As the Owner-Operator Independent Drivers Association fights its own case against California’s Assembly Bill 5 in the Ninth Circuit, it also is lending a hand in a Supreme Court petition against the state worker classification law.
On Thursday, Oct. 10, OOIDA filed an amicus brief in support of Lydia Olson’s case against AB5. Olson, who represents gig workers such as drivers for Uber and Postmates, claims that California’s AB5 violates U.S. Constitution’s Equal Protection Clause and is asking the Supreme Court to hear the case.
AB5 is based on the ABC Test, which says that a worker is considered an employee unless three factors are established. The state law – signed in 2019 – makes it extremely difficult for a worker to be considered an independent contractor.
However, California granted numerous exemptions.
Olson, as well as OOIDA, argue that the contradictory exemptions violate the Equal Protection Clause. For instance, California granted an exemption to Wag! – a dog-walking service – but not to Uber. Originally, AB5 was purported as a general labor law that would cover a variety of industries.
“California has never been able to rationalize or explain how Wag! got an exemption but Uber and Postmates didn’t when all appear to be doing the same thing,” OOIDA Advocacy Counsel Paul Torlina said on Land Line Now. “They’re all in the gig economy. They’re all app-based.”
In Olson v. California, a lower court originally sided with the state. Then in March 2023, a three-judge panel for the Ninth Circuit partially reversed the previous ruling. In its decision, the panel cited comments from then Assemblywoman Lorena Gonzalez to suggest that the AB5 was specifically targeting app-based companies such as Uber and Postmates. This past June, an 11-judge en banc panel of the Ninth Circuit sided with the state.
Now, Olson has petitioned the U.S. Supreme Court to hear the case.
“At first, the Ninth Circuit reversed the dismissal of the complaint …” the plaintiffs stated in the petition. “A three-judge panel decided that petitioners had adequately pleaded a plausible equal-protection claim, crediting allegations that California law singled out petitioners for disfavored treatment based on animus rather than reason. But after granting rehearing en banc, the court of appeals changed course. It speculated that the legislature might have perceived petitioners as substantial contributors to misclassification but exempted other businesses that the legislature believed posed lesser threats of misclassification. That factual conjecture went far beyond, and indeed directly contradicted, the complaint’s express allegations – including detailed allegations that exempted industries suffered from higher rates of misclassification.”
OOIDA’s amicus brief
In its amicus brief, OOIDA was critical of the Ninth Circuit’s ruling.
“The Ninth Circuit’s en banc decision not only deepens a circuit divide regarding the standard for analyzing motions to dismiss equal protection claims, but it erodes the rational basis standard itself, transforming a court’s review into a rubber stamp for any distinctions a government can conceive,” OOIDA wrote. “By allowing courts to consider … hypothetical justifications premised on facts outside or contrary to the complaint, the Ninth Circuit’s approach threatens to stop equal protection and due process claimants before they have any chance to offer evidence and argument demonstrating the irrationality or impossibility of a theoretical rational basis.”
OOIDA also alleges that California violated the Equal Protection Clause in its case at the Ninth Circuit. The Association said that interstate truckers are being singled out. AB5 provides a business-to-business exemption to the ABC Test that California intrastate truckers can use but federally regulated interstate truckers cannot.
“It was irrational for the legislature to make an exemption available only to the group of persons it intended the law to protect – California workers – but not persons it has little or no interest in protecting – interstate workers more likely to be from out of state,” OOIDA wrote in its amicus brief. “Thus, the business-to-business exemption violates the Constitution’s guarantee of equal protection under the law.” LL
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