Hot Topics for the Construction Industry
The Legal and Trucking News You Need. Hot Topics content contributed to United Contractors by Associate Committee members.
LAW
Update on Employee Tracking Devices
On October 31, 2022, National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo issued Memorandum GC-23-02, announcing her plan to “vigorously enforce” existing law and urging “the Board to apply the Act to protect employees, to the greatest extent possible, from intrusive or abusive electronic monitoring and automated management practices.”
Abruzzo asks the Board to adopt a burden-shifting standard under which an employer will be presumed to have violated the Act when its surveillance practices “tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act.” Abruzzo specifically mentions GPS tracking devices, security cameras, and keyloggers. The burden will be on the employer to establish that it had a legitimate business need that could not be met in some other way that was less intrusive on employee rights.
The takeaway for contractors is if you currently have vehicle (GPS) or cell phone tracking devices, you should contact your labor counsel to develop a policy regarding these devices, which may be used if you are confronted with an unfair labor practice charge. In addition, for contractors who have yet to implement tracking devices such as GPS or cell phone trackers, be advised that you will be required to negotiate with the union prior to implementing such new technology.
Thank you, Roger Mason, Esq., Sweeney Mason LLP
TRUCKING-CARB
Advanced Clean Truck (ACT)
ACT Factsheet | ARB Website ACT Regulation
ACT Recap:
- Company and Fleet Reporting – Large employers, including retailers, manufacturers, brokers, and others, were required to report information about shipments and shuttle services by April 1, 2021. Fleet owners with 50 or more trucks were required to report about their existing fleet operations. This information will help CARB to identify those fleets that fall under their requirement for zero-emissions trucks.
- Manufacturers – Manufacturers who certify Class 2b through Class 8 chassis or complete vehicles with internal combustion (diesel, gas, alternative fuels – any engine that “burns” fuel to create energy) will be required to sell zero-emissions trucks on an increasing scale from 2024 to 2035. By 2035, zero-emissions truck/chassis sales would need to be 55% of Class 2b-3 truck sales, 75% of Class 4-8 straight truck sales, and 40% of tractor sales.
Advanced Clean Fleet (ACF)
ACF Factsheet | ARB Websites ACF Summary
The ACF regulation is currently in the draft stages. History indicates that CARB will have this passed in no time. This regulation would apply to the following fleets:
- Fleets performing drayage operations
- Fleets owned by State, local, and federal government agencies
- High Priority Fleets, which are entities with $50 million or more in gross annual revenue and that own, operate, or control at least ONE vehicle with a gross vehicle weight rating (GVWR) greater than 8,500 pounds OR own, operate, or control a total of 50 or more vehicles with a GVWR greater than 8,500 pounds.
The vehicles affected would be medium- and heavy-duty vehicles, off-road vehicles, off-road yard trucks, and light-duty mail and package delivery vehicles.
This regulation will accelerate the transition to zero-emissions medium- and heavy-duty vehicles (ZEVs). Below is the proposed transition schedule.
There is a very good chance that there will not be trucks available to meet all of the above needs; therefore, there is an exemption for cases where a ZEV that meets a fleet’s needs is NOT available for purchase. The ZEV Unavailability Exemption allows fleet owners to purchase a new internal combustion engine and exclude it from the ZEV mileage calculation. There are different regulatory components of the proposed ACF, which can be found on the website listed above.
The most important piece of this is the “High Priority” fleets (Entities with $50 million or more in gross annual revenue and that own, operate, or control at least ONE vehicle with a gross vehicle weight rating (GVWR) greater than 8,500 pounds OR own, operate or control a total of 50 or more vehicles with a GVWR greater than 8,500 pounds) would have to comply with a Model Year Schedule or may elect to use the optional ZEV Milestone Schedule to phase in ZEVs into their fleets:
- Model Year Schedule – Fleets must purchase only ZEVs beginning in 2024 and must remove internal combustion engine vehicles at the end of their useful life as defined in Senate Bill 1.
- ZEV Milestone Schedule (Optional) – Instead of the Model Year Schedule, fleets may elect to meet ZEV targets as a percentage of the total fleet, starting with vehicle types that are most suitable for electrification. The proposed schedule is laid out above.
Thank you, Teresa Dias, Peterson Trucks, Inc.