Solicitor general tells Supreme Court to decline AB5 petition

The U.S. Supreme Court should decline to hear the California Trucking Association’s case against the controversial Assembly Bill 5, the Office of the Solicitor General says.

In response to a request from the Supreme Court, the solicitor general filed a 23-page brief on Tuesday, May 24, regarding the trucking group’s challenge to a state misclassification law known as AB5. The California Trucking Association contends the law violates the Federal Aviation Administration Authorization Act, dubbed the F4A, and could force the end of the trucking industry’s owner-operator model.

“This brief is submitted in response to the order of the court inviting the solicitor general to express the views of the United States,” the solicitor general wrote. “In the view of the United States, the petition for a writ of certiorari should be denied.”

Although the solicitor general suggested denying the petition, the Supreme Court is not bound to the recommendation. The high court will likely make a decision on whether or not to hear the case by the end of June. The injunction against enforcing California’s AB5 on motor carriers will remain in place until the Supreme Court makes a determination.

The history

In 2018, the California Supreme Court’s Dynamex ruling established the ABC Test, which considers all workers to be employees unless the hiring business demonstrates that three factors are established:

A. That the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact.

B. That the worker performs work that is outside the usual course of the hiring entity’s business.

C. That the worker is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.

In September 2019, California’s Senate passed AB5, which codified the California Supreme Court’s decision. The law, which was intended to apply to a variety of industries, went into effect Jan. 1, 2020.

The California Trucking Association sued and the U.S. Southern District Court of California granted the preliminary injunction to stop the state from enforcing it on motor carriers. The trucking group argued that AB5 violates the F4A, which prevents states from enforcing a law or regulation related to a price, route, or service of motor carriers.

On April 28, the U.S. Court of Appeals for the Ninth Circuit ruled 2-1 that California’s AB5 “is a generally applicable labor law” and called for the removal of a preliminary injunction.
The California Trucking Association then filed a petition to the U.S. Supreme Court. The Owner-Operator Independent Drivers Association was one of more than a dozen organizations to file amicus briefs in support of the California Trucking Association’s petition.

Although the Supreme Court has not decided on whether or not to hear the case, it asked the U.S. solicitor general in November to weigh in on the case.

Solicitor general brief

The solicitor general told the Supreme Court that the Ninth Circuit’s decision was correct.

“Although the circuits have reached differing outcomes with respect to F4A preemption of the ABC Test as codified under the laws of various states, those case-specific decisions do not create a conflict warranting this court’s review,” the brief stated. “Moreover, the interlocutory posture of this case and the need to resolve a threshold issue of state law – namely, whether motor carriers and owner-operators may fall within the business-to-business exemption under California law – make this case a poor vehicle to address the question presented. Further review is unwarranted.”

The Ninth Circuit and now the solicitor general contend that AB5 would not have a significant impact on prices, routes or services.

It is unclear whether or not the Supreme Court will hear the case, but there has been disagreement throughout the case. Ninth Circuit Judge Mark J. Bennett offered a fiery dissent in the 2-1 decision, saying the California Trucking Association’s members “will now suffer irreparable injury.”

“I do not agree … that a law like AB5 – which affects motor carriers’ relationships with their workers and significantly impacts the services motor carriers are able to provide to their customers – is not related to motor carriers’ services and thus is not preempted,” Bennet wrote. LL