080122_TT_AllPages

8 • AUGUST 2022
FROM THE EDITOR:
Open for
discussion
BETWEEN
THE LINES
LINDA GARNER-BUNCH
editor@thetruckermedia.com
If there's one thing I've discovered since
joining the team at The Trucker, it’s that the
trucking industry is never boring. There’s always
something to discuss and debate, and
very rarely does everyone agree.
I suppose that’s true of any industry. Heck,
it’s true of life in general.
Politics and legislation are generally
the top topics in trucking (see what I did
there?), but I’ve discovered that drivers are
just as passionate about their favorite (and
least favorite) tractor manufacturer, standard
versus automatic transmissions, fuel
prices, driver-assist software ... the list goes
on and on.
Last month, skyrocketing diesel prices
were top of mind for most truck drivers and
carriers. At the time of this writing, however,
prices seem to have begun a downward
trend. That’s good news.
However, there are always other issues on
the horizon.
One issue that’s actually not so new is
California’s AB5 rule. On June 30, the U.S. Supreme
Court declined to review challenges
to the state’s controversial legislation that
changes the definition of “independent contractor,”
to the detriment of many gig workers,
including truckers. Check out Brad Klepper’s
take on the issue on this page.
Another “new” topic is the lack of safe,
secure truck parking (see the story on Page
1). On July 20, the U.S. House Transportation
and Infrastructure Committee took a step —
hopefully in the right direction — to expand
the nation’s truck-parking infrastructure.
The Trucker will be keeping a close eye
on both of these issues and working to keep
readers updated with the latest news.
Finally, on a purely positive note, I had
the privilege of attending this year’s Walcott
Truckers Jamboree, held at the Iowa 80
Truckstop in Walcott, Iowa, July 14-16.
What an amazing event!
Nearly 100 trucks were entered in the Super
Truck Beauty Contest, and I did my best
to check out every single one. If you were
there and I didn’t get to meet you personally,
it wasn’t for lack of effort!
I love meeting and visiting with drivers.
Each one has a story to tell, whether it’s about
what drew them into the industry, how being
a trucker has changed their life, or their adventures
on the road. Please feel free to reach
out to me with your personal story. You can
email me at lindag@thetruckermedia.com.
And, until next time, keep those rigs between
mustard and mayonnaise! 8
ASK THE
ATTORNEY
BRAD KLEPPER
I am wrong about a lot of things. By “a lot,”
I mean an obnoxiously large number of things.
So, I guess I should not have been surprised
when the Supreme Court of the United States
(SCOTUS) denied cert on the California Trucking
Association case challenging AB5.
I know I shouldn’t have been, but damn,
was I surprised.
I know I am supposed to be neutral in these
things, but I truly thought the court would
grant cert on this case. There was, in my opinion,
sufficient confusion among the courts,
and SCOTUS now leans toward the conservative
side (by a count of 6-3).
Honestly, I would have bet you $1,000 that
SCOTUS would hear the case. And I would
have been wrong.
Now, as background — and in case you
have forgotten — California adopted AB5 to
deal with wrongly classified employees. The
bill was originally directed toward the “gig”
economy (think Uber and Lyft) but found a
home in the trucking industry. In essence,
when the bill was signed into law it basically
made the independent contractor business
model for trucking companies extinct in California.
How can that be, you ask? Simple. In passing
the bill, the legislature adopted the test
handed down by the California Supreme court
in the Dynamex case. As a result, companies
will now be required to use the ABC test set
forth in Dynamex to determine independent
contractor status.
PERSPECTIVE
What does implementation of California’s
AB5 mean for the trucking industry?
Trucker
TALK
According to the ABC test, for a person to
be classified as an independent contractor, the
ABC test requires:
A. That the worker is free from the control
and direction of the hiring entity in connection
with the performance of the work and in fact;
B. That the workers perform work that is
outside the usual course of the hiring entity’s
business; and
C. That the worker is customarily engaged
in an independently established trade occupation
or business of the same nature as the work
performed.
