Being an owner-operator in trucking means something. In many cases, it means more than just having more freedom in how you operate. There’s a sense of pride that exudes from owner-operators that you don’t often see in other lines of work.
I’m not an owner-operator. I’m not even a truck driver. But I know owner-operators, and I know truck drivers. I was raised by a truck driver. And when I read this open letter released late Thursday evening by the Port of Oakland regarding the ongoing protests over AB 5, it didn’t sit right with me.
In the letter, Port of Oakland Executive Director Danny Wan says he met with representatives of the protesting truckers Thursday and discussed with them the impact the protest is having on jobs and operations at the port, as well as a “path forward to returning to full operations.” Wan went on to say he understands their frustrations over AB 5.
“WE HEAR YOU. We have heard you since day one of your protest action,” the letter reads. After four days of limited to no operations at the port’s terminals, I do believe a message is being heard. But it doesn’t seem to me they’re actually listening.
Wan goes on to say that he and other port representatives have been in contact with California Gov. Gavin Newsom’s office and other state officials about the need for resources for trucking. A statement from the governor’s office included in the letter, however, makes it apparent there is no intention to help owner-operators affected by AB 5 to remain owner-operators with their current contracts intact.
“California is committed to supporting our truck drivers and ensuring our state’s truck drivers receive the protections and compensation they are entitled to,” the statement says. “… The state will continue to partner with truckers and the ports to ensure the continued movement of goods to California’s residents and businesses, which is critical to all of us.”
Wan says he and port officials will continue to act as a liaison between truckers and the governor’s office and pledges to work with state agencies to make sure truckers can access all resources offered by the state related to AB 5. He also pledges to establish a working group made up of port and independent trucker representatives serving the port to provide a mechanism for reviewing concerns regarding AB 5’s implementation, addressing trucker amenities and services at the Port of Oakland, and discussing upcoming state clean truck rules and implementation.
It all sounds good on paper, but again, it doesn’t solve the main problem I have seen this week, what protesters have been speaking about -- continuing the pursuit of their dreams to be small-business entrepreneurs and supporting their families. As the Harbor Trucking Association’s President and CEO Matt Schrap said last week, these owner-operators see AB 5 as a “direct threat to their livelihoods.”
Wan continues his letter by asking, “respectfully,” that the protesting owner-operators “cease any further protest activity that disrupts port operations and the flow of commerce at the seaport.”
To accommodate the request, the port is designating specific areas where truckers can “publicly express their opinions.” These so-called “Free Speech Zones” (maps of which are provided at the end of the open letter), at least to this cynical journalist, just seem to be a way to isolate the protestors and get on with business. And what would correspondence from a government agency be without a threat of citations and fines for not complying with the rules?
Attached to the port’s letter is also an extended statement from Newsom’s office, which is more of the state digging in its heels in support of AB 5: “Widespread misclassification in the industry led to the California Supreme Court’s unanimous Dynamex ruling in 2018," a case that involved a company that can't readily be deemed part of "trucking" as we know it, rather an operator of lighter-duty cargo vehicles. That Dynamex ruling, though, created the "ABC test to classify employees and independent contractors,” the statement goes on. “That decision was codified into state law in AB 5, with the support of the legislature and workers.”
Obviously not all workers, though, as made evident by the hundreds of small businesses protesting at California’s ports in the last week. If it’s been said once, it’s been said a thousand times -- not all owner-operators want to be employees. Nor do owner-operators, as well summarized by small fleet owner Bill Aboudi in our prior reporting, want to “go through all this jumping of hoops to do the same exact thing they were doing before,” driving a truck they own contracted to a partner carrier for freight, in so many cases.
Like the "free speech zones," AB 5 itself isolates and makes problematic if not outright illegal what is a longstanding contracting relationship, to boot, long recognized in the federal Truth in Leasing regs. California and its ABC test, when it comes to trucking, push forward as if those regs -- long fought for by owner-operators of a previous era and meant to offer protections for truck owners by spelling out lease requirements for parties involved -- just don’t exist.
One of those lease requirements: that any lease contract come with a measure of control and exclusivity when it comes to a carrier’s use of the leased-on equipment. Short-term seasonal agreements with a bevy of different carriers in different places and freight niches among owner-operators aren’t uncommon, particularly in California, but perhaps more commonly, a small trucking business finds a good partner with a 24/7/365 need for freight-carrying capacity and rides that relationship for the long term, to the benefit of both businesses.
The ABC test in AB 5 doesn’t allow for that, despite federal law, despite the healthy business-to-business relationships of such nature that exist -- and there are hundreds of thousands of them in trucking nationwide.
The California governor’s office lists AB 5-related resources for both employers and workers, many of which can be found at the Labor and Workforce Development Agency’s “Employment Status” portal. The resources listed are aimed to help companies and workers comply with what’s been the law of that land for a while now, just not applied to trucking.
What the state has failed to understand throughout the development of the ABC test and AB 5, or just didn’t care to understand, is that the trucking industry is not a one-size-fits-all industry. What’s good for some is not always good for all. In this case, a few bad apples when it came to worker classification spoiled the whole bunch.