Who Will Listen To These Truckers?

(The truckers protesting at California ports only seek to continue their independent businesses. Is anyone listening?)

The Port of Oakland last week cleared out the truckers that came from throughout the state to protest AB-5— a state law making it more difficult for truck drivers, and other workers, to operate as independent businesses. After threatening truckers with arrest, the Port restricted them to Orwellian-termed “Free Speech Boxes”, constrained spaces out of sight of other workers and visitors.

The protests received none of the political or media support of other area protests. Local media coverage was sparse, and ended soon after the truckers were evicted. The newspapers declined to weigh in with their usual editorial support. The Bay Area mayors, state legislature members, and area elected officials, usually in a rush to appear at any protest, were notably absent.

But before the trucker protest is forgotten, before the state legislature continues on its path of ignoring these truckers (who came to Oakland on their own dime), it’s worth saying a few words about why the protesting truckers should not be forced to close their businesses, and the broader road back to trucking as a middle class job.

The most recent labor market data provided by Brandon Hooker, Senior Research Data Specialist with the state’s labor department, show that as of May 2021, California had 300,510 truck drivers employed on an average day: 179,450 heavy and tractor-trailer truck drivers and 121.060 light truck or delivery services drivers. Among the total pool of drivers, an estimated 72,200 were owner-operators who had their own business, and functioned as independent contractors.

The truckers at the Oakland Port were the independent owner-operators. They are a multi-racial group with leadership from the state’s varied immigrant communities. Many of them started as employee truck drivers. They saved enough or pooled resources to purchase trucks of their own and become independent businesses.

In 2019, the state legislature passed AB-5, that sought to make it more difficult for workers, including truckers, to operate as independent businesses. The law followed a California Supreme Court decision in Dynamex Operations West v. Superior Court that under the guise of clarifying the worker classification standard, significantly overhauled it. AB-5 codified the new worker classification, the three prong test “ABC test”—with the problematic “B” prong that a worker can only be an independent contractor if the work being performed is outside the company’s core business.

At the AB-5 legislative hearings in 2019, truckers showed up in mass to make their case for being allowed to continue as owner operators, but had no success. Enforcement of AB-5 against independent owner-operator truckers was put on hold for a time due to a “preemption” lawsuit filed by the California Trucking Association—arguing that enforcement of AB-5 was preempted by the Federal Aviation Administration Authorization Act. The federal district court granted a preliminary injunction against AB-5 enforcement, but the Ninth Circuit reversed, and finally in late June, the Supreme Court declined to review.

The first trucker protest was held soon thereafter on July 13, at the Ports of Los Angeles and Long Beach— a one day protest which was launched and quickly gained speed through social media. The Port of Oakland protest started the following Monday, July 18 and continued through the week. Hundreds of truckers came from throughout California, and stayed for days before being evicted.

The Port needed to take some action. The protests were blocking the loading and unloading of cargo, and bringing most of the Port operations to a halt. What should have occurred is that the first day or so, the Democratic legislative leadership and local elected officials (all Democrats) should have reached out to the protesters, and at least acknowledged their protest. But this did not happen, and it still has not happened. In the past week since the protests have been shut down, the protesting truckers say they continue to be rebuffed at attempts to meet with local legislators.

The owner-operator model is portrayed by its critics as an exploitative model that should be eliminated. In his influential book on truck drivers, University of Pennsylvania faculty Steve Viscelli describes owner-operators who are barely making minimum wage and/or in debt in their attempts to be owners. A widely-cited report authored by Carol Zabin of the UC Berkeley Labor Center casts a similar critical light on the owner-model, as it shifts risks and costs to the drivers.

The trucking associations and trucking company officials hold a different view. Joe Rajkovacz, an official with the Western States Trucking Association, who drove a truck for 30 years as an owner-operator, lists the reason he and others chose to be owner operators: the independence and ability to drive for multiple companies, the ability to build a business, and the ability to earn far more than they could as an employee driver. Bill Aboudi, a trucking company president, adds any truck driver who chooses to be an employee today can choose among multiple job offers, given the enormous shortage of drivers.

And what of the owner operators themselves? When interviewed they say they want to stay as owner operators, and not be employees. Now, a good number of them probably would be better off as employees: they lack the executive skills to operate as independent contractors. But they want to try to try to be their own businesses—even if they end up as employees. “I have a friend (brother-in-law, neighbor) who started with one truck and now employs other drivers” is a common refrain among the owner operators, especially those from immigrant communities.

“All of us know there are a few bad apples among the trucking companies,” Bill Aboudi acknowledges: companies that don’t make full payments to their contractors, or misuse the classification process. There is a need for industry policing. But there is a path for doing so, even under the existing guidelines of AB-5 and the follow up legislation AB-2257. What has been absent has been a willingness of state government to engage with the companies and owner-operators. Currently, the guidelines as they apply to truckers are murky, leaving both companies and owner-operators in a state of legal limbo and under constant threat of being shut down.

More broadly, the job of trucker needs to be rebuilt in California, as elsewhere. The trucking deregulation of 1980 resulted in driving innovation and new firms entering the field. But it also set in motion a decrease in job quality for many truckers. Forms of re-regulation may be part of the answer: though the these forms will need to be designed by the industry itself—employers, labor and the owner-operators.

Trucking protests of last week are the latest in a series of protests in California by small businesses, during the pandemic and after, that have been shunned by the state’s political and media leadership. The protests do not fit into the prevailing narrative of a benign government and media that know best the interests of California workers. It’s past time that “worker voice”—truckers, beauty shop operators, small construction businesses and many others—begins to mean something.

As has been said of another working class protagonist: “Attention must be paid.”