Drivers allowed state-assured rest breaks in California, court says

James Jaillet & Kevin Jones | July 11, 2014

A federal appeals court ruled this week that motor carriers are not exempt from California state law requiring mandatory paid breaks for workers, overturning a ruling made by a lower court that had exempted motor carriers and opening the door for similar challenges, both in California and elsewhere.

Three drivers for Penske Logistics brought the class-action suit against the carrier in 2008, and the Ninth Circuit Court of Appeals’ decision this week could be the final stop, barring a U.S. Supreme Court decision to hear the case.

California law requires employers to give employees a paid 30-minute meal break for every five hours on the clock and paid 10 minute breaks for every four hours on the clock.

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Plaintiffs Mickey Lee Dilts, Ray Rios and Donny Dushaj claimed Penske failed to ensure drivers could take their breaks and created an “environment that discourages employees from taking their meal and rest breaks,” according to court documents.

Penske had argued given the structure of driving jobs, it was exempt under the Federal Aviation Administration Authorization Act of 1994, which it said preempts state law.

The Ninth District’s three-judge panel, however, said that California’s break laws are “not ‘related to’ defendant’s prices, routes or services, and therefore they were not preempted by” FAAAA.

Penske’s Senior VP and General Counsel Michael Duff said the company is “disappointed” by the decision and that it is reviewing its options for proceeding.

“We believe federal district court Judge Sammartino correctly determined that California’s meal and rest break rules as applied to motor carriers were preempted by the FAAAA,” Duff said. “We are still evaluating the decision and considering our options for review going forward.”

Richard Pianka, vice president and deputy general counsel for the American Trucking Associations, said the ruling could set a precedent for similar rules in other states. But he also said the Ninth Circuit “marches to the beat of its own drum” and is historically the most likely to have its decision overturned by the Supreme Court. 

And while, “strictly speaking,” the decision regards California law, the ramifications could reach beyond the state line, he says. Very likely, this would include drivers coming into California to work, regardless of where their carrier is based. And challenges could be mounted in other states with similar rest break requirements, Pianka suggests.

“I think we can expect the plaintiff’s bar take this decision as an invitation to see how many lawsuits they can file and figure out what will stick,” he says. “Anybody who’s operating within California or anywhere within the jurisdiction of Ninth Circuit in the West needs to take a look at this, and the industry in general needs to think about these issues.”

  • Dan Olvitt

    OMG why can’t the industry treat drivers like real people and give them their fair pay. I sit enough and know its “part of the job” so give them break pay.

  • Jean Babbitt

    FAA Advancement Act?????????…Ok Penske pull another one out of your six o clock…What needs to happen is to have a open discussion about pay and time spent on the road-Enough has been said about pay metric’s(scams) that I want to puke…NLRB needs to address this and make a final decision that does not effect overall pay but restores rights to the worker that have denied for decades…

  • Guest

    I will comment quickly this is no real victory but you see how the system hows the the trucking companies always claim a special exemption from labor laws. Then you have a few drivers against company like I have before what does the DOL do? We complain about Union, but Yellow Drivers get paid b/c of Teamster and @jeanbabbitt:disqus note the NLRB only applies to Union, the Union Contract called collective bargaining agreement, which the NLRB must enforce it. The NLRB does not apply to regular non-union drivers and the DOL is going to say drivers are exempt from their enforcement. And ATA, OOIDA refuse to step up and address compensation hire lawyers, the lawyers do not want take on trucking company b/c they know how the courts view drivers. In short, this is why nobody has your best interest in getting fair wages until we get together w/o a union and ORGANIZE a strike!

  • Mike Smith

    I get paid by the mile. I don’t want anyone to tell me when I need to take a break. I take a break when it is needed.

    I don’t believe truck driving is anything like working construction, for instance, carpentry. Construction is hard @$$ busting work.

    When people worked as carpenters in commercial construction there was only 1 1/2hr. lunch break. When you make good money you want to be a valuable asset to those who hire you. If your not they will send you back to the hall.

