Is AB5 all but dead? Predictions from a transportation law expert

June 1, 2023

Independent contractors, including contract truckers, have gained two prominent victories in the legal battle against AB5. Proposition 22 and the Olson case have dealt strong blows against the so-called “gig worker” bill that would reclassify contract workers as full-time employees. Meanwhile, the California Trucking Association’s own suit against AB5 continues to wind its way through the courts. With so many challenges mounting, how likely is AB5 to be repealed?

“Equal protection laws such as what was raised in the Olson case are usually effective arguments, particularly in this day and age,” says transportation attorney Thomas Kern of the law firm Walter Haverfield. “I think you’ll see a shift toward that, as well as the dormant commerce clause arguments.”

AB5 being struck down on the basis of equal protection stands the best chance among the current challenges according to Kern. With the passage of Proposition 22, over 100 professions are now exempt from the full-time employee model that AB5 lays out. Equal protection advocates argue that this policy presents an uneven and arbitrary application of the law. Essentially, the argument states that applying AB5 to some jobs while exempting others is fundamentally unfair.

What do legal experts predict the future will hold for California AB5? Watch the latest episode of the Stay In Your Lane Podcast to find out.

Likewise, arguments against AB5 based on the dormant commerce clause also stand a fighting chance. This clause states that no state can create regulations that interfere with interstate commerce, which AB5 is certain to do.

In Kern’s view, legal precedent would suggest that AB5 is in for significant carveouts that would reduce the legislation’s harm and perhaps pave the way for its eventual removal. Still, is it too soon to declare AB5 dead on arrival? Kern is optimistic that challenges to the legislation could find success.

“Based on the sixty percent of voters that [voted for prop 22], the people wanted this,” he says. “All those politicians in California have to get re-elected, and you don’t want to go against the will of your electorate.”

Continuing, Kern makes a bold prediction on the future of AB5.

“Based on the arguments I’m seeing, I think AB5 will be either overturned, or all the teeth will be taken out.”

The future of commerce as we know it could depend on the legal challenges against AB5. Whether owner-operators win their own carveout from the law or the legislation is eradicated entirely, key transport industry advocates have shown that they will fight this battle to the bitter end.

“With this dispute, the trucking industry is not going anywhere. They’re going to continue to fight this forever,” says Kern. “The government will eventually have to decide whether or not it’s worth it to challenge this.”

Will government overreach go too far, or will independent truckers win their battle in the courts? Stay tuned to the Stay In Your Lane Podcast from Triple T Transport for all the latest updates on the fate of AB5 and other emerging trends from across the industry.

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