From JDSupra, Michael Lotito, Bruce Sarchet, and Patrick Stokes provide an excellent review of the recent history of the Dynamex decision and a superb update on the California bill that addresses addressing worker classification following Dynamex. Michael, Bruce and Patrick write:
On July 10, 2019, the California Senate Labor, Public Employment, and Retirement Committee (Committee) advanced a proposed legislative response to the California Supreme Court’s opinion in Dynamex v. Superior Court, which abruptly and drastically altered the legal landscape for independent contractor relationships. The Committee heard three hours of testimony and public comment, debated, and ultimately voted 4 to 11 to pass Assembly Bill 5 (AB 5) with the understanding that further amendment is still needed to address several critical issues.
Dynamex v. Superior Court2and its Implications
On January 28, 2015, the California Supreme Court granted review of a lower court’s class action certification involving a package and document delivery company. The named plaintiffs in the case were delivery couriers, who claimed the company improperly classified them and similarly situated couriers as independent contractors in and after 2004.
On December 21, 2016, the California Supreme Court considered:
In a wage and hour class action involving claims that the plaintiffs are misclassified as independent contractors, may a class be certified based on the Industrial Welfare Commission definitions [contained in California’s Wage Orders]3 … or should the common law test for distinguishing between employees and independent contractors discussed in [S. G. Borello & Sons, Inc. v. Department of Industrial Relations] control?
At that time, California courts and state agencies had long applied the common law test the California Supreme Court itself adopted in 1989, in the matter of S. G. Borello & Sons, Inc. v. Department of Industrial Relations(Borello) as the applicable test. Over the course of nearly 30 years, employers had come to reasonably rely on the “Borello test” as the standard for determining whether a worker was an employee or an independent contractor for purposes of both the Labor Code and the California Wage Orders.
The Borello test involved a highly flexible analysis of numerous factors. The test focused primarily on whether the alleged employer had a right to control the manner and means of the alleged employee’s work. However, the test also included a list of nine “additional factors,” ranging from “right to discharge at will, without cause” to whether or not the parties intended to form an employer-employee or independent contractor relationship.
On April 30, 2018, the California Supreme Court issued a unanimous decision in Dynamex imposing an entirely new standard for determining whether a worker is an employee or an independent contractor for purposes the California Wage Orders. In place of the Borello test, the court imposed the “ABC test.”
The ABC test presumes a worker is an employee, and places the burden on the hirer to establish that the worker is an independent contractor. The worker is an employee unless the hiring entity establishes each of the following three factors:
(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.4
Despite its stated intention to bring more certainty and clarity to the law, the court failed to address the critical issue of retroactive versus prospective application of the new test. The employer filed a petition for rehearing, asking the court to resolve this apparent oversight by specifically deciding the issue, or at least providing lower courts with some guidance on how the issue should be addressed. The California Supreme Court denied the petition for rehearing, and the original opinion became final as of June 20, 2018.
In only a year, the decision has already affected a diverse array of businesses and industries that bear no resemblance to delivery services. Indeed, the unintended impact has spread to settings that bear no indicia of worker exploitation, and in which independent contractor relationships are strongly preferred by both workers and hiring entities. In a substantial number of such settings, independent contractor relationships are even necessary to ensure compliance with legal and ethical requirements.5
Retroactive Application of Dynamex
On May 2, 2019, the U.S. Court of Appeal for the Ninth Circuit ruled that Dynamex applies retroactively.6 In reaching this decision, the Ninth Circuit cited other decisions of the California Supreme Court to the effect that judicial decisions are generally given retroactive effect. The Ninth Circuit recognized that the California Supreme Court has allowed exceptions to retroactivity “when a judicial decision changes a settled rule on which the parties below have relied.” The Ninth Circuit, however, declined to apply that exception, based on a perceived “emphasis in Dynamex on its holding as a clarification rather than as a departure from established law.” The Ninth Circuit brushed aside due process concerns on the grounds that: (1) retroactive application of Dynamex imposed only civil, not criminal, liability; (2) “deference is owed to judicial common-law developments, which by their nature must operate retroactively on the parties in the case;” (3) “[a]pplying Dynamex retroactively is neither arbitrary nor irrational;” and (4) “applying Dynamex retroactively … ensure[s] that the California Supreme Court’s concerns are respected.”
The Ninth Circuit’s analysis tracks the decisions of several California trial courts that reached the same result. To date, no California appellate court has ruled on the issue.
Assembly Bill 5
Assembly Bill 5 is a proposed legislative “fix” to Dynamex. The present text of AB 5 consists of three parts: (1) express adoption of the ABC test; (2) exceptions to the first part; and (3) a statement of intent to separately address workers’ compensation issues by future amendments to existing law.