    I drive truck. It is NOT hard work. It’s difficulty is in the fact that it requires you to be away from home for days, wks,, or even month(s). This said, I define this job as a Nomad type job. We stopped being nomads 10,000 yrs ago. This is what makes it difficult.

  • Chic and chong

    I’m an O/O so all this pay stuff really does not matter to me; however, if I was a company driver I would really be pushing it for a change in the pay exemption for OTR drivers so that the same laws that apply to factory employees also apply to OTR drivers. This would take care of so many problems in the trucking industry such as detention pay

  • Samuel Gallezzo

    You sound like a company suck ass

  • Samuel Gallezzo

    We are the backbone of this country. We are not unskilled labor. Yet we are treated like the scum of the earth. A truck driver represents around 1 percent of the US population. We are responsible for the movement of every commodity in this country. We have no protection that other workers get and our pay is seriously out of sync with the amount of responsibility and risk that we take on daily. I run on average 600 miles per day and make about 120 dollars. Last week I took home 312 dollars for 70 hours of work. Yes I count waiting as work. I live in a space smaller than a jail cell up to 2 months at a time. I’ve been driving for over 3 years and not once has anyone thanked me for what I do. When I leave a shipper or receiver I always thank them for the work. Despite what we do we are marginalized, ripped off and treated like idiots.
    I miss my son. I miss living in a home and I miss feeling like a human.

  • Shawn L Hubbard

    It’s unpaid 30 minute meal break and paid rest breaks. Might be an error there unless something changed ..with that said, I am a California local truck driver and have been following this case. I would prefer not having to take two lunch breaks because it makes my day longer. I’d rather take my DOT mandated 30 minute break only. The rest breaks are easier to get around because the courts have said the employer has to provide them but has no duty to make sure you actually take them. This sucks for local drivers, being forced to take lunch breaks in dark parking lots and alleys isn’t safe.

  • Norm

    Then qiute if that’s all your making you can make that at McDonald’s and be home every day. Apparently your working for the wrong company.

  • Shawn Ryan

    Wow, so folks who drive in the oilfield and drive trucks aren’t hard workers hmmmm.

  • sewer rat

    You are a troll, to feed your stupidity I will declare you worthless. If driving a truck is so easy then why is only 1% driving?
    It is difficult because of so many more reasons then the nomad defense, your obviously a lazy driver.

    When you kill someone because you consider out to be so easy, I hope and pray its not a while family or a bus load.

    Just fyi I worked construction for 10 years and the first month it was tough, after that far easier than driving a truck. Any physical labor is extremely easier than the mental, that’s why college even works.

    Your attitude toward this industry only shows how much your a risk to be around. Please stop driving so our highways are safe again

  • USMC 69-75

    Sam, Hate to say to it, but if you came into trucking to be home every night and make a pile of money……you made a big mistake.

    1: It takes a special breed of person to be a truck driver.

    2: If your not happy in what yo do for a living, then it is WORK.

    3: I have been thanked many times over, as well as cussed at. You have to be appreciative and thankful to God above for every day you get a load delivered safely and no one was harmed.
    If you want gratification for everything you do, your in the wrong field, unless self-gratification is satisfactory.

    4: Only you can control your own destiny, if you want big brother to do it for you, move to a more socialized country. ( we are almost there thou) You need to get the experience, then you can figure out what you want out of trucking. (old cliche: what came first the chicken or the egg?) You need the experience, but no one whats or can hire you, because you don’t have it???? You can drive for somebody else, knowing what a load is paying and feel like your being ripped off, because you don’t know all of what it takes to get a load delivered, or take a big step buy a tractor and get a real lesson on trucking, or get your own trailer, authority and run totally for yourself and swim with the big sharks, and see just what all there is to deal with. You’ll more than likely end up going back to a company driver and enjoy not dealing with all the B/S and expense that goes into running that truck down the road.

  • USMC 69-75

    OMG….and where is this money coming from. If I charge detention time I pass it on to my O/O’s I can’t always get detention time, but I don’t haul cheap freight either, and my O/O’s don’t normally set, nor do I. You work for a company that hauls cheap freight, and doesn’t charge detention time, you get what you deserve. You want to get paid like an office pogue, then go to work in an office, you want to work as a PROFESSIONAL truck driver, your wheel aren’t turning, you aren’t making money.
    More and more entitlement mentality creeping into the industry, only you control your destiny (as a general rule today). Not happy with your employer, find one that pays what you want, runs the equipment you want, and runs the area you want, or stay where you are and deal with YOUR decision.

