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Speakers

Randy Harold Pollak
Randy Pollak is the Managing Partner, Practice Leader, for Wintersteen | Casarez Law Corporation. He is a Certified Specialist in Workers’ Compensation Law and is a frequent author and speaker in the industry. Mr. Pollak was also the former Managing Editor of the Workers’ Compensation Quarterly, which is the official legal publication for the California Lawyers Association, Workers’ Compensation Section.

Amber Tesler
Amber Tesler is a defense attorney with Wai, Connor & Hamidzadeh, LLP in their Northern California Office. Ms. Tesler earned her Bachelor of Arts degree in Law & Society from the University of California, Santa Barbara and her Juris Doctor degree from Golden Gate University School of Law. In addition to her law degree Ms. Tesler obtained her Master of Dispute Resolution through Straus Institute for Dispute Resolution at Pepperdine School of Law. She is an active member of the California State Bar, the California Lawyers Association and the Workers Compensation Section. Ms. Tesler is currently serving a three-year term on the Workers Compensation Executive Committee of the California Lawyers Association.

Moderator:
Hon. Sharon Velzy-Lenington

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Is there anything more tortured than the simple definition of who is an employee in the State of California? Even before the “gig” worker debate with app-based drivers, such as Uber and Lyft, the analysis of who is an employee and who is an independent contractor was a struggle.  However, the last decade, with the introduction of the “gig” worker phenomenon, pushed these definitions to the breaking point, as the intersection of history, law, politics, and economics, came to a head with major reform and then counter reform. And what are we now left with? Litigation to sort it out.

Statutorily, the Labor Code provides some simple definitions, which seem straightforward.  Per Labor Code section 3351, “’[e]mployee’ means every person in the service of an employer under any appointment or contract of hire…” There is also a simple definition of someone that is not to be defined as an “employee,” but rather as an “independent contractor.” Per Labor Code section 3353, that is “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”

But the Labor Code is not the end of the story. As we all know, the test, and the purposes, for drawing the distinction between an “employee” and “independent contractor” has evolved over the years. What started with the common law “control of details” test, to protect employers from vicarious liability, moved in the 20^th century to a focus on social welfare legislation and their statutory purpose, with the Borello factors test. After a 30-year Borello regime, the Supreme Court of California initiated a revolution in Dynamex, which spurred the California legislature to pass AB5 and implantation of the ABC test across the board for all systems where the definition of who is an employee is relevant.

All of these changes have had significant impact into the lives of the workers being classified one way or the other, and the businesses that utilize their services. Most recently, this issue has boiled over with a gigantic, and successful, campaign to exempt the classification of workers in a single industry, the “gig” workers for app-based companies, such as Uber, Lyft and Door Dash, to name a few. That was Proposition 22, with implementation of Bus. & Prof. Code section 7451. But then things got complicated with Castellanos v. State of California in 2021, finding Proposition 22 unconstitutional. But recently, in a near 180 degrees turn, the 1^st Appellate District partially reversed that decision in a 132-page opinion in Castellanos v. State of California, 2023 Cal. App. LEXIS 183. In short, the most important holding being that Proposition 22 does not violate the legislature’s plenary power over workers’ compensation matters. At this point, further appeal to the California Supreme Court is a certainty.

Now, the question for the Workers’ Compensation system is, with the status of the “gig” worker winding itself through various layers of appeals, how do you handle them in the meantime? Are they employees? Are they independent contractors? Does the WCAB have any jurisdiction? Can any discovery be done in these cases? Recently, the WCAB dipped its toe in the water on this in Murguia v. Lyft, 2022 Cal. Wrk. Comp. P.D. LEXIS 288, allowing some level of discovery.

Join us for a webinar on April 28, 2023, as we update the workers’ compensation practitioner on the current status of the “gig” worker. The discussion will provide all the “nuts and bolts” to deal with independent contractor issues, and place the discussion of the “gig” worker in the larger context and history of working through the problems with the simple question: who is an employee?