©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 411 30 Garcia v. Border Transp. Grp., LLC, 28 Cal. App. 5th 558, 575-76 (2018). 31 Id. at 575. 32 Lawson v. Grubhub, Inc., No. 15-cv-05128-JSC, 2018 WL 6190316, at *7 (N.D. Cal. Nov. 28, 2018) (declining to rule on retroactivity while noting defendant’s argument that retroactive application would raise issues of due process); Lawson v. Grubhub, Inc., No. 18-15386, 2019 WL 5876923, at *1 (9th Cir. Sept. 26, 2019) (proceedings stayed pending the California Supreme Court’s decision on whether its Dynamex ruling applies retroactively). 33 Gonzales v. San Gabriel Transit, Inc., 40 Cal. App. 5th 1131, 1156 (2019) (citing “usual rule of retroactive application” and wrongly asserting that “Dynamex did not establish a new standard.”), review granted, 456 P.3d 1 (Cal. 2020), review dismissed, remanded by 481 P.3d 1144, (Cal. 2021). 34 In Vazquez v. Jan-Pro Franchising Int’l, Inc., 10 Cal. 5th 944 (2021), the California Supreme Court—accepting a request by the Ninth Circuit, 939 F.3d 1045 (9th Cir. 2019)—agreed to decide: “Does the decision in Dynamex Operations West Inc. v. Superior Ct. (2018) 4 Cal. 5th 903, apply retroactively?” 35 Id. (accepting a request by the Ninth Circuit to decide the question, “Does the decision in Dynamex Operations West Inc. v. Superior Ct. (2018) 4 Cal. 5th 903, apply retroactively?”). 36 Martinez v. Combs, 49 Cal. 4th 35, 57-58 (2010). 37 Ayala, 59 Cal. 4th at 431. 38 Vazquez, 10 Cal. 5th at 955. 39 Id. at 956-57. 40 Id. at 957. 41 AB 5, 2019 bill amending Lab. Code § 3351, adding Lab. Code § 2750.3, and amending Unemp. Ins. Code §§ 606.5, 621. 42 People v. Uber Techs., Inc., 56 Cal. App. 5th 266 (2020). 43 Bus. & Prof. Code §§ 7448 et seq. 44 See Castellanos v. California, Cal., No. S279622, July 25, 2024. Note that the California Supreme Court explicitly left open the question of whether state lawmakers can extend the workers’ compensation system to include app-based workers. 45 Lawson v. Grubhub, Inc., No. 15-cv-05128-JSC, (N.D. Cal. July 23, 2024). 46 Castellanos v. State of Cal., 89 Cal. App. 5th 131, 143, as modified (Apr. 12, 2023). 47 The AB 5 exemptions appeared in Lab. Code § 2750.3(b)-(h) (which has since been repealed), while the AB 2257 exemptions appear in Lab. Code §§ 2776-2784. 48 S.G. Borello & Sons, Inc. v. Dep’t of Indus. Rels., 48 Cal. 3d 341, 342-43 (1989). 49 Lab. Code § 2776. 50 AB 170, 2019 bill adding Lab. Code § 2750.3(b)(7), was thus followed by AB 323, a 2020 bill. In September 2021, Governor Newsom signed into law AB 1506, which amended Lab. Code § 2783 by extending the exemption to January 1, 2026. 51 People v. Maple Bear, No. 2019-48731, slip op. at 3, 4, 5 (San Diego Superior Ct. Feb. 18, 2020). 52 State of Cal. v. Maplebear, Inc., No. D077380 (Cal. Ct. App. Feb. 17, 2021), slip op. at 8 (unpublished). 53 Olson v. State of Cal., 2020 WL 905572, at *14 (C.D. Cal. Feb. 10, 2020) (rejecting argument that it violates equal protection to apply the ABC test to companies providing internet applications for drivers and travelers while exempting ABC coverage for such favored classes as doctors, lawyers, accountants, investment advisers, commercial fisherman, travel agents, and so on). See Olson v. Cal., No. CV 19-10956 DMG (RAOx), 2020 WL 6439166, at *12 (C.D. Cal. Sept. 18, 2020) (granting motion to dismiss Uber and Postmates plaintiffs’ complaint). 54 Lab. Code § 2750.3(c)(B)(ix), (x) (repealed). AB 2257 removed the 35 “submission” cap as a requirement of contractor status. See Lab. Code § 2778(b)(2)(J). 55 Am. Soc’y of Journalists & Authors, Inc. v. Becerra, No. CV 19-10645 PSG (KSx), 2020 WL 1444909, at *10 (C.D. Cal. Mar. 20, 2020), appeal dismissed, No. 20-55408, 2020 WL 6075667 (9th Cir. Aug. 20, 2020). 56 See Quinn v. LPL Fin. LLC, 91 Cal. App. 5th 370 (May 10, 2023). 57 Cal. Trucking Ass’n v. Becerra,433 F. Supp. 3d 1154 (S.D. Cal. 2020), rev’d sub nom. Cal. Trucking Ass’n v. Bonta, 996 F.3d 644 (9th Cir. 2021). Becerra relies on a state judicial decision, Cal. v. Cal Cartage Transp. Express, LLC, No. BC689320 (Los Angeles Superior Ct. Jan. 8, 2020), which ruled that the ABC test effectively prohibits motor carriers from using independent contractors to provide transportation services and thus has a significant, impermissible effect on motor carriers’ “prices, routes, and services” that runs afoul of the FAAAA. The State and the labor union appealed and the Ninth Circuit reversed, holding that the state statute had only a tenuous, remote, or peripheral connection to rates, routes, or services and thus was not preempted by FAAAA as applied to motor carriers. Cal. Trucking Ass’n v. Bonta, 996 F.3d 644 (9th Cir. 2021). 58 Cal. Trucking Ass’n v. Bonta, 996 F.3d 644 (9th Cir. 2021). 59 People v. Superior Ct. (Cal Cartage Transp. Express, LLC), 57 Cal. App. 5th 619 (2020). 60 Lab. Code § 2754. 61 See § 1.5. For the standard that the EDD applies in determining whether a worker is an employee or independent contractor, see the Employment Determination Guide, https://www.edd.ca.gov/pdf_pub_ctr/de38.pdf (visited Mar. 18, 2024)(listing multiple elements to consider: instructions/supervision, training, continuing relationship, reports, payments, expenses, tools and materials, investment, profit or loss, services offered to general public, right to fire, right to quit, level of skill required, beliefs of the parties, and business decisions).
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