Law Office of Seaton & Husk, LP Transportation News & Upcoming Events

Virginia Overweight Citations - 21 Days Means 21 Days

2011-12-29T13:54:00.000-05:00

In the Commonwealth of Virginia if your driver or if your company is issued an overweight and/or oversize citation you MUST file a written election to contest with the Virginia Department of Motor Vehicles within 21 days of receiving the citation. If you do not file a written election to contest. the VA DMV will presume you are not contesting the citation and will automatically assess the full amount of the fine against your company and/or driver.

If you regularly transport freight through Virginia or are planning on transiting through Virginia it is important that you speak to your drivers about the overweight/oversize citation rules in Virginia. You need to ensure that they immediately report any and all such citations to you. Under the Virginia Code §46.2-1133 your 21 days will run from the moment the citation is issued to the driver by the citing police officer.

Once receiving the citation or a copy of the citation you should check the box stating "I ELECT TO CONTEST this overweight charge" sign, date and then send it to the VA DMV. The Election to Contest should be sent to the following address:

Virginia Department of Motor Vehicles

Attn: Motor Carrier Services - MCS Citation Tracking

2300 West Broad Street

Richmond, VA 23269

-or-

Virginia Department of Motor Vehicles

Attn: Motor Carrier Services - MCS Citation Tracking

P.O. Box 27412

Richmond, VA 23269-0001

It is extremely important that you send the Election to Contest via CERTIFIED MAIL, FEDERAL EXPRESS and/or UPS to the VA DMV. You must ensure you have some way to prove that the DMV has received your Election to Contest. Virginia law places the obligation on the cited party to ensure that the Election to Contest is received by the DMV within the 21 days.

You will notice that the overweight citation will list a trial hearing time and date. However, your case will not be heard unless you properly send a notice or your intent to contest to the VA DMV. If the DMV does not receive your Election to Contest then per Virginia Code § 46.2-1133(4) it will not forward your citation to the local court and your case will not appear on the docket. Failing to file the Election to Contest within 21 means that you will lose your right to a court hearing on the citation.

The Virginia DMV is strictly enforcing this 21 day rule. Recently I learned of a motor carrier that received a substantial overweight fine. The motor carrier properly filled out the Election to Contest and placed it in the mail to the VA DMV well before the 21 day deadline. The carrier did not send the Election to Contest certified. The post office either lost the Election to Contest or the VA DMV received it and misplaced it. After 21 days passed the Virginia DMV sent this carrier an Order of Assessment and Suspension informing the carrier that the full amount of the citation was due and that they could not lawfully operate within Virginia until the entire assessment was paid. At that point there was nothing we could do to help the carrier.

If you receive an overweight/oversize citation in Virginia, file the Election to Contest with the DMV and preserve your right to a hearing. If you decide later not to contest the ticket you can always pay the fine prior to the hearing date.

If you have received an overweight or oversized citation in Virginia our firm has the experience needed to defend you. Contact us today at 703-573-0700!

AEMCA: Final Rule Announced Banning Hand-Held Cell Phones by Commercial Drivers

2011-12-19T12:09:00.010-05:00

Please see below for AEMCA's Newsletter.

Final Rule Announced That Bans Hand-Held Cell Phone Use by Commercial Drivers!

WASHINGTON - U.S. Transportation Secretary Ray LaHood announced a final rule specifically prohibiting interstate truck and bus drivers from using hand-held cell phones while operating their vehicles. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest action by the U.S. Department of Transportation to end distracted driving.

Effective January 3, 2012 the final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver's commercial driver's license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000. Approximately four million commercial drivers would be affected by this final rule.

While driver distraction studies have produced mixed results, FMCSA research shows that using a hand-held cell phone while driving requires a commercial driver to take several risky steps beyond what is required for using a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a crash or other safety-critical event.

In September 2010, FMCSA issued a regulation banning text messaging while operating a commercial truck or bus and PHMSA followed with a companion regulation in February 2011, banning texting by intrastate hazardous materials drivers.

Nearly 5474 people died and half a million were injured in crashes involving a distracted driver in 2009. Distraction-related fatalities represented 16 percent of overall traffic fatalities in 2009, according to National Highway Traffic Safety Administration (NHTSA) research.

The final hand-held cell phone ban rule can be accessed here.

To learn more about the U.S. Department of Transportation's efforts to stop distracted driving, please visit http://www.distraction.gov

(ASECTT): BREAKING NEWS: Important Study Challenges SMS Met...

2011-11-07T13:53:00.000-05:00

BREAKING NEWS: Important Study Challenges SMS Methodology: The predicate for use of SMS methodology as a new safety fitness determination is the unproven assumption that percentile rankings of carriers by peer groups based ...

Alliance for Safe, Efficient and Competitive Truck Transportation (ASECTT): Unified Registration System / Supplemental Notice ...

2011-11-07T13:42:00.000-05:00

Alliance for Safe, Efficient and Competitive Truck Transportation (ASECTT): Unified Registration System / Supplemental Notice ...: On Wednesday, October 26, the FMCSA issued a Supplemental Notice of Proposed Rulemaking which will have a far reaching effect. Over 5 years...

MCAA Legislative Action Alert: Letters Needed to Urge California Governor to Veto Job Killing IC Bill

2011-09-15T15:43:00.000-04:00

REMINDER - YOUR VETO LETTER IS NEEDED NOW TO STOP JOBS KILLING INDEPENDENT CONTRACTOR BILL IN CALIFORNIA

Last week, the California Legislature passed SB 459 which would penalize and impose severe financial penalties (up to $25,00 per violation) against any company that “willfully misclassifies” any individual as an independent contractor. Furthermore SB 459 requires an employer who has been found to have willfully misclassified an individual to: post a notice on the company website stating that the employer has committed a serious violation of the law. The bill does nothing to clarify the definition of who qualifies for independent contractor status.

Attached are letters urging Governor Brown to veto SB 459 – one for in-state and the second for the anyone outside the state of California. MCAA’s California lobbyist Chris Micheli working with a coalition of business interests were able to get several key modifications made to the bill before passage but given the political makeup of the state Assembly this is still a very bad bill. We need each MCAA member company to send a letter urging a veto of this job killing bill.

Here’s how to do it: Use one of the attached templates filling in your personal information on your company letterhead. Sign it and then scan it in and email to cmicheli@apreamicheli.com. Mr. Micheli will then hand deliver our letters to the Governor’s office next week. Please act today to save jobs in California.

Post courtesy of Messenger Courier Association of America (MCAA)

CLICK BELOW FOR THE LETTERS:

California_Senate_Bill_459_Veto_Letter.docx

California_Senate_Bill_459_Veto_Letter_out_of_state.docx

June 8, 2011 Issue - State Legislation Update

2011-06-29T12:09:00.000-04:00

June 8, 2011 Issue

GOVERNMENT AFFAIRS NEWS

UPDATED STATE LEGISLATION

California Senate Bill 459 (UPDATED)

Sponsored by Senator Ellen Corbett (D – Majority)

This legislation prohibits willful misclassification of employees as independent contractors. The bill gives authorization to the Labor and Workforce Development Agency to assess specified civil penalties from persons or employers who are in violation. This bill would require an employer to provide an independent contractor with a form that includes an explanation of their tax obligations, eligibility for labor and employment protections, and a notice of the individual’s ability to seek advice from the Employment Development Department or the Labor Commissioner. Status: On February 16, the bill was introduced and referred to the Committee on Rules. On March 31, the bill was referred to the Senate Committees on Labor and Industrial Relations and Judiciary. On April 27, the bill was passed out of committee and sent to the Committee on Appropriations. On May 27, the bill passed off the suspense file and was eventually passed by the Senate. On June 2, the bill was sent to the Assembly for consideration.

Connecticut Senate Bill 678 (UPDATED)

Sponsored by Senator Anthony Musto (D – Majority)

This legislation aims to provide more clarity by amending the definition of an independent contractor to exclude any individual that is paid hourly, whose tools are provided by the person paying the worker, or who otherwise acts at the specific direction of the payor. Status: On January 24, the bill was introduced and referred to the Joint Committee on Labor and Public Employees. This bill has died in committee.

Massachusetts House Bill 1393 (UPDATED)

Sponsored by Representative Linda Forry (D – Majority)

This legislation pertains to staffing agencies and relates to how they are regulated and licensed. The definitions section includes a provision stating that “employment” includes services in interstate commerce performed for wages and under contract. Status: On January 20, the bill was filed in the House. On January 24, the bill was referred to the Joint Committee on Labor and Workforce Development. A hearing is scheduled for June 9 at 10:30am in room A-1 of the State House.

Nevada Senate Bill 207 (UPDATED)

Sponsored by Senate Committee on Commerce, Labor, and Energy

This legislation gives the Labor Commissioner authority to impose an administrative penalty against an employer who, regardless of the employer’s intent, misclassifies an employee as an independent contractor. The bill defines an individual as an independent contractor if: (1) the person performs services for wages on behalf of an employer; (2) the person has been and will continue to be free from control or direction by the employer over the performance of the services, both under a contract of service and in fact; (3) the service is either outside the usual course of the employer’s business or the service is performed outside of all the places of business of the employer for whom the service is performed; and (4) the service is performed in the course of an independently established trade, occupation, profession or business in which the person is customarily engaged and which is of the same nature as that involved in the contract of service. Status: On March 1, the bill was introduced and referred to the Senate Committee on Commerce, Labor, and Energy. A public hearing was held on March 30. On April 4, the committee passed the bill by a 4-3 vote. On May 29, the bill was passed by the Senate and referred to the Assembly Committee on Commerce and Labor. On June 4, the bill was passed by the full Assembly with a 25-13 vote.

Nevada Senate Bill 208 (UPDATED)

Sponsored by Senate Committee on Commerce, Labor, and Energy

This legislation defines "independent contractor" as a person who performs services for an employer if: 1) the person has been and will continue to be free from control or direction by the employer over the performance of the services, both under a contract of service and in fact; 2) the services are outside the usual course of the employer’s business or the services are performed outside of all the places of business of the employer for which the services are performed; and 3)the services are performed in the course of an independently established trade, occupation, profession or business in which the person is customarily engaged and which is of the same nature as that involved in the contract of service. It requires directed state agencies to share amongst their respective offices information relating to suspected employee misclassification that is received in the performance of their official duties. Finally, the legislation creates a task force on employee misclassification. Status: On March 1, the bill was introduced and referred to the Senate Committee on Commerce, Labor, and Energy. A public hearing was held on March 30. On April 4, the committee passed the bill by a 4-3 vote. On May 29, the bill was passed by the Senate and referred to the Assembly Committee on Commerce and Labor. On June 4, the bill was passed by the full Assembly with a 26-15 vote.

OTHER STATE LEGISLATION

California Senate Bill 316

Sponsored by Senator Bill Emmerson (R – Minority)

The legislation provides meal and rest period requirements for employees. Unless waived by mutual consent of both the employer and employee, a 30 minute rest period is required once the employee has worked a specific amount of hours. Under this legislation, employees employed in the “transportation industry” are exempt from the meal and rest period requirement. Transportation industry is defined as any industry, business, or establishment operated for the purpose of conveying persons or property from one place to another whether by rail, highway, air, or water, and all operations and services in connection therewith; and also includes storing or warehousing of goods or property, and the repairing, parking, rental, maintenance, or cleaning of vehicles. Status: On February 15, the bill was introduced and is currently waiting committee assignment.

Illinois Senate Bill 1851

Sponsored by Senator Gary Forby (D – Majority)

This legislation amends the Employee Classification Act to provide that the term “employment” does not include services performed by an individual as an operator of a truck, truck-tractor, or tractor if the person or entity is registered or licensed as a motor carrier, operates the equipment under an owner-operator lease contract, and the ability to set their own hours and work for additional companies. Status: On February 9, the bill was introduced and referred to Assignments. On March 2, it was assigned to the Senate Committee on Labor. On March 18, the bill was re-referred to Assignments.

