PORTS OF LOS ANGELES/LONG BEACH, CA – The following is a statement from Julie Gutman Dickinson, local counsel to the Teamsters Port Division, on the Jan. 8 decision by Los Angeles County Superior Court Judge William Highberger that California’s Assembly Bill does not apply to port truck drivers:
“We strongly disagree that this is a big win for NFI and the port trucking industry in California. While we believe Judge Highberger’s decision is wrong, the bottom line is that in every port trucker misclassification/wage theft case to date, the port truck drivers of NFI and indeed every port trucking company have been found to be employees NOT independent contractors under the California Borello test.
It does not matter whether you apply the ABC test under Dynamex, AB-5, or the Borello test, they are employees under all tests. So, the effect of Judge Highberger’s finding that the ABC test is preempted does not have practical effect on the employee status of these drivers. They are clearly employees.
In at least 47 wage claims cases against NFI companies (Cal Cartage Express, K & R and CMI) at the California DLSE, the drivers have uniformly been found to be employees NOT independent contractors under the Borello test. In over 500 wage claim cases at the DLSE in California, drivers have uniformly been found to be employees NOT independent contractors under the Borello test. There is not one case that I am aware of where any driver has been found to be an independent contractor under Borello. And in all private litigation I have participated in and am aware of, port drivers have uniformly been found to be employees under the Borello test. Indeed the Ninth Circuit Court of appeals has made crystal clear that Borello is NOT preempted under the FAAA.
Judge Highberger explicitly states that pursuant to Code of civil procedure 166.1, the Court finds that the question of whether the FAAAA preempts the ABC test as implemented by Dynamex and AB-5 is “a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.
The contention that Highberger’s decision is final is incorrect – Judge Highberger has essentially certified the case for appeal. The question of whether the ABC test is preempted will go through legal proceedings before there is any final determination. Even if ultimately prong B is found preempted, prongs A and C should remain intact as they have in other jurisdictions. Further, even if the ABC test as a whole were ultimately found to be preempted for interstate drivers, it would still be immaterial to the fact that these drivers have been uniformly found to be employees under Borello, a test that has definitely been determined NOT to be preempted."