Nominee Announced for Federal Maritime Commission Vacancy

On June 3, the Trump Administration announced an intent to nominate Carl Bentzel to serve as commissioner on the Federal Maritime Commission for the remainder of a term expiring on June 30, and for an additional five-year term expiring on June 30, 2024.  Bentzel previously served as senior counsel on the Senate Committee on Commerce, Science, and Transportation, as well as on the House Committee on Merchant Marine and Fisheries.  Subsequent to his time on Capitol Hill, Bentzel worked as a consultant on energy and transportation policy and projects.

The Bentzel nomination comes after the Senate confirmed Louis Sola, and re-confirmed Daniel Maffei, to the FMC in November 2018.  Confirmation of Bentzel by the Senate would give FMC a full roster of five commissioners for the first time since April 2017.

The FMC is the independent federal agency responsible for regulating international ocean transportation, including licensing and regulation of ocean transportation intermediaries.  The Commission plays a key role in enforcing the Shipping Act and Ocean Shipping Reform Act, and regulating activities at U.S. ports.  The FMC has taken action and is investigating and promulgating recommendations related to detention and demurrage charges at U.S. ports, which is a major issue for many TIA members.

TIA closely follows the activity of the FMC.  For more information, or to get involved with the International Logistics Conference at TIA, please contact Will Sehestedt at [email protected] or (703)299-5713.

New Labor Decision Makes it Easier to Classify Workers as Contractors

By Will Sehestedt, Vice President of Government Affairs

Independent contractor relationships are critically important to 3PLs of all sizes and specializations, so TIA closely monitors all regulatory developments related to this issue. TIA works to maintain up-to-date frameworks and guidance on labor issues on the Members Only side of the TIA website. TIA will also report on any efforts by Congress or the Department of Labor to make changes to the independent contractor tests laid out by the National Labor Relations Act (which governs activities related to union organization) and the Fair Labor Standards Act (which regulates employment relationships for contractors and employees, as well as minimum wage and overtime requirements).On January 25, the National Labor Relations Board (NLRB) issued a decision in the case of SuperShuttle DFW, Inc.This decision (viewable here) revised a test for determining whether workers are independent contractors or employees, which will provide clarity for companies that seek to classify those workers as contractors.  The court decision reversed a 2014 NLRB decision and emphasized the importance of “entrepreneurial opportunity” as part of the independent contractor test.The case under consideration is related to an effort to unionize drivers for SuperShuttle, a shared-ride service, in Dallas. Prior to 2005, SuperShuttle classified workers as employees, including regular hourly wages and other benefits. In 2005, the company changed its business model and required all drivers to sign 1-year Unit Franchise Agreements (UFAs) that expressly characterize the drivers as non-employee franchisees operating independent businesses. These franchisees are required to supply their own vans and to pay SuperShuttle DFW a franchise fee and a flat fee for the right to utilize the brand and dispatch/payment processing software. Franchisees work no set schedule or number of hours per week. These franchisees then operate under the terms of a shared-ride contract signed between the Dallas-Fort Worth International Airport Board and SuperShuttle DFW.In its ruling the NLRB determined that the workers were independent contractors, and thus could not join in union organization efforts, because:

  1. The drivers were free from control by SuperShuttle for most aspects of their work (such as scheduling or setting up dedicated routes with hotels and customers);
  2. The drivers retained all fares and tips earned from customers, and only compensate SuperShuttle DFW for their work by paying the flat fees specified in the UFA;
  3. The drivers made significant investments in their respective businesses by providing the shuttle vans;
  4. SuperShuttle did not perform meaningful general oversight as to how the drivers conducted their daily work; and
  5. The UFA agreement was clear and explicit about the expectation that the drivers and SuperShuttle DFW were entering into an independent contractor relationship.

For more information on this decision or issues related to labor law compliance, please contact TIA’s government affairs staff at [email protected] or 703-299-5700.

Trump Nominees Join Federal Maritime Commission

By Will Sehestedt, Vice President of Government Affairs

On Jan. 23, the Federal Maritime Commission (FMC) welcomed two commissioners following their confirmation by the U.S. Senate. Daniel Maffei of New York was sworn into a term expiring in 2022, and Louis Sola of Florida was sworn into a term expiring in 2023.Commissioner Maffei previously served on the FMC from 2016 to 2018, after taking over the seat of Richard Lidinsky in 2016. The FMC holds jurisdiction over the international ocean transportation system for the U.S., and regulates ocean transportation intermediaries as well as shipping lines, marine terminal operators, cruise lines, and related operators at U.S. ports.Prior to his reappointment to the FMC, Commissioner Maffei served as a professor at The George Washington University’s Graduate School of Political Management. He represented upstate New York in Congress from 2009-2011 and 2013-2015, during which time he was a member of the Armed Services, Science and Technology, Financial Services, and Judiciary Committees. His academic background includes teaching stints at the State University of New York College of Environmental Science and Forestry, and he holds degrees from Brown University, Columbia University and Harvard University.Commissioner Sola previously served on the Florida Board of Pilots Commissioners where he presided over a probable-cause panel for maritime accidents. His background in the private sector includes time with Campers & Nicholson International as an International Ship Broker, and he also served as a consultant with Arden & Price advising and reporting on the handover of the Panama Canal. Commissioner Sola holds a bachelor’s degree in Management from Nova Southeastern University and a master’s degree in International Finance from the University of Illinois. He is tri-lingual and has served as a strategic debriefer for the U.S. Army Intelligence and Security Command and the U.S. Southern Command. The FMC will be Commissioner Sola’s first civil service for a non-defense agency.TIA includes many members who work FMC-licensed ocean transportation intermediaries, or who partner with those intermediaries to move freight to and from U.S. ports. TIA government affairs staff closely monitors news and regulatory developments from that agency to ensure that the voices of 3PLs are represented in any proceeding. For more information, please contact Will Sehestedt at [email protected].

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