Dead or Not Dead? Schreiber Lives On, But California’s New ABC Test Is Temporarily Killed for Owner-Operator Truckers

Prison dead independent contractor ABC TestWhen Benjamin Schreiber was sentenced to life in prison for clubbing a man to death with the wooden handle of a pickaxe, he probably expected to die in prison. But then fate intervened. Or did it?

In 2015, Schreiber fell severely ill in the Iowa State Penitentiary and had to be resuscitated five times. Schreiber then filed for post-conviction relief. He argued that he did, in fact, die in prison. Since he had to be resuscitated, he must have died, which means that he had successfully completed his “life sentence” — just before being resuscitated.

The argument failed. The judge ruled, “Schreiber is either alive, in which case he must remain in prison, or he is dead, in which case this appeal is moot.”

The decision did not say how many points Schreiber was awarded for creativity.

Two time zones west of Iowa, the California Truckers Association had better luck in its effort to kill California’s new ABC Test for independent contractor misclassification, at least as far the law applies to owner-operator truckers.

On December 31, a federal judge issued a preliminary injunction, preventing California from applying the new ABC Test to owner-operator truckers.  That means, for now, the question of whether an owner-operator trucker is an employee or an independent contractor must still be determined under the S.G. Borello balancing test in California, not the strict new ABC Test.

This is just a preliminary injunction, not a final ruling, so it is subject to further review even at the district court level, before the inevitable appeal.

The winning argument (for now) is that the law imposing the new ABC Test, Assembly Bill 5, is preempted by the Federal Aviation Administration Authorization Act (FAAAA).  The FAAAA preempts state law that affects the price, route, or service of any motor carrier with respect to the transportation of property.

The federal circuit courts of appeals are split on whether the FAAAA preempts state independent contractor laws as they relate to owner-operators in the transportation industry.  The 7th and 3rd Circuits have held that there is no preemption.  The 1st Circuit has held that there is preemption.

Ultimately, the question is likely to be settled by the Supreme Court.

For right now, the balancing test has been resuscitated for owner-operator truckers, but only a little bit like Mr. Schreiber’s resuscitation.

Hopefully, the stay will remain in effect until the case makes its way up the appellate ladder. And hopefully, dead is dead when it comes to the ABC Test and owner-operators.


© 2020 Todd Lebowitz, posted on, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.

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