i'm quite certain it in two thousand and sixteen the supreme court explained that where a statute contains an express preemption provision as the f for a does here there  no presumption against preemption and that is puerto rico vs franklin california tax free trust when thirty six s court in one nine hundred thirty eight rather when there is an express preemption provision the must look to the language of that preemption provision itself and congress in this instance could not have been more clear on this score preemption is by the statutes own terms  f or a's general rule that's what it says and the supreme court has held that the f for a pre amps any state law claim that has a connection with or reference to a motor carrier services with respect to the transportation of property the labor commissioner economics is at pages thirteen and fourteen of her brief that her application of the burrell of factors to the arrangements between motor carriers and owner operators is littered with references to money and connections with motor carrier services in applying those factors the labor commissioner examines how much control the motor carrier exerts over the independent contractor of transporting property she examines whether the motor carrier is in a distinct business from the independent contractor she examines whether the motor carrier monitors the independent contractor while he is transporting the property she examines who either the i c or the motor carrier supplies the truck and the other equipment necessary to transport the property she examines how the morton motor carrier pays the independent contractor for transporting the she examines whether the independent contractors transportation or property requires a special skill it is the labor commissioner's assessment of these facts each of which has a direct reference to in connection with the motors carrier services that allows the labor commissioner to use california's policy judgment as embodied in the test to disrupt the terms under which the parties agreed to transport property the labor commissioner attempts to avoid the import of her concession regarding her assessment of the operations of motor carriers by claiming that congress only intended to preempt state law claims between motor carriers and consumers this court recognized in eighty eight vs l a ports that the f for a contains no such limitation this court had no difficulty in determining that the ports insisted that motor carriers use employees instead of independent contractors was a quote help a bill interference with prices and services and that's a five fifty nine f third and fifty six that holding from the ninth circuit is precisely why the supreme court has explain is preemption prohibition is most sensibly read as preventing a state from imposing its own public policy or theories of competition on the operations of a motor carrier the supreme court has also made it clear that the f or a will not vote countenance the separation of matters essential from matters on essential to a carrier's operations in other words the supreme court has made it clear that a state may not interfere with a motor carries operations with respect to the transportation of power property period as the supreme court in northwest versus jim ginsburg held once the connection is made between the claims not the law but the claims and the motor carrier services with respect to the transportation of property the f or a's general rule of preemption applies and to drive this point home the supreme court never once considered whether allowing rabbi ginsburg back into northwest frequent flyer program would have had a significant impact on services  generally is a traditional state function is not covered by preemption but i think we've said that generally the kinds of things that are reserved to the state are not preempted and the difference the regulation of the relationship employed and independent contractors is a matter of the subject of general of california so two points on that your honor first of all the f or a has a list of enumerated exceptions to the general rule and there is no police powers or work force exception to the general rule of preemption roe teaches that the list of the exceptions in the f or a is not subject to judicial expansion and to address your initial point directly your honor this court has determined in the motor carrier context that the does preempt state interference with a more curious decision regarding whether to use an independent contractor or an employee driver in the a t l versus port delhi ports case there was no issue of a consumer claim at all and there was no question but that the the l a ports concession agreement was requiring the use of employees which according as your honor pointed out would have been traditionally within a police powers arena but there is no that in entire case centered around whether one of the actually a numerated exceptions to preemption could be read to include actions by municipalities even though the exception only mentions states there was no question about whether the regulation it issue fell within the municipalities police powers had there been a police powers exception the case would have been resolved in a two sentence per curiam this falls within traditionally regulated number one dilts was a case in which there were admittedly employee drivers and it was the question of whether or not the application of california's background laws to those employed drivers had a connection with or reference to motor carrier services what's important and leaving aside whether or not guilt was directly a correctly decided this court has recently performed and this is in two thousand case the importance to congress is the regulatory goals of enforcing the contracts that are freely made in the marketplace and this court held that if we don't enforce those contracts they're freely made then the market forces the congress sought to have work cannot operate and and in dilts there was no evidence of an agreement between the employees and the employer do you think you agreement between the employees and the motor carrier to forgo or have different timing of the meal and rest periods by reason of the need its impact on the motor curious ability to perform a service rule that generally applicable if there was a demonstration that that at the debate the reason for doing so was an impact on the services that were being provided yes and your honor and i realize i'm drifting into my  uttal time but inherent in the issue of deregulation is the premise that the free market will operate when states don't interfere it will operate efficiently and this is not a a country in which we have indentured servitude no one can be forced to do a job they do not want to do and people leave their jobs all the time issue of the district court's failure to draw inferences on in our favor because we express the alleged in the complaint some of our members use employee drivers when it's efficient to do so and others use owner operators when it's efficient to do so its obligations as an employer onto its employee nothing in the f or way a would prevent that employee from getting out from underneath