Kansas House Bill 2131

Sponsored by House Committee on Commerce and Economic Development

This legislation states that an individual performing services for a contractor is deemed to be an employee of the contractor unless it is shown that the: (1) individual has been and will continue to be free from direction and control, (2) service performed by the individual is outside the usual course of services performed by the contractor, and (3) individual is engaged in an independently established business or is deemed a legitimate sole proprietor. Status: On February 3, the bill was introduced and referred to the House Committee on Commerce and Economic Development.

Kansas Senate Bill 157

Sponsored by Senate Committee on Commerce

This legislation states that no person shall knowingly and intentionally misclassify an employee as an independent contractor. If a court determines that an employer misclassifies a worker, the state may impose penalties of $50 per day for each misclassified worker up to a maximum amount of $50,000. Status: On February 10, the bill was introduced and referred to the Senate Committee on Commerce.

Maine House Bill 960

Sponsored by Representative Dianne Tilton (R – Majority)

This legislation standardizes the definition of "independent contractor" for employment security law and workers' compensation law. An independent contractor is a person who: (1) performs services free from direction and control over the means and manner of providing the services; (2) furnishes the tools and equipment necessary to provide the services; (3) operates a business that is considered inseparable from the individual for purposes of taxes, profits, and liabilities; (4) exercises complete control over the management and operations of the business; and (5) exercises the right and opportunity to perform the services of the business for multiple entities at the individual’s sole choice and discretion. Status: On March 25, this bill was introduced and referred to the House Committee on Labor, Commerce, Research and Economic Development.

Maine Senate Bill 332

Sponsored by Senator Douglas Thomas (R – Majority)

This legislation establishes a set of factors to determine whether an individual engaged in the courier business is an employee or an independent contractor for purposes of the workers' compensation laws. To be considered an independent contractor, the individual must be the following factors: (1) owns the motor vehicle or holds it under a lease agreement; (2) is responsible for the maintenance of the motor vehicle; (3) is responsible for substantially all of the operating expenses of the motor vehicle; (4) is responsible for paying the operator’s personal expenses; (5) is responsible for supplying the necessary services to operate the motor vehicle; (6) is compensated based on the factors directly related to the work performed; (7) substantially controls the means and manner of performing the services related to the business; and (8) enters into a written contract. Status: On March 15, this bill was introduced and referred to the Senate Committee on Labor, Commerce, Research and Economic Development.

Massachusetts House Bill 1391

Sponsored by Representative Fred Barrows (R – Minority)

This legislation amends the definition of certain independent contractors. For purposes of chapter 148 and chapter 151, an individual performing any service shall be considered an employee unless certain requirements can be satisfied. Status: On January 20, this bill was filed in the House. On January 24, the bill was referred to the Joint Committee on Labor and Workforce Development.

Massachusetts House Bill 2298

Sponsored by Representative Bradley Johnes (R – Minority)

This legislation clarifies the definition of an employee as an individual performing any service unless the service is performed outside of all the places of business of the enterprise. Status: On January 20, the bill was filed in the House. On January 25, the bill was referred to the Joint Committee on Labor and Workforce Development.

Massachusetts House Bill 2874

Sponsored by Representative Louis Kafka (D – Majority)

This legislation specifies that an individual performing a service shall be considered an employee unless certain requirements can be met. Status: On January 21, the bill was filed in the House. On January 24, the bill was referred to the Joint Committee on Labor and Workforce Development.

Massachusetts House Bill 3091

Sponsored by Representative Joseph Wagner (D – Majority)

This legislation relates to independent contractors in the trucking and courier industries. An individual is considered an independent contractor if the following factors are met: (1) the individual owns the equipment or holds it under a bona fide lease arrangement; (2) the individual is responsible for the maintenance of the equipment; (3) the individual is responsible for the operating costs, including fuel, repairs, supplies, vehicle insurance, and personal expenses. The individual may be paid the carrier's fuel surcharge and incidental costs, including, but not limited to, tolls, permits, and lumper fees; (4) the individual is responsible for supplying the necessary personal services to operate the equipment; (5) the individual's compensation is based on factors related to the work performed, such as a percentage of any schedule of rates, and not on the basis of the hours or time expended; (6) the individual substantially controls the means and manner of performing the services, in conformance with regulatory requirements and specifications of the shipper; and (7) the individual enters into a written contract that specifies the relationship to be that of an independent contractor and not that of an employee. Status: On March 1, the bill was introduced and referred to the Joint Committee on Transportation.

Massachusetts Senate Bill 957

Sponsored by Senator Michael Rodrigues (D – Majority)

This legislation provides a technical correction to the Massachusetts Independent Contractor Law. An individual is considered an independent contractor if: (1) the individual is free from direction and control, and (2) the service is performed outside the usual course of the business of the employer, or (3) the individual is customarily engaged in an independently established business of the same nature as that involved in the service performed. Status: On January 24, the bill was introduced and referred to the Joint Committee on Labor and Workforce Development.

Nevada Senate Bill 242

Sponsored by Senate Committee on Commerce, Labor, and Energy

This legislation states that an independent contractor is an individual who: (1) has been and will continue to be free from direction and control; (2) performs the service outside the usual course of the business for which the service is performed; and (3) performs the service in the course of an independently established business in which the person is customarily engaged and which is of the same nature as that involved in the contract of service. Status: On March 17, this bill was introduced and referred to the Senate Committee on Commerce, Labor and Energy. A public hearing was held on March 30. On April 4, the committee passed the bill by a 4-3 vote.

New Hampshire Senate Bill 191

Sponsored by Senator Tom De Blois (R – Majority)

This legislation requires independent contractors to register as sole proprietors for purposes of workers’ compensation. The Secretary of State may charge a fee for filing the registration and insurance of a certificate of registration. Status: On February 23, this bill was introduced and referred to the Senate Committee on Commerce. A public hearing took place on March 15. On March 24, the committee reported the bill favorably as amended. On March 30, the bill was re-referred back to the Senate Committee on Commerce.

New York Assembly Bill 1073

Sponsored by Assemblyman Felix Ortiz

This legislation defines an independent contractor as an individual who: (1) performs services free from direction and control over the means and manner of providing the services, (2) furnishes the tools and equipment necessary to provide the service, (3) operates a business that is considered inseparable from the individual for purposes of taxes, profits, and liabilities, in which the individual owns all of the assets and profits of the business; and has sole, unlimited, personal liability for all of the debts and liabilities of the of the business, (4) exercises complete control over the management and operations of the business, and (5) exercises the right and opportunity on a continuing basis to perform the services of the business for multiple entities at the individual's sole choice and discretion. It provides that an individual who has not been properly classified as an employee may bring civil action for damages against the employer for any violation under this Act. Status: On January 5, the bill was introduced and referred to the Assembly Committee on Labor.

New Hampshire House Bill 420

Sponsored by Representative William Infantine (R – Majority)

This legislation requires the Commissioner of Labor to establish a voluntary registration procedure for independent contractors under the workers compensation law. The registration form will include explanations of the consequences and possible penalties of misrepresenting their employment status. An independent contractor who registers will not be eligible for benefits if they incur an injury or illness. Status: On January 21, the bill was introduced and referred to the House Committee on Labor, Industrial, and Rehabilitative Services. A public hearing was held on March 1.

New York Assembly Bill 2274

Sponsored by Assemblyman Bob Reilly (D – Majority)

This legislation amends the workers compensation law by stating that an independent contractor cannot be classified as an employee during orientation or initial training. Status: On January 14, the bill was introduced and referred to the Assembly Committee on Labor.

New York Senate Bill 21

Sponsored by Senator Daniel Squadron (D – Minority)

This legislation defines an independent contractor as a sole proprietor who is not an employee and who is retained by a client for an amount equal to or greater than $600. It states that an independent contractor shall be paid the compensation earned in accordance with the agreed work terms no later than the last day of the month following the month in which the compensation was earned. It provides recourse for independent contractors seeking to file a complaint regarding a violation of this measure and recover back compensation. Status: On January 5, the bill was introduced and referred to the Senate Committee on Labor.

New York Senate Bill 630

Sponsored by Senator Daniel Squadron (D – Minority)

This legislation pertains to the payment of independent contractors. The independent contractor shall be paid the compensation earned in accordance with agreed work terms. The agreed work terms shall be reduced in writing, signed by both the client and the independent contractor, and made available to the Commissioner upon request. The writing shall include a description of how compensation earned and payable shall be calculated. A client who is found by the Commissioner to be in violation will be subjected to various civil penalties.

Status: On January 5, the bill was introduced and referred to the Senate Committee on Labor.

North Carolina House Bill 790

Sponsored by Representative Rick Glazier (D – Minority)

This legislation amends the labor laws to enact the Employee Fair Classification Act. In this bill, an independent contractor is defined as an individual who performs services for an employer and: (1) has been and will continue to be free from control and direction; (2) the service is, in fact, either outside the usual course of the business for which the service is performed or the service is performed outside of all the places of business of the enterprise for which the service is performed; and (3) the individual is customarily engaged in an independently established trade. Status: On April 7, the bill was introduced and referred to the House Committee on Commerce and Job Development.

Ohio House Bill 137

Sponsored by Representative Debbie Phillips (D – Minority)

This legislation aims to create a uniform definition of “employee” in the Ohio Revised Code. An employer is prohibited from designating an individual as an independent contractor unless certain criteria are satisfied. The bill also requires various state departments to share information concerning suspected worker misclassification. Status: On March 2, the bill was introduced and referred to the House Committee on Commerce and Labor.

Ohio Senate Bill 107

Sponsored by Senator Michael Skindell (D – Minority)

Oregon House Bill 2313

Sponsored by Representative Chris Harker (D – Even Party Split)

This legislation instructs the Bureau of Labor and Industries to study the development of an independent contractor definition for purposes of adopting by rule a determination of independent contractor status. Status: On January 21, the bill was introduced and referred to the House Committee on Business and Labor.

Oregon House Bill 2469

This legislation establishes a review processes for the Departments of Revenue and Employment based on finding that workers are employees and not independent contractors. The legislation requires the Interagency Compliance Network to work together to share information and increase compliance efforts. Several of the agencies within this network include the Departments of Revenue and Employment, as well as the Bureau of Labor and Industries. Status: On January 21, the bill was introduced and referred to the House Committee on Business and Labor.

Texas House Bill 1358

Sponsored by Representative Charlie Howard (R – Majority)

For the purposes of the franchise tax, this legislation excludes certain flow through funds (for example, subcontracting payments made by the taxable entity to nonemployee delivery service agents) by qualified courier and logistics companies. A qualified courier and logistics company is defined as a registered motor carrier and taxable entity that receives at least 80 percent of its total revenue from two of the following: (1) expedited same day delivery, (2) temporary storage and delivery, and (3) brokeraged same day and logistics services. Status: On February 15, the bill was filed. On March 1, the bill was referred to the House Committee on Ways and Means. On May 2, the bill was passed out of committee with a 9-0 vote.

Texas House Bill 2989

Sponsored By Representative Joe Deshotel (D – Minority)

This legislation aims to prevent worker classification in the construction industry. Improper classification includes a failure by the contractor to: (1) provide the employee with an employment identification number for federal tax purposes; (2) provide the employee with a w-2 or other relevant federal tax form that correctly records the employee's name and social security number; (3) properly withhold income, medicare, social security, or unemployment taxes on wages paid to the employee; (4) include the employee in an applicable employee benefits plan; or (5) provide the employee with workers' compensation insurance coverage. Status: On March 17, the bill was introduced and referred to the House Committee on Business and Industry. On March 28, a public hearing was held. On April 6, the bill was voted out of committee.

