Port Driver Misclassification Dominates Concerns During Clean Truck Fee Workshops

The issue of port trucker misclassification was front and center once again as the ports of Los Angeles and Long Beach held a pair of Zoom stakeholder workshops to gather input in drafting a long-delayed container fee, which had been promised in the 2017 Clean Air Action Plan, and approved in principle by both ports’ boards in March 2020. Participants included truck drivers, company owners, community, public health and environmental representatives, etc. Zero-emission trucks will be exempt from the fee, but treatment of near-zero (natural gas) trucks is still being weighed, with the possibility of a fee exemption being partial, being phased from full to partial and/or being sunsetted at a future date. Similar considerations apply to subsidized funding of non-zero truck purchases as well.

The first workshop, on Aug. 26, dealt intensively with fee eligibility and funding issues, polling opinions on a set of questions that showed greater support for near-zero fee exemptions (only about 30% flatly opposed) than for funding to help purchase them (roughly 50% opposed). In both cases, support for non-zero technology decreases with time as non-zero vehicles become more available. Support was also strong for funding supporting infrastructure (68%) and for reviewing the program annually (59%). Although the $10 fee was not up for debate it was nonetheless challenged as inadequate.

Trucker misclassification dominated the second workshop on Sept. 1, largely displacing consideration of equity issues involving the community, which were mostly mentioned only in passing.

Grecia Lopez-Reyes, who serves on the board of Latinos in Action, a Long Beach-based community organization, set the tone with her opening comment. “Members of our community living near the poor bear the brunt of the health impacts of air pollution,” she said, “including the very workers who move our goods.” She noted that “over 80% of port drivers are Latino immigrant workers serving as essential workers in our communities,” and that “misclassification has been an obstacle to meeting climate goals because port drivers are responsible for burying all the cost to transitioning to clean trucks.” She called on the ports to end what she called “a flawed system.”  “Please protect our community by holding trucking companies and their powerful retail customers accountable,” Lopez-Reyes said. “They need to take responsibility for all the costs.”

Juan Islas, a driver for XPO who was misclassified as an independent contractor instead of a company employee, said the ports “need to make sure that companies like XPO follow the law.” 

“Even though the EDD [Employment Development Department] found me to be an employee, XPO still doesn’t pay us payroll taxes like they should,” Islas said. “I spent several years trapped in a loan, making weekly payments on my truck. I had to work long hours driving constantly to earn enough money to pay[it] off. Now, after years of hard work, I put so many miles on my truck, I won’t be able to operate in the port, anymore, or anywhere else in California because it’s reaching the state miles limit.”None of this is legal.

 “Under the law, XPO should have paid for the truck \in the first place,” Islas said. You need to hold these companies accountable. They’ve been getting rich off our backs. It’s time to make the trucking companies and retailers pay for their share.”

After 15 years of organizing, a wide range of voices echoed this argument, including attorneys from Earth Justice and the Natural Resources Defense Council, labor representatives from Teamsters Local 396 and the LA County Fed, faith-based leaders from Clergy And Laity United for Economic Justice, activists from the Sierra Club, the Coalition for Clean Air and the LA Alliance for New Economy.

The notable exception was Matt Schrap, CEO of Harbor Trucking Association, who claimed to sympathize with Islas, while marginalizing and trivializing his experience. “Over the years there’s been some bad actors, and there’s bad actors in every single industry,” Schrap said. But it’s not a question of individual ‘bad actors’, it’s the dominant business model that’s flagrantly illegal by misclassifying workers. Even after years of enforcement actions by the California Labor Commissioner — over 500 cases as Michael Munoz of LAANE pointed out — the Port of LA’s survey of 407 port truckers conducted in June and July found that only 160 (less than 40%) were full time employees of trucking companies.

Others were sharply focused on misclassification as a systemic problem, several specifically noting that any fee exemptions should not be granted to lawbreakers. CCA policy director Chris Chavez took this point one step further. When it comes to spending the monies generated to subsidize clean truck purchases, “If you’re going to get the funding you should follow the law,” he said. It should also be locally targeted, he said. “The investments that come out of the Clean Trucks program should maximize the local impact here in the Wilmington, Carson, West Long Beach, the South Coast air basin area.”

Schrap also advanced the idea that truck container fees could result in massive job loss, with freight to other ports. But, “The evidence presented doesn’t show that,” said EarthJustice attorney Adrian Martinez. “What we’ve seen in the past year is that thousands of dollars have been added to shipping containers and there’s 70 plus ships outside our harbor.” This isn’t the first time, he noted. “A lot of times during the debate this hyperbole gets put forward that the industry is going to collapse, and what we’ve seen from decades of experience is that doesn’t happen. There’s going to continue to be a robust industry in the region. ”

Martinez went on to make another spending suggestion. “The ports need to look at funding transformative programs, like putting up larger amounts to companies that are willing to get to zero emissions, willing to be responsible to their drivers, and do some large-scale 50 to 100 to 500 trucks operations.”

Jesse Marquez, founder of the Coalition for A Safe Environment, made a related proposal, to focus near-term on truck short-haul service companies. “There are currently 18 zero-emission trucks that are currently available to service up to 200 miles,” he pointed out.

The workshop proceedings are being summarized by Janine Hamner Holman, the consultant who ran the workshop, and will be presented to the boards in advance of considering a draft proposal for the truck fee tariff. No date has yet been set, but action is expected within the next two months.