Battle over the classification of drayage drivers' latest skirmish is a suit against XPO

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The issue of the legal status of drayage drivers saw another class action lawsuit filed this week, this one against XPO, which has settled at least a pair of earlier such lawsuits in recent years.

At the center of the suit, and other actions taken not only against XPO but other companies, is whether drayage drivers are employees of the companies they work for--exclusively, according to the truck drivers who filed suit against XPO--or whether they are independent contractors, which is the current status of drayage drivers serving XPO and others. 

The most recent suit was filed by three individual drivers, seeking class action status, against XPO; Jeffrey Trauner, who is the company's director of drayage operations in the Los Angeles area; and 100 "John Does," unidentified XPO executives involved in the XPO drayage. They are accused of "willfully misclassifying their truck drivers...as independent contractors instead of affording them their true status as employees, thus denying these workers the basic wage-and-hour rights and protections guaranteed to employees."

The lawsuit was filed on behalf of the drivers by the firm of Bush Gottlieb, which specializes in representing unions. The description of the suit described in the company's press release is that "XPO drivers are still treated as employees by the company because of the level of control that XPO exercises over the drivers. Drivers depend on XPO to provide work and must follow all of the company’s rules. In the end, XPO’s employment arrangement is designed to minimize its costs while maximizing its profits at the expense of its drivers."

Earlier actions against XPO

The drayage driver issue for XPO is not new. XPO settled a lawsuit with drivers for $2.8 million last year, according to both Bush Gottlieb attorney Julie Gutman Dickinson and Top Class Actions, a website that covers class action lawsuits. 

Additionally, a release supplied by Bush Gottlieb presents several other instances where XPO was the focus of legal actions regarding driver classification. It cites an ongoing case, still in appeal to the 9th circuit of the U.S. Federal District Court, where the Long Beach office of the California Division of Labor Standards Enforcement (DLSE) found XPO had misclassified five drivers. Bush Gottlieb also cited a second decision before that same board regarding four employees the board said had been misclassified. That appeal is in a state court. Also, according to Bush Gottlieb, there are pending actions in front of the DLSE that had their hearings at the end of January. Actions in front of the NLRB were also cited by Bush Gottlieb.

Dickinson said the earlier actions have not led to any change in XPO policies. "They can continue to violate the law with impunity," she said. "The labor commissioner can not herself order a reclassification of the employees. So XPO continues to pay out the judgments and still misclassify their employees."

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What Dickinson said would be different with this lawsuit is the request that XPO be permanently enjoined from what it has been doing. The request for relief in the lawsuit seeks "preliminary and permanent injunctions enjoining and restraining defendants from continuing the unfair and unlawful business practices...and requiring the establishment of approprpiate and effective policies, procedures and practices in place to prevent future violations."

The other accusations in the suit include charges that the company failed to pay drivers for missed rest periods, provide sufficient meal breaks and paid a wage that ultimately did not reach minimum wage level. But the overarching charge is that by any standard, the drayage drivers are XPO employees. The cargo the drivers carry is that of XPO customers, "kept inside huge containers bearing (XPO)'s name." 

XPO: Contractors like current situation

XPO's official statement on the lawsuit was short. “We know the vast majority of port drivers value their independence as contractors," the company said. "We continue to believe in this industry model.”

XPO has noted at other times that the contractors that drive at the ports have plenty of opportunities to work full-time, either in other XPO positions throughout the company or with other companies, all of whom are desperate for drivers today. Others have cited the example of Hub Group, which switched its drivers to an employee model and wound up closing its Los Angeles-Long Beach port, citing employee costs. 

The suit against XPO is at least the third action this month over the issue of drayage drivers. Earlier, Los Angeles City Attorney Mike Feuer charged that three companies--CMI Transportation, K&R Transportation California and Cal Cartage Transportation Express, all part of NFI Industries--had misclassified its drayage drivers. And last week, the Long Beach City Council jumped into the issue with a series of resolutions requesting certain government actions.