Texas Senate Bill 1347

Sponsored by Senator Leticia Van De Putte (D – Minority)

For the purposes of the franchise tax, this legislation excludes certain flow through funds (for example, subcontracting payments made by the taxable entity to nonemployee delivery service agents) by qualified courier and logistics companies. A qualified courier and logistics company is defined as a registered motor carrier and taxable entity that receives at least 80 percent of its total revenue from two of the following: (1) expedited same day delivery, (2) temporary storage and delivery, and (3) brokeraged same day and logistics services. Status: On March 9, this bill was received by the Secretary of the Senate and filed. On March 22, the bill was referred to the Senate Committee on Finance.

Washington State House Bill 1701

Sponsored by Representative Timm Ormsby (D – Majority)

Washington State Senate Bill 5599

Sponsored by Senator Jeanne Kohl-Welles (D – Majority)

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Courtesy of Messenger Courier Association of America (MCAA)

Pending State Legislation Affecting Owner/Operator Classification as of 5/31/11

2011-06-01T12:50:00.000-04:00

Please see below for pending state legislation affecting owner operator classification as of 5/31/11.

Hank Seaton

PENDING STATE LEGISLATION AFFECTING OWNER/OPERATOR CLASSIFICATION AS OF 5/31/11.

California Senate Bill 316

Sponsored by Senator Bill Emmerson (R – Minority)

Connecticut Senate Bill 678

Sponsored by Senator Anthony Musto (D – Majority)

Illinois Senate Bill 1851

Sponsored by Senator Gary Forby (D – Majority)

Sponsored by House Committee on Commerce and Economic Development

Sponsored by Senate Committee on Commerce

Sponsored by Representative Dianne Tilton (R – Majority)

Maine Senate Bill 332

Sponsored by Senator Douglas Thomas (R – Majority)

Massachusetts House Bill 3091

Sponsored by Representative Joseph Wagner (D – Majority)

Massachusetts Senate Bill 957

Sponsored by Senator Michael Rodrigues (D – Majority)

Nevada Senate Bill 242

Sponsored by Senate Committee on Commerce, Labor, and Energy

New Hampshire Senate Bill 191

Sponsored by Senator Tom De Blois (R – Majority)

New York Assembly Bill 1073

Sponsored by Assemblyman Felix Ortiz

New Hampshire House Bill 420

Sponsored by Representative William Infantine (R – Majority)

Sponsored by Assemblyman Bob Reilly (D – Majority)

New York Senate Bill 21

Sponsored by Senator Daniel Squadron (D – Minority)

New York Senate Bill 630

Sponsored by Senator Daniel Squadron (D – Minority)

Status: On January 5, the bill was introduced and referred to the Senate Committee on Labor.

North Carolina House Bill 790

Sponsored by Representative Rick Glazier (D – Minority)

Ohio House Bill 137

Sponsored by Representative Debbie Phillips (D – Minority)

Ohio Senate Bill 107

Sponsored by Senator Michael Skindell (D – Minority)

Oregon House Bill 2313

Sponsored by Representative Chris Harker (D – Even Party Split)

Oregon House Bill 2469
This legislation establishes a review processes for the Departments of Revenue and Employment based on finding that workers are employees and not independent contractors. The legislation requires the Interagency Compliance Network to work together to share information and increase compliance efforts. Several of the agencies within this network include the Departments of Revenue and Employment, as well as the Bureau of Labor and Industries. Status: On January 21, the bill was introduced and referred to the House Committee on Business and Labor.

Texas House Bill 1358

Sponsored by Representative Charlie Howard (R – Majority)

Texas House Bill 2989

Sponsored By Representative Joe Deshotel (D – Minority)

Texas Senate Bill 1347

Sponsored by Senator Leticia Van De Putte (D – Minority)

For the purposes of the franchise tax, this legislation excludes certain flow through funds (for example, subcontracting payments made by the taxable entity to nonemployee delivery service agents) by qualified courier and logistics companies. A qualified courier and logistics company is defined as a registered motor carrier and taxable entity that receives at least 80 percent of its total revenue from two of the following: (1) expedited same day delivery, (2) temporary storage and delivery, and (3) brokeraged same day and logistics services. Status: On March 9, this bill was received by the Secretary of the Senate and filed. On March 22, the bill was referred to the Senate Committee on Finance.

Washington State House Bill 1701

Sponsored by Representative Timm Ormsby (D – Majority)

This legislation pertains to the misclassification of independent contractors in the construction industry. An independent contractor is found to be in violation if he/she engages three or more subcontractors to all work on the same task at a single job site. An independent contractor has the burden of proof to show that all subcontractors are not working on the same tasks at a single job site. Status: On January 31, the bill was introduced and referred to the House Committee on Labor and Workforce Development. On February 16, a public hearing was held and the bill was reported favorably out of the committee. The bill was then moved to the House Rules Committee. In early March, the full House passed the bill by a 54-43 vote and it was sent to the Senate Committee on Labor, Commerce, and Consumer Protection. On March 18, the bill was reported favorable out of the committee and passed to the Rules Committee for second reading. On April 4, the full Senate passed the bill by a 25-23 vote. The House and Senate are now debating amendments.

Washington State Senate Bill 5599
Sponsored by Senator Jeanne Kohl-Welles (D – Majority)
This legislation pertains to the misclassification of independent contractors in the construction industry. An independent contractor is found to be in violation if he/she engages three or more subcontractors to all work on the same task at a single job site. An independent contractor has the burden of proof to show that all subcontractors are not working on the same tasks at a single job site. Status: On January 31, the bill was introduced and referred to the Senate Committee on Labor, Commerce, and Consumer Protection. On February 21, a public hearing was held and the bill was reported favorably out of committee. The bill was then moved to the Senate Rules Committee.

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This update is courtesy of Messenger Courier Association of America (MCAA)

Law Office of Seaton & Husk, LP Transportation News & Upcoming Events: LIST OF UPCOMING EVENTS

2011-06-01T12:31:00.000-04:00

LIST OF UPCOMING EVENTS in June and July 2011

Authority to operate is what matters

2011-05-25T10:43:00.007-04:00

Authority to operate is what matters

Settlement confirms that FMCSA – not its data – decides

By Henry E. Seaton

May 1, 2011

Reprinted from: www.ccjdigital.com / etrucker.com

Q: I have read the press release concerning alerts in the Safety Measurement System database, and I have been in conversations concerning whether satisfactory safety ratings should trump all other information, including both the Behavior Analysis and Safety Improvement Categories or the former Safety Evaluation Areas. Is there any stale date on satisfactory safety ratings? Would a satisfactory safety rating from 10 to 20 years ago still be evidence that the Federal Motor Carrier Safety Administration considers the trucker safe and fit? As we all know, truckers change employees often, and different managers look at safety either as important or not.

A: Safety ratings do not become stale. Plaintiff’s bar, in an effort to chase after deep pockets, has recognized a satisfactory rating as a bar to suing shippers but has pursued shippers using unrated carriers. In this context, one of the important things accomplished by the recent settlement with FMCSA over public release of SMS rankings and alerts was confirmation that the agency certifies carriers as safe to operate and that only carriers deemed unsatisfactory or placed out of service are not fit to operate on the nation’s roadways.

The reason the suit was brought was to disabuse shippers and brokers of the fear that the Compliance Safety Accountability (CSA) program data was intended for their use in credentialing carriers or somehow was required to escape possible vicarious liability. The case law that so troubles shippers and brokers was in some cases the result of the spurious argument that an unrated carrier was in some sense not fully licensed to operate. As a result of this misconception, many shippers and brokers thought that carriers with a satisfactory rating were in some sense approved, while unrated carriers are not. Nothing could be further from the truth.

In fact, under the current statutes in effect and cited in the agency’s settlement (49 C.F.R. 385), carriers without a safety rating have the equivalent of a satisfactory rating because under any of the agency’s monitoring or scheduling tools, they are within compliance and have not been selected for an audit. Thus, correctly seen, the issue is not whether satisfactory safety ratings should trump all other information, whether BASICs or SEAs.

What the settlement accomplished was to determine that BASICs or SEAs do not establish some standard for shipper or broker use that should trump the agency’s ultimate safety rating. An important key is the fact that the settlement confirms that an unrated carrier – like a carrier with a satisfactory safety rating, issued 20 years ago or just last month – is authorized for use.

In the settlement, FMCSA confirmed that under existing law, the agency determines who is authorized to conduct operations over the nation’s highways. As a major broker, you are charged by regulations with using authorized motor carriers – nothing more, nothing less. (49 C.F.R. 371)

My traditional advice to broker clients has been to hold out to arrange for transportation using carriers who are licensed, authorized and insured and which enjoy a safety rating of satisfactory or equivalent issued by FMCSA. That remains the federal standard. The settlement in NASTC et al. v. FMCSA makes clear that publication of SMS methodology, which has not even been approved for the agency’s own use, has not changed the law or required brokers to require contractually or hold out to provide a different carrier credentialing standard.

Finally, in an important and thorough 35-page document entitled “Carrier Selection Framework,” the Transportation Intermediaries Association released its recommendations for carrier selection on April 8. Therein, it refers to the negotiated disclaimer language and recommends best practices, which includes reliance upon the agency’s ultimate determination under Section 385, eschewing any use of SMS methodology. Taken together, the disclaimer and the TIA’s selection document should end the misconception decisively that CSA/SMS methodology is intended as fit for use in the carrier selection process by shippers and brokers.

Article printed from Commercial Carrier Journal: http://www.ccjdigital.com

For more articles please visit:

http://transportationlaw.net/articles.html

FMCSA Rejects Argument that Carriers Subcontracting Loads to Other Carriers are Responsible for Subcontractors Compliance with Safety Regulations

2011-05-05T17:02:00.000-04:00

Under the alternative service model, licensed carriers frequently hire other carriers to provide services they are contractually obligate to provide. Formerly called, convenience interlining, this practice which is similar to brokerage has created vicarious liability concerns particularly in light of state law where the dangerous enterprise exception holds that a prime contractor is liable for the acts or omissions of its sub. Serna v. Pettey Leach Trucking, Inc., 110 Cal. App. 4th 1475 (Cal. App. 2d Dist. 2003)

The alternative model is a valuable tool for retaining additional capacity in view of the attacks upon the owner/operator model. In Missouri Basin Wells Service, Inc. FMCSA 2011-0078, the FMCSA’s Western Service Center claimed that a carrier acting as a prime contractor was liable for the safety compliance of its contracted subcarriers. In a well written Petition for Reconsideration, the prime carrier argued that the subcontracted carrier as a licensed, authorized, and insured carrier was solely responsible under the federal regulations for compliance with federal safety duties. In an order issued April 15, 2011, the Agency agreed.

This decision has important implications for the future success of the alternative service model and may be helpful in establishing that under federal transportation law, a carrier does not become liable for the acts of its sub when it hires a separate licensed, authorized and insured carrier.

Hank

May 4, 2011 Issue

GOVERNMENT AFFAIRS NEWS

U.S. Senator Brown Reintroduces IC Misclassification Legislation

Last month, United States Senator Sherrod Brown (D-OH) introduced legislation aimed at preventing worker misclassification. Senator Brown says that the bill, known as the Payroll Fraud Prevention Act, “would prevent payroll fraud by employers that misclassify their workers as independent contractors and would provide workers with the protections they are entitled to and the benefits they have earned. The bill would ensure access to safeguards like minimum wage and overtime, health and safety protections, and unemployment and workers' compensation benefits.”

Senate Bill 770 was introduced with two cosponsors, Senator Tom Harkin (D-IA) and Senator Richard Blumenthal (D-CT), and has been referred to the Senate Committee on Health, Education, Labor, and Pensions. Similar legislation was introduced in the 111^th Congress and a congressional hearing was held in June 2010. The previous legislation did not make it out of the committee and Senate Bill 770 is not expected to gain momentum either. Nevertheless, MCAA plans to watch this bill closely and reach out to key members of Congress to ensure it does not pass.

