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Scopelitis in the News: "Trucking industry report was inaccurate." July 2, 2017, IndyStar

by Gregory M. Feary

July 2, 2017

Trucking industry report was inaccurate
Published in IndyStar at 5:00 a.m. ET July 2, 2017

Having spent 30 years as a practicing attorney at America's preeminent full-service transportation law firm, I am not a casual reader of trucking industry reports. The report published in IndyStar last week called “Rigged” did not announce its bias or proclaim itself as an editorial — it was held out as investigative journalism. In reality, it was a one-sided depiction of independent trucking contractors, which I know to be a vital, multi-faceted small-business segment where one-truck entrepreneurs thrive.

Trucking industry business owners work hard to keep the entrepreneurial spirit of the industry alive for the next generation of trucking industry leaders. Their leadership was mischaracterized via claims that apply to a minority of misguided trucking company managers. It appears “Rigged” is founded upon narrative from a biased sampling of disgruntled drivers, ill-advised trucking managers, politically tilted judicial and regulatory outcomes, and predatory plaintiffs’ attorneys.

A few major points on the thriving nature of the industry omitted in “Rigged”: America has about 3.5 million truck drivers. There is a shortage of truck drivers well in excess of 100,000. Trucking companies have job openings for employee truck drivers at a rate far in excess of the demand for independent contractors. Most independent contractor truck drivers have the option to work as employees but intentionally choose a different path. Many — admittedly, not all — are rewarded for their decision to take on hard work, informed decisions, and long-term dedication. Based on a 2015 California Trucking Association-Inland Empire Economic Partnership study that drew from a cross section of independent truck drivers, independent contractors operating heavy tractor-trailers reported average annual earnings between $30,000 and $106,000, after paying business expenses. The report found median net earning was in excess of $55,000. For the same geographical region in California, median annual pay for employee drivers was about $40,000. All of this considered, it seems a stretch to say that port trucking companies press port truckers into what “Rigged” suggests is tantamount to servitude.

Under every state’s law — including California — truckers can be independent contractors. “Rigged” proclaimed that, as a result of “97% of cases heard” favoring employment status (an assertion devoid of adequate context), “port truckers in California can’t legally be classified as independent contractors.” This statement is simply incorrect. It even ignores that some truckers in those same “cases” were found to be independent contractors; it ignores that the majority of truckers acknowledge their independent business status without challenging it; and it ignores that California has no law suggesting truckers cannot be independent contractors. Rigged never mentions the fact that the California Department of Labor has been using a boiler-plate prewritten decision, case after case, to proclaim truckers are employees, a seeming departure from due process in California. The apparent departure from due process should have merited a mention.

“Rigged” alleges that port trucking companies forced truck drivers to pay for the $2.5 billion under the Port of L.A.’s “clean truck program.” It fails to mention that the 9th Circuit Court of Appeals – a court hardly known for supporting independent entrepreneurship in trucking – struck down the Port of L.A.’s mandate that only employee truck drivers could access the port. This ruling helped preserve an important segment of port trucking where independent contractors that own and operate their trucks can thrive.

“Rigged” also failed to adequately acknowledge the angle of organized labor on the clean truck program, a program that the unions hoped would generate more dues-paying members. Instead, the story adopted organized labor’s “altruistic” narrative that “the union has for years helped drivers file labor complaints and lawsuits.”

While a compelling story, “Rigged” is an inaccurate portrayal. Certainly, claims are made by workers in many industries, including the trucking industry, and many are valid, revealing wrongdoing and abuse. However, “Rigged” seemed like attempt to piece together a series of outliers to support a half-baked theory that was concocted before research began. “Rigged” quickly became a departure from investigative journalism and instead editorial commentary cloaked as a hard hitting revelation of abuse in America.

Greg Feary
President and managing partner, Scopelitis, Garvin, Light, Hanson & Feary

See the piece in IndyStar's Letters to the Editor section (second letter in the list):