Preemption as a Tool of Misclassification


The Federal Aviation Administration Authorization Act (FAAAA)—which prohibits state and local regulation “related to a price, route, or service” of interstate trucking firms—is a statute with enormous legal and economic significance that operates largely in the dark. This Article seeks to bring the FAAAA to light, explain what is at stake in its interpretation, and argue against its application to state and local labor and employment law. Our primary aim is to spotlight—and challenge—the growing use of the FAAAA by the trucking industry as a strategy for misclassifying truck drivers. To do so, we situate industry’s mobilization of FAAAA preemption to shield labor practices from state and local regulation within the broader context of industry efforts to denunionize trucking firms. Building on a review of FAAAA doctrine, we focus particular attention on the recent case of California Trucking Association v. Su, in which the Ninth Circuit rejected the
claim that the FAAAA preempted the California state law test for determining employee status (known as the Borello test). We argue that this case stands for a broader limiting principle: that the FAAAA only applies to state and local regulation that specifically targets trucking companies, and is not intended to—and should not—apply to general labor and employment schemes that cover trucking companies equally alongside other employers.

About the Author

Scott Cummings is the Robert Henigson Professor of Legal Ethics and Professor of Law at the UCLA School of Law. Emma Curran Donnelly Hulse is a 3L at the UCLA School of Law and a UCLA Law Review Discourse Editor.