UPDATED STATE LEGISLATION

Arkansas House Bill 1324 & 1325 (UPDATED)

Sponsored by Representative Jim Nickels (D – Majority)

This legislation states that an individual in the commercial or residential building construction industry is considered an independent contractor if (1) the individual has a written contract, (2) the individual is free from direction and control, and (3) the individual is engaged in an independently established business. To be considered engaged in an independently established business, the individual must (1) possess the essential tools and equipment, (2) realize a profit or suffer a loss, (3) have proprietary interest, and (4) maintains a business location separate from the location of the person for whom the services are being performed. Status: On February 7, the bill was introduced and referred to the House Committee on Public Health, Welfare, and Labor. On April 27, both bills died in committee at the adjournment of the legislative session.

Arkansas House Bill 1839 (UPDATED)

Sponsored by Representative Jim Nickels (D – Majority)

This legislation authorizes interagency agreements to address worker misclassification. The Department of Workforce Services, the Arkansas Workers' Compensation Commission, and the Department of Labor shall enter into an interagency agreement for the purpose of providing assistance and cooperation in the administration and enforcement of state laws related to the misclassification of employees as independent contractors. The inter-agency agreement under this subchapter shall: (1) provide for the sharing of information to the extent not otherwise prohibited by state or federal law; (2) establish procedures and protocols for the sharing of information to the extent not otherwise prohibited by state or federal law; and (3) provide other assistance or cooperation among the three agencies. Status: On March 3, the bill was introduced and referred to the House Committee on Public Health, Welfare, and Labor. On March 15, the bill was reported favorably out of committee. On March 16, the bill passed the full House and was sent to the Senate Committee on Public Health, Welfare, and Labor. On April 27, the bill died in committee at the adjournment of the legislative session.

Arkansas House Bill 2133 (UPDATED)

Sponsored by Representative David “Bubba” Powers (D – Majority)

This legislation aims to define the relationship of an independent contractor with a trucking company so he or she may have a lease agreement and ensure that the independent contractor has access to workers’ compensation coverage. Status: On March 7, this bill was introduced and referred to the House Committee on Public Health, Welfare, and Labor. On April 27, the bill died in committee at the adjournment of the legislative session.

California Senate Bill 459 (UPDATED)

Sponsored by Senator Ellen Corbett (D – Majority)

Florida House Bill 311 (UPDATED)

Sponsored by Representative Ken Roberson (R – Majority)

This legislation provides a definition for an independent contractor for local business tax purposes. In this proposed legislation, an independent contractor must meet at least four of the following criteria: (1) maintains a separate business, (2) holds or has applied for a federal employer identification number (unless the individual is a sole proprietor), (3) receives compensation for services rendered and such compensation is paid to a business rather than an individual, (4) holds at least one bank account in the same of the business entity, (5) is able to perform work for any entity, or (6) receives compensation for services rendered on a competitive bid basis or completion of a task as defined by a contractual agreement. If four of the criteria are no met, an individual may still be presumed to be an independent contractor if the following are met: (1) The independent contractor controls the means of performing the services, (2) the independent contractor incurs the principal expenses, (3) the independent contractor is responsible for the satisfactory completion of the work, (4) the independent contractor receives compensation for work performed, (5) the independent contractor may realize a profit or suffer a loss, (6) the independent contractor has continuing business liabilities, and (7) the success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures. Status: On February 1, the bill was referred to the House Economic Affairs Committee and Finance & Tax Committee. On March 24, the Committee on Finance and Tax voted the bill out of committee by a 23-0 vote. On April 21, the Committee on Economic Affairs voted the bill out of committee by a 15-0 vote. On April 28, the full House passed the bill by a 116-0 vote and it was sent to the Senate, referred to Senate Committees on Community Affairs and Regulated Industries.

Texas House Bill 1358 (UPDATED)

Sponsored by Representative Charlie Howard (R – Majority)

For the purposes of the franchise tax, this legislation excludes certain flow through funds (for example, subcontracting payments made by the taxable entity to nonemployee delivery service agents) by qualified courier and logistics companies. A qualified courier and logistics company is defined as a registered motor carrier and taxable entity that receives at least 80 percent of its total revenue from two of the following: (1) expedited same day delivery, (2) temporary storage and delivery, and (3) brokeraged same day and logistics services. Status: On February 15, the bill was filed. On March 1, the bill was referred to the House Committee on Ways and Means. On April 26, a public hearing was held and testimonies were added to the official record, the bill has been left pending in the committee.

OTHER STATE LEGISLATION

California Assembly Bill 400

Sponsored by Assemblyman Fiona Ma (D – Majority)

This legislation would provide that an employee who works in California for seven or more days in a calendar year is entitled to paid sick days which shall be accrued at a rate of no less than one hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th calendar day of employment. The bill would require employers to provide paid sick days, upon the request of the employee, for diagnosis, care, or treatment of health conditions of the employee or an employee's family member. Status: On February 14, the bill was introduced and referred to the Committee on Judiciary. On April 14, the bill was passed out of committee and referred to the Committee on Appropriations.

California Senate Bill 316

Sponsored by Senator Bill Emmerson (R – Minority)

Sponsored by Senator Anthony Musto (D – Majority)

Sponsored by Senator Gary Forby (D – Majority)

Iowa House Bill 216

Sponsored by Representative Bruce Hunter (D – Minority)

This legislation requires employers to provide their employees with the appropriate meal and rest periods. For employees working at least seven hours, the meal period should be taken between the second and fifth hours, and the rest period should be taken during every consecutive four hour period of work. Status: On February 8, the bill was introduced and referred to the House Committee on Labor.

Iowa House Bill 551

Sponsored by Representative Bruce Hunter (D – Minority)

This legislation increases penalties for employers willfully misclassifying employees for unemployment compensation. Status: On March 7, this bill was introduced and referred to the House Committee on Labor.

Kansas House Bill 2131

Sponsored by House Committee on Commerce and Economic Development

Sponsored by Senate Committee on Commerce

Maine House Bill 960

Sponsored by Representative Dianne Tilton (R – Majority)

Maine House Bill 1064

Sponsored by Representative Diane Russell (D – Minority)

This legislation creates a definition of an independent contractor. An independent contractor means an individual who: (1) provides services free from direction and control over the means and manner of providing the services; (2) operates a business that is considered inseparable from the individual for purposes of taxes, profits, and liabilities; and (3) exercises complete control over the management and operations of the businesses and exercises the right and opportunity on a continuing basis to perform the services of the business for multiple entities at the individual’s sole choice and discretion. Status: On April 7, this bill was introduced.

Maine Senate Bill 332

Sponsored by Senator Douglas Thomas (R – Majority)

Maryland Senate Bill 685

Sponsored by Senator John Astle (D – Majority)

This legislation states that work performed by a messenger service driver is not considered covered employment if the following are satisfied: (1) the driver and the person engaged in the messenger service business have entered into a written agreement, (2) the driver personally provides the vehicle, (3) compensation is by commission only, (4) the driver may set personal work hours, and (5) the written agreement states prominently that the driver knows their state and federal tax responsibilities and that they are not an employee. The legislation also authorizes messenger service drivers whose work is not covered employment may deliver mail, supplies, records, parcels or other objects on foot, by bicycle, or by motor vehicle. Status: On February 4, the bill was introduced and referred to the Senate Committee on Finance. A public hearing was held on February 22. On April 4, the committee reported the bill favorably as amended. On April 6, the bill passed the full Senate and was sent to the House Committee on Economic Matters. On April 8, the bill was reported favorably out of committee. On April 9, the House passed the bill 135-1 and it has been sent to the Governor for his signature.

Massachusetts Senate Docket Number 1790

Sponsored by Senator Michael Rodrigues (D – Majority)

This legislation is aimed at stimulating the economy and increasing job growth in Massachusetts. One provision, section 20, provides a positive technical correction to the Massachusetts Independent Contractor Law. The legislation also contains a package of incentives to help kick-start job creation. On February 4, the bill was not yet assigned a bill number.

Massachusetts House Bill 3091

Sponsored by Representative Joseph Wagner (D – Majority)

Massachusetts Senate Bill 957

Sponsored by Senator Michael Rodrigues (D – Majority)

Nevada Senate Bill 207

Sponsored by Senate Committee on Commerce, Labor, and Energy

Nevada Senate Bill 208

Sponsored by Senate Committee on Commerce, Labor, and Energy

Nevada Senate Bill 242

Sponsored by Senate Committee on Commerce, Labor, and Energy

New Hampshire Senate Bill 191

Sponsored by Senator Tom De Blois (R – Majority)

New York Assembly Bill 1073

Sponsored by Assemblyman Felix Ortiz

New Hampshire House Bill 420

Sponsored by Representative William Infantine (R – Majority)

Sponsored by Assemblyman Bob Reilly (D – Majority)

New York Senate Bill 21

Sponsored by Senator Daniel Squadron (D – Minority)

New York Senate Bill 630

Sponsored by Senator Daniel Squadron (D – Minority)

Status: On January 5, the bill was introduced and referred to the Senate Committee on Labor.

North Carolina House Bill 790

Sponsored by Representative Rick Glazier (D – Minority)

Ohio House Bill 137

Sponsored by Representative Debbie Phillips (D – Minority)

Ohio Senate Bill 107

Sponsored by Senator Michael Skindell (D – Minority)

Oregon House Bill 2313

Sponsored by Representative Chris Harker (D – Even Party Split)

Rhode Island Senate Bill 416

Sponsored by Senator Michael McCaffrey (D – Majority)

This legislation aims to address the issue of whether a worker is an employee or independent contractor. In addition to any other relief to which the state or an aggrieved party may be entitled for such worker misclassification, the employer shall be liable: (1) to the aggrieved party for liquidated damages in an amount equal to two times the amount of state and federal payroll taxes, employment security contributions, and workers' compensation premiums for which the employer would have been liable if the employee was properly classified; and (2) to the department for a civil penalty in the amount of up to five hundred dollars for each misclassified employee for a first offense and up to one thousand dollars for any subsequent offense. Status: On March 10, the bill was introduced and referred to the Senate Committee on Labor.

Texas House Bill 2989

Sponsored By Representative Joe Deshotel (D – Minority)

Texas Senate Bill 1347

Sponsored by Senator Leticia Van De Putte (D – Minority)

For the purposes of the franchise tax, this legislation excludes certain flow through funds (for example, subcontracting payments made by the taxable entity to nonemployee delivery service agents) by qualified courier and logistics companies. A qualified courier and logistics company is defined as a registered motor carrier and taxable entity that receives at least 80 percent of its total revenue from two of the following: (1) expedited same day delivery, (2) temporary storage and delivery, and (3) brokeraged same day and logistics services. Status: On March 9, this bill was received by the Secretary of the Senate and filed. On March 22, the bill was referred to the Senate Committee on Finance.

