Recent Employment Law Decisions

California Courts of Appeal

California’s “ABC” test for employment is not preempted by the Federal Aviation Administration Authorization Act

THE PEOPLE v. SUPERIOR COURT (CAL CARTAGE TRANSPORTATION EXPRESS)

DRAYAGE WORKERS WERE BEING TAKEN ADVANTAGE OF

Drayage involves the short haul transportation of goods, in this case from the ports of L.A. and Long Beach. Drivers were deemed independent contractors to the motor carrier companies for which they worked. The drivers frequently netted less than minimum wage or nothing at all, as they had to finance their trucks under unfavorable terms and accept various costs of doing business that would normally fall on an employing company. In 2018, S.B. 1402 referred to California’s drayage drivers as “the last American sharecroppers, held in debt servitude and working dangerously long hours for little pay.”

THE STATE SUED FOR UNFAIR BUSINESS PRACTICES, AND THE TRIAL COURT FOUND THE CLAIMS PREEMPTED UNDER THE FAAAA

The Los Angeles City Attorney, acting for the State of California, filed a class action alleging unfair business practices. The People alleged that the defendant companies, by misclassifying drayage drivers as independent contractors, improperly realized various unfair advantages, including avoiding payroll taxes, workers compensation insurance payments, paystubs, and many others.

Upon motion by the defendants, the trial court dismissed the lawsuit. It ruled that the Federal Aviation Authority Authorization Act (“FAAAA”) preempted AB 2257, which codified the “ABC” test, enumerated by our Supreme Court under Dynamex Operations W v. Superior Court.

THE APPELLATE COURT FOUND THAT THE FAAAA DOES NOT PREEMPT AB 2257 OR THE DYNAMEX TEST

The appellate court reversed by writ. It looked to our Supreme Court’s ruling in People ex rel. Harris v. Pac Anchor, 59 Cal.4th 772 (2014) to find that the FAAAA’s preemption applied only to state laws that prohibited the use of independent contractors in

the transportation industry. Rules of general applicability that did not involve such restrictions are not preempted.

Here, no such prohibition was in effect, either explicitly or de facto. The ABC test does not preclude the use of independent contractors; it merely states the considerations used to determine proper classification of workers.

The court also rejected the argument that, because AB 2257 had limited exceptions for certain industries, it was not a rule of general applicability.

CONCLUSION

California continues to protect the wages of its workers. This ruling in favor of an exploited group is welcome news.

Similar issues are currently under consideration in the federal courts, including the 9th Circuit. The 1st Circuit has already ruled that prong B of the ABC test is preempted, and various district courts have split on the issue. There will probably be more decisions on this matter in the future.

COA, 2nd Dist. Div. 4, filed 11/19/20. Opinion by Justice Currey

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Message from the Chair
By Elizabeth Riles, Esq., CELA Chair

Elizabeth Riles

2020 has been a difficult year for everyone. I want to take a moment to acknowledge CELA members that we lost this year.

Amber Phillips – Amber is remembered as a fierce advocate. She empowered victims of discrimination, harassment, retaliation, and abuse. She helped them regain control over their stories. Amber had the special distinction of being a Super Lawyers “Rising Star Honoree” for three consecutive years. Also, a proud double-Bruin, Amber graduated summa cum laude from UCLA with a B.A. in Psychology and obtained her J.D. from UCLA Law, where she served as President of the UCLA School of Law Moot Court Honors Board, Co-Chair of the Juvenile Hall Clinic, Co-Chair of the Innocence Project, Managing Editor of the Women’s Law Journal, and a Writing Advisor for the Lawyering Skills Clinical Program. After graduation, she was selected as an American Board of Trial Advocates (ABOTA) Fellow, during which she clerked for Presiding Judge of the Los Angeles Superior Court Kevin Brazile. Outside of work, Amber spent as much time as possible with the loves of her life—her husband, her brothers, and her American bulldog, Mayor Boogie Carlson. Amber’s memory and legacy will forever continue at the Genie Harrison Law Firm, which Amber co-founded and helped to build.

Marcus Anthony Mancini – Marcus was the founder of Mancini and Associates. He practiced law for over 30 years and was a CELA member since 2006. Over the course of his career, Marcus gained a reputation as a fierce advocate for persons holding claims for wrongful termination, harassment, or employment discrimination, in particular those low-income claimants who would have no recourse to the legal system without lawyers willing to take on their cause. In that spirit, partners Vadim Yeremenko and Tara Licata will be continuing the practice of the law firm of Mancini & Associates. Marcus was also a member of the Italian American Lawyers Association. To honor his memory, partners Vadim Yeremenko and Tara Licata, have established a

scholarship and on December 1, 2020 awarded the first recipient with the Marcus A. Mancini Memorial Scholarship. In Marcus’ personal life, he was a car enthusiast with two warehouses full of cars. In particular, he loved Ferraris and was an active member of the Ferrari Club of America (FCA). He served as a FCA Board Member and FCA Judge. Marcus is remembered and described as having the roar of a lion and the soft spots of a kitten. His CELA friends will miss him.

Tomás Olmos – Tomás was a life-long champion for California workers. Hailing from the Fresno County farm fields where he and his family worked, Tomás’ loved ones and colleagues say he never forgot where he came from. His first job after U.C. Berkeley law school was helping farm workers and other low-income residents while working at the Delano office of California Rural Legal Assistance (CRLA) organization. Later, Tomás joined the Western Center on Law and Poverty, leading litigation with the U.S. Equal Employment Opportunity Commission. During that time, he won a landmark $45-million verdict on behalf of Las Vegas casino workers fighting age and sex bias. In the early 90s, Tomás was executive director of the Legal Aid Foundation of LA. Later, he joined Allred, Maroko & Goldberg, continuing his influential advocacy on behalf of workers. In addition to his office work, Tomás held many roles at the People’s College of Law. As well, he and his wife, long-valued CELA member, Dolores Leal, taught law classes at the United Farm Workers (UFW) headquarters. They also hosted fundraisers for CRLA, UFW and FAIR. Tomás will be dearly missed as a kind soul who lived an accomplished life with purpose. CELA thanks the UFW and People’s College of Law for compiling these memories.

They will all be sorely missed.

As we move into 2021, I hold a burgeoning hope for our organization, our democracy, and our world. Though we are facing a resurgence of COVID, CELA and its members have demonstrated great resilience through this crisis. We have moved to working remotely, legislating remotely, and conducting virtual meetings, seminars, and conferences, all while continuing to advocate for the rights of workers all over the state of California. As I said in March, we are all in this together. We can and should continue to pool our resources, knowledge, and energy to pull everyone through this successfully.

Please do reach out to us for help, support, to share ideas, or just to commiserate about this difficult situation.

Take care and stay healthy everyone!

Elizabeth

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