Biden continues his war against small business and independent workers

trucks line up at the port of los angeles

Solicitor General urges Supreme Court to reject trucking lawsuit against California’s anti-gig law

A law in California that aims to limit the number of independent contractors now threatens to throw the trucking industry into turmoil as America’s supply chains already struggle to get goods to shelves. The Biden administration’s solicitor general doesn’t want the Supreme Court to touch it. 

“A failure to review the California Trucking Association case would have disastrous results in the state,” he told the Washington Examiner. “If Assembly Bill 5 becomes law, it will destroy the owner-operator model for trucking.”

That would be contrary to the wishes of many owner-operators who “prefer to work as independent businesspeople rather than as employees committed to a single firm,” he argued.

….. [Truckers’ representative Steven Greenhut] added that the law “would force trucks coming into California from elsewhere to stop at the state border — thus driving up the costs of deliveries and imperiling trucking jobs in the state. California has suffered through a long backlog at the ports of Los Angeles and Long Beach, which is caused in part by a shortage of drivers. The courts need to overturn this law, which is not only counterproductive but an assault on workers' ability to choose their own work arrangement.”

Trade publication FreightWaves reported that within the industry, the law is “viewed as having the potential to upend or even obliterate the trucking owner-operator model in the state.”

The so-called ABC Test is part of Assembly Bill 5, which California enacted in 2019. It has proven so hard to make work that the legislature has carved out exceptions for about 100 industries — but not trucking.

“Courts using this test look at whether a worker meets three separate criteria to be considered an independent contractor,” the Legal Information Institute said.

Those criteria are that the worker is “free from the employer's control or direction in performing the work," that the work “takes place outside the usual course of the business of the company and off the site of the business,” and that the worker “is engaged in an independent trade, occupation, profession, or business.”

On the face of it, it’s hard to argue that what independent owner-operator truckers do is “outside the usual course of the business” of hauling companies.

… There is much speculation as to whether the court will take the case up at this time.

On the one hand, several states have some version of the ABC Test. Different circuit courts have interpreted the application of federal law in ways that clash. The Supreme Court often weighs into these “circuit splits” to harmonize the application of federal law.

On the other hand, Scopelitis law firm partner Prasad Sharma told FreightWaves that “anytime the solicitor general recommends denial, it hurts the chances the court will take the case.”