Call Today 661.349.9300
Se Habla Español 661.349.9755
Protect Your Driving Privileges Fight Your Ticket With Bigger & Harman Today

California Court Rules ABC Test for Independent Truckers Not Negated by FMCSA Rule

undefinedA CA Court of Appeals dealt a blow to the independent truckers of the state. A lawsuit that challenged CA’s right to apply an ABC test to owner-operator contracts questioned whether Assembly Bill 5 (AB 5) was negated by an FMCSA rule.

The panel of three judges ruled on 19 November 2020 that carriers must abide by AB 5 in their hiring practices; however, this ruling has no bearing on the lawsuit pending in the 9th US Circuit Court of Appeals. 

The California Trucking Association (CTA) versus Becerra case and the preliminary injunction brought by the Southern District Court of CA to bar the enforcement of an ABC test by carriers is still pending.  

What Is AB 5 and Why Are Independent Truckers Upset by It?

Many truckers, Uber drivers, and other freelancers believe the bill designed to help them with additional pay and benefits would actually put them out of work in CA.

In September 2019, CA Governor Gavin Newsom signed into law AB 5, which was set to take effect 1 January 2020. However, the bill intended to provide independent truckers and other contractors with the right to minimum wage, overtime pay, employee benefits, rest breaks, expense reimbursements, and other benefits has instead made it nearly impossible to work in CA as an independent.

AB 5 will require fleet managers and company human resource recruiters to apply a three-pronged test to determine if the characteristics of work would be classified as employment or contracted worker only if these three conditions exist: 

  1. “The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.      
  2. The person performs work that is outside the usual course of the hiring entity’s business.
  3. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.”

This text was quoted directly from AB 5 to avoid confusion or misinterpretation. 

What most independent truckers, freelancers, and owner-operators find difficult to apply is “B.” Most believe it essentially restricts the longstanding independent trucker and owner-operator standard from use within the trucking industry.  

Cal Cartage Transportation is a federally licensed trucking and drayage (short-distance cargo carrier) primarily hauling cargo from the Long Beach and Los Angeles ports. The court justified their ruling mostly due to the rampant misuse of contract drivers at the ports who should be employers. They stated, “two-thirds of California port drayage drivers fall under this category, and rampant misclassification of drivers contributes to wage theft and leaves drivers in a cycle of poverty.”

Even with this ruling, the issue is far from over.

What to Do about Traffic Tickets as an Independent Trucker

Whether you drive as a contractor or employee, one of the most significant distractors is traffic tickets. Speeding, unsafe lane changes, following too closely, red-light tickets, overweight trucks, and several FMCSA hours-of-service (HOS) violations distract you from your primary focus, driving and earning money to support your family.

Most drivers believe their only choice is to pay traffic ticket fines to keep trucking. They know they cannot turn down a load to sit in traffic court for hours waiting for their case to come up, plead not guilty, and come back another day to testify and resolve their “alleged” traffic violation.  

Unfortunately, many learn too late that paying their fine was equivalent to pleading guilty. In their haste to get rid of a railroad crossing violation, they bought themselves a 60-day driver disqualification for a “serious offense” because of an FMCSA rule that does not allow a second chance as an excessive speeding, following too closely, or unsafe lane change conviction would.

Regardless of the citation or alleged violation, consult a CA traffic attorney before deciding to pay a fine or accept an HOS violation. 

CA Traffic Attorneys Who Can Help Resolve a Truckee, CA, Traffic Ticket  

Give us a call. We are Bigger & Harman, APC, (661) 349-9300. Se habla Español (661) 349-9755. We can represent you in court to resolve your traffic ticket or overweight truck from the Donner Pass weigh station. The call is free, and you are under no obligation.  

Email: attorney@biggerharmanlaw.com

References:

The 2019-2021 CA Commercial Driver Handbook.pdf

AB 5Worker status: Employees and Independent Contractors.

The truckinginfo.com articleCalifornia Appeals Court Says ABC Test Not Pre-Empted by Federal Law

The TransportTopics.com articleCalifornia Appeals Court Rules Motor Carriers Not Exempt from AB 5