Category: Daily News

After a slow showing early Monday morning, an estimated 400 owner-operators managed to shut down truck traffic at all three terminals at the Port of Oakland to protest California’s controversial independent contractor law, AB5.

By Monday afternoon, the SSA, TraPac and Everport terminals announced there would be no night shift hours as the protesting owner-operators were only allowing around two company trucks per hour into the terminal gates throughout the day. On average, 250 trucks an hour would flow through the terminals on a typical work day.

Matt Schrap, CEO of the Harbor Trucking Association (HTA), who was in Oakland on Monday, lauded the demonstration.

“It was very impressive to see the power of social media on display at the Port of Oakland today,” Schrap told FreightWaves. “We watched the protests grow organically in a matter of a few days and brought together hundreds of individuals who feel they are being disproportionately impacted by this law.”

He said clarification is needed about how AB5 will be enforced and how to ensure owner-operators comply with the law. AB5 seeks to limit the use of independent contractors and largely classify them as employee drivers.

The HTA is a coalition of intermodal carriers serving the three major California ports, including Los Angeles/Long Beach and Oakland.

Oakland protestors, who own their own rigs and currently choose which loads they want to take, don’t want to work as company drivers as many would be forced to do under AB5.

By 8 a.m. PST Monday, the port drivers had successfully blocked the east and west gates at the SSA terminal in Oakland. While the terminal opened a back gate briefly to let company trucks in, owner-operators successfully blocked that access, too, forcing some company drivers to turn around and leave port property and try again Tuesday. Protestors gathered on foot to block company trucks from entering the terminals.

Kimberly Sulsar-Campos, vice president of Oakland-based Iraheta Bros. Trucking, said some owner-operators want to protest again on Tuesday. While the initial protest was planned for three days, nearly 200 port drivers decided on one day at a meeting near the port on Friday.

Iraheta Bros. was founded by a group of owner-operators who wanted to start their own trucking company, she said. The drayage company now has 20 owner-operators who oppose AB5 and want a choice about how to run their businesses.

“We have owner-operators who want to be able to choose when they want to work and don’t want to be company drivers and be told by a company when they will work and decide how much they will be paid,” Sulsar-Campos told FreightWaves.

Some California truckers who move containers in and out of the marine terminals at the ports of Los Angeles and Long Beach participated in a work stoppage Wednesday to protest AB5 and urged the Oakland drivers to stage their own protest as well.

Rafael Quintero, owner of one of the oldest drayage companies that serve the Port of Oakland, attended the protest to support his 10 owner-operators. He called AB5 “an American dream killer” for thousands of minority drivers who immigrated to the U.S. with the dream of owning their own businesses.

Some protesters in Oakland held signs that said, “The 70,000+ owner-operators choose freedom over fear” and “Don’t let AB5 take our freedom.”

Joe Rajkovacz, director of governmental affairs for the Western States Trucking Association, said his members are concerned about AB5’s impact. He said WSTA members seeking legal advice have received mixed messages from attorneys about how to comply with AB5 if the law stays on the books.

Trucks entering the Port of Oakland Monday were largely driven by company drivers from California’s Central Valley. Most owner-operators were in their rigs or personal vehicles, while others stayed home and didn’t pull containers from the port to show solidarity with those protesting AB5.

The Department of Justice filed a multi-million-dollar settlement agreement with Uber Technologies Inc. to resolve a lawsuit alleging that Uber violated the Americans with Disabilities Act. Under the agreement, Uber will offer several million dollars in compensation to more than 65,000 Uber users who were charged discriminatory fees due to disability.

In November 2021, the department filed a lawsuit alleging that Uber violated Title III of the ADA, which prohibits discrimination by private transportation companies like Uber.

According to the complaint, in April 2016, Uber began charging passengers wait time fees in a number of cities, eventually expanding the policy nationwide. The wait time fees started two minutes after the Uber car arrived at the pickup location and were charged until the car began its trip.

The department’s complaint alleged that Uber violated the ADA by failing to reasonably modify its wait time fee policy for passengers who, because of disability, needed more than two minutes to get in an Uber car. Passengers with disabilities may need additional time to enter a car for various reasons. A passenger may, for example, use a wheelchair or walker that needs to be broken down and stored in the car. Or a passenger who is blind may need additional time to safely walk from the pickup location to the car itself. The department’s lawsuit alleged that, even when Uber was aware that passengers’ need for additional time was clearly disability-based, Uber started charging a wait time fee at the two-minute mark.