Washington State House Bill 1701

Sponsored by Representative Timm Ormsby (D – Majority)

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This update is courtesy of Messenger Courier Association of America (MCAA)

March 30, 2011 Issue - State Legislation Update

2011-03-30T12:32:00.002-04:00

See below for the March 30, 2011 Issue - State Legislation Update.
Hank Seaton

OTHER STATE LEGISLATION

Arkansas House Bill 1324 & 1325

Sponsored by Representative Jim Nickels (D – Majority)

Arkansas House Bill 1839

Sponsored by Representative Jim Nickels (D – Majority)

Arkansas House Bill 2133

Sponsored by Representative David “Bubba” Powers (D – Majority)

California Senate Bill 316

Sponsored by Senator Bill Emmerson (R – Minority)

Sponsored by Senator Anthony Musto (D – Majority)

Florida House Bill 311

Sponsored by Representative Ken Roberson (R – Majority)

This legislation provides a definition for an independent contractor for local business tax purposes. In this proposed legislation, an independent contractor must meet at least four of the following criteria: (1) maintains a separate business, (2) holds or has applied for a federal employer identification number (unless the individual is a sole proprietor), (3) receives compensation for services rendered and such compensation is paid to a business rather than an individual, (4) holds at least one bank account in the same of the business entity, (5) is able to perform work for any entity, or (6) receives compensation for services rendered on a competitive bid basis or completion of a task as defined by a contractual agreement. If four of the criteria are no met, an individual may still be presumed to be an independent contractor if the following are met: (1) The independent contractor controls the means of performing the services, (2) the independent contractor incurs the principal expenses, (3) the independent contractor is responsible for the satisfactory completion of the work, (4) the independent contractor receives compensation for work performed, (5) the independent contractor may realize a profit or suffer a loss, (6) the independent contractor has continuing business liabilities, and (7) the success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures. Status: On February 1, the bill was referred to the House Economic Affairs Committee and Finance & Tax Committee. On March 8, the bill was referred to the Business and Consumer Affairs Subcommittee. As of March 15, the bill is in the House Committee on Finance and Tax.

Florida Senate Bill 582

Sponsored by Senator Nancy Detert (R – Majority)
This legislation provides a definition for an independent contractor for local business tax purposes. In this proposed legislation, an independent contractor must meet at least four of the following criteria: (1) maintains a separate business, (2) holds or has applied for a federal employer identification number (unless the individual is a sole proprietor), (3) receives compensation for services rendered and such compensation is paid to a business rather than an individual, (4) holds at least one bank account in the same of the business entity, (5) is able to perform work for any entity, or (6) receives compensation for services rendered on a competitive bid basis or completion of a task as defined by a contractual agreement. If four of the criteria are no met, an individual may still be presumed to be an independent contractor if the following are met: (1) The independent contractor controls the means of performing the services, (2) the independent contractor incurs the principal expenses, (3) the independent contractor is responsible for the satisfactory completion of the work, (4) the independent contractor receives compensation for work performed, (5) the independent contractor may realize a profit or suffer a loss, (6) the independent contractor has continuing business liabilities, and (7) the success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures. Status: On January 25, the bill was filed in the Senate.

Kansas House Bill 2131

Sponsored by House Committee on Commerce and Economic Development

Sponsored by Senate Committee on Commerce

Illinois Senate Bill 1851

Sponsored by Senator Gary Forby (D – Majority)

Indiana Senate Bill 164

Sponsored by Senator Frank Mrvan, Jr. (D – Minority)

This legislation states that an employee who intentionally makes false statements to the Department of State Revenue concerning independent contractor status commits a Class D felony. An employer shall not classify an employee as an independent contractor for the sole purpose of avoiding the workers’ compensation and unemployment compensation laws. Status: On January 5, the bill was introduced and referred to the Senate Committee on Pensions and Labor.

Iowa House Bill 216

Sponsored by Representative Bruce Hunter (D – Minority)

Iowa House Bill 551

Sponsored by Representative Bruce Hunter (D – Minority)

Maine Senate Bill 332

Sponsored by Senator Douglas Thomas (R – Majority)

Sponsored by Delegate Dereck Davis (D – Majority)

Maryland Senate Bill 685

Sponsored by Senator John Astle (D – Majority)

Massachusetts Senate Docket Number 1790

Sponsored by Senator Michael Rodrigues (D – Majority)

Massachusetts House Bill 3091

Sponsored by Representative Joseph Wagner (D – Majority)

Massachusetts Senate Bill 957

Sponsored by Senator Michael Rodrigues (D – Majority)

Sponsored by Senate Committee on Commerce, Labor, and Energy

This legislation establishes civil liability for knowingly advising an individual to misrepresent the classification of employees for the purposes of industrial insurance. The penalties can range from $5,000 for the first occurrence to $25,000 for the third occurrence. Status: On February 14, the bill was introduced and referred to the Senate Committee on Commerce, Labor, and Energy. A public hearing is scheduled for March 30.

Nevada Senate Bill 148

Sponsored by Senate Committee on Commerce, Labor, and Energy

This legislation creates a private right of action for employees who are misclassified as independent contractors. An employer who improperly classifies an employee as an independent contractor is liable in a civil action commenced by the employee for an amount three times the total amount of actual damages and attorney’s fees. Status: On February 14, the bill was introduced and referred to the Senate Committee on Commerce, Labor, and Energy. A public hearing is scheduled for March 30.

Nevada Senate Bill 207

Sponsored by Senate Committee on Commerce, Labor, and Energy

Nevada Senate Bill 208

Sponsored by Senate Committee on Commerce, Labor, and Energy

Nevada Senate Bill 242

Sponsored by Senate Committee on Commerce, Labor, and Energy

New Hampshire Legislative Service Request 1077

Sponsored by Senator Tom De Blois (R – Majority)

This bill relates to the registration of independent contractors under Workers’ Compensation. The bill has been filed with the Office of Legislative Services but the bill has not been officially introduced.

New York Assembly Bill 1073

Sponsored by Assemblyman Felix Ortiz

New Hampshire House Bill 420

Sponsored by Representative William Infantine (R – Majority)

Sponsored by Assemblyman Bob Reilly (D – Majority)

New York Senate Bill 21

Sponsored by Senator Daniel Squadron (D – Minority)

New York Senate Bill 630

Sponsored by Senator Daniel Squadron (D – Minority)

Status: On January 5, the bill was introduced and referred to the Senate Committee on Labor.

Ohio House Bill 137

Sponsored by Representative Debbie Phillips (D – Minority)

Ohio Senate Bill 107

Sponsored by Senator Michael Skindell (D – Minority)

Oregon House Bill 2313

Sponsored by Representative Chris Harker (D – Even Party Split)

Rhode Island Senate Bill 416

Sponsored by Senator Michael McCaffrey (D – Majority)

Texas House Bill 1358

Sponsored by Representative Charlie Howard (R – Majority)

Vermont House Bill 247

Sponsored by Representative Heidi Scheuermann (R – Minority)

This legislation establishes a common definition of an independent contractor for the purposes of workers’ compensation and unemployment compensation. An individual is considered an independent contractor is the following conditions can be met: (1) maintains a separate business with a separate office, equipment, materials, or other facilities and has continuing recurring business liabilities or obligations; (2) holds or has applied for a federal employer identification number with the internal revenue service or has filed business or self-employment income tax returns with the federal internal revenue service based on that work or service in the previous year; (3) operates under a written contract that specifies a number of items; and (4) voluntarily elected the status of independent contractor. Status: On February 15, the bill was introduced and referred to the House Committee on Commerce and Economic Development.

Vermont House Bill 425

Sponsored by Representative Lucy Leriche (D – Majority)

This legislation states that an individual is considered an independent contractor if the following conditions are met: (1) maintains a separate business and has continuing recurring business liabilities; (2) holds or has applied for a federal employer identification number with the IRS or has filed business or self-employment income tax returns with the IRS; and (3) operates under a written contract. Status: On March 8, this bill was introduced and referred to the House Committee on Commerce and Economic Development.

Virginia Senate Joint Resolution 345

Sponsored by Senator Phillip Puckett (D – Majority)

This legislation instructs the Department of Labor and Industry to study the misclassification of employees as independent contractors. The study will review the status of employee misclassification and the consequences to the workforce, determine the amount of lost revenue to the state government, and determine strategies for improving improper classification of employees. Status: In late January and early February, the joint resolution moved through the Senate with no opposition. In mid-February, the joint resolution was reported favorably by the House Committee on Rules with an 11-0 vote. In late February, the joint resolution was agreed to by the House with a 93-3 vote.

Washington State House Bill 1701

Sponsored by Representative Timm Ormsby (D – Majority)

This legislation pertains to the misclassification of independent contractors in the construction industry. An independent contractor is found to be in violation if he/she engages three or more subcontractors to all work on the same task at a single job site. An independent contractor has the burden of proof to show that all subcontractors are not working on the same tasks at a single job site. Status: On January 31, the bill was introduced and referred to the House Committee on Labor and Workforce Development. On February 16, a public hearing was held and the bill was reported favorably out of the committee. The bill was then moved to the House Rules Committee. In early March, the full House passed the bill by a 54-43 vote and it was sent to the Senate Committee on Labor, Commerce, and Consumer Protection. On March 18, the bill was reported favorable out of the committee and passed to the Rules Committee for second reading.

Washington State Senate Bill 5599
Sponsored by Senator Jeanne Kohl-Welles (D – Majority)
This legislation pertains to the misclassification of independent contractors in the construction industry. An independent contractor is found to be in violation if he/she engages three or more subcontractors to all work on the same task at a single job site. An independent contractor has the burden of proof to show that all subcontractors are not working on the same tasks at a single job site. Status: On January 31, the bill was introduced and referred to the Senate Committee on Labor, Commerce, and Consumer Protection. On February 21, a public hearing was held and the bill was reported favorably out of committee. The bill was then moved to the Senate Rules Committee.

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This update is courtesy of Messenger Courier Association of America (MCAA)

Worker’s Compensation – Model Act Approved/Important Caveats

2011-03-17T16:22:00.000-04:00

The National Conference of Insurance Legislators (NCOIL) recently finalized their Trucking and Courier Industries Worker’s Compensation Model Act. The final model legislation provides six criteria for determining independent contractor status as well as outlines penalties and enforcement. It will now be sent to state legislators, regulators, and Governors as official NCOIL policy.

NCOIL consists of state legislators who work on insurance issues from across the country. These legislators share information and debate ideas which are then taken back to their home state legislatures. The NCOIL Workers’ Compensation Insurance Committee has been working on the Trucking and Messenger Courier Industries Workers’ Compensation Model Act for over the last year.

As you can see on the attachment, NCOIL’s final Trucking and Messenger Courier Industries Workers’ Compensation Model Act is not perfect but is far better than what is currently in place in a lot of states. Organizations such as FedEx, MCAA and the American Trucking Association have been working closely with NCOIL to educate the policymakers on the importance of the independent contractor business model.

There is an important problem with the legislation which appears in Section 3(1). This provision would eliminate a safe harbor for any owner-operator who holds a bona fide lease to the equipment pursuant to “any lease arrangement, loan or loan guarantee with the hiring entity or any affiliate of the hiring entity.” This language appears to exclude from independent contractor status individuals who lease older equipment from a carrier under typical lease-to-own agreements or from carrier affiliates. It also would appear to call into question loan guarantees by the carrier to leasing companies to facilitate the purchase by the independent contractor of used equipment.

Obviously, clients who have built a business model on helping independent contractors acquire equipment should beware to ensure that this otherwise helpful legislation is not enacted in any state without redaction of this language.

Henry E. Seaton, Esq.

WC Model Act

Virginia Hauling Permits: Permit Terms Violations

2011-02-18T15:21:00.003-05:00

Jeffrey E. Cox, Esq.

    As I have noted in a previous post, “Virginia Hauling Permits: The Fine Print Could Cost You” (December 10, 2010), the fine print on Virginia hauling permits contains important terms motor carriers need to read carefully. This post addresses the penalties for a violation of the terms of a hauling permit.

    Virginia’s law enforcement will sometimes improperly invalidate a motor carrier’s hauling permit if they find the motor carrier has violated a term in the permit. However, under the Virginia Code and the Virginia Hauling Permit Manual published by the Department of Motor Vehicles permit invalidation is frequently not the appropriate sanction.

