410 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com based on all of the evidence. (a) [Name of defendant] supplied the equipment, tools, and place of work; (b) [Name of agent] was paid by the hour rather than by the job; (c) [Name of defendant] was in business; (d) The work being done by [name of agent] was part of the regular business of [name of defendant]; (e) [Name of agent] was not engaged in a distinct occupation or business; (f) The kind of work performed by [name of agent] is usually done under the direction of a supervisor rather than by a specialist working without supervision; (g) The kind of work performed by [name of agent] does not require specialized or professional skill; (h) The services performed by [name of agent] were to be performed over a long period of time; [and] (i) [Name of defendant] and [name of agent] believed that they had an employer-employee relationship [and] (j) [Specify other factor]. 16 See Yellow Cab Cooperative, Inc. v. Workers’ Comp. Appeals Bd., 226 Cal. App. 3d 1288, 1301 (1991) (“The Supreme Court pointed out in Borello that the Workers’ Compensation Act serves public as well as private interests and that a waiver of its protections is not to be lightly inferred. ‘Among other things, the statute represents society’s recognition that if the financial risk of job injuries is not placed upon the businesses which produce them, it may fall upon the public treasury.’”) (quoting Borello, 48 Cal. 3d at 358). 17 Arzate v. Bridge Terminal Transp., Inc., 192 Cal. App. 4th 419, 426 (2011) (reversing summary judgment for the defendant; secondary factors could sustain finding that plaintiffs were employees even if control factor indicated that plaintiffs were independent contractors). 18 The FLSA exemption appears in 29 U.S.C. § 213(d). Many states, but not California, adopt the substance of this exemption for purposes of state wage and hour law. 19 Ayala v. Antelope Valley Newspapers, Inc., 59 Cal. 4th 522, 528, 533 (2014) (“Whether a common law employer-employee relationship exists turns foremost on the degree of a hirer’s right to control how the end result is achieved. [Internal citations omitted.] In turn, whether the hirer’s right to control can be shown on a classwide basis will depend on the extent to which individual variations in the hirer’s rights vis-à-vis each putative class member exist, and whether such variations, if any, are manageable.” “Significantly, what matters under the common law is not how much control a hirer exercises, but how much control the hirer retains the right to exercise.”) (emphasis in original). The Supreme Court concluded that the trial court had erred in denying certification based on an analysis of the actual control the newspaper asserted over the carriers. The Supreme Court also noted, however, that class certification might be denied if there were significant variations among the class members as to various secondary factors of employment (which are to be considered in addition to the primary “right to control” factor). The Supreme Court left undisturbed another appellate decision, Sotelo v. Medianewsgroup, 207 Cal. App. 4th 639 (2012), disapproved on other grounds by Noel v. Thrifty Payless, Inc., 7 Cal. 5th 955 (2019), which affirmed the denial of class certification to another group of newspaper carriers, given the variations among carriers that existed regarding factors that one considers in deciding whether an individual is an employee or an independent contractor: “Even though the court found variability among the class in only a few of the factors, the court observed that the multifactor test ‘requires that the factors be examined together.’ Thus, even if other factors were able to be determined on a classwide basis, those factors would still need to be weighed individually, along with the factors for which individual testimony are required. We find no failure to use proper criteria or improper legal assumptions in this determination.” Id. at 660. More recently, in a case defended by Seyfarth Shaw, a California federal court denied class certification to a group of newspaper carriers, despite allegations of their uniform contracts, given that the secondary factors were “riddled” with individualized inquiries. Aronson v. Gannett Publ'g Servs., LLC, 2020 WL 2891940 (C.D. Cal. May 29, 2020). Seyfarth Shaw also defeated class certification based on similar allegations involving newspaper dealers—businesses that contracted with the defendant newspaper publisher for home delivery services, and then the dealers sub-contracted the delivery work to newspaper carriers. Sanchez v. Hearst Commc’ns, Inc., 2022 WL 1400853 (N.D. Cal. May 4, 2022). 20 Lab. Code § 2783(h)(1), (4) (extending to Jan. 1, 2025 the exemption from the ABC test, thereby making Borello the governing legal test for newspaper carriers and dealers). 21 Dynamex Operations West, Inc. v. Superior Ct., 230 Cal. App. 4th 718 (2014), review granted, No. S222732, 341 P.3d 438 (Cal. 2015). The California Supreme Court ruled in 2018. Dynamex Operations West, Inc. v. Superior Ct., 4 Cal. 5th 903 (2018). 22 Ruiz v. Affinity Logistics Corp., 754 F.3d 1093, 1103-05 (9th Cir. 2014). 23 Alexander, 765 F.3d at 997. 24 Garcia v. Seacon Logix, Inc., 238 Cal. App. 4th 1476, 1478-79, 1488 (2015). 25 O’Connor v. Uber Techs., Inc., 311 F.R.D. 547, 568 (N.D. Cal. 2015), rev’d and remanded, 904 F.3d 1087 (9th Cir. 2018). 26 An order of class certification in that case was reversed because certain arbitration agreements were enforceable. O’Connor v. Uber Techs., Inc., 904 F.3d 1087, 1094-95 (9th Cir. 2018) (“The class as certified includes drivers who entered into agreements to arbitrate their claims and to waive their right to participate in a class action with regard to those claims. … [T]he question of whether those agreements were enforceable was not properly for the district court to answer. The question of arbitrability was designated to the arbitrator.”). 27 Dynamex, 4 Cal. 5th at 903 (2018). 28 Borello, 48 Cal. 3d at 342-43. 29 See 8 Cal. Code Regs. § 11130, Section 2(D).
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