To that end, it’s a classic Catch 22; the worker misses out on benefits he would enjoy as a direct employee, but at the same time is not free to undertake additional work and take on extra jobs that he normally would have the freedom to do as an independent contractor.
Plaintiff Jose A. Estrada, 48, launched an overtime pay laws civil suit against Harbor Express Inc. (Harbor Express) in tandem with his older brother Jose I. Estrada, 58, in Los Angeles County Superior Court on May 13 this year. The lawsuit against the trucking firm seeks class-action status, given the potential for benefit to some 400 drivers who have reportedly worked in association with the company since 2009.
The Estradas claim that as drivers working for Harbor Express, they were not granted rest breaks, meal periods or overtime pay in accordance with California overtime law. Independent contractors, as such, are not covered under overtime laws and other statutes as, in theory, they work for themselves. Thus, they can come and go as they please, start and stop when they please, and work as much, or as little as they wish.
However, the plaintiffs in their unpaid overtime lawsuit claim they and other drivers act as direct employees of Harbor Express, driving company-owned trucks exclusively for the firm. The Estrada’s legal counsel notes that a true independent contractor would either own their own vehicle or lease it - together with the freedom and opportunity to take other jobs and assignments.
Lawyers say classifying a truck driver who drives a company vehicle exclusively for an employer as an independent contractor is merely a clever way to circumvent labor laws.
In comments published in the Los Angeles Times (5/15/13), Jose A. Estrada noted that drivers are paid by the load and can make as little as $85 per load. The grueling work and low pay is further compromised, Estrada said in Spanish, by sometimes long delays in leaving the port - delays over which drivers have no control. This reduces the number of loads a driver can undertake in a day, and results in less take-home pay.
“They don’t pay us a penny for the time we wait at the port,” he told the Los Angeles Times, in Spanish. “I live paycheck to paycheck. I don’t have a savings account.”
The frustration felt by the Estrada brothers could be widespread. The Los Angeles Times noted that of the 10,000 registered trucks serving the twin ports of Los Angeles and Long Beach, an estimated 10 percent are considered direct employees of any firm. The majority are either independent contractors correctly and legally classified as such or direct employees misclassified by employers in an effort to circumvent California overtime law.
According to the Los Angeles Times, the State of California, starting in 2008, attempted to crack down on the illegal practice of misclassifying employees as independent contractors. Governor Jerry Brown, at that time serving as Attorney General, filed a handful of overtime pay lawsuits against trucking companies in an attempt to eradicate the practice.
Beyond Brown’s action, the seaports in 2008 ordered a phasing-out of older trucks in an effort to cut down on pollution. Newer trucks would require a retrofit for cleaner-burning. Further, the Port of Los Angeles decreed that trucking companies directly hire drivers as employees, rather than contractors. Trucking companies pushed back against the new measures in a legal challenge, with the US 9th Circuit Court of Appeals striking down the direct employee provision in 2011.
READ MORE CALIFORNIA OVERTIME LEGAL NEWS
The matter, according to the Los Angeles Times, is now before the California Supreme Court, with a decision expected this summer.
California overtime law is designed to protect workers from toiling too many hours without additional pay, as well as meal breaks and rest periods. Overtime laws, as such, do not hold sway for independent contractors. When an employee is incorrectly classified as independent, issues such as unpaid overtime are a common complaint.
The Los Angeles Times references Harbor Express as one of the largest trucking firms in Southern California, with annual sales of $3.6 million, according to business data provided by Dun & Bradstreet, Inc. They list 40 direct employees who would be eligible for overtime pay.