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

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. 

This week, an Illinois Appellate Court issued a ruling with the potential to dramatically increase liability under Illinois' Biometric Information Privacy Act (BIPA), which could lead to many more class action lawsuits against transportation companies operating in Illinois.

In this issue:
 • Vaccination Mandates Take Shape
 • Enforcing Choice-of-Law Provision, Federal Court Dismisses Illinois Wage Claim
 • Freight Broker Class Action Attacks Continue
 • Massachusetts Considers ABC Test for Joint Employment
 • FAAAA/AB5 U.S. Supreme Court Developments
 • Spotlight on Cargo Claim & Freight Charge Practice
 • Scopelitis Attorneys on the Road 
 • Scopelitis For the Record
 • Dispatches

New guidance from the IRS makes clear that motor carriers with drivers subject to hours of service requirements can temporarily deduct the meal portion of per diem expense reimbursements at 100% instead of 80%.

The Judicial Panel on Multidistrict Litigation held a lottery which determined that the multiple challenges to OSHA's ETS on COVID-19 Vaccination and Testing would be consolidated and heard in the United States Court of Appeals for the Sixth Circuit.
 

The Supreme Court invited the Solicitor General to file a brief expressing the federal government’s views on whether the Supreme Court should hear California Trucking Association’s suit claiming federal law preempts California’s AB 5, which imposes a restrictive ABC test to determine worker classification.

The United States Court of Appeals for the Fifth Circuit issued a temporary stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on Vaccines and Testing, which applies to employers with more than 100 employees.

President Biden announced an action plan which called for OSHA to draft and issue ETS designed to reduce Covid-19 infection numbers. Specifically, the President has called for private employers with at least 100 employees to ensure either that (1) all employees are vaccinated; or (2) all employees are tested at least weekly.

Last week the Scopelitis Law Firm’s Commercial Litigation Team secured a complete defense verdict involving a non-compete agreement/interference with contract action brought forward in notoriously challenging Lake County, Indiana.