United States Solicitor General’s Office to Weigh in on California Trucking Association’s Challenge to California’s AB 5 Law

In a case that we have been following closely, November held another twist in the storyline of the California Trucking Association’s (“CTA”) challenge to California’s AB 5 law as applied to motor carriers. On August 9th of this year, the CTA filed a petition for writ of certiorari, or request for review, before the Supreme Court of the United States (“SCOTUS”). All eyes have been squarely on the Court ever since as it decides whether to take up the case and set it for argument.

On November 15, 2021, SCOTUS asked the United States Solicitor General’s (“SG”) office to file a brief before they decide whether to hear the case. Commonly, the purpose of the request is for the SG’s office to provide insight to the views of the federal government on the specific case.

The SG is considered the federal government’s representative before SCOTUS. While it is uncommon for the Court to request outside opinion, it is not an uncommon request to the SG’s office, especially in cases that raise questions of federal preemption (where a state law may impede upon federal authority) or where a case deals with general questions of federal law or federal agencies. While the federal government is not technically a party to the case, they are invited, through the SG’s office, to write a brief in either support or denial of the petition for SCOTUS to hear the case.

In this case, the CTA has raised the preemption issue that AB 5 conflicts with the Federal Aviation Administration Authorization Act of 1994, causing national inconsistency to regulations of motor carriers and owner-operators. AB 5 is also at odds with a prior decision regarding a Massachusetts law coming out of the First Circuit, causing a division between the circuits.

To briefly summarize the case to date, California’s AB 5 or “gig-worker bill” forces companies who hire independent contractors, such as drivers, to reclassify them as employees, with some exceptions through what is commonly referred to as the “ABC test.” The CTA filed a challenge to the law in the Southern District of California, and an injunction has been in place to prevent AB 5 from going into effect against motor carriers. However, this ruling was reversed on appeal to the Ninth Circuit. Even though the Ninth Circuit reversed the decision below and lifted the injunction, it did grant a stay of the law pending the CTA’s appeal to SCOTUS.

In a recent statement by Alexander Chemers, who represents the CTA in this challenge, he stressed the importance and relevancy of the case to a present-day problem by pointing to the “delays at the nation’s ports and other issues with the supply chain,” which, he reiterated, highlights the need for national uniformity on this issue – and a decision from the nation’s highest court.

According to the docket entry, there is no set deadline for the SG’s office to submit their brief, so those who have been waiting and watching for a decision from SCOTUS, may be left waiting for several more months. Once SCOTUS receives and reviews the brief, they will once again meet to decide whether or not to take up the case.