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A Trucker’s Guide to Assembly Bill 5

Regardless if you’re a California truck driver or not, you’ve probably heard about the recent employment legislation that could change the entire trucking industry. As of June 30, 2022, Assembly Bill 5 (AB5) is in effect and making sweeping changes throughout the transportation industry. Over the last few months, there has been an excessive amount of news and information surrounding the legislation and the impact it could potentially have. So, what’s the truth about AB5?

We’ve created a comprehensive guide to California’s Assembly Bill 5 that explains the bill and how it will affect truck drivers and the industry.

What is California’s AB5?

In September 2019, the California Governor, Gavin Newsom, signed Assembly Bill 5 into law to provide gig workers with more rights and benefits. Specifically, the law promises gig workers who classify as employees minimum wage with overtime pay, standard employee benefits, expense reimbursements, health insurance, adequate breaks, and other benefits that were not previously promised under California labor laws. So, how do employers determine who classifies as what?

The ruling of AB5 is based on a 2018 California Supreme Court ruling, known as Dynamex Operation West v. Superior Court. The legislation replaced the 11-prong Borello test with a 3-prong test and established that workers were classified as employees unless otherwise proven by the hiring company. The new 3-prong test, known as the ABC test, determines whether a person can be qualified as an independent contractor. 

For a worker to achieve this classification, the following three statements must be true:

  1. The worker is free from direct control or direction of the hiring entity when performing their duties.
  2. The tasks and services performed are outside the hiring entity’s usual business activities.
  3. The worker regularly performs independent services similarly performed for the hiring entity.

If a worker does not meet the three requirements, they must be classified or, in some cases, reclassified as an employee and receive the rights and benefits that come with that title. The problem with the new ABC test is that it has created rigorous standards for employers, and it’s challenging for workers to pass.

Pros and Cons of Assembly Bill 5

The main issue with AB5’s 3-prong test is that it has turned some independent contractors into employees. Specifically, item B poses the most risk to a worker’s livelihood because it states that a person performing any work similar to the company that hired them is presumed to be an employee. If a worker is classified as an employee, they must adhere to new standards that ultimately impact how they perform their job. For instance, while gig workers can choose when and when not to work, employees must abide by a set schedule.

However, the new legislation isn’t all bad. Pros and cons of AB5 include:

Pros:

  • The legislation creates equal opportunities for gig workers and regular employees.
  • Qualifying as an employee entitles workers to benefits and other perks.

Cons:

  • Being classified as an employee could cost workers their flexible schedule.
  • Reclassifying independent contractors as employees could increase prices for consumers.

And while AB5 does not guarantee that hiring entities will eliminate flexible scheduling, employers may exert more control once they begin incurring higher costs of paying employees versus contractors.

How will California’s AB5 impact the trucking industry?

The application of AB5 will undoubtedly impact motor carriers’ prices, routes, and services. On January 16, the District Court for the Southern District of California found AB5 preempted by the Federal Aviation Administration Authorization Act (FAAAA) and urged its application. This ultimately left the independent contractor model unaffected—at the time. The state of California was also pushed to appeal the lower court’s injunction to the 9th Circuit Court of Appeals (CTA). 

However, on April 28, 2021, the appeal was reversed after finding that implementing AB5 did not fully impact motor carriers’ prices, routes, or services. Therefore it did not fall under the FAAAA’s preemptive scope. So, the reversal cleared AB5 to take effect. But, on June 23, 2021, the 9th Circuit stayed the reversal’s effect, pending the resolution of the appeal to the United States Supreme Court.

Without comment or discussion, the Supreme Court decided not to review the case and left the 9th Circuit’s decision intact. AB5 was once again clear to take effect on motor carriers operating in the state of California. In the Supreme Court briefing, representatives from the State of California downplayed the impact AB5 would have on motor carriers and the trucking industry. 

Now, drivers operating in California are bracing themselves for the “highly impactful and disruptive” consequences of the bill. Many motor carriers and industry experts believe that additional legal challenges associated with AB5 and the ABC test are likely to occur. Still, for the time being, those operating in California will, unfortunately, have to carry the weight of AB5.

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