A federal appeals court has confirmed the federal exemption from state laws of truck drivers in interstate commerce, even if they handle only one leg of the goods’ journey.
The decision is vital because it upholds the Motor Carrier Exemption (MCE) contained in the Federal Labor Standards Act, say Jeffrey Glaser and Katherine Smallwood, attorneys with the Seyfarth Shaw law firm.
“This decision is a welcome addition to the growing body of case law affirming the application of the MCE to intrastate drivers who complete part of an interstate shipment of goods,” they observed.
The drivers who filed the suit had delivered frozen dessert products from a storage facility in Florida to retail locations throughout that state. The products were manufactured in locations outside of Florida and were transported to a Florida warehouse by a for-hire trucking company.
From the warehouse, another trucking company then loaded the shipments onto shuttle trucks to take them to other locations where they were loaded onto delivery trucks driven by the Rich’s drivers, some of whom had filed the suit.
The drivers’ attorneys said the products’ journey ended at the warehouse because, at the time of shipment, Rich had not received specific orders from the customers who received the products.
A lower court agreed but the 11th Circuit U.S. Court of Appeals rejected this argument, explaining that the company’s “fact-based forecasting” confirmed its fixed and persisting intent, at the time of shipment, that the goods continue on in interstate commerce to the ultimate retail consumer.
Accordingly, the final leg of that journey, which was completed by the drivers who sued, constituted travel in interstate commerce.
Warehouse Space May Open Up
The available supply of U.S. industrial and logistics real estate ticked up slightly in the second quarter, signaling potential relief from a continued tight market for companies seeking warehousing and manufacturing space for expansion, CBRE reports.
CBRE’s analysis found that the availability rate for industrial space across 51 major U.S. markets increased by six basis points (bps) to 7.1% from the first quarter to the second.
In addition, CBRE’s standard updates to recent data resulted in a revision of its first-quarter result to a 2-bp increase from a half-bp decline. This caps the market’s historic run of consecutive quarters of
declining availability at 34 bps.
However, on a year-over-year basis, the availability rate is down 12 bps. CBRE defines availability as the sum of vacant space plus space that is currently occupied but otherwise being marketed for use by new tenants.
“We have long forecast that availability would bottom out and then slowly increase as a natural progression for the red-hot industrial market in the U.S.,” says Dr. Richard Barkham, CBRE head of Americas research and global chief economist.
“In the future this might provide respite for ecommerce companies and other users that have faced many years with scant availability of space. At the moment, though, the market remains quite tight,” he adds.
CBRE notes that over the past year, demand and supply were relatively balanced, with developers delivering 206 million square feet of new buildings and users newly occupying 208 million square feet. “We do expect the factors driving demand to ease slightly in the coming quarters, as economic growth slows,” Barkham says.
NLRB Tightens Union Access
A recent National Labor Relations Board decision makes it more difficult for unions to solicit employees by allowing employers to ban anyone who is not an employee from their premises.
Although a string of Supreme Court decisions have upheld a union’s right to enter an employer’s premises, there are exceptions. The board interpreted these to conclude that the relevant question is whether a union can access employees without entering the employer’s property.
The NLRB reasons that if a union can access employees in some other way, the union does not have an automatic right to access the employer’s property, even if the property is open to the public.
“Thus, even if an employer makes its property open to the general public, the NLRB recognized that the employer may restrict and manage activities on its property even in a way that might prohibit union solicitation,” says attorney William Kishman of the law firm of Squire Patton Boggs.
An employer still may not single out union activity – any ban on third-party solicitors must be non- discriminatory. Even if the employer applies this policy equally against all third-party solicitors, it is unlawful for an employer to implement it only in response to union organizing activities.
As a result, if an employer wishes to prohibit third- party solicitation on its property, it should update its policies proactively instead of waiting until a union organizing campaign occurs.
If an employer implements this type of third-party solicitation ban, it cannot single out union activities when monitoring for violations and should avoid creating the impression of conducting unlawful surveillance on protected concerted activities.
This decision concerns non-employee solicitation, Kishman points out. A different test governs whether employees can be banned from soliciting for a union on an employer’s property. Employees still have a right to solicit in many situations including, among others, when they are on breaks.