  • USMC 69-75

    You sound like an inexperienced wanna be!

  • USMC 69-75

    Two sides to that sword guest…..but I agree with what you say.
    The drivers have to quit driving for these companies hauling the cheap freight, but most COMPANY drivers haven’t a clue what the loads pay, all they care about is THEIR pay and getting home safely.
    Heck when I started we split $.18 per mile between the first seat and the second, and of course the first got a penny more, and the responsibility of the truck.
    Yes the cost of living was cheaper, but that would equate to $.30 to $.33 today. Then you throw in benefits if there are any, so each driver has to take responsibility for their own choices, but we need to get and keep the Gestapo out of our business. Forcing you to drive, all this EPA B/S, and regulating us out of business is bull. We need nothing more than the old HOS (with the original exceptions), a base rate per mile that has to be met. ( you can charge more, but no less than $ P/M) Then the companies could pay according to the experience, and caliper of driver. That is “free enterprise” All this wanting to get paid for break time, sleep time, driving time, breakdown time, etc.etc….is nothing more that the entitlement mentality, and all you are going to achieve is putting companies out of business, and people out of work!
    If we strike it’s should be for just a few simple but meaningful demands.
    Not a lawyer written 2800 page bill that nobody will read. No union required, just good old American fortitude, and a spine!

  • Kevin J. Reidy

    If you were paid by the hour for every minute you worked instead of only the time spent driving, you would change your tune in a heartbeat.

    And I don’tr give a rat’s ass what other occupations earn, or how hard the job is, it is not germane to the discussion of compensation in this industry.

    Bet there would be lots of uncompensated time spent on a job site if commercial construction workers weren’t paid by the hour, the boss can make you stand around all day for free until the crane operator shows up.

    Bet you couldn’t get anyone to do it, either.

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  • Del Ray Johnson

    Well my people I am just done done here ole timer USMC 69 the “guest” responding to Jean Babbit is me I really do, did not want to sent it a reply kind on done on this. About last year this time Mike Smith said basically I should be lynched for my statements that drivers get paid by federal law $81,250 a minimum no exceptions in one year nobody has come up with a better plan. And if Mike Smith had his way I would be slumped over in my truck or the trucking companies. So here before I go let me finish getting myself off lynched everybody is an American right? the system for change (please no gun revolution talk) is Legislative, Judicial, or Executive. Here by the numbers: 1. the NRA has it is my understanding 5,000,000 paying members copy that idea so start a tax-exempt Drivers Association, foundation with membership driver goal is the same dues are $100 that is a foundation with $500,000,000 in escrow please avoid the same problems as Teamsters! 2. This organization go print letterhead $100 bucks; 3. hire a Washington (lobbyist) lawyers you got the money and a problem; 4 write the 20 big trucking companies a nice letter telling them we are changing the pay structure or see in court on class action antitrust lawsuit this is what the workers at google did. Be safe, farewell . . . . .

  • Mercenary Transportation

    I understand what this driver is talking about !! Its the rest of u that have gotten so used to the poor treatment n conditions that u think it is normal or part of the job ?? Don’t run this guy into the ground instead join him n me n understand that as things r changeing in the industry they also need to change in a positive way for us as well !!

  • Mike Smith

    Kevin says, “If you were paid by the hour for every minute you worked instead of only the time spent driving, you would change your tune in a heartbeat”.

    You don’t give a rats ass because it DOESN’T SUIT YOU or those of your ilk.

    Every a$$ hole wants to think their job is important. It makes you feel important.

    Face the facts that I have offered up.

    Your not a production worker. Your a truck driver sitting on your @$$. Face the the truth. The truth will set you free.

  • Mike Smith

    Don’t split hairs. It makes you look like lib/dem/commie!

    “Take the meaning.”

