New Jersey Gov. Phil Murphy and state Senate President Stephen Sweeney are about the destroy the lives of hundreds of thousands New Jerseyans, and this is not hyperbole.
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TRENTON, N.J. – Assembly Republican Leader Jon Bramnick criticized Democrat efforts to ruin the 'gig economy,' where many people use independent contractor jobs to supplement income.
"This attempt by politicians to re-engineer the gig economy reduces job opportunities for those who, again, need them the most," said Bramnick (R-Union). "These are moms and dads looking to better their income or simply earn enough to afford the high taxes Democrats force them to pay. This one-size-fits-all policy is bad for the New Jersey economy."
Bramnick noted that other than ride-sharing drivers, workers such as truckers, journalists, childcare workers, landscapers, hairdressers, musicians and others could be at risk of losing income.
Here is a link with the most common independent contractors by industry: https: / / payable.com / blog / industries-most-1099-workers.
A freelance writer from South Jersey wrote in the Philadelphia Inquirer how she will have to leave the state or risk losing half her income. Another article on 101.5 noted that many working parents use independent contractor gigs for the flexible hours and supplemental income that address their needs.
Executive Summary: Recently, New Jersey took several steps to severely restrict the use of independent contractors or gig workers in the Garden state. The latest effort is Bill S4204, which creates a presumption of employment status for contractors.
New Jersey bill S4204 will apply to all businesses within the state. In short, the law states that any person who performs a service for remuneration is considered an employee for purposes of all the state’s employment laws, “unless and until it is shown to the satisfaction of the Commissioner of Labor and Workforce Development” that the service provider meets a newly revised ABC test. The bill delegates to the Commissioner of Labor the authority to determine whether a contractor meets the ABC test and is thereby a bona fide independent contractor. Additionally, the bill also revises the ABC test, making it much more difficult for a worker to be considered an independent contractor.
Analysis: S4204 revises the ABC test, keeping the “A” portion of the test intact, but amending the “B” and “C” prongs. All three prongs of the test must be met for a worker to be considered an independent contractor.
A. The first portion of the test, the “A” prong, often is referred to as the control test and reads: “[t]he individual has been and will continue to be free from control or direction over the performance of the service, both under the individual’s contract of service and in fact.” This portion of the test generally refers to who sets the hours of work, the manner in which the work is performed, or where the work is performed. This tends to be the easiest prong for independent contractors to meet.
B. The amended “B” prong seeks to add the proposed italicized language and delete the stricken language and states: “[t]he individual’s service is outside the usual course of the business for which that service is either performed or the service is performed outside all places of business of the employer for which the service is performed.” The revision to the B prong prevents companies from meeting this prong by showing that the service providers performed their work at a different location than the company’s. Rather, now companies must show that the service providers’ businesses are different than the company’s business. So, for example, doctors who contract with a health care group, an attorney contracted by a law firm or a political consultant contracted to a political campaign may not be able to meet the B prong. In terms of the transportation industry, the modification of the B prong test subjects this law to preemption challenges under Federal Aviation Authorization Act (FAAA).
C. Finally the “C” prong was modified to add the following phrase: “The individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the work performed.” Prior to this revision, contractors could meet this prong by simply demonstrating they possessed their own business or company separate from the company with whom they contracted. The bill adds the requirement that service providers must actually be performing the services of their business to qualify for the exemption. In other words, a plumber must be providing plumbing services to qualify for this prong. Conversely, a lawyer who contracts with a university to teach a class will most likely not meet prong C, since he is not providing legal services to the university.
According to a very strict interpretation of the bill’s language, even if service providers meet the ABC test, they could still be considered employees “unless and until” the Commissioner finds otherwise. Technically, this provision could prevent a company in private litigation from asserting a valid defense that a service provider is an exempt contractor and not an employee. Assuming the company meets the ABC test, under a strict interpretation of the bill, the company must still show that the Commissioner has found the service provider meets the ABC test. For “unless and until” the Commissioner does so, the service provider is presumed to be an employee. If the bill becomes law and is enforced in accordance with this interpretation, it likely will face constitutional challenges.
