Four truck drivers working for XPO Logistics and its subsidiary XPO Cartage were awarded $855,285.62 on April 14, 2017 by the California Labor Commissioner.
The decision was issued as Orders, Decisions, and Awards, also knowns as ODAs, following the truck drivers’ filing of wage and hour claims with the California Division of Labor Standards Enforcement.
The drivers allege that the companies engaged in willful contractor misclassification as independent contractors when, in fact, they had always met the criteria for employee status.
Hundreds of port drivers have experienced contractor misclassification and sought justice through this method. The Labor Commissioner’s office is no stranger to issuing determinations in these cases. The four truck drivers in this case were each given an average of $213,821 as their portion of the ODA.
One of the truck drivers, Jose H., described the circumstances of his employment that he says constituted contractor misclassification at XPO for a recent webinar. He said that the company had the customer contacts and relationships, tells him when and where to go for appointments without flexibility, and will not allow usage of vehicle during low volume work time at another location.
Jose also said that XPO charges him for the truck maintenance, fuel and repairs as if it were his vehicle, despite the lack of flexibility in using it.
The truck is clearly marked with the XPO logo, even though Jose is responsible for its upkeep and running. He is refused workman’s compensation if he is injured on the job and disallowed disability insurance as well.
If his and other driver’s roles were accurately assessed and there was out-of-control contractor misclassification, it would be very clear, according to Jose, that XPO was attempting to pass their business expenses onto others.
In this recent ODA, the four truck drivers were paid for non-productive time amounting to about $76,000 of the individual award. This figure, as broken down, included $38,000 in wages and double that amount in liquidated damages.
Non-productive time is defined as down time when business is slow. Typically, this time is spent tending to truck inspection and maintenance, paperwork, and just waiting for dispatch.
According to an article on the Teamsters website, California Assembly Bill 1513, which was passed in 2016, requires companies to pay employees at a piece rate during non-productive time. Of course, if a worker is not an employee, there is no recourse to get this payment.
XPO has appealed prior ODAs by the California Division of Labor Standards Enforcement, but they have been upheld repeatedly.
Since 2011, truck drivers working at the Port of Los Angeles/Long Beach, America’s largest port, have filed more than 800 claims involving contractor misclassification. Of those 800 claims, 300 have proceeded to the point of determining employee status.
These determinations have amounted to a huge return in withheld wages — $36 million including penalties. It is believed that there is a couple of hundred cases backlogged in pending status and another three-hundred undergoing a settlement process or proceeding to court.
XPO truck drivers who believe they have been misclassified as a contractor may be able to seek compensation for themselves. A consultation with an employment attorney is the first step towards resolution.
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If you work as an XPO Logistics delivery driver as an independent contractor, you may be entitled to compensation.
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