Daily Memo: ECONOMY:

Judge detours cabbies’ drive for minimum wage

Drivers can pursue federal claims, but may find that road dead-ends

LEILA NAVIDI / LAS VEGAS SUN FILE

Taxicabs line up in the staging area, waiting for passengers at McCarran International Airport. Cab drivers say that waiting in line for an hour when business is slow is no different from sitting in an office, and therefore they should not be exempted from the state’s minimum wage boost.

By Liz Benston (contact)

Monday, July 6, 2009 | 2 a.m.

In Vegas, there's no free market for taxis (2-16-2009)
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LAS VEGAS SUN

Nevada’s minimum wage increased this month, entitling workers to receive at least $5.85 per hour, or $7.55 for workers whose employers don’t offer health insurance plans that qualify under state law.

That is, unless you drive a limo or taxi.

A federal judge last month issued a ruling in a landmark class action lawsuit filed by drivers at Nevada’s largest limo company, Bell Trans, that sounds, to the thousands of people who work in Nevada’s tourism-based transportation industry, like a bad joke: Not only can drivers not sue for minimum wages under state law, but the constitutional amendment to raise the state’s minimum wage, approved by voters in 2006, wasn’t intended to remove preexisting minimum wage exemptions, built into state law, for drivers like them.

The order, signed by U.S. District Judge Robert C. Jones, states that voters likely didn’t intend to remove the exemption when they voted for the amendment, which aimed to increase the minimum wage rate and doesn’t mention exemptions or how to handle them.

When business was flush, drivers didn’t think about minimum wage laws. In the recession, with rides and tips harder to come by, limo and taxi drivers say they’ve fallen to the bottom of the labor pyramid — working overtime, in some cases, just to scrape together a couple of hundred bucks a week. Limo and cab companies, new to minimum wage complaints, have fought them.

The companies say state law acknowledges that drivers, like, say, independent sales reps, should be compensated based on productivity (drivers share the money they collect from passengers with their employers) rather than receiving a guaranteed hourly wage, like most workers. Drivers say they’re entitled to the same safety net most other workers have. Waiting in a cab line for a ride that may or may not materialize when business is slow is work nonetheless, just like sitting in an office, they say.

Although he told the limo drivers they don’t qualify under state minimum-wage laws, Judge Jones has allowed the Bell Trans drivers to pursue federal minimum wage and overtime claims.

Bell Trans, through the company’s Las Vegas attorney, Norman Kirshman, declined to comment.

The limo drivers are seeking approval from Judge Jones to appeal the order to the 9th Circuit Court of Appeals in San Francisco and, should that fail, a request that the Nevada Supreme Court decide the matter of whether the constitutional amendment removed the minimum wage exemption for drivers.

Federal minimum-wage law, unlike state law, allows employers to include tips in their calculation of minimum wages — a rule that will prevent many drivers from receiving minimum wage. Federal overtime law, which entitles workers to overtime for more than 40 hours worked in a week, is also less favorable for hospitality workers than Nevada’s overtime law, which requires employers to pay overtime for each hour over eight worked in a day, regardless of whether the weekly total worked adds up to 40 hours.

At first glance, the court order seems unfair to drivers, who have a valid argument, said Bryan Cohen, a labor attorney who wasn’t involved in the case. In fact, Cohen said, it’s a well-intentioned and unbiased, though perhaps unpopular, decision that attempts, for the first time, to clarify Nevada’s needlessly complicated minimum wage law.

“The amendment could have been written more clearly to say that the exemption for drivers is removed — or that it stays. But it didn’t,” said Cohen, a senior associate with Kamer Zucker Abbott. “Neither side stepped up, and they allowed a constitutional amendment to pass that was ambiguous and difficult to interpret.”

Discussion: 8 comments so far…

By Unk

7/6/09 at 5:04 a.m.

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So we have a Federal Judge ruling that a State Constitutional Measure, voted and passed by voters based on the CLEAR intent they wanted no worker in their State to be cheated of at least making MW, is invalid?