Interestingly, this bill was proposed to mimic the passage of AB 5 in California, which adopted a similar ABC test and garnered much media attention. Ironically, although the California law made it harder for some companies to use independent contractors, the same law actually made it easier for other companies. In California, unlike the New Jersey proposal, the ABC test only applies to non-exempt industries. The law actually eliminated the ABC test for certain exempt industries, allowing them to use the Borello test or economic reality test, which is a much more lenient standard. See, https://www.dir.ca.gov/dlse/faq_independentcontractor.htm. The New Jersey law would not provide for similar exemptions and, if passed, would make New Jersey’s law regarding independent contractors the most restrictive in the nation.
The Bottom Line: If the bill passes, which we predict it will, every company should review all 1099s issued in 2019 to assess the risk with each relationship and determine how to mitigate the risk created by these relationships. It is also recommended that companies review cash ledgers for recurring payments to identify potential hidden contractors. It is expected that entire business models may be impacted by this legislation, and companies should not rely on prior industry practices to assess their state of compliance.
If you have any questions about this bill or the use of independent contractors, please feel free to contact Salvador Simao, firstname.lastname@example.org, the North East Regional managing partner in our New Jersey office. You may also contact the FordHarrison attorney with whom you usually work.
From Sept. 15-21, 2019, inspectors conducted 34,320 commercial motor vehicle inspections as part of the Commercial Vehicle Safety Alliance’s (CVSA) Brake Safety Week and placed 4,626 vehicles out of service after critical brake-related conditions were identified during roadside inspections. The majority of commercial motor vehicles inspected (86.5%) did not have any critical brake-related inspection item violations.
During a roadside inspection, if an inspector identifies critical vehicle inspection item violations, he or she will render the vehicle out of service, which means those violations must be corrected before the vehicle may proceed. 13.5% of the commercial motor vehicles inspected during Brake Safety Week were removed from roadways specifically for brake-related vehicle inspection item violations.
Sixty jurisdictions in Canada and the U.S. participated in this year’s Brake Safety Week. In the U.S., 49 jurisdictions conducted 31,864 roadside inspections and placed 4,344 (13.6%) commercial motor vehicles out of service due to brake-related violations. In Canada, 11 jurisdictions conducted 2,456 roadside inspections and 282 (11.5%) commercial motor vehicles were placed out of service for brake-related violations.
As part of this year’s Brake Safety Week, inspectors also collected and reported data on brake hoses/tubing.
"Inspectors conduct more than 4 million roadside inspections every year and checking brake components is just one element of the inspection procedure inspectors perform on commercial motor vehicles every day," said CVSA President Sgt. John Samis with the Delaware State Police. "This inspection and enforcement event reminds drivers and motor carriers of the importance of properly functioning brakes and spotlights the work done by inspectors, motor carriers and drivers every day to keep our roadways safe by ensuring vehicles are in appropriate working condition."
According to the U.S. Department of Transportation’s National Highway Traffic Safety Administration, highway crash fatality data for 2018, there was a 2.4% decline in overall fatalities, the second consecutive year of reduced crash fatalities. However, conversely, for 2018, large-truck related fatalities increased by 0.9%.
"While we applaud the decrease in the overall number of fatalities on our roadways last year, we’re alarmed by the increase in the number of large-truck-related fatalities," said Sgt. Samis. "CVSA conducts high-profile, high-visibility enforcement events, such as Brake Safety Week, to reduce the number of fatalities occurring on our roadways. Roadway safety is our number one priority and we will continue our efforts to improve brake safety throughout North America."
Brake Safety Week is an inspection, enforcement, education and awareness initiative that is part of the Operation Airbrake Program sponsored by CVSA in partnership with the Federal Motor Carrier Safety Administration and the Canadian Council of Motor Transport Administrators.
