Supreme Court Seeks Solicitor General Input on Preemption Challenge to California’s AB 5

On November 15, 2021, the Supreme Court of the United States issued an order concerning the California Trucking Association’s (CTA) challenge to California’s independent contractor law, Assembly Bill (AB) 5. The Supreme Court‘s order invited the Solicitor General (SG) of the United States to file a submission describing the federal government’s position with respect to this case and the question CTA posed to the Court that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts AB 5.

The CTA, which Ogletree Deakins represents in this litigation, obtained a preliminary injunction in January 2020 that enjoined the State of California from enforcing AB 5 against motor carriers.  Earlier this year, the Ninth Circuit Court of Appeals reversed the injunction order but agreed to leave the injunction in place pending the Supreme Court’s review. CTA filed a petition for certiorari (review) this summer. There was strong support for CTA’s petition, with several groups filing amicus briefs that describe AB 5’s anticipated harmful impact to the transportation industry, which comprises a vital part of the economy that relies on motor carriers that use independent owner-operators to provide trucking services.

In the November 15 order, the Court also asked for the SG’s view in a recent Ninth Circuit airline case involving federal preemption of California meal and rest period rules.  It is not uncommon for the Supreme Court to seek the views of the federal government concerning cases that involve federal preemption before deciding whether to grant or deny review.

The SG does not have a deadline to submit the views of the federal government, but it is expected to be several months before the submission is filed. The CTA will also be able to submit a response to the SG’s submission. If the briefing is complete by spring 2022, it is possible the Court will decide whether to grant or deny review before the end of the Supreme Court’s term in late June or early July.  If the Court grants review, it would almost certainly not consider the case on the merits until the next term, which begins in October 2022.

The preliminary injunction against California’s enforcement of AB 5 against motor carriers will remain in place until the Court’s final determination in this matter, which, as noted, will likely be several more months and possibly over a year from now.

We will continue to monitor and report on developments with respect to California’s independent contractor law and will post updates to the firm’s California and Trucking & Logistics blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.