Adoption of the ABC test
The bill would add Labor Code section 2750.3, which expressly adopts the ABC test for purposes of the Labor Code, Unemployment Insurance Code, and California Wage Orders. The bill’s statement of the three elements of the ABC test is identical to the language in the Dynamex opinion. Notably, the bill goes beyond the scope of the Dynamex decision, which only applied the ABC test for purposes of the California Wage Orders.
The bill creates a number of exceptions for certain workers and situations. For the vast majority of these exceptions, if the applicable criteria are met, the Borello test instead of the ABC test will apply. For a small number of the exceptions, meeting certain criteria will cause other tests to apply.7
The proposed exceptions have been the most hotly debated aspect of the bill. The list has been amended numerous times to add new exceptions and to revise existing ones. Further amendments are expected.
At present, the exceptions can be broken down into three categories, as follows:
- Specific professions and businesses:8
- Insurance brokers;
- Physicians and surgeons;
- Securities broker-dealers, investment advisors, and their agents;
- Direct sales salespersons as described in section 650 of the Unemployment Insurance Code;
- Real estate licensees;
- Hairstylists, barbers, electrologists, estheticians, and workers providing natural hair braiding;
- Workers performing repossession services for repossession agencies.
- Service providers9
The apparent goal10 of this exception is to allow an individual or entity (the “contracting business”) to receive services from a worker employed by another individual or entity (the “service provider”), yet have the worker’s relationship with the contracting business be governed by the Borello test. In order to fall within the exception, the contracting business must demonstrate that 12 criteria11 are satisfied. Several of these criteria are problematic, for four reasons.
First, it will often be difficult for the contracting business to conclusively verify that the service provider actually maintains a separate business location, is “customarily engaged in an independently established business of the same nature as that involved in the work performed,” contracts with other businesses to provide the same or similar services, and maintains a clientele independent of the contracting business entity. On these issues, the contracting business must largely rely on the representations of the service provider. The bill does not address under what circumstances the contracting business may be held liable where the service provider’s inaccurate representations result in non-compliance with these criteria.
Second, several of the criteria are not within the contracting business’s control. The service provider controls whether it possesses a business license (if required by the jurisdiction in which the work is performed), advertises its services to the public, maintains a clientele independent of the contracting business entity, and maintains a separate business location. The bill does not specify under what circumstances the contracting business will be held liable where the actions or omissions of the service provider result in non-compliance with these criteria.
Third, the criterion that the service provider have “no other financial relationships with the contracting business” is vague. The statute does not provide any guidance regarding what “financial relationships” will be deemed to violate this criteria.
Fourth, several criteria are subject to change over time. The service provider may lose its business license, close its separate business location, cease advertising to the public, and lose its contracts with other businesses. These lapses may result in temporary or permanent failure to satisfy the corresponding criteria of the exception. The statute does not specify: (1) whether lapse of criteria will result in retroactive, temporary, or permanent loss of the exception; or (2) whether and to what extent the contracting business will be held liable.
- Contracts for professional services12
The apparent goal of this exception is to allow an individual or entity (the “hiring entity”) to receive “professional services” from an individual or entity (the “individual”) yet have the relationships with the persons and entities to whom they are providing services be governed by the Borello test. Notably, the reference to the professional as the “individual” does not mean the professional must provide services as an individual—the individual may provide the services through a sole proprietorship or business entity.13
To fall within this exception, the services must first fall within the bill’s proposed definition of “professional services,” defined as “services that meet any of the following” four categories:
- The services require an active license from the State of California and involve the practice of one of the following recognized professions: law, dentistry, architecture, engineering, podiatrists, veterinarian, private investigation, or accounting.14
- The services require possession of an advanced degree that customarily involves a prolonged course of specialized intellectual instruction and study in the field of marketing or the administration of human resources from an accredited university, college, or professional school, as distinguished from a general academic education.15
- The services are performed by a freelance writer who does not provide content to any one publication more than 25 times per year. This item is subject to additional sub-criteria.16
- The services are provided by “fine artists, professional grant writers, and graphic designers.” This item is also subject to additional sub-criteria.17
The current text does not expressly place the burden on the hiring entity to demonstrate the services meet the criteria of these categories.18
Notably, the bill currently states, “‘[p]rofessional services’ does not include professionals engaged in the fields of health care and medicine.”19 This language is inconsistent with the provisions specifically including dentists and podiatrists within the scope of the first category of professional services, above.
If the services fall within the above requirements, the hiring entity must demonstrate that nine criteria are satisfied.20 Many of these criteria are also problematic, for the same reasons discussed above regarding the criteria for the exception for service providers.