Under the two-year agreement, Uber has committed to waive wait time fees for all Uber riders who certify that they (or someone they frequently travel with) need more time to get in an Uber car because of a disability. Uber also will ensure that refunds are easily available for anyone who does not have a waiver and is charged a wait time fee because of disability. Uber will advertise the wait time fee waiver program and train its customer service representatives on the waiver program and refund process to ensure that people with disabilities are not charged illegal fees.

Additionally, Uber will credit the accounts of more than 65,000 eligible riders who signed up for the waiver program for double the amount of wait time fees they were ever charged, which could amount to potentially hundreds of thousands or millions of dollars in compensation.

Uber will also pay $1,738,500 to more than one thousand riders who complained to Uber about being charged wait time fees because of disability, and $500,000 to other harmed individuals identified by the department.

This litigation was handled jointly by Assistant U.S. Attorney David DeVito for the Northern District of California and the Civil Rights Division’s Disability Rights Section.

The City of San Francisco generally requires employers to provide employees with paid sick leave based on hours worked in San Francisco. The City also provides its employees with paid sick leave. The City did not have a law addressing paid public health emergency leave. That will change on October 1, 2022.

On March 1, 2022, the Board of Supervisors voted 11 to 0 to place Proposition G on the ballot. And the Proposition has now been approved by 64.44% of City voters.

Starting on October 1, 2022, Proposition G would generally require private employers and the City to provide paid leave to employees for public health emergencies.

This requirement would apply to private employers with more than 100 employees worldwide and would cover only their employees working in San Francisco. The amount of leave provided each year would be equal to the number of hours that each employee regularly works over a two-week period, up to a maximum of 80 hours. This leave can be used only during a public health emergency. A public health emergency includes:

– – a local or state health emergency relating to any infectious disease, as declared by a local or state health official; or
– – when a Spare the Air Alert is in effect.

Employees may use public health emergency leave in several circumstances, including when:

– – the employee or their family member is unable to work due to the recommendations or requirements of a health order addressing the emergency;
– – the employee or their family member experiences symptoms of the disease causing the emergency or tests positive for the disease; or
– – the employee primarily works outdoors and has heart or lung disease, has respiratory problems, is pregnant, or is at least 60 years old when a Spare the Air Alert is in effect.

An employee may choose to use public health emergency leave or paid sick leave in circumstances where both could apply. Any unused public health emergency leave does not carry over to the next year.

With a federal judge in California is poised to rule that it misclassified janitors as contract workers and the D.C. attorney general suing them for wage theft, commercial cleaning company a report in Courthouse News says that Jan-Pro International is now arguing that it’s not in the janitorial business at all.

The Georgia-based company operates as a multilevel franchising scheme, selling cleaning businesses to “Regional Master Franchisees” throughout the nation who in turn sign “unit franchisee” agreements with individuals who perform the actual janitorial work.

Master franchisee middlemen pay janitors only after deducting 4% for Jan-Pro, and the janitors are also required to pay a “franchisee fee” to be allowed to work, from which the master franchisees pass on 10% to Jan-Pro.

“We are in the business of selling and supporting master franchises,” Jan-Pro attorney Jeffrey Rosin said. “There are a lot facts here, a lot of actual facts a jury could hold on to and find that Jan-Pro is not in the cleaning business.”

That argument didn’t appear to sway the federal judge who issued a tentative ruling ahead of Thursday’s hearing that mostly sides with the workers – granting them both class certification and summary judgment on a host of claims that include unlawfully deducting royalties and failing to pay minimum wages or reimburse for supplies, uniforms, and travel time.

In a lawsuit first filed in Massachusetts in 2008, low-wage cleaners accused Jan-Pro of preying on immigrant workers by inducing them to buy cleaning franchises while taking a hefty cut of their earnings as “royalties” and misclassifying them as independent contractors. Claims brought by janitors who live in California were eventually severed and transferred to the Northern District.

In finding for Jan-Pro in 2017, the federal judge applied the employment relationship defined by the California Supreme Court in Martinez v. Combs. Alsup also looked to the high court’s ruling in Patterson v. Domino’s Pizza, which determined that franchisors are not vicariously liable for franchisees’ workplace conduct.

The Ninth Circuit disregarded Patterson when it overturned Judge Alsup in 2019, since it was not a wage-and-hour case but focused instead on a franchisor’s vicarious liability for a worker’s sexual assault.

