California’s passage of Proposition 22 could influence classification of truckers under AB5

Trucks in Mojave Desert
California’s Proposition 22, which was approved in the November general election, took ride-share drivers out of the state’s AB5 law. This decision should be a factor in whether the trucking industry remains exempt from AB5 as well, according to a lawyer involved in key litigation.

Proposition 22, which was designed to push back against AB5 in California for independent contractor drivers such as those at Uber or Lyft, passed comfortably in the Nov. 3 general election.

The role of AB5 in trucking in California remains in the balance as a federal appeals court considers a challenge to an earlier and ongoing preliminary injunction that cited a 1990s-era federal law — the Federal Aviation Administration Authorization Act — as effectively blocking the provisions of AB5 in the trucking sector. Oral arguments in the appeal were heard in early September.

The California proposition that was approved at the polls took ride-share drivers out of the state’s AB5 law. This should be a factor in deciding whether the trucking industry remains exempt from the law as well, according to a lawyer involved in key litigation.

In a letter to the court, Andrew Tauber, an attorney for the California Trucking Association (CTA), which brought the original lawsuit, said the victory of Proposition 22 takes a further whack at the idea that AB5 is a law of “general applicability.” Tauber, an attorney with Mayer Brown, said AB5 was never a law of general applicability, which would cover a broad swath of economic activity. The CTA’s argument is that AB5 was always targeted toward trucking, as well as ridesharing, and is now even more so with the success of Proposition 22.

Tauber noted that the original AB5 included several exemptions for various industries. That list of employee classifications grew with additional exemptions passed in September.

“Now AB5 has been amended yet again and once again rendered even less generally applicable than before,” Tauber wrote in the letter to the court. “After passage of Proposition 22, AB5 is not a generally applicable law — not even in the transportation industry, much less more broadly.”

According to published reports, in his arguments before the appeals court Tauber said the state of California — which is the CTA’s opponent in the case — had argued that AB5 can’t be preempted by F4A because it is a law of general applicability.

In his arguments before the court, Tauber had described that statement as a “false characterization.”

“AB5 is not a law of general applicability,” he argued. “It contains numerous exceptions for numerous industries and professions.” Further, he said, “It specifically targets the trucking industry.”

This was Tauber’s second letter to the court about the matter.

After the California legislature significantly widened the number of jobs performed by independent contractors that could be exempted from AB5, Tauber told the court, “Truck drivers are notably absent from the long list of professions exempt from the ABC test under California law.” That omission, he said, helped make the argument that AB5 is a targeted piece of legislation and is not a law of general applicability.

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