California Trucking Association Is One Step Closer to Having the U.S. Supreme Court Review California’s AB 5

Holding true to their statements in June of this year, the California Trucking Association (“CTA”) filed a petition for writ of certiorari, or request for review, before the Supreme Court of the United States (“SCOTUS”) on Monday, August 9, 2021. As previously detailed in our July 2021 article titled, “Truckers Appeal California AB 5 Independent Contractor Limitations to the Supreme Court,” this filing comes after the U.S. Circuit Court of Appeals for the Ninth Circuit declined to reconsider its earlier rejection of CTA’s legal challenge to AB 5 in June of this year.

California’s AB 5, or “gig-worker bill” caused companies who hire independent contractors to reclassify them as employees, with some exceptions. Because many drivers in the trucking industry were classified as independent contractors, it directly affects the entire industry, CTA argues, both inside and outside of California.

Even though CTA filed their petition, hurdles still remain to having SCOTUS hear and decide the case. The Court, which receives thousands of petitions, only elects to hear between sixty to eighty cases each term. The petition will now go forward for consideration at the Justices’ conferences where they will determine whether to take up the case. If so, it would be officially placed on the Court’s docket, including a schedule for full briefing and argument. Typically, the Court is more inclined to take cases that create a split of authorities in the circuits below. On this issue, the CTA asserts in the petition that:

“The 9th Circuit’s holding should not stand…[i]t creates a conflict in the circuits. It rests on a construction of the Federal Aviation Administration Authorization Act of 1994 that departs both from the statutory language and from this court’s approach. It will cause dis-uniformity in national commerce while disrupting the operations both of motor carriers and of owner-operators. And it interferes with the routes, services and prices of motor carriers — just what Congress meant the FAAAA to prevent.”

The CTA filing addresses three key points: (1) the courts of appeal and state courts of last resort disagree about the answer to the question the case poses; (2) the existence of circuit splits on the issue; and (3) the practical significance that AB 5 can have on interstate commerce as a whole – even outside California.

If the Court declines to take the case, the Ninth’s Circuit’s mandate will lift the preliminary injunction and AB 5 will go into effect for motor carriers. If the Court takes the case however, the stay will remain in place until after the Court issues its Opinion on the matter. It is likely to take the Court at least a month to decide whether or not to take the case, because the Justices will not hold their first conference of the term until the end of September. While this move places the AB 5 dispute one step closer to a final resolution, for now it is still a waiting game to see what happens next.