No. 21-194 In the Supreme Court of the United States

1 No. 21-194 . In the Supreme Court of the United States CALIFORNIA TRUCKING ASSOCIATION, INC., ET AL., PETITIONERS. v. ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA, ET AL. ON PETITION FOR A WRIT OF CERTIORARI. TO THE United States Court OF APPEALS. FOR THE NINTH CIRCUIT. BRIEF FOR THE United States AS AMICUS CURIAE. ELIZABETH B. PRELOGAR. JOHN E. PUTNAM Solicitor General General Counsel Counsel of Record PAUL M. GEIER BRIAN M. BOYNTON. Assistant General Counsel Principal Deputy Assistant PETER J. PLOCKI Attorney General Deputy Assistant General EDWIN S. KNEEDLER. Counsel Deputy Solicitor General CHARLES E. ENLOE SOPAN JOSHI. Senior Trial Attorney Assistant to the Solicitor Department of Transportation General MARK B. STERN. EARL ADAMS, JR. JENNIFER L. UTRECHT. Chief Counsel Attorneys CHARLES J. FROMM Department of Justice Deputy Chief Counsel Washington, 20530-0001. TRACY M.

2 WHITE Senior Attorney (202) 514-2217. Federal Motor Carrier Safety Administration QUESTION PRESENTED. Whether a generally applicable California labor stat- ute setting forth the conditions that must be satisfied to classify a worker as an independent contractor (as op- posed to an employee), when applied to trucking opera- tions in the State, is related to a price, route, or service of any motor carrier, 49 14501(c)(1), and thus preempted by federal law. (I). TABLE OF CONTENTS. Page Statement .. 1. Discussion .. 10. Conclusion .. 23. TABLE OF AUTHORITIES. Cases: American Airlines, Inc. v. Wolens, 513 219 (1995).. 5, 6. American Trucking Associations, Inc. v. Los Angeles, 569 641 (2013).. 22. Bedoya v. American Eagle Express Inc., 914 812 (3d Cir.), cert. denied, 140 S. Ct. 102 (2019) .. 9, 20, 21. California Trucking Association v. Su, 903 953 (9th Cir. 2018), cert. denied, 139 S.

3 Ct. 1331 (2019) .. 18, 19. Chambers v. RDI Logistics, Inc., 65 1 (Mass. 2016) .. 20. Community for Creative Non-Violence v. Reid, 490 730 (1989).. 2. Costello v. BeavEx, Inc., 810 1045 (7th Cir. 2016), cert. denied, 137 S. Ct. 2289 (2017) .. 20, 21. Dan's City Used Cars, Inc. v. Pelkey, 569 251 (2013).. 5, 12. Davis v. United States , 417 333 (1974) .. 20. Dilts v. Penske Logistics, LLC, 769 637 (9th Cir. 2014), cert. denied, 575 996 (2015).. 16, 17. Dynamex Operations West, Inc. v. Superior Court , 416 1 (Cal. 2018) .. 2, 3. (III). IV. Cases Continued: Page Estrada v. FedEx Ground Package System, Inc., 154 Cal. App. 4th 1 (2007) .. 13. Massachusetts Delivery Association v. Healey, 821 187 (1st Cir. 2016) .. 20. Miller v. Robinson Worldwide, Inc., 976 1016 (9th Cir. 2020), petition for cert. pending, No. 20-1425 (filed Apr. 8, 2021) .. 18, 19. Morales v. Trans World Airlines, Inc.

4 , 504 374 (1992)..5, 6, 10, 11, 19. NLRB v. United Insurance Co., 390 254 (1968).. 2. Nationwide Mutual Insurance Co. v. Darden, 503 318 (1992).. 1. Northwest, Inc. v. Ginsberg, 572 273 (2014) .. 21. People v. Superior Court , 57 Cal. App. 5th 619 (2020), cert. denied, 142 S. Ct. 76 (2021) .. 14, 16. Rowe v. New Hampshire Motor Transport Association, 552 364 (2008) .. passim Borello & Sons, Inc. v. Department of Industrial Relations, 769 399 (Cal. 1989) .. 2, 4, 14. Schwann v. FedEx Ground Package System, Inc., 813 429 (1st Cir. 2016) .. 8, 20, 21. Singer Manufacturing Co. v. Rahn, 132 518 (1889).. 2. United States v. Silk, 331 704 (1947).. 2. Ward v. United Airlines, Inc., 986 1234 (9th Cir. 2021) .. 18, 19. Wisniewski v. United States , 353 901 (1957) .. 19. Statutes and regulations: Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705 .. 5. V. Statutes and regulations Continued: Page 3(a), 92 Stat.