that contract by saying this is not the agreement that i agreed to this is not the bargain that i acquirements are not preempted by the f four a and the problem here is quite frankly if what the california trucking association says here is correct then these decisions are meaningless because then every single motor carrier would simply have its driver sign an agreement that says i'm an independent contractor and each driver driven by the need to find work would sign that agreement and that's that then then there'd be no perp no protection if in fact the underlying protection the underlying substantive protection is not preempted by the a for a certainly the the issue as to whether or not the the person performing the services the driver here is a employee in title of that protection or is in fact an independent contractor that has to be part of what is not preempted the state here in this is a very important distinction very important i agree in the a today vs city of los angeles case this that that was not a consumer case that was a case where the port of los angeles had the so called concession agreement under which under the terms of this this  to impose on motor carriers in the port they want to phase out the use of independent contractors they they put this thing in to prevent motor carriers from using independent contractors that within a certain number of years all of the drivers would have to be employees and the court there said no that is that is preempted that you know the the motor carrier still has to have the right to be able to use independent areas and independent contractors and here we're not saying they don't have a right to use independent contractors we're saying that when they classify someone is an independent contractor and they tell us in a way to take from hearing why this person is not entitle to the minimum wage because he's an independent contractor we have the right as a state agency to apply state common law test to determine whether or not in fact this person truly is an independent contractor or not if indeed under this test the person is an authentic contractor good luck to them that's wonderful congratulations state ways now law doesn't apply to them but if this is a subterfuge if in a specific you know wage now a case that we're looking at adjudicating prosecuting what have you if it turns out that the person is not an independent contractor under the multi factor barrelled cast i think i wrote down fourteen factors i think it's more like sixteen fat lot of factors and what's important and i really want to say that this decision the court made here in eighty eight a verse a city of los angeles it's a very similar actually it's right on point with what the first circuit decided in the two cases that i think they stay spoke about cocoa in the have their papers coakley and schwann where the first essentially precluded motor carriers from being able to use independent contractors because it said that every one of these factors have to be satisfied and if not the person was not an independent contractor was an employee one of these factors was if the the person the person providing the service had to be providing it in outside the usual course of business of the principal so that the court said the first circuit said that's no good because that would prevent the use of independent contractors so they said that's pretty empty good but the other two prongs are fine they're not preempted now is the bottom line is that your argument is that nothing important factor in bella and supreme court covers for a supreme court brawl says that the most important factor is the whether the principal has the right to exercise control over the matter and means by which the the jobs and that's the traditional common law test then that's the second important factor they they talked about was the the ability to well the right to terminate without cause and then they they  list whole bunch of factors and they also going list factors of the federal economic realities past it's true one of the factors that's listed in this whole list of factors is whether or not the person performing the service is test and what was in front of the court in the first circuit in massachusetts here it's a non difference it's one of fourteen or sixteen factors it's it it's did it's not the most important and the cowboys require braless says you have to look at all these factors and you know apply them and give them whatever weight and such that it's a complicated test and it it labor force to have a definition for what is independent contractor and what is the employee and the answer to that reconciling the this court's opinion in eighty eight versus l a ports which said that interfering with that decision is a rather palpable interference with services that was the direct connection that this court made demonstrates that that decision relates to services in the supreme court in womyn's in this is that in footnote five said in answer to your first question the answer is no california may not use its own public policy to impose its opinions on the operations of the motor carrier and what it says he is the f or a's preemption prohibition is most sensibly read as proof hitting a state from supposed imposing its own public policy or theories of competition on the operations of a motor here that's just what the labor commissioner told you she's doing the labor commissioner said i don't care what you do you just have to classify him in accordance with california law in other words you have to run your operations in accordance with what we have decided is a public policy is appropriate for how to treat an independent contractor versus an employee and the supreme court has said you cannot do that and this court has said that it's unquestionable that interfering in that decision and interfering in that operation has a palpable effect on services there is nothing in the supreme court's precedent that turns  preemption on the issue of whether or not the claimant can succeed importantly in ginsburg ginsburg was an appeal from a dismissal not after trial it had been dismissed on a motion to dismiss and the supreme court never once considered whether rabbi ginsburg was assured of winning never once consider whether or not if rabbi ginsburg had won it would have any impact impact on northwest services or prices it simply said the the preemption determination turns on whether rabbi ginsburg allegations rather rabbi ginsburg's claims have a reference to or connection with the services there's no question but that what the labor commissioner is doing is precisely that it is examining and imposing california's public policy on the operations of c t a members to determine whether or not the contracts that were freely entered into between c t m members and owner operators should be enforced and to be clear this is all being done after the fact and california law is clear that when you determine that a contract is is  you've got two choices you can rescind the contract and go back to where you were in the beginning or you can ratify the contract and sue under it but no california case holds that you may rewrite the contract on terms that the