August 1, 2021

Volume XI, Number 213

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July 30, 2021

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Determination Of Class Certification Motion Should Be Based On Dynamex’s “ABC Test”

Francisco Gonzales filed this putative class action against his former employer, San Gabriel Transit (“SGT”), alleging that he and 550 other drivers were misclassified as independent contractors rather than employees. The trial court denied class certification on the ground that Gonzales had failed to demonstrate the requisite community of interest or typicality among SGT drivers.

While Gonzales’ appeal was pending, the California Supreme Court decided Dynamex Ops. W., Inc. v. Superior Court, 4 Cal. 5th 903 (2018) in which it adopted the “ABC Test” for determining employee/independent contractor status. In this opinion, the Court of Appeal reversed the denial of the class certification motion and ordered the trial court to apply the ABC Test to those claims involving enforcement of wage order requirements and the test from S.G. Borello & Sons, Inc. v. Department of Indus. Relations, 48 Cal. 3d 341 (1989) to those claims not involving enforcement of wage order requirements. Cf. Modaraei v. Action Prop. Mgmt., Inc., 40 Cal. App. 5th 632 (2019) (trial court properly denied class certification based upon commonality and class superiority criteria); Supershuttle Int’l, Inc. v. Labor & Workforce Dev. Agency, 2019 WL 4926864 (Cal. Ct. App. 2019) (employer’s declaratory relief action filed against the Labor Commissioner is not subject to dismissal under the anti-SLAPP statute).

© 2021 Proskauer Rose LLP. National Law Review, Volume IX, Number 315
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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
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