Class action lawsuits often are researched, organized, proposed, promoted and prosecuted by lawyers. While the law generally prohibits plaintiff lawyers from “recruiting” clients to name in lawsuits, it recognizes a social benefit in class actions, and allows lawyers who pursue them to go out and round up class members. It only takes one such member to kick off a lawsuit, and others can join later.
As many of us are painfully aware, this process has infected the trucking industry, with class actions sprouting up based on a variety of allegations usually centered on violations of employment and driver compensation law. Cases in point are those we’ve seen in Washington and other west coast states the past couple years which address employee entitlements to periodic rest (ten minutes every four hours) and meal breaks with pay under Washington employment regs.
Most non-salaried workers in the world are paid by the hour, such that calculation and inclusion of compensation for rest time is easy. But truck driver pay can be different, with employees often paid by the mile, or what the law calls “piece rate” compensation. Notwithstanding most motor carrier employers’ good-faith attention to calculating a reasonable mileage pay rate so that their drivers receive fair (or better) comp, class action plaintiff lawyers formulate arguments that the mileage approach violates wage regs because nothing is paid when the driver is on break, i.e., not on the road. Even a rate increase by some proportion per mile won’t do the trick because, technically, the clock is still off during rest breaks.
Rest break pay values can be some $10/day per average employee for up to three years, which alone might not be so terrible, but when you have dozens or more drivers, it can add up to big bucks. Toss in liability for plaintiff lawyer attorney fees and the double damages which Washington law prescribes for underpaid wage claims; interest at 12%/year; the employer’s own defense costs and fees, and pretty sizable exposure can mount. And don’t forget the time, distraction, bad press, personal liability of company officers and directors, grief, and other intangibles a class action imposes … well, you get the picture.
At least partially because Washington law, as well as many judges and juries, generally are pro-employee oriented, especially when it comes to wage and entitlement issues, Evergreen State court decisions of all levels haven’t been pretty. Defenses have been shot down based on truck driver exemption from relevant regs; artificially high rates per mile already contemplating break time; and comp paid to drivers for non-mileage work not related to breaks. Members in our ranks have been forced to settle out with sizeable payments.
So what’s a well-meaning employer to do? The law per Washington Supreme Court interpretation mandates that drivers, like all other employees, be paid “a wage separate from the piece rate for time spent on rest breaks.” That pay must be “at the regular rate of pay or minimum wage, whichever [is] greater.” Yes, the analysis as to what amount employers must pay as a break allotment is complex, given that mileage rates can’t easily be translated into time for purposes of calculating the value of ten minutes. Given the huge costs and risks of class action, an accounting analysis followed by a solid policy for allotment of rest break pay could be a very worthwhile investment.
So what’s the good news? As reported in last week’s WTA Weekly, the federal government apparently has heard our industry’s pleas for help. The Denham Act, recently proposed in Congress, would put the kibosh on state laws such as Washington’s which require trucking companies to pay drivers rest time in favor of a uniform national policy. The incoming legislature would seem likely to embrace this, but OOIDA and other labor groups will oppose the bill, and as we all know, Congress can be slow to move. Thus, motor carriers would be well served to address the issue now.
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