Trucking industry lobbyists hope to leverage fresh Republican control in Washington, D.C., to pass the so-called Denham Amendment, which would prevent enforcement of state-level laws dictating truck drivers’ time and pay, such as those in California.
Proponents contend the amendment is needed to block overzealous court decisions that violate the spirit of the federal government’s authority over driver labor laws and that could create a wave of similar lawsuits against carriers acting well within legal industry standards.
Others argue such action would be the effective end to efforts to reform and modernize driver pay.
The changes brought by such action wouldn’t directly affect independents and owner-operators. Yet the effects of ending state-level efforts to enact simple reforms — for example, mandatory detention time, minimum wage requirements for drivers and the like — could be felt by owner-operators in a variety of ways.
OOIDA urging members to engage caucus members on ELDs. And a question: What's your view of the ELD mandate today?
The Denham Amendment derives its name from Rep. Jeff Denham, a Republican representing the 10th district of California. He successfully attached the provision to the FAST Act highway bill in 2015, though the provision ultimately failed to make the bill’s final cut. The language popped up several times last year, even in bills only tangentially related to trucking, like the 2016 Federal Aviation Administration reauthorization bill.
A nearly 25-year-old aviation bill is, in fact, the law Denham proponents want asserted. The 1994 FAA Authorization Act prohibits states from enacting laws that interfere with a “price, route or service” of a motor carrier. Court decisions favoring state laws and driver plaintiffs in recent years — and ordering mega-million dollar payouts to drivers from their carrier employers — prompted the need to reassert the FAAAA language, say Denham backers.
Major proponents include the American Trucking Associations and the Western States Trucking Association.
Western States’ top priority with D.C.’s new leadership is “prohibiting states from involving themselves in the compensation methods in which drivers are paid,” says the group’s head of government affairs, Joe Rajkovacz. “Once one of the cases are successfully litigated, all the ‘me-too’ lawsuits start focusing on much smaller motor carriers downstream. It becomes legal blackmail against a small business: ‘Pay us or get sued and taken into court.’”
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ATA’s Bill Sullivan says his group also will push the issue.
The Denham Amendment floated in recent years past has two parts. One blocks states from enforcing meal and rest break laws on truckers and exempts carrier employers from complying with such laws, such as paying drivers for meal and rest breaks. The other prohibits states from requiring carriers to pay drivers “separate or additional compensation” outside of per-mile pay, which would bar states from forcing carriers to pay drivers for non-driving time work, such as detention time, loading time, pre- and post-trip inspections and more.
A scattered group of opponents hopes to derail efforts to enact the provision. They’d prefer to see the amendment — now mostly referred to as the “federal authority” provision — permanently buried. Most prominently, the Owner-Operator Independent Drivers Association hopes to convince federal lawmakers to opt against the Denham provision. In a 2015 statement, OOIDA said it’s an “ambitious overreach that would limit states’ ability to allow for any other driver compensation except mileage pay.”
Donna Smith, co-producer of the online radio show and website Truth About Trucking, says the federal authority provision would slam the door on hopes for driver pay reform. State-level action on the issue of driver pay and breaks, even as such actions create an often-derided “patchwork” of varying regulations, is better than no action at all, she says.
“If there’s going to be any law for driver wages, ideally it would be at a national level,” she said. “I think it would be more confusing to have state-by-state laws. But before you can even look down that road, you have to put to rest the Denham language or you can just forget about it. It would put to rest any of the recent efforts that the truck driving community is putting forth to increase their wages. It would be very difficult after” any success for the provision.
Smith says efforts to enact Denham-like language aren’t meant to reign in rogue court decisions, but are instead meant to rewrite the 1994 Federal Aviation Administration Authorization Act to big carriers’ liking, since they’re the ones being dinged in court.
“Aren’t most people paid for all the work they put in?” she asks. “Should drivers be paid for all their time? Absolutely.”