- Construction Industry
This exception appears calculated to allow an individual or entity (the “contractor”) to receive services from an individual performing work (the “individual”) pursuant to a contract in the construction industry, yet have the relationship between the contractor and the individual governed by the Borello test.
Unlike the other exceptions, described above, this exception does not specify whether the individual performing services may do so through a sole proprietorship or other business entity. However, the remaining text of the exception suggests this would be allowed. Specifically, the enumerated criteria for the exception refer to a “subcontractor.” If the individual and the subcontractor are construed as different persons/entities, then the exception allows the individual to provide services through a third party.
In order to fall within this exception, the contractor must demonstrate that eight criteria are satisfied.21 Many of these criteria are also problematic, for the same reasons discussed above regarding the criteria for the exception for service providers.
Intent to Separately Address Workers’ Compensation Issues
The bill contains only one very narrow provision directly addressing workers’ compensation. Specifically, if real estate licensees are not subject to section 10032 of the Business and Professions Code, then their classification for workers’ compensation purposes shall be governed by Labor Code section 3200, et seq.22 This provision does not appear to alter existing law.
Rather, the bill amends Labor Code section 3351 to add the following statement: “It is the intent of the Legislature to amend the law to address workers’ compensation and the holding in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903.” It appears those amendments, if any, will be made by legislation other than AB 5.23
Potential Additional Amendments to AB 5
During the meeting, Committee members expressed several concerns regarding the current text of AB 5. Committee Chair Senator Jerry Hill and Committee Vice Chair Senator Mike Morrell spoke on this subject in detail. Of particular note, the bill’s author, Assembly member Lorena Gonzalez—along with members of the Committee—expressly contemplated extensive revisions to AB 5.
The Committee’s concerns included:
Consideration of potential alternatives to Borello test: The Committee’s written analysis of the bill expressed sharp criticism of the AB 5’s application of the Borello test to workers falling within the bill’s various exceptions. The Committee wrote:
Essentially, the bill is saying, “if your workers were independent contractors before Dynamex, then they can continue to be independent contractors under Assembly Bill 5.” That said, by retaining the Borello test, these occupations remain in the messy muddle of a failed employment test that met the needs of neither employers nor workers. Should Assembly Bill 5 become law, the Legislature will need to revisit the remnants of Borello in the future.
(Emphasis in original.)
Need for revisions to exceptions: Committee members claimed the business-to-business exceptions require additional work. Sen. Hill noted the temptation to ensure independent contractors are charging twice the minimum wage is understandable, but would be difficult to administer and enforce. He expressed concern that several criteria for the exceptions are outside the hiring entity’s control. He proposed focusing not on the rate paid, but on whether the person performing the work truly has the power to set his or her own own rates. He opined that companies that allow “true” rate setting should be allowed to continue contracting with workers as independent contractors.
Workers’ compensation: Sen. Hill also expressed concern regarding the workers’ compensation implications of AB 5. He opined that it would be illogical to apply wage and hour law, but not workers’ compensation law, to a worker. However, he recognized that any change to workers’ compensation laws would require careful consideration and time that may not be available during this legislative session.
Implementation: Committee members noted any legislative solution should avoid abrupt change. Sen Hill proposed that any major shift occur over time.
Trucking Owner-Operators: Nearly every member of the Committee commented on the plight of trucking owner-operators. All appeared to agree that the bill should contain explicit recognition of legitimate owner-operators.
Avoiding retroactive liability under Dynamex: The Committee expressed that the retroactive implications of Dynamex must be equitable and just. Sen. Hill stated that a legislative solution should protect businesses that were following the law as it existed at the time.
Transparency: Sen. Hill and Sen. Morrell requested increased transparency regarding selection of certain occupations and situation for exceptions.
In sum, most members of the Committee voted to pass AB 5, with the understanding that legislators would work with each other and stakeholders to resolve the above issues before the Senate votes on it.
In her own closing comments, Assembly member Gonzalez acknowledged that the Committee probably would not address every situation in the time allotted, and anticipated the legislature would be working on this issue “for a few years.”
Numerous members of the public attended the hearing and expressed support for legislative action. Of those, approximately 50% simply stated they support the bill, and the rest expressed their support for the bill “if amended” to allow them to continue working as independent contractors in their own professions or to continue hiring independent contractors in their own businesses.
All legislators who spoke during the hearing expressed a sense of urgency regarding the need for legislative action this session. In order to accomplish this, both the Assembly and Senate will have to pass a revised version of the bill no later than September 13, 2019. It appears possible (but far from certain) that legislators will accomplish this feat. If a bill is passed on the last day, Governor Newsom will have until October 13, 2019, to sign or veto it. Governor Newsom has not yet expressed any position regarding AB 5 or any other potential legislative solution to Dynamex.