U.S. Supreme Courts wants solicitor general to weigh in on AB5

November 15, 2021

Mark Schremmer


The U.S. Supreme Court wants the U.S. Solicitor General to weigh in on the California Trucking Association’s arguments against a state misclassification law before it decides whether or not to hear the case.

In an order submitted on Monday, Nov. 15, the Supreme Court invited the Office of the Solicitor General to provide feedback on the trucking group’s challenge to California’s Assembly Bill 5. The California Trucking Association contends that the controversial law is in violation of the Federal Aviation Administration Authorization Act and could force the end of the trucking industry’s owner-operator model.

There is no deadline for the solicitor general to respond, but it is expected to take several months. Once the U.S. Supreme Court has the feedback, it will decide whether or not to take the case. The injunction against enforcing California’s AB5 on motor carriers will remain in place until the Supreme Court makes a determination.

“The decision by the U.S. Supreme Court to call for the view of the solicitor general (in the case) validates the critical nature of reviewing AB5’s disruptive impact in the midst of a historic, global supply chain crisis,” California Trucking Association CEO Shawn Yadon said in a statement. “Since the introduction of AB5, the California Trucking Association has worked to protect the more than 70,000 owner-operators in California who choose to work independently because of the freedom, flexibility and business grown potential that this model has afforded them for decades.

“These small-business truckers face irreparable damage should AB5 be enforced.”

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.

The ABC Test:

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 codifies 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 argues 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 against enforcing the state law on motor carriers. In June, the Ninth Circuit denied the California Trucking Association’s petition for a rehearing en banc (by the full panel of judges).

The California Trucking Association then filed a petition to the U.S. Supreme Court, and the injunction remains in place until the U.S. Supreme Court makes a decision.

OOIDA was one of more than a dozen organizations to file amicus briefs in support of the California Trucking Association’s petition.

“OOIDA urges the court to grant the petition for certiorari and settle this issue before the trucking industry must bear the burden of restructuring its workforce across the country to comply with California’s labor policy choices,” the Association wrote in its brief filed on Sept. 10.

Will the Supreme Court hear the case?

The U.S. Supreme Court receives about 7,000 to 8,000 petitions for review each year and typically elects to hear about only 80 of those cases.

However, the decision to ask the solicitor general to weigh in could indicate that the high court has some interest in hearing the California Trucking Association’s challenge. In addition, there has been disagreement throughout the case. The U.S. Southern District Court of California granted the injunction, saying AB5 has “more than a tenuous, remote, or peripheral impact on motor carriers’ prices, routes, or services.” In addition, Ninth Circuit Judge Mark J. Bennett offered a fiery dissent, 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