Dynamex Operations West, Inc. v. Superior Court of Los Angeles

Case Updates

The California Supreme Court issued a decision that could make it substantially more difficult for businesses in California to show that their workers are independent contractors rather than employees. The court adopted a new version of the so-called “ABC” test for purposes of claims brought under California’s Industrial Welfare Commission (IWC) Wage Orders. Under that test, a worker is an independent contractor rather than an employee only if he or she meets the following three factors:

1. 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
2. the worker performs work that is outside the usual course of the hiring entity’s business; and
3. the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Click here to view the amicus letter filed by the U.S. Chamber and California Chamber of Commerce.

John A. Taylor, Jr., Jeremy B. Rosen, and Felix Shafir of Horvitz & Levy LLP served as co-counsel for the Chambers.

Click here to view the supplemental brief filed by the U.S. Chamber and California Chamber of Commerce.

John A. Taylor, Jr., Jeremy B. Rosen, and Felix Shafir of Horvitz & Levy LLP served as co-counsel for the Chambers.

In its brief, the U.S. Chamber urged the California Supreme Court to overturn a lower court’s decision that improperly applied the “suffer and permit” test drawn from Industrial Welfare Commission wage orders to determine liability when workers challenge their independent contractor status.

The brief filed jointly with the California Chamber of Commerce also encourages the court to consider harmonization of wage order tests with Borello’s common law test when determining employment status and stresses that the “right to control” is the determinative consideration regardless of which test is applied.

John A. Taylor, Jr., Jeremy B. Rosen, Felix Shafir, and David W. Moreshead of Horvitz & Levy LLP served as co-counsel for the amici.