Slip Slidin’ Away? Truckers’ Fall Short in Bid to Overturn California’s Dynamex Standard (Plus: Bonus Quiz for Paul Simon Fans)

Truckers Western States dynamex independent contractor misclassificationIt seems a little presumptuous that when Paul Simon released the single, “Slip Slidin’ Away,” he released it as one of two new songs on his 1977 Greatest Hits, Etc. album. How is it a greatest hit before it’s been released? But sure enough, the song rose to #5 on the Billboard charts. Today’s Challenge: Ten bonus points will be awarded to anyone who can name the other new song that debuted on Simon’s 1977 Greatest Hits, Etc. compilation. The answer is at the end of the post.

In July, we wrote about “Convoy,” a 1975 song about a fictional trucker rebellion, as a way to introduce a new lawsuit filed by the Western States Trucking Association. The lawsuit seeks to invalidate California’s burdensome ABC Test (the Dynamex test), which is now used to determine who is a contractor and who is an employee under California wage and hour law.  The truckers argued that the law — as applied to truckers — was preempted by federal laws that seek to promote uniformity in the interstate transportation industry.

Based on a recent decision in a California federal court, the truckers’ hopes of invalidating Dynamex may be Slip Slidin’ Away.

On March 29, a judge dismissed the truckers’ lawsuit. The court noted that Dynamex applied to all California Wage Orders, not just those that cover truckers. The court also noted that the Dynamex ABC Test had only an indirect effect, if any, on any carrier’s “price, route, or service,” which is the scope of state laws that would be preempted by the Federal Aviation Administration Authorization Act of 1994 (the FAAAA). 

The truckers made some other arguments too, but the court rejected them all, finding that it does not violate federal law for California to apply a strict ABC Test for determining whether truckers are employees or independent contractors.

All hope, though, might not be lost. Another federal court in California found in a different trucker case that there was FAAAA preemption, and the First Circuit Cout of Appeals has also ruled that the FAAAA preempted a state law ABC Test from being applied to truckers. [For more, read fn 5 on page 19 of the decision.]

This decision is likely to be appealed to the Ninth Circuit Court of Appeals. Depending on how the Ninth Circuit rules, there could be a circuit split that calls for the U.S. Supreme Court to break the stalemate between the Ninth Circuit and the First Circuit. So maybe the truckers’ claims are not completely Slip Slidin’ Away, but there’s definitely some slippage.

And now for the real reason you’ve stuck with me for the complete post. The answer is…

Stranded in a Limousine.”  

If you got that one, you must be a real Paul Simon fan.  Your ten points are well-earned. I am sure you will spend them wisely.

© 2019 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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