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Transpo Cos. Tackle 9th Circ. Stance On W&H Law Preemption

Law360 Employment Authority

The U.S. Supreme Court may soon decide whether to review the Ninth Circuit's determinations that generally applicable state worker classification and break laws nix federal preemption, a crucial issue for interstate transportation businesses, attorneys told Law360.


This question of federal preemption is a flashpoint for multijurisdictional transportation employers operating in employee-friendly states, particularly at a time when the global supply chain is in crisis, said William Anthony, a partner for management-side firm Blank Rome LLP.

"We're seeing an intersection of … states and localities trying to protect their employees in a variety of different ways butting up against an industry that's trying to, no pun intended, get back on track," he said. "I think we're going to see a bunch of these types of cases and the Supreme Court will end up having to iron out this preemption."


For Blank Rome's Anthony, the Ninth Circuit cuts off its analysis too early and fails to assess whether or not "there is a significant impact on rates, routes or services in that state law in order to determine whether the state law is preempting."

By contrast, the First Circuit correctly followed Supreme Court precedent in Schwann v. FedEx Ground Package Sys. Inc. when it found in 2016 that one prong of Massachusetts' employee-friendly classification law is preempted by the FAAAA, Anthony said.

Here, Anthony said, while the law was one of general applicability, it is preempted in its application.

"I think the Ninth Circuit ruling diverges from this analysis and ends the review if the law is generally applicable to all industries," he said.

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“Transpo Cos. Tackle 9th Circ. Stance On W&H Law Preemption,” by Daniela Porat was published in Law360 Employment Authority on October 20, 2021.