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In an historic move, the U.S. Department of Homeland Security (DHS) has added the for-hire transportation industry to its list of “essential critical infrastructure workers,” a vital designation for fleet operators amid the COVID-19 pandemic.
The designation comes after The Transportation Alliance (TTA) sent an urgent letter to DHS Acting Secretary Chad Wolf last week.
“Mr. Secretary, in order for us to fight this invisible threat, all private sector transportation companies are at your disposal,” TTA President Tom Arrighi wrote in his March 25th letter. “Each vehicle represents an essential piece of equipment in our nation’s toolbox as we work together to end this deadly virus.”
This is the first time the private sector, for-hire transportation industry has been explicitly named as part of the nation’s critical infrastructure at the federal level. Specifically, the newly added provisions cover:
- Employees supporting personal and commercial transportation services, including taxis, delivery services, vehicle rental services, bicycle maintenance and car-sharing services, and transportation network providers.
- Bus drivers and workers who provide or support intercity, commuter, and charter bus service in support of other essential services or functions.
“We are grateful to Secretary Wolf and his team for this extremely important designation,” President Arrighi said. “To see such swift action means that our affiliated drivers, employees, and teams will be on the street when America needs us most.”
TTA also issued advice to industry operators last week on how to seek “essential” status from governors who have shuttered businesses in their respective states, which can be read here.
The industry’s enormous array of transportation services in the United States is especially vital during the COVID-19 crisis. It includes non-emergency medical transportation for low-income Americans to life-saving medical appointments such as dialysis and chemotherapy; transportation of healthcare workers to hospitals during reduced public transit options; delivery of meals for low-income students; grocery trips for Americans living in food deserts; ADA-compliant vehicle trips for people who use wheelchairs; and numerous other services.
Visit thetransportationalliance.org for more information.
[03.30.20]
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By Matt Daus
Protecting your business from potential lawsuits, claims, or other risks is always essential, but during a period of work—and cash flow—stoppage, a lawsuit, whether frivolous or legitimate, from a disgruntled client or chauffeur could strike a death knell for your business. It’s important that you are aware of labor laws and civil rights issues in order to protect yourself, especially during this pandemic.
Worker Classification Lawsuits & Labor Department Enforcement
Each state differs in how ICs are classified and have standards to determine if the purported employer is exercising control over the drivers. For example, in New York, the determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the method or means by which the worker performs the job. No single factor is determinative, and courts will examine all factors relevant to assessing the degree of control exercised by the purported employer. One factor the courts look at is whether the employer provides equipment or supplies for the worker to use to perform the work. To avoid worker classification issues, businesses whose chauffeurs are ICs should allow them to be absent from work without prior permission. Businesses should review IC agreements; those without should utilize such agreements.
Civil Rights, Employment Discrimination & Consumer Laws
It’s been reported nationwide that drivers are refusing to accept trips from passengers—especially those considered Asian. That’s discrimination. In NYC, it’s key that operators be aware that the city’s Human Rights law makes it illegal for a TLC-licensed driver to refuse service because of a passenger’s actual or perceived “race, creed, color, national origin, age, gender, disability, marital status, partnership status, sexual orientation, uniformed service or alienage, or citizenship status.”
While surge pricing is certainly legal, and may even be appropriate during the pandemic, New York’s General Business Law § 396-r prohibits “unconscionably excessive prices” for essential goods and services during an “abnormal disruption of the market” or other cause of an abnormal disruption of the market which results in the declaration of a state of emergency by the governor.” Transportation providers should review their policies and pricing guidelines to ensure compliance with such anti-discrimination laws, or any provisions enacted during emergencies.
Layoffs
Transportation businesses in all sectors are facing the immense economic pressure to “downsize” their workforce as they reduce services to meet the diminished ridership demands. Before deciding upon a reduction in the workforce, employers should consider whether other, less problematic, measures would achieve the necessary savings. These may include hiring freezes, salary freezes, elimination of discretionary bonuses, or reductions in work hours with proportionate pay cuts. Employers may also consider reducing or eliminating certain fringe benefits and requiring employee contributions to benefit costs. As alternatives to layoffs, businesses could assess whether expected job attrition will address the organization’s needs or permit affected employees to transfer to other vacant positions within the organization to address departmental budgetary issues. Businesses may consider furloughing employees. Furloughs allow for cash savings, while providing the impacted employees with access to benefits. Furloughs are a temporary remedy that allows for fast re-hiring when circumstances improve and also maintains some level of employee morale.
