394 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com One basis for this jury instruction may be decisions applying the workers’ compensation statute, which advances special social policies that are not present every time employee status is disputed.16 But the Court of Appeal has advanced the pro-plaintiff proposition that even where control factors indicate the plaintiff is an independent contractor, the plaintiff can still present a triable issue of employee status by citing secondary factors. Thus, even where plaintiff truck drivers were owner-operators who controlled their own delivery operations, and thus seemed to be independent contractors under the primary factor of “right to control,” the drivers could go to trial on their employee-status claim by citing such secondary factors as the W-2 forms they received, their tax withholding, their health plan benefits, their hourly rates for certain activities, the 24-hour termination provision in their contracts, and their function as a part of the defendant’s regular business of providing transportation of property.17 19.4 Absence of Statutory Protection as to Newspaper Carriers For well over a century, the newspaper industry regarded individuals contracting to provide home delivery of newspapers as independent contractors, not employees. Federal wage and hour law honors the spirit of this characterization; the FLSA expressly exempts from sections 206, 207, and 212 (addressing minimum wage, overtime pay, child labor) “any employee engaged in the delivery of newspapers to the consumer.”18 In California, it’s different. California, unlike many other states, failed to adopt a statutory newspaper-carrier exemption. In 2014, the California Supreme Court, in Ayala v. Antelope Valley Newspapers, clarified its view regarding the relevant test to determine whether a particular individual is an employee or an independent contractor. The case involved newspaper carriers who contracted to provide delivery to home subscribers. Ayala held that the existence of an employment relationship depends, in part, on “whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” Ayala held that, for purposes of class certification, the relevant inquiry is not whether the hirer’s degree of control exercised over hires was sufficiently uniform, but whether the hirer’s legal right to control how the end result was achieved was sufficiently uniform. Because the newspaper carriers entered standard contracts with the defendant, Ayala found there could be sufficient uniform evidence of the right to control to support certification as to whether the carriers were in fact employees.19 Whether or not newspaper carriers are employees under other law, they thus far have been subject to temporary exemptions from the ABC test that have been codified in the California Labor Code.20 19.5 California’s Judicial Revolution Against Independent Contracting Until relatively recently, in California, as elsewhere, courts generally respected decisions to classify service providers as independent contractors. But in recent years federal and California courts applying California law have repeatedly issued decisions holding that classes of individuals classified as independent contractors—often delivery drivers—can contend they are employees (sometimes as a matter of law) who are entitled to the overtime pay, wage-itemization statements, timely termination wages, meal and rest breaks, reimbursement of business expenses, and other items of pay and benefits that generally are uniquely available to employees. An example of the trend was the 2014 Court of Appeal decision in Dynamex Operations West, Inc. v. Superior Court,21 which partially upheld certification of a class of package delivery service drivers, for purposes of claims brought under Wage Order 9 (governing transportation workers). The Court of Appeal endorsed the trial court’s use of a broader definition of “employee” to determine whether individuals are misclassified as an independent contractor under the IWC Wage Orders. Also in 2014, in Ruiz v.
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