The American Transportation Research Institute released the findings of its 2019 update to “An Analysis of the Operational Costs of Trucking.” Using detailed financial data provided directly by motor carriers of all sectors and fleet sizes, this “Ops Costs” research annually documents and analyzes trucking costs from 2008 through 2018. ATRI's analysis provides industry stakeholders with an essential benchmarking tool, and government agencies with input on industry finances necessary for comprehensive transportation planning and infrastructure improvement analyses.
ATRI’s newest 2019 Ops Costs report documents the extremely robust economic environment that carriers and drivers experienced in 2018, but these same economic conditions put considerable upward pressure on nearly every line-item cost center experienced by carriers.
The average marginal cost per mile incurred by motor carriers in 2018 increased 7.7 percent to $1.82. Costs rose in every cost center except tires, with fuel costs experiencing the highest year-over-year growth of 17.7 percent. Not surprisingly, insurance costs saw the second fastest year-over-year growth at 12 percent. As a strategic response to the severe driver shortage that existed in 2018, driver wages and benefits increased 7.0 and 4.7 percent, respectively – representing 43 percent of all marginal costs in 2018.
Repair & maintenance (R&M) costs, at 17.1 cents per mile in 2018, have increased 24 percent since 2012 – a counterintuitive increase given the record sales of new trucks and trailers. From 2012 to 2018, overall motor carrier operational costs have increased more than 11.6 percent – exceeding the 10.8 percent inflation rate for that same time period.
ATRI’s 2019 report again includes an “Industry Sector in Focus” analysis for tank fleet operators.
“ATRI’s 2019 Operational Costs research highlights the extent of the cost increases our industry experienced in 2018. Savvy carriers will continue to use this cost data as a benchmarking tool, and to better educate our customers on the financial and operating pressures our industry faces,” said Jerry Sigmon, Executive Vice President of Cargo Transporters, Inc. “The new 2019 report also gives us important explanations and hints on how to better manage the cost volatility we've been experiencing.”
Since its original publication in 2008, ATRI has received over 16,000 requests for the Operational Costs reports.
On Sept. 26, 2019, at the Commercial Vehicle Safety Alliance (CVSA) Annual Conference and Exhibition in Biloxi, Mississippi, the CVSA Board of Directors voted on and approved a new Inspection Bulletin which outlines tread depth measurement of evolving commercial motor vehicle tires.
The 2019-03 – Evolving Commercial Vehicle Tire Design Tread Depth Measurement Inspection Bulletin explains how to properly measure the tread depth of commercial motor vehicle tires with evolving treads. An evolving tread design is a tread pattern that experiences a significant and noticeable transition in appearance as the tire wears down from the new state to the worn state. As the tread wears, some features disappear, while new features are revealed. This evolution in the tread pattern allows for the balancing and optimization of multiple performance characteristics over the full life of the tire as well as maximum use of all available tread rubber. The bulletin is also available in French and Spanish.
An Inspection Bitz, a one-minute informational video explaining the inspection of an evolving commercial motor vehicle tire, is available online, and can also be accessed through the CVSA member portal and via the 2020 CVSA North American Standard Out-of-Service Criteria app, which will be released in spring 2020.
CVSA reminds all certified roadside inspectors to visit the Inspection Bulletins section of the CVSA website to check that they have the latest versions of all Inspection Bulletins. We want to ensure all inspectors are conducting roadside inspections using the most up-to-date version of each bulletin. The CVSA website will always contain the current version of each Inspection Bulletin which should be used by CVSA-certified roadside enforcement personnel.
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Today is the start of Brake Safety Week, the Commercial Vehicle Safety Alliance's (CVSA) safety initiative focused on the roadside inspection and identification of commercial motor vehicles with critical brake violations. Vehicles found to have critical brake violations, or other critical vehicle inspection item conditions, will be removed from roadways until those violations are corrected.
