From The National Law Review, Kevin Sullivan reports on a recent California case in which the court said that the new ABC test recently adopted by the California Supreme Court only applies to cases in which a violation of a wage order is alleged. This means that claims that a worker was misclassified could be determined by different standards depending on whether the claim was based on a wage order or on a statute. Kevin writes:
On October 22, 2018, the California Court of Appeal addressed that issue in Garcia v. Border Transportation Group, LLC, holding that Dynamex’s “ABC” test does not apply to claims not arising under a wage order. The Garcia Court held that the widely used Borello standard applies to non-wage-order claims for determining whether workers are employees or independent contractors.
Although many wage-hour claims do arise under an IWC wage order, a number do not. For example, certain claims for expense reimbursement under Labor Code section 2820, claims for wage statement violations under section 226, and claims for waiting time penalties under section 203 for an alleged failure to pay all wages due at the end of employment arise under the Labor Code only; there are no equivalent claims under any IWC wage order.
Following Garcia, entities doing business in California that have had actions filed against them alleging independent contractor misclassification based on Dynamex now have authority to argue that a number of claims should be dismissed.
Read the full story at Non-Wage Order Claims: CA Court Rejects Dynamex’s “ABC” Test