May 2018
"PROTECT YOURSELF"
|
Most ‘Contract’ Workers Should Now be
Classified as Employees …
A new California High Court mandate!
April 30, 2018. …..The California
Supreme Court reversed a long
standing precedent that provided employers with some flexibility in classifying employees as independent contractors
versus employees. Previously, there was
some flexibility when determining whether workers should be classified as
employees or independent contractors for purposes of California wage orders, and
the imposed obligations relating to the minimum wages, maximum hours, and basic
working conditions (such as required meal and rest breaks).
Case: Dynamex Operations West, Inc. v. The Superior Court of Los Angeles
County, Dynamex offers “on-demand” pickup and delivery services to the
public and large business customers. The lawsuit involved two Dynamix delivery
drivers, suing on behalf of a class of allegedly similarly situated
drivers. The workers filed a complaint against Dynamex alleging that the
company had misclassified its delivery drivers as independent contractors
rather than employees.
The Court’s ruling effectively adopted the criteria described as the “ABC test.” The “ABC” test is utilized
in some jurisdictions and contexts to distinguish employees from independent
contractors. This standard’s objective is to create a simpler, clearer test for
determining whether the worker is an employee or an independent contractor.
Under the ABC test, the worker is an employee unless the hiring entity (company)
establishes each of three factors:
- that the worker is
free from control and direction over performance of the work,
- that the work
provided is outside the usual course of the business for which the work is
performed
- that the worker is customarily engaged in an
independently established trade, occupation or business.
Prior to this ruling, California courts used a multi-factored approach, looking
at the employer’s control over workers and considers several secondary factors
in analyzing a worker’s classification. The
ABC test is far stricter than the prior test. in July 2015, the U.S. Department of Labor
issued an Administrator’s Interpretation which concluded that, based on the ABC
test, “most workers are employees”
The new ruling presumes that a
worker hired by an entity is an employee and places the burden on the employer
to establish that the worker is an independent contractor.
If the employer fails to show that the worker satisfies each of the three
criteria, the worker should be treated as an employee, not an independent
contractor. According to the Court, “The hiring entity’s failure to prove any
one of these three prerequisites will be sufficient in itself to establish that
the worker is an included employee, rather than an excluded independent
contractor, for purposes of the wage order.”
Dynamex drivers were held to be
employees even though they provided their own vehicles, paid for all of their
transportation expenses among other things.
The Court reasoned:
(i)
that Dynamex could not establish that the drivers
performed work outside the usual course of the business as set forth in part
(B) above. Dynamex’s entire business was that of a delivery service, unlike
other businesses in which the delivery of products is outside the usual course
of its business.
(ii)
(ii) Dynamex obtained the customers for its deliveries,
sets the rate that the customers would be charged, notified the drivers where
to pick up and deliver the packages, and tracked the deliveries.
The Court clarified that a hiring entity cannot satisfy part (B) of the
test by merely showing that the worker performs work “physically outside of the
employer’s place of business.”
The Court’s ruling raises doubts about existing independent contractor
relationships in California, exposes companies to liability, and raises the
specter of new wage-hour class actions. Companies with independent contractors
in California should immediately reevaluate their independent contractor
relationships, adjust as necessary to comply with current law, and evaluate how
to ameliorate exposure for prior
decisions to classify workers as independent contractors.