On Sept. 15-21, CVSA-certified enforcement personnel will be conducting roadside inspections, which include thorough investigation of brake systems on commercial motor vehicles. Inspectors will also pay special attention to brake hoses/tubing, which must be properly attached, undamaged, without leaks and appropriately flexible.
CVSA's brake-focused safety initiatives, such as Brake Safety Week, aim to reduce the number of crashes involving commercial motor vehicles with brake system deficiencies by conducting roadside mechanical fitness inspections and removing commercial motor vehicles with dangerous brake conditions from our roadways. Brake Safety Week is part of the Operation Airbrake Program, sponsored by CVSA in partnership with the Canadian Council of Motor Transport Administrators and the U.S. Department of Transportation's Federal Motor Carrier Safety Administration.
The American Transportation Research Institute today released the results of a new analysis on the safety and productivity impacts of truck driver detention at customer facilities. The analysis is based on over 1,900 truck driver and motor carrier surveys conducted in 2014 and 2018.
ATRI’s analysis found that across the four-year period, detention frequency and length has increased, with negative impacts on driver productivity, regulatory compliance and compensation. Key findings include:
· Drivers reported a 27.4 percent increase in delays of six or more hours.
· Female drivers were 83.3 percent more likely than men to be delayed six or more hours.
· There was a nearly 40 percent increase in drivers who reported that the majority of their pick-ups and deliveries were delayed over the past 12 months due to customer actions.
· The average excessive detention fee per hour charged by fleets was $63.71, slightly less than the average per hour operating cost of $66.65 found in ATRI’s Operational Costs of Trucking.
· The negative impact of detention on carrier revenue and driver compensation may be greater among smaller fleets (<50 power units) with 20 percent reporting that they do not charge for excessive detention in order to stay competitive with larger fleets.
“ATRI's new detention research definitely helps us understand the full financial impact associated with detaining drivers," said Edgar R. McGonigal, chief financial officer of Bestway Express, Inc. “From a safety and economic perspective, this research gives the trucking industry new insight into how both carriers and drivers should implement driver detention strategies.”
The report also documents recommended practices that drivers and carriers believe will improve efficiency and reduce detention at customer facilities.
A copy of this report is available from ATRI at TruckingResearch.org.
The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) today published a notice of proposed rulemaking (NPRM) on changes to hours of service (HOS) rules to increase safety on America’s roadways by updating existing regulations for commercial motor vehicle (CMV) drivers.
“This proposed rule seeks to enhance safety by giving America’s commercial drivers more flexibility while maintaining the safety limits on driving time,” said U.S. Transportation Secretary Elaine L. Chao.
“FMCSA wants drivers and all CMV stakeholders to share their thoughts and opinions on the proposed changes to hours of service rules that we are putting forward today. We listened directly to the concerns of drivers for rules that are safer and have more flexibility—and we have acted. We encourage everyone to review and comment on this proposal,” said FMCSA Administrator Raymond P. Martinez.
First adopted in 1937, FMCSA’s hours of service rules specify the permitted operating hours of commercial drivers. In 2018, FMCSA authored an Advanced Notice of Proposed Rulemaking (ANPRM) to receive public comment on portions of the HOS rules to alleviate unnecessary burdens placed on drivers while maintaining safety on our Nation’s highways and roads. In response, the Agency received more than 5,200 public comments.
Based on the detailed public comments, FMCSA’s proposed rule on hours of service offers five key revisions to the existing HOS rules:
FMCSA’s proposal is crafted to improve safety on the Nation’s roadways. The proposed rule would not increase driving time and would continue to prevent CMV operators from driving for more than eight consecutive hours without at least a 30-minute change in duty status.
In Addition, FMCSA’s proposed rule on hours of service regulations is estimated to provide $274 million in savings for the U.S. economy and American consumers. The trucking industry is a key component to the national economy—employing more than seven million people and moves 70 percent of the nation’s domestic freight.
The public comment period will be open for 45 days.
The Federal Register Notice, including how to submit comments, is available here: https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/regulations/hours-service/474821/nprmfile08-08-2019-131534.pdf
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