From JDSupra, Richard Reibstein discusses the possibility that the United States Supreme Court will consider whether the Federal Aviation Administration Authorization Act (the “FAAAA”) preempts California’s independent contractor statutes, AB5. Richard writes:
SUPREME COURT APPEARS POISED TO REVIEW WHETHER CALIFORNIA IC TEST IS PREEMPTED BY FEDERAL TRANSPORTATION ACT. The United States Supreme Court has invited the Solicitor General of the United States to file briefs expressing the federal government’s views of an independent contractor misclassification case involving the California Trucking Association (CTA) and a number of drivers challenging the enforceability of California’s law creating a strict “ABC” test for IC status. The position of the CTA and drivers is that Assembly Bill 5 (AB5), and its successor AB2257, is preempted at least in part by the Federal Aviation Administration Authorization Act (FAAAA, also referred to as F4A) covering airline and other interstate transportation workers. The CTA and drivers argue that AB5, as interpreted by the U.S. Court of Appeals for the Ninth Circuit in their pending case with the California Attorney General, will effectively destroy the trucking industry’s ability to continue using the independent owner-operator business model. A petition for certiorari was filed with the Court by the CTA and drivers this summer.
The CTA and drivers have argued to the Supreme Court that the Ninth Circuit’s ruling conflicts with decisions of the U.S. Court of Appeals for the First Circuit and the Massachusetts Supreme Judicial Court, both of which concluded that the FAAAA preempts a Massachusetts law that is identical to AB5 to the extent the law is applied to transportation workers covered by the FAAAA. The publisher of this blog has been quoted in an article discussing this case in a Law360 article authored by Linda Chiem, stating: “[T]he dissent[ing opinion in the Ninth Circuit] pointed out that the Ninth Circuit majority’s decision deviates from the First Circuit’s 2016 decision in Schwann v. FedEx, which found that Prong B of Massachusetts’ ABC test was preempted by the FAAAA. The Massachusetts ABC test is virtually identical to the ABC test in California.” While it would not be surprising if the Solicitor General supported the Ninth Circuit’s interpretation, the federal government may try to steer a neutral course on this highly charged issue affecting the entire trucking industry. California Trucking Association Inc. v. Bonta, No. 21-194 (U.S. Sup. Ct. Nov. 15, 2021).