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Remember how a number of years ago there was a fad of sorts in which people prepared their lunch or dinner by wrapping it in aluminum foil and securing it to the engine of their vehicle? There was even a cookbook for truckers who wanted to use their engine compartment as an oven.

But, one trucker took over-the-road food prep to a new level. The California Highway Patrol at the Dunsmuir Grade Commercial Enforcement Facility posted this photo and explanation to their Facebook page. They said it was taken while performing a Level 1 inspection. They wrote:

“While underneath this trailer, several interesting items were seen dangling from underneath a crossbeam.

Ruling it lacked jurisdiction to review the Federal Motor Carrier Safety Administration’s (FMCSA) decision barring enforcement of California’s meal and rest period rules with respect to interstate motor carriers, a federal district court in California has dismissed a driver’s meal and rest break claims based on California law. Ayala v. U.S. Xpress Enterprises, Inc., et al., No. 15-cv-00137-GW-KK (C.D. Cal. May 5, 2019).

FMCSA had ruled in 2018 that California’s meal and rest period rules do not apply to property-carrying commercial vehicle drivers transporting goods in interstate commerce. A number of petitions challenging the FMCSA’s ruling is pending before the U.S. Court of Appeals for the Ninth Circuit (which has jurisdiction over California), the California court noted, and the federal circuit court must rule on the issue.

Background

In a lengthy opinion released on December 28, 2018, the FMCSA held that California’s meal and rest period rules are unenforceable because the California rules:

• Are more stringent than the federal hours of service rules;
• Have no safety benefit beyond those already provided by the federal hours of service regulations;
• Are incompatible with the federal hours of service regulations; and
• Cause an unreasonable burden on interstate commerce.

See Dep’t of Transp., Fed. Motor Carrier Safety Admin., No. FMCSA-2018-0304.

Accordingly, the agency held that the California meal and rest period rules are preempted by federal law (49 U.S.C. § 31141).

By statute, a FMCSA decision controls, unless a state, or person who is adversely affected by the FMCSA’s order, petitions the Ninth Circuit and persuades it that the FMCSA’s decision was wrong. To date, four such petitions have been filed challenging the FMCSA’s 2018 Order, but the Ninth Circuit has yet to rule on the issue.

While waiting for the Ninth Circuit, U.S. Xpress Enterprises, Inc., filed a motion for partial summary judgment based on the FMCSA’s ruling against the California meal and rest period claims asserted in a putative class action commenced by one of its former commercial truck drivers, Anthony Ayala.

The California District Court agreed with U.S. Xpress, holding that the FMCSA’s Order “bars enforcement” of the California meal and rest period claims. The court explained that “it is bound by the FMCSA Order and will apply the Order unless and until it is invalidated by the Ninth Circuit.” The court said that it “currently has no authority to enforce” the California meal and rest period rules. The court granted summary judgment in favor of the defendants on the meal and rest period claims, and noted that the plaintiffs would be permitted to seek reconsideration if the FMCSA’s Order is invalidated by the Ninth Circuit.

Takeaways

The Ninth Circuit (and, perhaps, the U.S. Supreme Court) will have to decide whether the FMCSA’s preemption Order will govern. Until the Ninth Circuit rules, covered carriers operating in California are left to choose between compliance with California’s meal and rest break rules or assume the risk the Ninth Circuit may overturn the FMCSA’s decision. If a carrier changes its policies and practices in reliance on the FMCSA decision, but the Ninth Circuit later overturns the FMCSA decision, then the carrier could accrue liability for missed California meal and rest breaks, including premium pay.

Employers thinking of changing their policies or practices to reflect the unenforceability of California’s meal and rest period rules might consider waiting for the Ninth Circuit’s decision before doing so.

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?This tornado crossed Highway 75 just south of Dawson, Nebraska this week

The Federal Motor Carrier Safety Administration announced Thursday it has extended an emergency declaration for 16 states in the Plains and Midwest due to historic flooding across the region.

With the extension, the emergency declaration will be effective through July 2, or until the emergency ends, whichever is sooner. The declaration suspends hours of service regulations for truckers providing “direct support of relief efforts” to affected areas.

States included in the declaration are Arkansas, Illinois, Iowa, Kansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nebraska, Ohio, Oklahoma, South Dakota, Tennessee, West Virginia, and Wisconsin.

Drivers hauling supplies, equipment, fuel and more to and from the affected states can operate under the declaration, which waives Parts 390 through 399 of the Federal Motor Carrier Safety Regulations

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Nominations are now open for the 2019 Mike O’Connell Trucking’s Top Rookie Award contest presented by Truckers News.

We’re looking for the best driver who has been behind the wheel for no more than a year. The winner receives $10,000 and a package of prizes. Nine other finalists will each receive $1,000 and prizes packages as well.

The winner will be announced Friday, Aug. 23 at The Great American Trucking Show at the Kay Bailey Hutchison Convention Center in Dallas.

Nominate a driver for the 2019 Mike O’Connell Trucking’s Top Rookie Award.

Partnering with Truckers News in the search for Trucking’s Top Rookie are the three national organizations overseeing truck driver training:

• Commercial Vehicle Training Association
• National Association Of Publicly Funded Truck Driving Schools
• Professional Truck Driver Institute

Recognizing the top rookie driver was the idea of the late Mike O’Connell, who was formerly the executive director of the Commercial Vehicle Training Association. He believed that honoring a top rookie driver helped show new drivers they are appreciated by the trucking industry.

Last year’s top rookie was Mordaunt “Platt” Brabner, a 58-year-old Texan who drives for TMC Transportation.

Nominate a top rookie driver here.

See complete contest rules and eligibility here.

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SACRAMENTO, Calif. — California residents working for companies like Lyft and Uber would get the rights of employees entitled to a minimum wage and workers compensation under a law the state Assembly passed on Wednesday.

The sweeping bill, which now goes to the Senate, carries new standards defining whether workers are employees or independent contractors, upending how workers are treated in industries from trucking to the burgeoning gig economy.

Under those standards, for example, workers could only be classified as independent contractors if they are free from the control or direction of an employer and they do work outside a company’s usual course of business.

The measure, Assembly Bill 5, includes exemptions for some sectors, such as physicians and insurance agents.

Democrats and major labour unions backing the bill contend it will protect workers’ rights.

“Big businesses shouldn’t be able to pass their costs onto taxpayers while depriving workers of the labour law protections they are rightfully entitled to,” said Assemblywoman Lorena Gonzalez, a Democrat from San Diego who authored the bill.

Many industries have raised concerns, however, arguing that hiring independent contractors provides flexibility for companies as well as workers.

The ridesharing company Lyft issued a statement shortly after the bill passed, emphasizing its opposition and contending that the legislation would force many of its drivers to become employees.

“Lyft drivers overwhelmingly prefer the freedom of working where, when and how much they want,” the company said.

One sector after another has sought exemptions to the proposed law. The California News Publishers Association has sought an exemption to cover freelance journalists and newspaper carriers.

Companies are responsible for covering Social Security and Medicare taxes, unemployment insurance as well as workers compensation for employees.

Gonzalez said the bill is a work in progress and can change.

Still, Gonzalez said setting clear standards in law for labeling workers as independent contractors would give certainty to businesses following a California Supreme Court ruling last year on the issue.

California is home to many of the companies that gave rise to the gig economy. Silicon Valley is a political force in California’s capital but so, too, is labour.

The bill comes as companies like Uber and Lyft are facing mounting pressure. Drivers for the companies went on strike and staged protests in major cities earlier this month to draw attention to precarious working conditions as well as the financial pressures of gig work.

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