This Opinion piece appears in the June 26 & July 3 edition of Transport Topics.
I cannot ignore the impact of my experience, and I concede it may result in a bias in this response to USA Today’s June 16 front-page article, “Rigged,” which the Indianapolis Star and likely other papers — affiliated by ownership with USA Today — reprinted on Sunday, June 18.
USA Today provided no similar disclaimer to accompany its “Rigged” story. While holding the work out as “a yearlong investigation,” the story makes no attempt to present a balanced report of the California port trucking industry, much less an even-handed exposé that could have included references to the vital, successful small-business segment where one-truck entrepreneurs have thrived. Instead, the “Rigged” story spins a compelling tale of “modern-day indentured [servitude]” based on a rigged sampling of disgruntled drivers’ “sworn statements” and possibly accurate accounts of misguided trucking managers.
I need not ask if USA Today carefully vetted politically tilted judicial and regulatory outcomes or if it considered plaintiffs’ attorneys and organized labor’s influence, as it is apparent the “Rigged” story succumbs to the sad reality that interesting stories are often born from circumstances that form on the fringe rather than predominate a situation or even an industry segment. I do hope to correct misstatements and offer information the article disregarded or did not find.
Fortunately, under every state’s law — including California — truckers can be independent contractors. The “Rigged” story 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.” However, this “statistic” ignores the fact that some truckers were found to be independent contractors, it ignores the fact the majority of truckers acknowledge their independent business status without challenging it and it ignores the fact that California has no law suggesting truckers cannot be independent contractors.
The story also failed to investigate the circumstances under which these cases were heard. For example, the article made no mention of the fact that California’s labor department has been using a boilerplate prewritten decision, case after case, to proclaim truckers are employees. This seeming departure from due process in California would have merited a few words within the “Rigged” story.
What the “Rigged” story does not say — but was, by the fall of 2011, widely reported in publications such as The Wall Street Journal — was that the 9th Circuit Court of Appeals (i.e., a court hardly known for supporting independent entrepreneurship in trucking) struck down the Port of Los Angeles mandate that only employee truck drivers could access the port. This ruling helped preserve a segment of port trucking where small businesses — i.e., independent contractors — that own and operate their trucks can thrive.
Consider some facts that the “Rigged” story did not include. America has about 3.5 million truck drivers, and there is a shortage of truck drivers well in excess of 100,000. Trucking companies as a whole have job openings for employee truck drivers at a rate far in excess of the demand for independent contractors. In other words, it’s much easier to get a job and succeed as an employee driver than it is to become a successful independent contractor.
While statistics vary, it’s commonly held that about 500,000 independent contractor truck drivers operate in America. Based on a 2015 California Trucking Association-Inland Empire Economic Partnership study — a study drawing from a cross-section of independent truck drivers, rather than from a group of already disgruntled, self-selected or influenced truck drivers, such as those the “Rigged” story referenced — independent contractors operating heavy tractor-trailers report average annual earnings between $30,000 and $106,000, after paying business expenses such as fuel, etc. The reported median net earning was in excess of $55,000 (again, after business expenses). For the same geographical region in California, median annual pay for employee drivers was about $40,000.
The above statistics reveal the fallacy of the “Rigged” story: How could the port trucking companies press the port truckers into what the “Rigged” story suggests is tantamount to slavery when the truckers have so many options available and each is free to choose his/her own career path? Most independent contractor truck drivers have the option to work as employees but intentionally choose a different path — one of entrepreneurship. Many — admittedly, not all — are rewarded for that choice, but that choice requires hard work, smart decisions and dedication over time.
The “Rigged” story does not provide the complete picture. Certainly, claims are made by workers in many industries — including the trucking industry — and many are valid, revealing wrongdoing and abuse. But the “Rigged” story looks far more like an attempt to use the experiences of a small sector of the port trucking industry to paint a picture of the entire industry. And in so doing, the story departs from investigative journalism and enters into editorial commentary — but without the disclaimer.
Scopelitis, Garvin, Light, Hanson & Feary is a transportation law firm based in Indianapolis with offices in Chicago, Washington, D.C., Los Angeles, Chattanooga, Tenn., Detroit, Spokane, Wash., Dallas-Fort Worth, Milwaukee, Mount Ephraim, N.J., Philadelphia, Tulsa, Okla., and Salt Lake City.