Angeles and Port of Long Beach trucking companies.

So far, the labor board has ruled on 30 of the claims, found in favor of the drivers in all of them, and awarded $3.5 million in back pay.