    To illustrate, consider the following case our firm defended. A motor carrier was hired to transport a large refrigeration unit from a Norfolk naval base to its manufacturer in Pennsylvania. The carrier obtained a permit that would allow it to transport 100,000 pounds. The carrier had transported similar units along the same route in the past and its drivers knew to ensure all the water had been drained out of the unit before it was loaded on the truck. On this occasion the driver forgot to check to see if the water was drained. The shipment had a total weight of 101,540 pounds, 1,540 pounds over the weight it was permitted to transport. When the carrier was stopped at a weigh station and the oversight discovered, the State Trooper invalidated the hauling permit. In computing the citation he charged the carrier for every pound over the 80,000 pound max weight trucks can carry in Virginia without a permit resulting in a $21,500 fine.

    In this case, the Trooper’s actions were improper. Virginia law does not allow him to invalidate the underlying hauling permit when computing the sanction. See Virginia Code § 46.2-1139(D). If a police officer discovers a carrier has violated a term in its hauling permit, the officer may invalidate the weight allowed under the permit only if the carrier is: (1) operating off the permitted route (2) the vehicle has fewer axles than required by the permit (3) the vehicle has less axle spacing than what is required by the permit and (4) the vehicle is transporting multiple items not allowed by the permit.

Carrying more weight than is allowed under the permit is a breach of the terms of the permit, but not one that allows an officer to invalidate the underlying hauling permit. In the case of the overweight refrigeration unit above, the appropriate sanction would have been to fine the motor carrier for the difference between its vehicle’s actual weight and the weight allowed under its permit or the officer could have detained the vehicle until it met its permitted weight.

Another example is a carrier who contacted us after receiving a $30,000 citation. This carrier was transporting an overweight shipment through Virginia and had purchased a hauling permit to allow it to transport 136,000 pounds. The permit terms mandated that the carrier have escorts for part of its journey. The carrier stayed on the route mandated by the permit, but failed to hire escorts and was stopped by a State Trooper who noticed the deficiency. The large amount of the citation was due to the officer invalidating the weight the carrier was allowed to transport under the permit for its failure to comply with the permit terms. Under Virginia Code §46.2-1139(D) the citation penalty was improper, because the carrier’s violation was not one of the four specified exceptions.

The Virginia Administrative Code also addresses this issue, specifically 24 VAC 20-81-230(D). This section restates the rules specified in § 46.2-1139(D), but states what an officer may do if he finds a violation of a permit term that is not one of the four exceptions:

“Law-enforcement officials or weight-enforcement officials may direct the vehicle to a safe location, at the permittee’s expense, and detain the vehicle configuration until it meets all the requirements of the hauling permit or until a new hauling permit is issued if the vehicle is not [1] traveling with escorts as required by the permit; [2] if the vehicle is traveling outside the hours specified within the permit; [3] if the vehicle is traveling outside the hours specified within the permit; [4] if the driver does not have the entire permit in the vehicle; [5] if the hauling permit has been invalidated or confiscated due to one of the conditions listed in subsection C of this section; [6] if the vehicle is over the permitted weight; [7] or if law enforcement deems the vehicle to be violating any safety requirement.” 24 VAC 20-81-230 (D).

Virginia police officers may not be able to invalidate a hauling permit for the violation of its terms, but they can inflict serious expense on a motor carrier by holding it in place until its vehicle and shipment is in compliance.

Motor carriers need to ensure that they closely read all the terms and conditions listed on any Virginia hauling permit issued to them. As the two cases discussed illustrate,the potential penalties for not doing so are serious. If your company has received a citation, contact us. Our firm has the knowledge and experience to defend you.

Virginia Hauling Permits: The Fine Print Could Cost You

2010-12-10T09:45:00.002-05:00

Recently, we have had two clients who both received overweight citations despite having valid Virginia hauling permits. Both motor carriers failed to carefully read the large amount of fine print attached to the permit and made mistakes which resulted in costs which could have been avoided.

The first motor carrier failed to note that Virginia Hauling Permits only apply to state roads and do not allow a motor carrier to travel on roads owned by a county or other local municipality. The carrier was stopped two blocks from its destination because it failed to obtain a permit from the city of Portsmouth for the oversized and overweight farm machinery it was delivering.

The second motor carrier was traveling on its designated route but failed to note the structure restrictions listed on the permit and allegedly crossed two bridges on I-66 without a proper escort. The carrier was stopped and received a citation from a Virginia State Trooper.

Frequently, police officers will issue overweight and oversized citations to the driver and not to the motor carrier. Overweight and oversized violations are class one misdemeanors in Virginia which means that unless a compromise is worked out beforehand, the driver must appear on the hearing date. This places logistical and monetary costs on a motor carrier to route its driver back to Virginia for the hearing in addition to legal fees for the defense.

I was able to successfully defend both motor carriers from the citations they received, but both tickets could have been avoided if the carriers had taken the time to read the permit carefully. If you are planning an oversized or overweight move in Virginia, please ensure you read the fine print on the Hauling Permit as well as the terms of the Virginia Hauling Permit Manual which can be found on the Virginia Department of Motor Vehicle’s website at:

http://www.dmv.state.va.us/webdoc/citizen/hauling.asp

If you have received an overweight or oversized citation in Virginia our firm has the experience needed to defend you, contact us today!

Sincerely,

Jeffrey E. Cox, Esq.

Vicarious Liability: Why The FMCSA Is The Ultimate Judge Of Highway Safety

2010-10-14T11:33:00.000-04:00

Please see the following link for the article "Vicarious Liability: Why The FMCSA Is The Ultimate Judge Of Highway Safety " published in the Transportation Lawyers Association October 2010.

http://transportationlaw.net/articles/Vicarious%20Liability-TTL_October_2010.pdf

It is also available on our website at http://transportationlaw.net/articles.html

Yours truly,
Henry E. Seaton, Esq.

"Can An Unlicensed Broker Recover Commissions From A Motor Carrier?" By Ronald H. Usem, Esq.

2010-09-20T14:26:00.001-04:00

Please see the following article titled "Can An Unlicensed Broker Recover Commissions From A Motor Carrier?" by Ronald H. Usem, Esq. Huffman, Usem, Saboe, Crawford & Greenberg, PA The Logistics Journal, August 2010.

This article discusses the case litigated on appeal by Henry Seaton.

http://transportationlaw.net/blog/F&M-Christenberry%20-%20Logistics%20Journal.pdf

This Morning-Hank Seaton on XM 171 Discussing CSA 2010

2010-08-23T08:54:00.001-04:00

Today from 9 a.m. to 11 a.m. EST, Hank Seaton and Rick Gobbell will be featured on XM 171 - The Road Dog Show, speaking about "Safety and Common Sense - Why Second Guessing the FMCSA under CSA 2010 Should not be Required."

Proposed Freight Broker Regulations

2010-06-23T10:55:00.000-04:00

Please see below for FMCSA news transmitted from Rick Gobbell, our Transportation Safety Consultant.
Hank Seaton

HEADLINE: Senate Bill Targets Broker Fraud; Independent truckers, brokerage industry back bill raising bond requirement

Byline: Thomas Gallagher

A bipartisan Senate bill aimed at defending businesses from fraudulent freight brokering schemes is being backed by independent truckers and freight brokers.

The Motor Carrier Protection Act of 2010 would help the Department of Transportation crack down on fraud affecting both groups, industry officials said.

The law would prevent “bad brokers” from not paying truckers, said Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association.

It would also prevent carriers from brokering freight without the proper authority, said Robert Voltmann, president and CEO of the Transportation Intermediaries Association.

Significantly, the bill would raise the federally mandated broker bond from $10,000 to $100,000 and establish significant penalties for violations of broker regulations.

Sen. Olympia Snowe, R-Maine, and Sen. Amy Kobuchar, D-Minn., introduced the bill last week. TIA and OOIDA are working to get similar legislation in the House.

“This isn’t about re-regulating brokers and carriers, it’s about fighting creeps, about fighting fraud,” said Voltmann, who says brokerage scams are increasing.

Beyond raising the broker bond, the bill would establish strict guidelines for companies that provide brokers with surety bonds and on how they administer bonds.

Trucking companies would be required to have a broker or freight forwarder license and bond in addition to their motor carrier operating authority to broker freight.

Brokers and freight forwarders would have to renew their operating authority annually with the DOT’s Federal Motor Carrier Safety Administration.

Revenue from operating authority fees would help FMCSA enforce the rules.

End.

6. DC Velocity (logistics publication); Wednesday, June 16, 2010

HEADLINE: Senate bill takes aim at alleged abuses by freight brokers; Measure would tighten government oversight over intermediaries, raise penalties for regulatory violations

Byline: Mark B. Solomon

Legislation was introduced in the Senate on June 15 to crack down on allegedly fraudulent behavior by truck brokers and other intermediaries against smaller trucking concerns, notably one-person owner-operators.

The bill, the Motor Carrier Protection Act of 2010, was introduced by Sens. Olympia J. Snowe (R-Maine) and Amy Klobuchar (D-Minn.). The legislation would make it more expensive for brokers, freight forwarders, and other intermediaries to operate, and would deal harshly with third-parties engaging in illegal practices.

The bill increases the bond placed by brokers to $100,000 from $10,000 and for the first time, imposes bonding requirements on freight forwarders. The legislation also sets stricter government requirements for entities seeking broker and forwarder authority, and levies tough penalties—such as unlimited liability for freight charges—for such violations as conducting brokerage activities without a bond or license.

In addition, brokers and forwarders would be required to renew their operating authority on an annual basis and would lose their authority if they failed to do so. The bill also sets strict regulations on bond companies and the way bonds are administered. It also requires truckers to have a brokers or forwarders license or bond before they can tender freight to another carrier for compensation. In a statement, the senators said the bill provides smaller trucking firms with the tools to retaliate against corrupt practices by brokers. Currently, these companies have little or no legal recourse to fraudulent actions by intermediaries, the lawmakers said.

"All too often, motor vehicle operators fall victim to the deceitful behavior of fly-by-night brokers and freight forwarders who engage in preposterous criminal activities, such as financial fraud," said Sen. Snowe, a member of the Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security, which has jurisdiction over the legislation.

"Many truckers are small, independent businesses that fraudulent freight forwarders and corrupt brokers too often easily prey upon," said Sen. Klobuchar. "This legislation ensures trucking operators have the tools and protections necessary to prevent fraud, and also modernizes and strengthens federal oversight of this industry."

Perhaps the biggest problem for smaller truckers is not getting paid in a timely manner for freight they receive from brokers, or in some cases not being paid at all. Over the last five years, about one-quarter of all owner-operators have had trouble collecting payments from brokers or other intermediaries, according to a survey by the Owner-Operator Independent Drivers Association (OOIDA), the trade group representing owner-operators.

"People grossly misrepresent [themselves], and sometimes they are selling nothing but hot air. We all pay a price for that. Truckers pay up front, and it has cost too many their livelihoods and their businesses," said Todd Spencer, executive vice president of OOIDA.

Officials of the Transportation Intermediaries Association, which represents many of the nation's intermediaries, were unavailable for comment at press time.

End.

7. eTrucker.com; Wednesday, June 16, 2010

HEADLINE: Bill would increase broker scrutiny

Byline: Jill Dunn

Sen. Olympia Snowe has introduced a bill that would strengthen regulatory oversight of brokers and freight forwarders.

On June 14, the Maine Republican introduced S. 3483, the Motor Carrier Protection Act of 2010, which was referred to the Committee on Commerce, Science, and Transportation with one co-sponsor.

The Owner-Operator Independent Drivers Association and the Transportation Intermediaries Association contributed to the bill. When introducing the bill, Snowe said little federal oversight is currently provided, other than requiring brokers to pay a $10,000 bond.

“According to trucking experts, a broker can rake in revenues far in excess of that $10,000 upfront payment in less than a month, allowing them to disappear in the night, losing their bond but more than making up for it in revenues stolen from hard-working truck operators who are left with nothing to show for their delivery, and no way to recoup those losses,” she said.

