AB5 webinar explains how the law will apply to trucking

Explaining exactly how California Assembly Bill 5 will apply to the trucking industry has been a difficult task. However, the California Department of Employment Development took another chance this week.

On September 13, California officials hosted their second webinar on the controversial worker classification law.

AB5 uses the ABC test to determine whether a worker is an independent contractor or an employee.

  • A. That the worker is free from the control and direction of the hirer in the performance of the work, both under the contract for the performance of the work and in fact.
  • B. That the worker performs work outside the normal scope of activities of the hiring entity.
  • C. That the worker is habitually engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.

Opponents of the law argue that it is too restrictive and that Stream B will lead to the end of the owner-operator model of trucking. Previously, the less restrictive Borello test was used to determine whether a worker was an independent contractor or an employee.

Both tests?

As part of Tuesday’s webinar, California officials said both tests will be used in all trucking cases brought before the commissioner of labor.

“They said they were doing this because they recognized there were ongoing legal challenges,” Bryce Mongeon, OOIDA’s director of legislative affairs, told Land Line Now’s Scott Thompson on Wednesday.

“Basically what the state has said is that while it’s all on its own, we’re going to apply both the new test and the old test.”

Especially in the case of port drivers, state officials said the two tests will often reach the same determination.

“But they recognized that there may be cases where the tests diverge,” Mongeon said. “And they said they were going to have to figure out what to do if that happened. So they don’t have all the answers yet, but it was helpful to hear what they were thinking and where they might be heading.

A timeline for the application was not provided, but Mongeon said he interpreted the webinar information to mean it would begin while the litigation was ongoing.

Multi-state employment?

The webinar also provided information on employment in several states. Officials have suggested that AB5 could apply to any driver setting foot in or driving through California.

For example, California officials said AB5 applies if the legal demand, such as minimum wage, is decided under California law. In addition, the State of origin of a driver and a motor carrier is not taken into account when determining applicability.

“We don’t know how it’s going to play out, but I think it indicates it might apply to at least some drivers doing work in California,” Mongeon said. “We won’t know for sure until this is settled by the courts.”

Court case

The California Trucking Association filed a lawsuit against AB5 shortly after it was enacted in 2019. Last month, the district court ended a preliminary injunction that barred enforcement in the trucking industry. .

Although the injunction is officially dead, that doesn’t mean the legal battles are over.

The California Trucking Association has until October 11 to file a new motion for a preliminary injunction. December 2 is the deadline for final briefs regarding another injunction. After that, the court will decide whether to schedule hearings. LL