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.

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

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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.

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Truckers Fight to Preserve Independent Contractor Status, But Appellate Rulings Create Uncertainty

independent contractor driver trucking faaaa

Big Mutha Truckers was a 2002 video racing game in which four sibling truckers compete to make deliveries in fictional Hick County, with the most successful driver inheriting the family business. I had never heard of the game until now, but apparently it  was not very successful and is panned thoroughly by whoever spent precious life-minutes writing a comprehensive Wikipedia entry about this game, time that the author sadly will never be able to recover.

The real life trucking industry has its own problems, and they extend far beyond Hick County. The independent contractor owner-operator model, which has been common in the transportation industry for decades, is under attack. The situation is most critical on the West Coast, and owner-operator drivers are taking action to protect their livelihood — and their independent contractor status.

The Coalition for Independent Truckers announced the formation of a new Independent Contractor Ambassador program. The program’s mission is to protect the independent contractor/owner-operator model in the trucking industry. It aims to educate policymakers, the media, and the general public on the value of the independent  contractor model.

Three recent court decisions will it more difficult for these drivers to preserve their independent contractor status.

Last week, the Third Circuit Court of Appeals ruled that Illinois* state wage laws may be applied to professional motor carrier drivers, even though federal law is supposed to override state laws that are “related to” motor carrier prices, routes, or services.

Earlier this month, The Ninth Circuit Court of Appeals ruled that California’s meal and rest break laws may be applied in the motor carrier industry, despite federal law that seems to pre-empt state law in that field.

The Federal Aviation Administration Authorization Act (FAAAA) prevents states from enacting laws that are “related to” motor carrier prices, routes, or services. It seems hard to imagine that California’s mandatory meal and rest breaks (at issue in the 9th Circuit case) would not affect services and routes. Illinois wage law (at issue in the Third Circuit case) seems like a closer call.

Other federal courts have ruled that states cannot apply their wage and hour rules to motor carrier drivers because of FAAAA preemption. For example, a the First Circuit Court of Appeals previously ruled that Massachusetts’ ABC Test could not be applied to owner-operator drivers, since the state law test was preempted by the FAAAA.

But these new decisions from the Third and Ninth Circuits go the other way, saying that the state laws at issue do not sufficiently “relate” and therefore are not preempted by the FAAAA. These rulings create uncertainty and inconsistency across the industry, with different rules applying to interstate drivers in different locations. That’s what the FAAAA and other federal transportation laws aim to prevent.

This is an issue to watch. The Supreme Court may soon be called upon to resolve the circuit split. The national transportation industry relies heavily on the use of independent contractor owner-operators. These two appellate decisions make it increasingly difficult for legitimate independent contractor owner-operators to maintain their independent contractor status. Instead, these professional drivers may be subjected to reclassification as employees under some state laws, despite working in an industry that federal law tries to pre-empt,

Keep an eye on this one. Unlike Big Mutha Truckers, this saga will not be derailed by “repetitive gameplay, dated graphics, and lackluster sound.”

*Not an error. Yes, the case was decided in the Third Circuit, even though it relates to Illinois law.

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

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Does California’s ABC Test Violate Federal Law? Truckers Sue, Saying It Does

Trucker Dynamex ABC Test California

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 Continue reading