Labor and Employment Law

Ca. Labor & Emp't Rev. September 2018, Volume 32, No. 5

Dynamex Operations West, Inc. v. Superior Court: Employees’ Perspective

By Cornelia Dai

Cornelia Dai is a partner at Hadsell Stormer & Renick, LLP, a private plaintiff-side law firm in Southern California. She specializes in employment, wage and hour, and civil rights law, with a focus on class actions and complex litigation.

The California Supreme Court’s unanimous 82-page decision in Dynamex Operations West, Inc. v. Superior Court1 resoundingly answered the call for protection of employees in a time of rampant independent contractor misclassification fueled by a changing economy. Dynamex clarifies that the broad "suffer and permit to work" definition for "employ," found in California’s wage orders, is the appropriate standard for determining whether a worker is an employee or an independent contractor.

Adopting the ABC test to determine whether a worker was suffered or permitted to work, Dynamex holds that a worker is presumed to be an employee, and that the hiring entity must satisfy all three conditions of the ABC test to overcome the presumption and establish the worker is an independent contractor. The ABC test should prove to be a more difficult test for hiring companies to meet than the multifactor "right to control" test under S.G. Borello & Sons, Inc. v. Department of Industrial Relations.2

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