One group operated 12 freight broker companies over a three-year period in Georgia, defrauding truckers and evading law enforcement by continually changing business names and locations. The bill increases bond to $100,000 and applies the bonding requirement to freight forwarders.

The bill also:

• Ups requirements for entities seeking broker/forwarder authority.

• Establishes strict penalties for violations, including unlimited liability for freight charges for brokerage activities without a license or bond.

• Authorizes private damages remedies against companies that violate Federal Motor Carrier Safety Administration regulations.

• Implements an annual registration requirement to renew broker/forwarder operating authority and generate revenue for FMCSA enforcement.

• Establishes strict regulations on bond providers and how bonds are administered.

• Requires separate registration numbers per authority and whatever authority used in a transaction must be in writing.

End.

Increased Regulations Proposed for Carriers Forwarders and Brokers

2010-06-17T15:04:00.000-04:00

A recent Senate Bill (June 14, 2010) sponsored by Senators Snowe and Klobuchar, S. 3483, which has been referred to the Committee on Commerce, Science and Transportation proposes major new regulatory provisions including:

An annual registration fee
New distinctive registration numbers for motor carriers, forwarders, and brokers
New eligibility entry requirements for forwarders and brokers including demonstration of qualified experience and character
New financial security measures for brokers and freight forwarders to pay claims in the amount of $100,000
Penalties for unlawful brokerage activities.

See proposed bill below.

Click to View: S3483-111th.pdf

John Husk

FREE Seminars: Wed., June 23, 2010 - Charlotteville, VA

2010-05-17T14:15:00.013-04:00

CLICK HERE TO RSVP ONLINE!

Please RSVP to info@transportationlaw.net to attend in person Two FREE Seminars in Charlottesville, Virginia!

June 23, 2010
RECENT DEVELOPMENTS IN THE TRANSPORTATION INDUSTRY
8:00AM – 12:15PM
Seaton & Husk L.P., Kalbaugh, Pfund, & Messersmith P.C., Great West Casualty Co. and its Agency Partners Cordially invite you to attend this free seminar.

Topics: CSA 2010,The Employee Free Choice Act,Carmack, COGSA, & Contract Issues, Trends in Catastrophic Losses

- Please click here to view the full agenda and invitation.

PROTECTING YOUR BOTTOM LINE: A Presentation of Important Issues and Solutions for Motor Carriers and Brokers In Today's Uncertain Transportation Climate
12:30PM – 2:30PM

Please join Seaton & Husk, LP for a free afternoon session.

- "Carrier's Rights as Creditors in Bankruptcy," by John T. Husk, Esq.

- "Avoiding the Dirty Dozen in Freight Contracts, " by Henry E. Seaton, Esq.

- Please click here to view the invitation and description.

LOCATION

Holiday Inn Monticello
*1200 5TH Street Southwest (Please note this revised street number)
Charlottesville, VA

(434) 977-5100

RSVP to info@transportationlaw.net

Click here to view and print both invitations.

CCPAC Newsletter: 2010 SPECIAL SPRING CONFERENCE EDITION

2010-05-11T10:52:00.000-04:00

Please see the link below to view the CCPAC 2010 Special Spring Conference Edition newsletter which includes Henry E. Seaton, Esq.'s article "FMCSA Sends Elimination Of Cargo Filing Rule To President For Okay" on page 1.

ProClaim_Spring_2010.pdf

2010 SPECIAL SPRING CONFERENCE EDITION
ProClaim is the official newsletter of freight claim professionals worldwide.
An exclusive publication and all copy rights reserved by CCPAC.

Congress to Scrutinize Harbor Truck Leasing; DeFazio calls for investigation of alleged owner-operator scams by motor carriers

2010-05-07T16:26:00.001-04:00

Please see below for news transmitted to us by Rick Gobbell, our transportation safety consultant.
John T. Husk, Esq.

HEADLINE: Congress to Scrutinize Harbor Truck Leasing; DeFazio calls for investigation of alleged owner-operator scams by motor carriers

Video: http://www.joc.com/trucking/congress-scrutinize-harbor-truck-leasing

Byline: William B. Cassidy

A key House Democrat called for an investigation into motor carrier leasing practices in the harbor trucking industry to root out alleged abuses of drayage owner-operators.

Rep. Peter DeFazio, D-Ore., called for an investigation after allegations that some drayage motor carriers were imposing leases on owner-operators that in effect rendered them employees or failing to pass on equipment subsidies to owner-operators.

“We’ve seen an explosion in scam lease purchase agreements,” Joe Rajkovacz, director of regulatory affairs for the Owner-Operator Independent Drivers Association, said at a hearing on the clean truck programs at the ports of Los Angeles and Long Beach.

Many drayage carriers “give lip service” to federal regulations requiring written contracts with owner-operators specifying compensation, insurance requirements and any charges the company may assess, he said. “It is sharecropping or involuntary servitude.”

“We need to look further into this, to look at whether these leases are sham leases or not,” said DeFazio, chairman of the House Subcommittee on Highways and Transit, which held the May 5 hearing into the impact of the Los Angeles and Long Beach plans.

DeFazio questioned whether carriers that received subsidies from the Port of Los Angeles to buy clean trucks passed those subsidies on to owner-operators leasing the equipment.

“Is the owner-operator getting a discounted price for the clean truck?” he asked John Holmes, deputy executive director of the Port of Los Angeles. “Have you required they discount the price if they are using owner-operators?”

“The short answer is no, sir,” Holmes said, explaining that the port provides truck subsidies only to carrier and “we would like to think” they pass it through to drivers.

“Like to think?” said DeFazio. “I hope you’re going to hang around for subsequent testimony because I think that’s a kind of Pollyannish view of the world here.”

He called for a joint investigation into truck leasing by the House Transportation and Infrastructure Committee and the House Committee on Education and Labor.

Complaining of “disturbing and contradictory testimony,” DeFazio said, “We may be using our subpoena power to better understand these leases if we can’t get cooperation.”

OOIDA’s Rajkovacz said what owner-operators need is better enforcement of existing federal regulations. “For them to be a vibrant part of the marketplace, federal regulations to protect them from unscrupulous practices by motor carriers need to be enforced.”

End.

Video from Henry Seaton and Big Truck TV: The Carmack Amendment vs Contract Law

2010-05-03T11:33:00.000-04:00

A new video from Henry Seaton and Big Truck TV is now available.

The Carmack Amendment vs Contract Law (4:18)

Henry E. Seaton, Esq. / Big Truck TV
The Carmack Amendment was put in place to bring order to cargo claims. It stated that the carrier was liable to the goods, but the carrier also had the right to mitigate those losses as much as possible. But that was 100 years ago. Since then, many shippers have used contracts to undermine the spirit of the Carmack Amendment. Henry Seaton discusses what he calls the Reject it, Crush it, Dump it approach many shippers take and what carriers can - and should - do about it.

For more webinars and videos, please visit our site below:

http://transportationlaw.net/webinars.html

KRS Chapter 281 Motor Carrier Transportation Contracts

2010-05-03T11:26:00.000-04:00

Please see below from the Law Offices of John L. Alden.

John T. Husk, Esq.
Seaton & Husk, LP

Please click on the link below for the new Kentucky law dealing with motor carriers and "Promisee."

KRS_Chapter_281_Motor_Carrier_Contracts.pdf

More Negative IC Bills Introduced Into Congress

2010-04-26T15:41:00.001-04:00

Yesterday, Senator Sherrod Brown (D-OH) introduced S3254 and Representative Lynn Woolsey (D-CA) introduced HR5107 which aim to crack down on the use of independent contractors. The legislation text for Brown's bill is not yet available online but Woolsey's legislation is available here. A press release from Brown's office is available here as well.

CSA 2010 Data Preview Now Available for Motor Carriers

2010-04-13T16:33:00.002-04:00

April 12, 2010 - CSA 2010 Data Preview Now Available for Motor Carriers!

FMCSA is pleased to announce the Comprehensive Safety Analysis (CSA) 2010 Data Preview, which will allow individual motor carriers to review their safety performance data by the CSA 2010 Behavior Analysis and Safety Improvement Categories (BASICs). The Data Preview begins on April 12, 2010 and ends on November 30, 2010, the national launch date for the CSA 2010 safety enforcement program.

During the data preview period, motor carriers are encouraged to closely examine their performance data and immediately address any safety problems. This is also an opportunity for motor carriers to update and verify their safety performance data online.

This important step is designed to focus motor carriers on identifying and addressing unsafe behaviors that can lead to crash risk. It also underscores FMCSA’s commitment to data integrity and the motor carrier industry’s responsibility for ensuring commercial vehicle safety.

Complete details on the Data Preview and the CSA 2010 implementation schedule are published in the Federal Register. The CSA 2010 implementation schedule supports the critical importance of incorporating the findings from over 30 months of operational model testing in nine CSA 2010 pilot states.

https://csa2010.fmcsa.dot.gov/

FMCSA may delay full CSA 2010 implementation

2010-04-05T13:58:00.003-04:00

FMCSA may delay full CSA 2010 implementation

Posted By CCJ Staff On April 2, 2010 @ 8:25 am In CCJ Daily Newsletter, Feature in Slideshow, Headline Links, Industry News, News, Newsletters | No Comments

Full implementation of Comprehensive Safety Analysis 2010 will be delayed to 2011, the American Trucking Associations said Thursday, April 1. The Federal Motor Carrier Safety Administration’s original plan was to begin implementing the program in July 2010 and to have all states fully functional by December of this year. ATA says it now appears that although certain phases of CSA 2010 will begin this fall, full implementation will not be completed until spring 2011 or perhaps summer 2011.

FMCSA spokesperson Candice Tolliver says that as part of the agency’s commitment to launch a comprehensive and effective CSA 2010 program, FMCSA is in the process of incorporating the feedback received from partners and stakeholders in the CSA 2010 pilot states. Tolliver says FMCSA expects to issue a Federal Register notice in the coming weeks that will address the CSA 2010 implementation timeline and data preview for commercial motor carriers.

ATA says that as announced on its free member webinar on CSA 2010 earlier this week, FMCSA plans to provide motor carriers with a limited preview of their CSA 2010 data beginning on April 12. ATA says it will provide members with instructions on how to access their data as soon as these details become available; while this preview will include carriers’ safety events (roadside inspections and crashes) and resulting violations, it will not reflect carriers’ scores in each of the Behavioral Analysis and Safety Improvement Categories (BASICs).

FMCSA also announced that beginning Nov. 30, motor carriers and the general public will be able to view more complete CSA 2010 Carrier Safety Measurement System (CSMS) data, including scores in each of the BASICs, according to ATA; however, as previously indicated, the public will not be able to view the Crash Indicator scores because of concerns about the quality of the underlying crash data.

ATA also says that FMCSA on Nov. 30 will begin issuing warning letters to deficient carriers, but will not utilize the full range of CSA 2010 interventions; instead, FMCSA will use the CSMS (instead of Safestat) to prioritize motor carriers for standard onsite compliance reviews.

