November 30, 2020

Volume X, Number 335


California Supreme Court Ruling to Give More Workers Employee Status

On April 30, the California Supreme Court issued an opinion effectively expanding the number of workers that will be deemed as employees for purposes of California wage orders, ultimately granting such workers benefits, minimum wage, and overtime compensation, as well as rest and meal breaks.

The court issued a unanimous decision in Dynamex Operations West Inc. v. The Superior Court of Los Angeles County, Case No. S222732, a lawsuit in which two delivery drivers, on behalf of themselves and other drivers similarly situated, sued Dynamex Operations West, Inc., a nationwide packaging and document delivery company, alleging that Dynamax had misclassified its delivery drivers as independent contractors. Dynamex originally classified its drivers as employees, but reclassified them as independent contractors in 2004, and was subsequently sued in 2005. Since then, the case has been working its way through the California lower courts.

The court’s opinion turned away from the Borello multifactor test, which, in determining a worker’s status, looked at an employer’s control over its workers and has been the standard over the last three decades based on the 1989 California Supreme Court ruling in S.G. Borello & Sons Inc. v. Department of Industrial Relations.

The court’s ruling in Dynamex adopted California Industrial Welfare Commission’s definition of employment, which makes an employee anyone whom a business “engage[s], suffer[s] or permit[s]” to work. The opinion held that under this “suffer or permit to work” standard, a court “presumptively considers all workers to be employees, and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions: (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (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 that involved in the work performed.” The California Supreme Court further said, “[t]he hiring entity’s failure to prove any one of these three prerequisites will be sufficient in itself to establish that the worker is an included employee, rather than an excluded independent contractor, for purposes of the wage order.”

This decision is likely to create challenges for California employers as it will undoubtedly increase the number of individuals who should be considered employees, particularly those who work in the “gig economy.”

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume VIII, Number 122



About this Author

Kenneth J. Yerkes Employment lawyer Barnes Thornburg

Chair of the firm’s Labor and Employment Department for two decades, Ken Yerkes has spent over 30 years successfully fighting for his clients' rights and business objectives at the bargaining table, in arbitration and federal and state court, as well as in plants across the country through proactive training, counseling and union avoidance campaigns.

Ken's ability to transform complex scenarios into workable strategies has earned him not only his clients' trust, but also acclaim as one of the country’s recognized leaders in labor and employment law. He is a fellow...

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William A. Nolan serves as the Managing Partner of Barnes & Thornburg LLP’s Columbus, Ohio, office, which he opened in 2009. He is a member of the firm’s Labor and Employment Law Department. Bill has extensive experience as a litigator, trial lawyer and counselor. His practice includes a broad range of issues that organizations face in our rapidly changing competitive, legal and workplace environments. In short, he works to help management structure organizations, practices and relationships to proactively minimize the business disruption of disputes, and to help clients prevail when...

Mark Kittaka, Barnes Thornburg Law Firm, Fort Wayne and Columbus, Labor and Employment Law Attorney

Mark S. Kittaka is a partner and the administrator of the Labor and Employment Law Department of Barnes & Thornburg LLP’s Fort Wayne, Indiana office. Mr. Kittaka’s practice covers all areas of labor and employment law including federal and state litigation concerning discriminatory practices and retaliation claims, including, but not limited to: Title VII race, sex, color, and religious discrimination claims; the Americans with Disabilities Act (ADA) (disability discrimination, reasonable accommodation, interactive process); Age Discrimination in Employment Act (ADEA); the Family and...

Robert W. Sikkel, Barnes Thornburg Law Firm, Grand Rapids, Labor and Employment Law Attorney

Robert W. Sikkel, a partner at Barnes & Thornburg LLP, is the administrator of the Grand Rapids, Michigan Labor and Employment Law Department. He has handled labor and employment matters for more than 30 years.

Bob represents employers throughout the country on labor and employment law matters including collective bargaining; grievances and arbitrations; National Labor Relations Board; labor strategies for mergers and acquisitions; EEOC and state agency charges of discrimination; OFCCP matters; hiring, discipline, and termination counseling; FMLA; in-house...

John Koenig, Barnes Thornburg Law Firm, Atlanta and Indianapolis, Labor and Employment Law Attorney

John T.L. Koenig is a partner in the Labor & Employment Department of Barnes & Thornburg LLP. He maintains a national, full-service practice representing management exclusively in all aspects of labor and employment law.

Traditional Labor

Mr. Koenig represents companies in the grievance and arbitration process, collective bargaining, strike preparation, union organizing and election matters, and in unfair labor practice and representational cases before the NLRB. He frequently trains supervisors on effective and...