Legislative News Archive

Last week, the Department of Labor published the final overtime rule. The new amendments will increase the minimum salary for exempt employees by more than 100%. The changes will take effect on December 1, 2016.

The rule states that all salaried employees guaranteed to make less than $47,476 annually, up from $23,600, will qualify for nonexempt status and will be eligible for overtime pay. The salary threshold will also be increased every three years beginning in January 2020.

Issue:

On Thursday, December 10, the Federal Motor Carrier Safety Administration (FMCSA) amended the Federal Motor Carrier Safety Regulations (FMCSRs) to establish minimum performance and design standards for hours-of-service (HOS) electronic logging devices (ELDs) along with requirements for the mandatory use of these devices by drivers currently required to prepare HOS records of duty status (RODS).

Many drivers may be exempt from the ELD rule because of HOS exemptions in 49 CFR Part 395.

IMPACT:

An ELD automatically records driving time. It monitors engine hours, vehicle movement, miles driven, and location information. 

Federal safety regulations limit the number of hours commercial drivers can be on-duty and still drive, as well as the number of hours spent driving. These limitations were mainly designed to prevent truck and bus drivers from becoming fatigued while driving, and require that drivers take a work break and have a sufficient off-duty rest period before returning to on-duty status.  The rule would impact some vehicles in some NLA member fleets.

As NLA had requested, the ELD Final Rule permits the use of smart phones and other wireless devices as ELDs, so long as they satisfy technical specifications, are certified, and are listed on an FMCSA website.

The rule can be found here.

Congressional Leaders Unveil Five Year Highway Bill –

Transportation Network Companies Tried and Failed to Override Local and State Laws in Federal Transportation Legislation

Negotiators from the House of Representatives and Senate reached an agreement yesterday on a five-year, $305 billion U.S. highway plan. The legislation would provide funding for the Highway Trust Fund, which provides contracting authority for roads, bridges, mass transit and other programs. Also included in the bill are funds tied to capital investment grants, rail-related projects, the National Highway Traffic Safety Administration as well as other projects and agencies.

The current authority for the trust fund expires this Friday, requiring approval from both chambers of Congress and the President. The deal is particularly noteworthy since Congress has funded the Highway Trust Fund through short-term patches since 2008.

Importantly, through the actions of the NLA and others, the bill does not include a definition for ridesharing, preferences for ridesharing, nor a mandate to sell parts of executive agencies’ federal vehicle fleets to substitute ridesharing. The bill does include language for a study on traffic congestion that mentions ridesharing as one of many potential options for the government to consider. This will be one of the thousands of other studies in the law and will not be consequential in the long run.

Given the fierce advocacy efforts of transportation network companies, the bill turned out positively for the NLA and its members. Many of the influential Members of Congress continue to stress the role of states in settling the regulatory matters related to TNCs. This is a positive step and reinforces the need for a continued fight by NLA members at the state and local level.

The National Labor Relations Board (NLRB) just issued a decision in Browning-Ferris, a case that NLA’s legal counsel, Keller and Heckman LLP have been watching closely for some time.

In this case, Browning-Ferris engaged a staffing agency, Leadpoint Business Services. Leadpoint supplied temp employees to perform tasks such as cleaning and sorting recycled products.

The NLRB decided that Browning-Ferris and Leadpoint were joint employers of the temp staff.  In order to arrive at that conclusion, the NLRB changed its longstanding definition of a joint-employer. 

Now, the NLRB standard is that two or more entities are joint employers of the same workforce if: 

1.  They are both employers within the meaning of the common law; and
2.  They share or co-determine those matters governing the essential terms and conditions of employment.

For this second criterion, the Board will examine whether the employer has exercised control over terms and conditions of employment indirectly through an intermediary (such as a temp staffing agency) or whether it has reserved the right to do so.

The result, for Browning-Ferris, is that they must accept both their own employees and the temp employees supplied by Leadpoint as part of the petitioning bargaining unit.

This decision is of limited impact for NLA’s members given that there has been little union activity within the membership.  But it is theoretically possible, should a unionization campaign occur at a member’s work site, that the operator must contend with not only its own employees but also the employees of a subcontracting firm.

This decision has a possible impact on TNCs.  Under the new Browning-Ferris decision, TNCs will have a tougher time defending against unionization efforts by drivers.  This is particularly true in light of the evidence that has come forth in N.D. California litigation and elsewhere.  

Whereas before, a TNC could have claimed that its drivers were not its employees, now it seems more likely that drivers may be able to make a case that they are the joint employees of the TNC as well as of their own employer (such as their own incorporated entity, a taxi company, or a traditional livery service).

Position Paper addresses issues related to the proliferation of TNCs

The National Limousine Association has released a Position Paper that addresses industry concerns over the proliferation of Transportation Network Companies (TNCs) and their effects on the passenger transportation industry.

The six-page paper, prepared by the NLA’s Executive Board, addresses major concerns that operators have raised regarding the TNCs non-compliance with transportation industry regulatory, legal, safety and insurance requirements, as well as false advertising of facts to the public that utilize TNC for-hire vehicles.

The NLA Board of Directors agreed at its June meeting, held in Washington, DC, to create a Position Paper to address the growing concerns of the business model of TNC companies. Board members were tasked with creating, defining and establishing the paper to address the growing concerns of TNC companies. They also enlisted the assistance of Manesh Rath of Keller & Heckman, NLA’s legal counsel; Louie Perry of Cornerstone Government Affairs, the NLA lobbying firm; and NLA Executive Director Philip Jagiela.

The team provided a draft to the NLA Board for review, suggestions and guidance. Exhaustive efforts were applied by all and after several minor modifications were made, a final draft was adopted.