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  • OTRI.USA
    19.380
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  • TSTOPVRPM.CHIATL
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  • ITVI.USA
    12,852.430
    -2,866.880
    -18.2%
  • OTLT.USA
    3.393
    0.113
    3.4%
  • OTRI.USA
    19.380
    -0.050
    -0.3%
  • OTVI.USA
    12,829.790
    -2,880.510
    -18.3%
  • TSTOPVRPM.ATLPHL
    2.580
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    -4.4%
  • TSTOPVRPM.CHIATL
    3.550
    0.030
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  • TSTOPVRPM.DALLAX
    1.300
    0.010
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  • TSTOPVRPM.LAXDAL
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Legal issuesNewsTop StoriesTrucking Regulation

News Alert: Appeals court denies request to rehear AB5 decision

Mandate lifting injunction could be postponed pending an appeal to the U.S. Supreme Court to hear the case

A decision by a federal appeals court on Monday could allow California to begin enforcing its independent contractor law over the trucking industry in as soon as one week.

In a 2-1 decision, the U.S. Court of Appeals for the 9th Circuit denied a petition filed last month by the California Trucking Association (CTA) for an en banc rehearing of the court’s April decision that removed a lower court’s injunction exempting the trucking industry from the independent contractor law known as AB5. The injunction had been in place since January 2020.

In denying CTA’s request, the appeals court stated that the group’s petition “was circulated to the judges of the court, and no judge requested a vote for en banc consideration.”

As previously reported by FreightWaves, a seven-day clock formalizing the decision reached by the appeals court in April that lifted the injunction – in the form of a mandate from the appeals court – begins when a denial in the en banc decision is handed down.

That mandate, however, could be postponed. In a motion filed hours after the appeals court decision, CTA requested that the court stay the issuance of the mandate until its anticipated appeal to the U.S. Supreme Court to hear the case is filed and acted on.

“If the court is not inclined to issue such a stay, CTA requests that the court at minimum withhold issuance of the mandate until CTA is able to file, and the Supreme Court is able to act on, an application to stay issuance of the mandate,” CTA stated in its filing.

The part of AB5 that is problematic is the so-called B prong. Under that provision, a worker who is hired to perform a function that is at the heart of what the company does — like a trucking company hiring an independent owner-operator of a truck — should be considered an employee. A trucking company hiring an outside accountant, for example, would not fall under the B prong.

In granting the injunction, the district court in early 2020 agreed with the CTA’s argument that AB5 was in conflict with the Federal Aviation Administration Authorization Act, a 1994 law that the CTA argued blocked AB5 because of potential impact on “rates, routes and services.”

The American Trucking Associations, the Western States Trucking Association and the Owner-Operator Independent Drivers Association (OOIDA) all filed briefs with the court in support of CTA’s rehearing request. Their arguments came down to the same fundamental legal logic: that AB5 is a state law that impacts prices, routes and service, which the 1994 Federal Aviation Authorization Administration Act specifically said was not permitted and would be in conflict with the federal rule.

OOIDA further stated that AB5 “eliminates an entire category of motor carriers who rely upon independent owner-operators to do business and, therefore, subverts Congress’s intent to allow the market to dictate how motor carriers provide trucking services, to preserve and strengthen the independent owner-operator driver business model, and to preempt such pervasive state regulation.”

OOIDA also warned that because such a large part of U.S. trucking relies on business going to and from California, “the impact of AB 5 would have a far-reaching and immediate negative effect on a large part of the country’s economy.”

Click for more FreightWaves articles by John Gallagher.

John Gallagher, Washington Correspondent

Based in Washington, D.C., John specializes in regulation and legislation affecting all sectors of freight transportation. He has covered rail, trucking and maritime issues since 1993 for a variety of publications based in the U.S. and the U.K. John began business reporting in 1993 at Broadcasting & Cable Magazine. He graduated from Florida State University majoring in English and business.

3 Comments

  1. I see many essential workers including truck drivers and other gig drivers at homeless shelters and living on the street in group homes run by nonprofit groups in Ontario. Untill trucking companies look after sick or injured truck drivers nonprofits and government has to unfairly paying the bills.

  2. 78% of the 9th’s decisions are reversed when they get to SCOTUS.

    Odds are pretty good that the 9th gets it wrong – again, should SCOTUS take up the case.

  3. Beleaguered truck drivers forced to do piecework rather than be employees have been given a break by US 9th Circuit court. This does NOT affect spot market owner operators (like me) who pick up loads according to market pricing from brokers or similar spot market loads from carriers. This Does affect this fake owner-op situation, where truck lease or sale by carrier is tied to exclusive use of the truck by the trucking company. I have no idea why OOIDA protects this scam industry. California says the latter are actually employees and all social security, health, and other required employees benefits apply to these folks.

    So Court found:
    “The part of AB5 that is problematic is the so-called B prong. Under that provision, a worker who is hired to perform a function that is at the heart of what the company does — like a trucking company hiring an independent owner-operator of a truck — should be considered an employee. A trucking company hiring an outside accountant, for example, would not fall under the B prong.”

    But, brokers and carriers who sell loads on open market to owner operators with their own DOT or CA Motor Carriers would not fall into this category. The trucking company that has lease to own programs for equipment and that put trucking company logo on the door, and require dispatch exclusive to the trucking company, basically are trying to dodge reality that driver is an employee.

    There are a lot of disabled, retired, and homeless truckers out there with poverty level social security checks because trucking companies hood winked them out of government mandated benefits, burdened them with payments for individual Insurance liability protection as way to dodge big lawsuits when accidents happen, and turned them into indentured servants living lives in truckstop parking lot waiting for a load without compensation.

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