The 1976 song, Convoy, is about a fictional trucker rebellion, protesting the 55 mph speed limit, tolls, and mandatory log books to ensure that drivers limit their hours. The song is full of trucker slang and includes CB conversations among Rubber Duck, Pig Pen, and Sodbuster. The truckers crash road blocks and flee the police and reinforcements from the Illinois National Guard. Here’s a fun little article about how this truckers’ protest anthem became a hit single.

The truckers are protesting again.

On July 19, the Western States Trucking Association filed a federal lawsuit, alleging that the California Supreme Court’s new ABC Test (set forth in the Dynamex case) for determining whether someone is an independent contractor or an employee is illegal under federal law.

The Western States Trucking Association is a trade association of trucking operators. It is common in the trucking industry for individual owner-operators to work as independent contractors, accepting loads for larger trucking companies, for construction projects, and in other contexts. Owner-operator truckers are strictly regulated by the Federal Motor Carrier Safety Regulations (FMCSRs), which allow them to retain their status as independent contractors, so long as they comply with the federal regulations covering a broad range of subjects, including insurance, exhaust, tires, leasing of vehicles, and hours of service.

The federal government has taken steps to ensure uniformity in interstate trucking laws, including (1) prohibiting states from overriding the FMCSRs, and (2) passing the Federal Aviation Administration Authorization Act of 1994 (FAAAA), which prohibits states from implementing any laws relating to the price, route, or service of motor carriers. Despite the word “Aviation” in its name, the FAAAA covers the trucking industry too.

Under Part B of California’s new ABC Test, anyone performing services in the same field as the hiring party would now be an “employee” under California wage and hour law. This new interpretation would automatically convert most trucker owner-operators in California from independent contractors to employees.

The complaint argues that this change violates the FAAAA because the conversion of owner-operators to employees would drastically affect prices, routes, and service in the motor carrier industry. The complaint also alleges that the new test violates aspects of the Supremacy Clause of the U.S. Constitution, in that California is attempting to regulate aspects of interstate commerce (trucking) that can only be regulated by the federal government.

Does this suit have wheels? You bet it does.

In fact, when Massachusetts adopted an ABC Test for determining Independent Contractor vs. Employee, a similar suit was filed and a federal appeals court ruled that the Massachusetts test was illegal, when applied to truckers. The same result should apply in California.

This lawsuit has a strong chance of success. Truckers in California should be able to avoid the Dynamex ABC Test decision, the same way truckers in Massachusetts have been able to avoid it. But we’ll have to wait and see. For now, breaker one-nine, this here’s the Rubber Duck.

© 2018 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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