Article printed from Commercial Carrier Journal: http://www.ccjdigital.com

URL to article: http://www.ccjdigital.com/fmcsa-may-delay-full-csa-2010-implementation/

2010-03-29T15:10:00.000-04:00

With healthcare behind them, politicians eye Independent Contractors

March 24, 2010

Dear Independent Contractor,
With the healthcare bill passed, Washington politicians will be gearing up to focus their attention elsewhere, including legislation that threatens the way millions of Americans make a living and support their families: independent contracting. Proposed federal legislation includes a complex set of new rules defining who is allowed to be an IC – more complex rules with threatened heavy penalties to deter companies from hiring ICs.
As highlighted in a recent San Jose Mercury News article, politicians continue to either miss or ignore important facts about our healing economy – particularly in Silicon Valley and other tech centers where thousands of highly-skilled ICs work in the technology sector. In an area – and industry – hit especially hard by the recession, why would our lawmakers want to do something to hamper growth and recovery? The answer is simple: hidden agendas and budget deficits.
The proposed legislation – sponsored by Sen. John Kerry, D-Mass., and Rep. Jim McDermott, D-Wash. – would give the IRS more power to go after employers. Additionally, it would increase fines tenfold, meaning some fines would end up being $1 million. Startling, isn’t it?
Many politicians either refuse to see or ignore the fact that ICs are part of the solution – able to speed up economic recovery and allow businesses of all sizes to survive in today’s economic climate.
Some experts now fear a startling trend — U.S. small businesses becoming hesitant to hire ICs for fear of steep fines and confusing classification issues.
Those of us who are independent contractors – or who hire them – must act now, before it’s too late. After all, every day we’re a little closer to new laws that could do irreversible damage.
If you’re an IC – or a company that relies on them – visit www.cficf.org to voice your opinion about proposed legislation that threatens your livelihood. And as another reminder, look for continuing updates and news at www.twitter.com/IndContractors.
Sincerely,
David Dunnigan
Executive Director
Coalition for Independent Contractor Freedom

NJ Court finds Owner-Operator to be Employee for Worker's Compensation Purposes

2010-03-29T15:07:00.001-04:00

WORKERS' COMPENSATION — SCOPE OF EMPLOYMENT
39-2-7290 Chaverri v. Cace Trucking Incorporated, App. Div. (per curiam) (8 pp.) This appeal concerns whether an injury of petitioner, Guillermo Chaverri, occurred during the scope of his employment with respondent, Cace Trucking Incorporated. Chaverri was the owner and driver of a tractor trailer. He entered into a written lease agreement with Cace whereby Chaverri agreed to use his tractor trailer to perform hauling services exclusively for Cace. Chaverri further agreed to maintain, register and insure the tractor trailer at his own expense. Chaverri was performing maintenance on the tractor portion of the vehicle at his residence when he injured his right eye, causing him to lose the sight in that eye. The appellate panel concludes as a matter of law that the injury occurred during the scope of Chaverri's employment with Cace and consequently reverses the contrary ruling of the compensation judge.”

CCJ: White House clears EOBR rule

2010-03-24T10:04:00.001-04:00

Posted By Avery Vise On March 22, 2010 @ 5:04 am In CCJ Daily - IMG, CCJ Daily Newsletter, Feature in Slideshow, Headline News, Industry News, News, Newsletters | No Comments

A final rule mandating electronic onboard recorders for carriers that have a history of serious noncompliance with hours-of-service rules could be just days away now that the White House Office of Management and Budget has cleared the measure. The Federal Motor Carrier Safety Administration is expected soon to publish the rule in the Federal Register. Details of the final rule won’t be public until FMCSA announces it. According to OMB’s website, the White House insisted on at least some changes to the rule that was submitted by the U.S. Department of Transportation.

As proposed in January 2007, the regulation also would incorporate new performance standards for EOBRs installed in commercial motor vehicles manufactured two years after the rule’s effective date. Onboard HOS recording devices meeting FMCSA’s current requirements and voluntarily installed in CMVs manufactured before that date could continue to be used for the remainder of the service life of those CMVs. FMCSA had proposed to encourage industrywide use of EOBRs by providing certain relief from audit and recordkeeping practices.

FMCSA completed work on the rule during the Bush administration, but the White House failed to clear it before President Obama was inaugurated. A governmentwide review of pending rulemakings delayed the regulation, but DOT sent a final rule to the White House in December.

The EOBR issue isn’t settled once FMCSA publishes this rule, however. The agency has said it will consider further expanding the number of motor carriers required to install EOBRs as part of a rulemaking that also will address supporting documents for HOS compliance. FMCSA says it will consider reducing or eliminating paperwork burdens associated with supporting documents in favor of expanded EOBR use.

According to a monthly DOT report, FMCSA now plans to complete work on the EOBR/supporting documents proposal in July with publication in December. Meanwhile, the American Trucking Associations has sued FMCSA to move forward with a supporting documents rule. One of the major concerns is the agency’s decision in December 2008 to begin using satellite positioning data routinely in audits of driver logs. ATA argues that motor carriers’ obligations for maintaining supporting documents should be clear and established by regulation.

Regulatory action on EOBRs comes as safety advocates and many in Congress are calling on mandatory EOBRs industrywide. For example, Rep. James Oberstar, chairman of the House Transportation and Infrastructure Committee, proposed a highway authorization bill last year that would mandate use of EOBRs in all CMVs subject to HOS rules.

Article printed from Commercial Carrier Journal: http://www.ccjdigital.com

URL to article: http://www.ccjdigital.com/white-house-clears-eobr-rule/

Video from Henry Seaton and Big Truck TV

2010-03-10T09:42:00.003-05:00

A new video from Henry Seaton and Big Truck TV is now available.

Unlike Wine, Cargo Claims Don't Get Better With Age (4:51)

http://www.bigtrucktv.com/item.aspx?fo_henry_seaton_cargo_claims

Henry E. Seaton, Esq. / Big Truck TV

When it comes to fighting cargo claims, time is not on the carrier's side. Henry Seaton believes a carrier has less than 24 hours to get their on-hand notice filed to have a chance at challenging or mitigating a cargo claim, so speed is of the essence. Seaton offers valuable advice on how carriers should approach their claim to maximize their chance of a successful challenge.

More webinars and videos are available on our website at http://transportationlaw.net/webinars.html.

IMPORTANT DOT Updates

2010-03-05T12:24:00.000-05:00

The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced today regulatory guidance addressing the states’ collection of fees under the Unified Carrier Registration (UCR) Plan and Agreement authorized by SAFETEA-LU. Under the regulatory guidance, states participating in the UCR Plan and Agreement can continue to collect fees from for-hire and private motor carriers, brokers, freight forwarders and leasing companies using the 2009 fee schedule pending the issuance of a new UCR rule. Currently, 41 states participate in the UCR Plan and Agreement, and use the revenue to fund motor carrier safety and enforcement activities including roadside safety inspections, compliance reviews and safety audits for new truck and bus companies entering the industry.

The FMCSA published a Notice of Proposed Rulemaking (NPRM) for a new UCR Plan and Agreement rule on September 3, 2009. The regulatory guidance is on public display in the Federal Register March 1 and will appear in print in the Federal Register on March 2.

Please find the link to the notice here: http://www.federalregister.gov/OFRUpload/OFRData/2010-04294_PI.pdf

What does this mean? The UCR Board was expecting actual fee brackets (not a continuation of 2009 until 2010 is established) so there will probably be a telephonic conference call to determine the next step.

PSP and CSA 2010 Items

2010-03-03T14:25:00.000-05:00

This maybe helpful research on CSA2010-driver records.

Hank Seaton

-----------------------------------

The Pre-employment Screening Program (PSP) that has been talked about in CSA2010 circles is becoming a reality. Enrollment in this program is now available. To obtain further information on PSP and to enroll, click here http://www.psp.fmcsa.dot.gov/Pages/default.aspx

To stay current with CSA2010, go to http://csa2010.fmcsa.dot.gov/

Click below for the documents:
PSP_-_TrudkingInfo_FEB24_2010.pdf

PSP_-_Automotive_Fleet_FEB24_2010.pdf

FMCSA is Not at Work Today/Where is the Stimulus?

2010-03-01T14:52:00.000-05:00

Please see below.

Hank Seaton

Oberstar: Federal highway funding in jeopardy

By CCJ Staff

Published March, 01 2010

The U.S. Senate’s failure to overcome the objections of a single Republican senator meant funding for federal highway, transit and highway safety programs was set to run out at midnight Sunday, Feb. 28, Congressman Jim Oberstar said Friday, Feb. 26.
Oberstar – who is chairman of the House Committee on Transportation and Infrastructure – said the expiration also may force employee layoffs at the U.S. Department of Transportation, including the Federal Motor Carrier Safety Administration, Federal Highway Administration, National Highway Traffic Safety Administration and the Research and Innovative Technology Administration.
The current surface transportation authorization act – the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA-LU) – was due to expire Sept. 30, 2009, but has been kept alive by a series of extensions while Congress considers a replacement authorization bill. The latest extension expired Sunday, Feb. 28.
“I find it outrageous that one senator can kill a piece of legislation and cause chaos for our cities and states,” said Oberstar, referring to Sen. James Bunning (R-Ky.). The Senate adjourned Friday, Feb. 26, without approving cash and health insurance benefit extensions for the unemployed after Bunning insisted that Congress first pay for the $10 billion package. The highway funding is part of the jobs bill.
“There are going to be other bills brought to this floor that are not going to be paid for, and I’m going to object every time they do it,” Bunning said on the Senate floor. “… At the present level of debt and if the present administration’s budget is passed, the debt of the United States will be unsustainable. ‘Unsustainable’ to me means that there is a chance of one of the rating agencies downgrading the rating on our debt. We cannot allow that to happen.”
A different bill pending in the House would extend SAFETEA-LU through the end of 2010; that bill may come up for a vote as early as Tuesday, March 2, and it is possible that the employees would not be furloughed if there is assurance that enactment of a funding bill is imminent.
In the meantime, states may have to suspend work on some road and bridge projects while they wait for their reimbursement payments from the federal government.
DOT said that it will furlough nearly 2,000 employees without pay starting today, March 1, temporarily shutting down highway reimbursements to states worth hundreds of millions of dollars, national anti-drunk driving efforts and multimillion dollar construction projects across the country.
“As American families are struggling in tough economic times, I am keenly disappointed that political games are putting a stop to important construction projects around the country,” said U.S. Transportation Secretary Ray LaHood. “This means that construction workers will be sent home from jobsites because federal inspectors must be furloughed.”
NHTSA said the furloughs will disrupt safety programs that operate in partnership with the states and advocacy groups, such as Mothers Against Drunk Driving (MADD) and the International Association of Chiefs of Police (IACP).
Assistance to consumers whose goods are held hostage by rogue moving companies will be unavailable during this period. And work addressing texting while driving for commercial truck and bus drivers, electronic onboard recorders and hours of service also will be suspended.
The American Association of State Highway and Transportation Officials said the federal reimbursements of funds already expended by the states amount to roughly $800 million a week; FTA, NHTSA and FMCSA also would suspend payments, according to AASHTO.
“We are deeply concerned about the severe impacts to state and local transportation programs of this disruption of the federal highway and transit programs,” said John Horsley, AASHTO executive director. “We commend Chairman Oberstar, (House) Speaker (Nancy) Pelosi, and (Senate) Majority Leader (Harry) Reid for reaching an agreement that will enable the House to pass the Senate version of an extension of the highway and transit programs, with the understanding that a later legislative fix will revise how highway discretionary funds are to be distributed. We hope Congress can move this legislation as early in the week as possible so reimbursements to the states can resume.”

Article printed from Commercial Carrier Journal: http://www.ccjdigital.com

URL to article: http://www.ccjdigital.com/oberstar-federal-highway-funding-will-run-out-at-midnight-sunday/

Reprinted from CCJ Digital.

Swift Class Action

2010-02-17T12:22:00.000-05:00

The attached is a class action brought against Swift Transportation for alleged violations of the Fair Labor Standards Act. Plaintiff’s issue seems to be Swift’s “lease-to-own” program with owner-operators which involves its affiliate leasing company.

Plaintiffs argue that under the program the owner-operator is forced to stay with Swift in a virtual employee relationship and is hounded for truck payments if he leaves or is terminated. The Complaint totally ignores the effect of the truth-in-leasing regulations with respect to the control imposed on leased equipment under the regulations and the court decisions in van line cases approving such lease-to-own programs. See North American Van Lines, Inc. v. NLRB, 869 F.2d 596 (D.C. Cir. 1989).

Click here for document: SwiftTransportation-ClassActionComplaintreContractors.pdf

Henry E. Seaton