Anyhow, for any still confused, the USA is circling the toilet bowl on the way down the drain. These people in power have a mission, and it is to destroy your voice and your country.
By neiman1

7/6/09 at 11:01 a.m.

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The author seems to want the limo and cab companies to UNemploy many workers so the few can make more from the same number of rides. To make the same pot more attractive to the few, she wants to limit freedom to compete for the many.

The author must be a government worker or union representative. She equates sitting in an office as working. That is not allowed in private firms where a profit must occur.
By KillerB

7/6/09 at 11:33 a.m.

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You're right, Liz -- this judge's ruling IS a bad joke. That's what judges do, especially on the federal level. They have their cushy jobs for life and they are completely clueless of the reality the rest of us have to live with on a daily basis just to survive. Until they are put back in touch with that reality, and what their signatures do to us -- until there's a way to hold them accountable by methods out of their control -- nothing will change.

That wouldn't be so bad if they kept to their oaths and the Rule of Law. They rarely do, a direct result of unaccountability. The Honorable Elizabeth Jones of the 5th Circuit was right -- the American Legal System Is Corrupt Beyond Recognition http://www.massnews.com/2003_Editions/3_...

The last word on REALITY for the rest of us -- under the current system you get just as much justice as you can afford. That's what happens when we allow our judiciary to become so corrupt.
By FastTracker

7/6/09 at 5:13 p.m.

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What do the numbers in the accompanying chart mean? For example, presuming the 1,117 trips per medallion cover the entirety of 2008, that averages out (1117/365 days in a year) to 3.06 trips per day. That's way, way, way low. Please, somebody from the Sun explain.
By skerlahdee

7/7/09 at 10:41 p.m.

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What is the current compensation scheme for the taxi drivers? Do they get an hourly wage on top of their commission?

When I drove taxi here in Colorado, the company made us all independent contractors. We got a cut of the total fares, plus any tips. We paid our taxes from that. We paid for our fuel. If we wanted health insurance, we paid for that ourselves also.

I'm not familiar with taxi drivers getting an hourly rate anywhere.

I have also driven as a limo driver, and we got paid per trip, never hourly, unless it was an hourly charter. In that case, we were compensated based on the number of hours the customer used before releasing us. We only got called in to work if there was a job to do.

I'm not clear on where the hourly minimum wage applies to the drivers.
By taxibuzz

7/8/09 at 6:18 a.m.

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This is devastating.
By limodriver5364

7/14/09 at 6:50 p.m.

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yea what a blow to all nevadans i see this being overturned and the judge what is he on he is high or is he being bought off but the challange in on because as a judge you are supposed to go by the law not make up your own the people had passed this not once but twice so it should be overturned and if the other courts dont see this then every admend law is not valied because i assume this is what i was thinking so the diffrence from a contractor and a employee atr two diffrent issues thay call the chauffers a employee because we dont get the 50/50 for the limo and we dont pay for the gas and we dont pay for the inc but what we do get is only when you have a customer you are paid my the hour from the charter and dont get paid to sit at the airport or any other place that the employer has control over you and tell you waht to do and were to do it and thay think it is call pay as you are going no pay as you are not so like i say this law was for all the people not just for the transportation industry so the judge says that nobody can sue there employer in state court not just chauffers and taxie drivers look at the lct magazine under jim luff and he is a owner of a limo companey and read his comments on limozine charters and tours lct magazine and for all the limozine drivers the lawyer name is mark thierman @ laborlawyer.com and # is 775-284-1500 good luck to all
By limodriver5364

7/14/09 at 7:12 p.m.

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to all chauffers in reno or las vegas i urge you all to get on the ban wagon the is a procetion for all of us not just a few and to stop these employers from over hireing and so you and all of us to make a fair liveing i have good days and i have had bad days were i did not get a trip here in reno and there was days were i did nothing but run so this law will work bboth ways if a employer waunt you to work and tell you were to go sit or stage and you dont make at least minnimum wage then he should pay you i suggest you see the what the court had said if you waunt to email me i will send you some comments from others my email is big5364@yahoo.com thnaks and look up lct magazing under jim luff go to limo blog thanks again

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