When necessary, layoffs should be appropriately planned. Ordinarily, the Worker Adjustment and Retraining Notification Act (WARN Act) would require advance notice of 60 days. In circumstances such as this COVID-19 pandemic, there is a strong argument that exceptions to the notice requirement apply. Business may consider first terminating employees with substandard performance grades, terminating recently-hired employees during introductory periods before benefits are awarded, or terminating temporary and part-time workers, transferring their duties to existing full-time employees. Finally, to avoid company-wide layoffs, some employers devise early retirement programs or request volunteers for separation with incentives to encourage acceptance such as enhanced severance benefits. Although less drastic, such actions present their own legal complexities and demand appropriate planning to achieve the desired savings and avoid the pitfalls associated with standard layoffs. Care should be given to avoid discriminatory layoffs, including both intentional and unintentional disparate treatment. Severance, in exchange for a release, is recommended.
Click here for an information sheet from the Department of Labor regarding employee rights during these times.
Matt Daus is a partner with law firm Windels Marx and the former commissioner of the New York City Taxi & Limousine Commission. He can be reached at mdaus@windelsmarx.com.
[03.30.20]
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Rockville, Md.—The Transportation Alliance (TTA) is urging companies in the for-hire transportation industry to send a letter to their respective governors asking that their companies be designated "essential businesses" to help during the COVID-19 crisis.
Nine states have already declared transportation companies as "essential businesses." TTA's suggested letter to governors points out that:
- The industry continues to provide paratransit and non-emergency medical transportation (NEMT) to bring those with severe health issues to life-saving doctor appointments. Among these are daily or weekly trips to dialysis centers for people with kidney disease or chemotherapy treatment for cancer patients; the transportation of low-income citizens living in food deserts to grocery stores and pharmacies; transportation for those struggling with substance abuse and mental health issues to the care they require; and services for the disability community with our industry's ample supply of wheelchair vehicles meeting ADA requirements.
- Instead of transporting special needs students, schools are now depending on the industry to deliver subsidized meals to the homes of low-income children.
- Taxi and livery services are increasingly being called upon to offer food delivery from grocery stores and restaurants.
- Given the current trajectory of the virus, ambulance fleets could quickly be overrun with hospital trips. The transportation industry is needed to transport those patients who, while ill, do not require an ambulance.
- Larger vehicles, such as shuttles and buses, are already being used to ferry health care workers to the front lines of the coronavirus battle: our hospitals and health care facilities. These vehicles offer the ability to safely distance passengers per CDC-recommended guidelines.
- Airline and railroad crews continue to need transportation services as they move goods and people across the country.
- As transit services are reduced, the industry helps meet citizens' unscheduled transportation needs.
"In order for us to fight this invisible threat, all private sector transportation companies are at your disposal," the letter reads. "Each vehicle represents an essential piece of equipment in our state's toolbox as we work together to end this deadly virus."
TTA is sending copies of its own letters to the U.S. Department of Homeland Security and the U.S. Department of Health and Human Services seeking federal "essential business" designation for members.
TTA recently joined six other major passenger ground transportation trade associations in signing an unprecedented industry letter to President Trump and Congressional leaders outlining an eight-point plan to rescue their member companies. The request included a broad array of requests such as cash infusions, zero-interest loans, deferments on existing loans, and assistance in opening a pipeline to cleaning products, among others.
Collectively, the industry moves 3 billion passengers a year, approximately the same total number of passengers moved by the equally vital airline industry. Hundreds of thousands of drivers—most of them independent, small American companies—affiliate with transportation companies for their livelihood.
Visit thetransportationalliance.org for more information. The letter template can be found here.
[03.25.20]