5 1706 .. 5. Federal Aviation Administration Authorization Act of 1994, Pub. L. No. 103-305, 108 Stat. 1569 .. 4. Motor Carrier Act of 1980, Pub. L. No. 96-296, 94 Stat. 793 .. 5. 2, 94 Stat. 793 .. 5. 49 14501(c)(1) .. 5, 10. 49 14102 .. 4. 49 41713(b)(1) .. 5. Cal. Labor Code 2775 et seq. (2020) .. 3. (2015) .. 13. 2775(b) .. 3. 2775(b)(1)(A)-(C) .. 3. 2775(b)(1)(B) .. 14. 2775(b)(3) .. 4. 2776 .. 3, 7. 2776-2784 .. 3. 2776(a) .. 15. 2776(a)(1) .. 15. 2776(a)(1)-(12) .. 3, 15. 2776(a)(2) .. 15. 2776(a)(3) .. 15. 2776(a)(4) .. 15. 2776(a)(5) .. 15. 2776(a)(6) .. 15. 2776(a)(7) .. 15. 2776(a)(8) .. 15. 2776(a)(9) .. 15. 2776(a)(10) .. 15. 2776(a)(11) .. 15. 2776(a)(12) .. 15. VI. Statutes and regulations Continued: Page 5, ch. 296 (Cal. 2019) .. 3. 2257, ch. 38 (Cal. 2020).. 3. 49 : Section .. 4. Section (c)(1) .. 4. Miscellaneous: Jon O. Shimabukuro, Congressional Research Service, R46765, Worker Classification: Employee Status Under the National Labor Relations Act, the Fair Labor Standards Act, and the ABC Test (Apr.)

6 20, 2021), .. 3. In the Supreme Court of the United States No. 21-194 . CALIFORNIA TRUCKING ASSOCIATION, INC., ET AL., PETITIONERS. v. ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA, ET AL. ON PETITION FOR A WRIT OF CERTIORARI. TO THE United States Court OF APPEALS. FOR THE NINTH CIRCUIT. BRIEF FOR THE United States AS AMICUS CURIAE. This brief is submitted in response to the order of the Court inviting the Solicitor General to express the views of the United States . In the view of the United States , the petition for a writ of certiorari should be denied. STATEMENT. Petitioners brought this suit seeking to preclude en- forcement of a state statute setting forth the conditions that must be satisfied to classify a worker as an inde- pendent contractor (as opposed to an employee), for purposes of state law. The district Court granted a pre- liminary injunction on the ground that the statute likely was preempted by federal law.

7 Pet. App. 51a-79a. The Court of appeals reversed. Id. at 1a-50a. 1. a. Whether a worker is an employee or an inde- pendent contractor is an issue of importance in a variety of areas of law. See, , Nationwide Mutual Insur- (1). 2. ance Co. v. Darden, 503 318 (1992) (employee ben- efits); Community for Creative Non-Violence v. Reid, 490 730 (1989) (copyright); NLRB v. United Insur- ance Co., 390 254 (1968) (union representation);. United States v. Silk, 331 704 (1947) (Social Secu- rity benefits); Singer Manufacturing Co. v. Rahn, 132. 518 (1889) (vicarious tort liability). If a worker is an employee, the hiring business may bear many re- sponsibilities, such as providing worker's compensation insurance and complying with various wage-and-hour provisions of state law. See Dynamex Operations West, Inc. v. Superior Court , 416 1, 5 (Cal. 2018). By contrast, the business does not bear any of those costs or responsibilities with respect to an independent con- tractor.

8 Ibid. Like other jurisdictions, California has sought to de- fine the circumstances in which a worker will be classi- fied as an employee for certain state-law purposes not- withstanding the hiring entity's desire to treat the worker as an independent contractor. Until 2018, Cali- fornia classified workers for a variety of purposes based on a common-law test that principally considered whether the person to whom service is rendered has the right to control the manner and means of accom- plishing the result desired. Borello & Sons, Inc. v. Department of Industrial Relations, 769 399, 404 (Cal. 1989) (citation omitted). California also con- sidered several secondary' indicia of the nature of a service relationship, including whether or not the work is a part of the regular business of the principal.. Ibid. In its 2018 decision in Dynamex, the Supreme Court of California adopted a new test called the ABC test (presumably because it has three principal elements).

9 3. for classifying workers for purposes of California wage- and-hour laws. 416 at 7. Under that test, a worker is an independent contractor only if the hiring entity can demonstrate that (A) the worker is free from the con- trol and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact ; (B) the worker performs work that is outside the usual course of the hiring entity's business ; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Ibid. As of April 2021, at least 20 States and the District of Columbia had adopted the ABC test for at least some purposes. Jon O. Shimabukuro, Congressional Research Service, R46765, Worker Classification: Employee Status Un- der the National Labor Relations Act, the Fair Labor Standards Act, and the ABC Test 9 (Apr.)

10 20, 2021), ; see id. at 14-27 (listing state laws). In 2019 and 2020, the California legislature codified the ABC test in Assembly Bill 5 and Assembly Bill 2257, respectively. Cal. Labor Code 2775 et seq.; see 2775(b)(1)(A)-(C) (2020) (codifying the three elements of the ABC test). In its current form, the statute ex- pands the applicability of the ABC test beyond the wage-and-hour laws, see 2775(b), while at the same time exempting certain occupations and services from its reach, see 2776-2784. One of those exemptions provides that the ABC test do[es] not apply to a bona fide business-to-business contracting relationship if certain conditions are satisfied. 2776; see 2776(a)(1)- (12). In general, if the ABC test does not apply to a particular context, the California statute provides that the determination of employee or independent con- 4. tractor status in that context shall instead be governed by the common-law test in Borello, supra.