Worker Classification: Complications Beyond the Front Page

McDermott Will & Emery

California’s Dynamex Rolls Out The ABC Test And The Presumption Of Employment -

? The burden is placed on the employer to prove IC status

? Individual is deemed an employee unless employer demonstrates prongs A, B, and C of the test:

– (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work;

– (b) that the worker performs work that is outside the usual course of the hiring entity’s business;

– (c) that the worker is customarily engaged in an independently established trade, occupation, or business.

“C” Stands For “California Won’t Follow Massachusetts” (According To CA’S Fourth District Court Of Appeal) –

? Part C in Massachusetts requires a worker need only be “capable” of independent business operation “even if the putative employee does not actually do so”

? Part C in California will require actual independent business operation

? In Garcia v. Border Transport court decided on October 26, 2018 to split with MA:

– a taxi driver alleged he was misclassified as an IC, Dynamex was applied by the Court of Appeals in driver’s favor

– Defendants failed the ABC test in part by providing no evidence of plaintiff’s independent trade/occupation/business (to the contrary, taxi’s permit was limited to use while working for defendant, suggesting his “business” was limited to defendant’s)

Please see full Presentation below for more information.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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