Dynamex

HAVE INDEPENDENT CONTRACTORS IN CALIFORNIA? YOU MAY NEED TO RETHINK THAT.

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Photo Credit: iStock.com/utah778

Written by Jeremy Mittman, Jeffrey Davine, Robert Lowe, Susan Kohn Ross and Samuel Richman 

On September 18, 2019, California Governor Gavin Newsom signed into law A.B. 5, codifying the “ABC test” adopted in the California Supreme Court decision, Dynamex (see, e.g. prior posts here, here, and here) and ensuring that most California workers should appropriately be classified as employees instead of independent contractors.  The bill goes into effect January 1, 2020.

Though supporters state that the bill is aimed primarily at the so-called “gig economy,” in reality A.B. 5 affects virtually every type of business in California.

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The Ever-Expanding Dynamex Decision

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By Jeremy Mittman and Danton Liang

Why This Matters

The day after the Ninth Circuit Court of Appeals ruled that the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court applies retroactively (see here), California’s Division of Labor Standards Enforcement (DLSE) released an opinion letter concluding that Dynamex’s ABC test applies to both IWC Wage Order claims and certain Labor Code provisions that enforce Wage Order requirements. The California Court of Appeals has ruled that Dynamex applies only to claims brought under the IWC Wage Orders (see here) and the DLSE’s recent opinion letter seems to expand what that means.

While California state and federal courts are not bound by DLSE opinion letters (meaning they could reach a different conclusion as to exactly which California Labor Code claims fall under Dynamex), the DLSE’s opinion letter reflects the way that agency will be interpreting Dynamex moving forward. This will impact employers who face DLSE wage claims where employees contend they were improperly classified as independent contractors. (more…)

Dynamex Goes Back in Time

Businessman holding sign clock. Concept business time is money

Photo credit: iStock.com/marchmeena29

By Jeremy Mittman

Why This Matters

On Thursday, May 2, in Vazquez v. Jan-Pro Franchising International, Inc., a three-judge panel of the Ninth Circuit Court of Appeals held that the California Supreme Court’s ruling in Dynamex Operations West, Inc. v. Superior Court applies retroactively. In Dynamex, the Supreme Court adopted a new standard for determining whether a California worker is an employee or independent contractor under the California Industrial Welfare Commission’s (“IWC”) wage orders. As we have previously discussed (see here, here, and here), Dynamex’s reach continues to grow and the Ninth Circuit’s ruling in Vazquez should be of particular concern to employers, who now face potential liability for their past decisions to classify workers as independent contractors rather than employees under a standard that did not exist at the time. (more…)

California Supreme Court’s Independent Contractor Ruling Only Applies to Claims Brought Under California Wage Orders

By Jeremy Mittman

Recently, in Garcia v. Border Transportation Group, LLC, the California Court of Appeals weighed in on the scope of the California Supreme Court’s April 2018 ruling in Dynamex Operations West, Inc. v. Superior Court.  In Dynamex, the Supreme Court adopted a new standard for determining whether a California worker is an employee or independent contractor under the California Industrial Welfare Commission’s (“IWC”) wage orders.  This new standard, called the “ABC test” holds that a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. (more…)