Now, you don’t have to be a genius to understand
that part B of the ABC test is basically
an impossible standard for a carrier to meet.
Any independent contractor hauling freight
for a carrier will now be classified as an employee.
So … where does this leave us? Well, it
means AB5 is the law of California and is retroactive
to Jan. 1, 2020. It also means that the
independent contractor business model is basically
dead in California. While the adoption
of AB5 will definitely put some money into the
state’s coffers, I think it is bad law, as it hurts
small business in California.
The last data I saw showed there are about
136,950 small businesses with small fleets in
California. Many of these use the independent
contractor business model. Sure, there are
some small businesses that take unfair advantage
of the independent contractor business
model, but I believe there are more that don’t.
I also believe there are a lot of independent
contractors who do not want to give up the
freedom to control the “who, what, when and
where” of how they work, not just in the trucking
industry but throughout all businesses in
California. This law impacts freelance writers,
photographers, medical professionals,
accountants, etc. The impact, I believe will be
far-reaching.
To my point, I know of several carriers that
stopped hiring independent contractors domiciled
in California when AB5 was first passed.
In addition, I know that some independent
contractors who wish to maintain that status
have moved their “residence” across state lines
to avoid the issue.
I also know that other states have been
watching the outcome of this case and have
either proposed legislation ready or are planning
to push for a similar law in their state. To
be honest, I think you can look to “blue” states
where the Democrats control all branches of
the state government. I believe this presently
includes states such as Colorado, Connecticut,
Delaware, Hawaii, Illinois, Maine, Nevada,
New Mexico, Oregon and Virginia.
So, what can trucking companies do to address
AB5 in California?
They can simply agree to treat the contractors
as employees. However, this may not be
the best solution, as many of the drivers have
their own trucks and WANT to be independent
contractors.
In theory, a carrier could also change its
structure to be a logistics company, using independent
carriers to deliver goods. This would
arguably get past the part B of the ABC test:
The independent contractors would no longer
be working for a trucking company, so the job
they perform would be outside the course of
the hiring entity’s business. The only way to
know for sure whether this would work would
be for the courts to hear the matter. And there
is no guarantee that the courts would agree.
At the end of the day, I think AB5 will have
a huge impact on business in California — an
impact that I don’t think was anticipated.
Brad Klepper is president of Interstate
Trucker Ltd. and is also president of Driver’s
Legal Plan, which allows member drivers access
to services at discounted rates. For more
information, contact him at 800-333-DRIVE
(3748) or interstatetrucker.com and
driverslegalplan.com. 8
Every month, The Trucker news staff conducts an informal driver poll on or Facebook page
(www.facebook.com/TheTruckerNewspaper). The latest poll asked the question, “Do
you prefer a tractor with a standard transmission or an automatic transmission? Why?” The
overwhelming response was in favor of standard trannies, but there are also a number of drivers
who love their automatic shifts. Some of the responses are listed below (edited for clarity and
length). If you have a question you’d like to see in the poll, email editor@thetruckermedia.com.
“Depends. For certain applications, I find
manual is better than auto on icy/slippery
winter roads, and in other situations, auto
is sure a lot easier on the clutch knee. Really,
though, there’s nothing finer than running
through the gear pattern on a cool morning just
starting out.”
— Susan Zenker
“I prefer a manual. I feel that I have much more
control over the truck with a manual transmission.
THETRUCKER.COM
I also despise all this auto-braking technology.”
— Scott Cumerlato
“I like to keep the RPMs low (short shift). I like
to have a clutch I can feather while backing into
a dock. I like being able to throw it in neutral
going down a hill. I like an 18-speed manual
transmission. I’m sure newer automatics are
better. I drove an ’06 with one before. Didn’t like
how the RPMs go so high before shifting.”
— Ryan Forrest