The US Solicitor General filed a brief indicating the Supreme Court need not review a case against California’s AB 5 independent contractor rule. Meanwhile, the Department of Labor will hold public forums to hear employer and employee perspectives on worker classification.
California AB 5. The Solicitor General, the US federal government’s representative before the Supreme Court, on May 24 filed a brief [1] recommending the Supreme Court deny review of the California Trucking Association’s case challenging the application of Assembly Bill 5 (AB 5), California’s get-tough law on independent contractor misclassification.
The California Trucking Association and two California independent owner-operator truck drivers first filed a lawsuit [2] in 2019, arguing that the “ABC” classification test set forth in the Dynamex Operations West Inc. v. Superior Court [3] decision, and codified by AB 5, violates federal law because it is preempted by the supremacy and commerce clauses in the US Constitution and is in direct conflict with the Federal Motor Carrier Safety Act and the Federal Aviation Administration Authorization Act of 1994.
The trial court agreed and granted an injunction prohibiting enforcement of AB 5 with respect to the trucking industry. However, a federal appeals court in San Francisco in April 2021 reversed the decision [4] — ruling that truck drivers in California should be classified as employees rather than independent contractors — but the injunction was permitted to remain in place pending CTA’s appeal to the Supreme Court. In response to CTA’s petition, the Supreme Court invited the Solicitor General’s views on whether it should hear the case.
In response to the Solicitor General’s brief, the CTA on June 3 filed a supplemental [5] stating the government’s stance on AB 5 is “head-scratchingly wrong” and that the law will “upend the operation of the trucking industry.”
Final IC rule. Following the recent reinstatement [6] of the final rule pertaining to independent contractor classification put in place in the waning days of the Trump administration, the Department of Labor plans to engage in rulemaking for determining employee or independent contractor status under the Fair Labor Standards Act.
In a blog post [7], Jessica Looman, the acting administrator for the DOL’s Wage and Hour Division, said the department will hold public forums this month to hear diverse perspectives from employers and workers who may be affected by employee or independent contractor classification. The online forums will be held June 24 for employers and June 29 for workers. Registration is required:
- Employer forum [8]
- Worker forum [9]
Once a proposed rule is published in the Federal Register, there will be a notice and comment period allowing all interested parties an opportunity to review the proposal and provide formal written comments.