HOUSE PASSES PRO ACT:

NOW WHAT?By Deborah Long, CEO, Employee Labor Solutions

Expanding the definition of employee statusand narrowing the scope of independentcontractor status by codifyingCalifornia “ABC” test. Codifying the controversial joint employerstandard articulated in the Browning-Ferrisdecision (since overturned by the NLRB),increasing liability exposure for companiesdoing business with third-party entities. Legalizing secondary boycotting, eliminatingthe long-standing protection of neutralemployers from being pulled into otheremployer’s labor disputes. Levying monetary damages for unfair laborpractice charges.Eliminating through preemption Right-to-Work laws.

U.S. House of Representatives on February 7,2020, passed the Protecting the Right toOrganize ACT (PRO Act), which imposes a longlist of dangerous changes that could re-write ournation’s labor laws. The bill will now go to theSenate, which already has more than 40cosponsors. If the Senate passes the bill, unionswill have an easy time organizing new employees.Some of the key pro-labor changes impactingemployer and employee rights include:

- H o u s e P a s s e s P r o A c t : N o w

W h a t ?

- D O L U p d a t e s G u i d a n c e F o r

O v e r t i m e P a y C a l c u l a t i o n s

- D r a y T E C H 2 0 2 0 i s a l m o s t h e r e !

THE VOICE

D r a y T E C H 2 0 2 0M A R C H 5 T H

F u n d r a i s e r f o r S e n a t o r

S h e l l e y C a p i t o

A P R I L 1 5 T H

Resurrecting the "card check" process bywhich employees can be forced into unionrepresentation without a secret ballot vote.Amending union election rules further byprohibiting employers from challenging unionmisconduct during election and codifying the“ambush election” rule.

Continued on the next page.

F E B R U A R Y 2 0 2 0

03 I S S U ET H E V O I C E2 0 2 0

IN THIS ISSUE

An Official HTA Newsletter

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Infringing on employee privacy by requiringemployers to provide union organizerspersonal information for all employeeswithout prior approval from theemployees.Mandating compulsory, binding arbitrationon the employer and employees if aCollective Bargaining Agreement (CBA) isnot reached within 120 days.Prohibiting arbitration agreements inemployment contracts.

Whether or not the Senate passes the Act, itsets the stage for the next Congress.Employers should take notice and engage inproactive and preventative measures now.

HTA & GEOSTAMP: HOW WE SHARE DATA

To learn more on what you can do please contact:

Debby LongCEO, Employer Labor Solutions

dlong@employerlaborsolutions.com855-424-9799

Scott Purvis

Managing Director, IRI Consultantsspurvis@iriconsultants.com

704-236-0005

Harry JohnsonPartner, Morgan Lewis

Harry.johnson@morganlewis.com310-255-9005

Depended upon by thousands of industryStakeholders - The Harbor Trucking Association hasbeen publishing wait time and terminal performancereports since the early part of the decade. Itsreporting has enabled the transformation of theDrayage industry in Southern California for years –but it has also advanced its capabilities through itstechnology partner, GeoStamp, since 2016.GeoStamp has taken the advanced reporting toolsand truck GPS/ELD data and enabled SaaS solutionsfor the entire freight industry. Today, HTA members and sponsors are pervy to amonthly report provided by GeoStamp that outlinesthe high-level overview of terminal performancerelated to wait time tracking. This report generatedand distributed on the first of every month; is usedin several ways by Port Authorities, MarineTerminals, Trucking Associations (other than theHTA), and individual drayage companies. It providesterminal performance averages across queue time,terminal time (pedestal to pedestal), and out-gatetime. GeoStamp works directly with the HTA and itsmembers, as well as other trucking companies tocollect their GPS/ELD data, anonymize it, andultimately process it though industry approvedgeofences utilizing custom processing logic andbusiness rules.

While data donators, HTA members, and sponsorsreceive this monthly report free – GeoStamp alsooffers an entire suite of products that are designedspecifically for terminal operators and truckingcompanies. Its enterprise solution offers truckingcompanies the ability to see individual visits to aterminal or customer location and subsequentlytrack, monitor, and report to their BCO’s on theindividualized wait time. In addition to tracking capabilities related to theindividual truck and driver for trucking companies,terminal operators are empowered by working withGeoStamp. They, among other freight service centers,can create ‘nested geofences’ that allow users to findand resolve problem areas in real time or see historictrends that enable better decision making related tooperations or practices. The HTA and GeoStamp continue to foster growthand equity in the industry to provide the best resultsand tangible, actionable data to those operating in thedrayage space.

