Scopelitis, Garvin, Light, Hanson & Feary, P.C.

FMCSA will issue guidance regarding the definition of what constitutes a “broker” and a “bona fide agent” of a broker. The guidance is not a rulemaking and will be effective immediately. However, FMCSA has nevertheless requested comment on the guidance and may issue updated guidance based on comments received. The comment period will be open for 60 days. The guidance is issued pursuant to a mandate of the IIJA, which directed FMCSA to consider the role of so-called “dispatch services” in transportation and whether such services can be considered a “bona fide agent” of a motor carrier. The question of whether a dispatch service can be a bona fide agent of a motor carrier is important because bona fide agents of motor carriers are not required to hold broker authority when acting in the capacity of an agent of the motor carrier. 

The U.S. Department of Labor released its Notice of Proposed Rulemaking (NPRM) with respect to Employee or Independent Contractor Classification Under the Fair Labor Standards Act. The proposal is expected to be published in the Federal Register on October 13, and the Department will accept comments for 45 days thereafter. As anticipated, the NPRM once again proposes to repeal the Department’s prior regulation on the same subject issued under the Trump administration (an earlier attempt at repeal was held improper by a federal district court) and replace it with a regulation it claims is more aligned with judicial precedent. Read more on this from Scopelitis.

The American Trucking Associations’ Trucking Cares Foundation announced that Scopelitis, Garvin, Light, Hanson & Feary, has committed to becoming the Foundation’s 11th member of the TCF Founders Club. The Founders Club is a special class of donors comprised of individuals and corporations that have committed to a $100,000 contribution over 10 years. 

In this issue:
 • AB 5 Petition Denied by U.S. Supreme Court
 • Consumer Protection Class Actions — A New Favorite for IC Drivers
 • Illinois Supreme Court Poised to Issue Key Biometric Privacy Law Rulings
 • Individual PAGA Claims Can be Arbitrated, But Only Where the FAA Applies
 • Supreme Court Addresses “Transportation Worker” Exemption from the FAA
 • Spotlight on The Firm’s Air and Ocean Practice
 • Scopelitis Attorneys on the Road 
 • Scopelitis For the Record
 • Dispatches

For the last eight years, Scopelitis employees have voted The Firm as one of IndyStar's Central Indiana's Top Workplaces. Scopelitis attorneys take a collaborative approach, ranging from their work with The Firm’s more than 5,000 transportation-related clients around the globe to competing on the Pickleball court. Learn more about working at Scopelitis. 

For now, AB 5 and its ABC test for determining independent contractor status is effective for the trucking industry. Any motor carrier now using leased owner-operators in the state risks being in violation of the law, unless the law’s business-to-business exemption is appropriately satisfied. Scopelitis President Greg Feary on what to expect regarding AB 5 in the coming weeks.

Judge Benitez of the U.S. District Court for the Southern District of California held a hearing in the California Trucking Association’s (CTA) challenge to enforcement of AB 5 against the trucking industry.

In Scopelitis President & Managing Partner Greg Feary’s latest exclusive Expert Analysis in Law360, he discusses the question of A.B. 5 as a proper test of work status — both in California and in other states where similar legislation might emerge. According to Feary, efforts to seek balance on an issue that pits entrepreneurship against paternal protection of workers are far from over.

The Supreme Court denied review of the 9^th Circuit’s reversal of the injunction against enforcement of California’s AB 5 against the trucking industry. 

Although three federal preemption of state law regulating prices, routes, or services cases involving transportation were distributed for the Court’s June 23 conference, no decision on whether to hear California Trucking Association v. Bonta (the trucking industry challenge to California’s AB 5’s restrictive employment test) or Virgin America v. Bernstein (an airlines looking at a similar preemption statute) was issued today.

Scopelitis Partners Steve Stanaszak and Jay Starett in Heavy Duty Trucking on the litigious environment of the industry. 

The California Trucking Association’s (CTA) challenge to enforcement of AB 5 against the trucking industry was distributed today for consideration by the Supreme Court at its conference scheduled for June 23.

In a unanimous decision (8-0, with Justice Barrett recused) today, the U.S. Supreme Court clarified who qualifies as a “transportation worker” for purposes of the exemption from the Federal Arbitration Act (FAA).

A former employee over-the-road truck driver for a national motor carrier sued in Washington federal court seeking to represent a class of Washington-resident drivers to recover damages under Washington law for unpaid minimum wage, overtime, rest breaks, and derivative claims. Washington is one of a few states that does not exempt interstate over-the-road truck drivers from state overtime laws. 

The Solicitor General (SG) of the United States (the federal government’s representative before the Supreme Court) filed a brief recommending the Supreme Court deny review of California Trucking Association’s (CTA) case challenging the application of AB 5.

Transport Topics coverage of a mock trial led by Scopelitis at the 2022 Annual Meeting & Transportation Technology Exhibition that showcased what could happen after a tire-related traffic accident. 

Congress passed H.R. 4445, the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” The primary provisions of the new law appear to fall outside of the Federal Arbitration Act (FAA). However, the law does amend certain parts of the FAA to ensure that the new provisions concerning sexual assault and harassment claims apply “notwithstanding” anything to the contrary found in the FAA. Our arbitration team shares key takeaways for transportation providers.

In this issue:
 • Unclaimed Property: A Lurking Liability for the Unwary
 • M&A Considerations for Air and Ocean Forwarders
 • Transportation Worker Exemption from the FAA Requires a “Contract of Employment”
 • Supreme Court Stays and OSHA Withdraws Vaccine/Testing Mandate
 • Spotlight on Cargo Claim Practice
 • Scopelitis Attorneys on the Road 
 • Scopelitis For the Record
 • Dispatches

The Supreme Court ordered a stay of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The Court held that Congress had not given OSHA authority to issue such a sweeping regulation addressing a public health concern that was not an occupation-specific risk. 

Scopelitis Partner Jay Taylor explains how California enacted AB5 to outlaw owner-operators, how Congress enacted the FAAAA in 1994 to preempt exactly this kind of anti-competitive state regulation, and how the Ninth Circuit's impossibly high bar to preemption frustrates the purpose of the FAAAA and flouts the Supreme Court's precedent on the subject.