The California Trucking Association announced on Wednesday that they are requesting a rehearing over last weeks Appellate Court ruling over having truckers no longer being exempt from the AB 5 worker classification law.
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Truckers were exempted from AB 5, a law that reclassifies many independent contractors as employees, by a Los Angeles County Superior Court Judge shortly after the law came into effect in January 2020. The court found that the law violated the 1994 Federal Aviation Administration Authorization Act (FAAAA), effectively giving independent truckers the right to operate in every state to (1) make uniform federal laws possible for easy interstate commerce, and (2) to create fair competition.
However, the trucker exemption was soon challenged in higher courts by the California attorney general and the International Brotherhood of Teamsters, leading to the exemption reversal last week. The 9th U.S. Circuit Court of Appeals ruled 2-1 that the FAAAA did not block them from being covered under the new law.
The judges were bitterly divided, with two saying that the FAAAA didn’t cover truckers, while the dissenting judge found that the truckers were pre-empted and may now face economic uncertainty.
“The California Trucking Association’s members will now suffer irreparable injury,” noted dissenting Appellate Court Judge Mark J. Bennett last Wednesday.
The CTA quickly reacted, following the ruling last week, trying to find the best option to reverse the Appellate ruling. This culminated in their decision on Wednesday to request an en banc rehearing.
The en banc request
“We continue to stand by our initial claim that the implementation of AB5’s classification test is preempted by federal law and is clearly detrimental to the long-standing and historical place California’s 70,000 owner-operators have had in the trucking industry,” said California Trucking Association CEO Shawn Yadon on Wednesday. “The California Trucking Association will take any and all legal steps necessary to continue this fight on behalf of owner-operators and motor carriers operating in California.”
An en banc rehearing is a rare Appellate Court maneuver where the Appellate ruling itself is brought up to be reheard before all Appellate Court judges on the bench. As the 9th Circuit Court of Appeals is the largest court such court in the country with 29 judges, an approved trucking en banc rehearing would have to bring all 29 together to hear the case.
“En banc rehearings are rare because you need to have such an extraordinary case to have one happen,” explained San Francisco-based lawyer Charlie Higgins to the Globe on Thursday. “You basically need to convince the Appellate Court for an appeal against a ruling made by them. It’s a lot of judges to bring together, so your case needs to be absolute and convincing that it deserves such a big second look.”
“If approved, the trucker en banc rehearing would have 29 Appellate judges rehear the case. Since 2019, the court has only allowed 16 cases to be heard en banc. And considering that 1,200 Appellate decisions are requested to go to an en banc trial each year in the 9th alone, the odds aren’t great.
“Considering the magnitude of this case, it’s likely that it will be heard in a court again to challenge the Appellate ruling, but the odds of it being picked up en banc aren’t great.”
The CTA will likely pursue higher court action, such as through the Supreme Court, if the en banc request is not granted.