Warning for California CDL Holders

I just encountered this problem today, one that California CDL holders who continue to live and/or work in California need to be aware of...

In order for coercion of drivers by an employer to commit unlawful acts to be considered constructive termination, there must be an established pattern of employees refusing to submit or put up with such coercion, and resigning or being terminated as a result.

According to California EDD, nearly all commercial drivers are willing to violate the HOS Rules for whatever reasons, and therefor resigning or being terminated as a result of a refusal to be exposed to or submit to said coercion is considered either a voluntary resignation without due cause or a termination based upon employee misconduct (if you complied with the employer's orders for ANY reason and subsequently violate the HOS Rules, the latter will also apply).

Also, an employer may make whatever claims they wish, and not have to prove them, in order to have an employee disqualified from receiving UI benefits. This includes making of new claims against the employee, regardless of their validity.

On July 19, 2010, I accepted a load from my fleet manager at Marten Transport Ltd, which at the time could be reasonably expected to be completed on time and legally, based on the scheduled appointments at the time.

July 20, 2010, I made my first pickup (cheese) and set the reefer unit as required to +30F (normal for this product). I then went to the second pickup. I learned I did not have the correct pickup number for the second pickup, which caused a 90 minute delay in getting me loaded. When it became obvious the delay would cause me to be late for the schedule delivery for 0100 hrs EDT the next morning, I informed my fleet manager of the problem.

Shortly after, I received a correct pickup number, but now we had a temperature issue, as the second product (water based salad dressing) needed to be kept no colder than +40F. Again, another delay, and now I would be hitting Chicago "rush hour" at it's worst enroute to the delivery. I again informed my fleet manager of the problem.

I was told to do my best to get as far as I can, and she would work on a repower or swap to insure on time delivery of my load. It was then I received an appointment change for the delivery, 2 hours outside my 14 hour limit. I then got a message that my load was a "money load," and that my FM could not repower or swap it. I was unfamiliar with the term "money load," so I sent back that I had cheese and salad dressing.

That prompted a phone call from my FM, which I placed on speaker phone (I was driving at the time). I was told "money load" meant that, if I were late, they would have to pay the customer, rather than get paid by them. I explained that I could not legally do the load, nor did I feel particularly safe trying, given I would be hours stuck in traffic and quite tired by the time I cleared Chicago due to all the delays.

That was when she informed me that, I must run legal, but that if I failed to deliver the load on time, I would be delayed several days getting home beyond my home time request. She knew this would cause me serious financial harm, as well as physical harm to my disabled passenger, but I reminded her anyway. She told me to do what I had to do, or she would do what she had to do, because I was making her look bad.

I looked at the situation, particularly that of my passenger, and violated the 11, 14, and 70 hour rules to get the load delivered on time, rather than risk retaliation that would have caused significant harm to myself and my passenger.

The next morning, my FM called me, to thank me for making the appointment on time. It was the first time in over 4.5 years they had ever thanked me for anything. I said we would discuss what happened when I returned to Mondovi on July 22 (my scheduled home time), but that for the time being I did not wish to discuss it because I was very upset at how everything went down.

Due to the Marten's remarkable record of failing to get drivers to where they need to be for home time on time, I did not arrive back in Mondovi until July 23 around noon. While my passenger helped with packing things in the truck, I went to see my fleet manager. I informed her I would resign over what happened. I then went to HR, and told them what happened. All I got back was "this happens all the time and there's nothing that can be done about it." I informed her I was resigning. I then went to Safety, and spoke with a person I was told was the director about what happened. I was again told this happens all the time, there was nothing that would be done about it, etc. I then told her I was resigning.

I believed I would be covered under the "constructive termination rules" because of my track record since 1997 of being 100% in compliance with FMCSA HOS rules, and that the brief time I would be collecting UI benefits would be no issue (I expect to start my new job tomorrow morning).

Unfortunately, the first hurdle I ran into was the bizarre claim to California EDD made by Marten that I was still employed with them. I told EDD that was ridiculous, and that there were several witnesses, three from my family, that could demonstrate otherwise.

California EDD asked me what had happened to cause me to resign, and I explained, in detail, complete with chapter and verse from the "Green Book." I was told I would receive a decision in 7-10 days.

15 days later, I got the decision, by email, telephone, and mail. I am now disqualified from receiving UI benefits because I either resigned without cause or was terminated for misconduct (the former being because of the pattern of HOS violations that is an industry wide issue, the latter because I did violate those hours to protect myself and my passenger).

I was also disqualified for two weeks because Marten claimed I was not actually looking for work. They didn't need to prove this, they just needed to claim that, from 240 miles away, they just knew I wasn't. Never mind I was hitting every job board online, calling employers, sending out resumes, filling out applications, showing up for interviews, and so forth. All that was needed was their word on the matter, and I had a two week disqualification (on top of the permanent one).

According to my telephone conversation with EDD, actually looking for work does not prove I was looking for work. Yes, really.

Also, according to EDD, constructive termination rules do not apply to truck drivers if the majority of them would happily break the law for a few pennies more on their paycheck, and therefor quitting rather than be coerced into violating the law, insofar as truck drivers are concerned, constitutes an act likely to not be taken by others, and hence not a good enough reason to quit.

When I queried EDD as to what constitutes constructive termination for truckers, I was told nothing would constitute constructive termination. A driver may be fired for refusing to violate HOS rules, as well as actually violating them, and both would be considered employee misconduct.

Yes, really.

I will, of course, be appealing this bizarre series of decisions. Yes, I already now have another job, but between Marten's bizarre actions and claims, as well as California EDD's willingness to do whatever it takes to stick it to workers, well, PO'd really doesn't quite describe my current mood. I'm now on a mission, and am seriously motivated. This won't end simply by approving my UI claim any longer, not after the lies, not after the bizarre logic, not after the harm done.

Sorry Marten, I was willing to depart quietly, but no longer.

As for those drivers in California, well, now you know what you are up against. You can fight this, or just be a victim like many in the industry.

As for those who established the precedent behind California EDD's flawed logic, well, I think you know what you can do where. You're giving the government the excuses they need, flimsy though they may be, to make the rest of us miserable.

As for California EDD, I now understand why the current governor wants to reduce your pay to minimum wage, not that you deserve even that much. You expect the general public to feel sorry for you and fight your battles, but where are you when it comes time for you to do so for us?

Oh yeah, PO'd definitely doesn't describe my current mood adequately enough, not by a long shot.

 

The violations are on me, and I accept that, because in the end, the decision, and the reasons behind it, is mine. If there are consequences, they aren't nearly as bad as what I faced that night, particularly when it came to the physical safety of my passenger.

I've debated contacting a lawyer, but have no clue where to begin or look, or if I even have a case worth an attorney's time.

Right now, the focus is on dealing with EDD, if for no other reasons than to get what happened on the record, and to clear the UI disqualification (in case I need it at some future date, Murphy's Law being what it is).

In the interim, I have a new job, with daily home time and weekends off. It's not what I was making a couple of years ago running OTR, but it will be more than what I was making when I left Marten, without the OTR expenses.