  • Mike Smith

    Your declaration is as worthless & unfounded as you are. You don’t even know what a troll is other wise you would use it as it pertains to me.

    I told you why only 1%, as u say, drive.

    Your thought of killing someone is as lame as you are.

    You must have been one them non union construction workers, holding a flag on the road, like some many women flag holders we all see. That’s the job the women get most often.

    My attitude is rooted in experience, & sound thinking unlike your dribble.

  • Mike Smith

    I gotta wonder why this guy would evoke my name, Mike Smith, here.

    I would love for drivers to get paid $80k plus. There are O/O who get this and more.

    Slumped over. What the heck. My point is you drive when you can. If you can only drive 8 Hrs then do so.

    One more point. The time we take to nap or sleep should not be counted as part of the 14 hrs.. I would hope this would change. Drivers like this guy would have far less chance of slumping problems.

  • Mike Smith

    What Samuel Gallezzo needs to do to get higher pay is fight the Mexican, illegal alien Invasion. Mexicans who are driving down the rates on freight.

    In CA, Governor Brown has supported his Mexico, Mexican constituents by treating his illegal aliens to CA drivers lic.’s. As if Mexican’s who can hardly speak English wasn’t bad enough.

    How many more Mexicans will get CDL’s now thanks to the white Governor kissing the a$$’s of the Mexican population that is taking over CA; thanks to Brown, Polosie, etc..

  • Tom Zaharopoulos

    Well Sam, get another job and stop complaining.

  • Jan

    I drove for 42 years and now retired.as to the money part wrong company,as to the thank you,won’t happen, you find the right company mine was self and i run for self and family and putting food on the table and paying bills was my thanks.todays trucking is hard,rule after rule.cost more to run. your pay is way to low.find another company.you will never get rich in trucking as to money.good luck.

  • guest

    Sure all these rich Fleets discourage any rest break….they only want More Money….their greed cant be satisfied. LOL. PIGS.

  • guest

    I agree with SAM. This industry has Always ripped off Drivers…we are treated like illegal farm workers…conditions are dog Poop and getting Worse. Disgusting is what it is.

  • guest

    Yep you are a sitting duck..waiting to get Robbed…nervously looking around sure aint no REST BREAK….ya cant always PLAN to be in green Pastures when the Dumb break time arrives. LOL

  • jojo

    Hmmm, Civil Rights Movement, Women’s Rights Movement and Gay Rights Movement have come and gone and The Co OTR DRIVERS of America are still paid piece work like an indentured servant. They are denied the rights and benefits that are enjoyed by the other employees of their company.
    Most of us understand that there are serious problems with this industry and yet a few macho mothers try to shut us up by accusing us of being weak, stupid crybabies that need to find another job if we are not happy.
    I’m pretty happy with my life on the road. I know that there is money out here and that only a few of us along with the corporations are putting that money in our banks.
    Todays company Drivers are being manipulated and taken advantage of because we are classified as unskilled labor and exempt from the Fair Labor Standards Act.

    Three Ways to Send a Message
    1. Inform your Carrier that you will be taking off at least 3 days during the week of 10/31 thru 11/7. By doing this, You have just told your carrier, the ATA and the shippers/receivers that things need to Change.
    2. You, Your Family and Friends NEED to Call your elected officials in DC.
    Inform them of your issues at 202-224-3121. It’s EASY and Fast!
    3. Go Home To VOTE! Federal Election Day is 11/4/14.

    As for ME, I’m Going Home 10/31 thru 11/7. I’M MAKING SURE THAT MY VOICE IS GOING TO BE HEARD!!!

  • wtf_u_say

    You are lucky to have a job, having such a sorry azz attitude such as yours. Quit your crying, makes you sound like a little girl. If other drivers hear that, it may get them excited .

  • Kevin J. Reidy

    “You’re”.

    Oh, and I own the company…one of three that I own and run.

    You will always just be an employee, and are clueless as to the business side of this industry.

  • Mr. Safety

    Wow a whole 3 years…what happened to the days when new people paid their dues and earned some of the things you guys want. I guarantee my first truck was considerably smaller than whatever you’re driving!

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