Two days after the California Trucking Association (CTA) filed its AB 5 case petition with the U.S. Supreme Court, truckers can't be 100% confident the court will take up the association's request. It was filed late in the day Monday, August 9, for reconsideration of the Ninth Circuit's Spring ruling on California's AB 5 contractor law.
Speaking at the annual CCJ Symposium event in Birmingham, Alabama, Wednesday, CTA CEO Shawn Yadon and attorney Greg Feary, president and managing partner of Scopelitis, Garvin, Light, Hansen and Feary, underscored the odds the CTA is up against.
Of a rough average of 2,000 petitions sent to the high court in any given year, Feary said, the Supreme Court only addresses "90 to 100 in [the court's] session, and if there are 100 more compelling issues than this" in the view of the court this year, truckers may be "out of luck."
It's hard to be confident presented with such odds, though Yadon underscored the importance of the issue at hand by illustrating his belief that, if taken up by the high court, CTA's argument is likely to prevail. "We feel strongly that we are protected by federal preemption and [AB 5] should not apply to the trucking industry," he said. "This is of such significance to this industry and independent business owners right now."
As has been previously reported in more places than one, CTA is fundamentally asking the court to rule that the Federal Aviation Administration Authorization Act's prohibition on state laws that impact "prices, routes or services" of motor carriers should preempt application of the ABC contractor test that AB 5 codified in 2019.
Multifactor tests used in most analyses of independent contractor relationships today, Feary noted, weigh a number of different factors and make the IC/employee determination based on the number of factors on either side of the equation.
With the ABC test, however, all three parts of the test must be satisfied in order for independent contractor status to be supported. The B prong, according to most interpretations, is "the highest hurdle" for carriers to jump, Feary said, given they have to "prove that the owner-operator is not in the same business as the motor carrier" if examined by state agencies or in suits where plaintiffs allege improper classification.
