“EMPLOYEE” OR “INDEPENDENT CONTRACTOR” IN WORKERS’ COMPENSATION
The California Supreme Court held that the test to determine whether a worker was an “employee” or an “independent contractor” under the California Industrial Welfare Commission (IWC) Wage Orders turns on three requirements (control, hirer’s usual course of business, and worker’s trade) all of which must be satisfiedby the hiring entity. Dynamex Operations West, Inc. v. Superior Court, LASC No. BC332016, Ct.App. 2/7 B249546, S222732 (April 30, 2018).
The California Supreme Court did not apply the multifactor Borellotestin this waged-hour dispute. Borellohas been the Workers’ Compensation standard for nearly three decades as set for the by the California Supreme Court in 1989. The Borellotest involves the principal factor of “whether the person to whom services is rendered has the right to control the manner and means of accomplishing the result desired” as well as the following nine additional factors: “(1) right to discharge at will, without cause; (2) whether the one performing the services is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether in the locality the work is usually done under the direction of the principal or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the services are to be performed; (7) method of payment, whether by the time or by the job; (8) whether or not the work is part of the regular business of the principal; and (9) whether or not the parties believe they are creating the relationship of employer-employee.” (S. G. Borello & Sons, Inc. v. Department of Industrial Relations(1989) 48 Cal.3d 341, 351.)
Dynamexmay make it easier for a worker to obtain “employee” status in a wage-hour dispute, however Dynamexis distinguished from the Borello case in that Borellowas a Workers’ Compensation case, not a wage-hour dispute. Therefore, until overruled, Borellostill appears to be the test of “employees” or “independent contractors” status for purposes of workers’ compensation.
Daniel D. Gilson ? Gilson Daub May 8, 2018