Attorneys disclose session scheduled for Saturday to bring both sides together to resolve pay issues for Bell’s Las Vegas chauffeurs.
LAS VEGAS, Nev. — Bell Transportation, the largest transportation company in Nevada, heads to mediation on Saturday after being embroiled in a chauffeur labor lawsuit for nearly at year. The attorney representing the chauffeurs, Mark Thierman, has setup a mediation session to be held Saturday in Las Vegas.
The session will include the plaintiffs specifically named in the lawsuit as well as Bell's attorney, Norman Kirshman. Also participating will be President and CEO Brent Bell and key Bell executives Chip Bell, Lynn Vlahos, and Mark Trafton, Thierman said.
The 10 a.m. meeting is the latest effort to resolve pay issues between Bell Transportation and its chauffeurs. Kirshman on Wednesday called the atmosphere going into the mediation session very good. He acknowledged that both attorneys in the matter are "very sophisticated with these matters," and in a nod to Thierman, Kirshman said, "He has an unbelievably good resume in this type of case.”
Kirshman said the mediator in the case is one of the best in the country: Michael Dickstein, who teaches at Stanford University and has previously mediated cases involving both attorneys with successful results.
The main issue stems from Bell's alleged failure to pay chauffeurs for time spent looking for clients by trolling the cities airport and casinos. Bell pays chauffeurs on a per-job basis but yet acknowledges they are employees by bumping up their pay last July to coincide with a Nevada minimum wage increase. The chauffeurs have used that to their advantage, stating that the mere fact they are paid minimum wage indicates that Bell acknowledges them as employees and not contractors.
LCT previously reported that a federal judge issued a ruling in a class action lawsuit filed by Bell chauffeurs determining that chauffeurs could not legally sue for minimum wages. Bell chauffeurs are sent out scouting for prospective passengers during their assigned shift but do not get paid for their efforts. They get paid only while providing service.
Bell Trans responded in the lawsuit that chauffeurs are “like” independent sales representatives who should be compensated based on productivity rather than receiving a guaranteed hourly wage.
The chauffeurs say they are entitled to the same pay most other workers receive, and claim that sitting in a car in front of a hotel waiting for someone to engage their service is work at the pleasure of the company and therefore worthy of compensation. It is no different than an office worker who is paid while waiting for an assignment or even a fast food cashier who is paid while waiting for the next customer to walk in the door.
According to Kirshman, Bell sees the merit in settling the case before having to address legal issues in court. Kirshman has represented Bell through two generations of ownership and believes a settlement will be reached during the mediation session on Saturday which is closed to the public.
From Bell’s standpoint, the most important matter on the table is having the chauffeurs accept the Motor Carrier Exemption Act, which in Kirshman’s opinion, applies to all chauffeurs employed by Bell. The Act specifically addresses the fact that chauffeurs engaged in interstate transportation and are exempt from overtime. Removing this single issue from the equation, Kirshman says, "would take a huge amount of liability out of the case and facilitate settlement."
Bell’s position is that since most of the passengers it serves arrive at McCarran International Airport from another state, the passengers are engaged in "interstate travel” because they are involved in "the flow of commerce" by booking their hotel rooms from out-of-state points, Kirshman said. Chauffeurs should be subject to the rules of the U.S. Department of Transportation, which has jurisdiction over interstate travel and created overtime rules in the 1970s.
Kirshman also cited the case of Baldonado vs. Wynn in which a court already ruled that labor issues fall under the exclusive jurisdiction of the Nevada Labor Commissioner and not the court system. The chauffeurs have an appeal pending on their case before the San Francisco Court of Appeals.
— Jim Luff, LCT Contributing Editor