Borello

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On April 30, 2018, the California Supreme Court applied an expansive definition of independent contractor in a ruling that is sure to have a dramatic impact on many California businesses, and the burgeoning gig economy in particular.

In the case of Dynamex Operations W. v. Superior L.A. County, a class action was brought on behalf of a group of delivery drivers who were classified as independent contractors by delivery company, Dynamex. Dynamex argued that the drivers were properly designated as independent contracts under the totality-of-the-circumstances standard set forth in the Borello case—utilized by California businesses since 1989—which concentrated primarily on the degree of control the employer exercised over the worker. Dynamex’s drivers provided their own vehicles, paid their own transportation expenses (fuel, tolls, vehicle maintenance, and insurance), set their own schedules, and were generally free to choose the sequence in which they made deliveries and the routes they would take. They were also allowed to simultaneously work for other delivery companies.  
Continue Reading The California Supreme Court Makes It More Difficult to Classify Workers as Independent Contractors – Assumes all Workers are Employees

A California Labor Commissioner has ruled that one of San Francisco-based Uber’s drivers, Barbara Ann Berwick, is an employee, not an independent contractor. The Labor Commissioner awarded Berwick just over $4,000 for incurred but un-reimbursed business expenses and interest. On a positive note, the Commissioner denied Berwick’s request for wages, liquidated damages, and waiting time penalties.Shauna Correia.standing

Traditionally, it is the “right to control” the means and manner of work that is the primary element of the independent contractor test. Here, though, the Labor Commissioner did not rely on the right to control.  Instead, she noted that the absence of such control is not necessarily dispositive where the actual details of the work required little or no supervision.  
Continue Reading Former Uber Driver Gets a Lyft from the Labor Commissioner