Though a few hurdles remain in its path, a provision on the table in Congress aims to protect trucking companies from litigation that could force them into costly settlements with drivers.
Those pressing for the passage of the provision, known colloquially as the Denham Amendment, say a 2014 court decision set a dangerous precedent for carrier employers — one that’s caused a wave of unfair lawsuits targeting trucking companies. Smaller carriers, in particular, are being hammered by follow-up litigation stemming from the 2014 decision, says Joe Rajkovacz, head of government affairs for the Western States Trucking Association.
“What I see is $300,000 shakedowns by lawyers who get a hold of one of our members who has 15 trucks, and they end up paying that to make this go away,” he says. “Walmart doesn’t get much empathy, nor J.B. Hunt or Schneider. But it’s the small businesses that are really getting screwed by this.”
The 2014 decision, in short, ruled that carriers must comply with state laws that require employers to provide meal breaks and paid rest breaks to employees — an issue currently isolated to California, says Rajkovacz. The ruling has created a wave of lawsuits, he says, driven by attorneys glomming on to the issue. They’re suing California-based interstate carriers, on behalf of driver plaintiffs, seeking thousands — if not millions, in the case of large carriers — in payments to the drivers for not providing them with meal breaks and paid rest breaks. “One member after another is getting sued,” he says. “Lawyers have blueprinted this as a way to make money.”
The American Trucking Associations has also been a strong supporter of the Denham Amendment, named for Rep. Jeff Denham (R-Calif.), who has offered the amendment several times in the House in recent years. ATA’s made the point that it would be impossible for carriers to comply with varying state laws regarding meal and rest breaks, should all states choose to follow California’s path. The group argues the 1994 Federal Aviation Administration Authorization Act states clearly that federal hours of service laws preempt state laws that try to regulate trucking.
The Denham provision would affirm the federal government’s authority over issues that pertain to interstate truckers’ schedules, stating that states can’t impose requirements for employee meal and rest breaks on carriers whose truckers operate under hours of service regs.
Opponents of the provision include the Owner-Operator and Independent Drivers Association and the Teamsters Union. The Denham Amendment would “overrule court precedents confirming that truck drivers are entitled to basic workplace protections,” said the Teamsters in a press release issued late last month, after the passage of a Federal Aviation Administration reauthorization bill in the House that included the Denham Amendment.
The Senate could take up its own FAA bill this week, with the Denham Amendment on the table, offered by Sen. Deb Fischer (R-Neb.). Should the Senate pass an FAA bill, the two chambers of Congress will hold a conference committee to finalize a unified FAA bill, and the Denham/Fischer amendment would need to be included in that unified version — and passed by both chambers — to be enacted.
Allen Smith, a former trucker and current blogger and social media activist, has loudly opposed the provision. Just this week he posted a lengthy essay on Facebook decrying the Denham Amendment as “wage theft” against truckers, arguing that an upswell of state laws like California’s would allow “drivers [to] demand being paid for all time on duty not driving.”
Rajkovacz, a former owner-operator, says this argument “has zero substance.” The amendment has nothing to do with driver pay laws or driver pay methods, he says. An older, 2015 version of the amendment did, but it has since been altered to target only the 9th Circuit Court in California’s decision.
“It’s plain english,” Rajkovacz says. “I don’t know what else to say. It doesn’t have anything to do with hourly pay or paid sick days, like the Teamsters said. That was ‘Denham B,'” referring to the part of the old amendment that no longer exists. “That’s disappeared. All this does is tell the state of California, ‘You aren ‘t going to tell an interstate truck driver when to take a damn break.'”
Rajkovacz says the issue, for now, is centered squarely on California-based interstate carriers. Though if other states, particularly those in the 9th Circuit’s purview (mostly West Coast states) adopt and attempt to enforce similar laws, carriers in those states could then also be subject to costly litigation.