Then in 2018, the California Supreme Court ruled in Dynamex Operations West, Inc. v. Superior Court of Los Angeles that employers can only classify workers as independent contractors if they can show A) the hiring entity does not directly control the worker, B) the work falls outside the hiring entity’s usual course of business, and C) the worker is “customarily engaged in an independently established trade occupation, or business of the same nature as the work performed.”

The test was written into California Labor Code with the passage of Assembly Bill 5 in 2019.

Judge Alsup was asked to take another look at the case after the Supreme Court ruled that Dynamex applies retroactively. Having done so, Alsup found the janitors are necessary to Jan-Pro’s business under the “B” prong of the Dynamex test.

He also flatly rejected Jan-Pro’s argument that it’s not a cleaning business.

On Thursday, labor attorney Adelaide Pagano, a partner at Lichten & Liss-Riordan, urged Alsup to adopt his tentative decision. “It was exactly on point,” she said. “These cleaning workers are essential to its business and it is not correct for Jan-Pro to suggest it is in a different business than the cleaning franchisees.”

Rosin asked Alsup to reconsider, saying Jan-Pro should qualify for a Dynamex exemption under AB 5, which allows a more permissive standard for determining independent contractor status for a business that is contracted to provide services to another business.

Thursday’s hearing coincides with D.C. Attorney General Karl Racine suing the company over its labor practices, including misclassifying janitors and saddling them with unfair franchise fees.

Regenerative medicine is a new field of medicine in which orthopedic surgeons aim to move away from replacement and toward joint preservation. Using orthobiologics, they plan provide the body with the cells, materials, and stimulation it needs to heal without you ever going under the knife.

According to the report on News-Medical.net, the promise of regenerative medicine in orthopedics is a future where a joint replacement can be delayed for as long as possible, perhaps offering a solution to long transplant waiting lists for other disciplines of medicine. The main debate in orthobiologics is whether the body of evidence currently supports incorporating regenerative medicine techniques into national guidelines and conventional treatment strategies.

Case studies and anecdotal evidence often support orthobiologics (biological substances orthopedics surgeons can use to help the body heal) as a treatment option. However, the size and consistency of available studies are still a problem. There is plenty of evidence to support regenerative medicine techniques in specific circumstances such as osteoarthritis and tendinopathy. Still, a broader evidence base will be required before these treatments are accepted as standard practice in wider orthopedic circles.

The idea behind regenerative medicine isn’t new. More recently, regenerative medicine has focused on the implantation of cells to initiate healing in musculoskeletal structures, with the introduction of modern interventions such as platelet-rich plasma, mesenchymal stem cells, and injections of biomaterials that can induce a healing response.

Modern orthopedic regenerative medicine treatments still struggle to find a place within standard practice and large healthcare organizations, owing to the debate over whether the evidence base currently supports its use. Therapies such as platelet-rich plasma and adipose (fat cell) derived stem cell injections often require patients to pay out of pocket as insurance companies refuse to cover these forms of treatment.

There is, however, a growing number of practitioners who use orthobiologics as part of their standard practice. With a growing evidence base, these practitioners have started to treat conditions such as osteoarthritis and tendinopathy in this way, offering treatments including injection of:

– – Platelet-rich plasma – blood plasma with a high concentration of platelets taken from the patient’s blood.
– – Mesenchymal stem cells – stem cells sourced from fat tissue, bone marrow, and pregnancy-related sources such as the umbilical cord, amniotic fluid, and the placenta.
– – Biomaterials – biological substances such as autologous chondrocytes (cells taken from the patient which produce cartilage), bovine collagen, bone matrix, and proteins.

These orthobiologics are generally considered conservative treatments, meaning they are used as a less invasive alternative to surgery or as an additional option when other treatments have failed.

The popularity of orthobiologics is increasing, in no small part due to media coverage of famous athletes undergoing these procedures – Tiger Woods, Steph Curry, and Raphael Nadal, to name just a few. This may have added to the controversy surrounding regenerative medicine. In these circumstances, therapies were used to treat injuries and aid post-surgical healing – an area with less research backing.

Regenerative medicine holds the promise of delaying and possibly reducing surgical intervention in patients with degenerative joint conditions and musculoskeletal injuries. In the near future, we may see orthobiologics used as a middle-ground for conditions like arthritis, sitting somewhere between conservative treatment (such as steroid injection) and surgery.

In the far future, we may even see a complete overhaul of how we replace joints – moving away from metal and ceramic joint replacements towards biological replacement and regeneration. We can also expect a move towards orthobiologic injection as a preventative measure for degenerative joint conditions.