316 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 490 Id. at 1116. 491 Id. at 1121-25. 492 Id. at 1130 (the ABC test was adopted to address claims that workers have been misclassified as independent contractors rather than covered employees, and was not intended to apply to claims of joint employer liability; the governing standard for determining the existence of a joint employment relationship remains Martinez). See also Curry v. Equilon Enter., LLC, 23 Cal. App. 5th 289, 314 (2018) (“[T]he Supreme Court’s policy reasons for selecting the `ABC’ test are uniquely relevant to the issue of allegedly misclassified independent contractors.” In the “joint employment context, the alleged employee is already considered an employee of the primary employer; the issue is whether the employee is also an employee of the alleged secondary employer.”). The Court of Appeal in Curry reasoned that “the ‘ABC’ test set forth in Dynamex is directed toward the issue of whether employees were misclassified as independent contractors. Placing the burden on the alleged employer to prove that the worker is not an employee is meant to serve policy goals that are not relevant in the joint employment context.” Id. 493 Salazar v. McDonald’s, Inc., 944 F.3d 1024, 1032 (9th Cir. 2019). 494 See Vazquez v. Jan-Pro Franchising Int’l, Inc., 10 Cal. 5th 944 (2021). 495 Lab. Code § 2810.3. 496 Lab. Code § 2810.3(a)(3)(D). 497 Goonewardene v. ADP, LLC, 5 Cal. App. 5th 154 (2016), review granted, No. S238941 (Cal. Feb. 15, 2016) (agreeing to decide: “Does the aggrieved employee in a lawsuit based on unpaid overtime have viable claims against the outside vendor that performed payroll services under a contract with the employer?”). 498 Futrell v. Payday Cal., Inc., 190 Cal. App. 4th 1419, 1432 (2010) (affirming summary judgment for payroll company sued as plaintiff’s joint employer with respect to wage and wage-statement claims; payroll company did not control wages or conditions of employment by virtue of performing the “ministerial tasks of calculating pay and tax withholding, and by also issuing paychecks, drawn on its own bank account”). 499 Goonewardene, 5 Cal. App. 5th at 166-71. 500 Goonewardene v. ADP, LLC, 6 Cal. 5th 817 (2019). 501 Mattei v. Corp. Mgt. Sols., Inc., 52 Cal. App. 5th 116, 127-29 (2020). 502 SB 1402, 2018 bill adding Lab. Code § 2810.4. 503 AB 1565, 2018 bill amending Lab. Code § 218.7. 504 Serrano v. Aerotek, Inc., 21 Cal. App. 5th 773, 784 (2018) (affirming summary judgment for staffing company because it could be held liable only for its own breach of duty, not vicariously liable for the other alleged joint employer’s breach of duty) (disapproved of on other grounds by Donohue v. AMN Servs., LLC, 21 Cal. App. 5th 773 (2018). 505 Castillo v. Glenair, Inc., 23 Cal. App. 5th 262, 266 (2018) (workers cannot “bring a lawsuit against a staffing company, settle that lawsuit, and then bring identical claims against the company where they have been placed to work”). 506 Grande v. Eisenhower Med. Ctr., 44 Cal. App. 5th 1147, 1162-63 (2020), aff’d, 13 Cal. 5th 313 (2022). 507 Grande, 44 Cal. App. 5th at 1168 (Ramirez, P.J. dissenting). 508 Grande v. Eisenhower Med. Ctr., 13 Cal. 5th 313 (2022). 509 AB 3075, 2020 bill adding Lab. Code § 200.3. The new law states that successorship is established if the alleged successor (1) uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the judgment debtor, (2) has substantially the same owners or managers that control the labor relations as the judgment debtor, (3) employs as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor, or (4) operates a business in the same industry and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor. 510 Lab. Code §§ 551 (“Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”), 552 (“No employer of labor shall cause his employees to work more than six days in seven,”), and 556 (“Sections 551 and 552 shall not apply to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”). 511 Mendoza v. Nordstrom, Inc., 2 Cal. 5th 1074, 1087 (2017) (cautioning that the-day-of rest rule requires that “[i]f at one time an employee works every day of a given week, at another time shortly before or after she must be permitted multiple days of rest in a week to compensate, and on balance must average no less than one day’s rest for every seven”). 512 Id. at 1087-90 (deferring to IWC and DLSE interpretations that the “six hours or less” in a day exemption means six hours or less in every day of the week). 513 Id. at 1091 (“an employer’s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.”). 514 These are businesses located in San Francisco that fall under the Planning Code’s definition of “Formula Retail Use,” except that the business must have at least 11 retail sales establishments worldwide. The Planning Code defines “Formula Retail Use” as a type of retail sales establishment that is standardized in terms of two or more of the following indicators: array of merchandise, façade, décor and color scheme, uniforms, signage, and trademark or servicemark. This definition includes businesses that some may not consider to be “retail,” such as bars, gyms, massage parlors, movie theatres, banks, and credit unions. San Francisco Planning Code, § 303.1(b).
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