July 5, 2022

Volume XII, Number 186

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California Continues to Go to the Dogs

On March 17, Rover—a digital application connecting pet owners with daily pet-care providers—argued to the Ninth Circuit that it should uphold a California federal judge’s finding that a dog-sitter was properly classified as an independent contractor.

While maintaining that it passes the strict three-pronged “ABC test”—which we have reported on herehere, and here—Rover also asserted that it is a “referral agency” under the California Labor Code and is, therefore, subject to the 11-factor Borello test, which is less stringent than the ABC test and focuses on whether the hiring entity has the right to control the worker in both the work completed and in the manner and means in which the work is performed.

Rover asserted that the individual pet-care provider’s control over their rates; cancellations; services provided – including when, where, how, and for whom those services are provided; and that Rover requires no exclusivity from pet-care providers indicate that the providers are independent contractors.  Additionally, Rover argued that facilitating a direct connection between clients and pet-care providers is different from “directly and continuously providing those services.”  Moreover, Rover urged that since the dog walker uses her own tools for her work—in an industry where she works separately from Rover and has only used Rover sporadically—she is primarily engaged in her own independent business endeavor.

The appellant pet-care provider, however, claimed that Rover “exerts pressure” on providers to perform certain tasks while pet sitting, such as sharing photos with owners while providing services.  Further, the pet-care provider contends that Rover’s 20% service fee gives the company effective control over the provider’s rates.

We will continue to monitor this case as well as any others with potentially far-reaching consequences for California hirers – and dogs alike!

© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 89
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About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm
Partner

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....

310-284-5690
Associate

Dylan Tedford is an associate in our Labor and Employment Department. Dylan graduated from the University of Southern California Gould School of Law, where he was a member of the Hale Moot Court Honors Program and served in several student organizations. While at USC, he was a legal extern for Judge Gregg Zive in the U.S. Bankruptcy Court for the District of Nevada. Prior to law school, Dylan was a government affairs coordinator for a lobbying firm in Nevada.

310-557-4566
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