©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 393 19.2.5 Labor Code claims The Ninth Circuit has concluded that California law presumes workers to be employees, not independent contractors—even where workers have agreed in writing that they are independent contractors—and has rejected defendants’ attempts to rely on contractual choice-of-law provisions that call for applying the law of another state, such as Texas or Georgia.8 An illustration of how California employment law can differ from other law appears in the Ninth Circuit’s 2014 decision in Alexander v. FedEx Ground Package Systems, Inc.9 Although FedEx’s elaborate operating agreement described FedEx delivery drivers as independent contractors, and although the D.C. Circuit had upheld that classification, the Ninth Circuit held that FedEx drivers in California were employees as a matter of law: “There is no indication that California has replaced its longstanding right-to-control test with the new entrepreneurialopportunities test developed by the D.C. Circuit. Instead, California cases indicate that entrepreneurial opportunities do not undermine a finding of employee status.”10 19.2.6 Wage Order Claims A company’s ability to defend its classification of workers as independent contractors is even weaker regarding claims that invoke the Wage Orders, which define employment more broadly than does the common law. (See § 19.6.) 19.2.7 Domestic Worker Bill of Rights California’s Domestic Worker Bill of Rights, enacted in 2013, provides: “A domestic work employee who is a personal attendant shall not be employed more than nine hours in any workday or more than 45 hours in any workweek unless the employee receives one and one-half times the employee’s regular rate of pay for all hours worked over nine hours in any workday and for all hours worked more than 45 hours in the workweek.”11 When a personal attendant invoked the DWBR to sue an employment agency for overtime wages, the trial court granted summary judgment against her because, under the common law, she was an independent contractor, not an employee. The Court of Appeal reversed, holding that the trial court should have applied not only the common law but also the legal standard set forth in the DWBR, which adopts a Wage Order definition of employer as someone who “exercises control over the wages, hours, or working conditions” of a worker. The Court of Appeal concluded: “In light of the liberal construction we afford the DWBR, we conclude the burden should fall with the hiring entity to prove that a domestic worker is an independent contractor not entitled to the overtime protection of the DWBR.”12 Under these standards, the Court of Appeal reversed the summary judgment for the defendant because the parties’ contract arguably gave the defendant agency control over the plaintiff’s wages.13 19.3 Inversion of Common Law Standards in Standard Jury Instruction Under the common law, as restated in the Restatement of Agency, the question of employee status versus independent contractor depends on various factors, the most important of which is whether the principal has the right to control the manner and means of performing the services that the individual was retained to provide.14 The California Judicial Council has approved a standard instruction by which a jury is to consider the principal’s right to control the manner and means of performance (even if it is not exercised) and is also to consider secondary factors, such as whether the principal supplied equipment, tools or the place of work, paid by the hour instead of the job, supervised the work, had a long-term relationship with the worker, etc.15
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