The Transportation Brief®: A Quarterly Newsletter, Autumn 2020 - Dispatches
Becky Trenner advises carriers with owner-operator fleets to continue filing comprehensive written responses to all unemployment claims filed by independent contractors, despite their potential eligibility for federally funded Pandemic Unemployment Assistance benefits. A thorough explanation of the carrier’s lack of any employment relationship with owner-operator claimants will help evidence a consistent position in the event the high volume of independent contractor unemployment claims filed in 2020 leads to an uptick in state unemployment tax audits as we saw following the 2008 economic recession.
An update from Chris Eckhart, the Ninth Circuit Court of Appeals has scheduled oral argument on the challenge to the FMCSA’s December 2018 order preempting California’s meal and rest break rules for November 16, 2020. It could take from 3 to 12 months after the oral argument for the Court to issue a decision.
Shannon Cohen reports that California has further amended the business-to-business rule originally found in AB 5. Previously, an independent business was required to show that it actually contracted with other businesses in order to take advantage of the alternate test. Now, a party need only show the right to contract with other parties in order to apply the Borello test in lieu of the default ABC test found in AB 5.
We recently reported on the California Supreme Court’s decisions in Ward v. United Airlines and Oman v. Delta Airlines, which addressed the reach of California’s itemized wage statement and wage payment timing laws to interstate workers. According to Jay Taylor, the Ninth Circuit has scheduled an oral argument for October 30, 2020 to address, among other things, claims that implementation of Ward and Oman will violate the US Constitution’s Commerce Clause. In related news, the California Supreme Court has remanded a potentially significant case to the California Court of Appeal for reconsideration in light of Ward and Oman. That case, Gulf Offshore Logistics, LLC v Superior Court, will examine the application of Ward and Oman to a broader set of wage and hour laws—including California’s minimum wage and meal and rest break standards—that are frequently the basis of claims against interstate motor carriers that operate in California.