Is statute ‘severable’?
In granting MDA summary judgment, Casper explained that she was giving the plaintiff exactly what it asked for and nothing more: a declaration that the so-called “B prong” of the independent contractor test, which asks whether an individual is performing a service “outside the usual course of the business of the employer,” is preempted by the FAAAA.
Casper’s ruling left open the question of whether the FAAAA preempted the independent contractor statute in its entirety, or whether that “B prong” could be excised — or “severed” — from the statute. If the latter, companies would have still been on the hook for treating their drivers as employees if they controlled and directed them, thus violating the “A prong,” or if the drivers had not established themselves independently of the company, instead relying on the company as their primary source of business, thus running afoul of the “C prong.”
In both cases argued before the 1st Circuit on Nov. 2 — Schwann v. Fedex Ground Package Sys, Inc. and Remington v. J.B. Hunt Transport, Inc. — U.S. District Court Judge Richard G. Stearns had concluded that the statute was not severable.
But those decisions, along with the MDA ruling, an appeal of which has been fully briefed and should be slated for argument soon, are “heading to some more weighty resolution,” said Boston’s Harold Lichten, who is representing the plaintiffs in Schwann and the Bristol County furniture delivery case, Chambers, et al. v. RDI Logistics, Inc.
“It’s all about to get sorted out,” he said.
Read the full story at Preemption defense may be short lived