 

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DOL UPDATES GUIDANCE FOR OVERTIME PAY

CALCULATIONSBy Harry Johnson & Colleagues, Morgan Lewis

The US Department of Labor (DOL) has issued a final rule updating its guidance under the Fair Labor Standards Act(FLSA) of what payments and benefits can be excluded when calculating the regular rate of pay – from whichemployee overtime premiums are based.  Calculating the regular rate has long been difficult for employers, and hasbecome more difficult as the types of perks, benefits, and bonuses has expanded. Here is a summary of the basicpoints of the new rule.

The cost of providing parking benefits, wellness programs, onsite specialist treatment, gymaccess and fitness classes, employee discounts on retail goods and services, certain tuitionbenefits, and adoption assistancePayments for unused paid leave, including paid sick leave or paid time offPayments made pursuant to state and local reporting pay and scheduling lawsReimbursed business expenses, including cellphone plans, credentialing exam fees,organization membership dues, and travel, even if not incurred “solely” for the employer’sbenefitProviding coffee, snacks, and occasional meals to employees as giftsCertain sign on and employee referral bonusesContributions to benefit plans for accident, unemployment, legal services, or other events thatcould cause future financial hardship or expense

The final rule was effective on January 15, 2020.  It largely tracks an earlier proposed rule, butprovides additional insight into DOL’s views on specific benefits. Specifically, the following typesof payments need not be included in the regular rate of pay, and thus do not increase federalovertime premium amounts: 

 In addition, the final rule provides examples of discretionary bonuses that can be safely excludedfrom the regular rate, such as financial counseling, mental health wellness programs, andadoption assistance. Also excludable are payments under state scheduling laws, such as“clopening” pay, predictability pay, and right-to-rest pay. The final rule makes two substantive changes to the existing regulation.  First, it eliminates therequirement that call back pay and other similar payments be “infrequent and sporadic” to beexcludable. Second, the rule updates the regulations pertaining to the “basic rate,” under Section7(g)(3) of the FLSA as an alternative to the regular rate under specific circumstances.  Now that DOL has clarified its position on certain benefits and payments, employers may want toconsider offering these benefits and payments to their nonexempt workers.   Before offeringthese benefits or implementing changes, however, employers should consult with counsel toensure the benefit fits within the parameters laid out by DOL, check differences with Californialaw, and audit their payroll practices to ensure that they are correctly calculating overtimepayments. Please contact Morgan Lewis attorneys John Battenfeld at 1.213.612.2500 or Susan Harthill (alsoa former DOL Deputy Solicitor) at 202.739.3000, if you would like more information.

Karla Sanchez-JimenezDirector of Programs & Communicationskarla@harbortrucker.com

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HTA Purchasing Power"It's an online One-Stop Shop!"

By Karla Sanchez, Director of Program &

Communications

A little over a year ago the HTA created aprogram specially designed for OwnerOperators so that they could operate theirbusiness more cost effectively andefficient. This program since then hasgrown. We now have more than 40products and services that owneroperators/ independent contractors cantake advantage of. Furthermore, it's aprogram that enables the process ofobtaining Commercial Liability Insurance,DOT/MC numbers, Permits & OwnAuthority, Occupational Accident, FuelDiscounts, Retirement Plans & much moreall in one web-based platform atdiscounted prices. Signing up is fast and easy! Go towww.harbortrucker.com and click on theJOIN NOW button. From there it willprompt you to type in basic personalinformation, create a username andpassword, and lastly, prompt you to makeyour payment. The cost is $50 per yearand can be paid with a credit card or debitcard. To learn more about the program or if youwould like to set up an appointment so wecan come meet with your owneroperators/independent contractors atyour facility please don't hesitate to reachout to me at karla@harbortrucker.com.

www.harbortrucker.com

DrayTECH 2020 will be held at the Hotel Maya in Long Beach on

Thursday, March 5th. This highly anticipated event highlights how the

supply-chain is being digitized, equipment is getting cleaner and

becoming more efficient, while drayage is at the epicenter of it all.

During the evening program, a panel of experts will participate in “Port

Authorities in the Digital World: More than just a landlord!”, moderated

by Bill Mongelluzo, Senior Editor of the Journal of Commerce.

Thomas O’BrienCenter for International Trade

and TransportationCSULB

New Affiliate Member