By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
California state investigators are vague as to whether they're specifically targeting the port's trucking companies. "It's not a question I can answer in a blanket way," says Julie Su, labor commissioner for California's Division of Labor Standards Enforcement (DLSE). She has fought on behalf of disenfranchised workers for years, receiving a MacArthur "genius grant" in 2001, and was named as one of the "Pioneers In Women's History" by Bill Clinton.
To truly answer whether or not trucking companies are willfully misclassifying drivers depends on the circumstances of specific employment relationship, she says. "It appears from the investigations we have done that the factors speak to potential misclassification. Drivers are not engaged in a distinct occupational business. . . . They have very little control over their working conditions and choices, whether they can work for different motor carriers or not. It appears that in the agreement they sign, they are tied to a certain company. Their relationships are not temporary. Many drivers drive for a number of years or decades."
She emphasized that the DLSE was not targeting the port trucking industry. And in an effort to not malign any specific entities during the investigation, Su wouldn't elaborate on the companies her team was investigating, but she noted that misclassification is widespread across America's labor spectrum, from construction sites to farmlands to carwashes to hospitality services at hotels.
As to whether the port trucking industry is taking advantage of Latino workers as the Teamsters have claimed, Su didn't want to jump to conclusions. "Oftentimes what happens is that independent contractor relationships are modified by some kind of actual contract," she says. "If that contract is written in a language that the contractor can't read, in competent legal language they can't understand, that makes the contract more suspect."
But Su does get angered by workplace retaliation. Truckers who spoke to the Weekly for this story insist companies will blackball them or fire them for talking to Teamsters or the Department of Labor. Su related a case in which a driver had spoken to the DLSE and noticed he was getting fewer and fewer jobs from his company. Her office contacted his bosses and informed them they were engaging in illegal retaliation; the driver got his job back. "It's easier to mask retaliation when someone is considered an independent contractor who is hired by the load," she says. "I have found that in my investigation, we can often uncover those kinds of excuses."
This is part of the DLSE's larger goal: to make sure drivers who voice their concerns about labor conditions are protected. And Su says dozens of Port of Long Beach truckers have filed wage claims over misclassification, demanding minimum wage and overtime and questioning several deductions from their checks.
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In 2011, trucker Romeo Garcia accused Gardena-based Seacon Logix Inc. of unauthorized deductions and requested reimbursements for truck leases, fuel, insurance and vehicle maintenance in the amount of $31,689.50. A hearing was conducted on Nov. 16 of that year at the California Department of Industrial Relations in downtown Long Beach. Garcia said that he had signed an agreement with the trucking company and understood payments would be deducted for the lease and other expenses, but, he argued, he was swayed by the defendant, who told him he would "make a lot of money."
Representatives for Seacon Logix argued that Garcia shouldn't be considered an employee because he was allowed to turn down dispatched jobs, decide on his own routes and schedule, and could take the truck home if he had a safe place to park it, even though the lease was registered under Seacon. The defense also claimed it offered to find a Spanish interpreter to help Garcia understand the contract.
But Garcia rebutted that he was denied an interpreter and wasn't allowed to turn down jobs. In order to take time off, he testified, Garcia would have to explain himself to Seacon's dispatchers and that if "he didn't do as [Seacon] wanted, he would not get any loads or the office would 'lose' the keys to the truck," according to case documents. The labor commissioner found in favor of Garcia, who was awarded more than what he asked for: $35,814, which included penalties. Seacon Logix is currently trying to appeal the decision; the company refused any further comment.
"Misclassification removes the normal protections," Su says, "that employees are supposed to be guaranteed under law: worker's compensation, minimum wage, overtime. I think too often that entities have kept everything the same about their operation, but they once had employees and converted them to contractors to cut cost. It's bad for employees, it's bad for the competitors, and it cheats the public out of millions of dollars a year because they're not paying taxes."
Several critics of the ruling and misclassification lawsuits say the truckers do not have to sign such contracts with the trucking companies, a stance Su scoffs at.
"I reject the notion that we should blame hardworking people for the abuse they might suffer from the people who break the law," she says. "That's not the way our legal system is structured; that's not the way our labor laws work."